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Updated Tuesday, November 27, 2012 at 01:01 AM

California farmers want orcas taken off endangered-species list

By Lynda V. Mapes
Seattle Times staff reporter

California farmers want to take Puget Sound's killer whales off the endangered-species list, arguing they are not a separate population and that protecting the fish they eat is hurting business.

The listing of the animals as endangered under the federal Endangered Species Act in 2005 caused cutbacks in irrigation to protect fish, and that's made it harder to get loans from banks, pay help and expand their operations, argues a petition filed by Empresa de Bosque and Coburn Ranch. The two farms raise a variety of crops, from cherries to almonds, melons and tomatoes, using irrigation water from several California water districts in the Sacramento-San Joaquin Delta.

The listing of Puget Sound's orcas has affected farmers in California because the southern resident orcas travel the outer West Coast in winter, and are known to feed on salmon as far south as the Sacramento River.

The petition to delist was filed on the farmers' behalf by the Pacific Legal Foundation, a nonprofit based in Sacramento that has built a $25 million business fighting endangered-species listings, environmental restrictions, Title IX funding for high-school sports, affirmative action in public-sector contracting and more.

The foundation, with its motto "Rescuing liberty from coast to coast," operates regional offices in Bellevue, Hawaii and Florida. It is funded with individual contributions and awards of attorneys' fees.

NOAA Fisheries announced Monday it had accepted the petition and would finish by August a status review of the southern resident population of killer whales to determine if listing is still warranted.

Donna Darm, assistant administrator for protected resources at NOAA, said new science, including findings published in peer-reviewed journals since the orca was listed, warrants a new look at the listing. The decision to consider the petition does not indicate what the outcome of the review will be, she noted.

If the animals were taken off the endangered-species list, designation of critical habitat for them would disappear, but other protections under the Marine Mammal Protection Act, including a requirement the animals not be harassed or harmed, and that whale-watch vessels keep 200 yards away, would remain in effect.

NOAA Fisheries' listing of orcas as endangered came a year after it listed the animals as threatened in 2004. It had decided in 2002 not to list them at all. The agency initially determined the southern resident killer whales of Puget Sound, in J, K and L pods, were not a distinct population segment.

That finding was set aside by a U.S. District Court judge in 2003, who ruled there was enough uncertainty in the science to give the matter more study. The agency convened a science task force that eventually found the southern resident killer-whale population to be a distinct population, resulting in the 2005 listing.

Since then, the agency has designated 2,560 square miles of Puget Sound critical habitat for killer whales; required whale-watch vessels to keep a longer distance from the animals; and produced a recovery plan. But the southern resident population remains quite small, with only about 86 animals.

Fred Felleman, of Seattle, who in 2001 advocated for the original petition for listing, said the petition now to delist the orcas is a distraction from the necessary work of rebuilding orca populations.

"Oh great, here is a chance to biopsy them and tag them and chase them all over town until we don't have to worry about them any more," Felleman said.

To him, the distinct behavior of the southern residents sets them clearly apart from other orcas. They eat only fish, while other orcas eat seals and other mammals. They have distinct family groups, dialects, greeting ceremonies and migratory patterns.

"If there was ever a poster child for this type of subspecies, it's the killer whales," he said. "It's not just their genetics, it's culture. These clearly are the tribes of the sea, and if you extirpate that population not only do you lose the genetic code, you lose a unique brain trust."

In its petition, Pacific Legal Foundation stated there are about 50,000 killer whales roaming all the oceans of the world. Puget Sound's J, K and L pods comprise less than 0.2 percent of the species and, being such a small part of a larger population from which they are not distinct, protection is not warranted, the firm argued.

Miyoko Sakashita of the Center for Biological Diversity, which sued to get the animals listed, said the petition to delist is just a rehash of old arguments. NOAA's decision to list was right, she said. "I am sure when they take another look at the science they will affirm protection."

Seattle Times news researcher Gene Balk contributed to this report. Lynda V. Mapes: 206-464-2736 or lmapes@seattletimes.com.

On Twitter @lyndavmapes.



A baby orca in the J pod swims alongside its mother in this photo taken in August. Puget Sound killer whales were put on the endangered-species list in 2005.




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