Fred Felleman  /  AP file
A female killer whale spy-hops in Puget Sound with Mount Rainier in the background in this 2002 photo.
updated 12/16/2004 9:44:11 PM ET 2004-12-17T02:44:11

Two years after denying Endangered Species Act protection to killer whales that live much of the year near Washington’s San Juan Islands, the federal fisheries agency said Thursday it plans to list the struggling population as a threatened species.

A federal judge last year had ordered the National Marine Fisheries Service to reconsider its decision on the whales after eight environmental groups and concerned individuals filed suit. The threatened-species designation could become final a year from now, following a period of public comment.

In 2002, the fisheries service had concluded that the orcas did not warrant protection under the Endangered Species Act because the population did not meet the definition of being biologically distinct from other killer whales. Instead, it designated the whales as a depleted species under the Marine Mammal Protection Act, which provides for study and protection of individuals but does not protect habitat.

‘Habitat protection is key’
“Habitat protection is key,” said Fred Felleman of the Orca Conservancy, a Seattle-based plaintiff in the case. “Conservationists know that you can’t save a species by protecting individuals.”

Attorney Patti Goldman of Earthjustice in Seattle called the population “a close-knit family of highly intelligent whales that have been living cooperatively with each other in Puget Sound for thousands of years.”

“The federal government refused to protect this remarkable family of whales until the people of Puget Sound came together, and with one voice, demanded it,” Goldman said.

The orcas now number 84, down from an unknown high that scientists believe could have exceeded 200. Two calves born this year will be added to the total if they survive to next year.

Earlier decision called speculative
Dozens of orcas were captured for sale to aquariums in the 1960s and ’70s. Since then they’ve struggled with pollution, human encroachment and dwindling salmon runs.

In its original decision, the fisheries service agreed the orcas “face a relatively high risk of extinction,” but concluded that transient killer whales along the coast or populations farther off-shore would fill the gap if they disappeared.

U.S. District Judge Robert Lasnik rejected that finding, calling it speculative and unsupported.

Orcas, actually a kind of dolphin, are found in all the world’s oceans.

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