December 10, 2012

Setting the killer whale record straight, yet again

By Damien M. Schiff Senior Attorney

Over at the Seattle PI blog, Howard Garrett of the Orca Network criticizes PLF’s petition to delist the Southern Resident population of orca whale from the Endangered Species Act.  Unfortunately, Mr. Garrett’s criticisms, like those of many others, are either irrelevant or innacurate.

Mr. Garrett contends that the courts have already rejected the petition’s legal argument, namely, the ESA does not allow the listing of distinct population segments of subspecies.  I am aware of no published decision holding so.  It is true that the Ninth Circuit rejected the argument, but it did so perfunctorily, without analysis, in a footnote, and in an unpublished, non-precedential memorandum decision.  So, it’s really not quite accurate for Mr. Garrett to conclude that our legal argument is a non-starter.  Also, PLF did file a lawsuit several years ago to delist the whale, but it was dimissed on standing grounds and the district court never reached the merits.

Mr. Garrett also criticizes the science-based portion of our petition, which contends that the subspecies classification on which the Southern Resident population’s listing is based is bogus.  The petition explains, using new data, that the Southern Residents are not meaningfully distinct, genetically speaking, from killer whales throughout the globe.  Mr. Garrett argues that the Southern Resident listing is nevertheless fine, because the Southern Residents are meaningfully distinct in many other ways, and that is all that needs to be shown.

Mr. Garrett, unfortunately, has made the same mistake in criticizing PLF’s petition that so many other commenters have made, namely, assuming that PLF’s petition is attacking the Southern Residents’ designation as a “distinct population segment.”  To be sure, behavioral and other differences exist between the Southern Residents and other killer whales, and that such differences are indeed relevant to determining whether the Southern Residents qualify as a distinct population segment.  But, such differences are not relevant to the classification of the North Pacific killer whale (of which the Southern Residents are a part) as a separate subspecies.  And, genetic distinction is exactly what is relevant in determining subspecies classification.  Moreover, the National Marine Fisheries Service itself has already admitted, in listing the Southern Residents, that they would not qualify as a distinct population segment of the world-wide species of killer whale.  Rather, the agency acknowledges that their listing depends entirely on the scientific legitimacy of the subspecies classification for the outative North Pacific subspecies.

So, in summary for Mr. Garnett and other good-willed but mistaken commenters: (1) genetic differences are relevant to subspecies classification; (2) the existence of behavioral and other distinctions are relevant to distinct population segment status but generally not to subspecies status; (3) the Southern Residents’ listing stands or falls on the Northern Pacific subspecies classification; and (4) PLF’s subspecies argument assumes arguendo the validity of the distinct population segment.

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