Center for Biological Diversity v. Lohn

• Decision Date: 17 December 2003
• Docket Number: No. C02-2505L.,C02-2505L.
• Citation: 296 F.Supp.2d 1223
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Robert LOHN, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

296 F.Supp.2d 1223

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Robert LOHN, et al., Defendants.

No. C02-2505L.

United States District Court, W.D. Washington, At Seattle.

December 17, 2003.

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Brent Plater, Center for Biological Diversity, San Francisco Bay Area Office, Oakland, CA, Patti A. Goldman, Earthjustice Legal Defense Fund (WA), Seattle, WA, for Center for Biological Diversity, Friends of the San Juans, People for Puget

Sound, Orca Conservancy, Ocean Advocates, Earth Island Institute, Ralph Munro, Karen Munro, Plaintiffs.

Adam Issenberg, U.S. Department of Justice, Environment & Natural, Resources Division, Washington, DC, Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, for Robert D Lohn, Northwest Regional Administrator of National Marine Fisheries Service, Donald L. Evans, Secretary of Commerce, U.S. Department of Commerce, Defendants.

Craig J. Dorsay, Jennifer K. DeWald, Portland, OR, Bradford J. Axel, Stokes Lawrence, Seattle, WA, for Samish Indian Nation, Western Canada Wilderness Committee and Georgia Strait Alliance, Interested Parties.

ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT

LASNIK, District Judge.

I. INTRODUCTION

This matter comes before the Court on a motion for summary judgment (Dkt.# 29) filed by plaintiffs Center for Biological Diversity, et al. (collectively, "Plaintiffs") and a cross motion for summary judgment (Dkt.# 41) filed by defendants Robert Lohn, et al. (collectively "Defendants" or "NMFS"). Plaintiffs brought this action to challenge the National Marine Fisheries Service's ("NMFS") determination that the "Southern Resident" orca whales of the Puget Sound, the Strait of Juan de Fuca, and the Georgia Strait do not warrant listing under the Endangered Species Act ("ESA"). Plaintiffs contend that Defendants made this determination based upon a factor that is not permitted by the ESA, that Defendants failed to protect the only resident orca population indigenous to the contiguous United States, and that Defendants relied upon a definition of the orca species that falls below the best available scientific information standard. For the reasons set forth in this Order, the Court grants in part and denies in part both motions, sets aside Defendants' "not warranted" finding, and remands this matter to NMFS for re-determination of whether the Southern Residents should be listed pursuant to the ESA.

II. BACKGROUND

A. The Killer Whale (Orcinus Orca).

Killer whales ("orcas") are among the world's most recognized and beloved marine mammals. In recent years public concern for orca whales has increased dramatically, and today many individuals and organizations, some of which are plaintiffs in this lawsuit, work to protect these magnificent animals.¹

Orcas live in matriarchal units, which congregate with other units to form pods, which in turn congregate to form populations. (AR 6 at 17).² Each orca population communicates using one or more unique dialects of clicks, calls, and whistles. Id. at xii, 52, 62. Many scientists believe that orcas possess "culture" and generationally transfer that culture based upon "(1) their long life-span and extended childhood learning periods ... relative to other mammals that possess culture ..., (2) their advanced central nervous system relative to other mammals that possess culture ... and (3) their complex learned communication system." (AR 313 (Richard W. Osborne, A Historical Ecology of Salish Sea "Resident" Killer Whales (Orcinus orca): With Implications for Management (1999) (unpublished Ph.D. dissertation, University of Victoria)) at 27-28 (internal citations omitted)).

