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Environmental reporter Christopher Dunagan discusses the challenges of protecting Puget Sound and all things water-related.
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Posts Tagged ‘Endangered Species Act’

Will ‘endangered’ status change Lolita’s plight?

Tuesday, January 28th, 2014

The legal stage was already set for Lolita, the last killer whale from Puget Sound to survive in captivity.

Lolita lives alone in a tank at Miami's Seaquarium. Photo courtesy of Orca Network

Lolita lives alone in a tank at Miami’s Seaquarium.
Photo courtesy of Orca Network

Putting Lolita on the Endangered Species List, along with her wild relatives who were already listed, follows a pattern established over the past decade, going back to a 2001 court ruling about salmon. Now, the National Marine Fisheries Service intends to include Lolita among the listed Southern Resident killer whales. See “Petition to list the killer whale known as Lolita….”

But what the endangered designation will mean for Lolita herself is yet to be seen and is likely to be the subject of further legal battles.

People for the Ethical Treatment of Animals (PETA), which filed the petition along with the Animal Legal Defense Fund, hailed the latest decision by NMFS. The group said in a news release that the decision “opened the door to the eventual release of Lolita.”

Jarred Goodman, who handled the case for PETA, told me that it is PETA’s belief that holding Lolita in a small tank at Miami Seaquarium constitutes “harm and harassment,” which are violations of the Endangered Species Act.

After NMFS completes changes to the listing, PETA has several options, he said, although he is not authorized to discuss specific strategies. Calling on NMFS to take action on behalf of Lolita or filing a citizen lawsuit are among them.

Nothing in the NMFS findings would change anything for Lolita, however. The bottom line is that NMFS could find no legal justification in the Endangered Species Act (PDF 147 kb) or related court decisions for separating the captive orca from wild Southern Residents when it comes to identifying which ones are at risk of extinction.

As NMFS stated in the Federal Register (PDF 273 kb):

“While the ESA authorizes the listing, delisting, or reclassification of a species, subspecies, or DPS (distinct population segment) of a vertebrate species, it does not authorize the exclusion of the members of a subset or portion of a listed species, subspecies, or DPS from a listing decision….

“The ESA does not support the exclusion of captive members from a listing based solely on their status as captive. On its face, the ESA does not treat captives differently. Rather, specific language in Section 9 and Section 10 of the ESA presumes their inclusion in the listed entity, and captives are subject to certain exemptions to Section 9.”

In other words, the original decision not to include captive killer whales in the population at risk of extinction was a mistake.

In finding that Lolita is part of the endangered population, NMFS noted that agency officials agreed with a 2001 court ruling in which a judge determined that hatchery salmon should be considered part of the salmon population at risk of extinction.

Following that logic, the NMFS included captive fish in the listing of endangered smalltooth sawfish and endangered Atlantic sturgeon. Meanwhile, the U.S. Fish and Wildlife Service decided last year that captive chimpanzees should be included among the wild population listed as endangered.

The ESA does allow captive animals to be treated differently, provided they were in captivity at the time of the listing and “that such holding and any subsequent holding or use of the fish or wildlife was not in the course of a commercial activity.”

For Lolita, NMFS has stated that continued possession of captive animals does not require a permit under ESA and that Lolita can continue to be managed under the Animal Welfare Act. (See “Questions and answers …”)

Advocates for Lolita say NMFS may not have taken a position on Lolita, given the latest findings. The notice only says that holding an endangered animal in captivity is not a violation of the ESA per se.

I’ll continue to follow the case as it moves forward. Meanwhile, here are some past of my past observations about Lolita in Water Ways:

April 24, 2013: Lolita, the captive orca, could gain endangerd status

Oct. 24, 2012: Should captive orcas be listed as ‘endangered’?

Nov. 20, 2011: Legal actions swirl around orcas Morgan and Lolita

Aug. 8, 2010: Thinking of Lolita, the captive killer whale

July 15, 2010: Lolita’s fate could become linked to Gulf disaster


Group petitions to expand orca critical habitat

Sunday, January 19th, 2014

Because Southern Resident killer whales spend so much time foraging in the Pacific Ocean, the coastal waters from Washington to Northern California should be designated for special protection, according to the Center for Biological Diversity.

