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Two decades ago off the Kona coast of the Big Island, Dan McSweeney spotted a pod of 15-foot-long false killer whales jumping high out of the water and doing belly flops, a favorite hunting technique apparently designed to scare or confuse their prey. He sped over in his Boston Whaler and slipped into the water with a small air tank and a camera.

“I went down to 100 feet,” he recalls. “One of the whales racing toward me, he was holding the back half of a big yellowfin that must have weighed 150-pounds. He stopped suddenly about four feet away and released the tuna, which came floating toward me. I figured it was some kind of offering, so I took it. Then he dived under me, made a big circle and came back to the same spot and stared at me. He looked like he wanted it back, so I pushed it over. He took it and went off. I took a picture as he was swimming away with a few of his buddies.”

“It was one of those magical moments you never forget,” adds McSweeney, who has been studying marine mammals for 40 years and heads the Wild Whale Research Foundation in Holualoa.

A species in quiet peril

False killer whales are so named because they were found after killer whales, or orcas, whom they resemble. They live mostly in the globe’s tropical waistline, also known as the tuna belt. Hawaii is north of that belt, and it has acquired a genetically distinct resident population of these whales that feed on transient game fish. It is by far the most studied group of false killer whales in the world and can be observed from whale-watching boats and from cliffs.

The endearing cetacean’s Hawaii population has fallen by 70 percent in just two decades, much faster than that of the monk seal, in part because they get caught in fishing gear and die.

Last month, after a seven-year legal battle, conservationists overcame opposition from the Hawaii Longline Association and U.S. Sen. Dan Inouye and got the federal government to do what the Marine Mammals Protection Act mandates in such cases: Appoint a team of experts to recommend changes in fishing methods so the killings stop.

The team had its first meeting last week. “We had some very good discussions, I was pleasantly surprised,” said marine biologist Robin Baird of the Cascadia Research Collective in Olympia, Wash., who has written more than 60 scientific papers on marine mammals. “There’s clearly no magic bullet, but I think that with time, we’ll be able to come up with enough measures to reach our goal.”

The false killer whale is the only known animal for whom sharing is the rule, not the exception. They catch some of the fastest, most agile and smartest fish in the ocean, like big tuna, swordfish and mahi mahi. But don’t expect the feeding frenzy those uncivilized sharks enjoy: Once they’ve caught and killed a big fish, they politely pass it to each other intact, even though they could easily swallow it. Eventually one whale takes a bite and passes it on to the next one, who does the same. Then it’s time to go fishing again. No other animal does this. Lions and wolves share too, but they have no choice: A deer or a zebra is far too big for one individual.

“It seems to be more ritualistic than consumptive,” muses McSweeney. Baird says the ceremony may be a way of formalizing mutual trust in a tightly knit group of hunters.

A false sense of security

But this genetically distinct population has seen its numbers fall from more than 500 in 1989 to 100 or so, a far steeper drop than that of the better-known Hawaiian monk seal.

Its exquisite table manners and intelligence notwithstanding, the species–and the Hawaii population in particular–is facing what Baird calls a “perfect storm” of adverse conditions, even though it’s rarely targeted by humans.

Because it feeds on the same tuna we eat, it has seen its food base diminish dramatically from overfishing. In a half-century, the Pacific stock of bigeye has dropped from 1 million metric tons to 300,000 metric tons; yellowfin from 6 million tons to 3 million tons and albacore from 1.5 million tons to 300,000 tons.

As a result, the whales need to spend more energy hunting, drawing on their blubber, Baird says. Bad luck: Blubber is precisely where they store toxic pollutants–like PCBs, DDTs and fire-retardants–that they ingest when they eat top-of-the-food-chain fish. So when the whales use up their blubber, they tend to get weak and sick.

It turns out that while false killer whales are smart, they are not always smart enough to avoid human entanglements.

Their superior communications skills –they are capable of emitting whistles that can be heard miles away–allow them to alert friends when they find a so-called longline, the fishing method by which most tuna are hooked. These horizontal lines, tens of miles long, support thousands of shorter vertical lines set to catch tuna. Once hooked, these become easy pickings for the false killer whales, which usually manage to bite off the body and leave the head. But not always: About 80 died in the attempt in U.S. Pacific waters over the past decade, says Baird. In addition, fishermen occasionally shoot them to keep them away from their fish. How the species is faring worldwide is not known, Baird says.

Telling the truth

In 1972, Congress passed the Marine Mammals Protection Act to stop U.S. fishing boats from killing dolphins and toothed whales. In 1994, Congress mandated that such deaths be brought to as close to zero as possible by 2001. It even set up a mechanism to reach that goal: a Take Reduction Team for each threatened species is given six months to find ways to eliminate the deaths. The fishery then has seven months to start implementing the plan. Each team is to be composed roughly evenly of those who profit from the fishery, such as fishermen and their business associates, and those who don’t, such as scientists and conservationists.

