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Contact: Damien M. Schiff
Principal Attorney
Pacific Legal Foundation
dms@pacificlegal.org
(916) 419-7111

 

PLF petitions feds to end ESA listing of the Orca in the Pacific Northwest


Orca Tail -- credit: ZauiSacramento, CA; August 2, 2012: The killer whales, or Orcas, in the marine waters of the Pacific Northwest have been wrongly placed on the federal Endangered Species Act list and should be removed. In fact, there is no scientific basis for treating them as part of a separate subspecies that is distinct from other Orcas, which may be the most widely distributed mammals on the planet and are found in all parts of the oceans and in most seas from the Arctic to the Antarctic.

So argues a petition filed today by attorneys with Pacific Legal Foundation, asking federal officials to remove the Orca from the ESA list. The petition also points out that the listing has led to regulations threatening economic harm for millions of people.

The petition was filed on behalf of the Center for Environmental Science, Accuracy & Reliability (CESAR), a nonprofit organization dedicated to scientific rigor in environmental regulations.

Also represented are two farms in California’s San Joaquin Valley, whose access to water for agriculture is threatened by the unjustified ESA listing of the Orca. This is because water deliveries from the Sacramento-San Joaquin Delta are threatened as a result of an ESA biological opinion that was issued for the Orca along with several species of fish, including salmon and steelhead, that are part of the Orca’s food supply and that are found in the Delta.

Mailed last night for filing today, the petition is submitted to the U.S. Department of Commerce and the National Oceanic & Atmospheric Administration, Fisheries. It explains that federal officials violated legal and scientific principles by putting the Orca on the ESA list in 2006.

In a legal sense, the listing was wrong because federal officials identified Pacific Northwest Orcas as a distinct population of a subspecies; however, the ESA allows the listing only of species and distinct populations of species, not distinct populations of subspecies.

In a scientific sense, the federal listing is wrong because the Orca pods in the Pacific Northwest are not a separate subspecies that is distinct from other Orcas throughout the world.

Feds “invent” a subspecies — triggering unjustified regulations



Damien M. Schiff
Principal Attorney

“Our delisting petition is about ensuring that environmental regulations are based on sound science,” said PLF Principal Attorney Damien M. Schiff. “When a species as a whole isn’t endangered, government can’t invent a justification for ESA regulations by arbitrarily carving out a single geographical area and focusing only on the species’ numbers in that narrow zone. That amounts to regulating by zip code populations instead of based on a species’ entire population.

“Unfortunately, this is precisely what federal officials have done with the Orca,” Schiff continued. “They invented a new category of Orca in the Pacific Northwest. Then they declared it was ‘endangered’ and regulations must be imposed. In fact, however, there’s no scientifically significant difference between the Orca in that region and anywhere else. There is no taxonomically significant distinction in genetics, biology, or behavior.

“What’s really endangered is the economic environment, undermined by restrictive regulations because of the unjustified Orca listing,” said Schiff. “For example, farms and communities in California’s San Joaquin Valley are in danger of more regulatory cutbacks in water supplies, in part because of the Orca’s ESA listing. Yes, the unjustified listing has an impact that stretches that far — from the Pacific Northwest to Fresno and points south. Water deliveries to the San Joaquin Valley and Southern California, from the Sacramento-San Joaquin Delta, are threatened as a result of an ESA biological opinion that was issued for the Orca along with several species of fish that are part of the Orca’s food supply and that are found in the Delta.

“Our economic downturn has been bad enough without federal officials making it worse through bad science and unneeded regulations. We can’t allow faulty ESA listings to cause economic dislocation for families, farms, businesses, and communities.”

The petitioners: farmers who are impacted, and CESAR, an organization dedicated to scientific rigor in environmental regs

PLF attorneys challenged the Orca listing once before, in 2006 litigation, but the action was dismissed on the ground that, at that point, no regulations had yet been issued that had caused harm to the plaintiffs in that case.

In the petition filed today, however, PLF represents two farms that are among the thousands of farms and communities in Central and Southern California whose water supplies are threatened by regulations due in part to the Orca listing.

The petitioners are as follows:

Empresas Del Bosque
Located on the west side of Fresno and Merced Counties in the San Joaquin Valley, Empresas Del Bosque farms 2,200 acres of cantaloupes, organic cantaloupes, almonds, asparagus, cherries, wheat, and processing tomatoes. It has 18 full-time employees, and hires up to 300 more persons on a seasonal basis. Water from the San Luis Water District is vital for Empresas Del Bosque, as all its crops are irrigated.

The district has experienced water reductions in recent years, the worst occurring in 2009 when the district only received a 10 percent allocation. That low allocation was in part due to regulations stemming from the biological opinions for the Orca, salmon, Delta smelt, and other species, under the ESA. As a result, Empresas Del Bosque idled about 900 acres and lost about $1.5 million in revenue, forcing it to cut back workers’ hours per week by a third.

Coburn Ranch
Coburn Ranch is a family farm in Fresno County that raises almonds, wine grapes, and various row crops. The Ranch currently has 4,000 acres in production. It has 21 full-time employees, and a handful of seasonal employees. The ranch farms in several water districts, including the Chowchilla and Westlands Water Districts.

Coburn Ranch has ceased all development of land in the San Joaquin Valley federal water districts, in part because of water cutbacks attributable to ESA regulations stemming from the biological opinions for the Orca, salmon, Delta smelt, and other species. Since the water cutbacks of 2009, a $6 million expansion planned for the ranch’s almond processing plant has been put on indefinite hold. Until the restrictive water-pumping regulations are ended — which will require, among other things, the delisting of the Orca — Coburn Ranch will be at a stand-still in development and job creation.

CESAR
CESAR (the Center for Environmental Science, Accuracy & Reliability) is a California nonprofit corporation whose primary purpose is to bring scientific rigor to environmental regulatory decisions, and to ensure consistent application of environmental statutes throughout all industries and sectors. CESAR believes this will generate additional support for environmental statutes, because regulatory actions will be transparent and supported by science.

As the petition reports, “CESAR believes that these goals will be furthered by delisting the Southern Resident killer whale DPS, for three related reasons. First, the delisting will ensure that the National Marine Fisheries Service abide by Congress’s limitation of the Service’s listing power to species, subspecies, and DPSs of species. Second, the delisting will ensure that the Service not be allowed to cherrypick populations for listing within subspecies that show no danger of extinction. Third, the delisting will ensure that the Service truly follow the commands of best available scientific data by protecting only those populations the taxonomy of which is legitimate rather than a product of politicized science. Realization of these goals is all the more important now, given that the water cutbacks in California’s San Joaquin Valley have been due in part to ESA protections afforded the Southern Resident killer whale DPS.”

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation (www.pacificlegal.org) is the leading watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulation, in courts across the country.

PLF attorneys recently won their sixth direct-representation case at the U.S. Supreme Court, challenging overreaching government regulations: Sackett v. EPA.