The insignificant killer whale: a case study of inherent flaws in the wildlife services' distinct population segment policy and a proposed solution.
I. 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. II. 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. A. 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 the present definition would allow the listing of groups of animals below the taxonomic level of species. The amended language, however, limits the listing of such groups to vertebrate animals and introduced the phrase "distinct population segment." The legislative history of the 1978 amendments provides little insight into the motivation for the change in language; (39) nonetheless, the change makes a clear policy choice in providing protection for populations of vertebrates as opposed to populations of invertebrates. (40) In 1979, the General Accounting Office (GAO) recommended that Congress eliminate the Services' ability to list populations of species, fearing that such listings would "increase the number of potential conflicts between endangered and threatened species and Federal, State, and private projects and programs." (41) FWS protested that such an action would tie its hands as to protecting "a species based on its actual biological status." (42) The Senate committee evaluating the arguments on this point--the Committee on the Environment and Public Works--sided with FWS. (43) However, in an oft-cited statement, the Committee warned that it "is aware of the great potential for abuse of this authority and expects the FWS to use the ability to list populations sparingly and only when the biological evidence indicates that such action is warranted." (44) 2. The Services Set the Process: The DPS Policy Congress set the applicable standard, but as often is the case, it left it to the administrative agencies to develop the process to implement that standard. From 1978 until 1996, FWS employed many different processes to apply the distinct population segment standard. (45) But NMFS took its own tack in 1991 with its "Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon." (46) As noted above, NMFS has jurisdiction over anadromous fish such as Pacific salmon. (47) Prompted by petitions to list multiple populations of these salmon, NMFS reevaluated its authority to list DPSs. (48) The product of this reassessment, the aforementioned policy statement purportedly limited to Pacific salmon, introduced the now infamous phrase "evolutionarily significant unit" (ESU). (49) Under the policy, to qualify as an ESU, and hence a DPS, a population of Pacific salmon must satisfy two criteria: "(1) It must be substantially reproductively isolated from other conspecific population units; and (2) It must represent an important component in the evolutionary legacy of the species." (50) Over the years, the ESU has taken quite a beating from scholars, primarily because of its single-minded focus on genetics and adaptation. (51) In 1996, the Services purported to have found a single solution and announced the DPS Policy. (52) This policy imposes three requirements upon a potential DPS: 1) it must be discrete, 2) it must be significant, and 3) if treated as if it were a species, it must satisfy the ESA's standards for listing as a threatened or endangered species. (53) The Services announced that the ESU "is consistent with the [DPS Policy]." (54) The threshold question to be answered when applying the DPS Policy is this: To what taxon does the population belong? Both the discreteness and the significance of a population are measured "in relation to the remainder of the species to which it belongs." (55) In this way, the DPS Policy is taxon reflexive. (56) That is, in order to be applied correctly, it demands certainty as to what larger taxon the population belongs. (57) As will be discussed in below, (58) the taxon reflexive nature of the DPS Policy cannot tolerate taxonomic uncertainty and therefore the DPS Policy is facially flawed. A population is discrete if it is either "markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors" or "delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the [ESA]." (59) Only if the Services deem a population discrete will they consider its significance. (60) The Services laid out four criteria to measure significance: 1. Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon, 2. Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon, 3. Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range, or 4. Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. (61) However, the Services reserved some flexibility for themselves in the significance analysis, stating that "consideration may include, but is not limited to" the above factors. (62) The Services purport to test population segments for significance in order to fulfill the alleged congressional mandate to use the authority to list DPSs "sparingly." (63) B. Meanwhile, Out at Sea ... The Killer Whale The largest member of the dolphin family, the killer whale is a large, black and white whale that inhabits all oceans of the world. (64) It earned its common name from its ability and propensity to prey upon other whales. (65) It is important to note that killer whale research is a relatively young science. (66) Detailed studies of the species did not begin until the 1970s. (67) In fact, marine conservation biology itself is a relatively "recent endeavor"; (68) although the oceans cover over 70% of the earth's surface, science knows little about their genetics, their species, or their ecosystems. (69) Marine conservation biologists face a greater challenge than do their terrestrial counterparts for at least three reasons. (70) First, the sheer size and inaccessibility of the world's oceans present a challenge. (71) Second, marine conservation studies surfer from a severe lack of funding. (72) Third, the literature in the journals on the topic of marine conservation biology is sparse. (73) Currently, there is only one recognized species of killer whale: Orcinus orca. (74) It is the largest species of the dolphin family--Family Delphinidae. (75) All whales are classified in Order Cetacea, and as a "toothed whale," the killer whale is classified in Suborder Odontoceti. (76) While cetacean (77) taxonomy only recognizes one species of killer whale, this concept is not without controversy. For example, in the early 1980s several scientists proposed that killer whales in the Antarctic are of a different species than other killer whales. (78) They based this conclusion upon differences in appearance, social structure, feeding habits, and habitat. (79) However, this designation has not been widely accepted by the scientific community. (80) Three forms (81) of killer whales swim in the waters of the Eastern North Pacific: residents, transients, and offshores. (82) Little is known about the offshores, and their existence as a distinct form has been recognized only recently. (83) However, though the science is still incomplete, much more is known about the transient and resident whales. Though their respective names imply patterns of movement, the terms are misnomers. The terms resident and transient developed in the 1970s based on research that indicated the former group was less migratory than the latter. (84) Transients are small groups and never travel with the larger, more stable pods--or groups--of resident whales; early researchers speculated that they were social outcasts in transit to other locations. (85) However, further research proved this hypothesis false as residents do not become transients, nor do transients become residents. (86) Despite the inaccuracy, the names have stuck. (87) Resident and transient whales demonstrate differences in diet, genetics, behavior, morphology, coloration, and their use of sound. (88) The two forms also never interbreed. (89) For these reasons--among others--at least one researcher has concluded that the two forms should be considered separate species, but he notes that his suggestion is "unlikely to be accepted" due to the fact that cetacean taxonomists use the morphological concept of species as opposed to the more widely accepted biological species concept. (90) This factor is discussed in more detail in Section III.B.2. In terms of diet, residents primarily prey upon fish, whereas transients specialize in preying upon other marine mammals. (91) This difference in feeding behavior is likely the reason for the acoustical differences between the two forms; residents are much more vocal when hunting, using echolocation to find schools of fish, whereas transients must remain more quiet while hunting due to the hearing capabilities of the marine mammals they stalk. (92) Several morphological distinctions can be made between residents and transients. For example, the two forms differ in pigmentation. (93) Behind its dorsal fin, each killer whale has a saddle patch--a grayish-white patch resembling a saddle. (94) In resident killer whales, black pigmentation intrudes into the saddle patch, whereas this does not occur in transients. (95) Another morphological difference between transients and residents is the shape of the dorsal fin. (96) The dorsal fins of residents are typically rounded, whereas the dorsal fins of transients tend to be more pointed. (97) The physical differences between the dorsal fins and saddle patches in the two forms may be caused by noted genetic differences. (98) Whale biologists divide the resident killer whales of the Eastern North Pacific Ocean into two geographic populations: Northern Residents and Southern Residents. (99) Northern Residents inhabit the waters off northern Vancouver Island and southeastern Alaska, whereas Southern Residents reside in the waters off southern Vancouver Island and Washington State. (100) Some evidence suggests that the range of the Southern Resident population once stretched south into the waters off of the Oregon and California coasts. (101) The current ranges of the two populations overlap by approximately 120 km on the east and west coasts of Vancouver Island, but no interactions between the two populations have been observed in these areas. (102) As the Southern Resident killer whale population was the proposed DPS for listing under the ESA, the remainder of this discussion focuses on its status. Scientists have identified three pods within the Southern Resident population: "J1," "K1," and "L1." (103) The first census of these whales occurred in 1974; the population then numbered 71 individuals. (104) A 2001 census revealed 79 whales in the Southern Resident population. (105) Though these two numbers show a net increase in the number of Southern Residents, the increase is misleading for two reasons. First, the 1974 population reflects the impact of collection of killer whales for captive display. Second, these two numbers do not reveal the variations in the population since 1974, or the tremendous drop that has occurred in the population since 1996. By comparing the 1974 population figure with the number of Southern Residents collected for display, scientists speculate that more than one hundred whales comprised the three pods in the Southern Resident population in the 1960s. (106) The Southern Resident killer whale pods bore the brunt of the lire-capture fishery in the late 1960s and early 1970s, with 47 Southern Residents collected. (107) According to killer whale researchers, "this probably hindered growth of the population when compared to [N]orthern [R]esidents." (108) After demonstrating a marked increase from 1974 to 1981, the population went into decline. (109) This decline is linked to the delayed effects of the live captures, which affected the age and sex ratios of the pods. (110) But by 1984, the population again began to climb. (111) By 1995, the population of Southern Residents reached 99 individuals. (112) However, this was its peak. (113) Considering the reported population of 79 whales in 2001, (114) in six years the population plummeted by 20 whales, or just over 20%. This staggering drop motivated the Center for Biological Diversity and others to pennon NMFS to list the Southern Resident killer whales as threatened or endangered under the ESA. (115) The decline appears to result from an increase in mortality rates for young adult and juvenile whales. (116) In contrast, birth rates have not substantially declined. (117) Because the earlier declines were attributed to decreased fecundity--or reproductive rates--the current decline caused by an increased mortality rate is unique and likely less related to the live captures of thirty years ago. (118) Several factors probably combine to increase the mortality rate. Among these are reductions in prey availability (119) and increased contamination with toxic chemicals such as polychlorinated biphenyls (PCBs). (120) As this Comment focuses on whether the Southern Residents qualify for protection as a DPS, a further discussion of the cause or causes of the population's decline is reserved until the distinct population segment hurdle is cleared. C. One Process, Two Different Conclusions: Application of the DPS Policy to the Southern Resident Killer Whale Recognizing that the current taxonomic status of the killer whale precluded listing the Southern Resident as a species or a subspecies, conservation groups argued to NMFS that the population met the requirements of the DPS Policy. However, based on the same set of facts, the agency reached the opposite conclusion. 1. The Center for Biological Diversity's Interpretation of the DPS Policy The Center for Biological Diversity and its co-petitioners (collectively the petitioners) presented NMFS with a comprehensive argument that the Southern Resident killer whale is a DPS as defined by the DPS Policy. The petitioners contended that the Southern Residents satisfy both criteria for discreteness (121) and three of the four criteria for significance. (122) The first prong of the discreteness test is to query whether the population segment "is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors." (123) The petitioners meticulously described the Southern Resident population's separation from the transient form, offshore form, and other resident killer whales in terms of all of the required factors. (124) To demonstrate this separation, the petitioners highlighted the genetic, dietary, cultural, and behavioral differences between the Southern Resident killer whales and other killer whales in the Eastern North Pacific. (125) Although satisfying the first prong of the discreteness test would have been sufficient to establish the Southern Resident killer whale as a discrete population segment, (126) the petitioners also argued that the Southern Residents satisfy the second prong. (127) The second criterion for discreteness does not even purport to be based on science, as it asks whether the population "is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist." (128) The petitioners cited the facts that the Southern Residents "regularly move between Canada and the United States" and that Canada had only recently listed the Southern Residents as "threatened" to support their conclusion that protections in the United States were required in order to provide "meaningful conservation for the population." (129) Having established that the Southern Resident killer whales are a discrete population segment, the petitioners turned to the significance prong of the DPS policy. First, they argued that the population is significant because it satisfies the first criterion of the significance test in that it "occupies a unique ecological setting" for the taxon. (130) The petitioners argued that Puget Sound and the Strait of San Juan de Fuca is the most urbanized habitat in the world inhabited by killer whales. (131)They further argued that one of the three pods, the J-pod, spends the winter in the Puget Sound "on a semi-regular basis," whereas all other killer whale pods migrate out to sea during the winter months. (132) The petitioners concluded that the "year-round site fidelity of the J-pod is a unique ecological characteristic." (133) The petitioners also presented somewhat weaker arguments that the ecological setting of the Southern Residents is unique because they are the only resident killer whales inhabiting their range and because they occupy a different niche in the ecosystem than the transient killer whales. (134) In arguing that the Southern Resident killer whales satisfy the second criterion of the significance test--that "the loss of the discrete population would result in a significant gap in the range of a taxon" (135)--the petitioners presented a less developed argument than they did for either of the other two significance criteria they applied. (136) The petitioners' sparse argument on this point probably stems from the difficulty in applying this prong of the test in the face of taxonomic uncertainty, as will be discussed in Section III.B.2. Most noticeably lacking from their argument on this criterion is any discussion of the taxonomic uncertainty of Orcinus orca. The petitioners put most of their emphasis on the fact that the Southern Resident killer whales satisfy the fourth criterion of the test for significance: Whether "the discrete population segment differs markedly from other populations of the species in its genetic characteristics." (137) The petitioners highlighted the genetic differences between the Southern Resident and the transient, Northern Resident, and the offshore populations. (138) Beyond the explicit criteria established in the DPS Policy, the petitioners argued that NMFS should look to two additional factors for evidence of the Southern Resident killer whale's significance. First, they argued that the Southern Residents' cultural significance to the people of the Pacific Northwest should establish its significance for purposes of the DPS Policy. (139) The petitioners contended that the loss of the Southern Resident killer whales "would be a significant blow to the economy and spirit of the Pacific Northwest." (140) Second, the petitioners argued that the Southern Resident killer whales are significant because they comprise a "stock" for purposes of the MMPA. (141) The petitioners contended that in managing the Southern Resident killer whales as a stock under the MMPA, NMFS has indicated that it believes the population to be significant to the taxon as a whole. (142) 2. NMFS's Implementation of the DPS Policy To review the status of the Southern Resident killer whale as a DPS, NMFS assembled a Biological Review Team (BRT), (143) which "used a series of ballots to survey the diversity of opinion within the [team]." (144) The team consisted of eleven members, (145) ten of whom were assigned "10 'points' to distribute among alternatives on the ballot in proportion to the confidence that a team member had in the particular alternative." (146) The BRT characterized its methodology as a "means of expressing ... uncertainty." (147) Though it was not explicit, consensus seemed to be the goal of the group. (148) Acknowledging that identification of the correct taxon of killer whales by which to compare the Southern Residents for purposes of the taxon reflexive DPS Policy was "critical," (149) the BRT conducted a bifurcated analysis. First, the BRT addressed the question presented by the petitioners: Whether the Southern Resident killer whales are a DPS of the global species. (150) Second, the BRT addressed, but did not resolve, the question of "whether Southern Residents qualify as a DPS within an undefined smaller taxon." (151) a. The Southern Residents as a DPS of the Global Species Orcinus orca In short, the BRT unanimously concluded that the Southern Resident killer whales are a discrete population segment of the global species, (152) but could not reach a consensus on whether that discrete population segment was significant. (153) The BRT cited "taxonomic uncertainty, lack of key scientific information (e.g., genetics of worldwide killer whales) and differences in opinion within the BRT" as reasons for the impasse. (154) With regard to the uniqueness of the population's ecological setting, the BRT acknowledged that it is highly urbanized. (155) However, the BRT did not believe this to be "relevant to the ESA discussion, because there is no evidence that Southern Residents have adapted (in the evolutionary sense) to urbanization in Puget Sound." (156) Instead, it