Orcas’ endangered status challenged in federal court
Published 9:00 pm Wednesday, March 22, 2006
SEATTLE – The Washington state Farm Bureau and the Building Industry Association of Washington filed suit in federal court this week, seeking to invalidate the listing of Puget Sound’s orcas as an endangered species.
The listing, issued by the National Marine Fisheries Service in November, “will result in needless water and land-use restrictions on Washington farms, especially those located near rivers inhabited by salmon,” the whales’ prime food source, the groups wrote in the lawsuit filed Monday.
“As a result, farmers could face fines and even imprisonment for the most basic farm practices should such actions allegedly disturb salmon,” they wrote.
It’s a scenario that environmentalists say is far-fetched, though deliberately harassing a protected species can carry a year in jail.
The groups’ lawyers, Russell Brooks and Andrew Cook of the Pacific Legal Foundation, attempt to base their complaint against the fisheries service on a fine technical point: The three orca pods that live in Western Washington’s inland waters from late spring to early fall are a distinct population of a subspecies, the Northern Pacific resident orcas, which also include orcas off Alaska and Russia.
Under the Endangered Species Act, the lawyers argue, only a distinct population of a species – not a subspecies – can be listed.
So, they say, the fisheries service could list the entire subspecies of Northern Pacific resident orcas as endangered, but it can’t list only the Puget Sound pods.
Environmentalists called the reasoning circular. Patti Goldman of the environmental law firm Earthjustice said it boils down to saying that the Puget Sound orcas gave up their membership in the orca species when they were named part of the subspecies.
Logically, Goldman said, a “distinct population segment” of a subspecies is also a “distinct population segment” of a species. She also noted that in the Endangered Species Act itself, the definition of “species” includes “any subspecies of fish or wildlife or plants.”
“Just because there are orcas elsewhere in the Pacific Ocean doesn’t mean we’re willing to live without them in Puget Sound,” Goldman said.
Brooks called the rebuttal a good point, but a losing one based on the strict wording of the act. He said his clients aren’t anti-whale, they just want the fisheries service to follow the letter of the law.
Puget Sound’s southern resident orcas – which consist of the J, K and L pods – are genetically and behaviorally distinct from other killer whales, all sides agree. The pods use their own language, mate only among themselves, eat salmon rather than seals, and show a unique attachment to the region.
The National Marine Fisheries Service initially refused to list the whales under the Endangered Species Act, saying they were not distinct from other orcas around the world – a finding based on a classification of the species written in 1758.
In 2002, eight environmental groups sued, and U.S. District Judge Robert Lasnik ordered the agency to reconsider using updated science.
