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.
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.
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:
Water quality to support growth and
development,
Prey species of sufficient quantity, quality
and availability to support individual growth, reproduction, and
development — as well as overall population growth, and
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.
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.
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.
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
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.”
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 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.
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
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.
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
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.
“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:
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
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
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, 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
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.”