reasoned that the Southern Residents inhabited an ecological setting nearly identical to that of the Northern Residents--"[a] coastal fjord system, [with] significant freshwater input, [and] seasonal availability of concentrations of salmon"--and therefore did not occupy a unique habitat. (157) Nor was the BRT convinced that the loss of the Southern Resident killer whale would result in a significant gap in the taxon Orcinus orca. (158) Its conclusion turned on this fact: If Southern Resident killer whales were to become extinct, transient killer whales would remain in the same range. (159) Since a global species of killer whales includes both resident and transient whales, there would be no gap in the range of the taxon. On the point to which the petitioners devoted the most ink--the marked genetic differences between Southern Residents and other populations--the BRT devoted the least ink. The BRT argument consisted of these three sentences: Southern Residents are genetically distinct from other residents, but there is a lack of consensus whether this is a "marked" difference. However, the difference ... between residents and transients that BRT members agree is significant is much greater than the difference between resident groups. (160) Finally, after concluding that the cultural significance of the Southern Resident killer whales to the Pacific Northwest "has no bearing on whether the population is genetically distinct, evolutionarily or ecologically significant," (161) the BRT concluded that the population was not significant to the global species Orcinus orca. (162) b. The Southern Residents as a DPS of an Alternative Taxon Concluding "[t]here is sufficient new information on the genetics and ecology of killer whales to warrant reexamination of their taxonomic classification," the BRT proceeded to examine whether the Southern Resident killer whale population would be a DPS of a redefined taxon. (163) As noted above, killer whale research is in its infancy and controversy surrounds the idea of a single species of Orcinus orca. (164) However, it is unclear what the BRT planned to do with the results of this analysis because it had apparently concluded that "a 'taxon' as described under ESA policy must be an officially recognized species or subspecies." (165) At this stage of the analysis, the inability of the DPS Policy to tolerate taxonomic uncertainty reared its ugly head. The point allocation described above became pivotal. (166) When asked to vote on the proper taxon in which to classify the Southern Resident population, in light of the fact they all agreed that the global species was incorrect, (167) four taxa "received nearly equal support" and a fifth "received little support." (168) The taxon that received little support was that consisting solely of Northeast Pacific Resident whales. (169) The team split its support evenly for the taxa consisting of 1) North Pacific Resident killer whales, (170) 2) North Pacific Resident and Offshore killer whales, (171) 3) all Resident and Offshore killer whales, (172) and 4) all killer whales with the same mitochondrial-DNA lineage as Southern Residents. (173) This even division of opinion likely resulted from the allocation of points to the BRT members. Those members of the team with a greater tolerance for uncertainty likely placed all their points on one taxon, whereas those members with a lesser tolerance likely spread their points around. (174) After reaching an impasse as to which alternative taxon the Southern Resident population belonged, "the BRT members voted their points to designate the DPS to which Southern Residents belong under each of the [five possible] taxa." (175) Again, no consensus was achieved. (176) The closest they came to a consensus was under the scenario of a taxon consisting of all resident killer whales in the North Pacific; the Southern Residents by themselves as a DPS of this taxon received 48 points. (177) After this analysis, the BRT was no closer to a conclusion than they were when they began. The collapse that occurred when NMFS applied the DPS Policy to the Southern Resident killer whales demonstrates the inherent problems of asking scientists to apply scientific facts--or in this case uncertainty--to law. Driven by its preoccupation with evolutionary significance in its analysis of the Southern Residents in relation to the global species, the BRT overlooked the other important goals of the ESA. Moreover, confronted by the taxonomic uncertainty of killer whales, the BRT was paralyzed, revealing that the taxon reflexive nature of the DPS Policy is inherently flawed. III. THE DPS POLICY: FLAWED IN APPLICATION AND ON ITS FACE NMFS's poor application of the DPS Policy to the Southern Resident killer whale population was unlawful. (178) But it also revealed that NMFS applies the DPS Policy in a genetically driven manner even outside the context of Pacific salmon, and that the taxon reflexive nature of the policy is an inherent facial flaw. A. In Application: NMFS's Genetically Driven Application Disserves the ESA NMFS's ESU Policy applicable to Pacific salmon populations has long been criticized for subverting the numerous goals of the ESA to the agency's fixation upon the preservation of genetic diversity. (179) However, prior to NMFS's evaluation of the Southern Resident killer whale population, at least it could be said that the agency's genetic fixation was limited to the context of Pacific salmon. (180) If NMFS is correct that the ESA is primarily concerned with the preservation of genetic diversity, then there is no principled reason to limit the application of the ESU to anadromous fish in the Pacific. But if the agency is mistaken, as it likely is, then the policy should not be applied in any context. The genetically driven application of the DPS Policy to the Southern Resident killer whale revealed that NMFS is prone to expanding its focus on the preservation of genetic diversity to the identification of DPSs outside the context of Pacific salmon. (181) At least this is consistent behavior and less arbitrary than requiring evolutionary significance of one class of animals but not of another. Nonetheless, it is contrary to the ESA to require this of non-salmonids for the same reasons that have been articulated in the salmon context. (182) Rather than rehash those reasons here without context, this Section will use four examples from NMFS's application of the DPS Policy to the Southern Resident killer whales to illustrate that a genetically driven application of the DPS Policy is contrary to the goals of the ESA. First, though ultimately inconsequential, the BRT refused to consider the petitioners' argument that the Southern Residents are discrete because they are "delimited from other populations by significant jurisdictional boundaries." (183) Second, the BRT refused to consider the petitioners' argument that the Southern Residents are significant because they occupy unique habitat. (184) Third, the BRT refused to consider alternative criteria as evidence of the Southern Resident killer whale population's significance, such as its cultural significance to the Pacific Northwest and its status as a stock for purposes of the MMPA. (185) Fourth and finally, the BRT asked too much of the demonstrated genetic differentiation between the Southern Residents and other killer whale populations. (186) 1. Refusal to Consider International Boundaries As noted above, the BRT concluded that the Southern Resident killer whale population satisfied the discreteness prong of the DPS Policy "[b]ased on genetics and other information." (187) Though the status review is not explicit on this point, the 12-Month Finding suggests that this genetic data "indicate[d] that the Southern Resident, Northern Resident, and Alaska Resident populations are reproductively isolated populations." (188) Recall that the first prong of the DPS Policy requires a population to be "markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological or behavioral factors." (189) Admittedly, the genetic factors relied upon by NMFS here demonstrate a marked physical separation from other populations. But that is not how NMFS phrased it; it chose the phrase "reproductively isolated." (190) Of course, reproductive isolation is the first prong of the ESU Policy. (191) What was implicit in NMFS's consideration of the first criterion of the discreteness prong of the DPS Policy was made explicit in the agency's refusal to consider the second criterion of the discreteness prong: NMFS was exporting the ESU from the realm of anadromous fish to the realm of marine mammals. In refusing to consider the petitioners' argument that "Southern Residents are delimited from other populations by significant jurisdictional boundaries," the BRT stated: NMFS policy on the definition of species ... states that it may be appropriate to list U.S. populations of species under the ESA, but only if the population fits the definition of an evolutionarily significant unit (ESU), analogous to a DPS. Thus, the presence of a jurisdictional boundary does not provide support, by itself, for identification of a DPS. (192) Despite the BRT's insistence, an ESU is not analogous to a DPS; instead, it is a narrow class of DPS. For example, the DPS Policy explicitly allows the consideration of jurisdictional boundaries, (193) whereas the ESU Policy explicitly prohibits it. (194) This prohibition is contrary to the ESA. The ESU Policy's refusal to consider political boundaries has been controversial since NMFS first put forth the policy for comment. (195) The agency justified its stance, stating, "NMFS believes that the population concept used in the ESA is a biological one, and that political boundaries alone should not be used to define populations." (196) This justification is undermined by the fact that the term "distinct population segment" does not appear commonly in scientific literature. (197) In fact, it is purely a management tool, adopted by Congress for policy purposes. By ignoring this fact and applying the DPS Policy in such a fashion, NMFS disserves the ESA. As noted by Professor Daniel Rohlf, one of the "policies lawmakers sought to further by formulating a legal definition of 'species' to include groupings below the subspecies level" (198) is the "[p]rotection of [d]omestic [p]opulations." (199) NMFS's statement that political boundaries should not be used to define distinct population segments is in clear conflict with the legislative history of the ESA. When the General Accounting Office implored the Senate Committee on the Environment and Public Works to repeal the Services' ability to list distinct population segments, one of the reasons for the Committee's refusal was that "the U.S. population of an animal should not necessarily be permitted to become extinct simply because the animal is more abundant elsewhere in the world." (200) NMFS acknowledged this language when it published the final ESU Policy, but nonetheless insisted that such a domestic population must still qualify as an ESU to be listed. (201) The agency would likely justify this requirement by pointing to the oft-quoted warning, "[T]he committee is aware of the great potential for abuse of [the] authority [to list DPSs] and expects [the Services] to use the ability to list populations sparingly and only when the biological evidence indicates that such action is warranted." (202) However, such a requirement eviscerates the Committee's intent that the Services be able to protect domestic populations despite their abundance elsewhere. (203) If a population is an ESU, it will be an ESU regardless of political boundaries. Congress clearly made the policy choice to allow the use of such boundaries to delimit distinct population segments. Despite what NMFS may argue, Congress's intent to allow the use of jurisdictional boundaries to designate DPSs can be reconciled with the statement that such listings are only to be made "when the biological evidence indicates that such action is warranted." (204) The committee likely intended the biological evidence to be used to evaluate what Professor Holly Doremus calls "the viability problem" rather than "the taxonomy problem." (205) According to Professor Doremus, "the 'viability problem' requires [the agency] to decide whether a species is 'endangered' or 'threatened'" (206) whereas "the 'taxonomy problem' requires the agency to determine whether a particular group of organisms constitutes a 'species' within the meaning of the statute" in the first place. (207) Professor Doremus asserts that the statutory mandate that listing determinations be made "solely on the basis of the best scientific and commercial data" (208) "[a]rguably" applies only to the question of viability and not to the question of whether a population is a "species" for purposes of the ESA. (209) She makes this assertion because the mandate applies to "'determinations required by subsection (a)(1) of this section,' which in turn commands the Secretary to 'determine whether any species is an endangered species or a threatened species.'" (210) Presumably, the determination of whether a population is a statutory "species" has been made before the viability question is addressed. Thus, Congress empowered the Services to consider policy factors--such as the existence of a domestic population as contemplated by the legislative history and DPS Policy--and then determine whether such a population should be listed "only when the biological evidence indicates that such action is warranted." (211) This proposition is further supported by the joint regulation promulgated by the Services for revising the endangered and threatened species lists. That regulation, set forth at 50 C.F.R. section 424.11, presents the "[f]actors for listing, delisting, or reclassifying species." (212) The first paragraph addresses the taxonomy question and provides: "In determining whether a particular taxon or population is a species for the purposes of the [ESA], the Secretary shall rely on standard taxonomic distinctions and the biological expertise of the Department and the scientific community concerning the relevant taxonomic group." (213) While this rule admittedly limits the universe of factors the Services can consider in determining whether a population qualifies as a DPS, it does not require the determination to be based solely on science. In fact, the science mandate appears in the following paragraph of the rule, and by its terms applies to "any determination required by paragraphs (c) and (d) of [the rule]." (214) Paragraphs (c) and (d), in turn, involve listing and delisting decisions. (215) Had the Services intended to require the taxonomy question to be based solely on science, they would have structured the rule differently. If this had been their intent, they would have placed the science mandate in the first paragraph and expressly applied it to the "determin[ation] [of] whether a particular taxon or population is a species for purposes of the Act." (216) However, they did not do this. By the canon of construction expressio unius, excusio alterius, because the Services listed those determinations that must be based solely on science--listing or delisting determinations--and omitted the species determination, the species determination is necessarily outside the scope of the strictly science mandate. But what support the rule provides this interpretation is undermined by the Services' assertions at various times that they are indeed bound to make species determinations based only on the best available science. (217) Therefore, the Services would likely interpret their own rule to apply the mandate to the species determination. Nevertheless, the legislative history demonstrates that Congress made a policy choice to allow the consideration of political boundaries when identifying populations, and NMFS's refusal to comply with this intent in both the ESU Policy and its application of the DPS Policy is contrary to the purpose of the ESA. 2. Refusal to Consider the Unique Nature of the Southern Residents' Urban Habitat As discussed above, the petitioners argued that the Southern Resident killer whales satisfied the first criterion of the significance prong of the DPS Policy--bestowing significance on those populations that "persist[] ... in an ecological setting unusual or unique for the taxon" (218)--because "[t]he population has the most urbanized habitat of any killer whale population in the world." (219) This arguably suggests that the Southern Resident killer whales occupy a "unique" or "unusual" ecological setting in the plain meaning of the terms. (220) But in its application of the DPS Policy to the Southern Residents, NMFS was not operating under the plain meaning of the terms; the agency insisted that the habitat be unique or unusual "in the evolutionary sense." (221) Specifically, the BRT responded to the petitioners' arguments by saying that "this habitat difference is not relevant to the ESA discussion, because there is no evidence that Southern Residents have adapted (in the evolutionary sense) to urbanization in the Puget Sound." (222) Perhaps this information "is not relevant to the ESA discussion" to an agency that understands the statute to be focused single-mindedly on genetic diversity, but if the broader goals of the ESA are considered, this information is indeed relevant. When it enacted the ESA, Congress specifically found that species "are of ... educational ... [and] recreational ... value to the Nation and its people." (223) Based on this finding, it is by no means a stretch to suggest that among the purposes of the ESA is the protection of educationally and recreationally valuable populations. Here, this purpose dovetails with the goal of protecting domestic populations. The Southern Resident killer whale population is the only easily accessible population of killer whales in the contiguous United States. (224) This accessibility has led to a boom in whale watching in the Puget Sound. (225) While this increase has been linked to the decline of the population of Southern Resident killer whales, (226) if regulated in such a way so as to minimize the adverse impact on the whales, the activity can continue to serve both the recreational and educational needs of Pacific Northwesterners and tourists from across the country. Observing killer whales in their natural environment can be a life-changing experience (227) and Puget Sound is one of only two places to do so in the continental United States. (228) The experience is also educational. (229) As two scholars who have conducted research on the educational aspects of whale watching concluded, "whalewatching [sic] (and, by implication, other forms of nature experience) [helps effect] the transition from caring about the environment to caring for the environment." (230) If the goal of protecting populations is to protect the "long-term survival of the species," as NMFS implies that it is, (231) then protection of populations based upon their recreational and educational value serves this goal because it increases awareness and instills a conservation ethic into the public. As Senegalese ecologist Baba Dioum said, "In the end we will conserve only what we love; we will love only what we understand; and we will understand only what we have been taught." (232) Teaching the public about wildlife--whether killer whales or a terrestrial species--instills an understanding of, and hopefully a love for, wildlife that will translate into conservation. If protecting populations that allow this process does not serve the purposes of the ESA, then nothing does. By ignoring the recreational and educational value of populations, NMFS's genetic focus fails to serve fully the ESA. This is true in the context of Pacific salmon as well. Programs designed to teach children about the importance of salmon to the environment help to instill a conservation ethic, (233) and therefore protecting populations based upon their educational value would further this end. Nonetheless, NMFS refuses to consider such values, arguing that "[a]ttempting to preserve populations for their ... recreational value without regard to the underlying genetic basis for diversity focuses on attributes that are not directly related to long-term survival of the species." (234) For the reasons explained above, NMFS is wrong. 