The declining number of orcas that sojourn in Washington's Puget Sound could become extinct this century but cannot be protected by the Endangered Species Act because of a legal technicality, federal officials announced Tuesday.
Federal biologists stated that the Puget Sound orcas, commonly known as killer whales, don't qualify for protection under the act because they are not a subspecies or a "distinct population segment" separate from the larger, healthier population of whales in the Pacific Coast.
The National Marine Fisheries Service said it would invoke other federal laws to try to safeguard the remnant population of 78 orcas that suffer from a shrinking supply of salmon, a buildup of industrial pollution and sometimes from the overly enthusiastic attention of a fleet of whale watching boats.
"This population needs our help and is in danger of going extinct," said Bob Lohn, northwest regional administrator of the national fisheries service. "But the law dictates that the Endangered Species Act is not a tool we can use."
The decision frustrated environmentalists who petitioned the government to invoke the powerful law to help turn around the "southern resident" population that has been in a nose dive since 1997.
Brent Plater, an attorney for the Center for Biological Diversity, called the rejection of the center's petition for endangered listing "a new low" in the history of the National Marine Fisheries Service.
"This is a tragedy for the population," he said. "I find no other reasonable explanation for it other than if you look at [President] Bush's environmental record, you see how this is politically motivated."
"In this case, that's absolute nonsense," Lohn said. The decision was reached by a panel of 11 government scientists after intense debate by marine experts, he said. "They gave me their best advice and I followed it. There was no political intervention."
In making its decision, the science panel agreed that the Puget Sound whales are in serious trouble and have more than a 10% chance of becoming extinct within the next 100 years.
But these orcas, the panel determined, do not meet the legal criteria for protection as a distinct population group.
As it stands now, biologists consider all orcas as one species. Scientists, however, have noticed distinct differences and, as a result, split them into different types.
The three remaining pods of killer whales that spend from April to September in the Puget Sound are called the "southern resident" population.
They eat almost exclusively salmon and other fish. Although historically their range included California, they were last spotted off the California coast 18 months ago.
A "northern resident" population lives off Alaska and British Columbia. Scientists also closely follow yet another population of transient orcas that prowls the West Coast from Alaska to Southern California.
In contrast to the fish-eating Puget Sound orcas, these transients eat dolphins, seals, sea lions and great white sharks, and even work together like a pack of wolves to take down and feed on a gray whale or humpback whale, or more often, their young.
"At a global level, it doesn't seem that the orca is at risk," said John Ford, an orca expert at Canada's Department of Fisheries and Oceans. But he noted that orcas have grown scarce in some areas--one of the reasons Canada recently decided to list the Puget Sound whales as endangered under Canadian law.
Environmentalists had hoped the U.S. Endangered Species Act would have nudged federal officials to designate "critical habitat" where the southern residents feed. Such a designation could tighten rules governing toxic runoff, restricting salmon catches and keeping whale watching boats at a more respectful distance.
"Our populations are headed for the bottom, and we are not providing the protections they deserve," said Elliott A. Norse, president of the Marine Conservation Biology Institute in Redmond, Wash. "It's an old story, a sad story."
Some scientists believe the drop of the Puget Sound population is related to a decline in salmon, a favorite food.
Others suspect poisoning from industrial pollutants. Of particularly concern are toxic PCBs, used as coolants and lubricants in electrical equipment until they were banned in the late 1970s. PCBs have been found in high concentrations in orca blubber.
Scientists believe that such poisons may be linked to premature deaths of adults and 50% mortality of calves.
These toxins enter the food chain through microscopic organisms that are eaten by small fish and continue in higher concentrations up the food chain to orcas. Killer whales, with 3-inch teeth, consume 200 pounds or more of fish a day.
Other scientists worry--though they have no hard evidence--that orcas are becoming victims of their own celebrity.
Whale watching boats crowd around these charismatic black and white creatures as they breech, slap fins and gambol in the calm waters in Puget Sound.
Federal officials are considering tightening whale watching rules.
Orcas are protected under the Marine Mammal Protection Act, which forbids killing or harassing them.
"Our first job is to focus on interim protections and figure out what's happening so we can turn it around," Lohn said. He said the agency will revisit the endangered species issue in four years.
Times researcher Lynn Marshall contributed to this report.