ESA File

ORCA CONSERVANCY –– THE ESA FILE

THE ESA FILE

Meanwhile, from the Bush Administration……

It was late May 2003, just weeks away from the long-awaited and highly publicized rescue of the orphaned orca A73, or Springer, a project that Orca Conservancy initiated and helped source the funds to make happen. For months, it seemed all of the Pacific Northwepage 2ast was standing shoulder to shoulder. But we’’d soon get a bucket of cold water tossed in our faces –– our Petition to National Marine Fisheries Service (NMFS) to list the Southern Resident orcas of Puget Sound as ““Endangered”” under the ESA was rejected. As the feds were busy saving one orca, they were turning their backs on an entire population. Clearly, the moratorium the Bush Administration had on new ESA listings was holding firm. Some groups were eager to take advantage of the rejection, applying for NMFS grants under its alternative means of protecting the Southern Residents –– listing them as a ““depleted stock”” under the Marine Mammal Protection Act. The Southern Resident orcas, in the opinion of the Bush Administration, ““were not significant.”” If the Southerns went extinct, they argued, another population would simply move in and take their place. They employed a 17th-century taxonomy –– done by a botanist, no less –– that said that killer whales, although found in every ocean of the world and distinct in every location, represent only ONE SPECIES. Things looked very bleak for the whales. All but four of our original Petitioning groups dropped out (and in fact, TWO of the remaining plaintiff organizations were actually directed by members of our OC Board). We were up against the world, but Orca Conservancy fought on. Our talented and irrepressible attorneys at The Center for Biological Diversity (Brent Plater) and EarthJustice (Patti Goldman) filed suit on our behalf against the Administration and NMFS, challenging their flimsy arguments made against the listing. And a year later, VICTORY! In an historic ruling, the U.S. District Court judge found in our favor, sending NMFS back to the drawing board, remanding them to use ““the best available science,”” and giving them 12 months to come back with another decision. In December 2004, NMFS announced they would indeed list the orcas, as ““Threatened.”” A year later, they did one better –– the Southern Residents would in fact be listed as ““Endangered.”” They now had their first-ever federal protection under the ESA, and the best the U.S. could drum up. It was the biggest day for our local orcas since SeaWorld was run out of town in 1976. Not surprisingly, the Bushies fought back –– Big Agriculture and the Building Industry Association of Washington sued to reverse the listing. A half-year later, their case was soundly dismissed. They had no standing. With that threat asunder, the rest of us rejoined the feds to put some teeth in the listing. Now the work begins.

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Seattle Post-Intelligencer

PATH TO PROTECTION

May 1, 2001: Ten environmental groups petition National Marine Fisheries Service (NMFS) to list Puget Sound orcas as ““Endangered.””

June 25, 2002: NMFS decides not to list orcas under Endangered Species Act, decides to protect under Marine Mammal Protection Act instead.

Dec. 18, 2002: Five environmental groups and individuals sue in federal court, challenging decision not to declare the orcas ““Endangered.””

May 29, 2003: NMFS determines that the orcas are “Depleted” under Marine Mammal Protection Act.

Dec.17, 2003: U.S. District Court judge rules in favor of environmentalists, tells NMFS to reconsider listing decision.

April 3, 2004: State Department of Fish and Wildlife lists orcas as “Endangered.”

Dec. 16, 2004: Fisheries service announces plan to list orcas as ““Threatened.””

Nov. 15, 2005: Fisheries service declares local orcas “Endangered.”

Orca Conservancy Board of Directors 2001-2004 –– (l-r) President Michael Harris, Fred Felleman (also NW Director of Ocean Advocates), Kelley Balcomb-Bartok (also Center for Whale Research), Stephanie Buffum (also Executive Director of Friends of the San Juans), Brian Calvert (also Port Commissioner of Friday Harbor) and Ralph Munro, five-term Washington Secretary of State.

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OUR ATTORNEYS…… EarthJustice’’s Patti Goldman and Center for Biological Diversity’’s Brent Plater.

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2001

Tuesday, May 1, 2001

Add Orcas to Endangered List, Groups Ask

By LISA STIFFLER SEATTLE
POST-INTELLIGENCER REPORTER

Fearing the disappearance of Puget Sound killer whales, local environmental groups are expected to file a petition today asking that orcas be listed as an endangered species. Despite three recent births, the population of whales has declined over the past five years to about 83 or 84 orcas.

“You’ve got to try something,” said Kelley Balcomb-Bartok, a researcher at the Center for Whale Research in Friday Harbor and Board Member of Orca Conservancy, one of the petitioning groups.

“We’re seeking extra mechanisms of support for a population that is clearly in decline.”

The petition was written by the Center for Biological Diversity, an advocacy group based in Tucson, Ariz., that regularly seeks protection for animals under the Endangered Species Act. It will be filed with the National Marine Fisheries Service.

The NMFS has 90 days to determine if the petition is warranted. The agency then has a year to decide whether to list the whales as endangered or threatened. The petitioners can sue the agency if it does not respond according to the timelines.

Puget Sound orcas belong to three distinct pods, two of which migrate into the Pacific Ocean in the winter, traveling as far south as Monterey Bay, Calif. The other pod appears to remain in inland waters. There is no evidence that the whales will breed with orcas outside these pods, Balcomb-Bartok said.

“What we’re looking at is a very small tribe,” he said. These whales are unique “culturally” with their own dialect, feeding behavior, physical characteristics, and they reside in the most urban setting of any orca population. Orca numbers have fluctuated over the past few decades. In the late 1960s and early 1970s the numbers dropped when whales were captured and sent to aquariums. A mid-1980s decline was attributed to older whales dying off and not being replaced due to the earlier captures.

A population decline in the late ’90s has been troubling because scientists cannot pinpoint the cause. Likely contributors are fewer salmon, which is their primary food source, an increased buildup of toxins and more frequent disturbances by humans, particularly whale watchers.

Earlier this year, the Center for Biological Diversity released a study examining the likelihood of extinction for the local whales. By plugging fertility rates, life expectancy and other population parameters into a computer model, the study concluded the orcas had at least an 81 percent probability of becoming extinct by 2300. Brian Gorman, NMFS spokesman, said it was unclear if the population was headed toward extinction.

“It’s too soon to say. There’s no doubt that the population of a few of the pods have been going down recently,” Gorman said. “We will look at the petition and seriously consider it.”

But the path to being listed as an endangered species is in jeopardy. In early April, President Bush asked Congress to give listing authority exclusively to his administration and prevent citizens from filing lawsuits to get protection for plant and animal species.

“This is the most shocking and most outrageous environmental hit of his administration so far,” said Brent Plater, an attorney with the Center for Biological Diversity. Plater said that without this means of recourse, species can languish in unprotected status, becoming extinct before a government agency takes action. He said the effort to protect the local orcas should not, however, be impacted by Bush’s request.

To save the whales, the petition requests increased spending on research and conservation efforts, protection of whale and salmon habitat, reduced pollution, the release and reintroduction of captive whales taken from this population and increased regulation of whale watching.

Balcomb-Bartok is hopeful that these efforts will preserve the orcas, but added, “no one should kid themselves that this won’t be an uphill climb.”

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NOAA 2001-R125

FOR IMMEDIATE RELEASE

Contact: Brian Gorman 8/7/01
NOAA FISHERIES TO REVIEW DECLINES IN NORTHWEST ORCA POPULATION

The National Marine Fisheries Service, an agency of the Commerce Department’s National Oceanic and Atmospheric Administration, announced today that it will study the reasons behind a decline in the number of killer whales that congregate in Washington state’s Puget Sound and Strait of Juan de Fuca in summertime.

The agency will begin a formal status review based on a conservation coalition request to provide the whales Endangered Species Act protection. The review is the first in a series of steps that could lead to ESA protection by mid-2003.

“We take very seriously the recent declines in killer whale populations and are determined to find out what’s causing it,” said Donna Darm, the acting head of NOAA fisheries’ Northwest regional office in Seattle. “Accepting this petition to conduct the review is an important first step in determining an appropriate course of action.”

NOAA fisheries said it would now convene a biological review team of killer whale experts to try to find out if these whales constitute a distinct population segment as defined by ESA, why the whale’s population is declining, and to make a recommendation about whether the agency should formally propose an ESA listing next May.

The Northwest’s familiar black and white killer whales, also called orcas, are officially known as the “eastern North Pacific Southern Resident stock of killer whales,” to distinguish them from other killer whale groups. They spend their summers in Washington’s Puget Sound and Strait of Juan de Fuca and the nearby Strait of Georgia in British Columbia, where they are the frequent object of photographers and whale-watching cruises in the area.

The Southern Resident population has always been small, according to NOAA biologists, but it has fluctuated widely since record keeping started in the early 1970’s, going from the low of around 70 to a peak of about 97 in 1996. The population is now estimated to be about 78 animals.

A killer whale workshop, convened by the fisheries service in early 2000 and attended by killer whale experts from Canada and the United States, affirmed the population drop but could draw no certain conclusions for the reason, although it cited pollution, lack of prey (especially salmon), and even whale watching as possible causes.

“We know so little about these animals outside their summer foraging areas,” said Brent Norberg, NOAA fisheries biologist. “We don’t even know where they spend the winter or the extent of their range. That makes determining the reason for the decline quite a challenge.”

If NOAA fisheries decides to formally propose the whales for ESA protection, it would have another year to complete more scientific work, hold public hearings and make a final determination, likely by May 2003. In the meantime, it will meet with scientists, including those from the state and tribes, to familiarize them with the steps involved in an ESA status review and to solicit information needed by the biological review team.

The petition to list the Southern Resident killer whales and designate their critical habitat was submitted by a coalition of conservation groups that included the Center for Biological Diversity, Center for Whale Research, Whale Museum, Ocean Advocates, Washington Toxics Coalition, Orca Conservancy, American Cetacean Society, Friends of the San Juans, People for Puget Sound, Cascade Chapter of the Sierra Club, Project Seawolf and Ralph Munro.

NOAA’s National Marine Fisheries Service is dedicated to protecting and preserving our nation’s living marine resources through scientific research, management, enforcement, and the conservation of marine mammals and other protected marine species and their habitat.

Further information including a copy of the petition is available at http://www.nwr.noaa.gov To learn more about NOAA fisheries, please visit http://www.nmfs.noaa.gov

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Struggle to Survive for an ‘Urban Whale’

By CAROL KAESUK YOON, New York Times
October 16, 2001

Out of the dark waters off the west side of San Juan Island, three great black fins rise in unison as a trio of killer whales surface for air and then slowly descend to pursue a run of salmon.

Powerful and wild, these huge black-and-white icons of the Pacific Northwest may seem immune to the activities of mere humans, like the scores of tourists in the 19 boats circling them this afternoon. But researchers report that this population of orcas off the Washington coast is in decline, down more than 20 percent in six years, to 78 from 99. Seven have died in the last year alone. And scientists say people — possibly even the adoring whale watchers — may be to blame.

In response to a petition from environmental and whale-advocacy groups, the National Marine Fisheries Service announced this summer that it would consider the population for listing under the Endangered Species Act. Like salmon listed in the Puget Sound, the orcas are one population in a species with a much broader range. Scientists estimate that there are thousands of killer whales worldwide. On Sept. 26 in Seattle, federal scientists and orca specialists held their first meeting to discuss the status of the whales. A decision is expected next year.

Among the whales’ problems are a decline in their favored prey, particularly chinook salmon, which are themselves listed as endangered in Puget Sound. Scientists have also recently discovered that the blubber of the region’s orcas is loaded with toxins, earning them the distinction of being the most contaminated whales in the world.

While disagreement remains, some scientists and advocates say the hordes of whale-watching boats on these waters from May through October could be disrupting the whales’ feeding and mating behavior and polluting their air and water.

Ken Balcomb, executive director of the Center for Whale Research on San Juan Island, has overseen a 26- year census of this group of whales, known as the Southern Resident population, using the idiosyncratic scars and shapes of dorsal fins to identify individuals. He called the seven deaths this summer ”a huge problem.”

”This summer was bound to happen,” said Mr. Balcomb, turning to gaze out a window toward Haro Strait, where some of the Southern Resident whales were expected to appear soon. ”These are urban whales in the most urban setting of any killer whale population. It’s remarkable that they’re still here.”

The 78 Southern Residents, along with the neighboring northern resident population of some 200 orcas off British Columbia, are the most thoroughly studied killer whales on earth, with every individual photographed and numbered and often affectionately named. There is the wavy-finned Ruffles, the tattered Raggedy, and Oreo, mother of Doublestuf. Scientists even know many of the family relationships of whales within the population’s three groups, known as the J, K and L pods.

Scientists also know that the Southern Residents hunt fish and can often be found chasing runs of salmon. Because a single whale can eat 100 to 300 pounds of fish a day, researchers worry that the whales and salmon may both suffer, presenting the rare prospect of one endangered species eating another.

With the shortage of salmon, researchers also worry that the orcas could turn more heavily to bottom fish. Many of these species are also in decline and are more likely to be contaminated — most notably with polychlorinated biphenyls, or PCB’s, the same industrial chemical that pollutes the Hudson River in upstate New York.

”I said these guys are really hot,” said Dr. Peter S. Ross, a wildlife toxicologist at the Institute of Ocean Sciences in Sidney, British Columbia, recalling his first look at the data that eventually showed the Southern Residents were among the most contaminated marine mammals in the world. ”They were very disturbing results.”

Originally used as a lubricant and in electrical transformers, PCB’s are very slow to break down and can accumulate in an animal’s fat stores. Animals at the top of the food chain, like killer whales, are at greatest risk. Laboratory studies have not been carried out on orcas, for obvious logistical reasons, but in other mammals, including humans, there is evidence that PCB’s can disrupt the immune and nervous systems and hamper normal development.

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ORCA CONSERVANCY –– THE ESA FILE Page 8

But with tens, perhaps hundreds of thousands of orcas the world round, how important is preserving the Southern Resident population?

Dr. Lance Barrett-Lennard, a marine mammal scientist at the Vancouver Aquarium Marine Science Center in British Columbia, says he and his colleagues have found in recent studies that the population is genetically isolated. Individual whales are breeding only with others from the Southern Resident population, making it a distinct entity — a prerequisite for listing as an endangered species.

DNA studies also show that females mate only with males outside their pods, revealing another potential problem. Because the population is so small and there are only three pods within it, females are severely limited in the numbers of possible mates.

”For most females there are between one and three potential males to mate with,” said Dr. Barrett- Lennard. ”That means that a lot of the calves in this generation are going to be siblings and they’re going to be mating with siblings the next generation. We’re into a situation where there’s the sort of spiraling effect. It’s going to be a rapid loss of genetic diversity.”

Then there are the whale-watching boats. Any time in summer or fall, the easiest way to find killer whales is to search for the flotilla of slow-moving boats that constantly surrounds them. Researchers estimate that whale watching is now worth in the tens of millions of dollars a year in the Haro Strait; a study found that between 1990 and 1997, the number of whale-watching boats seen off San Juan Island increased fivefold.

Researchers say it is unclear whether the boats have harmful effects on the whales, though some are concerned — not only about pollution from the boats, but also about the possibility that engine noise may interfere with the complex whale-song communication among these highly social animals.

Federal scientists say there are likely to be many similar questions about the whales as the National Marine Fisheries Service considers its decision.

For example, 26 years is a long time for scientists to monitor a population, but killer whales can live more than twice as long as that, making the census just a snapshot. As a result, it is hard to know whether the current decline will continue or is just part of a long-term cycle of ups and downs.

”This could be interpreted that this is a natural fluctuation that the population normally deals with,” said Dr. Paul Wade, a marine biologist with the fisheries service, who is part of the biological review team. ”Unfortunately, there are so many other factors that are at play for this population, there’s no way we can conclude that yet.”

But many researchers say the population is so small that it may be eliminated by chance events like new diseases or accidents like oil spills.

Another unanswered question is where these whales spend the winter and what harm they may be encountering there. Two winters ago, whales from the K and L pods were sighted off Monterey Bay, Calif., for the first time ever. But no one knows whether that is a regular retreat or an indication of how far they must travel because their food is in short supply.

No one, however, questions the whales’ cultural significance.

Dr. Rich Osborne, research director at the Whale Museum on San Juan Island, says that among coastal Indians the orca is known as blackfish and has been held in high regard, viewed as the human of the oceans. A common figure in art and folk tales, the killer whale, often seen following salmon runs, was viewed as a powerful but benign creature who gave access to salmon.

Early European settlers, in contrast, hated and feared the killer whale, which had a reputation as a vicious predator. More recently, in the 1960’s and 70’s, killer whales, including individuals from the Southern Resident population, were captured for aquariums. These trained whales may have helped create the now popular image of the orca as a clever, soulful, playful creature — a kind of giant dolphin, in formal attire. (In fact, orcas are in the Delphinid or dolphin family, hence the similarities.)

Today, orcas have achieved star wildlife status. The ”Free Willy” movies helped establish them as symbols of nature unleashed, as huge draws for tourists and others wanting a connection, even as spiritual links, to the wild outdoors.

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ORCA CONSERVANCY –– THE ESA FILE Page 9

”It’s like having a relationship with a person,” said Tom McMillen, who pilots the Stellar Sea, echoing a common refrain. After eight years of running whale-watching tours, Mr. McMillen says he knows some of the whales and recognizes those that like visiting his boat more than others and that seem to know him. He added, ”Or maybe they like my dog Elmer.”

But even some tourists aboard his boat said they would willingly put some distance between themselves and the orcas if that would help protect them. Visiting from Boise, Idaho, to celebrate their 10th wedding anniversary, Todd and Amy Rustad snapped pictures and exclaimed as members of the L pod swam past or frolicked in the waves.

”This is great,” Mr. Rustad said. ”But I don’t think anyone would mind not going on these trips if they thought it was hurting the whales.”

2002

Senator Maria Cantwell kicks off three-day international Orca Recovery Conference, hosted by Orca Conservancy, Earth Island Institute, The Canadian Consulate General/Seattle and The University of Washington Department of Zoology.
Saturday, June 1, 2002

Teamwork Urged to Help Orcas

By Peggy Andersen
The Associated Press

Sen. Maria Cantwell opened the three-day Orca Recovery Conference with a plea yesterday for better protection of killer whales, whose numbers are dwindling due to pollution and other pressures.

The state’s junior U.S. senator made four recommendations in her keynote address at Kane Hall on the University of Washington campus in Seattle. All of them are linked to the troubles of the orphaned female orca from Canada that has been hanging around the Vashon Island ferry dock since January.

Cantwell called for a formal U.S.-Canadian protocol to allow speedy handling of situations like this, a proposal also backed by Sen. Patty Murray, D-Wash. Cantwell also urged new restrictions on whale-watching operations, increased federal protections for the region’s dwindling orca population and more funds for whale research and rescue programs.

The National Marine Fisheries Service’s decision to try to help A-73 came only after months of discussion, observation and tests. The agency plans to capture her, treat a range of apparently minor symptoms and then —— if no serious health problems are detected —— return her to Canadian waters near Vancouver Island, where her family group spends summers.

“Now comes the hard part —— doing our best to reunite the whale with her pod,” Cantwell said.

“I hope that A-73” —— the name scientists use for the young female, based on her birth order in Canada’s A-pod —— “can be an example of the difference that we can make in working together cooperatively.”

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Meeting of Orca Activists

Cantwell’s remarks marked the start of a weekend of presentations and discussions by orca activists; U.S., Canadian and state researchers; and the nonprofit Center for Whale Research in the San Juan Islands. Topics include the effects of oil, noise and PCB pollution; the status of Northwest fish stocks that orcas rely on for food; and the history and impact of whale-watching operations.

The proposal for a U.S.-Canadian protocol was formally made in a letter to fisheries officials in both countries sent yesterday by Cantwell and Murray. They cited A-73 and the state’s dwindling resident orca population, down from 98 in 1995 to 78 today.

“The orcas that reside in the Pacific Northwest do not know national borders or boundaries, and we need to combine our efforts to ensure that proper stewardship of these wild marine mammals is undertaken,” they said.

“We believe A-73 is merely a symptom of what appears to be a larger problem regarding the health of the Pacific Northwest whales,” they said, adding, “The decline of the whale population … is an issue that impacts our entire region and cannot be dealt with in an isolated manner.”

Activists have requested an endangered-species listing for the region’s orcas, and a decision on that request is expected this summer.

In the meantime, Cantwell said, a “depleted designation” under the Marine Mammal Protection Act would expand federal protection for orcas under current law. It would give support for developing a conservation plan, she said.

“The time for taking action to save the orcas is now,” Cantwell said. “There can be no doubt that the Southern Resident orcas” —— the three pods based near Washington’s San Juan Islands —— “are a population in deep trouble.”

Citing new research that indicates boat traffic can hinder whales’ sonar ability to hunt for food, she also suggested National Marine Fisheries Service begin using its authority to enforce anti-harassment laws. While the whale-watching industry has set a 100-yard limit for proximity to whales, it cannot be expected to take on enforcement, she said.

Federal Support Urged

Cantwell also urged more federal support for existing programs that finance study of orcas and other declining marine mammals.

A-73, orphaned last year, apparently wandered into Puget Sound —— well south of her pod’s range area —— after she lost contact with her family group. No one can say whether her pod will accept her.

Solitary juveniles are unique to the experience of area researchers who’ve been in the field over a quarter century, but this year there are two. The other —— a young male from the San Juans called L-98 —— has been foraging for fish on the west side of Canada’s Vancouver Island. Activists are hoping to eventually return him to the San Juans-based L-pod.

Orcas, actually a type of dolphin, are found in all the world’s oceans.

L98, or ““Luna,”” a Southern Resident gone solo in Nootka Sound, BC.

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June 25, 2002

Local Orcas Left Off Endangered Species List

By KOMO Staff & News Services

SEATTLE – The National Marine Fisheries Service will not list Puget Sound orcas for protection under the Endangered Species Act, despite years of decline and a chance the killer whales could vanish over the next century.

But the agency said it will take other steps to increase federal protection for the “Southern Resident” pods of killer whales, which summer in Puget Sound.

“We are taking the decline of these killer whales seriously and we will work to sustain and support this population,” said Bob Lohn, head of the fisheries service’s regional office.

By the end of last year, only 78 killer whales remained in the three pods –– down from 98 in 1995, a 20 percent drop in six years. The population is believed to have peaked at around 120 whales in the early 1960s, when dozens were captured for marine aquariums across the country –– a practice that stopped in the 1970s.

“They’re not quite dead enough yet for the National Marine Fisheries Service to act,” said Fred Felleman of the Orca Conservancy and Ocean Advocates, two of 10 groups that petitioned last year for the endangered-species listing.

An 11-member team of biologists reviewed the case and determined that the Southern Residents, while in danger of extinction, do not qualify as a geographically and genetically distinct subpopulation of orcas – one requirement for protection under the Endangered Species Act.

No one is sure exactly what is causing the decline, but Lohn said stress from pollution, parasites and vessel traffic including whale-watching boats are all possible factors, as well as declining salmon runs. While most killer whales feed on fish and seals, the Southern Residents – and their northern counterparts in Canada’s inland waters – feed on fish alone.

“The bottom line on causes is we don’t know the answer,” Lohn said.

The agency plans to begin the process of having the orcas designated as “depleted” under the Marine Mammal Protection Act, which would allow allow increased attention to the population, Lohn said.

