Category Archives: Marine mammals

Agency failing to protect marine mammals from the Navy — Joel Reynolds

After more than a decade of losing court battles, the U.S. Navy still refuses to fully embrace the idea that whales and other sea creatures should be protected during Navy training exercises, says Joel Reynolds, senior attorney for the Natural Resources Defense Council.

Joel Reynolds
Joel Reynolds

But the blame cannot be placed entirely on the Navy, Joel says in a blog entry he wrote for the Huffington Post.

“In fact, much of the blame lies with the government regulatory agency whose mandate it is to protect our oceans,” he writes. “It lies with the failure of the National Marine Fisheries Service to do its job.”

Joel has been at the forefront of the legal effort to get the Navy to change its ways — and the effort has been successful to a large degree. At least we now have a much greater understanding about the effects of sonar on whales and other marine animals. Legal challenges forced the Navy to acknowledge that it didn’t really know what damage its activities were doing to the oceans. The result was to develop studies, which turned out to provide some unwelcome answers.

Joel’s latest frustration comes this week in the wake of new authorizations by NMFS to sanction Navy activities found to be unacceptable by the U.S. Ninth Circuit Court of Appeals.

Joel’s life story and that of Ken Balcomb, who I call the dean of killer whales in Puget Sound, are described in intriguing detail in the book “War of the Whales” by Joshua Horwitz. The book documents their personal and legal battles to hold the Navy accountable for its impacts on whales.

In January 2015, I reviewed the book (“My take on the book…,” Water Ways, Jan. 10, 2015), and I also interviewed the author for his inside story (“A discussion with author Joshua Horwitz,” Jan. 11, 2015).

USS Shoup, a Navy destroyer based in Everett. U.S. Navy photo
USS Shoup, a Navy destroyer based in Everett.
U.S. Navy photo

The Navy would never have found itself on the losing side of these sonar lawsuits if the National Marine Fisheries Service (sometimes called NOAA Fisheries) had been doing its congressionally mandated job of protecting marine mammals, Joel says. For the agency, that would mean approving “take” permits only when the Navy has done its best to reduce the risk of injury during training exercises — which everyone agrees are important.

“Rather than exercising the oversight required by law, the Service has chosen in effect to join the Navy’s team, acquiescing in the omission of common-sense safeguards recommended even by its own scientific experts,” Joel writes in his latest blog post.

After reading his post, I asked Joel by phone yesterday what it would take to get the National Marine Fisheries Service on the right track.

“I don’t have an easy answer for that,” Joel told me, noting that he recently held a related discussion with Sylvia Earle, renowned oceanographer and formerly chief scientist for the National Oceanic and Atmospheric Administration.

“She is very familiar with the problems of NMFS,” Joel said. “She said NMFS is an agency responsible for killing fish.”

That said, the agency has a lot of dedicated researchers and experts who know what needs to be done, especially at the regional level. But they are hamstrung by federal politics and by budget limitations.

“The Pentagon is essentially able to dictate every part of government,” Joel said. “The financial implications are very real, because the military is so powerful. If NMFS gives them trouble, they call their contacts on Capitol Hill, and pressure is brought to bear.”

The Navy has spent decades operating at its own discretion throughout the world’s oceans. The notion that another federal agency or some upstart environmental groups should limit its activities just doesn’t sit well among established Navy officers.

The problem is so entrenched in government that any resolution “is going to take some focused attention under the next administration,” according to Joel.

If Hillary Clinton is elected, Joel said he might look to John Podesta to untangle the mess. Podesta served as chief of staff under President Bill Clinton and was instrumental in opening up long-held but arguably unnecessary government secrets. He currently serves as chairman of Hillary Clinton’s campaign.

“John Podesta understands these things,” Joel told me. “If we can’t get him (to do something), we can’t get anyone. I think it would take a reorganization. The way NMFS is set up, they are in the business of authorizing ‘take’ instead of issuing permits based on the protections that are needed.”

Joel wasn’t clear how a regulatory agency might be organized to hold its own against the Navy, but the idea should be on the table, he said. Until then, the NRDC and other environmental groups will continue to battle in the courts, where judges are able to use some common sense.

Meanwhile, NOAA has developed an “Ocean Noise Strategy Roadmap,” which promises to find ways to control harmful man-made noise. The roadmap is based, in part, on scientific studies about the hearing capabilities of marine mammals. Review my Water Ways post on the “draft guidance” Water Ways, March 26, 2016.

These steps have been encouraging — at least until this week when NMFS issued letters of authorization for the Navy to keep operating under its 2012 plan, which the Ninth Circuit Court of Appeals had declared a failure to meet requirements for the “least practicable adverse impact.” (Read the opinion.)

The agency chose to move ahead because the court had not yet issued its mandate — a formal direction to a lower court — by the time the letters of authorization were issued.

