Southern Resident Orcas are Targeted by Those Who Want to Demolish the Endangered Species Act Entirely – Orca Network Weighs in on This Issue

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The following was written as a guest article for this blog by Howard Garrett, Co-founder, Director and President of the Board of Orca Network – all rights are reserved, please contact Orca Network for use of the material. Orca Network is a 501 (c) (3) non-profit organization registered in Washington State, dedicated to raising awareness about the whales of the Pacific Northwest, and the importance of providing them healthy and safe habitats.
Howard received his degree in Sociology from Colorado College in 1980, and began working with the Center for Whale Research in 1981. In 1996 Garrett wrote Orcas In Our Midst, a booklet oriented toward middle-school students. Volume 2 of Orcas In Our Midst was published in 2005. Volume 3, Residents and Transients – How Did That Happen? was published in 2011. Garrett also wrote the entry under “Animal Culture” for the Encyclopedia of Animal Behavior (Greenwood Publishing Group, 2005); and a chapter about the rescue of the solitary orca A73 (Springer), in Between Species. He co-founded Orca Network in November 2001 with Susan Berta.

Since 1995 Howard and Susan have conducted a campaign to return Lolita, the last survivor of the orcas captured from the Southern Resident community, from Miami to her home waters in Puget Sound. Howard provides educational presentations for students and community organizations, naturalist talks on the ferries, develops educational materials, and designs and maintains the Orca Network website.
Please see the previous post,Orca Whales May Lose Endangered Species Status – NOAA Accepted Petition to De-list This Struggling Population, for background information and links to NOAA.

Southern Resident orcas are uniquely adapted to this environment.

Why would anyone want to remove ESA protections from Southern Resident orcas?
Last August the Pacific Legal Foundation (PLF), a property-rights group with a long record opposing Endangered Species listings, environmental regulations, and healthcare reform, filed a petition with the National Marine Fisheries Service to remove the Southern Resident orcas from their endangered status under the ESA. The PLF was acting nominally on behalf of farmers who wanted Sacramento River water needed by endangered Chinook salmon, which the Southern Residents depend on, along with other Pacific coast Chinook, for their survival. In 2009 the orcas were included in NMFS’s ruling on water management as further rationale for conserving water to restore salmon. On November 26, NMFS announced they will review PLF’s petition over the next year. The public comment period on the merits of the petition is now open and will continue until January 28, 2013.
The PLF made two core arguments: first was the legal case that NMFS had illegally designated a Distinct Population Segment of a sub-species rather than of a species, and second, the scientific claim that the Southern Residents aren’t really genetically distinct, based on a recent genetic study that found evidence that on rare occasions some transient orca males may have had “temporary interactions” with SR females and thus diluted their gene pool.
The attorneys at Earth Justice, which was a party to the original ESA listing in 2005, have sunk the PLF’s legal argument twice already in the Ninth Circuit in the context of other species, and expect to sink it again this time. The ESA’s language, and in particular its definition of “species,” as well as NMFS’s interpretation of this language, unambiguously refute PLF’s position. PLF challenged the orca listing back in 2006 raising this same “DPS of a subspecies” argument.  When Earthjustice intervened in that case,  the Judge tossed out PLF’s case because they didn’t bother to, or couldn’t, show they had standing (that anyone they represented was in any way harmed by the listing). The farmers are now playing that role. This word game about whether the SRs are a DPS of a species or a subspecies is irrelevant to the fact that the SRs are without a doubt distinct from all other orcas worldwide, and they need protection. They currently number only 84 members, a drop from about 88 when they were listed.
The scientific claim – that the SRs are not genetically distinct – comes from Social cohesion among kin, gene flow without dispersal and the evolution of population genetic structure in the killer whale (Orcinus orca), by Pilot, et al. As the title says and the paper reiterates: “Taken together, these data emphasize the importance of social cohesion in this species…” So that argument won’t sail either. Even if the paper is correct, the listing of the SRs under the ESA doesn’t rely simply on genetic purity. Rather, multiple lines of evidence (mainly their complete social cohesion and separation from any other orcas, and their specialized diet and unique vocalizations) establish that SRs are unlike any other orcas anywhere, even if rare temporary interactions may happen every few generations.
Photo courtesy of the Center for Whale Research

Why is the PLF arguing this lost cause to remove ESA protections from Southern Resident orcas? Even if the PLF should win this case and succeed in delisting the SR’s, the water is being withheld primarily to protect endangered salmon, so the farmers wouldn’t get any more water anyway.
So what’s really going on here? Who really ordered and funded this assault on protections for Southern Resident orcas? Here’s a clue: The PLF has a long history of challenging federal regulation of private property under the Clean Water Act, Clean Air Act, and the Endangered Species Act. Anti-environmental from the start, PLF’s early actions supported the use of DDT, the use of herbicides in national forests, and the use of public range land without requiring an environmental impact review (
The initial PLF office in Sacramento was funded by billionaire Richard Mellon Scaife, a major contributor to the Republican Party and right-wing strategy groups. Its expressed aim was to use its financial and litigation power to “impact the public policy agenda.” In 1989, Philip Morris began funding the organization to fight against tobacco laws, and it receives at least $10,000 from ExxonMobil annually(
It’s a well-known Republican talking point that the ESA places an undue burden on businesses. According to PLF Principal Attorney Damien Schiff: “We simply can’t permit unjustified ESA listings to cause economic dislocation for families, farms, businesses, and communities.” The PLF’s main funders, however, are the world’s richest individuals and corporations.
It seems that the PLF is not simply speaking up for a few farmers. It appears to be an advance unit in a sweeping, concerted assault on environmental protections intended to roll back the ability of federal, state and local governments to safeguard our air, water, and climate. The extinction of Southern Resident orcas would be mere collatoral damage for the instigators of this particular assault on the ESA. Not known for scientific literacy, they seem to be quite sure that the science that has repeatedly found that SRs are completely distinct from any other orcas must be fraudulent, politically correct dogma based on junk science. They seem to firmly believe they can easily demolish the listing in court, thereby besmirching the ESA itself and providing headlines that can be used to water down protective laws like the ESA and the Clean Water Act. The goal isn’t to get more water for the farmers, it’s to attack the ESA. And who cares about the orcas anyway?
Southern Resident orcas have been foraging and socializing throughout the Salish Sea and along the continental shelf as a cohesive clan for millenia, all the while maintaining their own rigorous traditions about diet, travel and every aspect of their lives, always in synchrony with their salmon-rich habitat. In the Pacific Northwest we are getting to know and appreciate these graceful, beautiful orcas more every day. As Fred Felleman of Friends of the Earth put it succinctly: “It’s not just their genetics, it’s culture. These clearly are the tribes of the sea, and if you extirpate that population not only do you lose the genetic code, you lose a unique brain trust.”
By Howard Garrett
Director and President of the Board of Orca Network

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