Judge Finds Fisheries Service Failed to Give Orcas Protection

A federal judge in Seattle on Wednesday ruled that the National Marine Fisheries Service broke the law and ignored the science when it declined to grant the dwindling number of resident killer whales in Puget Sound protection as an endangered species.

U.S. District Judge Robert H. Lasnik said the Fisheries Service failed to use the best available science last year when it determined that Puget Sound orcas, commonly known as killer whales, didn’t qualify for protection because they were not a “significant” population segment separate form a larger, healthier population elsewhere in the Pacific.

Ruling in a lawsuit brought by six conservation groups, the judge gave the Fisheries Service 12 months to reconsider its ruling and issue a new finding under legal principles he outlined in a 31-page opinion.

The Fisheries Service has not decided if it will appeal the case, said spokesman Brian Gorman. But he said the agency agrees with the conservation groups that the 84 remaining orcas deserve federal efforts to protect them -- even if not through the Endangered Species Act.

“It’s not like we are sitting on our hands,” Gorman said. “We declared these guys officially depleted [species] earlier this year under the Marine Mammal Protection Act. We have been working aggressively to protect them.

“We care about them not just for emotional reasons. Irrespective of their value as an icon of the Northwest, we have a legal responsibility to protect them.”

Government scientists agree with conservationists that the remnant population of southern resident orcas has taken a nose-dive since 1997 and faces a relatively high chance of extinction.

These whales, with distinctive black and white markings, have suffered a series of declines over the years.

Many were captured during the 1960s for public aquariums. Today, they suffer from a shrinking supply of their dietary staple of salmon, from a buildup of industrial pollution, such as toxic PCBs in their bodies, and sometimes from the overly enthusiastic attention of flotillas of whale-watching boats.

Environmentalists petitioned the federal government to protect the orcas under the Endangered Species Act, maintaining that the act provides the most effective tools for improving the whales’ habitat. But the Fisheries Service rejected the petition, saying the orcas didn’t qualify legally as a significant population that is in decline.

The agency noted that orcas worldwide were thought to be in good health and if those in the Puget Sound disappeared, their ranks might be replaced by northern resident orcas from Alaska or orcas that live in offshore waters.

Such an assumption, Lasnik ruled, “is not supported by the available science.”

He wrote that federal officials were legally wrong not to consider the Puget Sound orcas as a legally “significant” population.

Brent Plater, an attorney with the Center for Biological Diversity, called the decision “a great victory for killer whales.”

“What the judge did here today,” Plater said, “is scold the National Marine Fisheries Service for not invoking every protection in the book to protect these killer whales.”