Southern Resident killer whales NOAA photo

Southern Resident killer whales // NOAA photo

The environmental group listed research conducted by the National Marine Fisheries Service — including ongoing satellite-tracking studies — in a new petition to the agency. The “Petition to Revise the Critical Habitat Designation …” (PDF 340 kb) calls for the West Coast to be designated as critical habitat from Cape Flattery in Washington to Point Reyes in California. The protected zone would extend out nearly 50 miles from shore.

Environmental activists have long argued that the whales depend on more than the San Juan Islands, Puget Sound and the Strait of Juan de Fuca for their survival. Those inland areas, currently designated as critical habitat, are where the whales normally spend most of the summer months. But when winter comes around, where the whales go has been a relative mystery until recent years.

Map by Curt Bradley / Center for Biological Diversity

Map by Curt Bradley / Center for Biological Diversity

An intensive research program has pointed to the conclusion that all three pods venture into Pacific Ocean, and K and L pods travel far down the coast. Research methods include a coastal network of people watching for whales, passive recorders to pick up sounds from the orcas, and work from large and small research vessels. Satellite tracking has allowed researchers to map the whales’ travels. (See Water Ways, Jan. 14.) In addition, forage activity has been observed where rivers drain into the ocean, and many researchers believe that the Columbia River may be especially important.

In addition to the proposal to expand critical habitat, the petition calls for NMFS to include man-made noise among the characteristics getting special attention. The petition states:

“Moreover, in revising the critical habitat designation for Southern Resident killer whales, NMFS must also preserve waters in which anthropogenic noise does not exceed levels that inhibit communication, disrupt foraging activities or result in hearing loss or habitat abandonment.

“A variety of human activities, including shipping operations, have the potential to impair these functions by generating additional ocean noise, resulting in the acoustic degradation of killer whale habitat.

“Global warming and increasing ocean acidification, both products of anthropogenic greenhouse gas emissions, also contribute to rising levels of ambient noise.”

Characteristics already considered in protecting the orcas’ critical habitat include water quality, prey quality and abundance, and adequate room to move, rest and forage.

I thought it was interesting that the Center for Biological Diversity would petition the agency to expand critical habitat for the Southern Residents at a time when federal researchers are building a pretty strong case to do that on their own.

Sarah Uhlemann, a senior attorney at the center, told me that she sees the petition as supportive of those research efforts, which seem to be building toward a legal and policy shift:

“They have been putting a lot of funding into that research, and we’re thrilled about that. The agency has been pretty clear that it does intend to designate critical habitat in the winter range.

“This petition puts them on a time frame. They have 90 days to decide if the petition may be warranted… Within a year, they must inform the public about what their plans are.

“This is supportive of what the agency already has in mind. It just gives them a little kick to move forward faster.”

The Endangered Species Act defines critical habitat as “the specific areas within the geographical area occupied by the species … on which are found those physical or biological features … essential to the conservation of the species and … which may require special management considerations or protection.”

Within critical habitat, federal agencies are required to focus on features important to the survival of the species.

The petition mentions a recent study suggesting that Southern Residents may require consistent availability of chinook salmon, rather than “high numbers of fish that are only available for a short period of time.” If those findings hold up, coastal foraging may be critical to the population’s survival, the petition says, citing work by Katherine Ayres of the University of Washington’s Center for Conservation Biology.

The Ayres study concludes that the whales become “somewhat food-limited during the course of the summer” and, therefore, “the early spring period when the whales are typically in coastal waters might be a more important foraging time than was previously thought.”

It could be pointed out that the Southern Residents spent little time in Puget Sound this year, and researchers speculate that they may have been finding better prospects for food among the more abundant runs of chinook returning to the Columbia River.

While J and K pods have have begun to rebound in population, L pod has declined to historic lows, totaling only 36 individuals last fall. Where there is uncertainty, the petition calls on NMFS to act on the side of protection. The petition states:

“Without proper oversight, human activities will continue to degrade this region, compromising the continued existence of habitat characteristics required for the population’s survival and recovery. As NMFS is aware, anthropogenic pressures have already contributed to the decline of salmon stocks throughout the northwestern United States.

