Today a coalition of environmental groups filed suit against the National Marine Fisheries Service seeking to force a reversal of the Bush administration’s decision not to protect Puget Sound’s resident orca whales under the Endangered Species Act, even after finding they are in danger of going extinct. The Fisheries Service decided against extending ESA protection to the orcas because they decided it would not be a significant loss if orca whales no longer resided in Puget Sound.
The lawsuit was filed by Earthjustice and the Center for Biological Diversity, Ocean Advocates, Orca Conservancy, Friends of the San Juans, People for Puget Sound, former Secretary of State Ralph Munro, Karen Munro, and Earth Island Institute.
"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 Puget Sound resident orcas maintain a unique culture and that the extinction of the these orcas would result in the localized extinction of resident killer whales in the continental United States.
"In the end history will judge us by what we did to preserve the diversity and sanctity of life in our corner of the world,"said Earthjustice attorney Patti Goldman. "We take this stand today to make sure this unique population of killer whales will still inhabit Puget Sound into the future."
Over the past six years, Puget Sound’s 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 combined 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," said Fred Felleman of Ocean Advocates. "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 and 11 co-petitioners filed a petition to list the this orca group as "Endangered" 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 criterion – that the whales are "significant."
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."