3. Refusal to Consider Alternative Criteria The petitioners argued that the cultural significance of the Southern Resident killer whale and its status as a "stock" for purposes of the MMPA underscore the population's significance. (235) The BRT explicitly stated that it did not consider these factors in evaluating the significance of the population. (236) a. Cultural Significance of the Southern Resident Killer Whale In justifying its refusal to consider the cultural significance of the Southern Resident killer whale, the BRT stated that "neither the policy for determining what constitutes a DPS, nor the policy for the definition of species, includes any indication that the significance of a species to human culture should be considered in evaluating the status of a species under the ESA." (237) Again, the ESU Policy has crept out of the realm of Pacific salmon and into the realm of marine mammals. Here, NMFS subverts Congress's goal of protecting species with an "esthetic ... [and] historical ... value" (238) to its own fixation on genetic significance. As with the recreational value of populations, NMFS regards the esthetic and historic values to be irrelevant to the goal of protecting "the long-term survival of the species." (239) NMFS is putting the cart before the horse: As evidenced by the list of values in section 2 of the ESA, Congress sought to ensure the long-term survival of species because of their multiple values to humanity. (240) Therefore, the esthetic and historic values are relevant to the goal of protecting species; in fact, they are among the reasons for it. However, even if NMFS had looked beyond its evolutionary value focus, the DPS Policy on its face would have prevented it from considering the cultural value of the Southern Resident population to the Pacific Northwest. As discussed below in Section III.B, the taxon reflexive nature of the DPS Policy requires a population's significance to be measured only in relation to the taxon to which it belongs. (241) Therefore, under the current policy, the population's significance in relation to the human culture of the region it inhabits cannot be considered. (242) b. The Southern Residents as a Stock Under the MMPA Another factor raised by the petitioners that the BRT refused to consider was the fact that NMFS recognizes the Southern Resident killer whale as a "stock" for purposes of the MMPA. (243) Recall that the petitioners contended that by recognizing the population as a "stock," the agency acknowledged its significance to the taxon as a whole. (244) The BRT used circular logic to support its conclusion that the population's status under the MMPA was irrelevant, stating: [G]uidance on stocks clearly indicated that stocks should be management units. In contrast, one goal of the ESA is to conserve species which are important from an evolutionary standpoint. Thus, although a population unit defined under the ESA could be the same as a stock defined under the MMPA, this would only be the case if the population unit also fit the definition of a DPS. (245) The language here closely tracks the language the BRT used in its refusal to consider jurisdictional boundaries. (246) This argument is flawed in two ways. First, it overlooks the fact the definition of "stock" under the MMPA is nearly identical to the definition of species under the ESA as adopted in 1973. Second, it falsely assumes that the evolutionary value of a species is the only concern of the ESA. With regard to the definitions, the MMPA defines "stock" as "a group of marine mammals of the same species or smaller taxa in a common spatial arrangement, that interbreed when mature." (247) In 1973, the ESA defined a species as "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." (248) The language is identical. Congress enacted the MMPA in 1972 and the ESA in 1973, and borrowed the language from the MMPA for the definition of species in the ESA. (249) AS discussed above, the language of the MMPA was crafted to allow protection of Alaskan polar bears in the face of taxonomic uncertainty as to their proper classification. (250) One commentator has concluded that this fact demonstrates that despite the appearance of an evolutionary approach in this language, in reality it "was designed to protect groups considered valuable for reasons other than their evolutionary heritage." (251) In light of this, the BRT's argument against considering the Southern Resident's status as a stock because of the evolutionary goals of the ESA is fallacious. Admittedly, Congress modified the definition of species in 1978, but that modification appears to have been simply a policy choice to limit the listing of populations to vertebrate animals. (252) Therefore, the BRT dismissed the connection between a "stock" under the MMPA and a DPS under the ESA too quickly. The agency may draw a line between them, but Congress appears to have regarded them as identical. With regard to the goals of the ESA, the BRT described the ESA as concerned with the "conserv[ation] of species which are important from an evolutionary standpoint." (253) This characterization of the ESA is peculiar in that neither the term "evolution" nor any derivative therefrom ever appears in the statute. (254) By choosing to characterize the ESA in this way, the BRT once again revealed NMFS's institutional fixation upon evolution and genetics. (255) Whereas the term "evolution" never appears in the ESA, it is prominent in NMFS's application of the statute, particularly in its ESU Policy. (256) Professor Rohlf points out that while Congress did intend to protect genetic diversity with the ESA, (257) the ESU overlooks many other goals of the ESA, and therefore does a disservice to the Act. (258) One of these ignored goals is the "[p]rotection of [e]cosystem [h]ealth." (259) Congress declared the purpose of the ESA to be "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." (260) The MMPA was enacted to serve a similar purpose: "to maintain the health and stability of the marine ecosystem." (261) Furthermore, the ESA was enacted to protect species of "esthetic, ecological, educational, historical, recreational, and scientific value." (262) Similarly, the MMPA was enacted to protect "marine mammals[, which] have proven themselves to be resources of great international significance, esthetic and recreational as well as economic." (263) Thus, the goals of the two statutes have more in common than the BRT was willing to concede. While it may not always be the case that the fact that a population is treated as a stock for purposes of the MMPA renders the population "significant" for purposes of the DPS Policy, it is at least worth consideration. The BRT gave it none. As repeatedly noted, the DPS Policy's significance prong is open ended. (264) Therefore consideration of the status of the Southern Resident killer whale as a stock for purposes of the MMPA was permissible under the DPS Policy, and prudent considering the similar goals of the two statures. 4. The BRT Set the "Marked" Hurdle Too High The language of the DPS Policy asks whether "the discrete population segment differs markedly from other populations of the species in its genetic characteristics." (265) On the criterion of the significance prong that expressly allows consideration of genetic factors, the BRT applied the policy too strenuously. Faced with the ambiguous adverb "markedly," the BRT set the hurdle too high. The BRT's analysis on this point provides a concrete example of what Professor Doremus described as an "agenc[y] seek[ing] to describe [a decision] in scientific terms[,] [thereby] bury[ing] decisions in the complicated details of genetic tests, making those decisions appear strictly technical." (266) In actuality, this decision is less than technical as the DPS Policy requirement that genetic differences be "marked" is hardly a technical requirement. The agency has tremendous discretion in determining precisely how much differentiation is required to reach the ambiguous and vague standard of "marked." (267) As the BRT concedes, evaluating the significance of genetic variation between populations is "notoriously difficult." (268) By emphasizing the difficulty of its task, the BRT was likely seeking to insulate its decision from judicial review by cloaking it as a scientific determination. (269) However, implicit in this determination are two policy choices: one as to how much certainty to demand of genetic analysis for significance, and another as to the level of differentiation to expect between populations. a. Genetic Uncertainty and the Risk of Error As noted, the BRT could not come to a consensus as to whether the genetic differences between Southern Residents and other resident populations were "marked." (270) This indicates that at least some members of the team were wining to concede that the differences were marked, and that others were not so sure. Where uncertainty exists, a policy decision is required: Who should bear the risk of error? (271) The National Research Council (NRC) categorizes this as a choice between two types of error: Type I and Type II errors. (272) The type of error depends upon the validity of the null hypothesis and whether that hypothesis is accepted or rejected. (273) For example, in the case of the Southern Resident killer whale, the hypothesis is that the genetic differences between the Southern Resident killer whales and other killer whales are evolutionarily significant. Therefore, the null hypothesis would be that the genetic differences are not significant. Type I error occurs when a true null hypothesis is rejected. (274) In our example, this would occur if the analysis concludes that the genetic differences are significant, when In fact they are not. This error would result in the unnecessary protection of the population. On the other hand, Type II error occurs when a false null hypothesis is not rejected. (275) This error would occur if the analysis concludes that the differences are not significant, when in fact they are. Such an error would result in the underprotection of an imperiled population. While neither type of error is desirable, scientists generally strive to avoid Type I errors; rejecting a true null hypothesis does not help advance scientific knowledge. (276) For example, scientists would not want to say that a drug is effective when in fact it is not. (277) However, the NRC suggests that favoring Type II errors over Type I errors "might not be the best for making management decisions." (278) Such favoring creates a risk that a population that needs protection will not receive it. (279) As the consequences of this risk could be irreversible--extinction of a species or population that should have been protected--the Services should make the policy choice to use the precautionary principle, and therefore "favor" Type I over Type II errors. Such a result is more desirable than the alternative: the irreversible extinction of an endangered population. This would require NMFS to make the policy choice to tolerate uncertainty, as opposed to its current choice to demand consensus. The NRC has stated that in light of "uncertainty, the best strategy for the maintenance of genetic diversity within species is the implementation of protection programs that are likely to maximize genetic variation." (280) In this instance, this would require the BRT to have concluded that the genetic differences were significant, despite the uncertainty. b. Expected Genetic Variation Between Populations of the Same Species The higher the Services set the hurdle for "marked" genetic differences, the more absurd the process becomes. At some level, if enough genetic differences exist between two populations, those populations in fact become distinct species, not merely DPSs. (281) DPSs cannot logically be expected to vary too much genetically. (282) Therefore, if NMFS insists upon measuring a population segment's significance by its genetic distinctiveness, it must lower the bar. Professor Doremus suggests that NMFS's insistence on demonstrable genetic distinctness between populations may stem from its desire to use science as "political cover." (283) Logically, different species "should be more distantly related, and hence more genetically distinct from one another, than population segments." (284) Yet, NMFS does not require genetic distinctness at the species level. (285) Instead, the agency "need[s] only refer to the views of taxonomists.... [I]t need[s] not ex-plain in detail how the taxonomists arrived at their conclusions, and the scientific basis of those decisions is unlikely to be challenged." (286) On the other hand, "no such convenient political cover is available for the identification of 'distinct population segments.'" (287) Seeking the shelter of science, the agency demands too much differentiation of populations. As the BRT admitted, some populations of dolphins are considered distinct species by taxonomists, despite the fact that the two species demonstrate only one fixed genetic difference. (288) In the past, FWS has found one fixed difference to be a "marked" genetic difference. (289) Had the BRT applied an equally low standard, it would have concluded that the Southern Resident killer whale population possesses "marked" genetic differences from other populations. At the level of mitochondrial DNA, (290) researchers have discovered large differences between resident and transient whales, and smaller, but fixed, differences between individual resident populations. (291) In fact, as in the case of the common dolphins and the gopher frogs, there is a single fixed difference between Northern and Southern Residents. (292) For the BRT, however, one fixed difference was not sufficiently marked in the case of the Southern Resident killer whale. Clearly, the Services are not consistent in their interpretation of "marked." In setting the hurdle too high, the BRT demanded too much genetic distinction between populations, and demonstrated an intolerance for uncertainty that flies in the face of the precautionary nature of the ESA. B. On Its Face: The Taxon Reflexive Nature of the DPS Policy As discussed above, the DPS Policy is taxon reflexive in that it measures a population's discreteness and significance in relation to the larger taxon to which the population belongs. (293) The BRT admitted that "[c]orrectly identifying the taxon may be critical, because at least two of the criteria used to evaluate ESA significance are defined relative to other populations within that taxon." (294) In fact, correct identification of the taxon is critical because all of the enumerated criteria of significance require comparison to the larger taxon. (295) A taxon reflexive DPS Policy is flawed for two reasons. First, there is no reason to emphasize a population's relation to the larger taxon at the expense of its possible relationship to its ecosystem or to the human population. Second, to the extent that the relationship of the population to the larger taxon is a legitimate goal, the DPS Policy cannot tolerate taxonomic uncertainty in its current formulation. 1. A Population Can Be Significant in Relation to More Than Just Its Taxon Critics of the DPS Policy have had reservations about its taxon reflexive nature since its inception. (296) By focusing solely on a population's importance to its larger taxon, the DPS Policy overlooks two other ways in which a population could be important: as a component of an ecosystem, and as a part of human culture. With regard to ecosystem value, the Services explained that they "do not believe the [ESA] provides authority to recognize a potential DPS as significant on the basis of the importance of its role in the ecosystem in which it occurs." (297) This belief is mistaken in light of the purposes of the ESA. As convincingly presented by Professor Rohlf, Congress intended the ESA to protect ecosystems. (298) In the statute itself, Congress unambiguously expressed that one of its purposes was "to provide a means whereby the ecosystems upon which endangered species depend may be conserved." (299) Furthermore, the ESA acknowledges that species have "ecological ... value to the Nation and its people." (300) In light of these statutory provisions, the Services' refusal to consider the importance of a population in relation to its larger ecosystem is contrary to the ESA. Furthermore, Congress found that species have "esthetic ... [and] historical ... value to the Nation and its people." (301) The cultural value of a species is clearly included within these values. If the DPS Policy were not taxon reflexive, NMFS could have considered the cultural significance of the Southern Resident killer whales to the people of the Pacific Northwest. In the petitioners' words, the loss of the Southern Resident killer whales "would be a significant blow to the ... spirit of the Pacific Northwest." (302) For more than a millennium the Southern Residents have been an integral part of the lives of the native peoples of the Pacific Northwest." (303) Puget Sound without the Southern Resident killer whales would be like Capistrano without the swallows: (304) The species is tied to the identity of the area. (305) Clearly, the population has both an esthetic and historic value to the people of the Pacific Northwest, and likely to the population of the entire nation as well. (306) Thus, while Congress empowered the Services to protect populations for both political and biological reasons, (307) the Services only measure a population's biological value. This single-mindedness is contrary to the ESA and is consistent with the notion that the Services are seeking the political cover of science to insulate them from judicial review and public criticism. (308) 2. The DPS Policy Cannot Tolerate Taxonomic Uncertainty Congress intended to protect populations based on their biological value. (309) Therefore, while measuring a population's value in relation to its taxon should not be the only method of evaluation, it is nonetheless a valid method. However, in its current formulation, the DPS Policy cannot tolerate taxonomic uncertainty, as demonstrated by its application to the Southern Resident killer whales. This is the most startling truth about the policy revealed by its application to the Southern Residents. When there is uncertainty as to the correct taxonomy of a group of animals--as there was here--the Services cannot administer the DPS Policy properly. And if the taxonomic uncertainty involves sympatric sibling species--as it did here--the test will likely find a truly discrete and significant population insignificant. To better understand how this occurs, a brief background on taxonomy is required. The current system of binomial taxonomy--the labeling of groups of animals with two names, e.g., Orcinus orca--traces back to the eighteenth century and a man commonly referred to by only one name: Linnaeus. (310) For Linnaeus, each species was "the product of a separate act of creation and therefore clearly separated from all other species." (311) In modern day terms, Linnaeus was a believer in the morphological species concept. (312) Ernst Mayr--arguably the father of modern taxonomy--describes the morphological concept of species in this way: "A concept based on the degree of morphological distinction is the typical concept of the old systematics and is even today the only practical one in all those systematic groups which are still in the descriptive or cataloguing stage." (313) Essentially, under this concept, animals of similar form--or morphology--are lumped into one species. One critic of Linnaeus and his use of the morphological species concept argues that "the system's outdated theoretical assumptions undermine its ability to provide accurate classifications." (314) One of many alternatives to the morphological species concept is the biological species concept. This concept holds that "[s]pecies are groups of interbreeding natural populations that are reproductively isolated from other such groups." (315) This concept is also sometimes referred to as a reproductive species concept. (316) In this concept, similarity in form is not the defining characteristic of species, but it can be evidence of reproductive isolation. (317) While neither species concept is without its flaws, the morphological species concept has many more than the biological species concept. For example, it cannot explain sexual dimorphism--a difference in appearance between two sexes of the same