“Nutritional stress resulting from low Chinook abundance may act synergistically with the immunosuppressive effects of toxic contaminants, present in prey species from both coastal and inland marine waters, causing Southern Residents to experience a variety of adverse health effects, including increased mortality. The population may be unable to adapt to further reductions in prey availability.”

In a news release, Sarah Uhlemann expressed her concerns for the whales:

“These whales somewhat miraculously survived multiple threats over the years, including deliberate shootings and live capture for marine theme parks. The direct killings have stopped, but we can’t expect orcas to thrive once again if we don’t protect their critical habitat.

“Killer whales are important to the identity and spirit of the Pacific Northwest and beloved by people across the country. If this population of amazing, extremely intelligent animals is going to survive for future generations, we need to do more to protect their most important habitat.”


Lolita, the captive orca, could gain endangerd status

Wednesday, April 24th, 2013

Lolita, a killer whale taken from Puget Sound in 1970 and placed in a Miami aquarium, could be reclassified as an endangered species, along with other endangered Southern Resident orcas. At the moment, Lolita is not listed at all.

Lolita lives alone in a tank at Miami's Seaquarium. Photo courtesy of Orca Network

Lolita lives alone in a tank at Miami’s Seaquarium. Photo courtesy of Orca Network

NOAA Fisheries announced today that PETA — People for the Ethical Treatment of Animals — has provided adequate documentation to consider whether captive orcas (specifically Lolita) should be listed along with their counterparts still roaming free.

One must not presume, however, that because NOAA has accepted PETA’s petition that a listing will follow, agency officials stressed.

I was under the impression, from talking to NOAA officials last year, that we would soon know whether or not the entire Southern Resident population would be taken off the Endangered Species List, as proposed by Pacific Legal Foundation. But that decision appears to be delayed for consideration of the Lolita petition.

“The agency said to make sure that its review is complete and based on the best available science it would now solicit any new information about Lolita’s genetic heritage and status to include in the ongoing status review,” NOAA said in a news release. “A finding on the delisting petition is due next January.”

PETA filed its petition on behalf of the Animal Legal Defense Fund, Orca Network and four individuals. The 33-page petition, filed in January, applies only to Lolita, since the 35 other killer whales captured in Puget Sound have died, the petition notes. Documents — including the Lolita petition — can be found on NOAA Fisheries’ website. I discussed PLF’s delisting petition and provided links to related documents in Water Ways last Oct. 24.

The PETA petition strongly challenges the reasons for ever leaving Lolita out of the endangered population:

“No explanation was offered for Lolita’s exclusion from the listing because no legitimate explanation exists. Lolita’s biological heritage is undisputed. The Endangered Species Act unquestionably applies to captive members of a species, and the wholesale exclusion of captive members of a listed species is in excess of the agency’s authority.

“Lolita’s exclusion serves only one purpose: It protects the commercial interests of the Miami Seaquarium. The Endangered Species Act specifically precludes agency consideration of whether listing a species would cause the holder of any member of the species any economic harm. Thus Lolita’s exclusion violates the act.

“This petition urges the National Marine Fisheries Service to rectify this unjustified and illegal exclusion, thereby extending Endangered Species Act protections to all members of the Southern Resident killer whale population.

“Although as a legal matter Lolita’s genetic heritage is sufficient to merit her listing, this petition provides additional support in four sections. The first section provides the factual background regarding the Southern Resident killer whales’ listing and Lolita’s exclusion. The second section explains the application of the act to captive members of listed species. The third section applies the five factors that govern listing decisions under the act to the Southern Resident killer whales generally and also to Lolita. The fourth section considers policy reasons that support Lolita’s protection, given her significant scientific value to the wild population.”


Endangered orca listing comes under formal review

Tuesday, November 27th, 2012

NOAA has agreed to conduct a status review to determine if Puget Sound’s killer whales should remain on the Endangered Species List.

The agency received a petition from the Pacific Legal Foundation, which claims that the three Southern Resident pods should be considered just a part of a larger population of orcas. According to the PLF, the Southern Residents do not meet the legal definition of “species” that qualifies them for listing:

“The term ‘species’ includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”

The 62-page PLF petition (PDF 384 kb) — filed on behalf of three parties, including California farmers — argues from a carefully constructed legal analysis that says NOAA should never have listed the Southern Residents in the first place.

