Conservationists Fight Determination that Southern Residents Are “Not Significant”
December 18, 2002
Today a coalition of environmental groups filed suit against the National Marine Fisheries Service to fight the Bush administration’s determination that Puget Sound’s Southern Resident killer whales are not ‘significant,’ precluding protection for the whales under the U.S. Endangered Species Act.
The lawsuit was filed in response to the Fisheries Services’ July 1, 2002 determination that the agency will not list the Southern Residents as endangered under the federal Endangered Species Act, even though agency biologists determined that the Southern Residents are going extinct. The lawsuit was filed by Earthjustice and the Center for Biological Diversity, Ocean Advocates, Orca Conservancy, Friends of the San Juans, People for Puget Sound, former Secretary of State Ralph Munro, Karen Munro, and Earth Island Institute.
“This is the first time an agency has tried to avoid protecting a species by claiming that the species is insignificant,” said Kathy Fletcher, Executive Director of People for Puget Sound. “If the Bush administration could get past its scorn for environmental protections, it would realize that saving the Southern Residents is not only good for our ecology, but also Puget Sound’s economy.”
“The Fisheries Service has scientists making legal determinations, lawyers sequestering scientific data, and Bush’s appointed bureaucrats making determinations on whether a species lives or goes extinct,” said Stephanie Buffum, Executive Director of Friends of the San Juans. “The Puget Sound resident orcas need and deserve our help now, and that’s why this lawsuit is necessary.”
The lawsuit highlights several violations of federal environmental law. The agency purposefully ignored several important aspects of killer whale biology and culture during its deliberations, including the fact that the Southern Residents maintain a unique culture and that the extinction of the Southern Residents will result in the extirpation of resident killer whales in the continental United States. The agency also illegally applied a policy that restricts when populations can be protected under law, failing to recognize that killer whale taxonomy is currently being revised and would impact the application of the policy.
“In the end history will judge us by what we did to preserve the diversity and sanctity of life throughout our corner of the world. We take this stand today to make sure this unique population of killer whales will still inhabit Puget Sound into the future,” said Earthjustice attorney Patti Goldman.
Over the past six years, the Puget Sound’s Southern Resident killer whales have declined nearly 20%, leaving only 78 individuals in the population at the end of the 2001 survey year. The cause of the current decline appears to be the synergistic effects of high levels of bioaccumulative toxins, a population decline in their preferred salmon prey, and human disturbance from vessel traffic and noise.
“You can’t save these whales without protecting their habitat and prey from oil, PCB and noise pollution,” said Fred Felleman of Ocean Advocates. “None of our conservation laws protect habitat as effectively and as flexibly as the ESA, but we must look to the courts to counter the Bush administration’s opposition to effectively enhancing the welfare of Washington’s waters.”
In response to the decline of the Southern Residents, the Center for Biological Diversity and 11 co-petitioners filed a petition to list the this orca group as “Endangered” under the ESA on May 1, 2001. The Fisheries Service reviewed the petition and on July 1, 2002 determined that this population of orcas was indeed a discrete population. NMFS also found that they were in danger of extinction. However, the agency determined that the whales didn’t meet a third criteria that the whales are “significant.”
Instead of listing the Southern Residents as Endangered, the Fisheries Service began considering if the Southern Residents are “depleted” under a different statute, the Marine Mammal Protection Act. However, depleted status cannot address the threats facing the Southern Residents.
“The ‘depleted’ designation will not be effective, because it is only useful to address threats such as unsustainable harvest levels and fishery bycatch. But we know that neither of these threats are impacting the Southern Residents,” said Brent Plater of the Center for Biological Diversity. “The Fisheries Service is using this as a way to deflect attention away from their inaction on salmon declines and the risks of a catastrophic oil spill, which even their own scientists agree directly threatens the long-term survival of these whales.”
Since the petition was filed, two remarkable events have occurred. Last winter, a juvenile Southern Resident orca named L98, or “Luna,” once thought by researchers to have died, was found on its own off the northwest coast of Vancouver Island. This marks the first time in 30 years of research on the population that an orca absent from a season’s survey was subsequently found alone and alive. This marks an ominous disruption of the extraordinary social organization of the Southern Residents. And Luna is not an isolated case. Last January, another wayward orca, an orphaned calf named A73, or “Springer,” from British Columbia’s threatened Northern Resident Community, was discovered alone in mid-Puget Sound, some 300 miles from her natal waters. The rescue and repatriation of Springer back to her family last summer captured the imagination of the world, and only happened through the determined efforts of non-profit organizations which helped source the funds and drive public opinion in favor of intervention when NMFS refused to act.
Yet now, despite this great conservation success, and despite the fact that the efforts of these private organizations allowed the Springer translocation to happen without having to divert a single dollar from schools, roads or other social services, this crisis involving Luna has received almost no attention from the agency charged with protecting this population. With each passing day, a remarkable opportunity is being lost.
“This orca will likely die if he isn’t reunited with his family, yet the Fisheries Service sits idly by while his entire family goes extinct,” said Michael Harris, President of Orca Conservancy. “And since the Southern Residents need their population fortified by all means available, it’s time for NMFS to act now to help return this critical young male to the Southern Resident Community. We’ve demonstrated that it can be done with Springer. It’s time to begin a process to bring Luna home.”
The importance of this lawsuit is highlighted by the recent births of new calves in this population. “Because mortality is so high for calves, we don ’t know if these whales will make it to reproductive maturity,” said Will Anderson of Earth Island Institute. “But these births also show that there is still time to help this population recover. If the government would just use its best and most adaptable tool for species recovery, we could do so much more to ensure that these whales survive for future generations.”