“The Navy has a robust and practicable monitoring and mitigation program that we believe is very effective in reducing the likelihood of injury,” according to an explanation from NMFS.

Check out Ramona Young-Grindle’s story about this latest finding in yesterday’s Courthouse News, which includes these further comments from Joel:

“We are astonished to see an LOA issued in the wake of the court of appeals’ decision that the LFA (low frequency active sonar) permit is illegal. NMFS is entrusted under federal law to enforce the Marine Mammal Protection Act for the benefit of marine mammals — not for the convenience of the Navy. This capitulation to the Navy’s request to continue ‘business as usual’ under a permit determined by a federal court to be illegal is outrageous.”

Demanding international changes to help protect marine mammals

After 43 years and some legal prodding, the United States is preparing to use its economic and political power to protect whales, dolphins and other marine mammals around the world.

On Monday, the National Oceanic and Atmospheric Administration is scheduled to publish regulations that will set up a system to ban imports of seafood from any country that fails to control the killing of marine mammals in its fishing industry.

Photo: Daniel Schwen, Wikimedia Commons
Photo: Daniel Schwen, Wikimedia Commons

To avoid a ban, foreign controls must be as effective as standards adopted by the United States to reduce the incidental death and injury to marine mammals in the U.S. fishing industry. Harvesting nations that wish to continue selling fish and fish products to U.S. markets will have five years to implement their marine mammal protection programs, if they have not already done so.

When it was first approved by Congress in 1972, the Marine Mammal Protection Act included provisions that would ban imports of fish caught in commercial fisheries where the “bycatch” of marine mammals exceeded U.S. standards. But the law was largely ignored until environmental groups filed a lawsuit against NOAA two years ago. The lawsuit was eventually settled, with NOAA agreeing to approve new rules by August of this year.

NOAA estimates that 650,000 marine mammals are killed each year in fishing operations. Meanwhile, U.S. consumers obtain 94 percent of their seafood from a growing import market valued at $33 billion in 2013.

“The new regulations will force countries to meet U.S. conservation standards if they want access to the U.S. market, saving thousands of whales and dolphins from dying on hooks and in fishing nets around the world,” said Sarah Uhlemann, international program director for the Center for Biological Diversity. “The U.S. government has finally recognized that all seafood consumed in the United States must be ‘dolphin-safe.’”

Comments were made in a joint news release from the Center for Biological Diversity, the Natural Resources Defense Council and the Turtle Island Restoration Network — the three groups that brought the lawsuit.

Graphic: NOAA
Graphic: NOAA

The new regulatory program on imports calls on NOAA Fisheries to issue a “comparability finding” after harvesting nations demonstrate that they have a regulatory program that meets U.S. standards for protecting marine mammals. Each program must prohibit the incidental killing or serious injury to marine mammals in all fisheries, estimate numbers of marine mammals on their fishing grounds and find ways to reduce harm if established limits are exceeded.

Over the next year, the regulations call for NOAA Fisheries to request information on marine mammal bycatch from countries that export to the U.S. On a list of foreign fisheries, each fishery will be classified either as “export” or “exempt.” Exempt fisheries are determined to have a remote chance of killing marine mammals, so they are not required to have a regulatory protection program. Those fisheries likely to impact marine mammals and those lacking information about impacts are placed in the export category. All fisheries must prohibit intentional killing of marine mammals to receive certification.

At the end of the five-year period, NOAA Fisheries will publish a list of fisheries that will not receive a comparability finding along with a list of fish banned from import. Those countries will receive information about why they were denied certification and are eligible to reapply at any time. Other details are outlined in a fact sheet from NOAA Fisheries.

The U.S. Marine Mammal Commission, a group appointed by the president to advise the government on the Marine Mammal Protection Act, welcomed the long-overdue regulations to protect marine mammals throughout the world, but said the five-year implementation period is too long. See comments, Nov. 9, 2015. (PDF 1.4 mb):

“Inasmuch as this is an ongoing, long-standing statutory requirement, the Commission does not see a legal basis for deferring implementation. To the extent that any delay can be countenanced, it should be kept to the absolute minimum necessary to secure the required information from exporting countries.

“The Commission is concerned that the proposed delay would result in at least another six years during which seafood could continue to be imported into and sold in the United States, despite unacceptably high levels of marine mammal bycatch, unbeknownst to U.S. consumers, and during which U.S. fleets would face unfair competition from foreign fleets with little or no accountability to follow comparable marine mammal conservation measures.”

In 1988, while the U.S. was developing new fishing standards to protect marine mammals, U.S. fishermen were required to report the type of gear they were using and any incidental catch of marine mammals, the Marine Mammal Commission noted. Fishermen also were required to allow observers on their boats while the agency developed stock assessments and new rules to protect various species of marine mammals. Those kinds of interim measures should be required of foreign fleets as well, the commission said.