species. (318) In the context of hybrid individuals, the morphological species concept has allowed for "bureaucratic mischief" on the part of the Services. (319) But for purposes of this Comment, the morphological species concept's biggest flaw is its inability to recognize sibling species. (320) Sibling species are "[p]airs or groups of closely related species which are reproductively isolated but morphologically identical or nearly so." (321) These species can develop sympatrically--in the same geographic location--when the species are able to occupy different ecological niches without demonstrating apparent morphological distinctions. (322) In lay terms, sympatric sibling species are two or more species of animals that look identical and live in the same geographic area, but occupy different niches in the food web and are reproductively isolated in that they do not cross breed. Because they are identical in form, the morphological species concept cannot recognize sibling species. (323) The morphological species concept's inability to recognize sympatric sibling species is the root of the taxonomic uncertainty regarding killer whales. As one of the leading proponents of subdividing Orcinus orca pointed out, cetacean taxonomists follow the morphological species concept. (324) This is consistent with Mayr's observation that the morphological species concept serves well those taxonomists still describing and cataloguing their research subjects; (325) after all, marine conservation biology is still in its infancy (326) and leading cetologists (327) admit that "uncertainty abounds at most levels in cetacean systematics." (328) Under the morphological species concept, since all killer whales look nearly identical, they are all lumped together in Orcinus orca. However, applying a biological species concept would reveal potential sympatric sibling species, namely transient killer whales and resident killer whales. (329) Because they are reproductively isolated, the two forms "should be considered separate species." (330) Dr. Robin Baird has long been a proponent of this subdivision, first suggesting that the two forms are speciating in 1992, (331) and concluding in his most recent book on killer whales--published in 2002--that "[c]ombined, the evidence suggests that the two forms of killer whales off western North America should be considered distinct biological species." (332) In fact, cetologists have been calling for scrutiny of the single species Orcinus orca for at least sixteen years. (333) That scrutiny is hindered by several factors: the generally slow pace of new species recognition, the morphologic orientation of cetacean taxonomists, the difficulty of studying killer whales at sea, and the lack of skeletal samples available for morphological comparison. (334) The taxon reflexive nature of the DPS Policy required NMFS to make a choice as to the taxon by which to measure the significance of the Southern Resident killer whale: either the officially recognized--but generally discredited--global species or some other taxon. NMFS evaluated the Southern Resident killer whale in relation to both the global species and to alternative taxa. (335) However, it could not come to a consensus as to which taxon the Southern Residents belong. (336) Therefore, the latter analysis was much like Nero fiddling while Rome burned; the BRT went through an interesting academic exercise complete with point allocation, but at the end of the day reached no conclusion and left the Southern Resident killer whale population without the protection it might need to survive. While the BRT agreed that the concept of a global species was inaccurate, (337) it ultimately left it to taxonomists. (338) When push came to shove, the agency bowed to the DPS Policy's demand for certainty and "consider[ed] the published standard of a single, global species as the best available scientific information." (339) This underscores the fundamental flaw of the DPS Policy: It demands certainty of the changing and often uncertain field of taxonomy. (340) Sometimes, this may not make a difference. Imagine this scenario involving a hypothetical species of whale consisting of two populations, one in the Atlantic Ocean and one in the Pacific Ocean. Morphologically, the two populations appear identical, and therefore taxonomists lump the two in the same species: Cetaceus hypotheticus. However, whale researchers observe that when the populations migrate to the tip of South America for their annual breeding season, the two populations do not interbreed. Atlantic whales choose other Atlantic whales, and Pacific whales choose only other Pacific whales. Though they do not know the cause of this reproductive isolation, the researchers propose that the two populations may indeed be distinct species under the biological species concept. (341) Meanwhile, as the slow process of taxonomic debate continues, conservation biologists note that the number of this type of whale inhabiting the Gulf of Mexico is plummeting. Concerned groups petition to list the Gulf of Mexico population as a DPS. Assuming that the Gulf of Mexico population satisfies the discreteness prong of the DPS Policy, (342) NMFS must make a decision as to the appropriate taxon by which to measure the significance of the Gulf of Mexico population. (343) Should they choose the old reliable single species of Cetaceus hypotheticus, or should they choose the as of yet unrecognized Atlantic species? In either case, the result would be the same. On the critical question of whether the extinction of the Guff of Mexico population would result in a significant gap in the range of the taxon, (344) the answer would be affirmative in either case. Whether the taxon is defined by the single species or the possible new species, the loss of the Gulf of Mexico population would result in a significant gap in the range of the species because there would no longer be individuals of either "species" there. NMFS may make the wrong choice, but that error causes no harm because the result is the same as if they had made the correct choice. The outcome is different, however, in cases such as that of the Southern Resident killer whale where the potential species are sympatric, or occupy the same range. (345) Here, the wrong choice could result in the loss of a population that is significant in relation to its taxon. Assuming arguendo that Dr. Baird is correct and transient and resident killer whales are distinct species, then the Southern Resident killer whale population is likely to be significant to its taxon. The loss of the Southern Resident killer whale population would result in a gap in the range of the resident killer whale taxon, and if this gap is significant, then the DPS Policy is satisfied. (346) Because the significance test as written forces the agency to measure the population against a certain taxon, it assumes a substantial risk of error. Of the three possible decision makers as to what constitutes a DPS--the Services, Congress, or taxonomists--it is the Services that possess the necessary flexibility to cope with uncertainty. (347) In fact, the Services purported to reserve flexibility for themselves in the significance analysis. (348) When the Services first proposed the DPS Policy, one commentator described this reservation of flexibility in the significance analysis as a method "to account for the pervasive uncertainty that is inherent to science in general and ecology inparticular [sic]." (349) To rebut the criticism that the significance prong is too open-ended, the same author stated, "Congress left the agencies with the discretion to protect certain populations, and scientific uncertainty should not impede that discretion." (350) In the case of the Southern Resident killer whale, scientific uncertainty indeed impeded that discretion. At first glance, it would appear that this was another instance of poor application of the significance analysis: NMFS should have availed itself of the flexibility it reserved for itself in the DPS Policy. While this is true, the problem lies deeper than that. The Services reserved the flexibility to be flexible in the face of taxonomic uncertainty, net the flexibility to be inflexible at their whim. Therefore, the DPS Policy is flawed in that its explicit provisions cannot tolerate taxonomic uncertainty, and its purported flexibility is net directed enough to provide guidance in the face of that uncertainty. If the Services insist on measuring a population's significance in a taxon reflexive manner, (351) then they must include clear direction on what to do in the face of taxonomic uncertainty. The potential solution to this fundamental flaw is discussed in Section IV.B.4. IV. PROPOSED SOLUTION As evidenced by its application to the Southern Resident killer whale population, the DPS Policy needs reform. In the political environment on Capitol Hill in 2004, Congressional action on the matter is unlikely, and any action that does occur would likely result in an ESA that is a mere shadow of its current formulation. Therefore, the responsibility falls upon the Services. The Services should promulgate a Revised Joint Policy Statement Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act. This new policy should apply to all classes of vertebrate species alike, whether a population is a fish, mammal, bird, reptile, or amphibian. Therefore, the ESU Policy must be scrapped. As noted above, neither a statutory reason, nor a biological reason, exists for treating any of these classes differently. Furthermore, the new policy should retain both the discreteness and significance requirements. A. The Discreteness Prong The Services should retain the current discreteness prong from the DPS Policy in whole. The only flaw with this prong is in NMFS's application of it: The agency refuses to consider the second criterion related to international boundaries. This second criterion is essential to serve Congressional intent (352) and to avoid the problems of taxon reflexivity. So long as NMFS abandons the ESU Policy in favor of the new policy, there should no longer be a problem with the discreteness prong. The current formulation of the discreteness test is also quite flexible, as is necessary for a functional DPS Policy. It allows discreteness to be determined "as a consequence of physical, physiological, ecological, or behavioral factors." (353) Furthermore, while it explicitly allows consideration of "measures of genetic or morphological discontinuity," such consideration is not mandatory. (354) In this way, the test avoids the problems inherent in requiring genetic evidence. In sum, the current discreteness test serves the purposes of the ESA well. B. The Significance Test Whereas the discreteness prong of the DPS Policy requires no modification, the significance prong needs a major overhaul. First, the new significance test should retain some taxon reflexive elements, but the Services should consider a discrete population's significance in relationship to its ecosystem and to human culture as well. Second, it can retain a genetic element, but genetics cannot be its sole focus, and the standard must be more clearly articulated. Finally, the new significance test must include guidance in the face of taxonomic uncertainty. But before this Section presents these modifications in more detail, it first resolves the threshold question of whether a test for significance is permissible and desirable. 1. Does a Functional DPS Policy Need a Significance Test? The following discussion resolves the lawfulness of requiring a distinct population to be significant and concludes that a significance test of some kind is both permissible and desirable. a. A Significance Requirement Is a Permissible Construction of the ESA In their legal challenge to the Southern Resident listing decision, the petitioners argued that requiring a population segment to be both discrete and significant is not only poor policy, it is unlawful. (355) As the court correctly concluded, the significance requirement does not rise to that level. (356) The petitioner presented a straightforward argument: 1) Congress defines species to include distinct population segments; 2) the Services require a population segment to be discrete; 3) the terms "distinct" and "discrete" are synonyms; 4) the Services "superimpose[] an additional requirement" that the discrete population be significant; 5) thus, the "policy is contrary to the mandate of Congress." (357) The petitioners' argument therefore turned on the plain meaning of the term "distinct." The initial step in the analysis of whether the significance test is contrary to the statute is to determine the standard of review. One possible standard is that provided by Chevron U.S.A., Inc. v. Natural Resources Defense Council (Chevron). (358) In Chevron, the Supreme Court set forth the now famous two step test to determine whether an agency's interpretation of a statute is due deference. (359) First, query whether the intent of Congress is clear; for if it is, "that is the end of the matter." (360) If the statute is ambiguous, then the second step is to query "whether the agency's answer is based on a permissible construction of the statute." (361) In essence, is it reasonable? An alternative standard comes from Christensen v. Harris County. (362) Justice Thomas revitalized the concept of a lesser standard of deference in Christensen for "interpretations contained in policy statements, agency manuals and enforcement guidelines." (363) As the DPS Policy is a policy statement, it would seem that the DPS Policy would fall within Christensen. But the recent case of United States v. Mead Corp. (364) demonstrates that Christensen does not apply. In Mead, the Court held "that administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law and that the agency interpretation claiming deference was promulgated in the exercise of that authority." (365) Thus, the question under Mead is whether Congress delegated authority to the Services to construe "distinct population segment." Section 4(h)(2) provides: "The Secretary shall establish, and publish in the Federal Register, agency guidelines to insure that the purposes of this section are achieved efficiently and effectively. Such guidelines shall include, but are not limited to ... criteria for making the findings required under [the subsection applicable to listing decisions] with respect to petitions." (366) The DPS Policy was promulgated under this Congressional delegation of authority. (367) This statutory delegation and the Services' use of it in promulgating the DPS Policy render the DPS Policy an agency interpretation deserving of Chevron deference. (368) The first step of the Chevron analysis asks whether the statute is ambiguous. (369) On this point, while the petitioners contended that the statute is not ambiguous, Congress's intended meaning of the term "distinct population segment" is not exactly a beacon of clarity. The term does not commonly appear in scientific literature. (370) While the petitioners' plain meaning argument certainly possesses merit, it did not carry the day because what Congress meant by "distinct population segment" is ambiguous. (371) Therefore, the interpretation must be analyzed to determine if it is reasonable or permissible. Given the level of deference that courts give to agencies at this level, arguments that the significance requirement is an impermissible interpretation, unsurprisingly, always fail. (372) Prior to the Southern Resident killer whale litigation, the DPS Policy survived a Chevron challenge, (373) as did the related ESU policy. (374) Consistent with these two prior decisions, the court reviewing the killer whale listing decision correctly held that the significance requirement in the DPS Policy is a reasonable interpretation of the ESA. (375) b. A Significance Test of Some Kind Is Desirable While it may be permissible to require significance, because the Services will receive Chevron-style deference to whatever their interpretation of the term "distinct population segment," it would also be permissible not to require significance. The question therefore becomes whether a significance test is desirable. It is. Such a test would serve to separate those discrete populations which are valuable under the terms of the Act from the park squirrels that the General Accounting Office (GAO) described to illustrate the absurdity it feared may result from the listing of distinct population segments. (376) The GAO feared that the DPS authority "could result in the listing of squirrels in a specific city park, even though there is an abundance of squirrels in other parks in the same city, or elsewhere in the country." (377) Theoretically, park squirrels could satisfy the discreteness prong of the revised DPS Policy by being physically separated from other populations of the same species. However, protecting such a population would not be consistent with the purposes of the ESA. For example, such a population would likely have little ecological, educational, or scientific value. (378) While the squirrel population arguably could have historical value (the population could have been in the city park since the city's founding), esthetic value (after all, many people think squirrels are cute and fuzzy), or recreational value (for those who enjoy feeding park squirrels on their coffee break), these incarnations of these values do not seem to rise to a level demanding protection by the federal government--at least as long as there are lots of other squirrels in relatively nearby parks. Furthermore, the listing of a population of park squirrels could be the political death knell of the ESA as we know it. Therefore, a revised DPS Policy should require a discrete population to be significant, but not necessarily to its own taxon. 2. A Population's Significance Should be Measured in Relation to Its Ecosystem and to Human Culture In addition to measuring a population's significance in relation to the taxon to which it belongs, (379) the significance prong of the revised DPS Policy should consider the population's relationship to its ecosystem and to the species Homo sapiens. By incorporating these two elements, the revised DPS Policy will serve all of the purposes of the ESA. As noted above in Section III.B.1, the current taxon reflexive significance test emphasizes the biological purposes of the ESA at the expense of some of the policy choices Congress made. (380) For example, it ignores the fact that Congress found species to have ecological value (381) and that it intended the ESA "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved." (382) Therefore, consideration of a population's significance in relation to the ecosystem of which it is a part can serve these goals. Reaching this conclusion is the easy part; crafting the appropriate language is more difficult. As the Services pointed out when they published the final DPS Policy, "most, if not all, populations play roles of some significance in the environments to which they are native, so that this importance might not afford a meaningful way to differentiate among populations." (383) The difficulty exists, but is not quite as enormous as the Services portray it. While all populations play a role in their ecosystems, "in general, an ecosystem function cannot unequivocally be identified with a species population." (384) However, there are some species populations that "may be the only biotic entity available to perform a function." (385) Therefore, the significance of a population to its ecosystem should be determined by whether it alone performs an essential function. Such species include top predators, (386) keystone species, (387) and controlling species. (388) Removal of top predators from ecosystems has been demonstrated to have far-reaching impacts. (389) Likewise, removal of keystone species or controlling species can have devastating impacts, even leading to ecosystem collapse. (390) For these reasons, the revised significance test should contain this criterion: Evidence that the population segment performs a function in its ecosystem that no other organism currently performs and for which no other organism is available to perform. Examples of such populations include top predators, keystone species, and controlling species. If a discrete population satisfies this criterion, then it is significant and therefore a DPS. Crafting a cutoff point by which to evaluate the significance of a population to human culture presents an even greater challenge. Drawing the arbitrary line between populations with significant cultural value and those with insignificant cultural value is a political choice best suited to a political body such as Congress, rather than to an administrative agency. Nonetheless, Congress has provided some guidance in this area, finding that endangered and threatened species "are of ... value to the Nation and its people." (391) As the ESA is a national statute adopted by the national legislature, perhaps species should be required to demonstrate significance in relation to the culture of the nation as a whole. This standard would prevent the listing of the GAO's park squirrel. (392) However, it teeters on the brink of underinclusiveness, and could easily tip that way in application. Measuring national significance may prove difficult. A starting point may be to look for populations that have captured the nation's imagination, either in literature (including mythology), the national media, or as ecotourism attractions. Thus, the following criterion should be added to the revised significance test: Evidence that the population is significant to the national culture, as demonstrated by its recurrence in literature (including folklore and mythology), the national media, or as an ecotourism attraction. Examples of such populations include Florida's manatees (Trichechus manatus), Yellowstone's wolves (Canis lupus), California's condors (Gymnogyps californianus), and of course Puget Sound's killer whales and San Juan Capistrano's swallows. (393) While this standard is admittedly problematic, it is one of the few principled distinctions to make within a national statute. 