Judge Orders Feds to Reconsider Protecting Puget Sound Orcas

SEATTLE, Washington, December 18, 2003 (ENS) - The Bush administration relied on outdated science when it determined that Puget Sound's Southern Resident killer whales are not a distinct population and must revise its decision, a federal judge ruled Wednesday. The ruling is a major victory for environmentalists and reopens the door to protecting the orcas under the Endangered Species Act (ESA).

Over the past six years, Puget Sound's killer whales have declined nearly 20 percent, leaving only 78 individuals in the population at the end of the 2001 survey year.

In July 2002, the National Marine Fisheries Service (NMFS) agreed that this Puget Sound population was in danger of extinction, but found that it was not a "distinct population" eligible for protection under the ESA.

The agency determined that all orcas belong to one species and that other killer whales would recolonize Puget Sound if the Southern Residents went extinct.

The Puget Sound killer whales are part of an intensely social, matriarchal family with several generations that will stay together for life. (Photo courtesy Cetacean Society International)

He criticized the agency for basing its decision on a taxonomist's determination in 1758 that all the world's orcas are members of one species - even though there is ample evidence that this taxonomy is under revision.

The judge noted that biologists classify three reproductively isolated forms of orcas in the Eastern North Pacific Ocean - resident, transient and offshore - and say Puget Sound's Southern Residents appear not to associate with other orcas. Genetic studies also suggest the population is reproductively isolated.

"NMFS ignored its experts' conclusion that the global taxon is inaccurate and the best available science demonstrates that resident and transient killer whales do not belong in the same taxon," Judge Lasnik wrote in his 31 page ruling.

He did not order NMFS to list the Southern Residents on the ESA, but called on the agency to rework its decision by December 17, 2004.

Michael Harris, president of the Orca Conservancy, one of the plaintiffs in the suit, praised the ruling as "a great day for our orcas."

"We have always believed that our federal officials here agreed that we need the strongest measures possible to recover this population, but they were simply buffaloed into a bad decision by the Bush administration and its hostility toward the ESA," Harris said.

The population needs to be protected under the ESA, the plaintiffs say, because that law is the only one that targets the threats faced by the Puget Sound killer whales.

Listing under the ESA would require federal agencies to take actions to protect habitat for the orcas, which have suffered because of water pollution, decline in salmon prey and human disturbances from vessel traffic and noise, conservationists say.

Resident orcas are highly vocal and communicate with a learned repertoire of clicks, whistles and squeals. (Photo courtesy NOAA)

In lieu of listing the Southern Resident orcas under the ESA, NMFS announced last summer that the agency is considering whether the Southern Residents are "depleted" under a different statute, the Marine Mammal Protection Act (MMPA).

Conservationists say this a step in the right direction, but should not be done in lieu of protection under the ESA.

"The 'depleted' designation is only useful to address threats such as unsustainable harvest levels and fishery bycatch," said Brent Plater of the Center for Biological Diversity. "But we know that neither of these threats are impacting the Southern Residents."

Plater says NMFS was using the MMPA proposal to "deflect attention from its inaction on salmon declines and the risks of a catastrophic oil spill, which even their own scientists agree is the most immediate threat to the long term survival of these whales."

The lawsuit was filed by Earthjustice and the Center for Biological Diversity, on behalf of Earth Island Institute, Friends of the San Juans, Ocean Advocates, Orca Conservancy, People for Puget Sound, and former Washington Secretary of State Ralph Munro and his wife Karen.