Orcas May Make Protected List

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Posted by on December 17, 2004 at 20:07:31:

A federal judge rules against arguments used to deny endangered species status to the group in Puget Sound, which is down to 84.

SEATTLE The Bush administration on Thursday proposed placing killer whales in Washington's Puget Sound on the list of endangered species, to keep the last 84 of these acrobatic and often photographed orcas from going extinct.

The administration, which ruled two years ago that endangered species protections were unwarranted, reversed itself after a federal judge ordered it to reconsider its legal justifications.

"It was never a question of whether we cared about the whales," said Robert Lohn, northwest regional administrator of the National Marine Fisheries Service. "Everyone knows that we did. The question was, 'Did they qualify for a listing under the narrow criteria of the [endangered species] law?' "

Another review, he said, determined that the orcas qualified to join the list as a species "threatened" with extinction. The proposal is expected to become final within a year, giving the public a chance to comment.

Invoking the Endangered Species Act to protect these whales is likely to lead to tougher rules to prevent and contain oil spills. It probably will tighten regulations on ship traffic and focus money and federal efforts to clean up old toxic waste in the Puget Sound and prevent new sources of man-made toxins that accumulate in the fat tissue of orcas.

It will also mean that the waters in the Puget Sound and other areas, including Chinook salmon streams on and around the Olympic Peninsula, may be declared "critical habitat" to halt the decline in fish the orcas need for food.

These added protections, said Earthjustice lawyer Patti Goldman, "give me hope that the orcas will continue to make Puget Sound their home and my grandchildren will be able to see them."

Goldman was part of a coalition of conservation groups that sued to force the hand of the administration, which has placed fewer species on the endangered list than any other since the act was signed into law by President Nixon in 1973.

These resident orcas, which feed primarily on fish, have plummeted from about 200 in 1960 to fewer than 70 in 1973 when officials began annual counts of the whales.

Much of the decline was attributed to the capture of live whales for public display at aquariums and theme parks. In addition, dwindling salmon runs and a buildup of PCBs and other man-made toxins that weaken immune systems were also blamed for the orca population's inability to recover.

A census last year tallied 84 of these southern resident orcas, which spend spring, summer and fall around the San Juan Islands. Scientists are unsure where the orcas spend the winter.

Biologists also spotted two calves, but won't officially count them unless they survive long enough to be part of next year's census. The survival rate of calves has been poor, which scientists suspect may be because of the heavy dose of toxins in their mothers' milk.

Although the orcas spend much of their time in the Pacific Northwest, they have been spotted as far south as Monterey Bay in California.

Scientists also closely follow another population of more transient orcas that prowl the West Coast from Southern California to Alaska. These wanderers eat dolphins, seals, sea lions and whales, unlike the fish-eating Puget Sound orcas.

In 2001, the Center for Biological Diversity and other groups asked the fisheries service to place the Puget Sound orcas on the endangered list.

The next year, the fisheries service refused, saying that although this population faced a strong probability of extinction, it failed to meet the legal criteria of being a significant species distinct from orcas that live in British Columbia or Alaska.

A lawsuit followed and U.S. District Judge Robert S. Lasnik intervened, writing that the service had ignored its own experts. They had pointed out the three pods of southern residents are genetically different from transient killer whales, do not interbreed or associate with other orcas, and appear to have their own communication dialect of clicks, calls and whistles.

The judge wrote that the fisheries service was wrong to declare that the best available science on orcas dates to 1758, when Carl Linnaeus, the father of taxonomy, officially recognized all orcas as one global species. Taxonomists have never updated Linnaeus' work.

The judge also dismissed as "speculation" that orcas from British Columbia or Alaska would repopulate Puget Sound once the resident population disappeared.

Lohn said the judge's ruling, in effect, unshackled the fisheries service from the narrow confines of the law. He also noted that orcas already were protected from hunting or harassment under the Marine Mammal Protection Act, and that the fisheries service already had begun formulating a recovery plan under that law.

Endangered species protections, he said, "will take us to a higher level." Most important, he said, any other government agency must get clearance from the fisheries service before it approved any activity that could harm the whales or their habitat, which he said was likely to include the entire Puget Sound.

These photogenic black-and-white mammals which delight whale watchers with surface gymnastics are a major tourist draw and play a significant role in the region's tourist industry.

"Whale-watching is as important to the regional economy as the Seattle Seahawks or the SuperSonics," said David Bain, an associate professor of psychology and an expert on orca behavior at the University of Washington.

"We spend millions of dollars on stadiums to keep those guys in town. It seems only fair to do the same for whales."

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