“It allows more focused attention and certainly means we will write a conservancy plan, which is the equivalent of a recovery plan under an ESA listing,” NMFS spokesman Brian Gorman said. “And we will list in pretty clear terms what we think the problems with the population are, and the things that we think would lead to a solution.”

He said he did not know whether the agency had funds on hand for more focused killer-whale work. “I think it’s a little too early to tell.”

The agency will solicit public comment about other ways to help the population and, in conjunction with Canadian authorities, improve whale-watching guidelines, Lohn said. Brent Plater, attorney for the Berkeley, Calif.-based Center for Biological Diversity and the petition’s lead author, contended the Southern Residents are a distinct population and said the findings are inconsistent with determinations on other populations.

“Today’s decision is a new low in the annals of the fisheries service,” Plater said. “They’ve completely abdicated their responsibilities to protect this population.”

Lohn said he took the advice of some of the world’s top scientists, and “I’ll stand by that.” The whales’ status will be reviewed again in four years, he said.

“If they wait another four years it is just to suggest they think the status quo is acceptable,” Felleman said. “To wait four more years is a recipe for disaster.”

Sen. Maria Cantwell, D-Wash., issued a statement saying NMFS “should account for its decision by providing all available information to the public and local experts in order to allow a thoughtful examination of the merits.” And she noted that the “depleted” designation “allows us to take advantage of additional research and recovery resources.”

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 ORCA CONSERVANCY –– THE ESA FILE Page 12

“The call to action has been sounded and our regional leaders must act now to preserve this icon of our Northwest waters,” she said.

Tuesday’s decision came in response to a petition brought by several conservation groups. They argued that the Marine Mammal Protection Act only prevents direct harming of orcas, while an endangered-species listing would also protect their environment.

Wednesday, June 26, 2002

Orcas Denied Endangered Status

Agency gives them less extensive protection
By LISA STIFFLER AND ROBERT McCLURE
SEATTLE POST-INTELLIGENCER REPORTERS

Puget Sound’s orcas could be extinct within the next century but do not qualify for protection under the Endangered Species Act, officials with the National Marine Fisheries Service announced yesterday.

Instead, the agency is seeking protection for the killer whales under the less powerful Marine Mammal Protection Act. Since 1996 the population has declined almost 20 percent, from 97 to 79 orcas.

“The Marine Mammal Protection Act appears adequate for the moment,” said Bob Lohn, regional administrator of the agency. He said the agency will order more research into the cause of the whales’ decline and take a close look at the effect of boats, including whale watchers and shipping vessels.

But environmental groups said without the protection of the Endangered Species Act, the outlook is bleak for the orcas that return each summer to Puget Sound and nearby waters.

While the Marine Mammal Protection Act governs the harassment, capture or killing of marine mammals, the Endangered Species Act would have provided much stronger protections. For example, it would have given strong ammunition to environmentalists challenging government-sanctioned dumping of pollutants, and required the government to set forth a detailed plan for rebuilding the orca population.

The decision announced yesterday is “a death knell for the population,” said Brent Plater, a Berkeley, Calif., lawyer with the non-profit Center for Biological Diversity. “We know that the threats facing the (orcas) cannot be addressed by the Marine Mammal Protection Act.”

Lohn said the federal fisheries agency will consider the stronger protection measures in four years.

But Plater called that promise “absurd,” noting that the number of killer whales would drop another 15 percent by then if current trends continue. Orca advocates and scientists also have been alarmed by a recent spate of deaths of female orcas in their prime reproductive years. Plater said his organization will likely challenge the decision in federal court.

The orcas in question are known as the “Southern Resident” orcas. They return from the Pacific Ocean each summer, spending much of their time around the San Juan Islands, Puget Sound and southern Vancouver Island. They speak to each other in a unique set of vocalizations.

Another group of orcas, the so-called “northern resident” population, inhabits the northern half of Vancouver Island and extends up the coast of British Columbia. They have received protection under Canada’s equivalent of the Endangered Species Act.

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But an 11-member science team reviewing the Southern Resident whales’ status could not agree on whether the orcas were a “distinct population segment,” as required by the law, according to Lohn.

To meet that standard, the orcas must live in an environment unique for the species, or be “markedly” different genetically from other populations, or represent the last hope that the species would continue to populate the area in question.

Some members of the review team said the environment used by the northern and southern populations is similar. They argued that if the southern residents died off, their cousins to the north could repopulate the area. And while the two populations are genetically distinguishable, scientists disagree about whether they are “markedly” different.

“We’re not free to invoke the Endangered Species Act just because we really care about a population,” Lohn said.

But environmental groups take issue with these explanations.

“The northern residents are in trouble too, so what are they thinking?” asked Kathy Fletcher, executive director of People for Puget Sound.

Environmentalists said the stronger protections could be given to the Puget Sound orcas because they speak a different whale language than the northern orcas, and have their own social structure and established behaviors. When the pods reunite at the beginning of the summer they have been observed lining up in an apparent greeting.

Lohn said that by deciding to declare the orcas “depleted” under the Marine Mammal Protection Act, he hopes to draw national attention to their plight. A conservation plan will be created, he said.

“It sets an agenda for recovery,” he said.

Agency officials said they hope that Endangered Species Act protections given to Puget Sound chinook salmon will benefit the orcas as well.

The chief suspected causes of the orcas’ decline, scientists say, are the accumulation of toxic substances that impair their reproductive and immune systems; the decline of salmon runs, which provide the orcas’ favorite food, and possibly disturbance by whale watchers. Other, less-understood factors may also be at play, scientists say.

Lohn said the impact of these factors remains unclear and needs further investigation.

“We don’t know the answer,” he said. “Our knowledge at this time isn’t enough to speculate.”

Others disagree.

“We know plenty,” said Fletcher, the environmentalist. She worries that Lohn’s call for additional research instead of stronger action means “we’ll have a lot of dead whales but we won’t have a cleaned up Sound.”

Ken Balcomb, the longest-serving observer of the orcas, said the decision shows that the federal fisheries agency will do little to save the creatures. Echoing many scientists, Balcomb said helping orcas would mean removing dams to open up big swaths of salmon breeding grounds, and dealing with the accumulation of pollutants known as polychlorinated biphenyls once used as lubricants in electrical equipment.

“NMFS (the federal agency) is in the Department of Commerce, and commerce is the name of the game in America –– all the dams, all the industrial

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lubricants, all the development we’ve done in the past that has contributed to this. That’s all something NMFS doesn’t want to address,” Balcomb said.

Like many, he predicted that the agency would seek to make whale-watching boats into scapegoats for the larger problems.

“It’s cheaper to just, ‘Let’s get the public thinking about this whale watching, and we can hire some enforcement officers and have them wave their badges,'” Balcomb said.

Brian Gorman, a federal fisheries spokesman, said the agency has previously issued guidelines advising whale-watching boats to stay at least 100 yards away from the whales. He said the agency is considering increasing that buffer to 400 yards, but that the guidelines would still be advisory.

That 400-yard buffer was immediately rejected by Bill Wright, vice president of the Whale Watch Operators Association Northwest. He said the whale-watching industry has worked with orca scientists since the early 1990s to develop a detailed series of guidelines that are emulated worldwide by whale-watchers.

“The idea of 400 yards is just way off the charts. We wouldn’t have a business,” said Wright, owner of San Juan Safaris. “There wouldn’t be any science to back that up. There hasn’t been any precedent like that around the world.”

Some scientists have wondered whether the boats’ engine noise might be interfering with the whales’ sophisticated, sonar-like system for finding food, known as echolocation.

Because of that concern, Wright said, the boat operators took scientists’ advice and agreed among themselves to slow their boats substantially whenever they are within a half mile of the orcas.

“The whales themselves come up to us in a lot of cases,” Wright said. That’s exactly what happened yesterday to several boats near the San Juan Islands, said Jim Maya, the proprietor at Maya’s Whale Watch Charters.

“We just had about 40 orcas come from about 200 yards away, come right to the boats, roll over on their sides and look at the people. We were dead in the water,” Maya said by cell phone from his 22-foot Arima.

“I think we’re part of the solution, not part of the problem. These people who are on my boat today will go home with a better appreciation of orcas.”

TWO LAWS

MARINE MAMMAL PROTECTION ACT – Makes it illegal, with certain exceptions, to “harass, hunt, capture or kill” orcas and other marine mammals. If a species falls to 60 percent of its original size, it is considered “depleted;” a conservation plan is drawn up to encourage research and guide government decisions. The goal is to restore the population to its “optimum sustainable population.” Governs National Marine Fisheries Service; provisions are non-binding.

ENDANGERED SPECIES ACT – Empowers the government to take strong actions to save an animal or plant in danger of extinction. In the orcas’ case, it might have bolstered environmentalists’ arguments against dumping of toxins in Puget Sound. The government also would be obliged to set numerical

recovery goals, a schedule by which to reach them, and to outline specific steps to reach the goals. Citizens can sue to enforce the plans, which govern actions by all federal agencies.

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NOAA PRESS RELEASE

NOAA Fisheries Takes Steps to Protect Killer Whales

Agency Determines that ESA Listing Not Presently Warranted

The National Marine Fisheries Service (NOAA Fisheries), announced today that it will take steps to protect a population of killer whales (Orcinus orca) that summers in Washington state’’s Puget Sound. NOAA Fisheries managers said they will immediately seek federal protection for the orcas, and will follow well defined steps to halt the population’’s decline.

NOAA Fisheries, an agency of the Commerce Department’’s National Oceanic and Atmospheric Administration (NOAA), is one of the federal agencies responsible for protecting marine mammals and determining protection under the Endangered Species Act (ESA).

“We are taking the decline of these killer whales seriously and we will work to sustain and support this population,” said Bob Lohn, head of the NOAA Fisheries northwest regional office.

The NOAA Fisheries steps to help protect Puget Sound killer whales include:

Starting the process to declare the stock as “depleted,” a classification that would give it greater federal protection.

Soliciting public comment about additional protections needed to stop the Southern Residents’’ decline.

Improving whale-watching guidelines. Such steps would be made in consultation with Canadian authorities.

Committing to a reassessment of these whales under the Endangered Species Act within the next four years.

Although historically the Southern Resident population has been small, in recent years scientists have seen it fall from a high of 97 animals in 1996 to approximately 78 last year. At a conference sponsored by NOAA Fisheries in 2001, killer-whale experts attributed the decline to depleted food sources, the effects of pollution and whale watching.

In spite of these low numbers, a biological review team assembled by NOAA Fisheries said that even if the 1992-2001 population decline continued that there would be a slightly greater than 10 percent chance that the Southern Resident population would become extinct in the next 100 years. If the population data starting in 1974 is used to make the same prediction, the scientists said the risk of extinction by 2101 would fall to as little as one percent.

In May 2001, the California-based Center for Biological Diversity and 11 other groups petitioned NOAA Fisheries to list Puget Sound killer whales –– known by scientists as the southern population of resident killer whales –– under the Endangered Species Act.

“While these animals are in trouble, there is not sufficient justification to list the Puget Sound population under the ESA,” explained Lohn. When they are considered as a part of the larger group of North Pacific killer whales, there is no risk of extinction for the population according to the NOAA Fisheries biological review team’s report. The general killer whale population in the North Pacific is regarded as healthy.

The Endangered Species Act allows the government to list individual species or subspecies, but also “distinct population segments” as well. A joint policy, signed in 1996 by NOAA Fisheries and the US Fish and Wildlife Service, another federal agency with wide-spread responsibility under the ESA, declares such sub-groups must not only be separate or “discrete”” from the overall population, they must be “significant” as well. NOAA Fisheries convened a team of scientists and killer-whale biologists to examine the killer whale’’s status and make a recommendation about listing. It determined that the Southern Resident killer

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whales constitute neither a “species,” “subspecies” nor “distinct population segments” as defined by the ESA. Current scientific classification, the scientists said, categorizes all killer whales as a single global species with no recognized subspecies.

Lohn noted, however, that the validity of a single-species classification for killer whales has been questioned by some taxonomists –– scientists who study the principles of scientific classification –– and is currently under review by scientists world wide. “Any changes in the species’’ classification may warrant a reassessment of our ESA findings,” he added. The familiar black-and-white killer whales, and all marine mammals in the United States, are protected by the Marine Mammal Protection Act –– a law that among other things forbids killing or harming marine mammals. NOAA Fisheries is dedicated to protecting and preserving our nation’’s living marine resources through scientific research, management, enforcement, and the conservation of marine mammals and other protected marine species and their habitat.

CORRESPONDENCE: National Marine Fisheries Service thanks Michael Harris and Orca Conservancy for their assistance during the successful A73 (Springer) rescue and reintroduction.

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Defenders Magazine
Fall 2002

Washington’s Orcas Set Adrift

Denied endangered status, a Puget Sound population appears headed for disaster

By Tim McNulty

Last spring, newspapers and television newscasts in the Pacific Northwest were awash with stories of an orphaned orca, or killer whale. ““Springer,” as she was dubbed, had become separated from her family group in Canadian waters and was stranded in a lonely vigil in Washington’’s Puget Sound . After months of monitoring her health and weighing her fate, U.S. and Canadian scientists decided to capture the young whale, nurse her back to health and reunite her with family members to the north. By midsummer she was swimming contentedly with members of her pod.

It’’s not surprising that the fate of a single orca would capture the attention of the region. Although orcas range worldwide, a unique resident population lives in Washington’’s Puget Sound and the Georgia and Hecate straits in nearby British Columbia. Their striking black-and-white shapes are often seen breaching in these protected, inland waters where they roam in pursuit of migrating salmon.

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Individual members of the Southern Resident orca community are well known around Puget Sound, if not by name at least by number (Springer was officially named A-73). Orca images decorate coffee mugs, ball caps and sweatshirts, and commercial whale watching has become one of the region’’s fastest-growing recreational industries. Orcas have captured the attention of Northwesterners like few other animals, and the outpouring of concern over Springer is just the most recent expression of an underlying and well- founded fear for the resident community’’s survival.

For centuries killer whales were viewed as aggressive predators whose avaricious appetites spurred wanton killings of fish and sea mammals alike. Pliny the Elder of first century Rome described them as ““an enormous mass of flesh armed with savage teeth.” In 1874 whaling captain Charles Scammon wrote that ““they seem always intent on finding something to devour or destroy.” The largest members of the dolphin family, orcas average more than 25 feet in length and can weigh up to four tons. Large brained and highly social, orcas are top predators in all of the world’’s oceans. And like many other top predators, orcas were feared, hated, harassed and shot —— in this case by commercial fishermen —— as a matter of course.

Attitudes toward orcas began to change in the 1960s. Captive whales like ““Namu,” at Seattle Aquarium, ““Shamu” at San Diego’’s Sea World and dozens of others thrilled crowds with their acrobatic leaps and dives, their playfulness and curiosity. Trainers found them to be highly intelligent and capable of sophisticated forms of communication.

Soon, though, the commercial capture of orcas came under question. In 1976 the National Marine Fisheries Service hired biologist Ken Balcomb to assess the population in Puget Sound, where most of the captures were taking place. Using a technique developed a few years earlier by pioneering Canadian researcher Michael Biggs, Balcomb began photographing orcas and identifying individuals by the appearance of their prominent dorsal fins and variations in the pale saddle patches behind them. ““At the time, 34 killer whales had been captured in Puget Sound, and an unknown number were killed in the process,” Balcomb recalls. ““Population estimates for Southern Residents were in the hundreds. But our research showed there were only 71 whales left.”

Public outcry and a successful court challenge put an end to the captures. Balcomb went on to found the Center for Whale Research in Friday Harbor , Washington . What he and his fellow scientists have discovered about these isolated orcas in the quarter century since has opened a window into the lives of these complex, social and highly intelligent animals. And it may help save them.

The Pacific Northwest’’s resident orcas, the animals that spend summer and fall in the Northwest’’s inland waters hunting salmon (their location and habits during the winter months are still a mystery), form two distinct populations. Northern residents hunt along the British Columbia and southeast Alaskan coasts from Vancouver Island north to Nootka Sound . They currently number about 215 and appear to be reproducing at a normal rate. Southern Residents frequent the more populous waters from the Strait of Georgia along southern Vancouver Island south to Puget Sound. Their numbers are in precipitous decline. A third population of so-called ““transient” orcas, which feed not on salmon but primarily on harbor seals, sea lions and porpoises, occasionally use the same coastal areas but do not interact with resident whales and are genetically distinct. Less is known about these whales, which number between 170 and 200.

The resident orcas form family groups, or pods, of ten to 20 or more. The Southern Resident community consists of three pods that scientists have labeled J, K and L. Each group is made up of a matriarch, her offspring and their offspring, along a matrilineal succession. Bonds between mothers and calves are extremely strong and last throughout a whale’’s life, which averages 30 years for males and 50 years for females but can reach as long as 80 or 90 years.

Resident orcas are highly vocal and communicate with a learned repertoire of clicks, whistles and squeals. In fact, they can do all three at once. Each pod has its own dialect, which is passed from mother to calf. These are recognizable to other resident pods with whom they breed, but differ significantly between northern and southern communities, and apparently are foreign to transients.

Rich Osborne, research director for the Whale Museum on San Juan Island, points out that resident orcas must learn a tremendous amount about the geography of their region’’s inlet and island-studded coastline, its patterns of tides and currents and the timing of different salmon runs. ““If you’’re a long- lived, social animal like the orca, you’’re going to share that information with other individuals in your society,” he explains. ““And if you train your offspring in some fashion, you’’re passing information from one generation to the next. That’’s culture.”

Culture is something of a controversial topic among wildlife biologists. But it may be a big part of what makes this orca population unique. Dialect comparisons and genetic work suggest that Southern Resident orcas have been isolated from others of their kind for centuries, if not millennia.

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The advantages of communication among group members are many. When resident pods hunt for salmon they spread out and sweep across wide swaths of waterways. Exchanging information on the presence and location of salmon clearly benefits the group. Part of the urgency to return Springer to her pod was that chances for survival on her own were slim. But Osborne points out that learned traditions can have disadvantages as well. ““There may be a reluctance to abandon traditional habitat areas or prey species that are no longer viable,” he says. ““Culture, in that case, can be a liability.”

Research on Northwest orca populations has spurred similar studies in other parts of the world. The same pattern of large matrilineal pods has been found to hold true for resident communities of salmon and herring-hunting orcas in Alaska and Norway . Each are keyed to distinct foraging areas and have developed dialects of their own. But no other population anywhere is declining as precipitously as the Southern Residents of Puget Sound.

In May 2001, The Center for Biological Diversity, Center for Whale Research, Ocean Advocates, People for Puget Sound and eight other organizations petitioned the National Marine Fisheries Service (NMFS) to list the Southern Resident population of killer whales as endangered under the Endangered Species Act (ESA). The groups cited a Puget Sound population plunge of 20 percent in recent years, from 99 animals in 1995 to 79 this year. If the trend continues, Puget Sound could soon lose its best-loved icon.

The Committee on the Status of Endangered Wildlife in Canada had already listed resident killer whales as endangered in British Columbia. But in June the NMFS denied the petition to list the whales in the United States. In an odd twist of logic, the agency acknowledged that Puget Sound ’’s orcas could become extinct within the next century, but claimed they do not constitute a ““distinct population segment” as required by the law and therefore do not qualify for protection.

““While these animals are in trouble, there is not sufficient justification to list the Puget Sound population under the ESA,” said Bob Lohn, the fisheries service’’s Northwest regional director, upon release of the decision. The agency instead designated the population as ““depleted” under the Marine Mammal Protection Act, a much weaker law, and promised more research into the causes of the decline.

Paul Wade is a NMFS scientist and a member of the biological review team for the listing decision. When asked if the Southern Resident community constitutes a distinct population segment significant to the species —— a criteria for listing —— he admitted that they had trouble deciding. Nor were they in agreement over the causes of the decline. ““It’’s not absolutely clear why the population is declining right now,” says Wade. ““We know the animals have high contaminant levels, but do we know for sure that’’s impacting their health? Unfortunately we don’’t.” He says the agency is continuing its research into toxics and their effects on orcas, adding, ““This is one of the hardest determinations we’’ve ever had to make.”

Brent Plater, attorney for the Center for Biological Diversity, countered that the decision ““flies in the face of the best available science.” The group has filed notice of its plan to challenge the decision in court, and Defenders of Wildlife may be among the groups participating in the legal action.

Without the protections of an endangered species listing, recovery will be daunting. Factors leading to the whale’’s decline are far-reaching, and addressing them will require a major effort.

To begin with, the orcas’’ main prey, chinook salmon, are themselves listed as threatened in Puget Sound. Roughly half the salmon stocks that swim through the sound on their way to spawning streams are in serious decline. Habitat degradation from logging, hydroelectric dams and urban development, as well as overfishing, have all taken a toll.

Another factor is industrial pollution, which has built up over decades in bottom sediments in the sound’’s urban industrial bays. As salmon become less available, orcas turn to bottom fish, including some that feed in polluted areas. Toxins such as polychlorinated biphenyls (PCBs), mercury, lead and other heavy metals move up the food chain from plankton to prey fish and accumulate in the whales’’ fatty tissue. These toxins are known to hinder reproduction in sea mammals and impair their immune systems, leaving them susceptible to infection and disease. Necropsies of stranded killer whales in the area have revealed some of the highest levels of toxicity ever recorded, along with high incidents of reproductive failure and disease.

A third factor in the mix may be tied to the whales’’ popularity. More than 100,000 people participate in commercial whale watching outings in Washington and British Columbia each year. Research suggests that noise from whale watching boats may interfere with the animals’’ echolocation and communication, making it more difficult for them to hunt for fish.

Then there is the persistent threat of an oil spill. The fisheries service’’s biological review concluded that the risk of an oil spill is the most acute threat the orcas face. Commercial vessel traffic in and out of Puget

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Sound and the Strait of Georgia make these among the busiest seaways in North America. After the Exxon Valdez spill in Alaska’’s Prince William Sound, orca numbers dropped from 36 to 22 within a year. At least 14 have disappeared since then.

Together these factors make recovery of Puget Sound’’s orcas dependent on restoration of the Sound’’s marine ecosystem. In light of this, some see orcas as emissaries to the nearly seven million people who inhabit the Puget Sound-Georgia Strait basin. ““This should be a real wake-up call,” says Osborne. ““The orcas are showing us what we’’re doing to the environment —— and to ourselves.”

The Center for Biological Diversity’’s Plater agrees that threats to the orcas are complex. ““But to say we can’’t pin down the causes for the decline is absurd.” He says there is sound evidence of the problems affecting the orcas, and points out that the Endangered Species Act requires the best available science, not perfect science. Plater contends that designating the orcas as ““depleted” under the Marine Mammal Protection Act —— a law that focuses on the hunting and capture of marine mammals —— will do little to address the habitat issues that threaten the population.

Fred Felleman, Northwest director for Ocean Advocates, one of the petitioners for the listing, suggests that many of the measures needed to recover the Southern Resident population can be undertaken without a species listing. Several of them, in fact, are required under existing law.

For example, opportunities abound for cleaning up toxics in the region. Washington’’s Department of Ecology has identified 112 contaminated sites in Puget Sound; at least 22 are federal Superfund sites. As of 2001, only 33 have been or are in the process of being cleaned. Of the 79 remaining, 65 have yet to be delineated, a process of detailed analysis that could take a decade. Felleman contends that a serious commitment to fund these efforts would yield long-term benefits for orcas.