Among its many comments when the rule was first proposed last year, the commission criticized the plan for placing too much burden on NOAA Fisheries to gather the information, rather than requiring the importing countries to document their protections for marine mammals.

“The Commission further recommends that the final rule clearly specify that nations be issued a CF only if they meet the U.S. standards, rather than be issued a CF unless it is shown that they do not meet the applicable requirements.”

As far as I can tell, the final rule failed to incorporate most of the commission’s suggestions. Still, using the economic and political power of the U.S. to protect marine mammals around the world is a considerable leap.

While the new regulations are expected to level the playing field for U.S. fishermen who must comply with marine mammal protections, we have yet to see the full response from other countries. At some point, a ban on U.S. imports is likely to trigger a challenge based on existing international trade agreements. I haven’t seen much written about the legal implications of the new marine-mammal-protection rules, but we have seen what can happen. Review the article by Mark J. Robertson about “dolphin-safe” tuna rules in a report for the International Centre for Trade and Sustainable Development.

Finding answers for dangerous decline of Puget Sound steelhead

Harbor seals have become prime suspects in the deaths of millions of young steelhead trout that die each year in Puget Sound, but the seals may not be working alone.

Trends

Disease and/or various environmental factors could play a part, perhaps weakening the young steelhead as they begin their migratory journey from the streams of Puget Sound out to the open ocean. Something similar is happening to steelhead on the Canadian side of the border in the Salish Sea.

More than 50 research projects are underway in Puget Sound and Georgia Strait to figure out why salmon runs are declining — and steelhead are a major focus of the effort. Unlike most migratory salmon, steelhead don’t hang around long in estuaries that can complicate the mortality investigation for some species.

The steelhead initiative was launched by the Washington Department of Fish and Wildlife and Puget Sound Partnership with funding from the Legislature. The steelhead work is part of the Salish Sea Marine Survival Project, which is halfway through its five-year term, according to Michael Schmidt of Long Live the Kings, which coordinates the effort in the U.S. The larger project involves at least 60 organizations, including state and federal agencies, Indian tribes and universities.

A new report on research findings for steelhead (PDF 9.8 mb) describes the most significant results to date for our official state fish, which was listed as “threatened” in 2007. While steelhead populations on the Washington Coast and Columbia River have rebounded somewhat since their lowest numbers in the 1980s, steelhead in the Salish Sea remain at historical lows — perhaps 10 percent of their previous average.

“Because steelhead are bigger and move fast through the system, they are easier to study (than other salmon species),” Michael told me. “It has been a lot easier to feel confident about what you are finding.”

Abundance

Steelhead can be imbedded with tiny acoustic transmitters, which allow them to be tracked by acoustic receivers along their migration routes to the ocean. It appears that the tagged fish survive their freshwater journey fairly well, but many soon disappear once they reach Puget Sound. The longer they travel, the more likely they are to perish before they leave the sound.

While steelhead are susceptible to being eaten by a few species of birds, their primary predators appear to be harbor seals. These findings are supported by a new study that placed acoustic receivers on seals and observed that some of the transmitters embedded in steelhead ended up where the seals hang out, suggesting that the fish were probably eaten.

In a different kind of tagging study, Canadian researchers placed smaller passive integrated transponder (PIT) tags in a large number of coho salmon and attached devices to read the PIT tags on coho salmon.

“What is most interesting to date,” states a new report from the Pacific Salmon Foundation,“ (PDF 4 mb), “is that we only have confirmed feeding on tagged coho salmon by four of the 20 seals equipped with receivers. This suggests that feeding on juvenile salmon may be an opportunistic behavior acquired by a limited number of seals.”

New studies are underway to confirm steelhead predation by looking at fecal samples from seals in South Puget Sound. Researchers hope to figure out what the seals are eating and estimate steelhead consumption.

As I mentioned at the outset of this blog post, it may be more than a simple case of seals eating steelhead. For one thing, seal populations may have increased while their other food choices have decreased. Would the seals be eating as many steelhead if Puget Sound herring populations were close to their historical averages?

Other factors may be making young steelhead vulnerable to predation. A leading candidate is a parasite called Nanophyetus salmincola, which can infest steelhead and perhaps increase their risk of predation. The parasite’s life cycle requires a snail and a warm-blooded animal, as I described in a story I wrote for the Encyclopedia of Puget Sound — part of a larger piece about disease as a powerful ecological force. Anyway, the snail is found only in streams in South Puget Sound, which might help explain why steelhead deaths are higher among these South Sound populations.

Experiments are underway to compare the survival of two groups of identical steelhead, one group infested with Nanophyetus and one not.

Depending on funding and proper design, another experiment could test whether treating a stream to temporarily eliminate the snail — an intermediate host — could increase the survival of steelhead. If successful, treating streams to remove these snails could be one way of helping the steelhead. For these and other approved and proposed studies, check out the Marine Survival Project’s “2015-2017 Research Work Plan” (PDF 9.3 mb).

