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Feds will consider dropping ESA listing of Orca, in response to PLF petition

PLF News Release

Posted 12/3/2012

Sacramento, CA; November 26, 2012:  Federal officials announced today that they will begin a one-year review to consider dropping the Pacific Northwest’s killer whales, or Orcas, from the Endangered Species Act list, in response to a “delisting petition” from Pacific Legal Foundation.

The review will be undertaken because PLF’s petition contains substantial information warranting the delisting of the Orcas in the marine waters of the Pacific Northwest, according to today’s announcement from the National Oceanic & Atmospheric Administration, Fisheries.

Submitted in August, 2012, PLF’s petition noted there is no scientific basis for treating the region’s Orcas as fundamentally distinct from other Orcas, which may be the most widely distributed mammals, found in all parts of the oceans and in most seas from the Arctic to the Antarctic.

The petition also points out that the listing threatens economic harm for millions of people.

Feds’ announcement is “a step forward for sound science ― and rational regulations”

Damien Shiff, PLF Principal Attorney
Damien M. Schiff
Principal Attorney

“The federal government’s announcement today is good news for everyone who believes that environmental policy should be based on honesty and sound science,” said PLF Principal Attorney Damien M. Schiff.  “When a species as a whole isn’t endangered, government can’t pretend otherwise by narrowly focusing on one arbitrarily chosen region.  The feds can’t regulate by zip code.  They have to look at the entire population of the species.

“In order to label the Orca as endangered, regulators had to invent a new sub-category of Orca in the Pacific Northwest,” Schiff continued.  “There is no scientifically significant difference between the Orcas in that region and anywhere else.  There is no taxonomically significant distinction in genetics, biology, or behavior.  Our petition points out these facts.  It’s encouraging ― it’s a step forward for sound science and rational regulations ― that federal officials are saying that our petition makes a strong case and the listing must be reconsidered.

“The Orca listing isn’t just bad science, it’s also bad for the economy,” Schiff said.  “Among those hurt by unjustified federal Orca regulations are farmers and communities as far away as California’s San Joaquin Valley, and even the population of Southern California.  One of the reasons for federal limits on the pumping of water to these regions from the Sacramento-San Joaquin Delta, has been to regulate for fish that are part of the Orca’s food supply.

“We simply can’t permit unjustified 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

In the petition, 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.  PLF also represents CESAR, a nonprofit organization dedicated to scientific rigor in environmental regulations.

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 (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 abides 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 ( 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.  PLF’s latest direct- representation case at the U.S. Supreme Court, for property rights and a balanced approach to environmental regulations, is Koontz v. St. Johns River Water Management District.  Oral argument in Koontz will be held at the Supreme Court on January 15, 2013.


Other releases: Go to Pacific Legal Foundation Releases

Pacific Legal Foundation 2012 Press Releases

11/26/12 Feds will consider dropping ESA listing of Orca, in response to PLF petition
11/15/12 Feds are sued over unjustified, job-killing caribou regulations
11/7/12 The election is over, but PLF’s Obamacare suit goes on!
10/8/12 “Enlist with Matt Sissel” campaign spreads the word about PLF’s Obamacare suit
10/5/12 Supreme Court accepts major PLF property rights case
10/4/12 PLF suit challenges Nevada’s ban on new competition in the moving business
10/1/12 Prompted by PLF suit, feds move toward delisting valley beetle
10/1/12 Feds leapt over the law in grabbing private property for dusky gopher frog
9/12/12 PLF suit: Tax-raising Affordable Care Act started in wrong house of Congress
9/11/12 PLF announces three new College of Public Interest Law fellows
8/30/12 Online home-sale ad entrepreneur sues Nebraska for trying to shut her down
8/21/12 Kentucky is sued over its anti-competition law for the moving business
8/2/12 PLF petitions feds to end ESA listing of the Orca in the Pacific Northwest
7/17/12 Feds sued over halting Tahoe National Forest access for off-road recreationists
7/11/12 Missouri’s moving-business cartel, challenged by PLF, is now officially repealed
6/28/12 PLF statement on Supreme Court’s Health Care ruling
6/25/12 PLF applauds Supreme Court acceptance of forest-road runoff case
6/25/12 PLF seeks justice for Washington landowner victimized by a bureaucratic stall
6/21/12 PLF applauds Supreme Court’s Knox v. SEIU ruling for workers’ free speech rights
6/15/12 PLF helps beat a brazen abridgement of rights by Cal. Coastal Commission
6/8/12 FL property owner, victim of a government “taking,” seeks help from U.S. Supreme Court
6/5/12 PLF supports freedom of contract in brief to the Fifth Circuit
6/4/12 PLF celebrates 20th anniversary of its Northwest Center
5/29/12 PLF urges High Court to end race-based admissions policies at public universities
5/25/12 Triggered by PLF lawsuit, repeal of moving-business cartel motors ahead
5/21/12 PLF’s Burling, the Sacketts and Gov. Parnell will speak on the Sacketts’ case
5/9/12 Feds are asked to lift unjustified, job-killing caribou regulations
4/24/12 PLF and Wall Street Journal editors will discuss rent control, online today
4/19/12 PLF’s 2012 Earth Day “True or False?” quiz
4/12/12 PLF supports constitutional challenge to NYC’s destructive rent controls
4/2/12 Victory for Prop. 209 at the Ninth Circuit
3/30/12 Texas Supreme Court repeats: State can’t “roll” away beachfront property rights
3/21/12 Today on Lou Dobbs: PLF victory at the Supreme Court in Sackett v. EPA
3/21/12 Historic Supreme Court ruling allows the Sacketts to fight EPA takeover of their land
3/12/12 PLF files lawsuit to stop feds’ “foot-dragging” on elderberry beetle de-listing
3/2/12 PLF’s Sackett case will be featured on “Real Estate Today” national radio program
2/27/12 The Sacketts and PLF’s Damien Schiff will address Congress’ Western Caucuses
2/27/12 Court will hear challenges (including PLF’s) to EPA’s CO2 “endangerment” finding
2/24/12 PLF marks first annual “National Public Interest Law Day”
2/23/12 PLF warns of lawsuit over six outdated ESA listings in California
2/21/12 PLF applauds High Court decision to review race-based university admissions
2/13/12 PLF brief to Supreme Court targets federal health-insurance mandate
2/10/12 Ninth Circuit to hear PLF defense of equal rights and equal opportunities
2/7/12 Fifth Circuit to hear PLF suit over EPA “vetoing” Miss. flood control
2/3/12 John Stossel to headline PLF’s Spring Gala in the Napa Valley
1/27/12 PLF’s Wade Hopping Institute unveiled by top Florida property rights attorneys
1/26/12 PLF and ACTA challenge state restrictions on job-creating apprentice programs
1/17/12 PLF asks federal court to strike down Missouri’s state-enforced mover cartel
1/9/12 At the Supreme Court, PLF defends the Sacketts’ right to appeal EPA dictates
1/6/12 Monday on “Fox & Friends”:  PLF clients Mike and Chantell Sackett
1/6/12 Monday on Lou Dobbs: The Sacketts and PLF’s Damien Schiff
1/5/12 Jan. 9: Supreme Court will hear PLF’s Sackett property rights case
1/3/12 Feds are warned of lawsuit over wood stork’s “endangered” listing





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