Watching Our Water Ways

Environmental reporter Christopher Dunagan discusses the challenges of protecting Puget Sound and all things water-related.
Subscribe to RSS
Back to Watching Our Water Ways

Posts Tagged ‘Pacific Legal Foundation’

Orcas still ‘endangered’ as next steps contemplated

Sunday, August 4th, 2013

Federal biologists have decided, following a yearlong review, that the Southern Resident killer whales should remain listed as “endangered.”

A lot of folks were surprised when the National Marine Fisheries Service agreed to undertake the review, based on a delisting petition from some farmers in California’s Central Valley. As I outlined in a Water Ways post last November, the agency acknowledged that there was new scientific information about the extent to which the Puget Sound whales breed outside their group. Such information could potentially undermine the finding that the Southern Residents are a distinct population segment, a prerequisite for the endangered listing.

After the review, the federal biologists found that most of the new evidence strengthens the position that the Southern Residents — those that frequent Puget Sound — are distinct and unique in other ways essential to the listing. Here’s how I wrote about it in yesterday’s Kitsap Sun (subscription required):

“The endangered listing for the Southern Residents hinges on the legal question of whether the three pods constitute a distinct population segment of an identified species or subspecies. Agency scientists maintain that the Puget Sound whales have their own language and preferred food sources, and they don’t breed to a significant degree with other killer whales. They also meet other requirements for listing, such as having their own range of travel and not interacting with other groups of the same species.

“New evidence, however, shows that their range overlaps that of other orcas to varying degrees and that occasional external breeding takes place. Still, agency scientists conclude, new information about genetics, behavior and cultural diversity demonstrates more convincingly than ever that Southern Residents are unique and irreplaceable.”

To read the official findings, check out the Federal Register notice (PDF 270 kb) and the Status Review Update (1.1 mb).

I would speculate that taking on the yearlong review was one way for agency officials to put the new information into official context, as they see it, before a near-certain court battle ensues.

By the way, the attorney for the farmers, Damien Schiff of Pacific Legal Foundation, told me that he feels the agency sidestepped the very information that compelled it to conduct the status review:

“The decision is disappointing because of the result, but it also seems to contradict the service’s own finding … that it had substantial information that delisting may be warranted.

“They cleverly avoided that by mislabeling our information as consistent with the action they took in 2005. They never really engaged with the new evidence they were presented.”

Myoko Sakashita of the Center for Biological Diversity said her organization will defend the National Marine Fisheries Service’s findings if the case goes to court. The group led the court battle that resulted in the orcas being listed as endangered in the first place.

I asked Myoko if her group intends to push for further protections for the Southern Residents, such as expanding critical habitat into the Pacific Ocean. She confirmed that such action was a strong possibility and may not wait for the agency’s regular five-year review.

Ken Balcomb of the Center for Whale Research said he has presented research findings about the travels of the whales up and down the West Coast, including forays into Northern California. Recent satellite-tracking of the orcas by agency biologists confirms that their habitat should be protected along the coast to give them a better chance of survival, he said. See Water Ways, April 5, 2013.

So far, critical habitat has been designated for most of Puget Sound, but this year provides evidence that they rely on a much greater area. So far this summer, the Southern Residents have been mostly missing from the San Juan Islands, probably because of a serious decline in the chinook salmon runs returning to the Fraser River in British Columbia. This kind of extended summer absence from inland waters has never been witnessed over the past 30 years — and nobody seems to know where the orcas are now.

I asked Ken what he thought about the petition to list Lolita, also known as Tokitae, as “endangered” along with the rest of the Southern Residents, of which she is a member. Ken said he supports the idea, even if it means nothing regarding Lolita’s welfare or future. Having her included in the federally protected population may be the only way to guarantee that researchers can examine her body after she dies, he said. If nothing else, the orca’s tissues could contain information to help future generations of killer whales.

Back to the decision to keep the Southern Residents on the Endangered Species List, here are a few press releases from involved organizations:

National Marine Fisheries Service (PDF 15.1 kb)

Puget Sound Partnership

Center for Biological Diversity

Orca Conservancy (PDF 1.3 mb)

Pacific Whale Watch Association (PDF 565 kb)


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.


Kitsap shorelines always good for surprises

Wednesday, November 16th, 2011

Shoreline buffers are us, no doubt about it.

