Center for Biological Diversity

Protecting endangered species and wild places through
science, policy, education, and environmental law.

May 3, 2002

Conservationists file notice of intent to sue Fisheries Service

CONTACT: BRENT PLATER 415-572-6989; 510-841-0812
More Information: Center's Orca web site, Notice of Intent to Sue


The Center for Biological Diversity filed a notice of intent to sue the National Marine Fisheries Service today for failing to rule on the Center's petition to protect the Southern Resident Killer Whale under the Endangered Species Act. Under the ESA, the Fisheries Service was required to respond with a final listing determination within 12 months of the filing of the petition. The Center for Biological Diversity filed the petition on May 2, 2001. The deadline for the Fisheries Service ruling was thus May 2, 2002. However, the Fisheries Service has not yet completed their final ruling.

The ESA requires citizens to notify agencies when they intend to sue for certain violations of the ESA.

"By definition, endangered species don't have time to waste, and the ESA's mandatory deadlines are there to ensure that the Fisheries Service puts protections in place before its too late," said Brent Plater, an attorney with the Center for Biological Diversity and lead author of the killer whale petition. "We remain hopeful that the Fisheries Service will make a determination imminently; today's letter serves to remind the agency that the timelines in the Act are mandatory and will be enforced by a court of law."

On May 2, 2001, the Fisheries Service received a formal administrative petition to list the Southern Resident Killer Whale as endangered under the ESA from the Center for Biological Diversity, the Center for Whale Research, the Whale Museum, Ocean Advocates, the Washington Toxics Coalition, Orca Conservancy, the American Cetacean Society, Friends of the San Juans, People for Puget Sound, Project SeaWolf, the Cascade Chapter of the Sierra Club, and former Secretary of State Ralph Munro.

The petition used the best-available science to document that population instability has marked the Southern Residents since the late 1960s when dozens of young killer whales were removed from the population for live display in aquaria. Over the past six years the Southern Residents have declined nearly 20%, leaving only 78 individuals in the population at the end of the 2001 survey year. The cause of the current decline appears to be the synergistic effects of high levels of toxic pollutants, a population decline in their preferred salmon prey, and human disturbance. The Center for Biological Diversity's Population Viability Analysis of the Southern Residents concluded that the Southern Residents face extinction within 120 years.

The Southern Residents can be protected under the ESA because they are both "discrete" and "significant" and therefore qualify as a distinct population segment of the species. Distinct population segments are afforded all the protections available under the ESA because they are important to the existence of the species as a whole.

"The significance of the Southern Residents to the species as a whole and to the people of the Pacific Northwest has been extensively documented," said Plater. "The question now is whether NMFS will act to protect the Southern Residents while there is still time to help the population recover."

Recently a lone juvenile Southern Resident that was thought to have died has been found near Vancouver Island. Remarkably, it was the first time in the history of the population that a killer whale has been absent from the summer survey only to be found alive subsequently. This discovery marks an ominous disruption of the social organization of the Southern Residents. It is unprecedented for a juvenile to leave its matrilineal pod. Yet even if this whale were to survive and rejoin its community, the risk of extinction for the population as a whole will remain extremely high.

For photos, the petition, the PVA, and letters of support from independent scientist, visit


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