Others charge the government hasn’’t fully committed to funding ongoing research and monitoring of the orcas. The biggest gap in scientists’’ knowledge about these animals is their range and feeding habits during winter when they leave Puget Sound. This is particularly worrisome, as that is the time when the majority of births and mortalities occur.

Environmentalists point to salmon recovery as another area that deserves increased attention. Orcas are one of the few populations that have been petitioned for endangered species listing whose primary prey is already listed. A logical step, they say, would be to curb shoreline development, particularly in areas of extensive eelgrass beds, which are nurseries for juvenile salmon and the salmon’’s primary prey of herring, surf smelt and sand lance. Removal of two salmon-blocking dams on the Elwha River, the most promising salmon recovery effort in the Northwest, should be a top priority. And every initiative to reduce the threat of oil spills should be taken, including stationing fully equipped rescue tugs strategically throughout the sound and straits.

““There’’s no other population of whales in the world that we know this much about,” says Felleman. ““If it isn’’t worthy of saving, what is?”

Ken Balcomb predicts it’’s only a matter of time before the area’’s growing human population realizes that what is happening to orcas —— as a result of toxic pollution, ecosystem degradation and loss of wild fisheries —— is happening to them too. ““Once we see that we’’re also on the list of creatures at risk from these things, we’’ll get more interested in funding solutions,” says Balcomb. ““With humans’’ future in the balance, it will seem like a great investment.”

Tim McNulty, a poet and natural history writer, has written about wolves, sea otters and marbled murrelets for Defenders.

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EarthJustice Press Release

Lawsuit Filed to Protect Puget Sound Orca Whales New Births Signal There is Still Time to Act

December 18, 2002

Seattle, WA –– 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.”

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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.”

Contacts:
Patti Goldman, Earthjustice, 206-343-7340 x 32 Brent Plater, Center for Bio. Div. 415-572-6989 Fred Felleman, Ocean Advocates, 206-595-XXXX Michael Harris, Orca Conservancy, 206-467-XXXX Kathy Fletcher, People for Puget Sound, 206-382-XXXX

ESA Lawsuit Filed To Protect Puget Sound Orca Whales

Conservationists Fight Determination that Southern Residents Are “Not Significant”
December 18, 2002

Today a coalition of environmental groups filed suit against the National Marine Fisheries Service to fight the Bush administration’’s determination that Puget Sound’’s Southern Resident killer whales are not ‘‘significant,’’ precluding protection for the whales under the U.S. Endangered Species Act.

The lawsuit was filed in response to the Fisheries Services’’ July 1, 2002 determination that the agency will not list the Southern Residents as endangered under the federal Endangered Species Act, even though agency biologists determined that the Southern Residents are going extinct. 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 Southern Residents maintain a unique culture and that the extinction of the Southern Residents will result in the extirpation of resident killer whales in the continental United States. The agency also illegally applied a policy that restricts when populations can be protected under law, failing to recognize that killer whale taxonomy is currently being revised and would impact the application of the policy.

““In the end history will judge us by what we did to preserve the diversity and sanctity of life throughout our corner of the world. We take this stand today to make sure this unique population of killer whales will still inhabit Puget Sound into the future,”” said Earthjustice attorney Patti Goldman.

Over the past six years, the Puget Sound’’s Southern Resident killer whales have declined nearly 20%, 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 synergistic effects of high levels of bioaccumulative toxins, a population decline in their preferred salmon prey, and human disturbance from vessel traffic and noise.

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““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 criteria that the whales are ““significant.””

Instead of listing the Southern Residents as Endangered, the Fisheries Service began considering if the Southern Residents are ““depleted”” under a different statute, the Marine Mammal Protection Act. However, depleted status cannot address the threats facing the Southern Residents.

““The ‘‘depleted’’ designation will not be effective, because it is only useful to address threats such as unsustainable harvest levels and fishery bycatch. But we know that neither of these threats are impacting the Southern Residents,”” said Brent Plater of the Center for Biological Diversity. ““The Fisheries Service is using this as a way to deflect attention away from their inaction on salmon declines and the risks of a catastrophic oil spill, which even their own scientists agree directly threatens the long-term survival of these whales.””

Since the petition was filed, two remarkable events have occurred. Last winter, a juvenile Southern Resident orca named L98, or ““Luna,”” once thought by researchers to have died, was found on its own off the northwest coast of Vancouver Island. This marks the first time in 30 years of research on the population that an orca absent from a season’’s survey was subsequently found alone and alive. This marks an ominous disruption of the extraordinary social organization of the Southern Residents. And Luna is not an isolated case. Last January, another wayward orca, an orphaned calf named A73, or ““Springer,”” from British Columbia’’s threatened Northern Resident Community, was discovered alone in mid-Puget Sound, some 300 miles from her natal waters. The rescue and repatriation of Springer back to her family last summer captured the imagination of the world, and only happened through the determined efforts of non-profit organizations which helped source the funds and drive public opinion in favor of intervention when NMFS refused to act.

Yet now, despite this great conservation success, and despite the fact that the efforts of these private organizations allowed the Springer translocation to happen without having to divert a single dollar from schools, roads or other social services, this crisis involving Luna has received almost no attention from the agency charged with protecting this population. With each passing day, a remarkable opportunity is being lost.

““This orca will likely die if he isn’’t reunited with his family, yet the Fisheries Service sits idly by while his entire family goes extinct,”” said Michael Harris, President of Orca Conservancy.
““And since the Southern Residents need their population fortified by all means available, it’’s time for NMFS to act now to help return this critical young male to the Southern Resident Community. We’’ve demonstrated that it can be done with Springer. It’’s time to begin a process to bring Luna home.””

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.””

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ORCA CONSERVANCY –– THE ESA FILE Page 29

2003

Fighting Against the Currents
OC TIMELINE: FEDS AND FRIENDS MAKE
THE CASE AGAINST ESA LISTING……

In May 2001, Orca Conservancy joined ten other organizations and Ralph Munro in Petitioning National Marine Fisheries Service (NMFS) to respond to the Southern Resident orca crisis by protecting them under the Endangered Species Act.

In May of 2002, NMFS rejected the Petition to list the orcas under the ESA. Much to our chagrin, some of our former compatriots jumped ship, actively and publicly working against our organization’’s efforts to get the best-possible protection for the Southern Resident Communitys. Some even began aggressively bidding for federal contracts under NMFS’’s alternative (and completely inadequate) vehicle it was proposing to recover the population –– to designate the Southerns as a ““depleted stock”” under the Marine Mammal Protection Act (MMPA).

Orca Conservancy decided to fight the feds in court. Meanwhile, one Northwest group began hosting and promoting community forums led by employees of NMFS, to ““educate”” the orca-loving public about why the exact protections could be just as easily realized under MMPA as under the ESA –– which of course was a lie. The MMPA route had one clear and fatal shortcoming –– no public oversight, no citizen enforcement. In other words, the feds could pretend to be protecting the orcas, but in fact do nothing substantial toward their recovery, continue to enable business and development interests to adversely impact critical habitat, and face no threat of lawsuits. In short, the MMPA had no teeth. And yet, the Bush Administration continued to be given avenues to mislead the public and to operate unaccountably. No alternative viewpoint was given equal time at these events. None of the Petitioning or plaintiff groups arguing for ESA protection were ever invited to participate. It was a shameful sellout of the Southerns, clearly motivated by spite and greed.

But while some were eagerly helping the feds fool much of orca-loving public, it was far more difficult for the government to pull the wool over the eyes of U.S. District Court Judge Robert Lasnik. In an historic ruling in December 2003, Judge Lasnik decided in favor of Orca Conservancy and our fellow plaintiffs and sent NMFS back to the drawing board. The Court gave them a year to return with a better argument, based on the best available science, or in the absence of such, list the orcas under the ESA. The whales were back on the road to recovery…… no thanks to some of our colleagues in the orca advocacy community.

February 5, 2003

Orcas Called ‘Depleted’

Whidbey News-Times

While nobody seems to disagree that the orca whales that frequent the San Juan area —— and were recently spotted off Whidbey Island —— are in trouble, there’’s an ongoing clash between environmental groups and the federal government about what to do about it.

But Thursday, National Marine Fisheries Service took a step that has some orca supporters cautiously optimistic. The agency officially published a notice in the federal register announcing a proposed rule to designate the Southern Resident stock of killer whales as ““depleted”” under the federal Marine Mammal Protection Act.

““I’’m encouraged,”” said Susan Berta of the Whidbey-based Orca Network, ““that basically the depleted status is resulting in the same kind of process that would have happened under the (Endangered Species Act).””

The Orca Network hosted a meeting Wednesday night on Whidbey Island at which people from the Fisheries Service spoke about what the designation means, ongoing scientific research and the status of the whale population.

The message from Brent Norberg, marine mammal coordinator for the Northwest Region of the Fisheries Service, was that the actual effect of the ““depleted designation”” depends on community input, scientific findings and federal funding.

““If you saw the State of the Union (address) last night, ““ Norberg said, ““you know that we’’re competing with other priorities to get funding right now.””

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ORCA CONSERVANCY –– THE ESA FILE Page 30

Berta was part of a coalition that filed a petition with the federal government in 2001 to list the orcas under the Endangered Species Act. (CLARIFICATION: ORCA NETWORK WAS NOT A PETITIONING ORGANIZATION.) In a controversial ruling, the Fisheries Service found that the whale population does not qualify for protection under the Endangered Species Act, though the agency conceded that the orcas do face extinction in the next century.

The question is whether the Southern Resident orcas, the group of fish-eating whales that reside mainly in the San Juans and Puget Sound, are a distinct enough population. There are groups of orcas, also called killer whales, living all over the world. In fact, orcas have the broadest distribution of any mammal. Yet the Southern Residents are genetically different from other orcas and do not interbreed or interact with whales outside their own group.

Three types of killer whales

There are three main types of killer whales in the north part of the Pacific Ocean: residents, transients and offshore. Little is known about the offshore orcas. The transient orcas are also hard to track since they move around unpredictably and change pod membership. They eat mainly marine mammals, like seals, sea lions and even other whales. These are the orcas that made recent headlines for hanging out in Hood Canal.

There are also northern and Southern Residents orcas in the Pacific Northwest. The so-called Southern Residents consists of three pods —— J, K and L —— and reside mainly in the San Juans and Puget Sound. Scientists believe they eat salmon and other fish almost exclusively. They are genetically different than all other whales and even have their own dialect of vocalization.

The bad news is that the Southern Resident population declined by 20 percent in the last six years, reaching a low point of 80 orcas. Norberg said historic data puts the normal population size at between 140 to 200 animals. Extremely high levels of toxins, especially PCBs, were detected in dead orcas.

In the ruling on the Endangered Species Act, Berta said the federal agency found that the Southern Residents were a discreet, but not a distinct, population. ““It came down to a technicality between discreet and distinct,”” Berta said.

In other words, National Marine Fisheries Service found that the extinction of the particular ““stock”” of whales would not affect the worldwide population of orcas. The agency even predicted that other orcas may take over the territory when the Southern Residents are gone.

Efforts continue for ““endangered””

But there is hope for those who want to protect the orcas. A coalition, not including the Orca Network, is suing the Fisheries Service over the decision not to list the Southern Residents as endangered.

With the recent announcement, National Marine Fisheries is moving ahead with plans to list Puget Sound’’s declining resident orca population as ““depleted”” under the Marine Mammal Act. The Marine Mammal Act ““doesn’’t have as much teeth”” as the Endangered Species Act, Berta said, but it is modeled after the older legislation. One major difference is that the Marine Mammal Act doesn’’t allow for third-party lawsuits —— suing a polluter on behalf of the orcas, for example —— as the Endangered Species Act does.

Norberg said the next step will be a 60-day comment period on the proposal to designate the orcas as depleted. He said the agency expects to publish the final rule on the Southern Residents’’ status by the end of June. After that, the agency is required, under law, to create a conservation plan ““as soon as possible.””

According to Norberg, the Fisheries Service plans to hold a series of public meetings to gather input for the conservation plan. He said the meetings will likely be divided into a series of specific issues affecting the whales’’ health, such as toxins in the water.

Berta said she hopes the actual management plan includes public education, stricter laws regarding industrial pollution, as well as strong measures to expediate the cleanup of polluted underwater sediment.

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ORCA CONSERVANCY –– THE ESA FILE Page 31

Scientists have a lot to learn

Meanwhile, scientists will be continuing research on the orcas. Linda Jones, deputy director of the Northwest Fisheries Science Center (the scientific arm of Fisheries Service), told the crowd of about 30 people near Coupeville Wednesday that researchers still have much to learn about the Southern Residents, even though they have been closely watched for the last 30 years. They don’’t even know where the pods normally go in the winter.

Jones said scientists obviously need to identify what is causing the decline in whale population. She said the agency has listed the top four suspected risk factors, which are environmental contaminants, prey (salmon) availability, oil spills and vessel or acoustic disturbances.

Also, work continues on the taxonomy of orcas. Researchers are comparing the morphology of orca skulls at museums. A scientist in London is comparing the DNA of orcas from around the globe. Both of these projects will help researchers decide whether or not the Southern Resident orcas are a distinct and discreet population.

And if the data shows this, Norberg said there is always the chance that the whales could still be listed as endangered someday.

““Science is just beginning to understand the orcas,”” Berta said. ““We feel encouraged that (National Marine Fisheries) hasn’’t totally written off an (Endangered Species Act) listing.””

ORCA NETWORK PRESENTS:

January 29th Presentation on Whidbey Island by Brent Norberg and Linda Jones, NMFS

Regarding the Process for listing the Southern Resident Orcas as “Depleted” under the MMPA.

We were pleased to have a diverse audience attend the presentation, with participants from Bellingham to Tacoma, Redmond to Anacortes, and Everett to San Juan Island, including whale researchers, whale watch operators, environmental educators, NGO’s, students, marine business representatives, fisherpersons, and interested citizens.

We encourage everyone to be a part of this process, to make sure the Recovery Plan is sufficient to save this orca population before it is too late. NMFS will be scheduling informal workgroups and meetings, on different issues and topics regarding the decline of the Southern Residents. Please give them your ideas, comments and feedback!

For more information on this process, go to: NMFS Main webpage on Depleted Status.

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ORCA CONSERVANCY –– THE ESA FILE Page 32

EarthJustice Press Release – May 23, 2003

Motion for Summary Judgment Filed on Puget Sound Orcas

Conservationists Fight Determination that Southern Residents Are “Not Significant”

Seattle, WA –– A coalition of environmental groups filed a Motion for Summary Judgment in their suit against the National Marine Fisheries Service (NMFS) to fight the Bush administration’s determination that Puget Sound’s Southern Resident killer whales are not “significant,” precluding protection for the whales under the federal Endangered Species Act (ESA). If the Motion is granted, the administration will be compelled to afford the fullest protections possible to save the region’s totem species.

The lawsuit was filed in response to NMFS’s July 1, 2002 determination that the agency will not list the Southern Residents under the ESA, even though agency biologists determined that the Southern Residents are going extinct. The lawsuit was filed by Earthjustice and the Center for Biological Diversity, on behalf of Earth Island Institute, Ocean Advocates, Orca Conservancy, Friends of the San Juans, People for Puget Sound, former five-term Secretary of State Ralph Munro and Karen Munro.

The Canadian organizations Sierra Legal Defence Fund and Georgia Strait Alliance will file Amicus –– or Friends of the Court –– briefs supporting the U.S. coalition’s challenge on the ESA decision. The Samish Indian Nation has already filed an Amicus brief in support of the litigation.

“The Samish and our neighbors in British Columbia have long understood the significance of the Southern Residents to this region,” said Michael Harris, President of Orca Conservancy. “And the Canadians acted appropriately in listing them as Endangered. Obviously, these orcas don’t become any less Endangered once they cross boundaries.”

“The recent incident involving U.S. Navy sonar tests blasting our orcas underscores the need for agencies and organizations across the border to work together to save these whales from extinction,” said Fred Felleman, NW Director of Ocean Advocates. “Rather than the military seeking exemptions from environmental laws, they should be using their maritime prowess to facilitate the recovery of our orcas.”

“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 Southern Residents maintain a unique culture and that their extinction will result in the extirpation of resident killer whales in the continental United States. The agency also illegally applied a policy that restricts when populations can be protected under law, failing to recognize that killer whale taxonomy is currently being revised and would impact the application of the policy.

“In the end history will judge us by what we did to preserve the diversity and sanctity of life throughout our corner of the world. We take this stand today to make sure this unique

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ORCA CONSERVANCY –– THE ESA FILE Page 33

population of killer whales will still inhabit Puget Sound into the future,” said Earthjustice attorney Patti Goldman.

Over the past six years, the Puget Sound’s Southern Resident killer whales have declined nearly 20%, 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 synergistic 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,” Felleman adds. “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 and11 co-petitioners filed a petition to list the this orca group 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 criteria –– that the whales are “significant.”

Instead of listing the Southern Residents as Endangered, the Fisheries Service began considering if the Southern Residents are “depleted” under a different statute, the Marine Mammal Protection Act. However, depleted status cannot address the threats facing the Southern Residents.

“The ‘depleted’ designation will not be effective, because it is only useful to address threats such as unsustainable harvest levels and fishery bycatch. But we know that neither of these threats are impacting the Southern Residents,” said Brent Plater of the Center for Biological Diversity. “The Fisheries Service is using this to deflect attention away from their inaction on salmon declines and the risks of a catastrophic oil spill, which even their own scientists agree directly threatens the long-term survival of these whales. The depleted designation will allow them to continue to ignore these threats.”

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.”

Regional Contacts:
Will Anderson (Earth Island Institute) (206) 715-XXXX Stephanie Buffum (Friends of the San Juans) (360) 378-XXXX Fred Felleman (Ocean Advocates) (206) 595-XXXX Kathy Fletcher (People for Puget Sound) (206) 382-XXXX Michael Harris (Orca Conservancy) (206) 465-XXXX
Contact: Patti Goldman, Earthjustice 206-343-7340 x 32 Brent Plater, Center for Biological Diversity 415-572-6989

Orca Conservancy’’s Michael Harris uses his ““Springer time”” on NorthWest Cable News to discuss with host Cam Johnson the important distinctions between protections under ESA and Marine Mammal Protection Act.

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ORCA CONSERVANCY –– THE ESA FILE Page 34

VICTORY!

Judge Orders Feds to Reconsider Protecting

Puget Sound Orcas

SEATTLE, Washington, December 18, 2003 (ENS) – The Bush administration relied on outdated science when it determined that Puget Sound’s Southern Resident killer whales are not a distinct population and must revise its decision, a federal judge ruled Wednesday. The ruling is a major victory for environmentalists and reopens the door to protecting the orcas under the Endangered Species Act (ESA).

Over the past six years, Puget Sound’s killer whales have declined nearly 20 percent, leaving only 78 individuals in the population at the end of the 2001 survey year.

In July 2002, the National Marine Fisheries Service (NMFS) agreed that this Puget Sound population was in danger of extinction, but found that it was not a “distinct population” eligible for protection under the ESA.

The agency determined that all orcas belong to one species and that other killer whales would recolonize Puget Sound if the Southern Residents went extinct.

The Puget Sound killer whales are part of an intensely social, matriarchal family with several generations that will stay together for life. (Photo courtesy Cetacean Society International) U.S. District Court Judge Robert Lasnik ruled that the agency’s decision did not use the best available science and failed “to give the benefit of the doubt to the species.”

He criticized the agency for basing its decision on a taxonomist’s determination in 1758 that all the world’s orcas are members of one species – even though there is ample evidence that this taxonomy is under revision.

The judge noted that biologists classify three reproductively isolated forms of orcas in the Eastern North Pacific Ocean – resident, transient and offshore – and say Puget Sound’s Southern Residents appear not to associate with other orcas. Genetic studies also suggest the population is reproductively isolated.

“NMFS ignored its experts’ conclusion that the global taxon is inaccurate and the best available science demonstrates that resident and transient killer whales do not belong in the same taxon,” Judge Lasnik wrote in his 31 page ruling.

He did not order NMFS to list the Southern Residents on the ESA, but called on the agency to rework its decision by December 17, 2004.

Michael Harris, president of the Orca Conservancy, one of the plaintiffs in the suit, praised the ruling as “a great day for our orcas.”

“We have always believed that our federal officials here agreed that we need the strongest measures possible to recover this population, but they were simply buffaloed into a bad decision by the Bush administration and its hostility toward the ESA,” Harris said.

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ORCA CONSERVANCY –– THE ESA FILE Page 35

The population needs to be protected under the ESA, the plaintiffs say, because that law is the only one that targets the threats faced by the Puget Sound killer whales.

Listing under the ESA would require federal agencies to take actions to protect habitat for the orcas, which have suffered because of water pollution, decline in salmon prey and human disturbances from vessel traffic and noise, conservationists say.

“You can not save these whales without protecting their habitat and prey from oil, PCBs, and noise pollution,” said Fred Felleman of Ocean Advocates, another of the plaintiffs in the suit.

“None of our conservation laws protect habitat as effectively and as flexibly as the ESA.” In lieu of listing the Southern Resident orcas under the ESA, NMFS announced last summer that the agency is considering whether the Southern Residents are “depleted” under a different statute, the Marine Mammal Protection Act (MMPA).

Conservationists say this a step in the right direction, but should not be done in lieu of protection under the ESA.

“The ‘depleted’ designation is only useful to address threats such as unsustainable harvest levels and fishery bycatch,” said Brent Plater of the Center for Biological Diversity. “But we know that neither of these threats are impacting the Southern Residents.”

Plater says NMFS was using the MMPA proposal to “deflect attention from its inaction on salmon declines and the risks of a catastrophic oil spill, which even their own scientists agree is the most immediate threat to the long term survival of these whales.”

The lawsuit was filed by Earthjustice and the Center for Biological Diversity, on behalf of Earth Island Institute, Friends of the San Juans, Ocean Advocates, Orca Conservancy, People for Puget Sound, and former Washington Secretary of State Ralph Munro and his wife Karen.

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ORCA CONSERVANCY –– THE ESA FILE Page 36

CBC –– December 18, 2003

Judge Rules U.S. Government Must Reassess Endangered Status

Habitat Protection Possible for Southern Residents

The Southern Resident killer whales are one of the most venerated and easily observed marine wildlife populations in the world. Their spring, summer and fall range places them in some of the busiest waters on the west coast (Puget Sound and southern Vancouver Island) providing easy access for a multitude of commercial whale watching vessels whose businesses rely on the whales’’ presence. Resident killer whales feed on fish, and differ from the marine mammal eating transient killer whales (which frequently pass through the region) by behaviour, group size, social structure, genetics, and by subtle differences in appearance. The Southern Residents lost approximately 47 members to live captures for aquaria between 1967 to 1973. This large perturbation to the population size and structure combined with current threats from chemical and noise pollution, loss of prey availability (declines in salmon stocks), and disturbance by boats has raised many concerns over the long term survival of the population.

In May of 2001, the U.S. National Marine Fisheries Service (NMFS) received a petition from the Center for Biological Diversity (a U.S. non-governmental organization) and ten co-petitioners calling for the listing of the Southern Resident killer whale population under the U.S. Endangered Species Act (ESA). The ESA is the equivalent of the Canadian Species at Risk Act which received Royal Assent last June. NMFS reviewed the petition, decided that it contained substantial scientific information, and committed to conducting an ESA review.