When I first read the petition in August, I believed it was just an effort to rehash the legal arguments that NOAA went through during the listing process, following a federal court order in 2003. But NOAA apparently sees things differently, according to a news release issued yesterday:

“NOAA said the petition presents new information from scientific journal articles about killer whale genetics, addressing issues such as how closely related this small population is to other populations, and meets the agency’s standard for accepting a petition to review.”

NOAA apparently is taking a close look at a 2010 study led by Malgorzata Pilot, which was used by the petitioners to argue that the Southern Residents are not genetically isolated. From the petition:

“The significance of the findings of Pilot et al. (2010) is threefold.

“First, they demonstrate with data that social interactions among killer whale pods do occur in the wild and they occur more frequently than has been reported (i.e., many interactions are simply ‘missed’ by human observers who cannot watch a vast area of ocean to take note of killer whale pod interactions, 24 hours a day, 7 days a week, year round)….

“Second, Pilot et al. (2010) explain why inbreeding is not a problem even though killer whales rarely disperse outside of natal pods….

“Third, Pilot et al. (2010) explain why mtDNA haplotypes (groups of genes that are inherited together by an organism from a single parent) can be highly divergent among ecotypes but not nuclear DNA markers….Therefore, if only mtDNA is considered in an analysis, the loss of mtDNA variation in populations (also referred to as lineage sorting) can give an erroneous appearance of populations (and putative species) being genetically isolated because they are trying to maintain taxonomic differences while at the same time ecotypes and populations are not isolated for nuclear genetic variation.”

Sorry if that’s a little technical, but it shows why NOAA decided to take up to an additional nine months to decide if the petitioners have a case based on arguments about genetic isolation. Are the Southern Residents a distinct population segment of the overall species?

The petitioners argue that NOAA improperly declared the Northern Pacific killer whales (Northern and Southern Residents) as a subspecies, making the Southern Residents a DPS of a subspecies — which, they argue, is illegal under the Endangered Species Act.

In response to NOAA’s status review, the Center for Biological Diversity, which fought the first legal battle over the listing, issued a news release saying that nothing has changed in the realm of science. The population qualifies as a DPS, because it is one of only a few to feed extensively on salmon; it has a unique dialect; and it is genetically unique.

Stated Sarah Uhlemann, an attorney at the Center for Biological Diversity:

“It would be a tragedy to strip Washington’s most iconic species of protections. Only around 85 southern resident killer whales are left, and their Endangered Species Act listing is critical to the population’s recovery in Puget Sound.

“Nothing has changed in the science to show that orcas are faring any better or are somehow suddenly undeserving of endangered species protections. Although the agency’s decision to consider the delisting petition is unfortunate, the species’ status is unlikely to change as a result of the agency’s review, and these irreplaceable killer whales will almost certainly keep their protections.”

Other news stories on NOAA decision to review the listing:

Bill Sheets, The Herald, Everett: “Calif. farms challenge state orcas’ endangered status”

Linda Mapes, Seattle Times, “California farmers want orcas taken off endangered-species list”

Meanwhile, in terms of classifying orcas, there is an ongoing effort to include captive killer whales among the population listed as endangered. See Water Ways, Oct. 24, 2010.

And there’s a new story by Associated Press reporter Dan Joling, who writes about an effort to declare transient killer whales a new species and name them for the late Michael Bigg, a killer whale researcher who developed today’s common method for identifying individual orcas.


Should captive orcas be listed as ‘endangered’?

Wednesday, October 24th, 2012

The legal battle to determine whether captive killer whales — specifically Lolita — should be considered part of the endangered orca population has been taken out of the courtroom by parties in the case.

Lolita lives alone in a tank at Miami’s Seaquarium.
Photo courtesy of Orca Network

A settlement agreement (PDF 284 kb) was signed two weeks ago between the National Marine Fisheries Service — which enforces the Endangered Species Act for marine mammals — and animal rights advocates who would like something better for this isolated animal.

Lolita is a female killer whale from Puget Sound who has been kept in a tank in Miami for 42 years.

The agreement essentially puts the lawsuit on hold pending a formal petition process under the ESA. Otherwise, the Animal Legal Defense Fund, People for the Ethical Treatment of Animals and others in the case would be left to argue about missed deadlines and proper legal notice to the federal government. See U.S. District Judge Benjamin Settle’s ruling (PDF 48 kb).

