Stormy Waters: Earthjustice’s Patti Goldman on Orcas

This is the second in a series of Q and As on Earthjustice’s oceans work, which works to prevent habitat loss and overfishing as well as reduce the impacts of climate change on the ocean. In early 2000, Patti Goldman, Earthjustice’s VP of Litigation, spearheaded efforts to protect the Puget Sound’s threatened orca whale population. Learn more at earthjustice.org/oceans. 

Jessica Knoblauch: Earthjustice has been working to protect a unique population of orcas in Washington State’s Puget Sound for almost a decade. Why?
 
Patti Goldman: Well, the orca whales in this region are hugely important to the people. They are so much part of the fabric here. There are three pods and each year when they come back to the Haro Straits in July, they do a ritual where they line up by pods and welcome each other. It’s just so magical. And there are no other orcas that really concentrate here in the same way, so they are unique and really special to this region.
 
The problem is that these orcas are further south than a lot of other orcas, so they are more accessible to where people are. In the 1960s and 1970s, about a third of the population was targeted for live capture by Sea World. Live capture ended when one of our clients, former Secretary of State Ralph Munro, was out on a boat with his wife and they found themselves in the middle of a live capture operation where they could hear the babies squealing as their mothers were captured. That was a very pivotal moment because he was then a member of the state legislature and was the lead proponent of banning live capture in Washington waters.

So live capture was the first decline. There was a second decline in the 1980s because there weren’t enough orcas of reproductive age due to live capture. The third decline in the 1990s, when the population was down to 78 individuals, was an environmental decline. There wasn’t enough food and the food that did exist was toxic. So we started to see a situation that became a crisis and it became clear that the orcas needed the protections of the Endangered Species Act (ESA).

JK: When did Earthjustice become involved?
 
PG: We became involved in 2002 when the National Oceanic and Atmospheric Administration (NOAA) decided not to protect the orcas under the ESA. It was so clear that these orcas needed the protection. But NOAA decided was that this population wasn’t a separate population of orcas and because of that they didn’t need to protect them because there were already enough orcas in the world. The problem with that argument is that scientists agreed that if the new taxonomy was developed, there would be two species of orcas. One that eats marine mammals and ones who eat fish, like our orcas in Puget Sound. They’re different genetically, they’re different in terms of their body sizes and types, in what they eat, their behaviors—all of the kinds of measures of whether something is a species. But NOAA had argued that since Carl Linnaeus, the father of taxonomy, classified orcas as one species back in 1758 that the designation was locked in for all time. Well, we went to court and the judge decided that NOAA’s decision did not follow the ESA, which requires decisions to be made on the best science. He said that NOAA was using outdated and inaccurate science that had been superseded by current knowledge and that’s not a good reason to not protect orca whales.
 
JK: In 2005, Earthjustice successfully won endangered species protections for the Puget Sound orcas. How are the orcas doing now?
 
PG: Once we were able to get the orcas under the endangered species list, we then asked, “What are the key threats to orcas and what can we do about them?” Being Earthjustice we wanted to know what we can do that would really force the powers that be to do their jobs and enforce the laws to protect the orcas. 
 
One issue we found is that orcas need a ton of food, particularly salmon that are really fatty like Chinook. But over the years salmon runs have declined dramatically, so we looked at the really big river systems where you can get the biggest, fattest Chinook the fastest. Our work on the Elwha dams, which were removed this September, will be a massive restoration project for Chinook salmon and hopefully produce a lot of them so that Puget Sound orcas can chow down.  But our salmon work protects orcas even further south. If you go down to the San Francisco Bay Delta, there you have two very large river systems, the Sacramento and the San Joaquin, where NOAA has required revamping of water export and water management systems to protect salmon.
 
The other issue for orcas is toxic contamination of the food supply. Orcas are at the top of the food chain so they get the toxic contamination through their prey. If the orcas aren’t getting enough food, they start to consume their blubber, which is loaded with toxins, and what the scientists think is happening is that they start to poison themselves. Our client, Ralph Munro, had an orca named after him who died before maturing because of toxic contamination. Ralph wanted to bury this orca on his farm and he was told he would need a toxic waste permit because there was so much toxic contamination in the orca’s blubber.
 
We’ve been looking at getting restrictions on key sources of toxic contamination. The real problems are legacy chemicals like PCBs, DDT and flame retardants, which are persistent and reproductive toxins. Getting restrictions on those, which Washington State has done in a leadership role in the country and Earthjustice is working on in advocacy, is really important.
 
Other sources of toxic pollution are pesticides and toxic runoff from stormwater and highways. Puget Sound’s number one source of new toxic pollution is stormwater runoff, so we’re doing a tremendous amount of work there and recently won a ruling in Washington state that says that low impact development is the best technology and the best means of avoiding toxic runoff.
 
JK: Has people’s perspective of orcas changed over the years?
 
PG: I think there’s been a growing recognition of how connected we are to the salmon, to the orcas, to the water quality. It’s all connected.
 
One of the really wonderful parts of working for Earthjustice is that you have to learn so much about the law but also about the science. One of the things that made me admire the orcas so much was that they are one of the few species that are matrilineal, in that the mothers, the grandmothers and the granddaughters all stay together. And they are one of the few species that has post-reproductive females.
 
One of the things that scientists have tried to figure out is, “What is it that post-reproductive females are doing in terms of evolution and survival?” For most species, the reproduction function, the rearing the young, is what they’re doing for survival.  And they think for the orcas the role is to pass down knowledge, the knowledge of where the good salmon runs once were or knowledge about other kinds of obstacles that they’re facing in their environment. That stuck with me as something that I found so special.