NMFS formed a Biological Review Team comprised of eleven NMFS scientists to undertake the review. The review team identified two recent periods of significant population decline in the Southern Residents: 11% from 1980 to 1984 and 20% from 1996 to 2001. The magnitude of these declines suggested that external factors (such as a loss of prey availability) were responsible. Such large declines are especially troubling to a population with less than 50 reproductive age members. The Review Team also undertook a population viability analysis (PVA) to calculate a range of outcomes for the Southern Resident population and its risk of extinction. The PVA calculated extinction probabilities ranging from 1% –– 30% in 100 years and 5% to 98% in 300 years. NMFS scientists have recently recommended a 1% or greater probability of extinction in 100 years would be considered grounds for listing a species as endangered.

While the review team recognized that the Southern Resident killer whale population is at-risk of extinction, they deliberated over the issue of the importance of the extinction to the species. Under the Endangered Species Act there is a requirement that a population or species that is to be listed be both ““discrete ”” and ““significant””. That is, the Southern Residents must be physically, physiologically, ecologically or behaviourally different from other populations of the species (discrete) and they must exist in a unique setting whose loss would represent a gap in the range of the species (significant). The main stumbling block was that if killer whales are considered to be one species globally (Orcinus orca) then Southern Resident killer whales are not sufficiently different enough from northern residents or Alaskan residents to be considered ““significant””. Further, the extinction of the Southern Residents would not cause a gap in the range of the species, since transient killer whales occupy the same area.

The Review Team was emphatic that killer whale taxonomy lags behind killer whale science. The species Orcinus orca was first described by Carl Linnaeus, ““the father of taxonomy””, in 1758 and has remained unchanged since, although there has since been considerable debate in the scientific community. Regardless, the review team agreed unanimously that resident and transient killer whales belong in two different taxa (taxon is a unit of classification of organisms, such as a family, genus or species –– taxa is the plural form) although there was no consensus on what the taxa would be. The implications of listing them in different taxa is that Southern Residents would be ““significant”” in a smaller taxon that included only resident (southern, northern and Alaskan) or resident and offshore killer whales and that they then could be listed under the Endangered Species Act.

The Review Team submitted its Status Review to the NMFS decision makers on April 16th 2002. On July 1st 2002, NMFS published its assessment indicating that listing the Southern Residents under the ESA is ““not warranted””. They argued that the best scientific evidence is that there is one species of killer whale globally and that under the Endangered Species Act, NMFS is not required to ““create new science”” and, therefore, that NMFS is ““not required to revise the taxon”” but only apply the currently accepted taxon –– Orcinus orca.

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ORCA CONSERVANCY –– THE ESA FILE Page 37

At the time NMFS issued the ““not warranted”” finding, they indicated their intent to conduct a status review to determine whether the Southern Residents should be listed as ““depleted”” under a separate piece of legislation: the Marine Mammal Protection Act (MMPA). On May 29, 2003 (less than a year later), NMFS identified the Southern Residents as depleted under the MMPA and began to prepare a conservation plan to promote the population’’s recovery. However, the MMPA does not allow for designation and protection of critical habitat, making efforts to promote population recovery much less effective.

In December, 2002, a lawsuit was filed by the Earthjustice Institute and the Center for Biological Diversity on behalf of six other organizations and individuals to challenge NMFSs’’ ““not warranted”” finding under the ESA. On December 17th, 2003, US District Judge Robert Lasnik overturned NMFS’’ ““not warranted”” finding. Lasnik ruled that while the agency is not required to ““create new science”” and decree a new species for resident killer whales, it must make the ESA listing decision ““without reliance upon science that its own scientists unanimously agreed is inaccurate.”” Further, Judge Lasnik stated ““to deny listing of a species simply because one scientific field has not caught up with the knowledge in other fields does not give the benefit of the doubt to the species and fails to meet the best available science requirement (of the ESA)”” and stressed that, ““congressional intent (is that) an agency ““take preventive measures before a species is ‘‘conclusively’’ headed for extinction””””. The judge also asserted that ““NMFS may not rely upon the periodic presence of transients in the range of (southern) residents to determine that the species of orcas to which the Southern Residents belong is not at risk of extinction in a significant portion of its range.”” As a result of Judge Lasnik’’s decision, NMFS must re-evaluate the listing of Southern Residents within the next twelve months.

Some of the evidence that residents and transients ought to be considered different species arises from killer whale studies conducted by Vancouver Aquarium Marine Science Centre (VAMSC) researchers. Genetic studies by Dr. Lance Barrett-Lennard, senior marine mammal scientist at VAMSC confirmed behavioural evidence that resident killer whales and transient killer whales do not interbreed, despite overlapping ranges. Dr. Barrett-Lennard’’s study also revealed that the Southern Residents are genetically discrete from other resident populations.

The NMFS review team emphasized the lack of evidence of differences in skeletal morphology between residents and transient killer whales and the importance of this evidence to leading taxonomists. Dr. Barrett-Lennard is currently supervising a study by graduate student Charissa Fung, characterizing the differences between skulls determined by DNA analysis to belong to residents or transients. Fung predicts that there will be marked differences in the skulls as a result of differing evolutionary pressures imposed by fish-hunting and mammal hunting.

A conference to be held 28 April – 2 May 2004 at the Scripps Institute in San Diego will address the shortcomings in our understanding of cetacean taxonomy and will include sessions on killer whale taxonomy. While Judge Lasnik feels that NMFS will be able to reassess the status of Southern Residents with a reliance on an advancement in the science of killer whale taxonomy the information that Fung will present at this meeting may aid NMFS in their reassessment and ultimately improve habitat protection for the Southern Residents.

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ORCA CONSERVANCY –– THE ESA FILE Page 38

NMFS Ordered to Reconsider ‘Endangered’
Listing for Washington State Orcas
Humane Society of the United States, December 2003

Around the San Juan Islands of Washington state, majestic families of black-and-white orcas, known as the Southern Resident Community, are disappearing from their home waters. While scientists and conservation groups have worked to save these icons of the Pacific Northwest, the National Marine Fisheries Service (NMFS) appeared to be doing just the opposite.

Having refused to list these pods of orcas as endangered under the Endangered Species Act (ESA) in 2002, NMFS proposed in January 2003 to designate the population as “depleted” under the Marine Mammal Protection Act (MMPA). Dr. Naomi Rose, marine mammal scientist for The HSUS, says the decision not to list the Southern Residents as endangered “flies in the face of science, which clearly sees these whales as genetically distinct and vital elements of their ecosystem, and in the face of common sense.” Rose points out that “while an MMPA ‘depleted’ designation would offer some assistance, it does not offer the strong and mandatory protections that an ESA listing does.”

A federal judge apparently agreed with this position when he ordered the NMFS to reconsider its decision not to list these orcas under the Endangered Species Act on December 17, 2003. The NMFS responded by stating that they would not appeal the order, and that a reevaluation would be completed by December 17, 2004, in compliance with the court’s order.

What ESA Protections Would Mean to the Southern Resident Orcas

Since its passage in 1972, the MMPA has protected orcas, yet the Southern Resident population continues to decline. Conservationists believe an ESA listing would give the whales the additional protection they need to recover. For example, the ESA requires the protection of critical habitat, something that is not afforded under MMPA “depleted” status. A listing under the ESA also requires the timely implementation of a recovery plan.

Such a plan for the Southern Residents could include the removal of dams that block salmon rivers, which would allow the orcas’s primary food source to recover; year-round escort tugs could be placed in the Straight of Juan de Fuca, which would help prevent oil spills; and regulations could be implemented to stop the government and corporations from dumping toxic chemicals into orca habitat, while a cleanup of the toxins already present could begin. Some of these actions could be implemented, at least at some level, with a state endangered listing.

Rose says that there is still a chance to save Southern Resident Community orcas: “There is much to be done, but we can only save these orcas if the government responds to the urgency of the situation. This recent decision does not bode well.”

While a federal listing is still the most effective means of recovering the Southern Residents’ numbers, a state listing is also vital. The HSUS awaits the state’s response to our letter. There is support for the orca within the state legislature: A House bill, H.B. 2884, was recently introduced to “promote orca awareness and to encourage protection of the natural marine habitat by designating the orca as the official marine mammal of the state of Washington.”

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ORCA CONSERVANCY –– THE ESA FILE Page 39

In 2001, following the unprecedented loss of six members of one family group (referred to by scientists as the L-pod), 11 conservation groups, led by the Center for Biological Diversity, signed a petition urging NMFS to give the species extra protection by placing it on the Endangered Species List. NMFS ultimately rejected the petition on the controversial grounds that these whales, while genetically distinct from other orca populations to the north, were not “significant” to the global population of orcas (who also known as killer whales).

In the face of this questionable federal decision, environmental and animal- protection groups, including The HSUS, have asked Washington state to do all it can to protect the Southern Residents. A letter, dated October 18, 2002, was sent on behalf of 19 regional, national, and international groups, requesting that Washington list the Southern Residents as “endangered” under the state endangered species act. Fortunately, the Washington Department of Fish and Wildlife recommended that the killer whale be listed as an endangered species in the state of Washington in their Draft Washington State Status Report for the Killer Whale (Nov. 2003).

State protections would not be as extensive as federal protections; however, the state does issue permits for industrial toxins in wastewater discharge, license vessels, and control fisheries policies within state waters. Listing the Southern Resident orca under the state endangered species act would allow state regulators to improve conditions for the orcas within three miles of Washington’s coastline.

Recipe for Extinction

Since 1996, the number of orcas living in the waters between the United States and Canada has plummeted. Scientists contend that several factors have contributed to the decline. During the 1960s and 1970s, they say, 48 whales were taken from this population for display in theme parks. The population was forced to recover from the loss of an entire generation, and from a weakened gene pool.

Also contributing to the orcas’ demise, scientists say, has been the decline of salmon and ground fish stocks, the whales’s primary food source. Several of these fish species have recently been added to the Endangered Species List themselves.

Toxic chemicals such as polychlorinated biphenyls, or PCBs, that accumulate in the whales’s fat reserves have also contributed to their debilitation and death. A recent study found a level of 100 parts per million in the Southern Resident Community, placing these orcas among the most toxic whales in the world. (Seventeen parts per million of PCBs has been proven to cause disruption to the endocrine and immune systems in seals.)

PCBs were first introduced in the 1930s to insulate and lubricate heavy machinery, telephone lines, and hydroelectric transformers, and to make pigments, paints and carbon paper. Over the years, PCBs have leaked into many different ecosystems through industrial dumping and rainwater runoff.

The combination of toxins and a lack of food has created a deadly chain of events. Because the whales are not finding enough fish, they are forced to live off the stored fat in their blubber, releasing PCBs into their bodies where the toxins can cause immune system failure, changes in hormone levels, the breakdown of reproductive systems, and birth defects.

Finally, the decline of the Southern Residents may partly be the result of the noise generated by boats, including tankers and container ships, whale-watching boats, and private pleasure boats. One scientific theory suggests that engine noise masks the complex communication calls and echolocation clicks (natural sonar) used by orcas to find food.

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ORCA CONSERVANCY –– THE ESA FILE Page 40

“Not Significant”

On June 25, 2002, after a year’s review to list this population of orcas as an endangered species, the NMFS agreed that the Southern Resident Community is probably facing extinction. However, the NMFS concluded that these pods are “not significant” to the greater population of fish-eating orcas living along the coast of British Columbia and Alaska——that is, that while they are genetically distinct from pods living to the north, the loss of the Southern Residents would not harm the overall welfare of the species.

Conservationists disagree, noting the Southern Resident Community’s unique language and established culture, including behaviors such as a “greeting ceremony” held between reuniting pods. The fact that these whales have been isolated for thousands of years from their nearest neighbors in British Columbia confirms their genetic significance. If they disappear, it is highly unlikely any whales would replace them, meaning orcas would no longer play an ecological role in the Puget Sound area, and their unique culture would be lost forever.

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2004

WDFW Report Recommends ‘Endangered’ Status for Puget Sound’s Orca Population

3/3/04

PRESS RELEASE:

Puget Sound’s resident orcas should be added to Washington state’s endangered species list because the marine mammals are at critically low levels and are vulnerable to several continuing threats, according to a recently completed status report by the Washington Department of Fish and Wildlife (WDFW).

The department is accepting public comment through April 1, 2004 on the status report and recommendation that the orcas, also known as killer whales, be included on the state’s list. The report may be viewed at WDFW WEB SITE, and comments may be sent to:

Email: wildthing@dfw.wa.gov

Mail: Harriet Allen, Wildlife Program WDFW

600 Capitol Way N

Olympia, WA 98501.

The Washington Fish and Wildlife Commission, the nine-member citizens’ panel that sets policy for WDFW, is expected to take action on the orca-listing proposal at its April 2-3 meeting in Spokane.

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ORCA CONSERVANCY –– THE ESA FILE Page 41

The state listing process is separate from the federal process, and carries limited state authority that is confined to the malicious harassment or killing of a state-listed endangered species. A state listing would trigger the development of Washington’s own recovery plan, which would serve to guide efforts to protect the orcas.

The recovery plan would be done in concert with the actions of U.S. and Canadian federal agencies that have management authority for marine mammals.

The state designates as “endangered” those species native to Washington that are seriously threatened with extinction throughout all or a significant portion of their range within the state.

The status report is the latest product of an ongoing effort by Washington state, federal and Canadian officials to assess the health of the region’s resident orca population.

Canadian officials have already listed the Southern Resident orcas as an endangered species. The U.S. government, which designated the Southern Resident population as a “depleted stock” under the national Marine Mammal Protection Act, is currently reviewing its decision to not list the orcas under the federal Endangered Species Act (ESA).

WDFW’s status report was funded in part by a $100,000 appropriation from Gov. Gary Locke as part of the governor’s larger initiative to strengthen the health of the Puget Sound ecosystem and the fish and wildlife species that depend on it.

“The solid scientific work reflected in this report gives us an excellent base on which to assess the health of our resident orca population and determine what the next steps should be to protect one of the most enduring symbols of Puget Sound and the Pacific Northwest,” said WDFW Director Jeff Koenings.

The Puget Sound resident orca population consists of three social groups, identified as the J, K and L pods. Southern Resident orcas primarily feed on salmon and other fish. They are most often seen in Puget Sound from late spring to fall.

The Southern Residents’ population has declined by 18 percent since 1995, according to the status report. The L pod, which makes up about half of the Southern Resident population, has seen both higher mortality and lower birth rates, particularly in the past decade.

The status report cites several possible factors that could be responsible for the orcas’ decline, including an overall decline in salmon numbers throughout the region, as represented in the federal listing of salmon under the federal ESA, accumulations of long-lived pollutants such as PCBs and DDT, and possible harassment from “whale-watchers” and other marine vessels.

“The state’s roles and responsibilities would complement, not replace, those of the federal agencies,” Koenings added. “We want to operate from a clear understanding of the science so as to not duplicate the federal recovery plan.”

Transient orcas also inhabit state waters intermittently throughout the year, though they differ from the resident pods in their smaller social groups and preference for marine mammals as a prey base. Two additional orca populations, offshore and northern residents, rarely venture in state waters.

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ORCA CONSERVANCY –– THE ESA FILE Page 42

December 16, 2004 –– Morning News

DECISION TODAY ON LISTING OF

PUGET SOUND ORCAS

NorthWest Cable News/KING 5 News (NBC Seattle)

Greg Copeland: Hello everybody, I’m Greg Copeland. Today environmentalists are cautiously optimistic that Puget Sound’s orcas will finally be listed as an Endangered Species. The expected announcement this afternoon would set in motion recovery plans to protect an already declining population. NorthWest Cable News’’ Akiko Fujita has more from Seattle.

Akiko Fujita, on Seattle waterfront: That recovery plan is important because those orcas are such a big part of the Puget Sound region. In fact, a lot of tourists come out here to the waterfront to board one of the whalewatch boats. Now environmental groups have spent years trying to get orcas on this list, and they say the designation is long overdue.

Akiko Fujita VO: Orca sightings are becoming rare in the Puget Sound. Only 85 are left.

Fred Felleman, Orca Conservancy: The population cannot exist in a vacuum. We need to give the broader Puget Sound ecosystem the support it needs to support a resident population of killer whales.

Akiko Fujita VO: That’s exactly what environmentalists like Fred Felleman say an Endangered Species designation does. The Endangered Species Act requires government agencies to set aside recovery plans and designate Critical Habitat areas.

Michael Harris with the Orca Conservancy says declining population is proof this designation is desperately needed.
Michael Harris, President, Orca Conservancy: We’ve seen the numbers. We’ve seen the statistics. We’ve seen a 20% drop really in the last decade.

Akiko Fujita VO: Harris says aggressive fishing practices and water pollution are partly to blame. But critics of the ESA say the Act doesn’t balance science with economics. That putting the orcas on the Endangered list hurts critical industries.

Michael Harris, President, Orca Conservancy: This is going to effect things like dock construction, vessel traffic, and oil spills.

Akiko Fujita, on Seattle waterfront: Environmental groups petitioned to get the orcas on this list a few years ago, but NOAA denied that request at the time, saying they weren’t legally a “distinct population.” Now that means they didn’t live in an environment that was unique for that species. And the genetic differences between the orcas and the other whales weren’t significant enough. Now environmental groups obviously hoping for a very different outcome this time around, and that announcement once again will come at 1pm this afternoon. In Seattle, I’m Akiko Fujita, NorthWest Cable News.

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ORCA CONSERVANCY –– THE ESA FILE Page 43

December 16, 2004 –– 1pm
LIVE TELEVISION COVERAGE:
NOAA FISHERIES SET TO ANNOUNCE PROTECTION FOR PUGET SOUND ORCAS UNDER ENDANGERED SPECIES ACT
NorthWest Cable News/KING 5 News (NBC Seattle)

Greg Copeland, NWCN: Good afternoon, everybody. 1pm Pacific Time. New developments today in the battle to protect Puget Sound’s Southern Resident killer whales. A news conference by the National Marine Fisheries Service, now called NOAA Fisheries, just about to get underway. We’re going to bring that to you here in just a moment.

At that time though, we expect them to announce a recommendation that the orcas are listed as “Threatened” under the Endangered Species Act. We’ll have more on exactly what that could mean in just a moment. The listing is not what a lot of environmentalists had hoped for. They wanted a little bit more severe listing of “Endangered,” which would provide a few more sweeping protections. But environmentalists say this particular orca population has declined over the years. There’s only about 85 left. And again, we expect the NOAA announcement in just a moment and we’ll get to that press conference as soon as it begins.

Right now though, we want to talk with Michael Harris. He’s with The Orca Conservancy. He joins us now in the studio. You told me, Michael, that you were a bit surprised by today’s announcement.

Michael Harris, President, Orca Conservancy: A little surprised… but you know, we’re happy also, because we wanted protection. Federal protection under the Endangered Species Act, and that’s what the orcas are going to get. So we’re very happy.

GC: Why is it so important for this particular group of orcas to have that protection?

MH: (sigh) Well you know, I can tell you a story that’s 10,000 years old about the Southern Residents. That’s how long they’ve been here. The short story is that in the last ten years or so, they’ve had a 20% decline. They are on the road to extinction. And they mean so much to this area, beyond just the spiritual… there are also the economic benefits. They’re the totem species out there and they are disappearing.

GC: You and other environmental groups have been fighting for this listing for several years now. Especially after, I think it was the L-Pod that lost quite a few members, and that was what, like three years ago?

MH: Oh yeah. ALL of them have lost members. I think the key thing is that there are a lot of breeding- age males that aren’t in the Southern Resident population anymore. It’s a population that’s going fast, and we’re talking about a population that went from 99 or 98 to about 78 at one point, in just a matter of a few years. That’s a dramatic drop. So dramatic action was necessary. And the best possible way to recover the population is through the Endangered Species Act.

GC: Now, you guys had gone to National Marine Fisheries Service, now called NOAA Fisheries, before with that argument and they pretty much said, “You know, it sounds like a good argument. We’ll maybe classify them as “depleted status.” But really their argument was that in the scheme of all the orca populations around the world, this population really didn’t matter all that much.

MH: Very interesting, because the Endangered Species Act legally requires a federal agency to use the “best available science,” and they were relying –– almost solely when they rejected the original petition –– on a botanist’s taxonomy that orcas are one species, that was written up in 1758. So anybody who knows orcas knows that we’ve learned a lot in three hundred years –– we’ve learned a lot in the last 30 years, and with Springer and Luna we’ve learned a lot in three years about orcas. So it’s not the best available science. And the District Court sided with us on that and sent them back to the drawing board.

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ORCA CONSERVANCY –– THE ESA FILE Page 44

GC: And they are genetically very distinctive orcas, from pod to pod. Is that correct?

MH: Not just genetically, but culturally. I mean, what we’ve learned about orcas is that they are in every ocean of the world, but they’re very, very different depending on where they are. They specialize on different prey, they all speak different languages, and that’s very interesting. This Southern Resident population speaks a different dialect than any other population of orcas. Even Springer’s family, the Northern Resident whales, they speak a different language. It may be a variation of Canadian and American, a few “ehs” here and there, but it is a different language. And that is just one of the things that make them distinct. They’ve been here for 10,000 years, and we want them here for a million more.

GC: I don’t know if I make this correlation very well, but the same could be said for the Native Americans in the 1800s, where everybody thought they were just one group of Native Americans and they were all very separate tribes with very different languages, very different practices, very different cultures.

MH: It’s very interesting that you bring that up, because the Native people here, the Tlingit and Haida and other groups, don’t look at killer whales as whales, they call them the “Killer Whale People.” And they believe that each family lives, these community of families, live underneath the sea in a village. And when they go down to these villages, they zip off their orca costumes and they live like people.

So they recognize them as equal beings, not human beings, but equal beings. So yeah, we’ve come so far. I mean, look at how much we’ve learned with Springer and Luna right now, and that’s just in the last three or four years. We’ve only started studying orcas in the wild for

the 30 years. And before that, and for the first part of that 30 years, all we knew about them is what we knew by staring into a fishbowl, in aquariums. We’ve learned so much. And that’s why the District Court pushed NMFS, NOAA Fisheries, back to reconsider. Like I said, we’re not entirely surprised… we’re a little surprised they went with a “Threatened” and not an “Endangered,” but it is protection and it is a victory for the orcas.

GC: Well there is no doubt that orcas are a Northwest favorite. People living in the Northwest, they really are a symbol of the Northwest, one of them, anyway. Anytime we have a shot, when SkyKING gets out there and gets a picture of them, y’know people look at that and they like to see them out there. There’s a huge industry built around seeing them. But when we talk about their decline, especially over the last dozen or 20 years or so, maybe more, maybe less… when we look at some of the new offspring, is there any hope that we can maintain what we have right now? Or is it a constant slide?

MH: Oh, there’s always hope. And the thing that is most apparent that there’s hope to recover this population is because of that culture, which I mentioned earlier, and the fact that these creatures, particularly resident orca whales, have perfected the art of taking care of each other. Of babysitting. Of picking up the duties of raising of raising the young. I mention all the time, it takes a village to raise a killer whale. That’s a little cliche, but it’s true. I mean, these orcas have perfected art of taking care of each other. And they’re adaptive. Part of the reasons why they do have different dialects in each population is because they’re so adaptive –– they specialize in the most abundant food supply in the areas where they are, and they really do adapt. And they’re survivors. I mean, anytime you see Luna up in Nootka Sound for the last several years, or Springer surviving in a contaminated ferry lane down here without family and surviving, you know that they do have an ability to bounce back.

