Above: Southern Resident J pod, Admiralty Inlet in 2011. (Susan Berta / Orca Network)
Below: Patti Goldman, Vice President for Litigation.
The Southern Residents are a unique population of orcas that reside in Washington state’s Puget Sound whose existence is threatened by a decline in the abundance and toxic contamination of salmon, their main food source.
In 2005, Earthjustice successfully argued that the orcas deserve protection under the Endangered Species Act, resulting in new safeguards for the orcas, including the creation of a binding recovery plan, protection for the whales' critical habitat, and assurances that all federal projects will protect the whales before the projects can proceed.
Protecting the orcas meant protecting their food supply, so Earthjustice began working all along the west coast to ensure that orcas had plenty of access to abundant, uncontaminated salmon populations.
In September 2011, Earthjustice litigation resulted in the removal of the Elwha River Dams, two large fish killing dams that block salmon from most of their historic spawning habitat.
Because they’re at the top of the food chain, orcas are heavily contaminated with toxins like PCBs and DDT, which come from sources like stormwater runoff. Earthjustice has had several victories that have helped minimize toxic runoff from waterways and encourage low impact development, which helps avoid toxic runoff.
Earthjustice staffer Jessica Knoblauch speaks with Patti Goldman, Vice President for Litigation at Earthjustice.
Before serving as Vice President, Goldman headed Earthjustice’s northwest regional office where she has spearheaded efforts to protect the orca whales that make Puget Sound their home. The iconic creatures are at risk of extinction due to a decline in both the abundance and toxic contamination of salmon, their main food source.
Patti Goldman: Well, the orca whales in this region are hugely important to the people, historically to the native people, but then I think anyone who lives here and goes out into Puget Sound and is able to see the orcas, it’s really very a special kind of occasion. They are so much part of the fabric here. Back starting in the 1970s some whale biologists did an inventory or a census of the orcas and they know them by name. They each have the pod they’re in (J, K or L), but then they have names, too. And, when they come back in July, all three pods come back into the Haro Straits part of what we call the Salish Sea, they do a ritual where they line up by pods and they welcome each other and they each do a little acknowledgement to each other. I’ve actually never seen that but would love to. And they’re just so magical that it’s very much a part of the people in this region.
Jessica: And it sounds like this population of orcas is unique. Can you talk a little bit about why exactly that is?
Patti: These are salmon eating orcas and they then have then grown up and evolved with the salmon in this region, so a lot of where they go and migrate is due to the salmon runs. So they eat the Chinook when the Chinook are running and then the Cham. And they come back to the inland waters, so they come from the ocean up to the Strait of Juan de Fuca to Puget Sound and to Haro Straits. And they come to the same places specific to their home range. There are no other orcas that really concentrate here in the same way. They’re might be a stray orca here or there. So they are unique and really special to this region.
Jessica: Since the 1990s or so we were noticing that this specific orca population was in decline. Can you talk a little bit about why that is?
Patti: We have to go back a little bit further. There are three periods of decline. Because these orcas are further south than a lot of others, they are more accessible to where people are. They’re the one population that really is in an area that is developed with cities in it. They were the ones that were targeted for live capture for the Sea World. And so their population was decimated in the 1960s and 1970s with the live capture. About a third of the population was captured. It ended when actually one of our clients, former Secretary of State Ralph Munro, was out on a boat with his wife and another couple 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, which then happened.
So that was the first decline. There was a second decline in the 1980s and that was because there weren’t enough orcas of reproductive age, so that was a demographic [decline] that was related to live capture. The third decline is when we became involved and that was in the 1990s where there was a 20 percent decline, the population was down to 78 individuals. And this one was not related to live capture. It was not a demographic feature of the population. Instead, it was an environmental decline. They were declining because there wasn’t enough food and the food that did exist was toxic. And 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.
Jessica: And so in the 1990s this environmental problem started happening. When did Earthjustice actually start filing cases on this issue?