3. A Clear Standard for "Significant" Genetic Differentiation As discussed in Section III.A.4, the BRT set the hurdle for genetic differentiation between populations too high. (394) While the revised significance test can consider genetic characteristics, this must not be its sole focus as it is with the ESU Policy. (395) For example, whether a population's habitat is "unique or unusual" should not turn solely on the question of whether the species has adapted to its unusual character. (396) Furthermore, the standard for "significant" genetic differentiation must be clarified. (397) As discussed above, populations of the same species cannot be expected to demonstrate high levels of genetic differentiation without becoming distinct species. (398) Therefore, the Services must clarify that the "marked" requirement is a low hurdle. One approach to clarifying this ambiguity is to add the following sentence to this criterion: If a population is considered discrete because of its genetic differences, then those genetic differences are sufficiently marked for purposes of the significance evaluation as well. This approach will not simply rubberstamp discrete populations as "significant" because not every discreteness determination turns on genetic differences. Another approach is to add this statement to the criterion: If a population demonstrates even slight morphological differences as a likely result of genetic differences, then those genetic differences are sufficiently marked. This approach is not without its flaws either. Important genetic differences do not always manifest themselves in readily visible morphological differences; therefore, scientists prefer to examine skeletons for differences in form. (399) In any event, the Services must clarify at what level they intend to set the "marked" hurdle. As evidenced by the decision on the Southern Resident killer whale, the temptation to interpret an ambiguous term like "markedly" as a high hurdle results in expecting more genetic variation than is reasonable from populations of the same taxon. 4. Guidance in the Face of Taxonomic Uncertainty The most disturbing revelation of the Southern Resident killer whale finding arose from the inability of the taxon reflexive significance test to cope with taxonomic uncertainty. (400) The solution to this problem is for the Services to provide guidelines on how to handle such uncertainty. Taxonomy is oftentimes more of an art than a science, (401) and "debates will dominate taxonomic discussions about the status of an organisms [sic]." (402) The Services recognized this, and in their Draft Candidate Species Guidance of 1994, they set out guidelines for the review of taxonomic material. (403) These guidelines consisted of three criteria: 1. When only one credible taxonomic authority is available, it should be accepted. This applies in cases of findings by scientific societies, taxonomic monographs and revisions, and species descriptions that have not been challenged by knowledgeable scientists. 2. When informed taxonomic opinion is not unanimous, available published and unpublished information should be evaluated and an adequately documented decision made regarding the validity of a taxon. 3. When there is credible scientific evidence of the existence of an undescribed taxon that qualifies for listing under the ESA, it should be treated like any other species (i.e., a listing priority number should be assigned and a proposed rule prepared as appropriate). (404) These guidelines appear to have vanished into the black hole that is agency regulation. (405) Faced with taxonomic uncertainty regarding a DPS, the Services have two choices: They could choose to rely upon the outdated data and wait for the taxonomists to complete the slow process of formally recognizing a new species; or they could rely upon the uncertain evidence of more than one species, and protect the population until the science catches up. The consequences of this choice could be irreversible: the extinction of a species or population that should have been protected. Therefore, the Services should make the policy choice to adopt the precautionary principle in listing decisions. (406) While this may result in the temporary unnecessary protection of populations, such a result is more desirable than the alternative; after all, as the United States Environmental Protection Agency puts it, "[e]xtinction means a species is gone forever," but "[e]ndangered means there's still time." (407) The Services' guidance on coping with taxonomic uncertainty should be designed to favor a listing of the population in the face of uncertainty, and the ESA's mandatory five-year status review (408) can include a review of the status of the taxonomic science to ensure that the decision was correct. (409) As argued above in Section III.A.1, it is likely a permissible interpretation of the ESA to say that the requirement that listing decisions be made "solely on the basis of the best scientific and commercial data available" (410) applies only to the question of whether a statutory species is endangered or threatened and not to the threshold question of whether a population is a "species" for purposes of the act. (411) However, the Services do not interpret the statute this way. (412) This too is likely a permissible interpretation of the statute due to the ambiguity of the mandate. While some elements of the analysis of whether a population is a DPS for purposes of the statute can and should be guided by policy factors, such as jurisdictional boundaries or the cultural value of a species, (413) others are better suited to being based solely on science. One element better suited to being science-based is the determination of the appropriate taxon by which to measure a population's distinctness. With that in mind, the revised significance prong should require the Services to choose the taxon by which to consider the population's significance based on the best available science. This science very well may be uncertain, as it was with the Southern Resident killer whales. As Professor Doremus puts it, "Because so little is known about so many disappearing species, the best available scientific evidence is often highly uncertain. Instead of pretending that uncertainty can be avoided, we must learn how best to factor it into decisions." (414) She also suggests that Congress's mandate to use science implicitly embraces uncertainty because science--by its nature--possesses innate uncertainty. (415) Furthermore, by requiring the best available science, Congress acknowledged that the scientific evidence supporting listing determinations could be fraught with uncertainty. (416) In fact, in making listing decisions, the use of uncertain data is "an appropriate policy choice." (417) This is what the revised significance test must make clear. To the BRT's credit, when it recognized the uncertainty surrounding the taxonomy of the killer whale and the inaccuracy of the notion of a global species, it attempted to identify the correct taxon of killer whales to which the Southern Residents belong. (418) However, merely attempting such an identification is not enough. Instead of reaching a conclusion, the BRT process--with its point allocation (419)--merely validated the uncertainty and passed the buck to taxonomists. (420) The BRT answered the "question of whether Southern Residents qualify as a DPS within an undefined smaller taxon" (421) with a resounding "We don't know." This is the only unacceptable answer. NMFS demonstrated its reluctance to make a decision on its own by stating that "the taxonomy of killer whales needs to be reviewed by taxonomic experts to determine whether more than one species or subspecies should be officially designated, because a 'taxon' as described under the ESA policy must be an officially recognized species or subspecies." (422) But it is NMFS who must review the taxonomy. Because the Services possess flexibility that taxonomists often lack--specifically to act (relatively) quickly--they must exercise that flexibility in the face of taxonomic uncertainty. Not only must they ask the taxonomy question, they must resolve it relying upon the best available scientific evidence. As Professor Doremus notes, that evidence may be a hunch. (423) The hunches of a trained scientist are often the best available scientific evidence of a proposition that cannot be put through the rigors of the scientific method. (424) The Southern Resident killer whales illustrate this proposition perfectly. As evidenced by the BRT's deliberations, there is tremendous uncertainty as to the proper taxonomy of killer whales. (425) However, a renowned killer whale expert, Dr. Robin Baird, has a hunch that the killer whales of the North Pacific should be classified into two species: resident killer whales and transient killer whales. (426) This hunch cannot be tested easily because the best verification--comparison of skeletons--is difficult due to a lack of specimens. (427) This satisfies the conditions that Professor Doremus set forth for determining when a hunch is the best available science: 1) it is the "educated intuition" of a "successful scientist ... in [his] area of expertise," and 2) the hunch cannot be tested at this time. (428) Thus, it would have been reasonable, and preferable, for the BRT to have adopted Dr. Baird's hunch as the best available scientific information, and evaluated the significance of the Southern Resident population in relation to his proposed species. In light of the foregoing, the revised DPS Policy should include the following guidance in the face of taxonomic uncertainty: In applying those criteria of this test that evaluate the significance of the discrete population in relation to the taxon to which it belongs, if there is uncertainty as to which taxon the population belongs, then the appropriate Service shall independently evaluate the taxonomy question in light of the best available scientific evidence. This evidence may include, but is not limited to, available published and unpublished information. If in the biological expertise of the Service, the source is sufficiently credible, and testing the validity of the proposed taxon is sufficiently difficult, then the Service shall accept the proposed taxon as correct, and evaluate the discrete population's significance in relation to it. However, as a part of its five-year status review of the population, the appropriate Service shall review the scientific literature to determine whether the taxon has been accepted or rejected by the scientific community. If it has been rejected, then the appropriate Service shall reevaluate the listing of the population. Including such language is consistent with the statute and the Services' joint regulations, (429) and resolves the DPS Policy's inability to cope with taxonomic uncertainty. V. CONCLUSION The DPS Policy faced a trial by fire in its application to the Southern Resident Killer whale. It melted down. NMFS misapplied the policy with its focus on genetics, and the taxon reflexive significance test's inability to cope with taxonomic uncertainty appeared for the first time. The Services should treat this meltdown as a learning experience and modify the DPS Policy. In sum, NMFS should abandon the ESU Policy, and the revised discreteness and significance prongs of the DPS Policy should read as follows: (430) Discreteness: A population segment of a vertebrate species may be considered discrete if it satisfies either one of the following conditions: 1. It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation. 2. It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. Significance: If a population segment is considered discrete under one or more of the above conditions, its [begin strikethrough] biological and ecological[end strikethrough] significance will then be [begin strikethrough]considered in light of Congressional guidance (citation omitted) that the authority to list DPS's be used "* * * sparingly" while encouraging the conservation of genetic diversity. In carrying out this examination, the Services will consider available scientific evidence of the discrete population segment's importance to[end strikethrough] evaluated in relation to the taxon to which it belongs, to the ecosystem to which it is a part, and to the culture of the people of the United States. This consideration may include, but is not limited to the following: 1. Persistence of the discrete population segment in an ecological setting unusual or unique for the taxon. While evidence that the population has adapted in the evolutionary sense to the unusual or unique conditions of the setting may be considered, such evidence is not necessary for a conclusion that the setting is unusual or unique, 2. Evidence that loss of the discrete population segment would result in a significant gap in the range of a taxon, 3. Evidence that the discrete population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historic range, 4. Evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. If a population is considered discrete because of its genetic differences, then those genetic differences are sufficiently marked for purposes of the significance evaluation as well. If a population demonstrates even slight morphological differences as a likely result of genetic differences, then those genetic differences are sufficiently marked. Evaluation of such evidence shall be conducted with consideration of the fact that populations of a species cannot be expected to demonstrate high levels of genetic differentiation, 5. Evidence that the population segment performs a function in its ecosystem that no other organism currently performs and for which no other organism is available to perform. Examples of such populations include top predators, keystone species, and controlling species, or 6. Evidence that the population is significant to the national culture, as demonstrated by its recurrence in literature (including folklore and mythology), the national media, or as an ecotourism attraction. Taxonomic Guidance: In applying those criteria of this test that evaluate the significance of the discrete population in relation to the taxon to which it belongs (criteria 1-4), if there is uncertainty as to which taxon the population belongs, then the appropriate Service shall independently evaluate the taxonomy question in light of the best available scientific evidence. This evidence may include, but is not limited to, available published and unpublished information. If in the biological expertise of the Service, the source is sufficiently credible, and testing the validity of the proposed taxon is sufficiently difficult, then the Service shall accept the proposed taxon as correct, and evaluate the discrete population's significance in relation to it. However, as a part of its five-year status review of the population, the appropriate Service shall review the scientific literature to determine whether the taxon has been accepted or rejected by the scientific community. If it has been rejected, then the appropriate Service shall reevaluate the listing of the population. Admittedly, this formulation will not please all. It makes policy choices with which some may disagree. Nonetheless, it is an improvement upon the current policies of the Services, which fall to serve all of the purposes of the ESA. This revised policy provides a starting point for the needed dialogue regarding reforming the application of the Services' authority to list distinct population segments. (1) ROBIN W. BAIRD, KILLER WHALES OF THE WORLD: NATURAL HISTORY AND CONSERVATION 123 (2002). (2) CENTER FOR BIOLOGICAL DIVERSITY ET AL., PETITION TO LIST THE SOUTHERN RESIDENT KILLER WHALE (ORCINUS ORCA) AS AN ENDANGERED SPECIES UNDER THE ENDANGERED SPECIES ACT 1 (2001) [hereinafter PETITION], available at http://www.sw-center.org/swcbd/species/orca/Petition.pdf. (3) BAIRD, supra note 1, at 13. (4) Id. at 7. (5) Id. at 129. (6) Id. at 126. (7) See Mike Freeman, SeaWorld and Legoland Faring OK amid Slump, SAN DIEGO UNIONTRIB., Jan. 11, 2003, at CI (noting SeaWorld San Diego alone had an attendance of 4,000,000 guests in 2002), available at 2003 WL 6559599. (8) See text accompanying notes 112-15, infra. (9) NMFS, within the National Oceanic and Atmospheric Administration (NOAA), is also known as NOAA Fisheries. NMFS is Now NOAA Fisheries, 19/20 MMPA BULLETIN 1 (2000), available at http:// www.nmfs.noaa.gov/prot_res/readingrm/MMBulletin/2nd-3rd%20quarter_2000.pdf. For consistency, this Comment shall refer to the agency as NMFS throughout. (10) See Press Release, Earthjustice, Lawsuit Filed to Protect Puget Sound Orca Whales: Federal Officials Acknowledge Threats to Whales but Choose to Do Nothing (Dec. 18, 2002) [hereinafter Earthjustice Press Release] (predicting that the extinction of the Southern Resident killer whales "would result in the localized extinction of resident killer whales in the continental United States"), available at http://www.earthjustice.org/news/display.html?ID=512. See infra notes 81-90 and accompanying text for an explanation of the difference between resident killer whales and other killer whales. (11) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000). (12) Endangered and Threatened Wildlife and Plants: 12-Month Finding for a Petition to List Southern Resident Killer Whales as Threatened or Endangered Under the Endangered Species Act (ESA), 67 Fed. Reg. 44,133, 44,136 (July 1, 2002) [hereinafter 12-Month Finding]. (13) Earthjustice Press Release, supra note 10. (14) 12-Month Finding, supra note 12, at 44,134; PETITION, supra note 2, at vi. The Center for Biological Diversity filed a lawsuit challenging the listing decision in December 2002. Complaint for Declaratory and Injunctive Relief, Ctr. for Biological Diversity v. Lohn, No. CV02-2505L (W.D. Wash. Dec. 18, 2002) [hereinafter Petitioners' Complaint]. In December 2003, the United States District Court for the Western District of Washington ruled that the listing decision was arbitrary and capricious and remanded the decision to NMFS, ordering the agency to conduct a new status review and reach a new decision by December 17, 2004. Ctr. for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1243 (W.D. Wash. 2003). (15) BAIRD, supra note 1, at 37. (16) See text accompanying notes 112-15, infra. (17) 16 U.S.C. [section] 1532(16) (2000) (emphasis added). One commentator has described this definition as "singularly uninformative. It is merely a list masquerading as adefinition." Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn't Always Better Policy, 75 WASH. U. L.Q. 1029, 1089 (1997). (18) Daniel J. Rohlf, There's Something Fishy Going on Here: A Critique of the National Marine Fisheries Service's Definition of Species Under the Endangered Species Act, 24 ENVTL. L. 617, 632 (1994). (19) Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722 (Feb. 7, 1996) [hereinafter DPS Policy]. (20) Id. at 4725. (21) Id. (22) See Press Release, Center for Biological Diversity, Lawsuit Would Challenge Government's Failure to Protect Puget Sound Orca Whales (Aug. 6, 2002) ("[W]e know of no other determination where an agency baldly stated that it won't protect an endangered species because it considers the species insignificant." (quoting Center for Biological Diversity attorney Brent Plater)), available at http://www.sw-center.org/swcbd/press/orca8-6-02.html (on file with author). Since NMFS's Southern Resident killer whale decision, FWS has denied two other discrete populations DPS status because they failed the significance test. See Endangered and Threatened Wildlife and Plants; Status Review and 12-Month Finding for a Petition to List the Washington Population of the Western Gray Squirrel, 68 Fed. Reg. 34,628, 34,639 (June 10, 2003) (concluding that the Washington population of the western gray squirrel (Sciurus griseus grieus) is discrete but not significant); Endangered and Threatened Wildlife and Plants; 12-Month Finding for a Petition to List the Lower Kootenai River Burbot (Lota lota) as Threatened or Endangered, 68 Fed. Reg. 11,574, 11,578 (Mar. 11, 2003) (concluding that the Lower Kootenai River population of burbot is discrete but not significant). When Kate Geoffroy and Thomas Doyle penned their critique of the DPS Policy in 2001, their research on DPSs did not reveal any failures of the significance requirement. Kate Geoffroy & Thomas Doyle, Listing Distinct Population Segments of Endangered Species: Has it Gone too Far?, 16 NAT. RESOURCES & ENV'T 82, 85 (2001). In fact, these two critics of the DPS state, "[I]t is difficult to imagine any 'discrete' population that would not meet one of the four [significance] criteria." Id. They obviously never contemplated the Southern Resident killer whale, the burbot, or the western gray squirrel. (23) See infra Section III.A. (24) Policy on Applying the Definition of Species Under the Endangered Species Act to Pacific Salmon, 56 Fed. Reg. 58,612 (Nov. 20, 1991) [hereinafter ESU Policy]. (25) Rohlf, supra note 18, at 617; see also Doremus, supra note 17, at 1107 (criticizing the NMFS salmon policy for being preoccupied with "genetic distinctness"). (26) See infra notes 55-57 and accompanying text. The Ninth Circuit recently emphasized the taxon reflexive nature of the DPS. The National Association of Home Builders hauled the Fish and Wildlife Service (FWS) into court, arguing that the agency's decision to list the Arizona cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) as an endangered distinct population segment was unlawful. Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 840 (9th Cir. 2003). FWS defended its significance finding in part by arguing that the extirpation of the pygmy-owl from Arizona would result in the absence of western pygmy-owls from the United States. Id. at 849, 852. The court rejected this argument, emphasizing that the DPS Policy requires significance to the taxon as a whole, rather than to the United States. Id. at 849, 852. (27) A "taxon" is a "level of classification" of an organism. CHARLES BLINDERMAN, BIOLEXICON: A GUIDE TO THE LANGUAGE OF BIOLOGY 167 (1990). Therefore, taxonomy is "the science of arranging organisms in logical and natural groups, in such a manner as to cast light on their evolution and affinities." PETER GRAY, THE DICTIONARY OF THE BIOLOGICAL SCIENCES 520 (1967). (28) See 12-Month Finding, supra note 12, at 44,136 (citing the "uncertainties surrounding killer whale taxonomy" for the difficulty in determining the "significance" of the Southern Resident population). (29) See Ctr. for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1239-40 (W.D. Wash. 2003) (holding that NMFS violated the best available science requirement of the ESA by relying upon the global species theory). (30) 16 U.S.C. [section] 1533 (2000); Reorganization Plan No. 4 of 1970, 84 Stat. 2090; F. Lorraine Bodi, Protecting Columbia River Salmon Under the Endangered Species Act, 10 ENVTL. L. 349, 353 (1980) (citing Memorandum of Understanding Between the U.S. Fish and Wildlife Service and the National Marine Fisheries Service Regarding Jurisdictional Responsibilities and Listing Procedures Under the Endangered Species Act (Aug. 28, 1974)). With regard to marine mammals, NMFS has jurisdiction over whales, dolphins, seals, and sea lions, whereas the United States Fish and Wildlife Service (FWS) has jurisdiction over polar bears (Ursus maritimus), sea otters (Enhydra lutris), and Pacific walruses (Odobenus rosmarus). DALE D. GOBLE & ERIC T. FREYFOGLE, WILDLIFE LAW: CASES AND MATERIALS 1183-84 (citing Reorganization Plan No. 4 of 1970, 35 Fed. Reg. 15,627 (1970); Fish and Wildlife Act of 1956, Pub. L. No. 1024, [section] 3, 70 Stat. 1119, 1120; Pub. L. No. 86-359, 73 Stat. 642 (1959)). "Anadromous" fish are fish that spend part of their lives in freshwater and part in saltwater. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 76 (1986) (defining "anadromous" as "ascending rivers from the sea at certain seasons for breeding"). (31) GOBLE & FREYFOGLE, supra note 30, at 1184. (32) Endangered Species Act of 1973, Pub. L. No. 93-205 [section] 3(11), 87 Stat. 884, 886. (33) Doremus, supra note 17, at 1093; Marine Mammal Protection Act of 1972, 16 U.S.C. [subsection] 1361-1421h (2000). (34) Doremus, supra note 17, at 1093-94. (35) Id. (36) Id. at 1093. (37) Endangered Species Act Amendments of 1978, Pub. L. No. 95-632 [section] 2(5), 92 Stat. 3751, 3752. (38) 16 U.S.C. [section] 1532(16) (2000). (39) The language emerged without comment from the Conference Committee. Doremus, supra note 17, at 1094. (40) Rohlf, supra note 18, at 624 n.36. (41) U.S. GENERAL ACCOUNTING OFFICE, ENDANGERED SPECIES: A CONTROVERSIAL ISSUE NEEDING RESOLUTION 52 (1979). (42) S. REP. NO. 96-151, at 7 (1979). (43) Id. (44) Id. (45) See Geoffroy & Doyle, supra note 22, at 84 ("Since 1978, ... the Services have struggled to identify appropriate criteria on which to make DPS listing decisions. In doing so, they have flip-flopped on various issues."); Patrick H. Zaepfel, Legislating for Scientific Uncertainty: Preserving Administrative Flexibility to Interpret "Species" Under the Endangered Species Act, 4 DICK. J. ENVTL. L. & POL'Y 152, 167-79 (1995) (discussing the various approaches prior to the 1996 Policy, focusing upon a FWS draft policy in 1992); Rohlf, supra note 18, at 651-62 (tracing the FWS's approach to distinct population segments over the years). (46) ESU Policy, supra note 24. (47) See supra note 30 and accompanying text. (48) Rohlf, supra note 18, at 620. (49) ESU Policy, supra note 24, at 58,618. Within the same document, NMFS also refers to the ESU as the "evolutionary significant unit" as opposed to the "evolutionarily significant unit." Id. at 58,612. That this policy is supposed to be limited to Pacific salmon is supported by language in the Federal Register accompanying the final DPS Policy. See DPS Policy, supra note 19, at 4722 ("The [ESU] applies only to species of salmonids native to the Pacific."). (50) ESU Policy, supra note 24, at 58,618. (51) See Walter W. Dimmick et al., The Importance of Systematic Biology in Defining Units of Conservation, 13 CONSERVATION BIOLOGY 653, 657 (1999) ("Identification of adaptation is an important aspect of evaluating whether a population qualifies as an ESU. Basing units of conservation on adaptation, however, presents theoretical and empirical problems that could lead to the underestimation of biodiversity."); David S. Pennock & Walter W. Dimmick, Critique of the Evolutionarily Significant Unit as a Definition for "Distinct Population Segments" Under the US Endangered Species Act, 11 CONSERVATION BIOLOGY 611, 617 (1997) ("[R]estricting the phrase 'distinct population segments' into the narrow definition of the ESU ignores the many positive ways the phrase has been used to implement management policies that have protected biodiversity in unique circumstances."); Doremus, supra note 17, at 1107 (noting that the ESU's "emphasis on genetic distinctness ... likely reflects [NMFS's] desire to make the identification of population segments appear scientific"); Rohlf, supra note 18, at 636-37 ("NMFS's ESU concept fails to advance several of the policy objectives Congress sought to further through the ESA."). But see Geoffroy & Doyle, supra note 22, at 86 (criticizing the fact that the DPS Policy does not require genetic information like the ESU Policy as "run[ning] counter to the underlying congressional theme that the ESA is intended to preserve unique genetic material"). (52) DPS Policy, supra note 19, at 4722. (53) Id. at 4725. Professor Holly Doremus would describe the first two requirements as addressing the "taxonomy problem," and the third requirement as addressing the "viability problem." See Doremus, supra note 17, at 1087-88 (describing the differences between the two problems). In the case of the Southern Resident killer whale, the taxonomy problem proved fatal. (54) DPS Policy, supra note 19, at 4722. (55) Id. at 4725. (56) Whether or not this is the appropriate gauge of a population's significance has been a subject of controversy since the DPS Policy was first proposed. See id. at 4723 (Responding to several comments suggesting that significance be measured in relation to ecosystems and ecological roles, the Services argued that they "do not believe the [ESA] provides the authority to recognize a potential DPS as significant on the basis of the importance of its role in the ecosystem in which it occurs ... [and] that this importance might not afford a meaningful way to differentiate among populations."); Doremus, supra note 17, at 1108 (noting that the taxon reflexive nature of the DPS Policy "ignore[s] any of the other ways in which a population segment might further the values the ESA was adopted to protect.... This emphasis comes at the expense of other characteristics ... which might more effectively fulfill the goals of the ESA."). This aspect of the DPS Policy is discussed further in Section IV.B.2, infra. (57) For instance, when NMFS addressed the question of the significance of the Southern Resident killer whale population, it recognized that it must "identify both the taxon and the DPS for Southern Residents." MARGARET M. KRAHN ET AL., NOAA TECHNICAL MEMORANDUM NMFS-NWFSC-54, STATUS REVIEW OF SOUTHERN RESIDENT KILLER WHALES (ORCINUS ORCA) UNDER THE ENDANGERED SPECIES ACT 74 (2002), available at http://www.nwr.noaa.gov/mmammals/whales/srkwtm.pdf. The agency also remarked that "identifying the taxon may be critical, because at least two of the criteria used to evaluate ESA significance are defined relative to other populations within that taxon." Id. at 71. Actually, all four enumerated criteria for significance in the DPS Policy require reference to the larger taxon. DPS Policy, supra note 19, at 4722. See text accompanying note 61, infra, for criteria. (58) See infra Section III.B.2. (59) DPS Policy, supra note 19, at 4725. (60) Id. (61) Id. (62) Id. (63) Id. (citing S. REP. NO. 96-151, at 7 (1979) ("[T]he committee ... expects the [Services] to use the ability to list populations sparingly and only when the biological evidence indicates that such action is warranted.")); see also Geoffroy & Doyle, supra note 22, at 84 (discussing S. REP. No. 96-151 and proposing that the Services have failed to heed this warning). (64) John E. Heyning & Marilyn E. Dahlheim, Orcinus orca, 304 MAMMALIAN SPECIES 1, 2 (1988); BAIRD, supra note 1, at 10. (65) BAIRD, supra note 1, at 7. See also PETITION, supra note 2, at 4 (noting that the original common name of Orcinus orca was "whale killer"). Even the scientific name reflects the killer whale's predatory nature: Orcinus means "of or belonging to the kingdom of the dead." JOHN K.B. FORD ET AL., KILLER WHALES: THE NATURAL HISTORY AND GENEALOGY OF ORCINUS ORCA IN BRITISH COLUMBIA AND WASHINGTON 69 (2d ed. 2000). "Orca" is another common name for killer whales that is growing in popularity, "in part it seems as a way to be more politically correct, an attempt to avoid some of the perhaps negative connotations associated with 'killer whale.'" BAIRD, supra note 1, at 7. A closer look at the term "orca" reveals that it is not a benign moniker either: "The first scientific description of killer whales, by [Carl] Linnaeus in 1758, called them Delphinus orca, literally 'the demon dolphin.'" Id. Dr. Baird sees no need to change the common name just because it is not an accurate description, as such logic would require renaming right whales (Eubalaena spp.) (who got their name because they were the "right whale to hunt") and sperm whales (Physeter macrocephalus) (named by "early whalers [who] thought the oily fluid in their heads was sperm"). Id. (66) See Robin W. Baird, The Killer Whale: Foraging Specializations and Group Hunting, in CETACEAN SOCIETIES: FIELD STUDIES OF DOLPHINS AND WHALES 127, 129 (Janet Mann et al. eds., 2000) ("Prior to the 1970s, little was known of the biology of killer whales."). (67) Id. (68) Mark A. Hixon et al., Oceans at Risk: Research Priorities in Marine Conservation Biology, in CONSERVATION BIOLOGY: RESEARCH PRIORITIES FOR THE NEXT DECADE 125, 126 (Michael E. Soule & Gordon H. Orians eds., 2001). (69) Id. at 125. (70) Id. at 132. (71) Id. (72) Id. (73) Id. (74) FORD ET AL., supra note 65, at 69. (75) Id. (76) Heyning & Dahlheim supra note 64, at 1. (77) As all whales are members of the Order Cetacea, they are commonly referred to as cetaceans. BAIRD, supra note 1, at 7. (78) See Baird, supra note 66, at 128 (describing the independent proposals of two different groups of researchers based on specimens collected in whaling operations); Heyning & Dahlheim, supra note 64, at 5 (noting that both groups of scientists appear to be describing the same population of killer whales). (79) Baird, supra note 66, at 128. (80) Id.; see also Heyning & Dahlheim, supra note 64, at 5 ("Until more substantial data are presented, a conservative view of recognizing only one highly variable species probably is warranted."). (81) In this context, a "form" is "[a]ny minor variant or recognizable subset of a population or species." ROGER LINCOLN ET AL., A DICTIONARY OF ECOLOGY, EVOLUTION AND SYSTEMATICS 118 (2d ed. 1998). (82) PETITION, supra note 2, at 4. (83) Id. at 5. (84) FORD ET AL., supra note 65, at 16. (85) Id. Transient killer whale pods tend to consist of no more than 15 individual whales, whereas resident pods can reach sizes of up to 80 whales. Robin W. Baird et al., Possible Indirect Interactions Between Transient and Resident Killer Whales: Implications for the Evolution of Foraging Specializations in the Genus Orcinus, 89 OECOLOGIA 125, 126 (1992). (86) FORD ET AL., supra note 65, at 16. (87) In his most recent book on killer whales, Dr. Robin Baird opted to refer to the two types by "more descriptive names," referring to transients as "mammal-eating killer whales" and residents as "fish-eating" killer whales. BAIRD, supra note 1, at 31. (88) Baird, supra note 66, at 127. (89) FORD ET AL., supra note 65, at 16-17 ("Recent DNA analyses have confirmed that residents and transients are genetically distinct and do not interbreed, leading to speculation that they are separate subspecies on the evolutionary path towards becoming distinct species."). (90) Baird, supra note 66, at 128. See also BAIRD, supra note 1, at 65-70 (setting forth in detail the evidence that transients and residents are two distinct species). The Supplemental Administrative Record before the United States District Court for the Western District of Washington revealed that NMFS's scientists concur: "[NMFS's scientists] unanimously concluded that '[b]ased on ecology, morphology and genetics, ... transient and resident killer whales in the North Pacific belong to two different taxa.'" Ctr. for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1233 (W.D. Wash. 2003) (quoting Supplemental Administrative Record at 23). (91) Baird, supra note 66, at 127. (92) Id. at 139. (93) Id. at 129. (94) Id. (95) Id. (96) Id. (97) Id. In fact, killer whale dorsal fins tend to vary significantly from individual to individual, and whale researchers catalog the shape, size, and scars of the dorsal fins in order to identify individual members of killer whale pods. FORD ET AL., supra note 65, at 43. (98) FORD ET AL., supra note 65, at 16; PETITION, supra note 2, at 9. (99) Baird, supra note 66, at 130. (100) Id. (101) KRAHN ET AL., supra note 57, at xv. (102) Baird, supra note 66, at 134. (103) FORD ET AL., supra note 65, at 47. (104) Id. (105) CENTER FOR WHALE RESEARCH, UPDATE ON THE SOUTHERN RESIDENT KILLER WHALE POPULATION, at http://www.whaleresearch.com/thecenter/southern.html (last visited Apr. 11, 2004) (on file with author). (106) PETITION, supra note 2, at 19. (107) FORD ET AL., Supra note 65, at 47. (108) Id. (109) PETITION, supra note 2, at 20 fig.4. (110) Id. at 21-22. (111) Id. at 20 fig.4. (112) FORD ET AL., supra note 65, at 47. (113) Id. (114) CENTER FOR WHALE RESEARCH, supra note 105. (115) PETITION, supra note 2, at vi. (116) Id. at 20. (117) Id. (118) Id. at 21-22. However, the petitioners suggest that additional study of the demographic impact is necessary to determine the continuing effects of the collection of killer whales. Id. at 27. (119) Id. at 26. Southern Resident killer whales prey primarily on salmon. Id. As a result of a number of anthropogenic--or human caused--factors, salmon populations in the Pacific Northwest have plummeted to the point that many populations are listed as threatened under the ESA. Id. The decrease in the salmon populations not only limits the traditional prey of the Southern Resident killer whales, but as the whales tutu to alternative food sources such as groundfish, they are likely exposed to higher levels of toxic chemicals because groundfish tend to "carry higher toxic loads than salmon." Id. (citing John Calambokidis & Robin W. Baird, Status of Marine Mammals in the Strait of Georgia, Puget Sound and the Juan de Fuca Strait and Potential Human Impacts, 1948 CANADIAN TECHNICAL REP. IN FISHERIES & AQUATIC SCIENCES 292 (1994)). Further compounding the problem, the lack of prey forces the whales to metabolize more fat, thereby releasing fat soluble toxins stored in their tissues. Id. (120) Id. at 32. Southern Resident killer whales have higher exposure rates to toxic chemicals such as PCBs and DDT than Northern Residents. Id. (citing P. S. Ross et al., High PCB Concentrations in Free-Ranging Pacific Killer Whales, Orcinus orca: Effects of Age Sex and Dietary Preference, 40 MARINE POLLUTION BULL. 504 (2000)). This difference likely results from the fact that the waters of Puget Sound in which the Southern Residents forage are more highly contaminated than those of the Northern Residents. Id. at 37. PCBs are a "contaminant of concern" at numerous Superfund locations around Puget Sound. Id. Some of the salmon that the Southern Residents prey upon do not venture far, if at all, from Puget Sound, and therefore have high levels of exposure to these toxins. Id. at 38. Because of their long life spans and position at the top of the food chain, killer whales suffer from the bioaccumulation of these poisons. The longer they live, the more salmon they eat; the more salmon they eat, the more toxins they store in their blubber. Id.; see also id. at 43 ("Because Southern Resident killer whales occupy a high trophic level, live for a relatively long time, and regularly forage in Puget Sound which is the location of numerous sites contaminated with PCBs and DDTs, and because these contaminants do not readily degrade, exposures in this population can be expected to continue to be high for many years to come."). While tins accumulation of toxins causes many problems, one of the more serious is its potential impact on reproduction rates. Studies on pinnipeds--seals and sea lions--have indicated that PCBs likely affect reproductive success by "reduc[ing] ... testosterone in males, ... [increasing] implantation failure in females," and increasing infant mortality. Id. at 42-43. Southern Resident killer whales have levels