GC: OK Michael, we’ll check back with you in just a couple minutes. We want to take you right now to Seattle where the news conference at NOAA Fisheries is just about to get underway…

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ORCA CONSERVANCY –– THE ESA FILE Page 45

Orcas Will Be Protected Under ESA

Conservationists Hail Decision to Protect Orcas, Demand Bush Protect Endangered Species Act

Press Release, Dec. 17, 2004

Contact:

BRENT PLATER (Center for Biological Diversity) 415-572-6989 (cell) PATTI GOLDMAN (Earthjustice) 206-343-7340 x 32

The National Marine Fisheries Service (“NMFS”) today proposed to protect Puget Sound’s Southern Resident orcas under the federal Endangered Species Act, the nation’s strongest conservation law. The orcas declined by 20% over five years during the 1990s, and Endangered Species Act protection insures that NMFS will have the world’s best conservation tools at its disposal as work begins to recover the whales from the brink of extinction.

“This is a victory for sound science, the orcas, and the people of the Pacific Northwest,” said Brent Plater, attorney with the Center for Biological Diversity.

Today’s decision comes one year after a U.S. District Court found unlawful the Bush administration’s June 25, 2002 announcement that the orcas are not significant enough to protect. NMFS will now take public comment and put final protections in place for the whales within one year.

“I’m glad NMFS has joined with the State of Washington and Canada in deciding to protect these whales,” said Ralph Munro. “Like many natives of the Pacific Northwest, I have spent my life growing up with these whales, and I know that they will benefit from the protections provided by the Endangered Species Act.”

“The Endangered Species Act allows us to look forward and roll up our sleeves and do what’s needed to insure these orcas survive,” said Patti Goldman, attorney with Earthjustice.

“With only 85 Southern Resident orcas left on the planet, one major oil spill could cause them to go extinct. The habitat protection afforded them by the Endangered Species Act is critical if we are to protect the ecological integrity of our marine environment,” said killer whale biologist and Northwest Director of Ocean Advocates Fred Felleman.

The Endangered Species Act is a federal law providing a safety net for wildlife, plants, and fish that are on the brink of extinction. Endangered Species Act protection will result in many new safeguards for the orcas, including the creation of a binding recovery plan, protection for the whales’ critical habitats, and assurances that all federal projects will protect the whales before the projects can proceed. These safeguards could lead to improvements in oil spill prevention, vessel traffic, toxic pollution, and activities that harm salmon, herring, and other fish eaten by the orcas.

“But just when the orcas are poised to reap the benefits of the Endangered Species Act, the developers and the politicians they give money to are proposing to repeal the law altogether,” said Plater. “We are obligated to insure that the orcas survive for future generations, and therefore we must not allow a repeal of the protections for our whales.”

“It’s time to move away from the battle to obtain protections for the orcas and make the Endangered Species Act work for the orcas,” observed Kathy Fletcher, executive director of People for Puget Sound. “We must work together to prevent further toxic pollution and oil spills in Puget Sound.”

“The Endangered Species Act should not be a partisan issue,” said Michael Harris of Orca Conservancy. “In fact, the ESA began under the Nixon administration, and our state in particular has a rich history of Republicans helping the whales. But now the Act itself has become endangered. Almost everyone wants the best possible protection for these orcas, and that’s what the ESA does. This is a great Christmas gift for the orcas.”

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ORCA CONSERVANCY –– THE ESA FILE Page 46

“This is an important victory for orcas and the biologically rich waters they frequent in San Juan County. We must act to preserve this totemic species for our future generations,” said Stephanie Buffum, executive director of Friends of the San Juans.

Background on Southern Resident Orcas

The Puget Sound resident orcas are an extended family of whales made up of mothers and fathers, brothers and sisters, aunts uncles, cousins, and grandparents. They have stayed together for many years, always loyal to, and supportive of, each other. They use a unique language to communicate with each other. They differ from many of their wilder cousins in that they tend to stick together, close to shore and eat mostly salmon, herring and other fish instead of hunting seals and other whales at sea. These whales are considered among the most intelligent animals in the world, hunting as a team and taking turns babysitting the young whales. Unfortunately they are also one of the most imperiled, which is why scientists and conservationists requested they be protected.

For more information:

http://www.biologicaldiversity.org

http://www.earthjustice.org

Transboundary Puget Sound Orcas Win Threatened Listing

SEATTLE, Washington, December 17, 2004 (ENS) – A group of 84 killer whales that lives on both sides of the Canada-U.S. border will be proposed for a listing as threatened under the U.S. Endangered Species Act, federal fisheries officials said Thursday. These whales, known as the Southern Resident population, spend several months each year in Washington state’’s Puget Sound where they are risk from pollution and vessel traffic.

At a news conference in Seattle, officials of the National Marine Fisheries Service (NOAA Fisheries) said they had received a petition to list the whales under the Endangered Species Act (ESA), but decided in 2002 that listing was not warranted, although they recognized that these whales were “in trouble.” Commonly called killer whales, they are also called orcas, after their scientific name, Orcinus orca.

The listing decision stems from a lawsuit filed in December 2002 by Earthjustice and the Center for Biological Diversity on behalf of 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.

Canadian groups Sierra Legal, the Georgia Strait Alliance and the Western Canada Wilderness Committee joined their American allies in the court challenge.

The conservationists’ lawsuit argued that once the agency determined that this orca population is discrete and in danger of extinction, it had a legal duty to extend Endangered Species Act protection. The suit charged that the agency acted illegally by superimposing its own value judgment and deciding that the Southern Residents are insignificant.

Bob Lohn, head of the NOAA Fisheries northwest regional office, says that because of the way scientists classify all killer whales as a single world-wide species, the Southern Resident population did not meet the criterion of biological ““significance”” under the ESA.

On December 17, 2003, the federal district court in Seattle agreed with the conservationists. The court overturned the NOAA Fisheries decision that found the Southern Resident orca population was not “significant” and so did not qualify for protection under the Endangered Species Act. The court gave NOAA Fisheries 12 months to file a revised decision, which was announced Thursday, just in time to beat the deadline.

““Our recovery efforts are already under way for these killer whales,”” said Lohn . ““We’ve had workshops and consulted with experts on development of a conservation plan, essentially identical to the recovery plan that an ESA listing would require.”” A draft of the conservation plan is expected to be available for public review by February 2005.

The conservation planning resulted from NOAA Fisheries’’ designation of the Southern Residents as “depleted” under the Marine Mammal Protection Act in May 2003.

The whale population peaked at 97 animals in the mid-1990s and then declined to 79 in 2001. It currently stands at 84 orcas. The count does not include two calves born to the group this year. They will be officially included if they show up in the 2005 census.

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ORCA CONSERVANCY –– THE ESA FILE Page 47

In April, the Washington Fish and Wildlife Commission added the Southern Resident orcas to the list of state endangered species.

““This is a close-knit family of highly intelligent whales that have been living cooperatively with each other in Puget Sound for thousands of years,”” said Patti Goldman, attorney with Earthjustice. ““The federal government refused to protect this remarkable family of whales until the people of Puget Sound came together, and, with one voice, demanded it.””

Canadian conservationists were delighted with the listing decision. “Canadians share with our American neighbors the responsibility of protecting these magnificent animals and their habitat from various threats, including toxic pollution, boat noise and harassment and declines in their prey, primarily Chinook salmon,” said Peter Ronald of the Georgia Strait Alliance.

“This ESA designation will provide the strongest available protection for our imperilled orcas, requiring a comprehensive recovery plan to address these threats,” Ronald said. “Both of our countries must do everything possible to reverse the decline of these the most famous whales in the world.”

The Orca Relief Citizens’ Alliance (ORCA) based in Friday Harbor, an island in the San Juan group on the U.S. side of the border, says the three pods spend up to eight months of the year in the San Juans.

“We are encouraged scientists are now aware of the damage that has been done to this specific orca population.” says ORCA founder Mark Anderson. “However, more emphasis needs to placed on protecting these whales on a daily basis.”

Anderson says ORCA commissioned three studies that show the proliferation of whale-watching boats in the area is a major factor in the whales’ decline. On some days observers have counted 140 boats from dawn to dusk. Even though federal whale-watching guidelines urge watch boats to slow down, be respectful and not approach closer than 100 yards, the whales still suffer from the intrusions.

“Everyone who loves the orcas can help these whales survive. They can respect their privacy, restore them the ability to find fish, and stay off boats.” says Dr. Birgit Kriete, executive director of Orca Relief. “Land based whale watching is the only sure way to do this.”

The Puget Sound resident orcas are an extended family of whales made up of mothers and fathers, brothers and sisters, aunts, uncles, cousins, and grandparents, Earthjustice explains. They use a unique language to communicate with each other. They tend to stick together close to shore and eat mostly salmon, herring and other fish instead of hunting seals and other whales at sea.

These whales are among the most intelligent animals in the world, hunting as a team and taking turns babysitting the young whales. Many of these whales have lived together for decades. Several of the females are believed to have been part of the same family group for 90 years.

The proposed ESA listing determination of this population as threatened will be published in the Federal Register next week and will be open for public comment for 90 days. Two public meetings are scheduled to allow interested parties to present their views: in Seattle on Feb. 17 and at Friday Harbor Feb. 28.

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ORCA CONSERVANCY –– THE ESA FILE Page 48

2005

Tuesday, October 4, 2005
How to Save Sound’s Orcas? Here’s One Plan
By LISA STIFFLER
SEATTLE POST-INTELLIGENCER

A proposed coordinated plan to save Puget Sound’s orcas focuses on preventing oil spills and learning more about the harm caused by boat noise, pollution and salmon shortages.

The conservation strategy released Monday by the National Marine Fisheries Service strives to maintain the resident killer-whale population at between 84 and 120. The current population is estimated at 91 orcas, according to the federal agency, but dipped to 79 as recently as four years ago.

Myriad problems stand in the way of a rebound.

“It’s about the habitat; it’s about prey availability; it’s about the whole ecosystem,” said Joe Gaydos, regional director of the SeaDoc Society, a non-profit group focused on marine health. “It’s not a slam- dunk.”

Contamination from industrial chemicals can hamper marine mammals’ ability to reproduce and weaken their immune systems. The amount of salmon, orcas’ preferred food, has declined from historic levels. And boat traffic and noise is suspected of disturbing the orcas, possibly reducing their ability to communicate and hunt for fish.

The orcas reside much of the year in the Sound, particularly around the San Juan Islands.

In 2003, the Fisheries Service deemed the local orcas “depleted” and eligible for increased protection under the Marine Mammal Protection Act, spurring creation of the proposed conservation plan.

Late last year, the agency proposed protecting the orcas under the more stringent Endangered Species Act, after initially denying protection. A determination will be made in December.

If the orcas are provided increased protection, the agency will need to create a recovery plan and could “roll” the conservation plan into it, said Brian Gorman, a Seattle-based spokesman for the Fisheries Service. The proposed plan arranges by priority the greatest threats to the orcas, focusing on oil-spill prevention and response, controlling pollution that comes from storm-water runoff and cleaning contamination and boosting salmon numbers.

Saving orcas will be costly, requiring more than $1.5 million in funding this year alone, according to the conservation plan. The effort also will require help from local and state agencies, non-profit groups, tribes and the public.

ON THE WEB

Read the proposed conservation plan for local orcas online: http://www.nwr.noaa.gov/mmammals/whales/CPPSKW.html.

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ORCA CONSERVANCY –– THE ESA FILE Page 49

Tuesday, November 15, 2005

Government Agrees to List Puget Sound

Orcas as ““Endangered”” Species

By LISA STIFFLER
SEATTLE POST-INTELLIGENCER REPORTER

After years of legal challenges, Puget Sound orcas have been granted federal protection as an endangered species, officials announced this morning.

Citing new information and analysis, NOAA Fisheries Service officials acknowledged that the local killer whales were at risk of extinction and reversed an earlier decision not to give the iconic orcas protection under the Endangered Species Act.

By granting protection ““we have a better chance of keeping this population alive for future generations,”” said Bob Lohn, regional administrator for NOAA Fisheries Service’’s Northwest region, in a prepared statement.

Environmental groups celebrated the decision and its potential benefits for the species. They were pleased that the orcas were deemed endangered, as compared to the lesser designation of threatened, as originally proposed.

““This listing is long overdue but it’’s the right decision,”” said Kathy Fletcher, executive director for People for Puget Sound, an environmental group. ““We know that these whales are in serious trouble, but the good news is this will give a real boost to make sure the actions are taken to make sure that these whales survive.””

Scientists have identified numerous factors putting the local orcas at risk of disappearance. There has been a decline in the amount of salmon – their favorite food source – from historic levels. The killer whales are contaminated with industrial pollutants that can reduce fertility and make them more vulnerable to disease. Some research has indicated that boat traffic can disturb the highly social animals.

The iconic killer whales have been on a population rollercoaster, plummeting in the early 1970s when they were rounded up for aquariums, then building and dropping over the decades, for unknown reasons. Their numbers dropped precipitously from the mid ‘‘90s until 2001 when they reached a recent low of 79 orcas. They currently stand at 89. The agency recently set 84 to 120 orcas as the target population.

The state Department of Fish and Wildlife determined the orcas were endangered under state regulations last year. The Canadians have also recognized the population as vulnerable to extinction.

In 2003, NOAA Fisheries Service proclaimed the orcas ““depleted”” under a less protective regulation than the Endangered Species Act. Environmental groups challenged that decision and a federal judge told the agency to reconsider their decision.

Now the government will need to devise a plan to recover the orcas. The new designation will also require federal agencies to review their actions to make sure they won’’t hurt the orcas.

Officials with NOAA Fisheries Service said they will continue working to boost the Sound’’s salmon stocks and that other agencies will address exposure to toxic chemicals and vessel traffic.

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ORCA CONSERVANCY –– THE ESA FILE Page 50

NOAA Magazine || Commerce Dept.
FISHERIES AGENCY LISTS PUGET SOUND KILLER WHALES AS ENDANGERED

Nov. 15, 2005 –– A group of killer whales that visits Washington state’’s Puget Sound every summer has been listed as an endangered species under the federal Endangered Species Act, NOAA Fisheries Service announced today.

Known officially as Southern Resident killer whales, they were proposed a year ago for ““threatened”” status under the Endangered Species Act.

““Recent information and further analysis leads our agency to conclude that the Southern Resident killer whale population is at risk of extinction, and should be listed as endangered,”” said Bob Lohn, regional administrator for NOAA Fisheries Service’’s Northwest region. ““By giving it protection under the ESA, we have a better chance of keeping this population alive for future generations.””

A species listed as threatened is at risk of becoming endangered; an endangered species is one at risk of extinction.

The Southern Resident killer whale population experienced a 20 percent decline in the 1990s, raising concerns about its future. Many members of the group were captured during the 1970s for commercial display aquariums. (Click NOAA image for larger view the group of Southern Resident killer whales resting near the San Juan Islands, Wash. Click here for high resolution version. Please credit ““NOAA.””)

The group continued to be put at risk from vessel traffic, toxic chemicals and limits on availability of food, especially salmon. It has only a small number of sexually mature males. Because the population historically has been small, it is susceptible to catastrophic risks, such as disease or oil spills.

Southern Resident killer whales already are protected, as are all marine mammals, by a 1972 law, the Marine Mammal Protection Act, under which the whales were officially listed as a depleted stock more than two years ago. A proposed conservation plan required by the depleted designation was published last month laying out the steps needed to restore the population to full health.

The new listing under the Endangered Species Act will require federal agencies to make sure their actions are not likely to harm the whales. NOAA Fisheries Service said its ongoing efforts to restore salmon stocks in Puget Sound should benefit the whales. Other federal agencies’’ efforts are likely to focus on toxic chemicals and vessel traffic.

The population peaked at 97 animals in the 1990s and then declined to 79 in 2001. It currently stands at 89 whales, including a solitary male that has taken up residence in a small inlet in British Columbia.

Although researchers have collected more than 30 years worth of information on the Southern Residents, agency biologists said there are major gaps in knowledge, such as where the animals go when they’’re not in local waters. Because killer whales may live up to 90 years in the wild, existing data doesn’’t cover even one full life span for older animals. Research by NOAA Fisheries Service scientists to fill these gaps will continue, the agency said. (Click NOAA image for larger view of the NOAA researcher collecting information on killer whale behavior in Puget Sound. Click here for high resolution version. Please credit ““NOAA.””)

NOAA Fisheries Service is dedicated to protecting and preserving our nation’’s living marine resources and their habitats through scientific research, management and enforcement.

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ORCA CONSERVANCY –– THE ESA FILE Page 51

NOAA Fisheries Service provides effective stewardship of these resources for the benefit of the nation, supporting coastal communities that depend upon them, and helping to provide safe and healthy seafood to consumers and recreational opportunities for the American public.

NOAA, an agency of the U.S. Department of Commerce, is dedicated to enhancing economic security and national safety through the prediction and research of weather and climate- related events and providing environmental stewardship of the nation’s coastal and marine resources.

EarthJustice Press Release

Puget Sound Orcas Finally Protected Under the Endangered Species Act

Whales protected by court order over resistance from the Bush administration
November 16, 2005

Seattle, WA –– The National Marine Fisheries Service announced that Puget Sound’s Southern Resident orcas, or killer whales, will be protected under the federal Endangered Species Act. The orcas have been listed as endangered, meaning they are in danger of going extinct. The orcas declined by 20 percent over five years during the 1990s, and Endangered Species Act protection insures that NMFS will have the world’s best conservation tools at its disposal as work begins to recover the whales from the brink of extinction.

The decision, announced Tuesday, comes two years after a U.S. district court found the Bush administration violated the law on June 25, 2002 when it announced that the orcas are not significant enough to protect.

“This is a close-knit family of highly intelligent whales that have been living cooperatively with each other in Puget Sound for thousands of years,” said Patti Goldman, attorney with Earthjustice. “This will give us the will and the tools to take the actions that will allow them to survive.”

“With only 89 Southern Resident orcas left on the planet, one major oil spill could cause them to go extinct. The habitat protection afforded them by the Endangered Species Act is critical if we are to protect the ecological integrity of our marine environment,” said killer whale biologist and Northwest Director of Ocean Advocates Fred Felleman.

The Endangered Species Act is a federal law providing a safety net for wildlife, plants, and fish on the brink of extinction. Endangered Species Act protection will result in many new safeguards for the orcas, including the creation of a binding recovery plan, protection for the whales’ critical habitat, and assurances that all federal projects will protect the whales before the projects can proceed. These safeguards could lead to improvements in oil spill prevention, vessel traffic control, toxic pollution, and activities that harm salmon, herring, and other fish eaten by the orcas.

“Southern Resident killer whales have been integral to the ecological, social, and economic well being of the Pacific Northwest for thousands of years,” said attorney Brent Plater of the Center for Biological Diversity. “Providing the Southern Residents the protections of the Endangered Species Act ensures that we protect these whales for future generations.”

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ORCA CONSERVANCY –– THE ESA FILE Page 52

“This listing is long overdue but it’s the right decision,” said Kathy Fletcher, executive director for People for Puget Sound, an environmental group. “We know that these whales are in serious trouble, but the good news is this will give a real boost to make sure the actions are taken to make sure that these whales survive.”

Background on Southern Resident Orcas

The Puget Sound resident orcas are an extended family of whales that live together in matriarchal family units. They use a unique language to communicate with each other. They differ from transient orcas in that they tend to stick close to shore and eat mostly salmon, herring, and other fish instead of hunting seals and other whales at sea. These whales are among the most intelligent animals in the world. Unfortunately they are also one of the most imperiled, which is why scientists and conservationists requested they be protected.

The listing of the orcas under the Endangered Species Act make it only the fortieth species to be added to the list of federally protected species since the Bush administration took office. Protections were extended to all 40 species only after federal courts ordered the government to act. In spite of its steadfast opposition to protecting the orcas, the regional head of the National Marine Fisheries Service, Bob Lohn, today changed his tune and finally admitted, “By giving it protection under the ESA, we have a better chance of keeping this population alive for future generations.”

*******

Regional Contacts:

Ralph Munro (360) 791-XXXX Mike Sato (People for Puget Sound) (360) 336-XXXX Fred Felleman (Ocean Advocates) (206) 595-XXXX Stephanie Buffum (Friends of the San Juans) (360) 378-XXXX

Contact: Patti Goldman (Earthjustice) 206-343-7340 x 32 Brent Plater (Center for Biological Diversity) 415-572-6989 (cell)

Wednesday, November 16, 2005

Government Gives Orcas a Shield
Puget Sound’s ‘Local’ Whales Receive ‘Endangered’ Status
By LISA STIFFLER
SEATTLE POST-INTELLIGENCER REPORTER

In a move that surprised and pleased environmentalists and whale enthusiasts, the federal government declared Puget Sound orcas “endangered” Tuesday, triggering the most protective actions and requirements legally available.

The decision comes at a time when laws safeguarding orcas and other vanishing creatures have come under attack by some federal lawmakers. Tuesday’s announcement underscores their importance, environmentalists said.

“This listing is long overdue, but it’s the right decision and we’re really happy,” said Kathy Fletcher, executive director of People for Puget Sound, an environmental group.

“We know that these whales are in serious trouble,” she said. “But the good news is this will give a real boost to make sure the actions are taken to make sure that these whales survive.”

The Endangered Species Act requires the government to devise a recovery plan for the orcas and to identify and safeguard “critical habitat” necessary for their survival. This could trigger a

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ORCA CONSERVANCY –– THE ESA FILE Page 53

renewed push for the cleanup of contaminated hot spots in the Sound, environmentalists said. They also speculated that restrictions could be tightened on whale-watching boats.

Under the act, federal agencies also must review their actions to make sure they won’t hurt the orcas. Concerns have been raised by the potential harm caused by Navy sonar tests.

And whale lovers are hopeful that more money will flow toward research and recovery. Sen. Maria Cantwell secured $1.3 million in last year’s budget for studying the whales.

The effort to secure Endangered Species Act protection for the local orca population was launched more than four years ago. Federal officials rejected protection under the act three years ago, but a legal challenge forced them to reconsider. In December the National Marine Fisheries Service announced it was seeking “threatened” status for the orcas.

New research and analysis highlighting the precariousness of their survival led to the stronger endangered designation, said officials with the fisheries service, which is responsible for protecting orcas and other marine life.

By declaring them endangered, “we have a better chance of keeping this population alive for future generations,” said Bob Lohn, regional administrator for the fisheries service, in a statement.

The region’s killer whales have been on a population rollercoaster, plummeting by the early 1970s when they were still being rounded up for aquariums, then building and dropping over the decades, for unknown reasons.

Their numbers dropped precipitously from the mid-’90s until 2001, when they reached a recent low of 79. They currently stand at 90, according to the Center for Whale Research, a Friday Harbor-based scientific group.

The federal agency recently set 84 to 120 orcas as the target population.

“Because the population has such a small number of sexually active males in it, a catastrophic event –– an oil spill, a chemical spill –– could really make a huge difference in the population,” said Brian Gorman, spokesman for the fisheries service.

“The fact that the population is small always worries a biologist,” he said.

