The insignificant killer whale: a case study of inherent flaws in the wildlife services' distinct population segment policy and a proposed solution.

• Author: Teaney, Derek O.

1. INTRODUCTION II. BACKGROUND A. The Distinct Population Segment 1. Congress Sets the Standard 2. The Services Set the Process: The DPS Policy B. Meanwhile, Out at Sea ... The Killer Whale C. One Process, Two Different Conclusions: Application of the DPS Policy to the Southern Resident Killer Whale 1. The Center for Biological Diversity's Interpretation of the DPS Policy 2. NMFS's Implementation of the DPS Policy a. The Southern Residents as a DPS of the Global Species Orcinus orca b. The Southern Residents as a DPS of an Alternative Taxon III. THE DPS POLICY: FLAWED IN APPLICATION AND ON ITS FACE A. In Application: NMFS's Genetically Driven Application Disserves the ESA 1. Refusal to Consider International Boundaries 2. Refusal to Consider the Unique Nature of the Southern Residents' Urban Habitat 3. Refusal to Consider Alternative Criteria a. Cultural Significance of the Southern Resident Killer Whale b. The Southern Residents as a Stock Under the MMPA 4. The BRT Set the "Marked" Hurdle Too High a. Genetic Uncertainty and the Risk of Error b. Expected Genetic Variation Between Populations of the Same Species B. On Its Face: The Taxon Reflexive Nature of the DPS Policy 1. A Population Can Be Significant in Relation to More Than Just Its Taxon 2. The DPS Policy Cannot Tolerate Taxonomic Uncertainty IV. PROPOSED SOLUTION A. The Discreteness Prong B. The Significance Test 1. Does a Functional DPS Policy Need a Significance Test? a. A Significance Requirement Is a Permissible Construction of the ESA b. A Significance Test of Some Kind Is Desirable 2. A Population's Significance Should be Measured in Relation to Its Ecosystem and to Human Culture 3. A Clear Standard for "Significant" Genetic Differentiation 4. Guidance in the Face of Taxonomic Uncertainty V. CONCLUSION I. INTRODUCTION

   For more than a millennium they have played a prominent role in the rives of the natives of the Pacific Northwest. (1) Occupying the top of the marine food chain, (2) they are incredible predators: They beach themselves to catch sea lions, cooperate to knock seals from icebergs, and even attack the largest animal ever to live on Earth, the blue whale. (3) The largest member of the dolphin family, (4) they can reach lengths of almost 27 feet, and weigh over 13,000 pounds. (5) Each year, thousands of people in the United States hop aboard boats just for the chance to see them, (6) and millions more go to see them at aquariums. (7) They are killer whales (Orcinus orca).

   Killer whale numbers declined over 20% in the Puget Sound region of the Pacific Northwest between 1995 and 2001; there is no debate on this point. (8) Despite this steep and sudden decline, on July 1, 2002, the National Marine Fisheries Service (NMFS) (9) refused to provide the Southern Resident killer whales of Puget Sound--the only resident killer whales in the contiguous United States (10)--with protection under the Endangered Species Act (ESA) (11) because they are not "significant." (12) With this conclusion, NMFS could be relegating the best-known killer whales in the United States to extinction. (13)

   NMFS came to this conclusion in response to a petition to list the Southern Resident killer whale population as endangered or threatened by the Center for Biological Diversity. (14) As discussed above, the number of Southern Resident killer whales, a population of killer whales that resides in the waters off the coast of Washington, (15) plummeted over 20% between 1995 and 2001, prompting the Center for Biological Diversity and others to urge NMFS to use its power to list distinct population segments under the ESA. (16)

   The ESA defines the term "species" for purposes of the Act to "include 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." (17) While the statute does not define the term "distinct population segment," the ability to list such populations gives administrative agencies authority to use the ESA to protect certain imperiled populations of a species while allowing them the "flexibility to manage healthier portions of a species differently." (18) In other words, the Act protects not only species in the common understanding of the term, but also populations of species.