of PCBs in their blubber that are "comparable" to the levels linked to reproductive problems in pinnipeds. Id. at 40. (121) Id. at 8. (122) Id. at 14. (123) DPS Policy, supra note 19, at 4725. (124) PETITION, supra note 2, at 8-12. (125) Id. (126) See DPS Policy, supra note 19, at 4725 ("A population segment of a vertebrate species may be considered discrete if it satisfies either [of the two prongs of the discreteness test]."). (127) PETITION, supra note 2, at 12. (128) DPS Policy, supra note 19, at 4725. See NATIONAL RESEARCH COUNCIL, SCIENCE AND THE ENDANGERED SPECIES ACT 58 (1995) (noting that while "there can be good policy reasons for [delineating population segments for management based on political boundaries], there are not sound scientific reasons to delineate species only in accordance with political boundaries"). (129) PETITION, supra note 2, at 12-13. (130) Id. at 14. (131) Id. (132) Id. (133) Id. (134) Id. (135) DPS Policy, supra note 19, at 4725. (136) PETITION, Supra note 2, at 14-15. To their credit, however, the petitioners did present a good point, ultimately ignored by NMFS: The loss of the Southern Resident killer whales would result in a temporal gap in the range of the taxon because the J-pod of the Southern Resident population is the only group of killer whales that winters in Puget Sound. Id. at 14. In other words, during the winter, there would no longer be killer whales in the Puget Sound area. This has at least two possible impacts on the region, one ecological and one political. First, on an ecological level, winter run salmon will no longer have a top predator eliminating weak individuals as they return from sea. Second, on a political level, whale-watching businesses that operate year-round will no longer be able to do so. NMFS's Biological Review Team (BRT) acknowledged in its status review that the J-pod winters in Puget Sound. KRAHN ET AL., supra note 57, at 35. However, it failed to address this point; its discussion of whether the loss of the Southern Residents would represent a significant gap in the range of the taxon lacks a single reference to the winter range of the J-pod. Id. at 79, 81. While this gap in the range may or may not be "significant," the question should at least be addressed, and the agency's failure to do so is another example of its shoddy evaluation of the significance of the Southern Resident killer whale. (137) DPS Policy, supra note 19, at 4725. (138) PETITION, supra note 2, at 15. (139) Id. at 16. (140) Id. (141) Id. (142) Id. (143) KRAHN ET AL., supra note 57, at ix. (144) Id. at 77. (145) Id. at 1. (146) Id. at 77. (147) Id. The team explained that "a vote in which several of the alternatives were given a few points each would be more uncertain than a vote in which one or two of the alternatives were given a higher number of points." Id. (148) Id. (noting that the "BRT spent the majority of its time debating the DPS designation for Southern Residents and was unable to come to consensus" (emphasis added)); id. at 79-81 (noting that the BRT did not conclude that the "Southern Residents differ markedly from other populations in genetic characteristics" because of a "lack of consensus whether [the difference between Southern Residents and other residents] is a 'marked' difference." (emphasis added)). (149) See id. at 71 ("Correctly identifying the taxon may be critical, because at least two of the criteria used to evaluate ESA significance are defined relative to other populations within that taxon."). (150) Id. at 79. Recall that the petitioners spent little time discussing the taxonomic uncertainty surrounding Orcinus orca as a global species. See supra notes 135-36 and accompanying text. (151) KRAHN ET AL., supra note 57, at 82-83. (152) Id. at 77. The BRT reached this conclusion based upon the genetic differences between Southern Residents and other populations, thereby using the first criterion for significance. Id. The BRT refused to consider the petitioners' argument on the second discreteness criterion--international boundaries--because "NMFS policy on the definition of a species ... states that it may be appropriate to list U.S. populations of species under the ESA, but only if the population fits the definition of an Evolutionarily Significant Unit." Id. at 4 (internal citation omitted). NMFS's reliance upon its salmon policy in this context underscores that its evaluation of the Southern Resident population was genetically driven, and that its ESU mindset is creeping into all aspects of its wildlife management. See Rohlf, supra note 18, at 617 (describing the ESU as a "genetically-driven policy [that] does not comport with many of the policies Congress sought to advance in affording agencies authority to protect [distinct population segments]"). (153) KRAHN ET AL., supra note 57, at 77. (154) Id. (155) Id. at 79. (156) Id. (157) Id. (158) Id. (159) Id. (160) Id. at 79-81 (emphasis added). (161) Id. at 82. (162) Id. (163) Id. at 82-83. (164) See text accompanying notes 66-80, supra. (165) KRAHN ET AL., supra note 57, at 71. The BRT appears to have pulled this requirement out of thin air, as neither the ESA nor the DPS Policy contains this requirement. 16 U.S.C. [subsection] 1531-1544 (2000); DPS Policy, supra note 19, at 4722-25. In fact, the Services' joint regulations provide that "[i]n determining whether a particular taxon or population is a species for the purposes of the [ESA], the [Services] shall rely on standard taxonomic distinctions and the biological expertise of the [Services] and the scientific community concerning the relevant taxonomic group." 50 C.F.R. [section] 424.11(a) (2004) (emphasis added). This language would seem to mandate that the expertise of the Services play a role in the determination, rather than a blind allegiance to existing taxonomy. (166) See supra notes 143-48 and accompanying text. (167) See KRAHN ET AL., supra note 57, at 85 (noting that the BRT agreed that "there are unrecognized species or subspecies of killer whales within the currently recognized taxon (the global species)"). (168) Id. at 80 n.a. (169) Id. According to the BRT, "[t]his grouping includes the Southern Residents, the Northern (British Columbia) Residents, as well as both Southern and Western Alaska Residents." Id. at 74 (internal citations omitted). (170) This taxon would include "the Southern Residents, the Northern (British Columbia) Residents, both Southern and Western Alaska Residents and possible residents in the unsurveyed area in the western North Pacific." Id. at 75 (internal citations omitted). The BRT admits "very little is known about killer whales in the western North Pacific." Id. (171) This taxon would include "all residents in the North Pacific and all offshore killer whales in the North Pacific." Id. at 76. (172) This taxon would expand the group described in note 171, supra, to include any other Resident or Offshore killer whales worldwide. Id. However, "there are currently no direct data that residents and offshores exist beyond the North Pacific." Id. (173) This taxon would include all killer whales worldwide that have a similar mitochondrial DNA lineage as the Southern Residents. Id. In addition to the genetic material found within the nucleus of the cell, mitochondria--the structures that generate energy for the cell--also contain DNA. BRUCE ALBERTS ET AL., ESSENTIAL CELL BIOLOGY: AN INTRODUCTION TO THE MOLECULAR BIOLOGY OF THE CELL 9-10 (1998). Samples of mitochondrial DNA taken from whales from Antarctica to Alaska "suggest[] that most killer whales fan into two lineages." KRAHN ET AL., supra note 57, at 76. For a discussion of the significance of mitochondrial-DNA as opposed to nuclear-DNA, see note 290, infra. (174) See KRAHN ET AL., supra note 57, at 83 (noting that "[t]he BRT votes expressed a large degree of uncertainty: team members cast their points for at least two and no more that [sic] four of the alternatives, with the exception of one team member giving all points to [one alternative]"). (175) Id. In addition to the four taxa outlined above in notes 170-73, the BRT considered the discredited global species. Id. at 80 tbl.8. (176) Id. (177) Id. at 80 n.a. (178) See Ctr. for Biological Diversity v. Lohn, 295 F. Supp. 2d 1223, 1227 (W.D. Wash. 2003) (setting aside NMFS's decision that listing the Southern Resident killer whales under the ESA was not warranted). (179) See supra note 51 and accompanying text. (180) See DPS Policy, supra note 19, at 4722 ("The [ESU] applies only to species of salmonids native to the Pacific."); ESU Policy, supra note 24, at 58,613 (noting that "[t]wo respondents [to the request for comments] believed that although the interim policy appears to be suitable for Pacific salmon, difficulties might be expended if it were to be applied to some other vertebrates" and responding that "[t]his final policy applies only to Pacific salmon, and NMFS will consider these broader comments in developing an overall policy of defining distinct vertebrate population under the ESA"; that overall policy is presumably the DPS Policy). (181) That the application of the DPS Policy to the Southern Resident killer whales was genetically driven is not entirely surprising considering that Dr. Robin Waples--the primary architect of the ESU Policy--was a member of the BRT. KRAHN ET AL., supra note 57, at 1; Robin S. Waples, Pacific Salmon, Oncorhynchus spp., and the Definition of "Species" Under the Endangered Species Act, 53 MARINE FISHERIES REV. 11 (1991). In fact, Professor Daniel Rohlf foresaw the insidious nature of the ESU policy in 1996, stating, "It seems unlikely that NMFS would abandon its ESU policy when the agency makes listing decisions involving organisms other than salmon; NMFS drafted the policy and its technical justification in terms sufficiently broad to readily apply to vertebrates other than salmonids." Rohlf, supra note 18, at 622. (182) See generally, Rohlf, supra note 18 (criticizing NMFS's ESU approach to listing decisions involving Pacific salmon). (183) KRAHN ET AL., supra note 57, at 4. (184) Id. at 79. (185) Id. at 82. (186) See text accompanying note 160, supra. (187) KRAHN ET AL., supra note 57, at xiii; 12-Month Finding, supra note 12, at 44,136. (188) 12-Month Finding, supra note 12, at 44,136 (emphasis added). If there was any remaining doubt that the application of the DPS Policy to the Southern Resident killer whale was genetically driven, it can be resolved by examining this page of the 12-Month Finding. Under the heading "Defining a DPS Under Existing Killer Whale Taxonomy," the first sentence is: "Two types of genetic data that have been collected for killer whales have proven useful for identifying DPS boundaries in other species...." Id. (emphasis added). (189) DPS Policy, supra note 19, at 4725. (190) 12-Month Finding, supra note 12, at 44,136. (191) ESU Policy, supra note 24, at 58,618. (192) KRAHN ET AL., supra note 57, at 4. (193) DPS Policy, supra note 19, at 4722. (194) ESU Policy, supra note 24, at 58,613. (195) See id. (responding to comments received criticizing the policy for requiring reproductive isolation even of U.S. populations). (196) Id. (197) DPS Policy, supra note 19, at 4722. (198) Rohlf, supra note 18, at 626. (199) Id. at 628. (200) S. REP. NO. 96-151, at 7 (1979). (201) ESU Policy, supra note 24, at 58,613. (202) S. REP. No. 96-151, at 7 (1979). However, this legislative history language is not the magic bullet the Services may believe it to be. As discussed infra in Section IV.B.1, the petitioners challenged the permissibility under the ESA of requiring an otherwise discrete population to be "significant." To defend the reasonableness of this aspect of the DPS Policy, NMFS pointed to this language in the Senate Report from 1979. Ctr. for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1235 (W.D. Wash. 2003). The district court rejected this argument: "Because the 'views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one,' the Court does not find that one Senate committee's expectation that the Services only 'sparingly' employ their ability to list populations supports the argument that a prior Congress intended the Services to use the DPS authority 'sparingly.'" Id. (quoting United States v. Price, 361 U.S. 304, 313 (1960)). Thus, at least one court has recognized the slim reed upon which the Services attempt to rest the DPS Policy. (203) Ironically, in defense of its listing of the Arizona population of the cactus ferruginous pygmy-owl, FWS argued that it should be able to protect the U.S. population of the owls, but the Ninth Circuit rejected this argument on the basis that the DPS Policy emphasizes significance to the entire taxon. Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 849-50 (9th Cir. 2003). (204) Id. (205) Doremus, supra note 17, at 1087-88. (206) Id. at 1088. (207) Id. at 1087-88. (208) 16 U.S.C. [section] 1533(b)(1)(A) (2000). (209) Doremus, supra note 17, at 1095-96. (210) Id. (quoting 16 U.S.C. [section] 1533(a)(1), Co)(1)(A)). (211) S. REP. No. 96-151, at 7 (1979). (212) 50 C.F.R. [section] 424.11 (2004). (213) Id. [section] 424.11(a). (214) Id. [section] 424.11(b). (215) Id. [section] 424.11(c)-(d). (216) Id. [section] 424.11(a). (217) See 12-Month Finding, supra note 12, at 44,133 (purporting to have relied on the "best available scientific and commercial information" in concluding that the Southern Resident killer whales are not a DPS); DPS Policy, supra note 19, at 4722 ("It is important in light of the Act's requirement to use the best available scientific information in determining the status of species that this interpretation follows sound biological principles."); ESU Policy, supra note 24, at 58,613 (noting "species and populations are biological concepts that must be defined on the basis of the best scientific and commercial data available, just as the decision to list 'species' as endangered or threatened"). (218) DPS Policy, supra note 19, at 4725. (219) PETITION, supra note 2, at 14. (220) The dictionary definition of "unique" is "being the only one[;] ... known to exist in no other copy[;] ... being without a like or equal[;] single in kind or excellence[.]" WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2500 (1986). "Unusual" means "being out of the ordinary[;] ... deviating from the normal[;] ... being unlike others[.]" Id. at 2514. (221) KRAHN ET AL., supra note 57, at 79. For comparison, FWS considered the Columbia Basin to be a unique or unusual habitat for the pygmy rabbit (Brachylagus idahoensis), and relied in part on this conclusion to determine that the Columbia Basin population of pygmy rabbits is significant. Endangered and Threatened Wildlife and Plants; Final Rule to List the Columbia Basin Distinct Population Segment of the Pygmy Rabbit (Brachylagus idahoensis) as Endangered, 68 Fed. Reg. 10,388, 10,398 (Mar. 5, 2003). FWS reached this conclusion based upon the characteristics of the habitat (e.g., geology, climate, soil, and plant communities); absent from the discussion is any reference to the rabbit's adaptation to that habitat. Id. at 10,395-98. (222) KRAHN ET AL., supra note 57, at 79. The BRT likely qualified its statement that the whales had not adapted to the urban nature of Puget Sound with the phrase "in the evolutionary sense" because the whales likely have adapted to the urban setting behaviorally. For example, "there ... appear[s] to have been a substantial decrease in the proportion of time Southern Residents engage in resting behavior during daylight hours, coincident with the large increase in whale watching activity." PETITION, supra note 2, at 28. (223) 16 U.S.C. [section] 1531(a)(3) (2000). (224) Cf. Earthjustice Press Release, supra note 10 (noting that "the extinction of the these orcas would result in the localized extinction of resident killer whales in the continental United States'). (225) See ERICH HOYT, WHALE WATCHING 2001: WORLDWIDE TOURISM NUMBERS, EXPENDITURES, AND EXPANDING SOCIOECONOMIC BENEFITS 14-15 (2001) (noting that while there is little opportunity for growth of the industry throughout much of the United States, "there has been some growth in the northwest [because of increased killer whale watching]"), available at http://www.ifaw.org/ifaw/dfiles/file_106.pdf (on file with author). In Washington, boat-based whale watchers spend an estimated $3.3 million per year directly on whale watching, and an additional $6.3 million indirectly. Id. at 15. Granted, the industry in Washington is not limited to killer whales, as whale watchers also seek out "Dall's porpoises [(Phocoenoides dalli)], minke whales [(Balaenoptera acutorostrata)], [and] gray whales [(Eschrichtius robustus)]." Id. at 14. Nonetheless, without the Southern Resident killer whales in the region, these numbers will experience a tremendous decrease. (226) See PETITION, supra note 2, at xi (identifying "overuse ... by recreational whale watching vessels" as a "threat[] facing the Southern Residents"). (227) See, e.g, BAIRD, supra note 1, at 126 ("Seeing a killer whale in the wild can be an amazing experience, and to some people is a spiritual one."). Dr. Baird also romantically recounts his own observations of killer whales in the wild as a child. Id. at 7. Dr. Baird is now "one of the world's leading killer whale experts." Id. at dust cover. (228) Transient killer whales can sometimes be seen on whale watching trips launching from Monterey, California, and on rare occasions whale watchers out of Monterey can spot the Southern Residents. NANCY BLACK, KILLER WHALES FROM PUGET SOUND OBSERVED IN MONTEREY BAY (2000), at http://www.montereybaywhalewatch.com/Features/feat0002.htm (last visited Apr. 10, 2004). (229) See generally Constance L. Russell & Derek Hodson, Whale Watching as Critical Science Education?, 2 CANADIAN J. SCI. MATHEMATICS & TECH. EDUC. 485 (2002) (presenting a case study of "whalewatching's ability to act as a form of critical science education"). (230) Id. at 485. (231) ESU Policy, supra note 24, at 57,614. (232) THE QUOTE CACHE, NATURE, at http://quotes.prolix.nu/Nature/(last visited Apr. 11, 2004). (233) See, e.g., OREGON TROUT, SALMON WATCH EDUCATION PROGRAM (describing Oregon Trout's combination of classroom curriculum with field trips to observe salmon runs as "designed to instill a deeper appreciation and understanding of the value of native wild fish, watershed conservation and environmental stewardship"), at http://www.ortrout.org/4education/salmonwatch.html (last visited Apr. 10, 2004). (234) ESU Policy, supra note 24, at 58,614. (235) PETITION, supra note 2, at 16. (236) KRAHN ET AL., supra note 57, at 4. (237) Id. (238) 16 U.S.C. [section] 1531(a)(3) (2000). (239) ESU Policy, supra note 24, at 58,614. (240) 16 U.S.C. [section] 1531 (2000). (241) See infra Section III.B.1. (242) Id. (243) KRAHN ET AL., supra note 57, at 4. (244) See text accompanying notes 141-42, supra. (245) KRAHN ET AL., supra note 57, at 4. (246) Compare Id. ("[I]t may be appropriate to list U.S. populations of species under the ESA, but only if the population fits the definition of an [E]volutionary [S]ignificant [U]nit....") with id. ("[A]lthough a population unit defined under the ESA could be same as a stock defined under the MMPA, this would only be the case if the population unit also fit the definition of a DPS."). (247) 16 U.S.C. [section] 1362(11) (2000) (emphasis added). (248) Endangered Species Act of 1973, Pub. L. No. 93-205 [section] 3(11), 87 Stat. 884, 886 (emphasis added). (249) Doremus, supra note 17, at 1093. (250) See text accompanying notes 34-36, supra. (251) Doremus, supra note 17, at 1094. (252) Rohlf, supra note 18, at 623-24. (253) KRAHN ET AL., supra note 57, at 4. (254) 16 U.S.C. [subsection] 1531-1544 (2000). Professor Doremus, responding to NMFS assertion that "the primary Congressional intent underlying the ESA ... [is] to protect genetic resources," noted that "the fact that genetic values are not among those specifically enumerated in the Act's purposes section undercuts the claim that preservation of genetic resources is the Act's primary goal. At the very least, the long list of other values Congress specifically listed in section 2 makes it clear that protecting genetic resources is not the only goal." Doremus, supra note 17, at 1106-07 (internal citation omitted). (255) Rohlf, supra note 18, at 626. (256) See ESU Policy, supra note 24, at 58,612 18 (using the term "evolution" or variant thereof over fifty times). 