Scientists have identified many other factors that put the local orcas at risk of disappearance. There has been a decline in the amount of salmon –– their favorite food source –– from historic levels. The killer whales are contaminated with industrial pollutants that can reduce fertility and make them more vulnerable to disease. Research has indicated that boat traffic and other manmade noise can disturb the highly social animals.

In 2003, the fisheries service proclaimed the orcas “depleted” under the Marine Mammal Protection Act, which has less power to save the whales. Officials argued that the local population was not unique and thus could not qualify as endangered.

But the weaker designation did result in a proposed conservation plan for the orcas, which was released last month. This will be modified to become the requisite recovery plan, Gorman said.

Tuesday’s announcement also could reinvigorate calls to reunite an orca called Luna that’s related to the local population but has spent the past few years alone on the northwest coast of Vancouver Island. An effort to capture and reunite the young male orca with its family was derailed in 2004. A local tribe opposed aspects of the effort.

And the announcement has inspired an even more vocal defense of the Endangered Species Act and an act by the late Sen. Warren Magnuson that limits the flow of crude oil to Puget Sound refineries.

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ORCA CONSERVANCY –– THE ESA FILE Page 54

Members of the U.S. House and Senate have proposed laws revamping and softening protections for wild creatures and places, though the fate of the legislation is uncertain.

But Tuesday’s news elicited cautious optimism in even the more skeptical environmental activists.

“If we don’t do something completely stupid like gut the Magnuson Act or release some toxic load, it looks like nature has given us this second chance,” said Fred Felleman, northwest director of Ocean Advocates, an environmental group.

“Things are looking up,” he said. “This is a good day.”

Local Orcas Listed as Endangered
11/16/05
PRESS RELEASE:

The Southern Resident killer whales have been listed as an endangered species under the federal Endangered Species Act. The National Oceanic and Atmospheric Administration’’s National Marine Fisheries Service (NOAA Fisheries Service) announced the listing Tuesday, Nov. 15, 2005. The listing will require federal agencies to make sure their actions are not likely to harm the whales. NOAA Fisheries Service said its ongoing efforts to restore salmon stocks in Puget Sound should benefit the whales. Other federal agencies’’ efforts are likely to focus on toxic chemicals and vessel traffic.

A year ago, the whales were proposed for “threatened” status under the ESA. A species listed as threatened is at risk of becoming endangered; an endangered species is one at risk of extinction.

“Recent information and further analysis leads our agency to conclude that the Southern Resident killer whale population is at risk of extinction, and should be listed as endangered, ” said Bob Lohn, regional administrator for NOAA Fisheries Service’’s Northwest region. “By giving it protection under the ESA, we have a better chance of keeping this population alive for future generations. “

The Southern Resident killer whale population experienced a 20 percent decline in the 1990s, raising concerns about its future. Many members of the group were captured during the 1970s for commercial display aquariums.

The group continued to be put at risk from vessel traffic, toxic chemicals and limits on availability of food, especially salmon. It has only a small number of sexually mature males. Because the population historically has been small, it is susceptible to catastrophic risks, such as disease or oil spills.

Southern Resident killer whales already are protected, as are all marine mammals, by a 1972 law, the Marine Mammal Protection Act, under which the whales were officially listed as a depleted stock more than two years ago. A proposed conservation plan required by the depleted designation was published last month laying out the steps needed to restore the population to full health.

The population peaked at 97 animals in the 1990s and then declined to 79 in 2001. It currently stands at 89 whales, including a solitary male that has taken up residence in a small inlet in British Columbia.

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ORCA CONSERVANCY –– THE ESA FILE Page 55

Although researchers have collected more than 30 years’’ worth of information on the Southern Residents, agency biologists said there are major gaps in knowledge, such as where the animals go when they’’re not in local waters. Because killer whales may live up to 90 years in the wild, existing data doesn’’t cover even one full life span for older animals. Research by NOAA Fisheries Service scientists to fill these gaps will continue, the agency said.

NOAA Fisheries Service is dedicated to protecting and preserving the nation’’s living marine resources and their habitats through scientific research, management and enforcement. NOAA Fisheries Service provides effective stewardship of these resources for the benefit of the nation, supporting coastal communities that depend upon them, and helping to provide safe and healthy seafood to consumers and recreational opportunities for the American public.

The National Oceanic and Atmospheric Administration, an agency of the U.S. Commerce Department, is dedicated to enhancing economic security and national safety through the prediction and research of weather and climate-related events and providing environmental stewardship of the nation’’s coastal and marine resources. Through the emerging Global Earth Observation System of Systems (GEOSS), NOAA is working with its federal partners and nearly 60 countries to develop a global monitoring network that is as integrated as the planet it observes.

Killer Whales Will Be Protected As Endangered

11/16/05

The National Marine Fisheries Service (NMFS) today proposed to protect Puget Sound’’s Southern Resident killer whales under the federal Endangered Species Act, the nation’’s strongest conservation law. The orcas declined by 20% over five years during the 1990s, and Endangered Species Act protection ensures that NMFS will have the world’’s best conservation tools at its disposal as work begins to recover the whales from the brink of extinction.

“This is a victory for sound science, the killer whales, and the people of the Pacific Northwest,” said Brent Plater, attorney with the Center for Biological Diversity. “However, if Congress continues on its path to gut the Endangered Species Act, the best tools available to protect the killer whale will be ripped right out of the hands of the scientists and resource managers in the Pacific Northwest.”

Today’’s decision comes nearly two years after a U.S. District Court found unlawful the Bush administration’’s June 25, 2002 announcement that the killer whales are not significant enough to protect. The final rule differs from the proposed rule announced nearly one year ago by listing the Southern Residents as “endangered” rather than “threatened.” An “endangered” listing provides stronger, more immediate protections to the killer whales than a “threatened” listing.

“Southern Resident killer whales have been integral to the ecological, social, and economic well being of the Pacific Northwest for nearly all of human history,” said Plater. “Providing the Southern Residents the protections of the Endangered Species Act ensures that we can give back to these whales and insure their survival.”

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ORCA CONSERVANCY –– THE ESA FILE Page 56

11/22/05
“WHALE WATCH”

FOX REPORT

With Shephard Smith

Shepard Smith tease #1: The killer whale population has grown over the past few years, so now why are the feds saying the whales are an Endangered Species? Worried about the whales… We’ll report, you decide…

Shepard Smith tease #2: A new plan to save the whales by keeping people farther away. The orcas off Washington State’s coast are an Endangered Species. Now environmentalists want to protect them by keeping whalewatchers half a mile away. Boat owners say that would kill their business for no reason.

Janis Smith, Victoria Clipper: It hasn’t been proven that there is a huge impact from the whalewatching on the whales and their environment.

Michael Harris, Orca Conservancy: These orcas have been here for 10,000 years, you know, and in just the last 30, 40 or 50 years we’ve done our best to wipe them out. And I think in a short amount of time we can start bringing them back.

Shepard Smith: Well, there the two sides are. Just minutes from now, our own Dan Springer will report so you can decide…

(break)

Shepard Smith tease #3: And the mighty orca is on the Endangered Species list. It’s there because of human behavior. But we’re not talking about hunting or ocean dumping, oh no –– let’s just say… well, you’re a little more relaxed and may not be happy about it. More news coming up…

(break)

Shepard Smith, on set: Save the whales by keeping away from them. That’s one of the suggestions to protect the Endangered orcas. But would the restrictions be too tough on people? Here’s Dan Springer…

(package)

Sound-Up, Whalewatchers: “Oooh ahh.”

Dan Springer VO: The oohs and ahhs of whalewatching tourists off the Washington State coast could soon become extinct, as the government looks at ways to save its newest Endangered Species, the Puget Sound orca. Researchers say boats stress the killer whales out.

Dave Bain, Whale Researcher: There are two effects that we’re worried about –– one is they’re expending more energy than they normally would, and the other is they may be acquiring less energy because it’s harder to find food because of this noise.

Dan Springer, OC in Seattle: Each year, a quarter-million people go whalewatching, hoping to get a glimpse of killer whales. The industry is already operating under strict self-imposed guidelines that keep their boats a football field away from the mammals. But some environmentalists are calling for a half- mile buffer, which would all but kill the multi-million-dollar industry.

Janis Smith, Victoria Clipper: It hasn’t been proven that there is a huge impact from the whalewatching on the whales and their environment.

Dan Springer VO: The local killer whale population did decrease during the 1990s, hitting a low of 79 in 2001. Since then, the numbers have inched up. Changing the orcas designation from “Threatened” to “Endangered” gives conservation groups a lot more clout in court, and opens the door for lawsuits against tour operators, Navy training programs and nearshore development.

Michael Harris, Orca Conservancy: The rest of the country may think that every day we look out our window and we see orcas, and that’s not the case. But every day we look out, we know the orcas are out there, and that means a lot to us.

Russ Brooks, Pacific Legal Foundation: It’s a case where the environmental policy is being set not by The White House but by those in a tree house. They want to stop all the development in the Puget Sound area. This is just another poster species to do that.

Dan Springer VO: Environmentalists say these new protections give the orcas a real chance to thrive. But critics warn the biggest impact will be on another species, us. Dan Springer, FOX News.

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ORCA CONSERVANCY –– THE ESA FILE Page 57

2006

Building, Farm Groups Challenge Orca Endangered Species Listing
March 22, 2006 at 12:37 PM PDT
By KOMO Staff & News Services

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 killer whales as an endangered species.

The listing, issued by the National Marine Fisheries Service last November, “will result in needless water and land-use restrictions on Washington farms, especially those located near rivers inhabited by salmon,” the orcas’ 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 – a scenario environmentalists described as far-fetched, though deliberately harassing a protected species can carry a year in jail.

The groups’ lawyers, Russell C. Brooks and Andrew C. 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 inland waters from late spring to early fall every year are a distinct population of a subspecies, the Northern Pacific resident orcas, which 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 scoffed and 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-orca; they just want the fisheries service to follow the letter of the law.

“There are some folks that are just going to dismiss them as killer whale haters,” Brooks said. “But this is a very important legal issue. Just because it involves a sympathetic species doesn’t mean the legal question should be ignored.”

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ORCA CONSERVANCY –– THE ESA FILE Page 58

Puget Sound’s Southern Resident orcas – which consist of the J, K and L pods, or families – 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 three pods number 89 whales – down from historical levels of 140 or more in the last century, but up from a low of 79 in 2002. Their numbers have gone through three periods of decline since the late 1960s and early ’70s, when dozens were captured for aquariums, with each decline followed by a slight rebound.

Pollution and a decline in prey are believed to be their biggest threats, though stress from whale-watch boats and underwater sonar tests by the Navy are also concerns.

The National Marine Fisheries Service initially refused to list the whales under the Endangered Species Act, finding that 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.

The fisheries service eventually agreed that the Puget Sound orcas needed protection, leading to the listing in November. A draft recovery plan is expected to be released for

Are Killer Whales Endangered?

Associated Press
Thursday, March 23, 2006

SEATTLE, Washington (AP) –– Farming and industry groups in Washington State sued to remove Puget Sound’s several dozen killer whales from the endangered species list, saying the designation will result in unnecessary water and land-use restrictions.

The listing, issued by the National Marine Fisheries Service in November, will result in “needless” restrictions on the state’s farms, especially those near rivers inhabited by salmon — the orcas’ prime food source –– the groups wrote in the federal lawsuit filed Monday.

“Farmers could face fines and even imprisonment for the most basic farm practices should such actions allegedly disturb salmon,” the lawsuit reads.

Environmentalists described that scenario as far-fetched, although deliberately harassing a protected species does carry a year in jail.

Orcas –– the type of black and white whale featured in the film “Free Willy” –– can grow to 30 feet long and weigh 10 tons. Three orca pods, or families, live in western Washington’s inland waters from late spring to early fall. They total 89 whales, up from a low of 79 in 2002 but down from historical levels of 140 or more.

Lawyers for the Farm Bureau and the Building Industry Association argue that those orcas do not meet the technical requirements for protection under the Endangered Species Act because they are not a “distinct population” of the species.

While the entire subspecies known as “Northern Pacific resident orcas” could be listed as endangered, they argue, the Puget Sound pods alone may not. The subspecies also includes orcas off Alaska and Russia.

Environmentalists scoffed at the argument.

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ORCA CONSERVANCY –– THE ESA FILE Page 59

Patti Goldman, an attorney for the environmental group Earthjustice, said that is like saying the Puget Sound orcas gave up their membership in the species when they were named part of the subspecies. She also said the Endangered Species Act defines “species” as “any subspecies of fish or wildlife or plants.”

Russell C. Brooks of Pacific Legal Foundation, representing the farmers and builders, said they are not against orcas, they just want the fisheries service to follow the letter of the law.

Pollution and a decline in prey are believed to be the whales’ biggest threats, although stress from whale-watch boats and underwater sonar tests by the Navy are also concerns.

May 9, 2006
After Decades of Fear and Hostility, Are We Loving Orcas to Death?
By PEGGY ANDERSEN
The Associated Press

SEATTLE – Fifty years ago, fishermen shot at Northwest killer whales they felt were eating too many salmon. Now, thousands of visitors pay an average of $75 a trip to see the orcas in their summer habitat around the San Juan Islands.

The love sightseers feel for the orcas, however, may be getting overwhelming for the bus- sized mammals. As many as 100 tour boats can be on the water at once, all jockeying for a good look at the animals, and researchers are concerned that the in-your-face attention is harassing orcas and keeping them from their prey.

“No doubt the perception of these whales has changed from something to be feared and destroyed to something to be hugged,” said orca expert Ken Balcomb of the Center for Whale Research in the San Juan Islands. “And now along comes too much hugging.”

Orcas, actually a kind of dolphin found in all the world’s oceans, are prime examples of what researchers call “charismatic megafauna,” big critters with a passionate human following. But the species’ San Juan population has paid a price for some forms of that adoration.

Namu, a killer whale caught accidentally in a fishing net in 1965, became a Seattle waterfront sensation until his death a year later, helping create a demand for orcas in the booming new marine-aquarium trade. Dozens were caught and shipped, but just two survive Lolita at the Miami Seaquarium, and Corky at Sea World in San Diego.

Northwest captures were stopped in the 1970s, though the resident population which now numbers 87 is still struggling to recover to pre-capture levels, believed to have been about 120. Resident orcas that chase salmon in waters off Washington and British Columbia have been declared endangered by U.S. and Canadian authorities.

Researchers said the orcas are suffering from declining salmon runs, pollution and general vessel traffic, but also from the effects of the thriving whale-watching industry. As many as half a million visitors a year take tours offered by 30 companies or watch orcas from recreational craft.

“Anyone who’s been in a crowded bar at night trying to talk to the person next to you should understand what that’s like,” said Mark Pakenham, who has worked with Canada’s federally funded monitoring program.

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ORCA CONSERVANCY –– THE ESA FILE Page 60

At a recent U.S.-Canada symposium on how to help the population, University of Washington researcher David Bain reported declines in foraging of more than 30 percent when boats were present. The closer the boats came to whales, the steeper the decline.

Federal law requires vessels to cut their engines at 400 feet and to stay at least 100 yards away to avoid harassing the whales or hindering their ability to find prey. Both the U.S. and Canada have monitors on the water during the peak season.

But Canada has prosecuted just two whale-watch boat operators, fining each $6,500 for operating their vessels while surrounded by orcas, and the U.S. has yet to penalize anyone.

The National Marine Fisheries Service is investigating what would be the first whale-watching violation, for an incident that the skipper involved reported.

Last summer, a whale bumped a boat skippered by Brett Soberg of Victoria-based Eagle Wing Eco Tours. The boat wasn’t moving, and Soberg quickly alerted authorities.

The whales were playing and changing direction, said Balcomb, who witnessed the encounter.

“You couldn’t have predicted it,” he said. But that doesn’t mean there should be no consequences, he added.

Soberg had been chided earlier by the Canadians for repeatedly parking in the path of the whales. It’s a common violation, as vessels jockey for the best vantage point.

“Last year we recorded about 800 incidents in the summer… and about 550 were for parking in the path of whales,” Pakenham said.

Talks on changes in whale-watching guidelines the government’s and the industry’s are ongoing.

Balcomb suggests the industry vessels travel as a group. “To people on shore and on other boats, it looks like a free-for-all out there,” he said.

On the Net:
National Marine Fisheries Service: http://www.nmfs.noaa.gov Whale Watch Operators Association Northwest: http://www.nwwhalewatchers.org
Monday, June 12, 2006
Huge Stretch of Sound Protected for Orcas?

By Lynda V. Mapes and Jonathan Martin Seattle Times staff reporters

From the orcas’ summer playground to their winter range, a vast stretch of critical Puget Sound habitat may soon be placed under new federal protection.

The National Marine Fisheries Service proposed Friday to protect one of the region’s signature species with new restrictions on about 2,500 square miles of inland waters, including the Strait of Juan de Fuca, Haro Strait and the San Juan Islands.

The announcement immediately triggered controversy. Developers said they dread more regulation. Some environmentalists applauded the proposal but said it did not go far enough.

After a series of public hearings, the regulations could be final as soon as November and affect any action proposed within the designated habitat that needs a federal permit or is federally funded.

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ORCA CONSERVANCY –– THE ESA FILE Page 61

For instance, if a county or state government wants to build a dock or bridge paid for with federal funds, that project would need to be reviewed for its effect on orca habitat.

So could a county sewer plant, if it required a federal permit to discharge into a waterway, or a private development such as a gravel quarry, if it needed a federal permit.

Even government agencies such as the Army Corps of Engineers would have to consult with the fisheries service before taking any action that could harm the whale’s habitat.

Enough protection?

The killer whales were classified as endangered last year. The so-called Southern Resident whale population peaked in the 1990s at 97 animals, then declined to 79 in 2001. Today, there are about 90.

The proposed designation would protect miles of inland waters not already covered by the Endangered Species Act listing of Puget Sound chinook. That habitat designation protects only near-shore areas, to a depth of 90 feet.

The killer whale proposal covers almost the entire Sound —— from the deepest waters, all the way to the shoreline to a depth of 20 feet.

Some environmentalists, however, said that is not enough. It leaves out the very shallow, near-shore waters, essential for salmon —— one of the orca’s favorite foods.

The proposed boundary “appears to be limited to the areas where orcas actually go, and does not appear to include critical habitat for what the orcas eat,” said Kathy Fletcher, executive director of People for Puget Sound. “This is important because Puget Sound is an ecosystem the orcas need, they don’t just need the water to swim in.

“But I am encouraged they really are looking at the large areas the whales occupy, as opposed to just little spots where they tend to concentrate.”

Military areas were excluded, however. And so was Hood Canal, because the whales, according to the agency, don’t go there.

Effects on development

Those with development interests were astounded by the scope of the proposal.

“We are not measuring in acres, we’re measuring in square miles,” said Russell Brooks, attorney with the Pacific Legal Foundation, which has filed suit to overturn the orca’s endangered listing.

He fears new costs and delays for development. “You are looking at more time and expense. A lot of times, developers will say ‘forget it’ and go home.”

Tim Harris, general counsel for the Building Industry Association of Washington, which has joined the suit against the ESA designation, called the proposed habitat designation “sweeping.”

“I don’t think this is really about the orcas, it is about preventing development and any uses along the shoreline of the entire Puget Sound.”

But Fletcher, of People for Puget Sound, sees direct economic benefit in protecting the orcas’ home: “The economic value of saving salmon and orcas is huge. Anyone’s claim that this is an economic negative is absolutely ignoring the value of our wildlife and environment to the quality of life in our state.”

Other impacts

The Coast Guard, which oversees Puget Sound shipping lines, will be tracking potential impacts of the proposal on commercial traffic, said Lt. Commander Jason Tama.

With about 200,000 large-vessel trips each year in the Sound, changes to well-established marine highways and vessel-operation regulations to protect the orca could have other environmental or safety impacts, he said.

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“It’s something that would have to be carefully considered,” said Tama, head of the Coast Guard’s waterways-management division in Seattle.

Orcas are actually the largest form of dolphin. The Southern Residents spend much of their time in the Pacific Ocean. They travel back and forth via the Strait of Juan de Fuca, and in summer months cruise the waters of Georgia Strait, from the Canadian border south all the way to Deception Pass. In fall and winter, they rove the inner waters of Puget Sound, south of the pass, covering some 859 miles.

They can be quite long-lived, with life spans like our own. The oldest of the Puget Sound orcas is a female in her 90s named “Granny,” Fletcher said. Males are generally larger than females and can reach almost 30 feet and weigh more than 15,000 pounds.

Biologists are encouraged by the recent uptick in population but remain concerned about water quality, the effects of boat traffic and the animals’ food supply —— especially salmon.

Orca experts on Friday said the whale-watching industry is not likely to be affected by the designation. Anna Hall, head of Whale Watch Operators Association Northwest, said her group has no fear of a negative economic impact.

As big as the proposed protected area seems now, it may need to be bigger, said David Bain, a University of Washington researcher who has spent years studying the orca. The protected animals are believed to migrate north into Canadian waters and as far south as California’s Monterey Bay. Better research on the orcas’ travels will show the need to protect that entire habitat, he said.

“The limits of the designation may simply reflect the limits of our knowledge.”

June 12, 2006
Feds May Reserve Most of Puget Sound for Killer Whales
Seattle Times Staff

SEATTLE —— Federal officials have proposed designating nearly all of northwest Washington’s inland waters —— about 2,500 square miles —— as critical habitat for killer whales, the first major development since the creatures were listed as endangered last year.

Following a public comment period, the habitat designation could become official by the end of the year, the National Marine Fisheries Service said Friday in a news release.

It would mean that within the outlined area, no federal activities can take place unless officials demonstrate that the habitat will not be harmed.

The proposed area encompasses parts of Haro Strait, the waters around the San Juan Islands, the Strait of Juan de Fuca and all of Puget Sound except for Hood Canal, because there is little evidence the orcas swim there. Eighteen military sites covering nearly 112 square miles of habitat are exempt.

“It looks like we’re getting the tools in place to provide orcas with the protection that hopefully will get them to the point of recovery,” said Patti Goldman, an attorney with the environmental law firm Earthjustice.

But Kathy Fletcher, executive director of People for Puget Sound, and Fred Felleman, of Orca Conservancy and Ocean Advocates, questioned whether the proposed area is enough: Besides military areas, it excludes any waters less than 20 feet deep.

They said shorelines are crucial to the health of the ecosystem overall, and in particular to salmon —— the primary food source of Puget Sound’s orcas. Herring, which the salmon eat, live in shallow subtidal zones.

“This is a major gap,” Fletcher said. “When something is proposed that might screw up the habitat of Puget Sound” —— a dock for a construction project, for instance —— “it’s on the shoreline. The habitat of the salmon is as important as the waters where the orcas actually swim themselves.”

Felleman said that overall, he was pleased with the proposal, but that he would like to see the waters off the state’s western coast designated as critical habitat as well: That’s where the orcas spend at least some of the winter, he said, and it’s also where they could be troubled by Navy activities.

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Fisheries Service spokesman Brian Gorman invited Fletcher and Felleman to raise such points during the public comment period.

“People are encouraged to point out where they think we need a little more work,” he said.

The federal agency’s 44-page report on the proposal notes that the designation of critical habitat could lead to revised limits for commercial salmon fishermen and new standards for sewer and stormwater discharge.

The “Southern Resident” population of orcas in Puget Sound —— believed to have numbered 140 or more in the last century —— has suffered several major periods of decline since the 1960s, when the whales were caught for aquariums.

