Why Would Anyone Want to Take Orcas Off the Endangered Species List?

Conservationists put out the call for petition signatures to keep killer whales protected.

David Kirby  •  January 26, 2013

Off the coast of Washington State and British Columbia, hundreds of killer whales make their home amid the islands, reefs, inlets and straits of the spectacular region, whose natural bounty and purity have been denigrated by two centuries of human activity. Due to recent events, the orcas who inhabit this region are under attack as they may lose the protection afforded them by the Endangered Species Act, but conservationists are hoping that if enough people sign the NOAA petition, those efforts will be stopped.

Three subtypes of killer whales prowl these seas: Fish-eating Residents, who live in tightly-formed pods; mammal-eating Transients, who travel further and live in smaller pods; and the little-studied Off-Shore orcas, who rarely come near the coast and are believed to feed largely on sleeper sharks and schooling fish.

Residents− by far the most intensively studied− are further divided into two communities. The Northern Resident community extends from mid-Vancouver Island north towards the Alaskan panhandle. The Southern Resident community extends from mid-Vancouver Island south to Puget Sound in summer and fall, but in winter and spring can travel as far down as Monterey, California. The two groups generally do not mix.

The Northern Residents, who live under Canadian jurisdiction, are generally faring better than their Southern cousins. Indeed, culling of the herds for entertainment, pollution, prey depletion and other human activities have hit the Southern community particularly hard. That’s why in May of 2001, acoalition of conservationists petitioned the National Oceanic and Atmospheric Administration (NOAA) to list the Southern Residents as “Endangered,” under the terms of the federal Endangered Species Act.

The whales won. But now a new effort is underway to have the Southern Residents removed from the list of endangered species. The deadline to submit comments to NOAA on the petition to delist the orcas is this Monday, January 28.

One of the leading protagonists in the fight to protect the Southern Residents has been the Seattle-based Orca Conservancy. TakePart spoke with the group’s Board of Directors President Shari Tarantino about the delisting effort.

1) What scientific evidence is there that the Southern Residents have been and continue to be endangered?

A: It’s overwhelming. When we filed the petition to list the Southern Resident orcas under the Endangered Species Act, the population had just experienced a precipitous decline from a high of 98 or 99 whales to 78 in just a few years. They were clearly on a road to extinction. Today the population stands at only 84 individuals– possibly 85.  Looking at the numbers alone, the Southerns are still in the red zone, a long way from recovery. Looking at the science, virtually every study done on these orcas and their critical habitat, it tells us in a very big way that we need to right this ship.  Right away.  Not just for the whales, but for ourselves.

2) Did the captive orca industry have anything to do with the reduced population?

A: Absolutely. It was estimated that between 150 and 200 killer whales once made their home off Washington’s coast and inland sea. However, between 1964 and 1975, approximately 45 orcas of the Southern Resident and Northern Resident Community were captured and sent to various marine parks. As many as 12 orcas died during these captures. In the summer of 1977, an annual survey of the Southern Residents was initiated by Ken Balcomb of the Center for Whale Research. After that first season, it was determined that there were only 71 orcas left in the Southern Resident Community. The captures nearly wiped out the population. And they’re still feeling the impacts of that era.

On the other hand, the captures and display of orcas in marine parks in the ‘60s and ‘70s also led to an extraordinary change of public opinion about killer whales. Before we captured them, we used to shoot them on sight.  It was open season on orcas.  But clearly rounding up and hauling off so many critical members of a small population like the Southern Residents was biologically devastating, leaving among other problems a breeding age gap from the loss of so many young orcas.

3) What factors today are contributing to the low numbers?

A: They include the decline of prey resources (including endangered Chinook salmon), pollution, and habitat degradation from shipping and other human activities. As the only resident orca population in an urban area, these whales bore the brunt of our generational sins– bioaccumulative toxins in the marine system from things like PCBs, mercury and fire retardants, the widespread destruction of salmon runs throughout the sound and straits, and increased vessel traffic.

4) How is the Southern Resident population faring compared with the Northern Residents, who are listed as “Threatened” but not “Endangered?”

A: Both are in trouble, but the Northerns are doing a little better.  The social structure of the Northern Resident Community is a bit more complex than that of the Southern Resident Community. The Northerns currently consist of approximately 200 whales in 16 pods, and are listed as “Threatened” in Canada under the Species at Risk Act.

In stark contrast, the Southerns are made up of approximately 84 whales, divided into just three pods. By the mid-90s, the Southerns started an apparent recovery to nearly 100 individuals. However, by October 1999, the population dropped to 83 whales.

5) What is Canada doing differently than we are in the US?

A: Orca recovery efforts have been remarkably cooperative and collaborative between NOAA Fisheries on the US side and the Department of Fisheries and Oceans (DFO) on the Canada side. Indicative of that is a series of groundbreaking scientific workshops recently conducted jointly by NOAA Fisheries and the DFO on the correlation of Chinook salmon stocks and Southern Resident orcas.  Excellent work has been done and isunderway now that we feel not only will help recover our region’s resident orcas but have enormous, quantifiable benefits up and down the food chain– and that includes humans.

In general, orca recovery measures taken under the Species at Risk Act have been similar to those taken by the Endangered Species Act– although some say they're less vigorous at times. NOAA Fisheries appears to be far more heavily focused on regulating the commercial whale watching industry than its Canadian counterpart, rather than addressing what many feel are far more critical threats like pollution, oil spill prevention and depleted prey resources. Neither have done much to address the worst killer whale killer of all– the toxic hotspots left smoldering in the sound and straits.

