Orcas get 2nd shot at stricter federal protection

By Craig Welch
Seattle Times staff reporter

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Rapid declines in Puget Sound's signature marine mammal, the killer whales that summer off the San Juan Islands, may, after all, land orcas on the list of creatures protected under the Endangered Species Act.

A federal judge yesterday ruled that the agency charged with protecting the region's whales used faulty science to decide that the Sound's orcas weren't a "distinct" population that needed the Endangered Species Act (ESA) to ensure their survival.

U.S. District Judge Robert Lasnik gave the National Marine Fisheries Service a year to rework its July 2002 decision and propose a new course of action — a move environmentalists claimed would likely bring more help and attention to the plight of the charismatic creatures.

"This is huge," said Kathy Fletcher, executive director with People for Puget Sound. "I can't tell you how happy we are."

While the judge stopped short of ordering the agency to list the whales, "it appears the writing is on the wall," according to Brent Plater, an attorney with the Center for Biological Diversity, which initially petitioned the agency to protect the orcas under the species act. "I just don't see a lot of wiggle room."

A listing under the ESA could result in strict habitat protections for whale food — salmon, herring and groundfish. It also could require other federal agencies to make sure everything from Superfund cleanups to discharges into the Sound don't impact the whales. Equally important to scientists, a listing under the act makes it more likely that tax money will be earmarked for whale research.

Fisheries officials said they'd been unfairly miscast as working against trying to save orcas. In the past year alone, the agency has spent more than $1 million trying to research ways to reinvigorate whale populations using the less rigorous Marine Mammal Protection Act.

"We are on exactly the same page," said Brian Gorman, spokesman for the fisheries service. "We feel very strongly and are pretty committed to protecting the orcas."

But Gorman disputes that Lasnik's ruling means the powerful and controversial ESA is now the only option. The fisheries service could still appeal the ruling. "At this point, I don't think anyone knows," Gorman said. "We're squabbling over fairly arcane legalisms."

The region's killer-whale populations have declined from 100 animals in the mid-1990s to 84 today, though they hit a low of 78 just two years ago. Biologists estimate the ideal population size at about 120. They disagree on precise causes for the decline but frequently site distress from pollutants such as DDT and PCBs, run-ins with boats, parasite infestations or declining salmon runs.

After environmentalists asked the agency to list the whales under the ESA, a federal review team studying their decline estimated orcas have a 10 percent chance of going extinct within the next 100 years and that they face an 85 percent chance of extinction in the next 300 years.

But the team could not agree on whether the southern residents constituted their own distinct population. So the agency turned to a 250-year-old determination, written in 1758 by Carl Linnaeus, that only one species of orca exists worldwide. (The Swedish-born Linnaeus is considered the "the father of taxonomy," the science of naming, ranking and classifying of organisms.) Lasnik shot down that contention as not backed up by the best available science.

"For NMFS to say 'orcas are one big happy family' fails to acknowledge the great behavioral differences between them," said Fred Felleman, a board member of the Orca Conservancy. "It completely ignores 30 years of data."

Marine scientists generally believe killer whales are made up of at least three separate species just in the North Pacific, and perhaps as many as six worldwide, said David Bain, a University of Washington professor and whale expert, but much of the evidence is documented in unpublished research.

Bain says he suspects the National Marine Fisheries Service will acknowledge that Puget Sound's orcas are a part of a Pacific Ocean fish-eating species that includes populations in southeast Alaska, Prince William Sound and perhaps Russian and Japanese waters.

What remains, he said, would be for the agency to determine whether Puget Sound's distressed whales are a "significant" portion of that species. He said that will likely be dictated by whom the agency puts on the biological-review panel.

Gorman, with the fisheries service, said that even then the agency could reach the same conclusion again, although environmentalists suggested it would be unlikely.

"It would take extreme creativity," said People for Puget Sound's Fletcher, "and they would have to really, really be trying not to use the ESA."

Craig Welch: 206-464-2093 or cwelch@seattletimes.com

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