Taxonomists recognize only one global species of orca whales, the Orcinus orca. (Complaint (Dkt.# 1) ¶ 24; Answer (Dkt.# 20) ¶ 24). This classification was established by Carl Linnaeus, "the father of taxonomy," in 1758. (Plaintiffs' Reply and Response at 11 (citing AR 330 at 118)). However, biologists classify orcas that are present in the Eastern North Pacific Ocean into three reproductively isolated forms: resident, transient, and offshore. (AR 6 at 13). "The three forms vary in morphology, ecology, behavior, and genetic characteristics." Id. "Resident killer whales in the Eastern North Pacific are noticeably different from both the Transient and Offshore forms." Id. The dorsal fin of resident orcas is rounded at the tip, and resident orcas primarily prey upon fish. Id. Four resident orca populations exist in the Eastern North Pacific Ocean: the Southern Residents, the Northern Residents, and two groups of Alaska Residents. The Southern Residents, consisting of three pods, reside in the inland waterways of Puget Sound, the Strait of Juan de Fuca, and the Georgia Strait during the spring, summer, and fall. Id. at 14. The Northern Residents, consisting of approximately sixteen pods, range from the Georgia Strait to Southeastern Alaska. Id. Although there is some overlap in the ranges of the Southern and Northern Residents, Southern Residents appear not to associate with other resident orcas, and genetic studies suggest that the stocks of the Southern and Northern Residents are reproductively isolated from one another. Id.

Transient orcas differ from residents in several respects. Dorsal fins of transient orcas are more erect and pointed than the dorsal fins of resident orcas. Id. at 15. Transients congregate in smaller pods than residents and, in contrast to residents, transients prey primarily upon other marine mammals, such as seals, porpoises, and whales. Id. Transients travel long distances in pursuit of their prey. Id. Although the transients' geographical range overlaps with that of both resident and offshore orcas, transients do not intermingle with resident or offshore orcas, and significant genetic differences exist between and among the three forms. Id.

"Offshore killer whales are poorly understood." Id. Offshore orcas are morphologically similar to residents and appear to range from central costal Mexico to Alaska, in both coastal and offshore waters. Id. Offshore orcas do not intermingle with residents or transients, and genetic data suggest the form is reproductively isolated from the other forms. Id.

B. The Decline of the Southern Residents.

Fewer Southern Residents inhabit their historic range today than a century ago. Plaintiffs suggest that the population of Southern Residents likely once numbered between 140 and 200. (Plaintiffs' Motion at 5); see also AR 6 at 52 ("Given the speculative nature of some of this information [upon which analysis of past populations is based], it is difficult to make conclusive statements about the past abundance of Southern Residents and what the current or past carrying capacity have been. However, several lines of evidence indicate that population sizes in the past may have been larger."). Three major population declines have occurred since the mid-1960s.

During the 1960s and early 1970s, "at least 68 [Southern and Northern Resident] whales were removed or killed during capture operations for public display." (AR 6 at 43). As a result of a shortage of reproductive females due to those capture operations, the Southern Resident population declined by approximately twelve percent between 1980 and 1984. Id. at 31. The population then grew and stabilized as more female orcas became reproductively mature. (Complaint ¶ 35; Answer ¶ 35). In recent years the population of Southern Residents has declined precipitously. Between 1996 and 2001, the Southern Resident population declined by twenty percent from 97 whales to 78 whales. (AR 6 at vii, 31). Scientists are uncertain of the cause of this most recent decline, but suspect external causes, such as the availability of prey or the presence of pollution, rather than demographic changes or mere fluctuations in year-to-year survival. Id. at 33-34.

C. Plaintiffs' Petition for ESA Protection of the Southern Residents.

Congress enacted the ESA "to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved [and] to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). An "endangered species" is a species that is "in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. § 1532(6). A "threatened species" is a species that is "likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. § 1532(20). A "species" includes "any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature." 16 U.S.C. § 1532(16).

The ESA does not define "distinct population segment" ("DPS"). However, in 1996 NMFS and the Fish and Wildlife Service ("FWS") (collectively, "the Services") published a joint policy (the "DPS Policy") clarifying their interpretation of that term. See 61 Fed.Reg. 4722 (Feb. 7, 1996). The DPS Policy requires the Services to evaluate three elements when considering identification of a DPS:

(1) Discreteness of the population segment in relation to the remainder of the species to which it belongs;

(2) The significance of the population segment to the species to which it belongs; and

(3) The population segment's conservation status in relation to the Act's standards for listing (i.e., is the population segment, when treated as if it were a species, endangered or threatened?).

Id. at 4725.

NMFS determines whether to list a species as threatened or endangered whenever any one of the following factors is met:

(1) the present or threatened destruction, modification, curtailment of its habitat or range;

(2) overutilization for commercial, recreational, scientific, or educational purposes;

(3) disease or predation;

(4) the inadequacy of existing regulatory mechanisms; or

(5) other natural or manmade...