The Environmental Protection Agency is moving forward to protect
people’s health from toxic chemicals, despite an executive order
from President Trump that requires two existing regulations to be
repealed for every new regulation approved.
On Tuesday, the EPA will hold a public hearing to help develop
rules for controlling the use of 10 chemicals evaluated under the
revised Toxic Substances Control Act. (See
EPA Public Workshop.) As I described in
Water Ways, Dec. 1, these high-hazard chemicals could be banned
or significantly restricted in their use. Seven of the first 10
under review have been found in drinking water at various sites
across the country.
Preliminary information about the chemical risks and the
evaluation process can be found on
EPA’s TSCA website.
The revised Toxic Substances Control Act received overwhelming
bipartisan approval in Congress. Even the chemical industry
supported the law, in part because it would limit what states can
do to ban chemicals on their own. Check out my story in the
of Puget Sound.
We have yet to see how Trump’s executive order on controlling
regulations will affect upcoming rules for toxic chemicals, but the
order is already causing some confusion. It has been ridiculed as
“nonsensical” by environmental groups, which filed a lawsuit this
week seeking to overturn the order. More than a few Republicans say
they don’t know how it will work.
One of the three species of rockfish listed as threatened or
endangered in the Puget Sound region is about to be pulled off the
Endangered Species List, following recent scientific findings.
Genetic studies carried out with the help of fisherfolk from
Kitsap County have determined that canary rockfish are not a
discrete population from those found off the Washington Coast. An
official comment period on the delisting is open until Sept. 6, as
described in the
I first discussed early evidence of this genetic finding a year
ago. Kelly Andrews, a genetics expert with NOAA Fisheries,
confirmed that limited genetic samples of canary rockfish from
coastal areas appeared no different from samples taken from Puget
Sound. Kelly wanted to review analyses from additional samples
before drawing firm conclusions. See
Water Ways, June 18, 2015.
canary rockfish from the Endangered Species List will have no
yelloweye rockfish, listed as threatened, or bacaccio,
listed as endangered. The change also is expected to have no
immediate effects on fishing rules, which are designed to protect
all rockfish in Puget Sound.
Rockfish are considered an important part of the Puget Sound
ecosystem. Understanding the causes of their decline and finding
ways to rebuild their populations could help with the recovery of a
variety of other marine species, experts say.
five-year review (PDF 15.1 mb) on the status of the three
species of rockfish was due last year, but it was delayed until
April of this year to include the new genetic information. In
addition to a proposal to delist canary rockfish, the report
discusses the difficulty in gathering population data. The authors
were able to report:
“The data suggest that total rockfish declined at a rate of 3.1
to 3.8 percent per year from 1977 to 2014 … or a 69 to 76 percent
total decline over that period. We did not find evidence for
subpopulations with different population growth rates.”
Those involved in the scientific effort expressed appreciation
to the anglers who went out with them to track down rockfish and
take fin clips for genetic sampling. The effort also included
information from the Washington Department of Fish and Wildlife,
where researchers surveyed rockfish areas with divers and remotely
The local fishing experts were able to take the researchers to
the hotspots where rockfish have always been found.
During the sampling, fishers were careful to release the
rockfish with “descending devices” to get them safely back to deep
water, where they reside. That is a technique recommended for all
anglers who catch rockfish while fishing for other species. For
“Bring That Fish Down” (PDF 673 kb) by California Sea Grant and
Washington’s Rockfish” by WDFW.
Among those helping with the survey were Ray Frederick, a
longtime leader in the Kitsap Poggie Club, a local fishing group,
and Randy Jones, a charterboat operator from Port Orchard.
Ray recalls catching rockfish decades ago while fishing for
salmon and other fish. “I considered myself lucky if I caught a
rockfish and brought it home, because they’re really good eating,”
Ray said in a story
written by Ed Quimby, a former NOAA writer. “I prefer salmon,”
Ray added, “but my wife likes rockfish better.”
Efforts to develop a recovery plan for rockfish continue for
yelloweye rockfish and bocaccio as required by the Endangered
Species Act. Details can be found on NOAA’s webpage
“Rockfish in Puget Sound/Georgia Basin.”
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.
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
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,
“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.