Other factors under review that could play a role in steelhead survival are warming temperatures and pollution in Puget Sound, which could help determine the amount and type of plankton available for steelhead and salmon. Could a shift in plankton result in less food for the small fish? It’s a major question to be answered.

I’ve mentioned in Water Ways (3/15/2010) that transient killer whales, which eat seals, sea lions and harbor porpoises, may be helping their distant cousins, the Southern Resident killer whales, which eat fish. Those smaller marine mammals compete for the adult salmon eaten by the Southern Residents. By clearing out some of those competitors, the transients could be leaving more salmon for the Southern Residents.

It may be too early to draw any firm conclusions, Michael Schmidt told me, but transient killer whales may be helping steelhead as well. Last year, when transients ventured into South Puget Sound and stayed longer than usual, the survival rate for steelhead from the nearby Nisqually River was the highest it has been in a long time.

Were the whales eating enough seals to make a difference for steelhead, or were the seals hiding out and not eating while the whales were around. Whether there were benefits for the steelhead, we could be seeing what happens when a major predator (orcas) encounters an abundance of prey (seals).

Hormonal studies link orca miscarriages to low chinook salmon runs

An orca mother named Calypso (L-94) nurses her young calf in this high-resolution photo
An orca mother named Calypso (L-94) nurses her young calf in this high-resolution photo taken from a drone. Lactation takes an energetic toll on orca moms. Future images may reveal whether Calypso is getting enough food to support herself and her calf.
Photo: NOAA Fisheries, Vancouver Aquarium, under NMFS permit and FAA flight authorization.

It is fairly well known that the three pods of killer whales that frequent Puget Sound are listed as endangered under the Endangered Species Act. It is also well known that their primary prey — chinook salmon — are listed as threatened.

It can’t be good that the whales are struggling to find enough to eat, but we are just beginning to learn that the situation could be dire for orca females who become pregnant and need to support a growing fetus during times of a food shortage.

Sam Wasser, a researcher known for figuring out an animal’s condition from fecal samples, recently reported that about two-thirds of all orca pregnancies end in miscarriage. And of those miscarriages, nearly one-third take place during the last stage of pregnancy — a dangerous situation for the pregnant female.

In a story published today in the Encyclopedia of Puget Sound, I report on Sam’s latest studies, along with other work by a team of biologists who are using unmanned aircraft (drones) to keep track of the physical condition of the Southern Resident orcas, including pregnant moms.

Sam’s latest study involves measuring hormones in killer whales, which can tell us a lot about a whale’s condition. The story of how hormones change under varying conditions is a little complicated, but I hope I was able to explain in my article how this works. When adding the effects of toxic chemicals that mimic hormones, we begin to understand the conditions that may be critical to the whales’ long-term survival or their ultimate extinction.

One longtime assumption, which may be shot down by the hormone studies, is that the whales’ most difficult time for food comes in winter, when salmon are generally scarce. These new studies by Sam and his colleagues suggest that the greatest problem comes in the spring, when the whales return to Puget Sound to discover that spring runs of chinook salmon can no longer be found — at least not in significant numbers.

The work with a drone carrying a high-resolution camera is providing precise measurements about the length and width of each killer whale. Pregnant females are especially interesting, and it will be important to document whether physical changes observed in the drone study can be correlated with hormonal changes seen in the other study.

“We’ve moved toward some great sophisticated technology,” Lynne Barre told me. “These great technologies combined can tell us more than any one method can … such as when and where food limitations might be affecting their health and reproduction.”

Lynne heads NOAA’s Protected Resources Division in Seattle and oversees recovery efforts for the endangered Southern Residents.

By the end of this year, NOAA is expected to release its five-year status report on the Southern Resident orcas. In addition to reporting on many new findings, the document will re-examine the risk of extinction for these killer whales and consider whether actions proposed to help them have been carried out.

Last year, the Southern Residents were listed among eight endangered species across the country that are headed for extinction unless recovery actions can be successful. The eight, selected in part because of their high profiles, are known as “Species in the Spotlight.” In February, five-year action plans were released for all eight species.

The plan called “Priority Actions for Southern Resident Killer Whales” (PDF 2 mb) focuses on three primary factors affecting the whales’ survival: a shortage of food, high levels of toxic chemicals and effects of vessels and noise. The concise 15-page document describes some of the work being carried out on behalf of the whales, although new ideas are coming forth all the time.

Amusing Monday: Cats can be trained to enjoy water and other things

I grew up with cats and have lived with cats for most of my life. I can’t recall that any of my feline friends were fond of water. But then nobody I know has ever taken the time to teach them to surf on the back of a dog, ride the waves with a human or even learn the basic command to “stay.”

