Tag Archives: Endangered Species Act

Spring Chinook take on high flows because of ‘early-migration gene’

It’s a bit mind-boggling to think that a single, tiny fragment of genetic material determines whether a Chinook salmon chooses to return to its home stream in the spring or the fall.

Photo: Ingrid Taylar (CC BY-NC 2.0) https://flic.kr/p/dmbyre

I’ve been following the scientific discoveries about spring chinook since 2017, when Mike Miller’s lab at the University of California, Davis, published research findings showing the location of this “early-migration gene” on chromosome 28.

In a story published this week in the Encyclopedia of Puget Sound, I wrote about some of the latest discoveries surrounding spring Chinook. I also thought it worthwhile to describe the importance of these fish to the ecosystem and to the native people of the Puget Sound region.

Up until the past two years, I never gave much thought to spring Chinook, nor apparently have most people, including many biologists. These are the salmon that often struggle to reach the upper reaches of the rivers when the streams are swollen with spring snowmelt. Much of these upper spawning grounds have been destroyed by human activity, and more than half the spring chinook runs in Puget Sound have gone extinct.

The more I learned about spring Chinook the more fascinated I became. The southern resident killer whales used to arrive in Puget Sound in April or May to feast on spring Chinook from Canada’s Fraser River, but those salmon runs have declined along with many fall runs of chinook. The result is a major change in behavior and migration patterns by the whales.

Spring Chinook were at one time an important food for bears coming out of hibernation, for eagles who had scavenged for food through the winter, and for native people who looked forward to fresh fish after a season of dried foods.

As I researched this story, I learned about the history of spring Chinook in the Skokomish River of southern Hood Canal and how a once-plentiful fish became extinct. I was pleased to describe the success of current efforts to create a new run of spring Chinook with the help of a hatchery in the North Fork of the Skokomish, where adult spawners are showing up nearly a century after the fish disappeared.

Spring Chinook in Salmon River, California
Photo: Peter Bohler, via UC Davis

Genetics is a fascinating field, and advances are coming rapidly in the studies of many species, including humans. The idea that a single gene can completely change the migration timing of a Chinook by four months raises many scientific and legal questions — including whether spring Chinook should get their own protection under the Endangered Species Act. As things stand now, Chinook salmon in Puget Sound — both spring and fall together — are listed as threatened under the ESA. But that could change as things shake out with the ESA in Oregon and California.

Ongoing genetic studies — including those involving various salmon species — are causing biologists and legal experts to re-examine the criteria for listing populations as threatened or endangered, as they teeter on the edge of extinction. No matter what the extinction risk is judged to be, spring Chinook are now recognized as something very special.

Orcas return to Puget Sound; critical habitat proposed for coast

It appears that the southern resident killer whales have begun to travel into Central and South Puget Sound for their annual fall feast of chum salmon, according to past experience and dozens of reports from shoreside observers.

The northern section of the proposed critical habitat for southern resident killer whales.(click to enlarge)
Map: National Marine Fisheries Service

Meanwhile, the federal government has proposed extending their designated “critical habitat” beyond Puget Sound to the outer coast of Washington, Oregon and Northern California.

The critically endangered orcas have mostly been away from Puget Sound this summer, as their frequency of visits has declined in recent years. During the spring and summer, their primary prey is chinook salmon. But they tend to follow schools of chum salmon in the fall, and it is possible that recent rains got the chum moving a little faster toward their many home streams.

It appears the whales came in and traveled as far south as Seattle and the southern end of Bainbridge Island Thursday and were headed back north today. They could make another loop of Puget Sound, or they could head out to sea and return later. Check out Orca Network’s Facebook page for ongoing sighting reports. Kitsap Sun reporter Jessie Darland describes their arrival.

The expanded critical habitat, proposed by the National Marine Fisheries Service, totals 15,627 square miles along the continental shelf of the Pacific Ocean. When finalized, federal agencies will be required to protect the orcas’ habitat as well as the orcas themselves.

Photo: Capt. Jim Maya

By 2014, scientists at NMFS had been gathering data for several years in support of such an expansion when the Center for Biological Diversity filed a petition (Water Ways, Jan. 19, 2014) urging the government to finally take action. The agency agreed to move forward but continued to delay until after the group filed a lawsuit, which led to this week’s proposal.

Notably, the proposal does not include the Center for Biological Diversity’s idea to include safe sound levels as an important quality of the killer whale habitat. The group wanted to make sure the whales could hear well enough to use their echolocation to hunt fish, and they wanted to keep the animals from experiencing sounds that could cause partial or total deafness.

The agency looked at the issue but concluded that it does not have a way to establish a threshold sound level that could be considered harmful, although non-quantitative noise levels have been used to protect Cook Inlet beluga whales and Main Hawaiian Island false killer whales. For now, NFMS kept the essential habitat features for killer whale habitat to three things:

  1. Water quality to support growth and development,
  2. Prey species of sufficient quantity, quality and availability to support individual growth, reproduction, and development — as well as overall population growth, and
  3. Passage conditions to allow for migration, resting, and foraging.

