Turns out, the Southern Resident orcas of Puget Sound are "significant" after all.
That was the ruling today by U.S. District Court Judge Robert H. Lasnik, vindicating a legal challenge filed last summer by a coalition of environmental groups against the NOAA Fisheries, which determined that the region's famed resident population of orcas is not "significant," precluding them from protection under the federal Endangered Species Act. Although the agency's own biologists found that the Southern Residents are distinct from all other whales and are fast on the road to extinction, the agency contended that they are not significant – that is, another population of orcas might simply move in and take their place. Judge Lasnik disagreed, clearing the way for vigorous federal protection of the region's imperiled orcas.
"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 took this stand to ensure that this unique population of killer whales will still inhabit Puget Sound into the future," said Earthjustice attorney Patti Goldman.
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.
Not surprisingly, orca advocates applauded the ruling.
"This is a great day for our orcas," said Michael Harris, President of the Orca Conservancy. "We've 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. Hopefully, this decision will help restore some integrity to the process, and encourage a continued partnership between environmental groups and NOAA Fisheries in the conservation and recovery of our beloved orcas."
"It was a mess, and Judge Lasnik just did some housecleaning," said Stephanie Buffum, Executive Director of Friends of the San Juans. "The feds had scientists making legal determinations, lawyers sequestering scientific data, and Bush's appointed bureaucrats making determinations on whether a species lives or goes extinct. Puget Sound's resident orcas need and deserve our help now, and that's why this decision is so important. It's the right thing to do."
The successful lawsuit highlighted 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 have a unique culture and that the extinction of the Southern Residents would 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 orca taxonomy is currently being revised and would impact the application of the policy. The agency relied on taxonomy from 1758, which its own scientists unanimously found to be outdated.
Over the past six years, the Puget Sound's Southern Resident killer whales have declined nearly 20 percent, 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, PCBs, and noise pollution," said Fred Felleman of Ocean Advocates. "None of our conservation laws protect habitat as effectively and as flexibly as the ESA. We had to look to the courts to counter the Bush administration's opposition to effectively enhancing the welfare of Washington's waters, and we're pleased that Judge Lasnik has given us the tools we need to help reverse this decline. The system still works."
In response to the dramatic decline of the Southern Residents, the Center for Biological Diversity and 11 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. NOAA Fisheries also found that they were in danger of extinction. However, the agency determined that the whales didn't meet a third criterion – that the whales are "significant."
The plaintiffs argued that this imperiled population of orcas is distinct both genetically and geographically and has been for thousands of years. Yet, NOAA Fisheries claimed that the Southern Residents were insignificant by ignoring this genetic distinctiveness; refusing to consider their unique language, family histories, and foraging patterns; and concluding that other orcas would recolonize Puget Sound if the Southern Residents are extirpated – even though the last time that occurred was after the last Ice Age. This logic flew in the face of 30 years of studies done on the Southern Residents, which now are the most studied and best-known marine mammal population in the world.
In lieu of listing the Southern Resident Community of orcas under the ESA, NOAA Fisheries announced last summer that they would go the route of designating the population as a "depleted stock" under a different statute, the Marine Mammal Protection Act. While this was seen as a step in the right direction, environmentalists argued that the depleted tack taken by the agency short-changed the Southern Residents critical protections, inadequately addressing the threats facing the whales and their habitat.
"The 'depleted' designation 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. "NOAA Fisheries was using this as a way 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."
Today's ruling by Judge Lasnik puts Puget Sound's orcas back on the road to recovery.
"We always knew we were doing the right thing, but being on the right side of a legal argument doesn't always mean you win the day. But today we did," said former five-term Secretary of State Ralph Munro. "And now we know that we can truly give these orcas every possible chance to survive, and to work these waters as they have for thousands of years."
"This is a great decision," said Kathy Fletcher of People for Puget Sound. "Now we can get on to the business of restoring our totem species, and to keep partisan politics out of conservation."
Patti Goldman, Earthjustice, 206-343-7340 ex 32
Brent Plater, Center for Biological Diversity, 415-572-6989
Will Anderson, Earth Island Institute, 206-715-6414
Ralph and Karen Munro 360-791-1887
Kathy Fletcher, People for Puget Sound, 206-382-7007
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