These things are exactly what long-time dog trainer Robert Dollwet has done after deciding he wanted to train cats. After moving from California to Australia in 2010, Robert went to a local animal shelter and adopted a lively kitten he named Didga, short for Didgeridoo. As he proceeded through the training, Robert began sharing his methods on a YouTube channel he named “CATMANTOO.” Later, he added another kitten, Boomer, to his family.

The first video on this page shows Didga performing a stunt that Robert calls “Ice surfing.” That’s because the dog (who belongs to a client involved in dog training) is named Ice. Robert says many of the feats shown in his videos take weeks or months for the animals to learn.

“Please don’t try the things you see at home,” he says in a note attached to the video. “I’d feel bad if your cat was hurt or forced into doing something they don’t want to do. Watch my tutorials to learn how to teach your cat.”

The second video, released in April, shows Boomer riding on a surfboard on a river, as Robert gently paddles around.

“We’ve been doing this since he was a kitten,” Robert writes in the notes. “I gave him lots of food while he rides on the surfboard. He’s 11 months now, and he is so comfortable, it’s about that time to take his surfboard riding skills to the next level — by actual surfing on a wave in the ocean (with life vest, of course). Stay tuned.”

The third video is an amusing story called “Didga Dreams BIG,” which actually shows off this cat’s repertoire of tricks and stunts. I like the way Robert demonstrates his cats’ abilities by telling little stories in some of the videos — such as Didga’s skateboard trip around the beach town of Coolangatta, where he lives in Australia. See “World’s Best Skateboarding Cat!”

Other water-related videos:

You can check out the helpful YouTube tutorials on CATMANTOO to learn some basic cat skills that I believe might be helpful in daily life:

By the way, you can follow Robert and his animals on his Facebook page, also called CATMANTOO.

Orca population remains uncertain on census day

The annual census of killer whales that frequent Puget Sound is supposed to be based on a population count for July 1 each year, but this year the count has barely begun as we move into July.

J-40, named Suttles, breaches in the latest encounter reported by Ken Balcomb. Photo: Ken Balcomb, taken under U.S. and Canadian permits
J-40, named Suttles, breaches in the latest encounter reported by Ken Balcomb.
Photo: Ken Balcomb, under U.S. and Canadian permits

For years, all three pods of Southern Resident orcas typically wandered into Puget Sound in late May or early June, but things have been changing. So far this year, most of the whales have remained somewhere else, probably somewhere in the Pacific Ocean. And that even goes for J pod, the most resident of the resident pods.

Ken Balcomb of the Center for Whale Research, who is responsible for the census, said the Fraser River chinook run has been so low this year that the whales have stayed away. He may not be able to get a complete count until September, he told me.

Of course, Ken and his associates will take attendance as the whales come into the Salish Sea. Some assumptions will have to be made about the timing of any births or deaths. But whales won’t be counted as missing until they are not seen with their family groups during multiple encounters.

“We’re not going to be able to say that somebody is dead at the end of July because we have not seen them,” Ken said, “since there is a low probability of seeing them between now and September.”

As with this year, the census could not be completed at this time last year. But, unlike this year, only two small groups of whales had not been seen going up to census day on July 1 last year. See Water Ways, July 1, 2015.

As the whales have stayed out to sea longer each year, Ken has requested additional federal funding to search for them and get an early indication of their condition, but his requests have been denied. Those who wish to support his ongoing efforts may purchase a membership in the Center for Whale Research.

On Monday, Ken caught up with a small group of J pod orcas that are led by the matriarch J-2, known as Granny. It was only the second time that J pod whales have been seen in inland waters during the entire month of June. On Saturday, a large group of orcas was spotted by observers near the entrance to the Strait of Juan de Fuca. But most of them apparently stayed in the open ocean.

Ken speculates that Granny and the others were following an aggregation of salmon when he caught up with them at Turn Point near the Canadian border. He posted a report today with this information:

“J19 and J41 were the west-flanking whales, and J14, J37 and J49 were the east-flanking whales, while J2 and L87 charged in a zig-zag pattern down the middle of the tide rips that shot up vertically like haystacks of water, dousing the boat and camera. The others (J40 and J45) were here and there in the swirls, surfacing with no particular pattern. It was quite challenging to take photographs in such conditions, but it was important to get some documentation of their occurrence and activity, since they had not spent much time in the Salish Sea so far this year.”

The abundance of chinook in the Fraser River — which produces much of the fish in the San Juan Islands — is tracked by prescribed fishing in Canada’s so-called Albion Test Fishery. As you can see from the graph, the catch per unit effort is considerably lower than the long-term average, barely making a blip at the bottom of the chart.

