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The Brief and Unexpected Preemption of Hawaii's Humpback Whale Laws: The Authority of the States to Protect Endangered Marine Mammals Under the ESA and the MMPA

September 2006

Citation: 36 ELR 10712

Issue: 9

Author: Koalani Laura Kaulukukui

Editors' Summary: Humpback whales are endangered marine mammals, protected by the Marine Mammal Protection Act (MMPA) and the ESA. Hawai'i's seasonal thrill craft ban in humpback habitat provides additional protection. In 2004, a federal court ruled that the state's seasonal ban was preempted by the MMPA and the ESA. Below, Koalani Kaulukukui discusses the interplay of these two statutes, concluding that when a marine mammal is listed under the ESA, the more protective MMPA or ESA provision applies. Humpbacks must be given protections of the more stringent ESA, allowing Hawai'i to protect humpbacks to a greater extent than federal law.

Koalani Kaulukukui graduated from the University of Hawai'i William S. Richardson School of Law in 2006, where she earned an Environmental Law Certificate. Ms. Kaulukukui now works for the State Office of Hawaiian Affairs, Native Rights, Land, and Culture Division. This Article was a finalist in the Environmental Law Institute's 2006 Endangered Environmental Laws writing competition.

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