   NMFS and the United States Fish and Wildlife Service (hereinafter, collectively the Services) granted themselves the deific power to determine the "significance" of an otherwise discrete population segment in their "Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act" (DPS Policy) promulgated in 1996. (19) The Services declared that a distinct population segment (DPS) under the ESA not only must be discrete, but it also must be significant. (20) The requirement of significance purportedly serves the congressional directive that the authority to list DPSs be used "sparingly." (21) However, the Services rarely disqualify discrete populations because of a lack of significance. (22) What makes the Southern Resident killer whale unique? Is it truly insignificant? Or did NMFS's misapplication of an inherently flawed policy generate an incorrect result? This Comment proposes that the latter is the case.

   When it applied the DPS Policy to the Southern Resident killer whale, NMFS approached its task with the mistaken idea that the primary, if not sole, purpose of the ESA is to protect genetic diversity. (23) It consistently demonstrated this mindset by repeatedly referring to its "Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon," (24) which commentators have pointed out is a "genetically driven policy." (25) However, operating from this mistaken position alone would not have doomed the Southern Resident killer whale had the DPS Policy not contained a fatal facial flaw: It is taxon reflexive. (26) That is, it measures a population's value in relation to the larger taxon (27)--sppecies or subspecies--to which it belongs. If there is scientific uncertainty as to the correct taxonomy--or classification--of a particular population, as NMFS concedes that there is with the Southern Resident killer whale, (28) then the DPS Policy melts down. This uncertainty forced NMFS to choose between accepting a discredited hypothesis of one global species of killer whale and identifying the correct classification on its own. The agency chose the easy way out and relied upon the global species theory. This choice, however, was contrary to the letter and spirit of the ESA. (29)

   This dissection of NMFS's decision begins with a presentation of background information in Section II, including a history of the DPS Policy, an overview of pertinent killer whale biology, and a synopsis of the decision that Southern Resident killer whales are not significant. Section III examines the flawed perspective with which NMFS applied the DPS Policy and the policy's more fundamental facial flaw. Finally, Section IV proposes a solution: Revise the DPS Policy to broaden its consideration of a population's significance beyond biological considerations and include guidance in the face of taxonomic uncertainty. The proposed revisions may cause controversies of their own, but they nonetheless provide a good starting point for a debate on the broader purposes of the Services' authority to list distinct population segments.

2. BACKGROUND

   This Section presents background information necessary to understand fully the problems with NMFS's application of the flawed DPS Policy to the Southern Resident killer whales. First, it highlights the history of the DPS as a standard and the Services' creation of a process--the DPS Policy--to implement it. Second, it turns to the relevant aspects of the biology of killer whales. Third, it summarizes the implementation of the DPS Policy with regard to the Southern Resident killer whale population.

   1. The Distinct Population Segment

      The ESA delegates the authority to list endangered and threatened species to the Secretaries of Interior and Commerce; the Secretary of Interior oversees terrestrial animals and land plants, and the Secretary of Commerce oversees most marine mammals, anadromous fishes, and marine plants. (30) The Secretaries, in turn, manage the listing of species through their respective wildlife agencies: the United States Fish and Wildlife Service (FWS) within the Department of Interior and NMFS within the Department of Commerce. (31) Congress provided the Services with a vague standard by granting them the authority to list "distinct population segments." In turn, the Services created an equally problematic process by which to apply the standard: the DPS Policy.

      1. Congress Sets the Standard

         As written in 1973, the ESA defined the term "species" to include "any subspecies of fish or wildlife or plants and any other group of fish or wildlife of the same species or smaller taxa in common spatial arrangement that interbreed when mature." (32) This language was borrowed from the Marine Mammal Protection Act (MMPA). (33) Congress designed this language in the MMPA specifically to deal with the taxonomic uncertainty surrounding the proper classification of Alaskan polar bears (Ursus maritimus). (34) At the time the MMPA was drafted, scientists debated whether Alaskan polar bears belonged in their own subspecies. (35) In order to ensure that the MMPA protected the only population of polar bears in the United States, Congress created a definition of stock that took taxonomic uncertainty into account. (36)

         Congress modified the ESA definition of species with the Endangered Species Act Amendments of 1978. (37) The modified definition survives today: "The term '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." (38)

         The language of both the original definition and...