This year's catch per unit effort in the Albion Test Fishery is much lower than the long-term average. This year's fishery did not begin until April 26. Graphic: Canadian DFO
This year’s catch per unit effort in the Albion Test Fishery is much lower than the long-term average. This year’s fishery did not begin until April 26.
Graphic: Canadian DFO

Meanwhile, the abundance of chinook off the Washington Coast is predicted in pre-season forecasts to be slightly above the 10-year average. Forecasts for this year’s chinook runs are higher than last year’s forecast but not as high as the surprisingly high numbers of chinook that ultimately came back last year. See 2016 chinook forecast (PDF 135 kb).

Considering the apparent difference between the number of chinook in the ocean and those coming to the Fraser River, it is no wonder that the whales still remain off the coast.

Given the low salmon runs, Ken says he will be surprised if the annual census does not include some mortalities. One small group of whales, known as the L-12s, have not been seen for months. Meanwhile, four births were recorded since July of last year, with the latest report coming in December. And, as far as anyone can tell, eight of the nine orcas born since December 2014 are still living. It would be remarkable if we are still able to say that when the official census for 2016 is finally reported in September.

Endangered Species Act can’t help Lolita, judge says in legal ruling

When Lolita, a female orca held captive since 1970, was listed among the endangered population of Southern Resident killer whales, advocates for Lolita’s release were given new hope. Perhaps the listing would help Lolita obtain a ticket out of Miami Seaquarium, where she has lived since the age of 5.

Lolita has lived in a tank at Miami's Seaquarium since age 5. Photo courtesy of Orca Network
Lolita has lived at Miami’s Seaquarium since age 5.
Photo courtesy of Orca Network

But a U.S. district judge ruled last week that the Endangered Species Act could not help her. While the federal law prohibits human conduct likely to “gravely threaten the life of a member of a protected species,” it cannot be used to improve her living conditions, according to the ruling (PDF 3.3 mb) by Judge Ursula Ungaro in the Southern District of Florida.

“We very much disagree with the decision, and we will be appealing it,” said attorney Jared Goodwin, who represents the plaintiffs — including the People for the Ethical Treatment of Animals (PETA), the Animal Legal Defense Fund and Orca Network.

Over the objections of attorneys for Miami Seaquarium, the judge said the plaintiffs have a right to sue the aquarium, but Lolita’s care and well-being falls under a different law: the Animal Welfare Act.

The judge noted that the National Marine Fisheries Service, which is responsible for marine species under the ESA, had previously stated that keeping threatened or endangered species in captivity is not a violation of the ESA. NMFS also deferred enforcement activities to the Animal and Plant Health Inspection Service, a division of the U.S. Department of Agriculture.

While the ESA prohibits listed species from being “harassed,” Judge Ungaro said the term takes on a different meaning for animals held in captivity, since the law is designed to conserve species in the wild along with their ecosystems.

The judge took note of the complaints about Lolita’s living conditions, including the small size of her tank, harassment by white-sided dolphins that live with her and the lack of shade or other protection from the weather. But those aren’t conditions to be judged under the ESA, she said.

“Thus, while in a literal sense the conditions and injuries of which plaintiffs complain are within the ambit of the ordinary meaning of ‘harm’ and ‘harass,’ it cannot be said that they rise to the level of grave harm that is required to constitute a ‘take’ by a licensed exhibitor under the ESA,” she wrote.

Judge Ungaro also cited statements made by NMFS in response to comments from people who want to see Lolita released into a sea pen or possibly into open waters. Such a release, “could itself constitute a ‘take’ under Section 9(a)(1) of the act,” she said, quoting NMFS.

“The NMFS noted concerns arising from disease transmission between captive and wild stocks; the ability of released animals to adequately forage for themselves; and behavioral patterns developed in captivity impeding social integration and affecting the social behavior of wild animals,” the judge wrote.

Jared Goodman, the plaintiffs’ attorney, said the judge needlessly applied a separate definition of “harassment” to captive versus wild animals. Conditions at the aquarium are clearly harassment for Lolita, he said, and the Endangered Species Act should provide the needed protection.

The Animal Welfare Act, which should require humane treatment for captive animals, is long out of date and needs to be revised based on current knowledge about marine mammals, he said.

The same plaintiffs filed a new lawsuit in May against the Department of Agriculture for issuing a new operating license to Miami Seaquarium without adequately considering the conditions in which Lolita is being kept. Previously, a court ruled that the Animal and Plant Health Inspection Service acted properly when it renewed the license for Miami Seaquarium each year, because the law does not require an inspection for an ongoing permit.

That is not the case with a new license, which was required when the Miami Seaquarium came under new ownership as the result of a stock merger in 2014, according to the lawsuit. Federal inspectors should have reviewed the legal requirements to certify that Lolita’s tank and other facilities met the standards before issuing a new license, Jared said. According to documents he obtained through public disclosure requests, it appears that the federal agency simply “rubber-stamped” its previous approvals, he said, adding that a formal review would show that the aquarium in violation of animal welfare rules.