Patti: Well, the first case was when the NOAA [National Oceanic and Atmospheric Administration] fisheries decided not to protect the orcas under the Endangered Species Act. And we became involved in 2003/2004 [correction: it was actually 2002]. We brought that to the federal district court in Seattle. And it was so clear that these orcas needed the protection of the act. They needed habitat protections, protections for their prey. And there was no dispute about that. Everyone agreed. All the scientists agreed that the orcas were in decline because of lack of food and toxic food and human disturbance. The dispute was really a technical scientific one. What the agency decided was that this population wasn’t a separate population. It was one world-wide population or species of orca whales and because of that they could not protect this population because there were enough orcas in the world.
The problem with that is that the scientists were again in agreement that if the new taxonomy was developed, there would be two species of orcas. One that eats marine mammals, which tend to be bigger and they travel much wider ranges and in small little pods because they’re chasing marine mammals all over the place. And then there are the fish-eating orcas like our orcas in the Puget Sound area. And they’re different. 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 back in 1758, Carl Linnaeus, who was the father of taxonomy, classified orcas as one species. And they locked in that designation for all time.
When we went to court and provided all of this evidence to the judge, he said that this was not following the Endangered Species Act, which requires decisions to be made on the best science. You’ve got this science that everyone is saying is outdated and inaccurate and has been superseded by current knowledge. That’s not a good reason to not protect orca whales.
Jessica: Interesting. It’s like using science that used to say the world is flat and insisting that’s still true!
Patti: Right, when everyone knows it’s not true. Exactly.
Jessica: And so 2005, Earthjustice and the conservation groups that we were representing were successful in winning endangered species protection for the Puget Sound orcas. Part of this protection meant designating critical habitat for the orcas, which included a lot of inland waters but excluded some offshore waters, some shallow waters, military sites. Was Earthjustice satisfied with that decision?
Patti: Well, you have to realize at the time when we obtained the critical habitat designation, the other wildlife agency, the Fish and Wildlife Service, was refusing to designate critical habitat for terrestrial species. So this was pretty good. I mean, we had over 90 percent of the habitat designated. So we were actually quite pleased. We thought there was support for having the habitat go further upstream because upstream is what supports the prey. But a lot of that habitat was already designated as habitat for salmon. So we would get the same kinds of protections.
Where we were most dissatisfied was that the habitat designation stopped where the Strait of Juan de Fuca goes into the ocean because at least two of the pods leave the Puget Sound area every year. The J-Pod tends to stay in the inland waters but sometimes does leave. And so they go and half of their lives they’re out there foraging, which they do every day, all the time. They need a lot of food out in the ocean. And the rationale at that time was that not enough was known. There had been some sightings down as far as Monterey, but they had not confirmed enough, they said, to provide the designation at that time. But we’re hoping and still working to try to get that reconsidered. There has been a lot more data collected, which we believe would support designating habitat in the coastal areas in the ocean.
Jessica: So that is something that is an ongoing issue, then?
Patti: Yes, it’s definitely an ongoing issue. And you mentioned the military sites. There is an ability to have a military exclusion. A lot of those sites within Puget Sound are in active use. But in the coastal areas, the other development going on now is an expansion of the military training range, both in terms of the area that would be covered by military training and the scope of the activity, the intensity of the activity. And it’s really important to make sure we have carved out areas for the orcas and other whales and marine mammals that will be protected from those activities out there in the coast. And that could include torpedo training and sonar, a lot of which will going on there. So that’s another ongoing issue that we are tracking. We’re still involved in advocacy on that.
Jessica: I see. So the military expansion is something that Earthjustice is keeping an eye on?
Patti: Yes, definitely.
Jessica: Okay, and just to back up a little, you mentioned that orcas eat a ton of food.
Patti: Probably literally a ton!
Jessica: Exactly. How does our salmon work figure into all of this? Are the two interconnected?
