The Whale Museum News & Events
Updated: March 24, 2006
Lawsuit challenges protection of orcas
Thursday, March 23, 2006
P-I STAFF AND NEWS SERVICES
Puget Sound's orcas do not deserve protection under the Endangered Species Act because they are not genetically distinct enough from other orcas in the North Pacific, argues a new lawsuit against the federal government by agriculture and development interests.
The killer whales received the legal protection last year from the National Marine Fisheries Service -- but only after the agency once rejected the idea, then was ordered to reconsider by a federal judge. The agency's original decision rejecting the extra protection for the orcas was based on arguments similar to those in the suit filed Monday by the Washington Farm Bureau and the Building Industry Association of Washington. The groups had earlier announced their intention to sue.
Erin Shannon, a spokeswoman for the builders group, said the precedent of protecting Puget Sound orcas could have reverberations far beyond the orca case.
"Our concern is it sets a precedent for illegally expanding what species can be covered" by the Endangered Species Act, she said. "Who doesn't love an orca? PR-wise, everybody loves orcas, but this is a legal argument for us."
Brian Gorman, a spokesman for the agency, said he had not seen the lawsuit, but "this has taken up a great deal of our time and attention and has been carefully thought out. We feel confident we made the right decision."
Protecting the orcas under Endangered Species "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. "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 lawsuit argues that the three orca families, or pods, that frequent Washington waters are not genetically distinct from orcas found in waters off Alaska, Canada and Russia. They do not constitute a "distinct population segment," which can be protected under the law, the farm and building groups argue.
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. "Just because there are orcas elsewhere in the Pacific Ocean doesn't mean we're willing to live without them in Puget Sound," said Seattle environmental lawyer Patti Goldman of Earthjustice.
Russell Brooks, the Pacific Legal Foundation attorney who filed the suit, called the rebuttal a good point, but a losing one based on the strict wording of the law.
The three Puget Sound pods number 89 whales -- down from historical levels of 140 or more in the past century, but up from a low of 79 in 2002.
Pollution and a decline in prey are believed to be their biggest threats.
P-I reporter Robert McClure contributed to this report. He can be reached at 206-448-8092 or firstname.lastname@example.org.
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