The lawsuit was filed in response to NMFS's July 1, 2002 determination that the agency will not list the Southern Residents under the ESA, even though agency biologists determined that the Southern Residents are going extinct. The lawsuit was filed by Earthjustice and the Center for Biological Diversity, on behalf of Earth Island Institute, Ocean Advocates, Orca Conservancy, Friends of the San Juans, People for Puget Sound, former five-term Secretary of State Ralph Munro and Karen Munro.
The Canadian organizations Sierra Legal Defence Fund and Georgia Strait Alliance will file Amicus -- or Friends of the Court -- briefs supporting the U.S. coalition's challenge on the ESA decision. The Samish Indian Nation has already filed an Amicus brief in support of the litigation.
"The Samish and our neighbors in British Columbia have long understood the significance of the Southern Residents to this region," said Michael Harris, President of Orca Conservancy. "And the Canadians acted appropriately in listing them as endangered. Obviously, these orcas don't become any less endangered once they cross boundaries."
"The recent incident involving U.S. Navy sonar tests blasting our orcas underscores the need for agencies and organizations across the border to work together to save these whales from extinction," said Fred Felleman, NW Director of Ocean Advocates. "Rather than the military seeking exemptions from environmental laws, they should be using their maritime prowess to facilitate the recovery of our orcas."
"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 their extinction 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," Felleman adds. "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 and11 co-petitioners filed a petition to list the this orca group 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 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. The depleted designation will allow them to continue to ignore these threats."
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."
Will Anderson (Earth Island Institute) (206) 715-6414
Stephanie Buffum (Friends of the San Juans) (360) 378-2319
Fred Felleman (Ocean Advocates) (206) 595-3825
Kathy Fletcher (People for Puget Sound) (206) 382-7007
Michael Harris (Orca Conservancy) (206) 465-6692