Reading between the lines, I can imagine a conversation between lawyers for the two sides:
(more…)


Legal actions swirl around orcas Morgan and Lolita

Sunday, November 20th, 2011

UPDATE: Dec. 13, 2012

Advocates for the release of Morgan have failed in their appeal to overturn the court ruling that transferred the young killer whale to Loro Parque, a Spanish amusement park. An appeals court ruled that the transfer was not unlawful. See today’s Dutch News

Barbara van Genne of Orca Coalition:

“Morgan is provisionally kept in Tenerife. Fortunately, in Spain animal protectors are attracting the fate of the orca and want to continue our fight there. We’ll continue to monitor Morgan and we will help where we can. And in the Netherlands we focus on the future, to ensure that stranded cetaceans will no longer fall in the hands of the commercial industry. The fact that the license for the care of these animals is no longer in the name of the amusement park Dolfinarium, but in the name of SOS Dolphin, is a good first step.”

—–

UPDATE: Nov. 29

Morgan was loaded into a plane today and flown to her new home in Loro Parque, an amusement park on the Spanish island of Tenerife. The transport, which involved trucks on both ends of the trip, was uneventful.

Toby Sterling covered the story for the Associated Press.
—–
UPDATE: Nov. 21

A Dutch court ruled this morning that Morgan may be sent to live at Loro Parque aquarium, ruling against advocates who had hoped to reunite the young orca with her family in Norway.

In a written finding, Judge M. de Rooij said chances of the female whale surviving in the wild were “too unsure,” according to a report by Toby Sterling of the Associated Press.

“Morgan can be transferred to Loro Parque for study and education to benefit the protection or maintenance of the species,” she was quoted as saying.

Reactions among supporters for her release are being compiled on the Free Morgan website.

Ingrid Visser, who helped lay the scientific groundwork for Morgan’s release, was quoted as saying the only hope for Morgan now now lie with the Spanish courts or the Norwegian government.

“Personally, I am devastated that after all these months of fighting the good fight, to find that reason and science lost over money and ulterior motives,” Visser wrote on the Free Morgan page. “Our long-term goal of establishing laws to ever prevent an animal in need being turned into an animal used for profit and personal gain will not stop with Morgan’s incarceration.”
—–

Separate legal actions continue to swirl around two famous killer whales, Morgan and Lolita.

The fate of Morgan, the orphan killer whale, lies with an Amsterdam judge who is scheduled to decide tomorrow if the orca should be moved permanently to an aquarium in Spain or be taken to a coastal location where she might be reunited with her family.
said

Steve Hearn, head trainer at Dolfinarium Harderwijk, plays with Morgan at feeding time two weeks ago.
Associated Press photo by Peter Dejong

Morgan, estimated to be 3 to 5 years old, was rescued in poor condition last year in the Wadden Sea and was nursed back to health in a marine park called Harderwijk Dolfinarium. Advocates for her release say Morgan is being commercially exploited in violation of international law regarding marine mammals.

As for Lolita, animal-rights groups in the United States filed a lawsuit last week regarding the killer whale captured in Puget Sound in 1970 and kept in the Miami Seaquarium almost her entire life.

The new lawsuit contends that Lolita should have not have been excluded as part of the “endangered” population when the federal government listed the Southern Residents under the Endangered Species Act in 2005. The Animal Legal Defense Fund and People for the Ethical Treatment of Animals say if Lolita is included among the endangered orcas, it will lead to better treatment and possibly a reunion with her relatives.

Morgan’s story

Advocates for Morgan’s release say her caretakers at the marine park did a good job nursing her back to health, but the law requires that every effort be made to release marine mammals after rehabilitation is complete.

The dolphinarium filed a report saying that it is unlikely that Morgan would be able to survive in the wild and that finding her family was unlikely. Some experts who supported that initial report have since changed their minds, however.

Dutch Agriculture Minister Henk Bleker sided with dolphinarium officials, saying moving Morgan to a large tank at Loro Parque is best under the circumstances. That decision was unchanged after the judge ruled that the ministry must conduct its own evaluation, independent of the dolphinarium.