Based on experience, NMFS said its biologists could already address adverse effects of man-made noise under the habitat categories of prey and passage. If noise were to affect the whales’ ability to hunt, for example, the problem could come under “prey species.” If noise were to discourage them from traveling to or resting in a specific area, it could come under “passage conditions.”

The Navy’s Quinault Range Site, where sonar and explosives are used in testing and training operations off the Washington coast, was excluded from the critical habitat designation following an evaluation by NMFS. Also excluded was a 10-kilometer (6.2-mile) buffer around the range.

“The Navy argued that there would be national security impacts if NMFS required additional mitigation that resulted in the Navy having to halt, reduce in scope, or geographically/seasonally constrain testing activities to prevent adverse effects or adverse modification of critical habitat,” NMFS noted in its findings.

The Navy has developed operational procedures to limit the harm to killer whales and other marine life, as required by the Endangered Species Act, Marine Mammal Protection Act and court rulings. While NMFS agreed to exclude the Quinault Range Site, it did not extend the exclusion to other Navy operational areas on the Washington coast.

Julie Teel Simmonds, an attorney with the Center for Biological Diversity, told me that officials in her group will carefully scrutinize that proposed exclusion area.

“Their decision to exclude is discretionary,” she wrote in an email, “but we will be evaluating their analysis during the public comment period, particularly given the plight of the orca and the concerns we have with some of the Navy’s activities, particularly certain harmful sonars.”

Brad Hanson and other marine mammal biologists at the NMFS’ Northwest Fisheries Science Center spent years evaluating where the orcas traveled in the ocean and what they were eating. They tracked the whales by attaching satellite transmitters, recorded their sounds on hydrophones along the coast, and collected sighting reports from a variety of people.

Duration of visitation to various areas by K and L southern resident pods. Darker coloration represents longer durations.
Model output: National Marine Fisheries Service

They learned that when the three pods of southern resident orcas were on the coast they spent more than half their time off Washington state, often between Grays Harbor and the Columbia River. Their travels often corresponded with an abundance of salmon.

While K and L pods have been observed in coastal waters every month of the year, J pod ventured to the coast infrequently and only in northern waters. All three pods spent nearly all their time within about 20 miles of shore and in waters less than 650 feet deep.

Through the years, I have written extensively about these studies. Here are a few blog posts:

Although the southern residents frequent the waters of British Columbia, the proposed critical habitat was limited to U.S. waters, because of the extent of U.S. jurisdiction. A single confirmed sighting of southern residents in Southeast Alaska in 2007 was not considered adequate to add any area to the north.

As a result of the expanded critical habitat, a number of activities will come under federal review with respect to protecting habitat as well as animals. They include salmon fishing, salmon hatcheries, offshore aquaculture, alternative energy development, oil exploration and drilling, military activities, and onshore activities that could create pollution.

NMFS was unable to identify any specific construction projects or maritime activities that would be affected significantly beyond the existing reviews required by the Endangered Species Act. The total additional cost of reviewing permits and analyzing potential impacts of projects was estimated at $68,000 a year.

Comments on the proposal may be submitted until Dec. 18. For information, check out the various documents on NMFS’ Southern Residents Critical Habitat website.

Lights could be creating problems for salmon, seabirds and more

Bright lights that affect the behavior of birds, fish and other wildlife are emerging as a significant environmental concern.

Endangered Hawaiian Petrel
Photo: B. Zaun, U.S. Fish and Wildlife Service

Yesterday, for example, two environmental groups filed a lawsuit against the Hawai’i Department of Transportation for bright lights the agency controls at piers and airports. The groups say three species of seabirds on the Endangered Species List have been circling the lights until the birds drop from exhaustion, and some birds have died.

Meanwhile, in Lake Washington and the nearby Cedar River in King County, there is evidence that threatened chinook salmon are at greater risk from predators because of lights on the two floating bridges as well as industrial facilities in Renton.

In Florida, researchers have discovered that female turtles avoid coming ashore to lay their eggs where bright lights are present, and in Virginia salamanders have delayed their feeding efforts in the glare of lights.

The lawsuit in Hawaii was filed by lawyers for Earthjustice out of concern for three species of seabirds: Newell’s shearwater, a threatened species, and Hawaiian petrels and band-rumped storm petrels, both endangered species.

The Hawai’I Department of Transportation has failed to protect the birds, as required by the Endangered Species Act, according to the lawsuit filed on behalf of the Hui Ho‘omalu i Ka ‘Āina, Conservation Council and the Center for Biodiversity. Because the lighting is injuring and killing listed species, the state agency must obtain an incidental take permit and initiate actions to minimize harm, the lawsuit says. For details, see the complaint for declaratory and injunctive relief (PDF 1.4 mb).