The population rebounded to 97 in the 1990s, then declined to 79 in 2001. Currently, there are 90 whales, with several calves recently born.

Pollution and a decline in prey are believed to be their biggest threats, though stress from whale-watch boats and underwater sonar tests by the Navy are also concerns.

The National Marine Fisheries Service initially refused to list the whales under the Endangered Species Act, finding that 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.

The fisheries service eventually agreed that the Puget Sound orcas needed protection, leading to the listing in November. Farm and property rights groups have challenged the listing in federal court in Seattle, saying it could lead to “needless water and land-use restrictions on Washington farms, especially those located near rivers inhabited by salmon,” the orcas’ prime food source.

The fisheries service also said it expects to release its draft orca recovery plan for public comment within the next month.

Orca Conservancy Board Member Denise Wilk of Orcas Island Eclipse Charters with longtime Orca Conservancy Board Member and ESA Petitioner Ralph Munro, on the Orcas Express, off San Juan Island.

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On Puget Sound, It’s Orca vs. Inc.

Industry Opposes Federal Critical- Habitat Designation

By Blaine Harden

Washington Post Staff Writer

Wednesday, July 26, 2006

ON PUGET SOUND, Wash. –– For creatures that eat 400 pounds of salmon a day, killer whales are startlingly human. They live as long as you do. They never escape the controlling influence of their moms. They love to show off.

Consider J-22, also known as Oreo. She is a 21-year-old killer whale –– or orca –– with serious family obligations. She has three offspring to watch over and rarely ventures far from J-pod, her extended family, which is led by a vigorous 92-year-old matriarch named Granny. On a recent day, Oreo slipped briefly away from Granny and approached a whale-watching boat. As cameras clicked, Oreo launched herself high out of the water, jumping for the sheer, showoffy heck of it.

She is about 25 feet long and weighs more than 8,000 pounds, so it was an energy-expensive heave. Resident killer whales in Puget Sound routinely do this sort of thing to the delight of human beings.

In return, over recent decades, humans have destroyed about 90 percent of their salmon supply, contaminated the sound with toxic chemicals and, in the 1960s and ’70s, kidnapped scores of young killer whales to perform in aquatic shows.

Now, federal amends are being made. Southern Resident killer whales of Puget Sound –– there are just 89 of them in three pods, all numbered and named, with birth dates and family trees posted on the Internet –– were listed late last year as endangered species.

In June, the National Marine Fisheries Service proposed protecting most of Puget Sound as critical habitat for the whales, which are actually the world’s largest dolphins. The proposal, encompassing 2,564 square miles at the heart one of the nation’s busiest commercial waterways, has alarmed local industry.

Building and farm groups have sued to stop the proposal, due to become law by November, arguing that it would require complicated and costly review of future industrial development, home construction, sewer treatment, road construction and water use around the sound, an inland waterway surrounding by nearly 4 million people.

Russell Brooks, managing attorney for the Pacific Legal Foundation, which is leading the legal challenge, warns that the listing of killer whales as endangered could create unforeseen economic fallout in the Pacific Northwest comparable to what followed the listing of northern spotted owls in the early 1990s.

Then, 80 percent of federal forests from Washington to Northern California were closed to logging and an estimated 30,000 timber industry jobs disappeared. The spotted owl, by the way, is still in severe decline, and scientists do not know how to save it.

“This is not really about killer whales at all,” said Brooks, whose group specializes in trying to rein in the economic impact of the Endangered Species Act. “This is a tool used by those who wish to impose their own version of non-land use on Puget Sound.”

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But for champions of the orcas –– and their numbers are growing, with an estimated 150,000 people paying about $70 each to go out every year in boats to watch and wonder at the whales in Puget Sound –– federal protection has been welcomed as an overdue gift.

“We are very, very happy about this,” said Ralph Munro, a former Washington secretary of state and a longtime activist who, like many ardent orca admirers, says he’s had “mystical” encounters with the creatures.

“I know it sounds kooky,” Munro, 63, said during a break at a recent public hearing on the plan to make Puget Sound a protected zone, “but I can show you 10 people in this room who have had mystical experiences with orcas.”

(It is a linguistic tic of the debate over these marine mammals that supporters of the endangered species listing tend to call them orcas, while opponents of the listing tend to call them killer whales.) Munro’s special encounter, he said, occurred seven year ago after the death of Ralph, an orca that was named for Munro to honor his efforts to halt the live capture of the whales from Puget Sound for aquatic shows.

According to several eyewitness accounts, just as Munro began to deliver a eulogy for his deceased namesake, a large scrum of orcas –– from all three pods based in Puget Sound –– converged in the waters beside the park, where they jumped and frolicked for hours.

The emotional appeal of killer whales in the green-leaning Puget Sound region is difficult to overstate. Local news coverage borders on the obsessive. Ralph’s 1999 funeral was covered by three local television stations, Munro said. The accidental death this year of Luna, a 6- year-old orphan orca killed by a tugboat propeller, occasioned widespread news coverage and op-ed hand-wringing.

The human-orca bond is explained partly by proximity and partly by behavior. Resident killer whales spend about three-quarters of their lives in and around Puget Sound, where they are easily and often viewed. Ferry riders see them regularly. And their mom-centric, family- centered lifestyle is all but irresistible.

Indeed, a rock-solid family life and a salmon-dominated diet distinguish resident killer whales from their rather less lovable killer-whale cousins –– the transients. These genetically distinct orcas tend to ignore fish and feed almost exclusively on seals, sea lions, dolphins and other marine mammals. They do not have predictable family lives and only occasionally put in an appearance in Northwest waters, where they rarely mix and never interbreed with the resident whales.

Even if you ignore the orcas’ anthropomorphic charms, marine mammal researchers say there are sound, self-interested reasons for human beings to support the Endangered Species Act as a way to prevent the extinction of resident killer whales.

“Cleaning up the toxins” that accumulate in the fat of killer whales “is good for seafood eaters,” said David Bain, a marine biologist who has studied killer whales for three decades. “It is also good for people who want clean water.”

To draw an analogy between protecting killing whales and protecting owls is false and misleading, Bain argued, because scientists clearly know how to ensure the survival of the whales –– by increasing salmon runs and reducing industrial toxins in Puget Sound.

Resident orcas, scientists say, are not a threat to the region’s booming economy. They are expert at staying away from large ships and ferry traffic in Puget Sound. Heavy industrial shipping traffic is not regarded as a threat to their survival, barring major oil spills.

One threat, though, is loving them too much. Recent research has found that whale-watching vessels –– if they crowd the animals –– induce stress and reduce their efficiency in catching salmon.

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Aboard the Island Adventure II, a whale-watching boat based in Anacortes, Wash., the pilot tried during a recent five-hour cruise to stay at least 100 yards from J-pod.

He succeeded for the most part, except when Oreo and some of her gregarious kin swam toward the boat to wow tourists by breaching, slapping their flippers on the water and spy- hopping (a head-out-of-water feat similar to a human treading water).

“They are just so social,” said Ellen Newberry, who works on the boat as a naturalist and has a degree in marine biology from the University of Maine. “I have seen mothers toss their babies out of the water with their snouts. Young males show us the salmon they just caught. I get they feeling they are all just trying to show off.”

July 30, 2006

In Troubled Waters: Puget Sound Orcas Run Deadly Human Gauntlet

by LYNDA V. MAPES, Seattle Times

HARO STRAIT OFF HENRY ISLAND –– Sleek and fast, more than a dozen orcas slice through this busy waterway, astonishing kayakers as the 9,000-pound killer whales dive under the boats.

These mammals, some nearly a century old, have seen and survived it all: fishermen detonating dynamite charges underwater and defending their catch by shooting them; captures for sale at a fat profit to aquariums.

Those days are over. But today Puget Sound’s Southern Resident orcas still run a deadly gantlet.

Their favorite food, chinook salmon, also are threatened with extinction. Puget Sound is loaded with toxins and pollution, and its shorelines are encrusted with housing, industrial development, farms and pavement.

Before 1800, there may have been more than 200 Southern Resident orcas. Today, there are about 89. And the federal government has brought in a hammer – the Endangered Species Act – to protect the orca.

But recovery will be difficult. Orcas are at the top of the Puget Sound food chain, and their depletion is an indicator of a deeply troubled ecosystem, many scientists say.

And any proposals to save the orca are guaranteed to rile development, industry and shipping interests, along with many others who depend on the Puget Sound for their living. Building, property rights and farming interests already are suing to throw out the listing.

“I see catastrophic economic impacts,” said Tim Harris, general counsel for the Building Industry Association of Washington, a plaintiff in the suit. “I see it slowing and crippling development, driving up housing costs and hurting jobs.”

And saving these creatures, experts say, will require operating in a realm of great uncertainty, and waiting to see results years down the road.

The bottom line: There’s no quick, sure recipe for orca recovery.

The so-called Southern Resident orcas are one of three forms in the northeastern Pacific, and are organized into three pods: J, K and L. Unlike the other populations, Southern Residents spend a lot of their time in Puget Sound, especially in the late spring, summer and fall. Scientists know little about their movements the rest of the year.

Southern Residents also are distinguished by their diet: They are believed to eat only fish, especially salmon, while other orcas eat seals and other marine mammals.

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Southern Residents were listed as endangered last year, triggering the requirement to designate a critical habitat for them, now proposed to cover more than 2,500 square miles of Puget Sound, excluding military bases, Hood Canal, near shore and coastal waters.

The federal fisheries service also must create a recovery plan, relying, in part, on a conservation plan already in the works, as well as additional advice and comments from scientists and the public.

Yet, despite 30 years of intense study, it’s still unclear which threats are most significant to the Southern Residents. But a recovery plan is expected to focus on three primary potential risk factors: food, pollution and vessel effects, including noise.

No one factor has been directly tied to the orcas’ recent decline. It’s more likely that two or more are acting together.

“There are a lot of gaps in what we know about how these various factors may be affecting the whales,” said Brent Norberg, marine-mammal coordinator for the Northwest regional office of the federal fisheries service. “We don’t have a smoking gun that says, `If we fix this piece, and that piece, everything will be rosy.'”

Researchers are trying to fill in the blanks by studying everything from the orcas’ numbers and movements to the effects of noise and vessel traffic.

“Not knowing what the stressors are make it hard,” Norberg said. “And these animals are so long-lived, and take so long to reach maturity, it will take a long time to know if recovery is working.”

As a first step, the recovery plan could call for rebuilding salmon runs and other food sources for the orcas.

Adults must eat up to about 34 adult salmon a day, and they prefer big, fat and nutrient-rich chinook. Juveniles have big appetites as well, devouring as many as 17 adult salmon a day. But Puget Sound chinook are listed as a threatened species. Runs have dwindled, and fish are smaller and more contaminated by pollution than ever.

Orca recovery could mean reductions in commercial and recreational fishing within the designated critical habitat – as much as 5 percent to 50 percent.

The recovery plan might suggest bolstering other salmon-recovery efforts throughout the region, including the Columbia and Snake rivers.

Secondly, the recovery plan is expected to seek a reduction in pollution and chemical contamination in the orca’s habitat. That would mean addressing industrial-waste disposal, agricultural and household use of chemicals. It also would mean dealing with discharge from wastewater and storm water. And it would mean cleaning up contaminated sites and sediments.

Only 89 orcas remain in the polluted and overcrowded waters of Puget Sound.

Today, the orcas’ home waters are a stew created by 17 pulp and paper mills in the Puget Sound and Georgia Basin region; 34 million gallons of raw sewage a day spewed by the city of Victoria, British Columbia, into the Strait of Juan de Fuca; and thousands of discharge pipes from industries, sewers and storm drains. Contaminated areas dot the region, including 24 Superfund sites around Puget Sound still not cleaned up.

Southern Residents have become the most contaminated marine mammals in the world. They carry loads of toxins high enough to suppress their reproduction and make them more susceptible to disease.

The recovery plan also might call for calmer, quieter waters.

Orcas find their food both by sight and sound. And they use their sensitive hearing and a kind of sonar not only to nail prey, but also to communicate and navigate.

For them, underwater noise is the equivalent of fog for humans, some scientists have concluded. Noise makes it harder for orcas to find what they are looking for, and it may damage their hearing, or at least cause stress.

Yet the Puget Sound and Haro Strait, which connects northern Puget Sound to the Strait of Juan de Fuca, are among the busiest waterways in the world.

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So the recovery plan probably would call for evaluating the need for limits, including how closely vessels of all kinds may approach orcas; closing some areas to boat traffic at certain times, and speed restrictions.

To get a feel for how divided the debate is over what’s hurting the orcas – including the issue of boat noise – look no further than the nearest boat.

“Looks like K-11!” researcher Ken Balcomb exclaimed one day last week as orcas leaped and dove around his 19-foot open boat, dwarfing the man who knows each of these mammals by their numbered names.

For some 30 years, Balcomb has prowled Puget Sound armed only with a camera to defend the animals he loves, creating a photo catalog of the Southern Residents by their unique markings.

Balcomb has a contract with the federal fisheries service to maintain his survey data on the orcas. But that doesn’t stop him from scoffing at the notion of restricting boat traffic.

At his San Juan Island home, perched above Haro Strait, he keeps in a box the bones of a baby orca whose body washed up on the beach. The baby was killed in 1970 during a capture attempt, its body slit and filled with rocks and wrapped in chains in an attempt to hide the slaying. It’s a reminder, Balcomb says, of how tough these mammals have had it.

Balcomb says more profound changes are needed than restricting boat traffic to bring the orca back from the brink of extinction. “We have a whole Puget Sound basin full of PCBs, raw sewage pouring out of Canada,” he said. “The fish stocks are pretty meager, and there’s still over-forestation and dams destroying habitat.

“It’s not a popular solution. But what’s called for is looking at the big picture. We have an endangered whale eating a threatened fish. We have to change our ways. I hope this is part of the wake-up.”

ORCA OVERVIEW

From now until about January, the National Marine Fisheries Service is creating a recovery plan, and finalizing boundaries of a “critical habitat” for the orca, where new regulations could be imposed to protect it. Its aim won’t be a list of restrictions and regulations – those would be developed through a separate process. Rather, it is a planning document intended to set forth the agency’s goals and means to get there. It is meant to set out a research agenda to help guide the recovery plan, which can be changed as scientists learn more.

The plan will include a goal of an orca population that the agency feels must be reached and maintained before the orca population can be considered recovered. There are about 89 Southern Resident orcas today.

LIVE ORCA NEWS! Orca Conservancy’’s Michael Harris and Fred Felleman on NorthWest Cable News ““EXTRA!””

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September 8, 2006

For Pods of Whales, Celebrity Status and Now a Lawsuit
Stuart Isett for The New York Times
Kenneth C. Balcomb III talking to whale watchers off San Juan Island in Washington. Mr. Balcomb has spent three decades tracking killer whales.

FRIDAY HARBOR, Wash. —— ““We saw your baby!””

A crewman on a fishing boat shouted across open water to Kenneth C. Balcomb III, a zoologist whose work has helped turn killer whales into Puget Sound celebrities.

Mr. Balcomb has plied these waters for three decades on a mission to identify every killer whale, or orca, by the gray ““saddle patch”” behind its black dorsal fin. Half a million photographs later, the tribulations and triumphs of the three local orca pods, or families, that he follows are major news in the Pacific Northwest.

When a newborn orca was missing for a few days in mid-August, local newspapers put it on the front page and television reporters in Seattle went up in helicopters to cover it.

““People used to say, ‘‘What good are they?’’ ”” said Mr. Balcomb, 65, who started the low- budget Center for Whale Research on San Juan Island, 80 miles north of Seattle. ““Now they want to relate to the whales they’’ve seen.””

The public affection Mr. Balcomb and others have stirred up for these 10,000-pound creatures, the largest members of the dolphin family, has pushed the federal government to pay closer attention to their health, federal officials say. Last year, Southern Resident killer whales —— the 90 current members of J, K and L pods —— were added to the endangered species list.

By November, the National Oceanic and Atmospheric Administration’’s National Marine Fisheries Service, an arm of the Department of Commerce, plans to establish boundaries for

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the ““critical habitat”” the three pods need to survive: 2,500 square miles in Puget Sound and the Strait of Juan de Fuca that also constitute one of the nation’’s busiest waterways for commercial shipping.

Once that map is completed, federal agencies will be required to consider the killer whales’’ well-being before approving projects or policies that would affect these waters wherever they are deeper than 20 feet. Thus, most areas close to the shoreline would not be affected, the fisheries service said.

Orca protection, though, has brewed its own legal battle in a region familiar with debates about endangered salmon and the northern spotted owl. Washington’’s homebuilders and farmers, assisted by a conservative legal foundation, have sued the federal government to strip the killer whales of their endangered status.

Lawyers for these groups say the government should not distinguish orcas in Puget Sound from a healthy global population numbering in the tens of thousands. The state’’s Farm Bureau and Building Industry Association warn, in particular, that local governments might react to federal protection of the orcas by locking up land near streams or along the coast to improve water quality for the orcas and for salmon, their main food source.

““Radical environmentalists”” are using killer whale protection to block otherwise legal economic activity, said Russell C. Brooks, a lawyer at the Pacific Legal Foundation, which is handling the case for the plaintiffs.

““It all comes back to limiting development, limiting land use, limiting whatever, from people that probably want to run the nation’’s economic policy out of a tree house,”” Mr. Brooks said.

At the Center for Whale Research, which is actually Mr. Balcomb’’s split-level home on the west coast of this island, there is an orca skull on a coffee table in the living room. From the kitchen window, Mr. Balcomb can scan the Haro Strait with high-powered binoculars. His son, Kelley Balcomb-Bartok, 43, receives orca updates every half-hour from spotters in Canada who work for the whale-watching industry.

A windowless room downstairs holds much of Mr. Balcomb’’s research: the vast archive of photographs and wall posters detailing each pod’’s matrilineal family tree. Females typically give birth every five years until age 40 and can live into their 90’’s. Males rarely live beyond 50.

Resident killer whales like those in Puget Sound behave differently from two other types, called transient and offshore orcas, that roam the oceans. The residents have tight family relationships, especially between mother and calf, and communicate in dialects understood by their relatives. They return to the same waters every year and mainly eat Chinook salmon. Transient whales eat seals, sea lions and other marine mammals.

Puget Sound’’s killer whale population has increased in the past few decades, which the Pacific Legal Foundation has said is proof that local orcas are not headed toward extinction.

But Mr. Balcomb said the population had still not recovered since the late 1960’’s and early 1970’’s, when as many as 47 Southern Resident whales were captured and sent to public aquariums and water shows. And NOAA scientists say disease or a manmade disaster like an oil spill could send the population into rapid decline.

““If we lost them, it’’s not likely that they would be replaceable with just another killer whale,”” said Bob Lohn, regional administrator for the Fisheries Service.

It has been a federal crime since 1972 to kill orcas and other marine mammals, but the federal government is a recent convert to broader orca protection. In 2001, the Center for Biological Diversity, a nonprofit conservation group, asked the Fisheries Service to list the whales in the J, K and L pods as endangered.

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The agency said then —— as the farmers and homebuilders argue now —— that federal law viewed them as members of a global species. After a lawsuit, a federal judge ordered the agency to reconsider, and NOAA added the animals to the endangered list in November 2005.

The agency will pay Mr. Balcomb’’s center about $100,000 this year, in part to track the whales’’ winter travels, Mr. Lohn said. This will double the center’’s annual budget. Most of the rest of the budget comes from the Earthwatch Institute, which charges people $2,500 to spend 11 days photographing and identifying whales for Mr. Balcomb.

Outside Mr. Balcomb’’s house is an old school bus that he is painting to resemble a killer whale. It used to be decorated with the words ““Free Corky”” and ““Free Lolita,”” a reference to the two remaining Pacific Northwest killer whales that live in captivity in aquariums in, respectively, San Diego and Miami.

As Mr. Balcomb and others work on behalf of the larger orca population, they also imagine what it would be like to reunite Corky and Lolita with their pods one day.

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NATIONAL WILDLIFE FEDERATION

October/November 2006

Orcas on the Edge

By Ken Olsen

A brutal combination of pollution, global warming, declining prey and heavy boat traffic is sending the Puget Sound orca population to new lows

SEEING KILLER WHALES ply the waters of Washington State’’s Puget Sound has long been a great thrill for Seattle-area residents. No other U.S. urban community can boast of resident orcas a few miles from downtown. Whale watching there is a multi-million-dollar tourist draw. As one orca expert puts it, ““Everybody wants a kiss from a killer whale.””

But the thrill may soon be gone.

Three orca pods living in Puget Sound from May through October, known as the Southern Resident killer whale population, were declared federally endangered late last year by the National Marine Fisheries Service (NMFS), the federal agency responsible for protecting marine species. Scientists believe the decline of wild chinook salmon——a major orca food source——as well as global warming, toxic pollution and vessel noise could eliminate this orca population, which ranges beyond Puget Sound into the San Juan Islands and Georgia Strait. ““They are teetering,”” says Ken Balcomb, senior scientist at the Center for Whale Research in Friday Harbor, Washington. It is ““highly likely,”” Balcomb adds, that this population of killer whales will be extinct within 100 years if conditions do not improve for both whales and salmon.

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““The Puget Sound is our backyard,”” adds James Schroeder, an NWF senior environmental policy specialist. ““If it’’s unhealthy for killer whales because the water is polluted, the sediments are laced with toxins and the food web has collapsed, it’’s ultimately uninhabitable for humans.””

The largest members of the dolphin family, orcas weigh about 400 pounds at birth. Adults can measure more than 25 feet long, weigh more than 8 tons and sport a 6-foot dorsal fin. Females can live into their eighties.

Orcas are found in every ocean and, next to humans, are the most widely distributed mammal in the world. Two distinct types of killer whales travel the seas——transients and residents—— which are distinguished by differences in genetics, language and food preference. They do not interbreed or even mingle. Transients live in small pods of three to seven and often travel far out to sea, subsisting on marine mammals such as seals, sea lions, dolphins and whales. Residents live closer to shore in pods of 10 to 20, are known for their jumping and splashing and eat only fish, which they sometimes stun with tail slaps. Transients rarely jump or splash and even use sonar less often, behaviors probably designed to avoid alerting the marine mammals they hunt.

Individual orcas can be identified by distinct gray swaths on their backs and flanks near their dorsal fins, called saddle patches. Using these patches, biologists have named each of Puget Sound’’s approximately 87 killer whales, which are part of a population that has been carefully studied since 1970, making them some of the best-known orcas in the world. All indications are that the Southern Resident population and the nearby British Columbia, or northern, resident orcas live primarily on chinook salmon, which are preferred probably because they are the largest salmon, have the highest fat content and are available year-round.

When West Coast wild chinook stocks plummeted in the mid-1990s, the Southern Resident orca population dropped from 99 in 1995 to about 80 in 2001. The northern resident population went from 219 to 202 during roughly the same time period. ““Mortality in some years was 300 percent greater than we expected,”” says John K.B. Ford of Fisheries and Oceans Canada——Canada’’s lead federal manager of oceans and inland waters——who has studied killer whales for 30 years.