As the legal battles go on, it is difficult to see how Lolita is any closer to being “retired” to a sea pen in Puget Sound where she was born, although Howard Garrett of Orca Network and other supporters have developed a plan for Lolita’s return and even have a specific site picked out. See “Proposal to Retire the Orca Lolita.” (PDF 3.5 mb).

Meanwhile, with SeaWorld’s announcement that it will no longer breed killer whales or force orcas to perform for an audience, a new group called The Whale Sanctuary Project is looking for sites to relocate whales and dolphins that might be released. The project has received a pledge of at least $1 million from Munchkin, Inc., a baby product company. For details, check out the group’s website and a press release announcing the effort. I should point out that SeaWorld officials say they won’t release any animals.

Previous “Water Ways” blog entries:

Orca Awareness Month includes many activities

June is Orca Awareness Month in the Salish Sea. And, as we’ve seen in recent years, the Southern Resident killer whales are not around to help kick off the month-long celebration.

Logo

J pod, one of the three Southern Resident pods, typically moves in and out of Puget Sound through the winter and into spring, but none of the whales have been seen in inland waters since May 18, according to Orca Network. On May 24, the same groups were seen off the West Coast of Vancouver Island.

Let’s hope they are finding plenty to eat, then come home to the San Juan Islands in time for Orca Sing at Lime Kiln State Park on June 25, when people will gather to serenade them. Meanwhile, plenty of other events will be held during Orca Awareness Month.

Another annual event, planned for this Saturday, is EcoFest, which has been revamped this year as a more active festival, rather than a lineup of information booths. Organizers are calling the event in Kingston “a community science and nature festival.”

EcoFest

A nature walk followed by tips on bird watching, solar power, medicinal plants and green construction techniques are part of the festivities, along with music and food. For information, download the press release (PDF 77 kb) from Stillwaters Environmental Center or visit the Stillwaters website.

The following day, this Sunday, is the kickoff celebration for Orca Awareness Month, including a Baby Orca Birthday Bash at Alki Beach Bathhouse, 2701 Alki Ave. SW in Seattle. Live music by Dana Lyons (see Water Ways, Jan. 25), face painting, orca bingo and other activities are planned.

For the remainder of the month, activities include an informational webinar June 9, a discussion about the toxic threat June 16, “Orcas in Our Midst” workshop June 18, a march for endangered orcas June 24, “Orca Sing” June 25, “Oil, Orcas and Oystercatchers” forum June 25, and “Orca and Salmon: An Evening of Storytelling” June 29. These and several events yet to be scheduled can be followed on the Orca Month website or the Facebook page.

Orca Awareness Month was started 10 years ago by Orca Network and has been adopted by Orca Salmon Alliance, made up of organizations working to expand awareness of the relation between killer whales and salmon, both considered at risk of extinction.

Orca Awareness Month is recognized in Washington state in a proclamation from Gov. Jay Inslee (PDF 474 kb). In British Columbia, a proclamation was issued for the first time by the attorney general and lieutenant governor. For BC residents, a new Facebook page, Orca Month BC, is available.

Amusing Monday: Baby river otters must be taught how to swim

Baby river otters appear to be reluctant swimmers when they enter the water for the very first time. As you can see in the first video, the mother otter pulls, pushes and practically wrestles her offspring to begin a swim lesson at Columbus Zoo in Ohio.

The second video, from Oregon Zoo in Portland, features otter keeper Becca VanBeek, who provides us some details about the life of a young otter. Shown is a baby otter named Molalla. The mom seems a bit rough with her baby, but she’s just trying to teach a diving and breathing pattern.

If we want to be formal about it, what should we call a baby otter? A baby walrus is called a calf, and a baby sea lion is called a pup. So a baby otter is called a ______? If you said pup, you are right.

Now for the parents. If a male walrus is called a bull and a male sea lion is also called a bull, what is a male otter called? The answer is boar, but please don’t ask me who comes up with this stuff. Correspondingly, female walruses and female sea lions are called cows, while female otters are called sows.

Thirteen kinds of otters exist in the world. Some, such as the sea cat of South America, are so endangered that almost nothing is known about them Read about all 13 on the h2g2 website.

In the Northwest, many people confuse the sea otter with the river otter. Both are related to the weasel, and both have webbed feet and two layers of fur to maintain their body temperature in cold water. But there are many differences:

  • River otters spend more time on land than water. Sea otters almost never climb up on land.
  • River otters live in freshwater and marine estuaries. Sea otters live in seawater, including the ocean.
  • River otters generally grow to 20-25 pounds, sea otters to 50-100 pounds.
  • River otters swim with their bellies down and expose little of their back. Sea otters generally swim belly-up and float high in the water because of air trapped in their fur.
  • River otters have rounded webbed paws, front and back. Sea otters’ rear paws are elongated like flippers with webbing going to the end of the toes.