6) Is it true that a conservative law group called the Pacific Legal Foundation is leading the charge to delist the Southern Residents? Who are they and what is their interest in this?

A: The Pacific Legal Fund has a history of challenging endangered species listings, including representing a group of developers in 2006 also trying to knock Puget Sound's orcas off the list. That case was dismissed– not on its merits, but rather for lack of standing. The plaintiffs simply could not show that they were being harmed by the orca listing. Their first order of business on this latest challenge, even at the petition stage, is effectively establishing that standing with their new clients.

The Pacific Legal Foundation has made their case to the feds, and if they fail to persuade, they can make it in the courts. But making a case to the court of public opinion won’t be as easy as it was 10 years ago. Thankfully, the conservation community stands united in its support of Endangered Species Act protection.

7) Other plaintiffs include a cotton ranch and a massive produce farm in the Central Valley of California, where salmon breed and grow in the delta area. Can you explain why they are taking an interest in delisting Washington State whales?

A: Water. Orcas need salmon, salmon need water– and farmers need it, too. In order to recover the Southern Residents, we need to protect and in some cases rebuild viable salmon runs throughout their range. And that’s going to take sacrifices among all the stakeholders, including agriculture.

 8) What are their legal assertions for delisting the Southern Resident Community, and what do the scientific facts say in that regard?

Their petition claims that NOAA Fisheries is not allowed to list a Distinct Population Segment of a subspecies, and that Southern Residents meet that classification. They are arguing that NOAA erred by listing a Distinct Population Segment of a subspecies and it erred by considering Residents a subspecies. The plaintiffs believe that Residents, Transients, and Off-Shores are all members of the same subspecies. If either of the first two points withstands scrutiny, Southern Residents should be delisted.

The first point is a legal argument. If NOAA agrees with it, a lot of listed species, not just Southern Resident orcas, would lose protection. Congress hasn't done anything since 1978 to complain about how NOAA has implemented the Endangered Species Act, so we think NOAA will reject that claim. If that's the case, the Pacific Legal Foundation probably will sue, as tough a slog as that may be. They may hope to get the case to the Supreme Court before President Obama has a chance to appoint justices that would shift its current conservative makeup. And ultimately, we believe their goal is to weaken the Act, by any means necessary. The NOAA would have another option: They could defer a decision.

9) NOAA has proposed introducing a small-scale plan to revitalize Chinook runs in the Central Valley. Would those fish help resident orcas in the Northwest, and what impact might this have on the delisting effort?

A: It absolutely would help our resident orcas– Southern Residents range from the mid-coast of British Columbia to Monterey, California. Central Valley salmon are a critical food source for the orcas. Protecting those runs will require water restrictions that likely will impact farmers there. Again, it’s all about water.

10)  What do you think would happen to these whales if they were delisted?

A: They’d be back on the road to extinction. They would be left only with what Orca Conservancy has always argued are the insufficient protections of the Marine Mammal Protection Act. Unlike that act, the Endangered Species Act has "Critical Habitat" designations, allowing NOAA to protect the whales from indirect threats, not just direct threats. The Marine Mammal Protection Act lacks the same types of oversight consultations provided by the Endangered Species Law, and it doesn't allow the same citizen oversight and recourse. Basically, you can't sue the feds for non-enforcement unless you have the full weight and measure of Endangered Species Act.

11)  What are Orca Conservancy and other groups doing in response?

A: Getting the word out.  And encouraging the discussion.  Despite being one of the groups with the most at stake if the Southern Residents are delisted, we actually welcome revisiting the prevailing arguments we made during our U.S. District Court case. We won that case because we convinced Judge Robert H. Lasnik that the feds failed to utilize the best available science in determining that the Southern Residents didn’t warrant protection. But we know a lot more now about Orcinus orca than we did 10 years ago– and next year we’ll know even more. But we also know that this emerging science is actually strengthening the arguments we made back then.

And in fact, with each study done on orcas around the world and in this region, the “lumping” idea– that orcas everywhere belong to just one species– has given way to a prevailing school of thought among scientists that orcas are in fact many species. But again, we’re confident NOAA will keep the Southern Residents listed. If the Pacific Legal Foundation sues, they’ll lose. The Southerns are safe for now. But we still need the Endangered Species Act to make sure that if the government falls short in their duty, citizens have the right to make a case to the courts to compel them to.

12)  What can TakePart readers do, and how long do they have?

A: TakePart readers can take a few minutes and make a comment against the delisting. The deadline is this Monday, January 28, 2013.

They can also stay connected to Orca Conservancy and our partner organizations. Our website has extensive archives, from news reports to groundbreaking documentaries. It’s not difficult to get news about Southern Resident orcas nowadays; just tough to get straight talk. We’re an all-volunteer group and have been since 2001. We’ve been through the "Orca Wars" and know the battlefield pretty well. If you really want to contribute to the cause, we’ll help steer you to the right place to give– people who are actually out there doing critical work to recover our resident orcas.

The best way to help whales is to truly understand their history, what brought them to the brink of extinction, and how everyday people have been able to step up and save them– whether it’s getting an entire population its first-ever federal protection under the Endangered Species Act, or rescuing them one whale at a time.

(https://www.facebook.com/pages/Orca-Conservancy/127077904040284)