Setting the killer whale record straight, part II

December 07, 2012 | By DAMIEN SCHIFF

Earlier this week, Miyoko Sakashita of the Center for Biological Diversity, writing on the Huffington Post, criticized Pacific Legal Foundation’s effort to delist the Southern Resident population of killer whale from the Endangered Species Act.  Of course, this is not CBD’s first criticism of our delisting petition.  But, as you’ll see below the break, CBD’s latest salvo has no more merit than its earlier, baseless criticisms.

CBD argues that there are only 86 individuals within the Southern Resident population and that there is no sign that this population is recovering.  The point is irrelevant, however, to our petition.  We assume for the sake of argument that the Southern Residents are not doing well.  Yet, the legal and scientific basis for the population’s protection depends on the existence of a phantom “unnamed subspecies” of Northern Pacific killer whale, of which the Southern Residents are a marginal subpopulation.  The existence vel non of this subpecies has nothing to do with the Southern Residents’ condition.  (And, for what it’s worth, even if we succeed in our delisting petition, it will still be illegal under federal law to injure, capture, or kill any of these whales.)

Next, CBD contends that our farmer petitioner clients are making much ado about nothing in connecting the orca whale’s protection to water cutoffs in California’s San Joaquin Valley.  In a sense, we agree with CBD:  the connection between water deliveries from the Sacramento Delta and the health of the Southern Residents is slim, to say the least.  But the feds have already made that connection, a connection partly responsible for the disastrous water cutbacks of 2009-2010.  So, if the feds will make the connection, then we will fight back.

CBD also contends that PLF’s orca whale delisting effort is part of a larger plan to attack endangered species generally.  Hardly.  PLF is certainly not against protecting endangered flora and fauna, including the killer whale.  After all, as I mentioned above, nothing in PLF’s petition will lead to “open season” on these whales.  PLF is, however, concerned about human beings who too often must take a “hit” for some dubious “environmental protection” effort.

CBD also asserts that a federal district court has already rejected PLF’s arguments in the delisting petition.  Not so.  To be sure, CBD is right that PLF filed a lawsuit to delist the whale back in 2006, the lawsuit raised some of the same points presented in the petition, and the court dismissed the lawsuit.  What CBD doesn’t grasp, though, is that the court dismissed our lawsuit on standing grounds, ruling that our clients hadn’t yet been injured by the orca’s listing.  Obviously, this was all well before the water cutbacks of 2009-2010.  So, in short, the court never addressed the merits of our delisting argument.

Finally, CBD contends that the ESA is an effective law, having prevented the extinction of 99% of the species listed.  Ah, not so fast.  Simply because a species doesn’t go extinct after having been listed does not mean, necessarily, that the listing avoided extinction (post hoc, ergo propter hoc).  Moreover, much scholarly literature argues that the ESA is, ecologically speaking, an antique, and practically speaking, a failureProfessor Jonathan Adler of Case Western is particulalry trenchant on this issue.

Will this be the end of CBD’s and other environmentalist groups’ criticisms?  Undoubtedly not.  But let’s hope that the National Marine Fisheries Service will not be swayed by their misinformation campaign in ruling on PLF’s petition.