A similar mechanism was used to create a law protecting sea turtles by forcing the Hawaii longline swordfish fishery to change its hooks from J-shaped to round. Another plan protected birds by changing the way boats fished, setting the hooks at dusk from the side instead of from the stern.

In 1998, a government panel called the Pacific Scientific Review Group, noting the unusually high mortality of false killer whales in the Pacific longline fishery, recommended that the National Marine Fisheries Service change the Hawaii fishery from a category with insignificant mortality to a category with significant mortality, which usually triggers the creation of a Take Reduction Team. The panel has repeated the call nearly every year since then.

The National Marine Fisheries Service at first demurred, but in early 2001, after itself concluding that many times more Hawaii false killer whales were being killed than the population could sustain, it proposed changing the category, as the scientific panel proposed.

In 2001, Sen. Daniel Inouye, a longtime member and sometime chairman of the U.S. Senate Commerce Committee, which funds the National Marine Fisheries Service, a unit of the Commerce Department, wrote to the National Marine Fisheries Service’s acting head, William Hogarth, sharply questioning the category change given what he called “the very low level” of marine mammal casualties from the fishery.

Hogarth replied that nine false killer whales a year (along with 27 other less-endangered whales and dolphins) were believed to be killed by the fishery. This, he pointed out was 10 times more than government biologists had determined the Hawaii population could sustain.

On June 29, Inouye wrote back and passed on a letter from Kitty Simonds, executive director of the Western Pacific Regional Fishery Management Council, known as Wespac, asking Hogarth to “reply in detail” to her concerns and “produce any and all data (the service) has used in making its proposal.” Wespac is a Hawaii-based semi-independent panel that elaborates fisheries policy and proposes it to the National Marine Fisheries Service, which usually adopts it.

Simonds, who has had the job for more 30 years, is considered a strong backer of Wespac’s most recent past chairman and most influential member, Sean Martin. He is the owner of several longline fishing boats, president of the Hawaii Longline Association, to which the owners of all of Hawaii’s 125 longliners belong, and co-owner with Jim Cook, another past Wespac chairman, of Pacific Ocean Producers, the Pacific’s biggest fisheries-supply company. The longliners, Hawaii’s largest commercial fishery, bring in about $60 million a year.

In her letter, Simonds asserted that the whale and dolphin mortality of 36 a year is insignificant ,given that the fishers put out their longlines some 12,000 times a year. The fishery, she wrote indignantly, “is not a threat to marine mammals,” yet the fisheries service “can still advocate (the change) because it has the power to do so!”

Breaching trust

Hogarth backed down. He wrote that the service had decided to maintain the existing category because more science was needed to justify the change.

Two years later, Hui Malama i Kohola, the Center for Biological Diversity and the Turtle Island Restoration Network retained Earthjustice to sue in Honolulu federal court to force the fisheries service to comply with the Marine Mammals Protection Act and change the fishery’s category.

After much litigation, the National Marine Fisheries Service made the change in 2004 and the suit was dropped. Then, for five years, it claimed that it didn’t have the nearly $1 million needed to convene a Take Reduction Team, even though the law states that the fisheries service “shall give the highest priority to species that… have a small population size and are declining most rapidly”–which accurately describes Hawaii’s false killer whales compared to the 13 other species of marine mammals that do have teams.

In December 2008, the U.S. General Accountability Office, the investigative arm of Congress, noted in an audit of the fisheries service that the Hawaii false killer whale was the only U.S. marine mammal being killed by human activity at unsustainable rates that was not covered by a team.

So last year, the same groups returned to court, arguing that the service did in fact have the money to create the team and should do so. Martin, the longline association president, testified that the National Marine Fisheries Service’s assessment of the size of the false killer whale stock was “not scientifically sound” and that any restriction on the way the fleet operates “could result in the loss of revenue for the fleet, a reduction in available tax revenues for the State, threaten hundreds of jobs, and put the economic viability of the longline fleet, dealers and associated businesses at risk.”

This month Scott Barrows, manager of the non-profit Hawaii Longline Association, denied it had fought the creation of the team. On the contrary, he said in a telephone interview, “We don’t want to have interactions with whales. Just yesterday, we had a boat come with 6,000 pounds of fish instead of 12,000 because he got whaled–you can tell whales take your fish because they don’t leave much beside the hook, and they can damage a lot of gear.”

Last month, citing the “rapid increase” in false killer whale deaths from the longline fishery, the Federal Register announced the creation of a Take Reduction Team, which includes scientist Baird; environmentalists William Aila of Hui Malama i Kohola and Brendan Cummings of the Center for Biological Diversity; longline fishermen Clint Funderburg and John Hall; Kristy Long of the National Marine Fisheries Service; and Wespac staffer Paul Dalzell.

“A lot of whales died because the fisheries service dragged its feet for 10 years instead of complying with the law,” says David Henkin, the Earthjustice lawyer who litigated both cases. “Now they’re on the hook to reduce whale deaths to a sustainable level by the middle of 2011 and virtually eliminate them by 2016.”