Today a coalition of environmental groups filed a 60-day notice of intent to sue the National Marine Fisheries Service for finding that Puget Sound’s Southern Resident killer whales are not ‘significant,’ a finding that precludes protection under the Endangered Species Act. Today’s notice challenges the Fisheries Service’s failure to protect these whales on the ground that the Endangered Species Act protects discrete populations in the United States, even if killer whales may survive in Canada or on the high seas.

“This was an historic and ominous determination: we know of no other determination where an agency baldly stated that it won’t protect an endangered species because it considers the species insignificant,” said Brent Plater, an attorney with the Center for Biological Diversity. “This lawsuit will ensure that Puget Sound’s killer whales are protected, and that the Fisheries Service never makes such a blatantly illegal determination again.”

“People in the Pacific Northwest identify with the strength and beauty of Puget Sound’s killer whales,” said Earthjustice attorney Patti Goldman. “NMFS is willing to write off this population, but we’re not.”

The Center for Biological Diversity is joined by Ocean Advocates, Orca Conservancy, Friends of the San Juans, People for Puget Sound, Project SeaWolf, former Secretary of State Ralph Munro, Karen Munro, Earth Island Institute, and other groups in filing the 60-day notice, which is a precondition to filing a lawsuit under the ESA.

Over the past six years the Puget Sound 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 toxic pollutants, a population decline in their preferred salmon prey, and human disturbance.

In response to a petition filed by the Center for Biological Diversity and 11 copetitioners to list the this orca group as ‘endangered’ under the ESA, the Fisheries Service determined that this population of orcas was a discrete population, and also found that they were in danger of extinction. However, the agency determined that the whales didn’t meet a subjective, superimposed criteria: whether the whales are ‘significant.’

“The Fisheries Service has scientists making legal determinations, lawyers sequestering scientific data, and 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.”

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 is a sham, 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 Fred Felleman of Ocean Advocates. “The Fisheries Service is using this as a way to deflect attention away from the whales so their inaction on salmon declines and the threat of oil spills won’t be noticed by the public.”

Since late last year, a lone juvenile Southern Resident that was thought to have died has been found near Vancouver Island. This marks the first time in the history of the population that a killer whale has been absent from the summer survey of Southern Residents only to be found alone and alive. This discovery marks an ominous disruption of the social organization of the Southern Residents. And while NMFS has spent hundreds of thousands of dollars to return Springer, a Northern Resident killer whale, to Canada, the 3-year-old Southern Resident orphan has received almost no attention from the agency charged with protecting this population.

“This orphaned Southern Resident whale will likely die if it isn’t reunited with its family, yet the Fisheries Service sits idly by while its entire family goes extinct,” said Michael Harris, President of the Orca Conservancy. “And since the Southern Residents need their population fortified by all means available, its time for NMFS to take these basic steps to protect the population.”