It’s all about the data when it comes to critical habitat for
the Southern Resident killer whales, or so they say.
Researchers with NOAA’s Northwest Fisheries Science Center have
piled up a lot of data this year, which could be just what is
needed to expand the endangered orcas’ critical habitat from Puget
Sound and the inland waterways out to the open ocean along the West
NOAA announced in
today’s Federal Register that the agency would consider
expanding critical habitat, as allowed by the Endangered Species
Act, and possibly make other changes to the designation over the
next two years. What is needed, the agency said, are more data.
On Dec. 28, a satellite transmitter was attached to J-27, a
24-year-old male named Blackberry, who was tracked as J pod moved
about from the Strait of Juan de Fuca up into the Strait of Georgia
until the tag came off on Feb. 15. The following day, a new
satellite tag was attached to L-84, a 25-year-old male named Nysso.
K and L pods were tracked out to the ocean and down the coast to
A research team led by Brad Hanson aboard the vessel Bell M.
Shimada has kept track of J pod, then K and L pods since leaving
Newport, Ore., on Feb. 11. According to the latest report from the
researchers, K and L pods traveled south last week to the Umpqua
River in Central Oregon, where they abruptly turned north on
The whales continued north on Sunday, sometimes 10 miles
“We observed a lot of surface active behavior throughout the day
— lots of spy hops — and at one point we observed numerous whales
repeatedly breaching over a several-minute period,” according to
notes from the cruise.
The researchers observed no apparent foraging for several days
and the whales remained quiet, with the exception of a several-hour
period shortly after the breaching episode. As of yesterday
morning, they were still off the Oregon Coast and heading
The tracking data and up-close observations from this year’s
cruise appear to fill in some major data gaps — especially for J
pod, whose winter movements were not well known, according to NOAA
In 2012, the first tag deployed on the Southern Resident allowed
the researchers to track J pod, but only for three days before the
tag came off. In 2013, a tag on L-87, which frequently traveled
with J pod, provided 30 days of data about J pods movements in the
Salish Sea, particularly in the Strait of Georgia (where they spent
a lot of time this year).
Another tag in 2013 allowed K and L pods to be tracked along the
West Coast all the way to California.
Sightings from land and shore, along with acoustic recordings of
the whales also are included among recent findings.
We won’t know until 2017 if NOAA has amassed enough data to
expand the critical habitat to coastal regions, perhaps as far as
Northern California, as proposed in a petition filed in January of
last year by the Center for Biological Diversity. For the decision
announced today in the Federal Register, the data are not enough.
This is how it is stated in the notice:
“While data from new studies are available in our files and have
begun to address data gaps identified in the 2006 critical habitat
designation, considerable data collection and analysis needs to be
conducted to refine our understanding of the whales’ habitat use
and needs. Additional time will increase sample sizes and provide
the opportunity to conduct robust analyses.
“While we have been actively working on gathering and analyzing
data on coastal habitat use, these data and analyses are not yet
sufficiently developed to inform and propose revisions to critical
habitat as requested in the petition.”
In addition to the geographic areas covered by the killer
whales, the agency must identify the ‘‘physical or biological
features essential to the conservation of the species.’’ Such
features include food, water, air, light, minerals or other
nutritional requirements; cover or shelter; sites for breeding; and
habitats protected from disturbance.
Once specific areas are identified for protection, the agency
must make sure that the value of protection for the killer whales
outweighs the economic costs and effects on national security.
The legal stage was already set for Lolita, the last killer
whale from Puget Sound to survive in captivity.
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.
“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
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.
“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
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
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.
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
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.
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’
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
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
news release, Sarah Uhlemann expressed her concerns for the
“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
“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, 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.
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
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
“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
NOAA has agreed to conduct a status review to determine if Puget
Sound’s killer whales should remain on the Endangered Species
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
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
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
“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
“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
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
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,
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
“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
Other news stories on NOAA decision to review the listing:
Linda Mapes, Seattle
Times, “California farmers want orcas taken off
Meanwhile, in terms of classifying orcas, there is an ongoing
effort to include captive killer whales among the population listed
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
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
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
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: Continue reading →
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
“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
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.
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
“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
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.
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
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.
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.
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
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
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.”