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Hobby Drones Over Orca Whales: Legally Murky And A Potentially Bad Mix

Boats have to stay 200 yards away from the Northwest’s endangered resident killer whales. But what if one of those boaters launches an aerial drone to take better pictures from closer up?

It's not a theoretical question. And the answer is not as clear as law enforcement would like.

"We have seen hobby drones being flown out there,” Pacific Whale Watch Association Executive Director Michael Harris said. “We have seen them being flown egregiously close to protected whales."

Harris is worried about disturbance -- or even a dying battery leading to a drone-whale crash.

"We don't need that out there,” Harris said. “You know, we need to reduce the stress on these whales."

Washington Fish and Wildlife police ticketed two drone operators last year. But the first pilot ticketed, professional photographer Doug Shih of Mercer Island, Washington, contested his $1,025 citation and it was dismissed on appeal this spring. That prompted San Juan County Prosecutor Randy Gaylord to request a state attorney general's opinion about whether aircraft are covered by existing orca protection rules.

"The statute wasn't written with drones in mind," Gaylord said in an interview Friday. "It's an emerging area."

The prosecutor said an additional complication is that the Federal Aviation Administration is asserting jurisdiction over drone regulation as states and cities for various reasons seek to regulate drones, also known as unmanned aerial vehicles.

The FAA has not taken a position on this particular whale disturbance angle.

Gaylord said Washington state rules "are the most likely to be enforced" because sheriff's deputies and state wildlife officers perform the vast majority of patrols.

Whale scientists have also used drones to photograph Northwest killer whales. The researchers involved in this work said they flew about 100 feet overhead after getting multiple permits from the U.S. and Canadian governments. Vancouver Aquarium marine mammal scientist Lance Barrett-Lennard said last fall that he didn't think the whales noticed the little buzzing hexacopter -- a six-rotor, battery powered unmanned helicopter -- at that distance.

"Drones are good for research, but should not be a part of the whale watching experience," Harris asserted.

He said he favored the imposition of a moratorium on amateur drones flying over whales. In the absence of clear rules, Harris said he feared a "Radio Shack Luftwaffe" could someday descend on the iconic orca pods, potentially disrupting vital feeding or social behaviors.

Now semi-retired, Tom Banse covered national news, business, science, public policy, Olympic sports and human interest stories from across the Northwest. He reported from well known and out–of–the–way places in the region where important, amusing, touching, or outrageous events unfolded. Tom's stories can be found online and were heard on-air during "Morning Edition" and "All Things Considered" on NPR stations in Washington, Oregon, and Idaho.