As time goes on, experts associated with the Free Morgan Foundation say they are getting close to identifying Morgan’s family group, based on recordings of vocalizations. In the latest report, researchers Heike Vester and Filipa I. P. Samarra said, “We do consider it likely that Morgan is either from group P or a group closely related to group P,” which are among the orcas that live in Norway. Check out the report, “Comparison of Morgan’s discrete stereotyped call repertoire with a recent catalogue of Norwegian killer whale calls” (PDF 5.9 mb).

Here are the Water Ways entries I’ve posted so far about Morgan:

Aug. 3, 2011: Supporters of Morgan’s release celebrate a victory

Feb. 2, 2011: Morgan, the orphan orca, gets her own lawyer

Jan. 14, 2011: Orphan orca gains attention of whale advocates

Lolita’s new lawsuit

The Animal Legal Defense Fund and People for the Ethical Treatment of Animals are asking that Lolita be included in the population listed as endangered under the Endangered Species Act.

It isn’t clear what this would accomplish, but the groups make the point that the Endangered Species Act makes some exceptions for listing animals kept in captivity, but the focus is on using those animals for recovery of the listed population and does not apply to animals kept for commercial use, the groups argue. Quoting from the lawsuit filed in U.S. District Court in Seattle (PDF 92 kb):

“In its final listing decision (in 2005), NMFS provided no explanation for its decision to exclude all of the captive members of the Southern Resident killer whale population from the listing of that population as endangered.

“Because of its final listing decision, NMFS has excluded Lolita from the protections of the ESA, thereby allowing her to be kept in conditions that harm and harass her, and that would otherwise be prohibited under the “take” prohibition of the ESA, 16 U.S.C. § 1538(a), including, but not limited to, being kept in an inadequate tank, without companions of her own species or adequate protection from the sun.”

The group asks the court to set aside the portion of the listing decision that excluded Lolita from the endangered population, because it was “arbitrary and capricious, an abuse of discretion, and not in accordance with law.”

Some Water Ways entries related to Lolita:

Aug. 8, 2010: Thinking of Lolita, the captive killer whale

July 15, 2010: Lolita’s fate could become linked to Gulf disaster

Jan. 23, 2008: Lolita, the orca, makes news again

Jan. 12, 2008: Celebrities and a ‘beautiful whale’


Keeping watch for killer whales coming south

Wednesday, November 2nd, 2011

An axiom among orca observers goes something like this: When you believe you have figured out what killer whales will do, they’ll do something else.

I’ve become accustomed to writing an annual story that lets people know when chinook salmon runs are dwindling in the northern waters of Puget Sound and the Strait of Georgia and when chum salmon runs are beginning to build up in South Puget Sound.

It happens in the fall, and it generally means that our Southern Resident orcas will begin checking out the buffet table in areas from Whidbey Island to Tacoma and occasionally as far south as Olympia. During this time, ferryboat riders aboard the Kingston, Bainbridge Island, Bremerton and Vashon Island ferries begin seeing the whales more frequently.

It appears that the table is now set and waiting for the whales, but that doesn’t mean they’ll show up for dinner on time, as I describe in a story I wrote for yesterday’s Kitsap Sun.

Lots of people reported seeing the orcas last week, when they were spotted from all the usual ferries, including some rare sightings on the Mukilteo run. The video on this page was taken at Point Robinson on Vashon Island and shows how exciting it can be to watch whales from the shore.

Although the Southern Residents showed up in South Sound only twice in October, historical records reveal that as long as chum are around, the whales — most notably J Pod — can be expected to return through December. One analysis of whale movements was conducted as part of a tidal energy project for the Snohomish County Public Utility District. See Marine Mammal Pre-Installation Study (PDF 12.9 mb). (Note the large file.)

While the Southern Residents are known to eat chum in the fall, there is no doubt that their preferred prey is chinook salmon, which are listed as threatened under the Endangered Species Act. How to make sure the orcas are getting enough chinook to eat is part of a major study effort now under way, including a series of workshops about the effects of salmon fishing on the killer whales.

A report of the first workshop, held Sept. 21-23, contains an incredible amount of scientific information related food availability and the value of different salmon to our local orcas. Check out this page: Evaluating the Effects of Salmon Fisheries on Southern Resident Killer Whales.


