Earthjustice attorney Patti Goldman, who has been working to protect orcas for more than a decade, explains why orcas are so special, and how we can help protect orcas by taking down harmful dams and safeguarding salmon — the orcas’ main food source.

Why are orcas so special?

One of the wonderful parts of working for Earthjustice is that you learn about the science as well as the law. One thing that really stuck with me is that orcas are one of the few species that are matrilineal. The mothers, the grandmothers and the granddaughters all stay together.

They’re also one of the few species that has post-reproductive females. (So do humans and elephants.) Scientists have tried to figure out what role post-reproductive females play in terms of evolution and survival. For most species, the reproduction function, the rearing the young, is the role females play in the population’s survival. But for the orcas, it’s also passing down knowledge.

Why is the Puget Sound orca population declining?

The home range of these orcas is further south than many others, so they are more accessible to people than other orcas. The Salish Sea’s orcas were the ones targeted for live capture for the Sea Worlds, which decimated their population in the 1960s and 1970s. About a third of them were captured or were killed.

The live capture practice ended when one of our clients, former Secretary of State Ralph Munro, was on a boat with his wife and they found themselves in the middle of a live capture. They could hear the babies wailing as their mothers were captured and vice versa. That was a very pivotal moment. Munro, who was then a member of the state legislature, soon after became the lead proponent of a law banning live capture in Washington state waters.

The second decline occurred in the 1980s. There weren’t enough orcas of reproductive age because so many of them had been taken during the live capture.

The third decline is when Earthjustice got involved. In the 1990s there was a 20 percent decline, and the population was down to 78 individuals. This time, the orcas were declining because there wasn’t enough food (salmon) — and the food that did exist was often toxic. The situation had become a crisis, and it became clear that the orcas needed the protections of the Endangered Species Act.

How did Earthjustice go about getting Puget Sound orcas protected?

Earthjustice filed a lawsuit in 2002 when the National Oceanic and Atmospheric Administration (NOAA) refused to protect the orcas under the act. Everyone agreed that their numbers were far too low, placing the orcas at risk of extinction. They desperately needed protection for their prey. There was no dispute about that. But the agency decided this population of orcas wasn’t a separate population eligible for the law’s protection. NOAA said the orcas are one worldwide species and that there were enough other orcas elsewhere in the world.

The problem is that the scientists universally disagreed with that assessment. There are technically three subspecies (which means they’re likely separate enough to be considered separate species) of orcas. One eats marine mammals. They tend to be bigger and travel over much wider ranges in smaller hunting groups. Another “offshore” type, which we know comparably little about, that ply the open ocean hunting sharks and other fish in large groups. Then there are the fish-eating resident orcas, like our orcas in the Salish Sea. They’re different genetically, they’re different in terms of their body sizes and types, in what they eat, their language, and their behaviors — all of the kinds of measures that scientists use to determine whether a population is a separate species. Back in 1758, Carl Linnaeus, who was the father of taxonomy, classified orcas as one species. NOAA tried to lock them in that designation for all time.

We went to court. The judge reviewed this evidence and determined that the agency’s refusal to list orcas violated the Endangered Species Act, which requires that decisions be made on the best science. Instead, the agency was relying on science that its scientific reviewers found to be outdated, inaccurate, and superseded by current knowledge. The Puget Sound orcas were finally listed as endangered in 2005.

How does our work to protect salmon also protect Puget Sound orcas?

Orcas need to eat a lot of salmon to survive. Their favorite food is chinook or king salmon, the fattest of the salmon species. But many king salmon populations are also on the endangered species list. We are working across the west coast to restore salmon populations by restoring habitat, removing barriers, and keeping water in salmon rivers, including in the Skagit River, the Klamath River, and the Sacramento and San Joaquin Rivers.

Scientists say one of the best things we can do to increase salmon abundance for orcas is to take out four failing, outdated and costly dams on the lower Snake River that limit salmon migration and reduce the number of salmon available to orcas during critical winter months when they leave Puget Sound in search of food. Removing these dams, even though they are far from the Salish Sea, would open up hundreds of miles of free-flowing waterways, restoring safe passage to and from the imperiled wild salmon’s spawning habitat in central Idaho, boosting salmon production and affording more prey for the orcas. We’ve been fighting for two decades to take down these dams and restore these abundant salmon runs. In 2016, we were joined by more than a quarter million people who registered comments calling for the dams to come down.

How else is Earthjustice protecting Puget Sound orcas?

We’re doing a lot, including:

• Reducing toxic contamination of their food supply. Orcas are at the top of the food chain, so they get toxic contamination through their prey. After one of the orcas passed away, our client Ralph Munro wanted to bury the orca on his farm. He was told he would need a toxic waste permit to do so because there was so much contamination in the blubber.Earthjustice has been identifying the key sources of toxic contamination, either to the orcas themselves or to their prey. The number one source of new toxic pollution is stormwater runoff. We’ve been working for many years now to try to force better management of that runoff, particularly in urban areas. We won a case that says that low impact development like using green roofs and rain barrels is the best technology and the best means of avoiding toxic runoff. That’s a nationwide precedent.
• Challenging flood plain development. This type of development eliminates a lot of habitat for salmon and therefore the prey of orcas. We’ve also worked to minimize toxic runoff from highways.
• Banning pesticides and other chemicals like flame retardants. These chemicals are persistent and bioaccumulative, and their use should be limited along salmon streams. As with so many toxic chemicals, flame retardants and nerve gas pesticides are harmful to both people and orcas. In fact, late last year, NOAA found that chlorpyrifos is likely to jeopardize the survival and recovery of Puget Sound chinook and by extension, of the orcas who feed on the chinook.
• Opposing the TransMountain pipeline. One of the biggest threats to the orcas would be a catastrophic oil spill and yet Canada is poised to increase dramatically the shipments of tar sands through the Salish Sea. We represent several Salish Sea Tribes in opposing the Transmountain pipeline and seeking navigational safeguards, equivalent to the rules of the road, to reduce oil spill risks.

Any final thoughts?

The situation has become urgent. We are redoubling our efforts and looking for ways to reduce vessel noise that interrupts feeding and to rebuild other Chinook salmon runs. When the three pods return here in the summer, they do a ritual where they line up by pod and welcome each other. That is when the scientists do the annual census. While this ritual has brought joy to so many over the years, we now await the count in fear that another whale has not made it back. We are committed to doing everything we can to avoid another act of excruciating grieving like what we have witnessed this year.

This blog was adapted from a podcast interview with Patti Goldman in 2011.