As one case involving Kitsap County’s shorelines waits on appeal to the U.S. Supreme Court, a whole new issue has sprung out of a state law written to resolve confusion created during the earlier lawsuit.

Until Kitsap County adopts a new shorelines plan next year, conflicts between the Shorelines Management Act and the Growth Management Act could go on. After that, expect a new round of appeals.

The latest issue arises out of a little-known provision of a state law passed in 2010. The overall intent of the law was to allow a local Critical Areas Ordinance to provide shoreline protections until a new shorelines plan is drafted. For background, see Water Ways from Jan. 6 of this year.

There is an exception in the law, however, listed in Subsection 3(c) of RCW 36.70A.480, which allows for “redevelopment or modification” of a structure as long as it is consistent with the local shoreline master program and it is shown that “no net loss of ecological function” would result.

Sure enough, a Kitsap County property owner who wants to tear down a house and build a new one closer to the shore was able to make use of that special provision.

Kitsap County Hearing Examiner Kimberly Allen, who approved the redevelopment, said her ruling “rests on a complex and very fact-specific set of interactions” between three different laws. For details, check out my story published in today’s Kitsap Sun or read the hearing examiner’s decision (PDF 1.3 mb) for yourself.

The case on appeal to the U.S. Supreme Court, Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board, raises questions about whether large, uniform buffers violate the “takings clause” of the Fifth Amendment. KAPO contends that Kitsap County requires property owners to dedicate “large tracts of private land to public use as environmental conservation buffers” without a clear showing that such buffers protect the environment.

The case has yet to be accepted by the Supreme Court, but one can get a good understanding of the arguments by reading the petition for writ of certiorari (PDF 152 kb), posted on the website of the Pacific Legal Foundation, which is representing KAPO.

Meanwhile, the task force working to update Kitsap’s shorelines plan has reconvened, taking up buffers and other controversial issues, after a hiatus through most of the summer and fall. For the latest on those deliberations, see stories I wrote for the Kitsap Sun Nov. 7 and 13:

Shoreline task force to tackle thorny issues

Shoreline buffers move to front burner


Court finds resolution for conflicting shoreline regs

Thursday, January 6th, 2011

The conflict between the Growth Management Act and the Shoreline Management Act may be over, as a result of a Washington State Court of Appeals case handed down this week for Kitsap County. (See my story in today’s Kitsap Sun.)

The confusion has affected many cities and counties that believed they were better protecting their shorelines from degradation when they updated their critical areas ordinances, as required by the Growth Management Act. It turns out that the GMA may have improperly stepped into the 200-foot shoreline zone where the Shoreline Management Act presides.

The conflict grew out of a divided Washington State Supreme Court decision for the city of Anacortes, which concluded that only the Shorelines Management Act could govern shorelines. By the time the case was resolved in 2009, many cities and counties had already updated their local critical areas ordinances with stricter shoreline regulations.

Washington Department of Ecology advised local governments to continue using their CAO rules for shorelines, because the divided decision was not binding on other jurisdictions. That advice caused a stir of its own. (See Water Ways, Nov. 3, 2009.) Kitsap County got caught in the crossfire in a lawsuit with the Kitsap Alliance of Property Owners, as the Court of Appeals used the same reasoning in saying that Kitsap’s CAO should not apply to shorelines.

Last year, the Legislature moved to clarify the matter by saying cities and counties may use their CAOs until they complete updates to their Shoreline Master Programs, an effort in which many are engaged now. The law was made retroactive to validate numerous CAOs that were in limbo.

Kitsap Alliance of Property Owners argued that it was unconstitutional for the Legislature to pass a law retroactively to get around a court ruling. However, in the latest case, the Court of Appeals sided with the county, saying the Supreme Court had never ruled authoritatively on the matter because of the split nature of the original decision. That made it legal for the Legislature to clarify the intent of the law.

With the appeals court upholding the Critical Areas Ordinance, the appeals court judges then moved into the meat of the Kitsap County case, which involved the use of “best available science” and several constitutional claims. The court found in favor of the county on all major arguments. One can find the discussion in the second part of the Court of Appeals ruling (PDF 148 kb).

KAPO officials are reviewing the case with lawyers for the Pacific Legal Foundation before deciding whether to appeal the matter to the State Supreme Court.


Available on Kindle

Subscribe2

Follow WaterWatching on Twitter

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

Archives

Categories