Sources: Sea Otter Recovery and Aquarium of the Bay

Other otter videos worth watching:

Below is one of the two live cameras in the sea otter exhibit at Seattle Aquarium. The cameras are in operation from 9 a.m. to 6 p.m. Visit the aquarium’s Otter Cams webpage to see both cams and read about the otters.

Monterey Bay Aquarium also has a live otter cam, which is in operation from 7 a.m. to 7 p.m. Visit the aquarium’s Sea Otter page for feeding times, when the otters are introduced to the audience and a live discussion takes place with otter experts.

Time to rethink how contaminants get into Puget Sound food web

For years, I have been told the story of how PCBs and other toxic chemicals cling to soil particles and tiny organic debris as polluted water washes off the land.

Richard Henderson of the Skagit River System Cooperative uses a beach seine to catch juvenile chinook salmon near the Skagit River delta. Fish from this rural area were found to be less contaminated than fish taken from urban areas. Photo: WDFW
Richard Henderson of the Skagit River System Cooperative uses a beach seine to catch juvenile chinook salmon near the Skagit River delta. Fish from this rural area were found to be less contaminated than fish taken from urban bays. // Photo: WDFW

Eventually, the PCB-laden particles are carried into Puget Sound, where they settle to the bottom. From there, they begin working their way into marine animals, disrupting their normal functions — such as growth, immune response and reproduction.

The idea that contaminants settle to the bottom is the story I’ve been told for as long as I can remember, a story long accepted among the scientific community in Puget Sound and across the U.S. So I was surprised when I heard that leading scientists who study toxic chemicals in Puget Sound were questioning this long-held idea about how dangerous chemicals get into the food web.

Puget Sound may be different from other waterways, they said.

“When you look at the concentrations in herring and the concentrations in the sediments, something does not line up,” Jim West told me. “The predictions are way off. We think there is a different mechanism.”

Jim is a longtime researcher for the Washington Department of Fish and Wildlife. I have worked with him through the years on various stories about the effects of contaminants on marine organisms. But now he was talking about changing the basic thinking about how chemicals are transferred through the food web.

Jim postulates that many of these PCB-laden particles that wash down with stormwater never sink to the bottom of Puget Sound. Instead, they are taken up by tiny organisms floating in the water. The organisms, including bacteria and phytoplankton, are eaten by larger plankton and become incorporated into fish and other free-swimming creatures — the pelagic food web.

Jim presented his findings at the Salish Sea Ecosystem Conference last month in Vancouver, B.C. Sandie O’Neill, another WDFW researcher, presented other new information about the transfer of contaminants through the food web — from plankton to herring to salmon to killer whales.

My stories about the studies conducted by Jim and Sandie (with help from a team of skilled scientists) were published today in the Encyclopedia of Puget Sound, where you can read them. These are the first of at least 10 story packages to be to written by a team of reporters working for the Puget Sound Institute.

The Salish Sea conference was attended by more than 1,100 people, including 450 researchers and policymakers who talked about new information related to the Salish Sea — which includes Puget Sound in Washington, the Strait of Georgia in British Columbia and the Strait of Juan de Fuca on the U.S./Canada border.

When I first heard about Jim West’s idea regarding the fate of toxic chemicals circulating in Puget Sound, I thought one result might be to shift restoration dollars away from cleaning up sediments to cleaning up stormwater. After all, if the majority of PCBs aren’t getting into the sediments, why spend millions of dollars cleaning up the stuff on the bottom? Why not devote that money to cleaning up stormwater?

In fact, the worst of the contaminated sediments in Puget Sound have been cleaned up, with some cleanups now under way. That helps to ensure that toxic chemicals won’t get re-suspended in the water and taken up into the pelagic food web all over again. A few hotspots of contaminated sediments may still need some attention.

As far as putting the focus on stormwater, that’s exactly what the Puget Sound Partnership has done with support from the Department of Ecology and other clean-water agencies. It is now well established that the key to reducing pollution in Puget Sound is to keep toxic chemicals out of stormwater or else create settling ponds, rain gardens, pervious pavement and other methods to capture the PCB-laden particles before they reach Puget Sound.

I noticed that Ecology just today announced a new round of regulations to control stormwater in King, Pierce, Snohomish and Clark counties. Proposed changes include updating stormwater programs for new construction projects and for redevelopment. An appendix will describe Seattle’s plan to reduce stormwater pollution in the Lower Duwamish River, where PCBs are a major problem. For more on stormwater regulations, go to Ecology’s website.

As Sandie told me during our discussions, all the work on fixing habitat in Puget Sound streams is not enough if we can’t control the discharge of PCB’s — which were banned in the 1970s — along with newer contaminants still working their way into our beloved waterway. Any measure of healthy habitat must include an understanding of the local chemistry.