August 8, 2013

Killer whale delisting petition denied

By Damien M. Schiff Senior Attorney

Last week, the National Marine Fisheries Service issued its 12-month finding on Pacific Legal Foundation’s petition to delist the Southern Resident population of killer whale from the Endangered Species Act.  The Service denied the petition, concluding that none of the new information it had reviewed was inconsistent with the Service’s determination, in 2005, that the Southern Residents should be listed.  The Service’s decision appears to be a retreat from its initial position that our petition presented substantial information indicating that the killer whale should be delisted.  Given that finding, it’s difficult to understand how the Service can now conclude that none of the new information (including our petition) is inconsistent with the Service’s original listing decision.

Naturally, the Service’s decision is a disappointment to our petitioner clients, which include farmers in the San Joaquin Valley whose businesses have been (and may soon again be) hit hard by water cutbacks imposed, in part, because of ESA protections for the whale.  Now, you might reasonably ask how cetacean denizens of Puget Sound would have anything to do with farmers in the San Joaquin Valley.  The federal government believes that water deliveries to the San Joaquin Valley hurt various fish populations that travel through the Sacramento Delta, and these fish populations are prey of the killer whale.  Thus, reasons the government, agriculture in the San Joaquin Valley hurts the whale.

Our petition argues that new scientific studies show that the killer whale’s listing as a distinct population segment of an unnamed subspecies of North Pacific killer whale is untenable.  The petition also argues that the Service has no legal authority to list a population segment of a subspecies, as opposed to a population segment of a species.  On the first point, the Service determined, as noted above, that the new data are supposedly consistent with the existence of a subspecies of North Pacific killer whale.  On the latter point, the Service concluded that listing a population segment of a subspecies is consistent with the Service’s existing policy.

Do we have any recourse?  Yes.  The Service’s denial of our delisting petition is a final agency action ripe for judicial review.  We’ll review the decision with our clients to determine whether litigation would be appropriate.

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