West Coast waters once were rich with wild salmon. The Columbia and Snake Rivers alone produced between 10 million and 16 million salmon yearly, the majority of them chinook. Overfishing in the late 1800s and early 1900s, followed by decades of dam building, logging and other salmon-habitat destruction have reduced wild salmon to a fraction of their original abundance. Today, Columbia and Snake River wild fish runs number only in the tens of thousands. ““Perhaps the single greatest change in food availability for resident killer whales since the late 1800s has been the decline of salmon in the Columbia River basin,”” according to the NMFS draft orca recovery plan. Even British Columbia’’s resident killer whales, declared threatened by Canada in 2001, feed on Columbia and Snake River salmon. ““In order to save our orcas, we need to save the salmon runs that sustain them,”” Schroeder says.

Beleaguered salmon populations are now further jeopardized by a new challenge, global warming, which is heating some rivers and streams to temperatures lethal to fish. The average temperature of British Columbia’’s Fraser River, for example, increased about 1.8 degrees F from 1953 to 1998, yielding a 50-percent mortality rate among the river’’s sockeye salmon. ““The higher river temperatures are largely due to global warming, as opposed to dams and other significant human-caused problems,”” says Patty Glick, an NWF global warming specialist. The Canadian Ministry of Environment agrees. Citing the fact that the climate is warming, the ministry declared in a 2002 report that logging, agriculture and industrial factors have small impact on river temperature ““in comparison to the impact of climate change.””

Warming oceans pose another problem——they produce less food for salmon and other fish. Oceans also absorb carbon dioxide, a greenhouse gas produced by burning coal and other fossil fuels. This absorption changes the acidity of seawater, which could have catastrophic consequences for marine life. In addition, global warming is expected to alter the timing and

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amount of precipitation that keeps water flowing in the rivers and streams where salmon spawn. As rain and snowfall patterns change, chinook runs that now occur throughout the year could be confined to just a few of the wetter months——leaving Puget Sound orcas without salmon for long periods of time.

Salmon scarcity actually hits orcas with a one-two punch. The decline in food is a problem on the one hand, while the toxicity of the fish is a problem on the other. Puget Sound is steeped in toxics from pulp and paper mills, oil refineries, ports, boatyards and storm-water runoff. Salmon and other fish store in their bodies toxic pollutants they absorb from this environment. As a result of eating these contaminated fish, Puget Sound killer whales have some of the highest concentrations of highly carcinogenic polychlorinated biphenyls (PCBs) of any marine mammal in the world, says Gary Wiles, a wildlife biologist with the Washington Department of Fish and Wildlife. They also have high levels of polybrominated diphenyl ethers, which are toxic fire retardants.

As salmon numbers dwindle, killer whales burn blubber to survive, transferring toxics from blubber to vital organs. ““When orcas metabolize fat that’’s 1,000 parts per million PCBs, it’’s phenomenally toxic,”” Balcomb says. ““Even trace amounts of PCBs disrupt the orcas’’ endocrine systems, adversely affecting reproduction and their immune systems. We have seen whales become emaciated and disappear. And lots of reproduction-age females are not reproducing.””

Noise from the thousands of aquatic vessels cruising orca range may compound the food scarcity problem. Puget Sound is teeming with ferries, naval flotillas, whale-watching boats and other noisy craft that interfere with sonar, the clicking sounds orcas use like radar to find salmon. ““There’’s probably a lot of synergistic interactions between these stressors,”” Ford says. ““When there are fewer salmon, the whales have to work harder to find food. More noise may make it harder to find those fewer fish. The increased nutritional stress may lead to immuno- suppression and make the orcas more susceptible to disease.””

Saving Puget Sound orcas will require cleaning up toxic waste sites, stemming storm-water pollution and stopping global warming. The most critical step, however, is restoring salmon runs so orcas have enough to eat. ““The Snake River basin once produced more than a third of all the chinook in the Columbia River basin,”” Schroeder says. ““If the federal government would take out the four outdated lower Snake River dams, it would go a long way toward recovering endangered Columbia River salmon and Puget Sound killer whales.””

A measure the government actually is taking also is likely to help the orcas. NMFS in June proposed new restrictions on development in about 2,500 square miles of inland waters, from Olympia, Washington, north to the Canadian border. The proposal, which covers almost all of Puget Sound, could be final as early as November, requiring any projects using federal funds or conducted under federal permits to include orca protections.

In the end, orca conservation is about a lot more than saving the Puget Sound’’s magnificent killer whales. ““We ignore this looming environmental problem at our own peril,”” Balcomb says. ““The orcas are the ultimate indicator of the health of the marine ecosystem. And that ecosystem is two-thirds of our planet.””

Washington journalist Ken Olsen wrote about farmers restoring sage grouse habitat in the April/May issue.

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DISMISSED

Judge sides with killer whales in court

Dec 20, 2006 at 8:35 PM PDT
By Associated Press

SEATTLE (AP) – A federal judge on Wednesday dismissed a lawsuit in which building and farm groups had challenged the federal listing of Puget Sound’s resident killer whale population as an endangered species.

U.S. District Judge Thomas S. Zilly dismissed the lawsuit, filed by the Building Industry Association of Washington and the Washington Farm Bureau, with prejudice, meaning it cannot be refiled.

The BIAW and the farm bureau failed to prove they had standing in the case – that is, they failed to prove “perceptible harm” from the listing, Zilly wrote.

Their standing had been challenged by environmental groups represented by Earthjustice, an environmental law group.

“I think the holidays have come a little bit early for orcas in Puget Sound,” said Earthjustice attorney Steve Mashuda. “I think it’s unfortunate that the Building Industry Association of Washington has a different vision of Puget Sound – and that vision is one that doesn’t include orcas.”

“We’re surprised,” said lawyer Russell C. Brooks with the Pacific Legal Foundation, which represented the plaintiffs.

No decision has been made on whether to appeal, Brooks said.

“Another option is to bring a suit with a single particular landowner or builder that has been injured specifically by this listing,” he said.

“I think it’s a sad state of affairs when you have environmental players who can claim some sort of spiritual connection to whatever species du jour of the day is concerned, but yet you have people who are seeking to make an honest living and apparently their concerns won’t get them in the courthouse door,” Brooks said.

The National Marine Fisheries Service listed the whales for protection in November 2005.

The lawsuit said the listing “will result in needless water and land use restrictions on Washington farms, especially those located near rivers inhabited by salmon,” the orcas’ prime food source. “As a result, farmers could face fines and even imprisonment for the most basic farm practices should such actions allegedly disturb salmon.” Environmentalists called that scenario far-fetched.

The lawsuit hinged on a 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 include orcas off Alaska and Russia.

The plaintiffs alleged that the Endangered Species Act applies only to a distinct population of a species – not a subspecies.

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“Just because there are orcas elsewhere in the Pacific Ocean doesn’t mean we’re willing to live without them in Puget Sound,” Earthjustice attorney Patti Goldman said when the lawsuit was filed.

Puget Sound’s Southern Resident orcas – which consist of the J, K and L pods, or families – 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 marine mammals and show a unique attachment to the region.

The three pods now total 85 whales – down from historical levels of 140 or more in the last century, but up from a low of 79 in 2002. They’ve experienced three periods of decline since the late 1960s and early ’70s, when dozens were captured for aquariums. Each decline has been followed by a slight rebound.

Pollution and a decline in prey – the region’s salmon runs also are protected under the endangered species law – are believed to be their biggest threats, although stress from whale watching tour boats and underwater sonar tests by the Navy are also concerns.

Late last month, the National Marine Fisheries Service issued its recovery plan for the whales. It said its goals will include supporting salmon restoration, cleaning up contaminated sites in Puget Sound, working to reduce pollution, evaluating and improving guidelines for vessel traffic in and around protected areas and preventing oil spills and improving response plans should spills occur.

The agency also designated critical habitat for the orcas: an area covering about 2,500 square miles, encompassing part of Haro Strait and the waters around the San Juan Islands, the Strait of Juan de Fuca and all of Puget Sound.

Thursday, December 21, 2006

Puget Sound Orcas Remain an Endangered Species

Challengers failed to establish their standing to sue, judge rules
By LISA STIFFLER AND ROBERT McCLURE
P-I REPORTERS

A legal challenge that sought to strip local orcas of their endangered status was tossed out Wednesday by a U.S. District Court judge in Seattle.

“It’s great news,” said Kathy Fletcher, executive director of People for Puget Sound, an environmental group. “We’re back where we thought we were when we got the listing.”

In his ruling, Judge Thomas Zilly stated that the building and farming groups that brought the suit had not proved that they would be harmed by the protection of the orcas under the Endangered Species Act.

“Remarkably, plaintiffs have totally failed to provide any evidence of standing,” Zilly stated. The case was dismissed with prejudice, meaning the groups can’t bring it back to court.

Russell Brooks, the Pacific Legal Foundation lawyer who represented the Building Industry Association of Washington and the Washington Farm Bureau, said Zilly “is punting. That’s the nicest, most PC way to say it. The judge has an out, and he doesn’t want to reach the hard issues.”

Brooks said it’s possible but not likely his clients will appeal.

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ORCA CONSERVANCY –– THE ESA FILE Page 78

Zilly “basically said don’t come back until your water is shut off or your building permit is denied,” Brooks said.

The suit he brought predicted that protecting the orcas would result in water and land-use restrictions near rivers inhabited by salmon, the orcas’ prime food source, and that ultimately farmers could face fines and imprisonment.

The plaintiffs also argued that Puget Sound’s orcas are not genetically distinct enough from other orcas to warrant protection.

The population of orcas that frequents the waters of Puget Sound and the San Juan Islands has seen its numbers shrink because of a decline in chinook salmon, the animals’ favorite food; an increase in contamination of industrial pollutants that make them susceptible to disease and reduce their fertility; disruption by boats and ships; and in decades earlier they were caught for aquariums or killed.

They number about 90 animals. Historically, their population could have been around 200, scientists have estimated. Federal officials are seeking to rebuild the population to 120.

The local orcas were deemed endangered by the federal government in November 2005 after years of legal action by conservationists. Last month the National Marine Fisheries Service released its plan for boosting the population size.

Steve Mashuda of the Earthjustice law firm, which represented environmentalists in the suit, said, “We’ve heard a lot of negative publicity from the BIAW and the Farm Bureau, but they weren’t able to demonstrate to the court that the listing harms them in any way.

“All of the folks on our side are happy to have this behind us,” Mashuda said. “We’re ready to roll up our sleeves and get to work on recovering orcas.”

Dec 21, 2006 13:27 EST
Challenge to Puget Sound Orca Protection Denied;
‘The Orcas Have Hope’
Underwatertimes.com News Service

Seattle, Washington –– A federal court threw out a challenge to federal Endangered Species Act protections given to Puget Sound Southern Resident Orcas.

The case was brought by the Building Industry Association of Washington and the Washington Farm Bureau. The court ruled the challengers didn’’t prove they’’d be harmed by such protections, and therefore had no standing to bring the case.

A number of conservation organizations, represented by Earthjustice, intervened in the lawsuit to make sure the orca protections stayed in place. These same conservation groups successfully sued the federal government to win the protections.

““With the Endangered Species Act tools in place, the orcas have hope that the causes of their decline can be addressed and they will continue to share these inland waters with the people in this region,”” said Steve Mashuda of Earth justice’’s Seattle office. Patti Goldman of Earthjustice represented the groups in the case.

The Southern Resident orca community is an extended family of whales that live in close-knit matriarchal family units for their entire lives. Since the last ice age, the Southern Residents have made their home in Puget Sound, the San Juan Islands, Haro Strait, the Strait of Juan de Fuca , and the northwest coast, with the entire population reuniting here every summer.

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These whales are among the most intelligent animals in the world with their own language and greeting rituals.

““Little by little we’’re bolstering protections for this unique group of orcas and hopefully they’’ll be around for our grandchildren to enjoy,”” said Stephanie Buffum Field of Friends of the San Juans. ““The good news is that we can save the whales if we address these threats and improve their habitat.””

Only 87 orcas remain in the Southern Resident population, after declining 20 percent during the 1990’’s. Puget Sound’’s orcas have been in decline because of toxic contamination in the food chain, the decline of salmon runs that feed the orcas, and human disturbance from vessel traffic and noise. They are also threatened by disease outbreaks and oil spills.

““This week saw the extinction of the Yangtze River Dolphin, the first cetacean species to be driven extinct by humans,”” said Brendan Cummings of the Center for Biological Diversity. ““But in the United States extinction is not acceptable, and the protections of the Endangered Species Act can prevent Puget Sound’’s orcas from facing this same fate.””

““To truly save the orcas we need to save Puget Sound,”” said Kathy Fletcher, executive director of People for Puget Sound, a group engaging citizens in Puget Sound restoration. ““Now that the threats to orca protection are behind us, it’’s time to roll up our sleeves and work to restore Puget Sound’’s salmon runs, clean up toxic pollution and work to prevent oils spills.””

The government also recently designated critical habitat for the orcas in and around the Sound. Conservationists were pleased that the critical habitat designation included the bulk of the inland waters but are troubled by exclusions for the Olympic Coast National Marine Sanctuary, Hood Canal, military sites and shallow waters.

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2008

Feds Release Plan to Boost Orcas in Puget Sound
By DONNA GORDON BLANKINSHIP
Associated Press
January 24, 2008

SEATTLE –– The National Marine Fisheries Service on Thursday released its recovery plan for Puget Sound’s threatened killer whales, aimed at lessening the threats posed to the orcas by pollution, vessel traffic and decreased availability of food.

The goal is to enable the “Southern Resident” population of orcas to be taken off the endangered species list by helping their numbers grow by an average of 2.3 percent per year for the next 28 years. If the population increases for 14 years, the whales could be listed as threatened, a less severe category under the federal Endangered Species Act.

There are 88 orcas in the southern population today.

The federal agency issued its final recovery plan for the whales after taking public comment on a draft plan issued in November 2006. At that time, the fisheries service declared much of Washington’s inland marine waters as critical habitat for the orcas. The area covers about 2,500 square miles, including the waters around the San Juan Islands, the Strait of Juan de Fuca and all of Puget Sound.

The plan calls for:

——Supporting salmon restoration efforts already under way.

——Cleaning up contaminated sites in Puget Sound and reducing pollution in the region.

——Evaluating and improving guidelines for vessel traffic in and around protected areas, and minimizing underwater sound.

——Preventing oil spills and improving response plans when spills occur. ——Improving public education about how to help save the whales. ——Improving responses to sick or stranded orcas. ——Better coordination between U.S., Canadian and agencies from West Coast states. ——Continuing research to improve conservation efforts.

Unique in their diet, language and genetic makeup, Southern Residents were listed as endangered in late 2005.

Once believed to have numbered 140 or more in the last century, orcas have suffered several periods of major population decline since the 1960s, when the whales were caught for aquariums. The population rebounded to 97 in the 1990s, then declined to 79 in 2001.

Killer whales are actually the world’s largest variety of dolphin and can reach close to 30 feet and weigh more than 15,000 pounds at maturity. ——————

On the Net:
Recovery Plan: http://www.nwr.noaa.gov

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People for Puget Sound Press Release

Orca Recovery Plan Details Threats But Short on Recovery Actions

Seattle, WA

Jan 24, 2008

The National Marine Fisheries Service today released its recovery plan for endangered Southern Resident orca whales.

The plan confirms that the population is in danger of extinction and appropriately describes threats to the orcas. However, People For Puget Sound’s initial review of the recovery plan finds that the plan lacks specifics in actions need to address the threats.

“We know that toxic pollutants are in the fats of Southern Residents and that the levels of these pollutants in their prey– salmon — need to be reduced,” said People For Puget Sound’s Urban Bays Coordinator Heather Trim. “However, where are the actions to match these known threats? Current regulations are not protecting orcas. We would have like to have seen specific regulations proposed by NOAA in this recovery plan.”

Targets for reducing pollutant levels and for increasing prey levels are not specified in the plan, according to Trim. “The plan continues to rely on the Salmon Recovery plans for prey increases,” she said. “With global warming and other threats, we know that these plans are not adequate. The Plan also continues to rely on ongoing Puget Sound Partnership efforts rather than outlining what the Partnership need to address in its Action Agenda.”

One of the only definitive actions identified in the plan is to establish permanent funding for deploying a year-round rescue tug at Neah Bay.

People For Puget Sound is pleased that NOAA plans to hold ad-hoc work groups to address the adaptive management issues and had asked NOAA to convene key scientists and policy makers to come up with specific actions in its recovery plan.

“We can’t continue to do business as usual if we are going to recover our orcas,” said Trim.

Puget Sound Orca Recovery Plan Released

Goal is to help ‘Southern Resident’ population grow over three decades
The Associated Press
Jan. 27, 2008

SEATTLE – The National Marine Fisheries Service on Thursday released its recovery plan for Puget Sound’s threatened killer whales, aimed at lessening the threats posed to the orcas by pollution, vessel traffic and decreased availability of food.

The goal is to enable the “Southern Resident” population of orcas to be taken off the endangered species list by helping their numbers grow by an average of 2.3 percent per year for the next 28 years. If the population increases for 14 years, the whales could be listed as threatened, a less severe category under the federal Endangered Species Act.

There are 88 orcas in the southern population today.

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ORCA CONSERVANCY –– THE ESA FILE Page 82

The federal agency issued its final recovery plan for the whales after taking public comment on a draft plan issued in November 2006. At that time, the fisheries service declared much of Washington’s inland marine waters as critical habitat for the orcas. The area covers about 2,500 square miles, including the waters around the San Juan Islands, the Strait of Juan de Fuca and all of Puget Sound.

The plan calls for:

Supporting salmon restoration efforts already under way.

Cleaning up contaminated sites in Puget Sound and reducing pollution in the region.

Evaluating and improving guidelines for vessel traffic in and around protected areas, and minimizing underwater sound.

Preventing oil spills and improving response plans when spills occur. Improving public education about how to help save the whales. Improving responses to sick or stranded orcas. Better coordination between U.S., Canadian and agencies from West Coast states. Continuing research to improve conservation efforts.

Unique in their diet, language and genetic makeup, Southern Residents were listed as endangered in late 2005.

Once believed to have numbered 140 or more in the last century, orcas have suffered several periods of major population decline since the 1960s, when the whales were caught for aquariums. The population rebounded to 97 in the 1990s, then declined to 79 in 2001.

Killer whales are actually the world’s largest variety of dolphin and can reach close to 30 feet and weigh more than 15,000 pounds at maturity.

April 15, 2008
Federal Orca Recovery Plan Short on Specific Proposals
SUSAN GORDON
Tacoma News-Tribune

January 25th, 2008

Federal officials released their road map Thursday for the revival of Puget Sound’’s beloved and beleaguered population of killer whales, also known as orcas.

““My hope is the plan is a useful tool and resource for environmental groups and other government agencies to see what they can do to contribute to the recovery,”” said Lynne Barre, a marine mammal specialist.

Barre, who works for the National Oceanic and Atmospheric Administration’’s fisheries division, also known as the National Marine Fisheries Service, is lead author of the 251-page report. The so-called recovery plan is an Endangered Species Act requirement.

The Sound’’s orca population numbers 88. Federal officials listed the group as endangered in November 2005.

Thursday’’s report reiterates what has become the consensus opinion of marine mammal experts. That is that the Sound’’s killer whales suffer from a multitude of insults, many of which are manmade. Among them: lack of food –– the orcas’’ favorite prey, chinook salmon,

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ORCA CONSERVANCY –– THE ESA FILE Page 83

also has earned Endangered Species Act protection; toxic pollution; vessel traffic; and underwater noise.

The report stops short of ranking the problems. And while it also lists solutions, it doesn’’t prioritize them. Agency officials noted that ““there is considerable uncertainty regarding which threats were responsible for the decline in the population or which may be the most important to address.””

Whale conservation advocates gave the report mixed reviews, praising its analysis of current threats to orca survival, but criticizing its lack of specificity.

““What NOAA has done is compiled a list of what’’s being done more than create a proactive document of what needs to be done,”” said Fred Felleman, a Seattle activist and orca expert.

Heather Trim, who coordinates People for Puget Sound’’s orca campaign, appreciated the report’’s scientific documentation, but said, ““We’’re disappointed that the plan does not include more specific actions.””

On the plus side, Trim commended the report for citing the need to permanently fund a year- round rescue tug at Neah Bay.

““One oil spill could wipe out one or two or all three pods,”” she said, referring to the orca family groupings known as the J, K and L pods. ““This is really the catastrophic crisis we’’re trying to avoid.””

Federal officials predict it could cost nearly $50 million and take 28 years to increase the orca population to a self-sustaining level.

In releasing the report, agency officials emphasized the importance of cooperation between the U.S. and Canada, where orca numbers also are dwindling.

While the recovery plan isn’’t a regulatory document, some protective measures might be in the works.

In Olympia, state lawmakers are considering bills to restrict whale-watching vessels and to fine violators.

For years, conservationists have recommended that whale watchers keep their boats at least 100 yards away from the orcas. In San Juan County last fall, that became law.

On the federal level, NOAA Fisheries officials in March 2007 began a rule-making process that could do the same thing, the agency’’s Barre said. Also proposed is establishment of protected areas where vessels wouldn’’t be allowed, she said.

Also under way is development of an orca-specific, Puget Sound oil spill response protocol, Barre said. Federal officials are trying to formulate a plan to protect the whales if a spill occurs.

Already, NOAA has spent nearly $5 million for orca-related research. Over the next five years, the report anticipates another $15 million in spending.

But beyond ongoing scientific research and possible vessel regulations, some whale advocates, such as Felleman, don’’t expect federal officials to do much more to protect whales.

Instead, Felleman hopes state officials will act.

““One of the best things whales have got going for them is this commitment from the governor and the Legislature to protect Puget Sound,”” he said. ““Much is going to bank on how successful the Puget Sound Partnership is.””

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Last year, at Gov. Chris Gregoire’’s request, lawmakers created the partnership to map out plans to restore the health of the Sound by 2020.

Conservationists first petitioned for federal protection for what scientists call Southern Resident killer whales in 2001, when the orca census dipped to 79, a 20 percent decline from 1996, officials said.

The black-and-white whales, actually the largest members of the dolphin family, are found worldwide. But the Sound’’s resident orcas also are regional icons, particularly around the San Juan Islands, where they’’re a tourist attraction.

The resident orcas are identifiable by the unique saddle markings on the back of each whale’’s dorsal fin.

10 steps for orcas

A newly released federal orca recovery plan calls for the following actions, among others. Officials haven’’t ranked the items, so the list isn’’t ordered by importance.

•• Boost shrinking populations of chinook salmon and other orca prey. •• Minimize orca exposure to pollutants and chemical contamination. •• Cut down on vessel-related disturbances. •• Prevent oil spills; plan to protect killer whales from spills if they occur. •• Increase public awareness of threats to orca survival.

•• Step up boater education and information campaigns.

•• Promote land-based whale watching.

•• Respond to stranded orcas, whether dead or alive.

•• Coordinate research, monitoring and recovery planning with Canada and other governmental authorities.

•• Continue orca census, life history research and scientific evaluation of ongoing threats to orca survival.

Orca Conservancy’’s Fred Felleman and Michael Harris, in Ballard, WA.

About orcaconservancy

Orca Conservancy is an all-volunteer, 501(c)(3) non-profit organization working on behalf of orcinus orca, the killer whale, and protecting the wild places on which it depends. Successful Petitioner and Litigant in historic U.S. District Court case to list Southern Resident orcas as "Endangered" under the U.S. Endangered Species Act -- the first-ever federal protection for the population. Leader in the Springer Project, the first-ever successful translocation and reintroduction of a wild killer whale, a rescue that captured the attention of the world.
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