Columbia River salmon still wrapped in legal battles

Wednesday, August 3rd, 2011

When I heard that U.S. District Judge James Redden had, for the third time, rejected a biological opinion designed to protect Columbia River salmon from extinction, my mind leaped to this ongoing question: Will this decision move us closer or further away from removing dams from the Snake River?

After reading Redden’s opinion (PDF, 1.1 mb), I’m not sure. But I can understand why various sides of the debate must be feeling a mixture of hope and frustration from a legal battle that has continued for more than 10 years.

Redden was clear that NOAA Fisheries (National Marine Fisheries Service) could not conclude that salmon are on their way to recovery by relying on undetermined and unplanned habitat improvements proposed from 2013 to 2018 — not so very far in the future.

Quoting from his own opinions upheld by higher courts, Redden wrote in a fairly straight-forward way:

“The ESA (Endangered Species Act) prohibits NOAA Fisheries from relying on uncertain and speculative actions that are not ‘reasonably certain to occur.’ Mitigation measures may be relied upon only where they involve ‘specific and binding plans’ and ‘a clear, definite commitment of resources to implement those measures …’

“Mitigation measures supporting a biological opinion’s no-jeopardy conclusion must be ‘reasonably specific, certain to occur, and capable of implementation; they must be subject to deadlines or otherwise-enforceable obligations; and, most important, they must be address the threats to the species in a way that satisfies the jeopardy and adverse-modification standards.

“Here, NOAA Fisheries improperly relies on habitat mitigation measures that are neither reasonably specific nor reasonably certain to occur, and in some cases not even identified….

“It is one thing to identify a list of actions, or combination of actions through adaptive management to reflect changed circumstances. It is another to simply promise to figure it all out in the future….

“Coupled with the significant uncertainty surrounding the reliability of NOAA Fisheries habitat methodologies, the evidence that habitat actions are falling behind schedule, and that benefits are not accruing as promised, NOAA Fisheries’ approach to these issues is neither cautious nor rational.”

In a footnote, Redden said he is troubled that the agencies have been unable to come up with numerical predictions for salmon survival based on the habitat improvements proposed.

Redden said he would keep the biological opinion in place, flawed as it is, to ensure that NOAA Fisheries will “get out of the courtroom and get to work for the next two and a half years.”

By 2014, Redden wants a new biological opinion that thoroughly discusses the mitigation efforts but also addresses “more aggressive action, such as dam removal and/or additional flow augmentation and reservoir modifications….

“As a practical matter,” he notes, “it may be difficult for federal defendants to develop a long-term biological opinion that relies only on mitigation measures that are reasonably certain to occur.”

That last sentence about the difficulty of relying on mitigation measures keeps the door open to a future court order involving dam removal — but Redden clearly understands that he cannot replace a biological opinion with a legal ruling.

Will Stelle, regional director of NOAA Fisheries put a positive spin on the ruling. He told Scott Learn of The Oregonian that adding more detail to the biological opinion should be enough satisfy the judge.

“He ordered us to tighten up on the habitat program after 2013, and that’s fine,” Stelle was quoted as saying. “We were intending to do it anyway.”

Environmental and fishing groups celebrated the judge’s ruling, as they explained in a joint news release (Scribd). The following comment is from Zeke Grader, executive director of Pacific Coast Federation of Fishermen’s Associations:

“Now is the time for the Obama Administration to walk the talk on real salmon solutions. As this ruling highlights, the federal government has spent nearly 20 years spending enormous sums of money foolishly by doing all the wrong stuff.

“Facing the problem squarely, including potential removal of the four fish-killing dams on the lower Snake River, will create many thousands more jobs, revive the fishing industry, save billions of dollars for taxpayers, and lead in the development of clean, renewable, more efficient energy.

“What we need most now is for this administration to lead us to those solutions, not just bury its head in the sand in denial as has so often happened in the past.”

Other news stories:

The News Tribune

Seattle Times


Rockfish getting the ‘respect’ that Sam Wright has requested

Friday, April 24th, 2009

Three species of Puget Sound rockfish have been proposed for listing under the Endangered Species Act. Bocaccio is proposed as “endangered,” while canary and yelloweye rockfish are proposed as threatened. (See the news release from the National Marine Fisheries Service.)

