Activists to sue over decision not to list orcas as endangered

Northwest environmentalists yesterday announced plans to sue the federal agency that denied endangered-species protection for Puget Sound's orcas if the decision isn't rescinded.

The National Marine Fisheries Service determined in June that the resident orcas are at risk of becoming extinct, but decided the killer whales didn't meet the requirements for listing under the Endangered Species Act.

Environmental groups yesterday filed a 60-day notice of intent to challenge the decision in U.S. District Court.

"The National Marine Fisheries Service has already agreed with us on the most important points," said Brent Plater, an attorney with the Center for Biological Diversity, one of the groups. "Then they denied listing -- inexplicably at that point."

Patti Goldman, an attorney with the Earthjustice law firm, said the fisheries service erred by adding another requirement that the orca population had to be "significant." Goldman called that "unprecedented and not allowed under the act."

To win protection as endangered, the orcas must live in an environment unique for the species, or be "markedly" different genetically from other populations, or represent the last hope that the species would continue to populate the area in question.

Some members of the scientific panel reviewing the orca population argued that the environment inhabited by the local orcas could be recolonized by related whales that live off British Columbia. And while the two populations are genetically distinguishable, scientists disagree about whether they are "markedly" different.

"We argued that while we certainly agree that the killer whales certainly seem to be in some kind of trouble, and something needs to be done, we don't have the authority under the Endangered Species Act to provide that kind of protection for the killer whales," said Brian Gorman, a fisheries service spokesman.

The agency plans to protect the killer whales with a less powerful "depleted" designation under the Marine Mammal Protection Act. That listing, Gorman said, will "focus attention, and direct money and staff time" toward whale recovery.

The Endangered Species Act has increased protections, such as requiring government agencies to consult with the fisheries service before undertaking any projects that could harm the orcas.

Since 1996, the local orca population has declined almost 20 percent -- from 97 to 79. Suspected causes range from an accumulation of toxins that impair reproduction and reduce disease resistance to food shortages and the impact of whale-watching boats.

Other organizations challenging the fisheries service decision include Ocean Advocates, Orca Conservancy, Friends of the San Juans, People for Puget Sound, Project SeaWolf and Earth Island Institute.

Goldman said the endangered species law was designed in such a way as to protect smaller populations of animals and plants, even if they also exist in another region.

"We didn't want to accept elimination of species in the U.S. on the condition you could see them somewhere else," she said.

P-I reporter Lisa Stiffler can be reached at 206-448-8042 or lisastiffler@seattlepi.com

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