Patti: Very much so. What you need to look at from the perspective of an orca is a lot of salmon and particularly the salmon that are real fatty because they need a lot of fat. So what they like the best are the Chinook, our king salmon. And so you don’t look at little rivers that might be great to have a robust salmon population. You look at the really big river systems and where you can get the most, big, fatty Chinook the fastest. So we have some very, very old work that Earthjustice had done, which was on the Elwha dams on the Olympic Peninsula, which are going to be removed this September. That will be a massive restoration project for Chinook salmon and hopefully produce a lot of them that go right in the Strait of Juan de Fuca where the orcas can chow down.
Our longstanding work on the Columbia River would also benefit the orcas tremendously since those populations have declined by 90 percent, and that was one of the largest salmon-producing rivers (on the west coast). And we have just won a victory on sending that plan for the Lower Snake Columbia hydropower system, back to the agencies for a redo and hopefully looking at alternatives like removing the lower Snake River dams.
But our salmon work protects the 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. And one of the reasons was the impacts on the orca whales. So they go that far down south for their food supply.
We had one other case that was very much targeted to orcas and this is on the Skagit River, which is one of the largest rivers going into Puget Sound. If you restore the Chinook salmon there, you would produce triple the amount now and it would be the largest salmon-producing river between the Frasier and the Columbia. And there the issue was loss of the estuaries where the Chinook grow from smolts into the much larger salmon that can go to the ocean and survive. There are tide gates that have reclaimed a lot of land for agriculture but then denied the Chinook the estuaries they need to grow. And so we won a case there that’s requiring that some of the tide gates be revamped to provide more estuary habitat. We haven’t seen full compliance with that decision yet. It’s a pretty small measure compared to the dams, but it is one that would have a huge impact. You’d still have the farmland, but you’d have some places though where you would reclaim the estuaries for the salmon.
Jessica: So in addition to salmon protection so that orcas have food to eat, what other ways are Earthjustice attorneys working to ensure that the orca population fully recovers?
Patti: Well the other issue is toxic contamination of the food supply. Actually I have to tell you another story about our client, Ralph Munro, who one of the orcas is named after him and unfortunately died before maturing, and it was because of toxic contamination. He wanted to bury this orca named Ralph on his farm and he was told he would need a toxic waste permit because there was so much toxic contamination in the blubber. And what happens is that if the orcas aren’t getting enough food, then they start to consume their blubber and what the scientists think is happening is that they start to poison themselves. So it’s a huge issue, and they’re at the top of the food chain and so they get the toxic contamination through their prey. And so what we’ve been working on is looking at what are the key sources of toxic contamination, either to the orcas themselves or to their prey. And from that we’re doing a tremendous amount of work to restore Puget Sound.
The number one source of new toxic pollution is stormwater runoff. So we have been working for many years now to try to upgrade management of that runoff, particularly in urban development areas where we have won a ruling that says that low impact development is the best technology and the best means of avoiding toxic runoff. And we’re working now to get compliance with that directive.
We’ve also had successes in challenging flood plain development, which eliminates a lot of habitat for salmon and therefore the prey of orcas. And while we’ve won in the courtroom, we’re still struggling to get compliance with that ruling as well that would basically mitigate the harm based on where you develop and how you develop so we wouldn’t have this kind of toxic runoff.
We’ve also worked to minimize toxic runoff from highways where you have copper from brakes that gets into Puget Sound, kills salmon and contaminates the food chain. So hopefully these kinds of efforts will really help both the prey and the orcas themselves in terms of the toxics that get into the environment.
Jessica: And what types of contaminants do they find in orcas?
Patti: For the orcas themselves, the real problems are the legacy chemicals like PCBs and DDT. So for those the concern is more cleanup of toxic sites. But then we do have chemicals like the flame retardants, which mimic PCBs, and they’re very much like them in that they’re persistent and they’re reproductive toxins. And so 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 to not have these other persistent, bioaccumulating toxins in the environment.