<i>Yelloweye rockfish</i> <small>photo by Tory O’Connell, Alaska Department of Fish and Game</small>

Yelloweye rockfish
Photo by Tory O’Connell, Alaska Department of Fish and Game

Of course, any listing is predicated upon scientific assessments of the population and risk of extinction, but I don’t recall any listed animal linked so closely to the efforts of a single person.

Sam Wright, a biologist who retired from the Washington Department of Fish and Wildlife, first petitioned to list 18 species of rockfish in 1999. But agency officials said he had not pulled together enough information, so his petition was rejected. Then he tried again in 2007, and was rejected again — until after he added more information and asked for reconsideration. Finally, Wright has experienced success — if you can call it that — for these three species.

Two other rockfish species under review — greenstriped and redstriped rockfish — did not warrant listing at this time, according to the National Marine Fisheries Service.

“They are beautiful fish,” Wright told me for a Kitsap Sun story published March 17 of last year. “They can live as long as human beings.”

Divers used to spear these rockfish and take them home to eat, he said, but now that they are nearly gone, there is a growing feeling of “look but don’t touch.”

Wright said he believes that saving rockfish is “more a matter of respect than anything else.”

Commercial fishing years ago has been blamed for the steep decline, and the stocks have never recovered.

In this latest action, critical habitat was not yet proposed, and it is unclear what other measures may be taken to protect rockfish. The proposed listing is subject to review and comment before becoming final.

For additional information, including a question-and-answer discussion and a 220-page draft “status review,” go to the agency’s Web site for Puget Sound rockfish.

See also a Water Ways entry I wrote more than a year ago and a Seattle Times story by Craig Welch.


Obama restores endangered species oversight

Wednesday, March 4th, 2009

President Obama announced yesterday that he will restore strong scientific “consultations” for actions affecting species listed under Endangered Species Act. His order reverses a Bush policy that said agencies could do their own reviews.

The video, at right, shows Obama making the announcement before an audience of Interior Department employees celebrating the 160th anniversary of the agency.

One of the best examples regarding the need for consultation comes from the Northwest, where we have salmon listed as threatened and endangered. The Environmental Protection Agency was required to review how certain pesticides affect fish. The EPA failed to consult with the National Marine Fisheries Service, which is responsible for protecting salmon listed under the Endangered Species Act. Environmental groups sued and won.

When the consultation finally took place, NMFS scientists revamped the methodology used by the EPA and came up with a more credible calculation of risk, as well as proposing stronger protections for certain species. See my story in the Kitsap Sun Nov. 18 or read information issued by the Northwest Coalition for Alternatives to Pesticides.

There are many examples in which consultation with scientists outside the lead agency has resulted in a better decision. Since the Bush policy is so new, I’m not aware of any decisions affecting endangered species that did not include consultations with the NMFS or the U.S. Fish and Wildlife Service. If you are aware of any, please let me know.

Obama’s reversal in policy brought applause from environmental groups.

“With this action Mr. Obama has restored the U.S. Fish and Wildlife Service and NMFS to their rightful authority as scientific advisers to federal agencies and has signaled that the Endangered Species Act, like many of the plants and animals it protects, is on its way to recovery,” said Michael Bean, attorney and wildlife expert for the Environmental Defense Fund.

“Obama’s move today puts expert scientists back in the driver’s seat for management of the nation’s endangered species,” said Kieran Suckling, executive director of the Center for Biological Diversity. “Obama has acted swiftly to meet an important campaign promise and show that he puts science and endangered species before politics.”

Business leaders were not thrilled, saying government regulations would only slow down approvals for all projects, even the routine ones.

A statement from Keith McCoy, vice president of energy and resources policy for the National Association of Manufacturers:

“In a time of serious economic crisis, it is more important than ever that we move forward with energy development and construction wherever feasible. The inevitable result of upending this Interior rule will be to delay and possibly deny badly-needed development projects.

“This will not stimulate economic growth, it will undermine it. The NAM looks forward to working with the Obama Administration and members of Congress to implement federal policies that promote economic expansion while protecting environmental quality and health, including the health of manufacturing workers and their families.”

Here’s the text of Obama’s executive memo on the issue.


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Food for thought

"In the end, we will conserve only what we love, we will love only what we understand, and we will understand only what we are taught."Baba Dioum, Senegalese conservationist

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