Lights at airports and harbor facilities have been documented as the greatest source of injury and death to the seabirds, which migrate at night and become disoriented by the artificial lights, the complaint asserts. Some birds crash into buildings, while others end up on the ground where they may be struck by vehicles or eaten by predators.

Since the 1990s, the Newell’s shearwaters have declined by 94 percent and the Hawaiian petrels on the island of Kauai have dropped by 78 percent.

“Our ancestors depended on the ‘a‘o (Newell’s shearwater), ‘ua‘u (Hawaiian petrel) and ‘akē‘akē (band-rumped storm-petrel) to help locate schools of fish, to navigate from island to island and to know when the weather is changing,” Kauai fisherman Jeff Chandler was quoted as saying in a news release from Earthjustice.

According to the news release, the Department of Transportation dropped out of talks with state and federal wildlife agencies that are developing a habitat conservation plan to protect the seabirds. After Earthjustice filed a notice of intent to sue, the agency rejoined the talks.

“That’s a good start, but talk alone will do nothing to save these rare and important animals from extinction,” said Earthjustice attorney David Henkin. “It’s long past time for the department to take action, not only on Kauai, but everywhere in the state that its operations illegally kill seabirds.”

Lake Washington chinook

As for the lights on and around Lake Washington, I have not heard of any proposed lawsuits to protect the threatened Puget Sound chinook, but concerns continue to simmer.

Lights on the Highway 520 bridge
Photo: Washington Dept. of Transportation

Jason Mulvihill-Kuntz, salmon recovery manager for the Lake Washington/Cedar/Sammamish Watershed, told me that the next regional chapter of the chinook recovery plan will call for further study into the effects of lights on juvenile chinook migrating down the Cedar River and through Lake Washington.

“The technical folks have identified light as a potential emerging issue,” Jason said. “We don’t have a good handle on what the impacts are.”

Lights on Lake Washington may be creating a double whammy for young chinook, Jason said. First, the lights attract the fish, which slow down their migration to Puget Sound. Second, the lights keep them visible to predators at night, so the fish may be eaten 24 hours a day.

“Juvenile salmon don’t have a nighttime respite,” Jason said. “At least that’s the hypothesis.”

Nonnative predatory fish include bass, walleye and northern pike. Native predators include cutthroat trout and pike minnow. Predatory birds include the western grebe and great blue heron.

An updated chinook recovery plan for the Lake Washington region is under review and could be finalized this fall. Predation is getting some additional attention this time around, Jason said, and the issue of lights is something that needs more study.

Experts at the U.S. Fish and Wildlife Service have identified potential concerns with lighting along Lake Washington in a series of studies going back more than 10 years. It still isn’t clear, however, how much the known problems with predators are exacerbated by bright lights. That’s why more studies are needed.

Following complaints from residents of Laurelhurst near the Highway 520 bridge, the Washington Department of Transportation reduced the amount of illumination coming off that bridge, and further investigation is underway. Check out the King-5 News report below.

Other species

With regard to other species, lights are known to have a variety of effects. Reporter Sharon Guynup outlined the problems for birds, turtles, amphibians, mammals and even insects in a revealing story in National Geographic News, April 17, 2003.

A group of British researchers from the University of Exeter compiled a list of the known effects of light on various species while considering the role of artificial lighting. See “The ecological impacts of nighttime light pollution; a mechanistic appraisal” in Biological Reviews.

Two-for-one executive order on regulations headed for showdown

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.

Photo: André Künzelmann, Wikimedia commons

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 Encyclopedia 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.

Continue reading

Canary rockfish likely
to be removed from Endangered Species List

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.

Canary rockfish Photo by Tippy Jackson, NOAA
Canary rockfish
Photo by Tippy Jackson, NOAA

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 Federal Register.

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.

Removing canary rockfish from the Endangered Species List will have no effect on 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.

A 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 operated vehicles.

“Without the expertise of experienced fishing guides, anglers, and WDFW’s rockfish survey data, it would have been difficult to find the canary rockfish and yelloweye rockfish to collect the fin clips needed for the study,” according to a question-and-answer sheet from NOAA Fisheries (PDF 534 kb).

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 details, see “Bring That Fish Down” (PDF 673 kb) by California Sea Grant and “Protecting 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.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Previous “Water Ways” blog entries:

Orca research continues, but will it add critical habitat along the coast?

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 Coast.

Movement of K and L pods along the Oregon Coast from Friday to Monday. NOAA map
Movement of K and L pods along the Oregon Coast from Friday to Monday. // NOAA map

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 Oregon.

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 Saturday.

The whales continued north on Sunday, sometimes 10 miles offshore.

“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 north.

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 researchers.

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.

Will ‘endangered’ status change Lolita’s plight?

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

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

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.”