We’ve also worked to get toxics banned like pesticides that are persistent, bio accumulative toxins. So that’s really critical for the orcas themselves. Some of the toxic runoff from stormwater and highways like copper is toxic to salmon. So you get salmon kills when you have big runoff events from storms. So that’s really important for the food supply.
Jessica: So in addition to all of these other threats, one thing that hasn’t come up yet is offshore oil development. Is that also impacting orcas in Puget Sound?
Patti: Well, you have offshore oil development up in the Arctic Ocean or the Gulf of Mexico where you’ve got seismic mapping and exploration. That’s really critical for the acoustic environment for marine mammals. One of the whale biologists has said, “If a clarinet is like human speech, orcas speech is like a full symphony orchestra.” They communicate with each other with clicks and whistles, and they use what’s called echolocation to bounce sound waves off of their prey so they both navigate that way and they find their prey.
With a lot of these really loud booming noises, like seismic or sonar or even sometimes the more constant noises from ships, it’s really quite a loud environment, so both in the Gulf of Mexico and the Arctic that’s been really critical. In Puget Sound, we don’t have oil development, but what we have is major shipping lanes. So the big risk in the Puget Sound is collisions and oil spills from the traffic that we have in the Sound. And that’s really critical. When they were analyzing the impacts of the orcas to decide on listing, the scientists and the agencies had two scenarios. One was business as usual and the orcas were in trouble but at a much lower level. And the other was a catastrophic oil spill, and then they were toast. So it’s really important that we heed the lessons from Deepwater Horizon, that we really have solid protection from oil spills, and we have responses when needed should one occur.
Jessica: So it sounds like there are a lot of different components that go into the orcas litigation, and a lot of different avenues that you have to consider. Does that mirror the way that Earthjustice typically approaches ocean conservation litigation as a whole?
Patti: Yes, I think it’s true in orca litigation, but it’s also true of all of our work. Once we were able to get the orcas under the endangered species list and the critical habitat designation was well under way, we then worked with our clients and scientists to ask, “What are the key threats and what can we do about them?” And 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.
And from that we came up with a lot of the work, some of which we’ve been doing like working on the Lower Snake River dams and the Columbia Snake hydropower system. But some is new work, like the tide gates issue in the Skagit River and the stormwater issue in Puget Sound, where it became clear those were intractable problems that the politicians and the agencies did not want to address until forced to by our litigation. We basically put those on the radar screen, forced the decision-makers to do their job, and they would not have done it without us making them do it. And so we really targeted: what do we want to spend our resources on, what do we want to jumpstart, what kinds of government action and private action will help the orcas recover?
Jessica: That’s a very familiar strategy it seems to get the government to do their jobs?
Patti: Yes. And in these instances the laws are on the books. There are some things that are harder. I think that cleaning up the toxic waste sites is really important but of course takes money. And so that’s something that’s harder for us to make happen. But we can force the laws to be enforced to deal with stormwater or to deal with blocking habitat for salmon with tide gates, for example.
Jessica: Have any legal precedents been set as a result of the orca cases?
Patti: Our case on listings set legal precedent on [using] the best science and that a species isn’t something that’s fixed in time, particularly 250 years ago. So that was an important precedent. And then our Columbia Snake hydropower litigation and the litigation over the Sacramento and San Joaquin rivers, those have all set precedents on what is required when you have major ongoing actions that are threatening to wipe out salmon populations. And in those situations we have either the dams or the water management projects in the Bay Delta threatening to wipe out salmon. So we’ve set many precedents on that along the way with numerous cases going more than a decade each.
Our Puget Sound stormwater case, the first one that we brought, was challenging the permits for all of the large west coast, western Washington cities. The challenge under the Clean Water Act is that the permits have to use the best technology that’s available. What we established there is that low impact development is the best technology. And that’s a nationwide precedent that is now incorporated into EPA’s effort to go through the stormwater regulations that would apply throughout the whole country so that low impact development—and by that I mean the rain barrels and the green roofs, a whole different way of green building—the low impact [development] is the best available technology for new development. So that’s a really important cutting edge precedent for the whole nation.
