Consider orca protections, a judge rules

SEATTLE — A federal judge on Wednesday ordered the government to rethink its finding that Washington’s struggling orca population is not significant and does not warrant protection under the Endangered Species Act.

"It was sent back to us to fix within 12 months," said National Marine Fisheries Service spokesman Brian Gorman.

He said there was no decision yet on whether to appeal the ruling by U.S. District Judge Robert Lasnik.

"The judge has given the Puget Sound killer whales the best Christmas gift they could have been afforded," said Fred Felleman of Orca Conservancy, one of six plaintiffs represented by the Center for Biological Diversity and Earthjustice.

"It’s a very, very big win," said organization President Michael Harris.

The fisheries service ruled last year that the region’s inland orcas, called the Southern Resident Population, did not warrant Endangered Species Act protection because they were not a "significant population segment." The agency instead listed them as a depleted species under the Marine Mammal Protection Act, which provides for study and protection of individuals but does not protect habitat.

"It was hard to believe that the Bush administration found that the Puget Sound orca whales are not significant. This decision puts the process on the right track," said Patti Goldman of Earthjustice.

"I was very impressed with the depth of the judge’s discussion. … He sent a very clear message," said Kathy Fletcher of the plaintiff group People for Puget Sound.

Lasnik said deciding whether to list orcas for protection based on the health of the global population did not reflect the best available science, noting that the fisheries service itself concluded the Puget Sound orcas are a distinct population.

"The best available science standard ‘gives the benefit of the doubt to the species,’ " Lasnik wrote.

Carl Linnaeus, the Swedish botanist known as the father of taxonomy, classified the orca as one global species in the mid-1700s. Back then, scientists didn’t know that some killer whales migrated throughout a large range, while others stuck to smaller areas.

The fisheries service agreed the orcas "face a relatively high risk of extinction," but concluded that transient orcas along the coast, or so-called "offshore" populations, would fill the gap if they disappeared.

The judge rejected that finding, calling it speculative and unsupported.

The fisheries service must also consider whether the orcas are endangered over a significant portion of their range, Lasnik ruled — a factor that was not considered last year.

The judge found that the region’s inland orcas had undergone three major declines since the 1960s, when dozens were captured for sale to aquariums. The captures ceased in the 1970s.

The population now numbers 84, down from an unknown high that the plaintiffs suggested could have topped 200 at one time.

The whales have been struggling with pollution, human encroachment and dwindling salmon runs.