Jessica: Other than litigation, what kind of public outreach does Earthjustice need to do on an issue like this, if any?
Patti: Often what we’re doing is partnering with clients who are very connected with the community, whether that’s local or regional or national. So we work with them in terms of public education and a lot of the media around the work. On the orcas, we helped pull together a lot of the clients and the scientists to figure out what were the most important advocacy strategies to pursue to recover the orcas. And we played that kind of convening role, which is something that’s very common for us to do since we’re representing clients and working together with them on the litigation, and then also are doing that around the litigation. So we represent Puget Soundkeeper, which does education by taking people out and monitoring water quality, or People for Puget Sound, another regional group. Or local groups, like [the Friends of the] San Juan group that is working the development on the San Juan Islands, which is really the heart of where the orcas come and feed all summer.
Jessica: And in terms of the science and working with scientists, does Earthjustice typically use science that is already out there or do you identify gaps that need to be filled in order to bring certain litigation?
Patti: We do a combination. We are often working with scientists as experts in the litigation and they might be drawing on some of their peer-reviewed publications or other work that they’ve done, but they bring that expertise to the particular issues in the litigation. So we used several tenured law professors as experts in the stormwater case. We’ve had a lot of different experts working with us on the Columbia Snake hydropower system. In the tide gates litigation we represented the Swinomish Indian tribe. The experts we used there were biologists who work for the tribe. Their knowledge is much more based on that area and experiential. So we use and work with a lot of different scientists.
Jessica: And it sounds like you’ve been involved with the orca litigation from the very beginning, is that correct?
Patti: Yes, I have.
Jessica: Do you feel like people’s perspective or knowledge of orcas has changed since Earthjustice first took on this litigation?
Patti: I think there’s been a growing recognition of how connected we are to the salmon, to the orcas, the water quality. I think there’s a growing recognition of how it is all connected. When the flame retardant ban was being considered by the state legislature, we had the connection between the human health effects of these persistent, developmental reproductive toxins that we’re putting out into the environment and we also have these same persistent toxins in the whale blubber that are causing them toxic effects. So we’re connected in that way to the orcas as well.
One of the really wonderful parts of working for Earthjustice and being the lawyer for these kinds of cases is that you have to learn so much. You have to learn so much about the law but also the science. One of the things that really stuck with me, that made me admire the orcas so much was that they are one of the few species that are matrilineal, in that the pods are matriarchal so that mothers and the grandmothers and the granddaughter all stay together. The males will go between pods when they’re mating, but they’ll travel with their mothers, too. And they are one of the few species that has post-reproductive females. We have humans and orcas and elephants.
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?” And they think for the orcas that it’s passing down knowledge, the knowledge of where the good salmon runs once were or where if there is like a weather pattern or other kinds of obstacles that they’re facing in their environment, where was their food? And so you often get the older females leading them to different feeding grounds and changing their migration patterns.
Jessica: Whereas you don’t see that in other species?
Patti: For most species, the reproduction function, the rearing the young, is what they’re doing for survival. And maybe it’s because they have predators. The orcas don’t have predators and neither do we so much or the elephants, so that might have something to do with it. But then what is the function? That stuck with me as something that I found so special.
Jessica: Well that’s all the questions that I have for today. Thank you so much for your time. And if our listeners would like to learn more about Earthjustice’s ocean litigation work, please visit earthjustice.org/oceans.
Learn more about orcas in the Pacific Northwest and see many more photos at the Orca Network's website.
Learn why cleaning up stormwater pollution in Washington State is crucial to preserving the livelihood of the Pacific Northwest in a Q&A interview Earthjustice Attorney Jan Hasselman: Slamming The Brakes On Stormwater Pollution