257 Rohlf, supra note 18, at 626 (citing H.R. REP. NO. 412, at 4-5 (1973)). (258) See id. at 651 ("Congress unambiguously included several policy aspects in its legal definition of 'species,' policies which the ESU approach largely does not implement."). (259) Id. at 627. (260) 16 U.S.C. [section] 1531(b) (2000). (261) 16 U.S.C. [section] 1361(6) (2000). (262) 16 U.S.C. [section] 1531(1)(3) (2000). (263) 16 U.S.C. [section] 1361(6) (2000). (264) DPS Policy, supra note 19, at 4725. (265) Id. (emphasis added). (266) Doremus, supra note 17, at 1107. (267) The Services have stated that they "intended [the word 'marked'] to have [its] commonly understood sense[]." DPS Policy, supra note 19, at 4723. (268) KRAHN ET AL., supra note 57, at 24. The National Research Council also notes the difficulty "in the identification and quantification of [the] genetic diversity" required to "preserv[e] ... diversity at the species level." NATIONAL RESEARCH COUNCIL, supra note 128, at 184. It states that even "[i]f information on all quantitative-trait variation could be obtained for an endangered species, it would still be difficult to identify which characters should be evaluated, because we would be unsure of the selective challenges that would confront species in the future or the characters that will contribute to the adaptive change." Id. (269) See Doremus, supra note 17, at 1107-08 (noting that by "bury[ing] their decisions in the complicated details of genetic tests, [the Services] ... gain[] ... maximum deference from reviewing courts"). (270) KRAHN ET AL., supra note 57, at 79-81. (271) See Doremus, supra note 17, at 1075 (characterizing the "use of uncertain data" as a "policy choice"); see also NATIONAL RESEARCH COUNCIL, supra note 128, at 162 (characterizing the choice as between the risk of two types of error). (272) NATIONAL RESEARCH COUNCIL, supra note 128, at 162. (273) Id. (274) Id. (275) Id. (276) Id. at 167. (277) Id. at 163. (278) 16. at 167. (279) Id. (280) Id. at 184. (281) See Doremus, supra note 17, at 1107 ("[S]pecies or subspecies should be more distantly related, and hence more genetically distinct from one another, than population segments."). (282) See id. at 1112 (discussing the Services' struggle "to find genetic distinctions at the less likely level of population segments"). (283) Id. at 1107. (284) Id. (285) Id. (286) Id. (internal citations omitted). (287) Id. (288) See KRAHN ET AL., supra note 57, at 71 (discussing the genetic differences between the short-beaked common dolphin (Delphinus delphis) and the long-beaked common dolphin (D. capensis)). When biologists speak in terms of "fixed differences" they are referring to differences in fixed alleles--"a form of a gene ... carried by all members of a population at all loci for that particular gene." 1 WORLD OF GENETICS 256 (K Lee Lerner & Brenda Wilmoth Lerner eds., 2002); see also Holly Hilton & Jody Hey, DNA Sequence Variation at the Period Locus Reveals the History of Species and Speciation Events in the Drosophila virilis Group, 144 GENETICS 1015, 1017 (1996) (defining a fixed difference in the genes of two different subspecies of fruit fly as "positions where all of the [Fly subspecies #1] lines had one base and all of the [files in Fly subspecies # 2] had a different base"). Hence, researchers have found that while all short-beaked common dolphins carry a fixed allele at a particular location in their genetic code, long-beaked common dolphins carry a different allele or gene at that location. (289) See Endangered and Threatened Wildlife and Plants; Final Rule to List the Mississippi Gopher Frog Distinct Population Segment of Dusky Gopher Frog as Endangered, 66 Fed. Reg. 62,993, 62,995 (Dec. 4, 2001) [hereinafter Mississippi Gopher Frog] (deeming "a fixed difference at a single locus" a sufficient genetic difference). (290) See supra note 173 for a definition of mitochondrial DNA. This type of DNA is inherited strictly from the mother because "only the egg cell contributes significant numbers of mitochondria to the zygote." ROBERT C. KING & WILLIAM D. STANSFIELD, A DICTIONARY OF GENETICS 249 (2002). Comparing mitochondrial DNA is useful in analyzing "evolutionary differences between closely related species" because it has a higher mutation rate than nuclear DNA. Id. (291) KRAHN ET AL., supra note 57, at 27. (292) Id. (293) See supra notes 55-57 and accompanying text. (294) KRAHN ET AL., supra note 57, at 71 (emphasis added). (295) DPS Policy, supra note 19, at 4725. (296) See id. at 4723-24 (presenting comments received regarding the DPS Policy suggesting that it should "[e]mphasize the [i]mportance of a [population] to the [e]nvironment in [w]hich it [o]ccurs" and that "[t]he [s]ervices [s]hould [s]tress [u]niqueness and [i]rreplaceability of [e]cological [f]unctions"). (297) Id. at 4723. (298) See Rohlf, supra note 18, at 627 (citing the stature and its legislative history as support for this proposition). (299) 16 U.S.C. [section] 1531(b) (2000). (300) Id. [section] 1531(a)(3). (301) Id. (302) PETITION, supranote 2, at 16. (303) BAIRD, supranote 1, at 123. (304) Each year, hundreds of swallows return to the Mission San Juan Capistrano in southern California. MISSION SAN JUAN CAPISTRANO, MISSION TRADITIONS: THE INCREDIBLE FLIGHT OF THE SWALLOWS (2000), at http://www.missionsjc.com/swallows.html. The City of San Juan Capistrano is so identified by its swallows that the city's homepage, located at http://www.sanjuancapistrano.org (last visited Apr. 11, 2004), shows an image of a swallow returning to the mission. Likewise, the Chamber of Commerce for Orcas Island, one of the San Juan Islands off the coast of Washington, shows a killer whale on its home page, located at http://www.orcasisland.org (last visited Apr. 11, 2004). (305) PETITION, supra note 2, at 16. (306) As noted supra in note 225, whale watching is a multimillion-dollar industry in Washington. Presumably, a large portion of the whale watchers come from outside the state of Washington to see the Southern Resident killer whales. That the killer whales of the Pacific Northwest are significant to the nation as a whole is underscored by the nationwide media coverage of Springer, a juvenile Northern Resident killer whale who became separated from her pod and wound up in Puget Sound. Robert McClure, Friday is Moving Day for Springer; Orca Will Be Zipped to Canada in Effort to Link Up with Pod, SEATTLE POST-INTELLIGENCER, July 10, 2002, at A1, available at 2002 WL 5937329. When the lost whale was reunited with her pod in Canada, newspapers across the country covered the story, including this author's hometown paper, the Charleston Gazette of Charleston, West Virginia See, e.g., Peggy Anderson, Orphaned Killer Whale Gets Boat Ride Home, CHARLESTON GAZETTE, July 14, 2002, at A4 (describing the whale's relocation from Puget Sound to Johnstone Straight), available at 2002 WL 5208105. (307) 16 U.S.C. [section] 1531(b)(2000). (308) See Doremus, supra note 17, at 1108 (noting that the Services' emphasis on "characteristics they believe can be objectively identified, such as genetic distinctness ... comes at the expense of other characteristics which are more difficult to evaluate on the basis of objective data, but which might more effectively fulfill the goals of the ESA"). (309) See 16 U.S.C. [section] 1531(b)(2000)(finding that species have a "scientific value"). (310) See ERNST MAYR ET AL., METHODS AND PRINCIPLES OF SYSTEMATIC ZOOLOGY 6-7 (1953) (discussing Linnaeus and his work Systema naturae, published in 1758). "Linnaeus" is the Latinized form of the surname of Carl von Linne. BLINDERMAN, supra note 27, at 166. (311) ERNST MAYR, SYSTEMATICS AND THE ORIGIN OF SPECIES: FROM THE VIEWPOINT OF A ZOOLOGIST 108 (1942) [hereinafter SYSTEMATICS]. (312) See id. at 102 ("[Linnaeus] adhered always to an essentially static and morphological species concept."). (313) Id. at 115. (314) MARC ERESHEFSKY, THE POVERTY OF THE LINNEAN HIERARCHY: A PHILOSOPHICAL STUDY OF BIOLOGICAL TAXONOMY 3 (2001). One of the assumptions Ereshefsky criticizes is the premise of creationism underlying the Linnaean system because it is static and cannot tolerate speciation. Id. (315) ERNST MAYR, PRINCIPLES OF SYSTEMATIC ZOOLOGY 26 (1969) [hereinafter PRINCIPLES]. In fact, the version of the 1978 amendments to the ESA that passed the House of Representatives would have adopted a very narrow version of the biological species concept by limiting listable entities to "'group[s] of fish, wildlife, or plants, consisting of physically similar organisms capable of interbreeding but generally incapable of producing fertile offspring through breeding with organisms outside this group.'" Doremus, supra note 17, at 1094 (quoting H.R. 14104, 95th Cong. [section] 5(2) (1978)). However, the Senate version of the amendments left the definition of species unchanged, and the Conference Committee resolved the issue with the language of the current definition. Id. Most scientists regard the biological species concept as a bit broader than that proposed by the House, as even members of different genera are sometimes capable of producing fertile offspring. SYSTEMATICS, supra note 311, at 259. (316) Cf. ERESHEFSKY, supra note 314, at 130 (pointing out that both the biological species concept and the recognition species concept fall into the interbreeding--read reproductive--approach to species classification). (317) See PRINCIPLES, supra note 315, at 29 (discussing the "crucial difference" between the two concepts). (318) See id. at 25 (explaining the flaws of the morphological species concept, referring to it via its synonym: typological species concept). (319) See Stephen J. O'Brien & Ernst Mayr, Bureaucratic Mischief: Recognizing Endangered Species and Subspecies, 251 SCIENCE 1187 (1991) ("[I]nadequate taxonomy ... [has] led to confusion, conflict, and we believe, certain misinterpretations of the [ESA] by well-intentioned government officials."). (320) PRINCIPLES, supra note 315, at 25. (321) Id. at 411. (322) See id. at 184 ("Every case of sympatry among sibling species is a case where no sympatric character divergence, in the sense of Darwin, has occurred in taxonomically useful morphological characters."). (323) Id. at 25. (324) Baird, supra note 66, at 128. (325) SYSTEMATICS, supra note 311, at 115. (326) Hixon et al., supranote 68, at 132. (327) A cetologist is a scientist who studies whales and dolphins. See HENDERSON'S DICTIONARY OF BIOLOGICAL TERMS 96 (Eleanor Lawrence ed., 11th ed. 1995) (defining "cetology" as the "study of whales and dolphins"). (328) Peter L. Tyack et al., Epilogue: The Future of Behavioral Research on Cetaceans in the Wild, in CETACEAN SOCIETIES: FIELD STUDIES OF DOLPHINS AND WHALES, supra note 66, at 334. (329) See BAIRD, supra note 1, at 65-70 (providing a detailed application of the biological species concept to the killer whales of the North Pacific). (330) Baird, supranote 66, at 128. (331) Baird et al., supra note 85, at 131. (332) BAIRD, supra note 1, at 70. (333) See Heyning & Dahlheim, supra note 64, at 5 ("The genus Orcinus currently is considered monotypic by most authorities ... but a worldwide systematic review is needed."). Marilyn Dahlheim, one of the authors calling for this review 16 years ago, was a member of the BRT. KRAHN ET AL., supra note 57, at 1. (334) BAIRD, supranote 1, at 70 (noting that "[t]here are few skulls available for comparison"). KRAHN ET AL., supra note 57, at 72 ("The uncertainty surrounding killer whale taxonomy is characteristic of marine mammals. Nomenclature has not caught up with knowledge (particularly genetic information), due to the difficult and time-consuming traditional process of obtaining and classifying skulls needed to formally describe what many scientists recognize as discrete taxonomic entities."); Baird et al., supra note 85, at 130 (discussing the difficulties of "testing for differences in morphology ... due to the paucity of available skeletal specimens"). (335) See supra notes 149-51 and accompanying text. (336) Id. (337) See KRAHN ET AL., supra note 57, at xvii ("The BRT decided that the current designation of one global species for killer whales is inaccurate, because available data suggest that the present taxonomy does not reflect current knowledge and that additional species or subspecies should be officially recognized."). (338) See Id at 72 ("Further clarification by taxonomists is needed."). (339) 12-Month Finding, supra note 12, at 44,138. Of course, after the court concluded that the standard of a single, global species is not the best available scientific information and ordered NMFS to complete another status review of the Southern Resident killer whales by December 17, 2004, NMFS must now reach some conclusion as to the appropriate taxon by which to measure the population's significance. Ctr. for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1239-40, 1243 (W.D. Wash. 2003). As part of its effort to resolve this taxonomic quandary, NFMS cosponsored a symposium on cetacean systematics in April 2004; a review of killer whale taxonomy was on the agenda. CENTER FOR MARINE BIODIVERSITY & CONSERVATION, CETACEAN SYSTEMATICS--SYMPOSIUM ANNOUNCEMENT, at http://cmbc.ucsd.edu/about/cetaceanconf.cfm (last visited Apr. 11, 2004). (340) As others have noted, taxonomy is more of an art than a science. See Zaepfel, supra note 45, at 152 ("Taxonomy is an artistic and interpretive science, highly dependent on one's academic training and intellectual perspective."); see also Doremus, supra note 17, at 1102 ("[C]lassification ... involves as much art as science."). Additionally, the results of classification often depend on the mindset of the taxonomist: "'Lumpers' ... are inclined to prefer large, inclusive taxa, and 'splitters' ... separate taxa on the basis of the minute distinctions...." Id.; see also John Charles Kunich, The Fallacy of Deathbed Conservation Under the Endangered Species Act, 24 ENVTL. L. 501, 506 n.12 (1994) ("This is the age-old schism between two main types of taxonomists, popularly known as 'splitters' and 'lumpers.' Splitters tend to identify many species; taken to the extreme, a splitter would count the number of hairs on each mouse he encounters, and declare a different species for each one, based on differing numbers of hairs. Conversely, a lumper tends to agglomerate even disparate species, deeming differences unimportant; dogs, wolves, and foxes could all be lumped together as members of the same species."). (341) See supra note 315 and accompanying text for a definition of the biological species concept. (342) See text accompanying note 59, supra, for a discussion of the two ways a population can satisfy the discreteness prong of the DPS Policy. (343) See supra notes 55-57 for a discussion of the taxon reflexive nature of the significance prong of the DPS Policy. (344) See DPS Policy, supra note 19, at 4725 (allowing population to satisfy the significance prong if its "loss ... would result in a significant gap in the range of [the] taxon"). (345) See BAIRD, supra note 1, at 69 (discussing the evolution of sibling species in sympatry). (346) See KRAHN ET AL., supra note 57, at 82-85 (addressing this possibility, but reaching no conclusion). (347) See Zaepfel, supra note 45, at 153 ("Because of ... the ever changing nature of taxonomy, the agencies are simply the only governmental mechanism flexible enough to accommodate ... the pervasive scientific uncertainty."). (348) See DPS Policy, supra note 19, at 4725 (the factors "may include, but [are] net limited to" the four enumerated criteria). (349) Zaepfel, supra note 45, at 178. (350) Id. (emphasis added). (351) See DPS Policy, supra note 19, at 4723 (Responding to a comment that significance should be measured in terms of importance to its environment, the Services state, "[M]ost, if not all, populations play roles of some significance in the environments to which they are native, so that this importance might not afford a meaningful way to differentiate among populations. On the other hand, populations commonly differ in their importance to the overall welfare of the species they represent, and it is this importance that the policy attempts to reflect in the consideration of significance." (emphasis added)). (352) See text accompanying note 44, supra. (353) DPS Policy, supra note 19, at 4725. (354) Id. (355) See Notice of Intent to Sue, Letter from Brent Plater, Center for Biological Diversity, & Patti Goldman, Earthjustice, to NMFS & Secretary of Commerce Don Evans 4 (Aug. 6, 2002) [hereinafter 60-Day Notice] (on file with author) ("Because significance is not included in the statutory definition ... the policy is contrary to the mandate of Congress."). See also Petitioners' Complaint, supra note 14, at 21 ("The [DPS Policy] illegally and arbitrarily allows the Services to determine whether a discrete population is eligible for an ESA listing based on the Service's assessment of the significance of the loss of that population."); Ctr. for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1233 (W.D. Wash. 2003) ("Plaintiffs contend that NMFS's decision ... is contrary to law because NMFS considered a factor--the population's significance--not permitted by the ESA."). (356) Id. at 1236. (357) 60-Day Notice, supra note 355, at 3-4. (358) 467 U.S. 837 (1984). (359) Id. at 842-43. (360) Id. at 842. (361) Id. at 843. (362) 529 U.S. 576 (2000). (363) Id. at 587 (emphasis added). Justice Thomas points out that because these interpretations lack the force of law, they should not receive Chevron deference. Id. (364) 533 U.S. 218 (2001). Al least one court attempting to apply the Supreme Court's opinion in Mead has labeled it a "quagmire." State of Calif. Dep't of Social Servs. v. Thompson, 321 F.3d 835, 848 (9th Cir. 2003). (365) Mead, 533 U.S. at 226-27. (366) 16 U.S.C. [section] 1533(h)(2) (2000). (367) Ctr. for Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1234 (W.D. Wash. 2003). (368) Id. (360) Chevron, 467 U.S. 837, 842-43 (1984). (370) DPS Policy, supra note 19, at 4722. (371) Ctr for Biological Diversity, 296 F. Supp. 2d at 1235. (372) Id. at 1236; Maine v. Norton, 257 F. Supp. 2d 357, 387 (D. Me. 2003); Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154, 1161-62 (D. Or. 2001), appeal dismissed, 358 F.3d 1181 (9th Cir. 2004). (373) Maine v. Norton, 257 F. Supp. 2d at 387. (374) Alsea Valley Alliance, 161 F. Supp. 2d at 1161-62. (375) Ctr. for Biological Diversity, 296 F. Supp. at 1236. (376) Id.; see also U.S. GENERAL ACCOUNTING OFFICE, supra note 41, at 52-60, 122-23 (presenting GAO's criticisms of the listing of populations and a letter from FWS responding to those criticisms). (377) S. REP. NO. 96-151, at 7 (1979). (378) See 16 U.S.C. [section] 1531(a)(3) (2000) (outlining the various values Congress recognized endangered and threatened species as having). (379) See supra notes 55-57 and accompanying text. (380) See supra Section III.B.1. (381) 16 U.S.C. [section] 1531(a)(3) (2000). (382) Id. [section] 1531 (b). (383) DPS Policy, supra note 19, at 4723. (384) R.V. O'NEILL ET AL., A HIERARCHICAL CONCEPT OF ECOSYSTEMS 206 (1986). (385) Id. (386) Top predators are species that "have no predators themselves, but prey upon intermediate or basal species." PETER J. MORIN, COMMUNITY ECOLOGY 158 (1999). The killer whale is one such predator. PETITION, supra note 2, at 1. (387) Keystone species are "species that have a key role in an ecosystem, affecting many other species, and whose removal leads to a series of extinctions within the system." HENDERSON'S DICTIONARY OF BIOLOGICAL TERMS, supra note 327, at 300. For example, the Alaska sea otter is a keystone species in the kelp forest ecosystem; without the otter, sea urchin populations explode and mow down the kelp forests. See Rohlf, supra note 18, at 636 (discussing this phenomenon, citing James Estes & John Palmisano, Sea Otters: Their Role in Structuring Nearshore Communities, 185 SCIENCE 1058 (1974)). (388) A controlling species has "a controlling influence on the spatial and temporal processing of energy and nutrients and should be included as a functional component of the ecosystem." O'NEILL ET AL., supra note 384, at 207. In other words, it "dominates a function." Id Examples include beavers (Castor canadensis), whose dams "can significantly alter nitrogen retention in northern streams," and salmon, who "alter available nutrients" in the streams to which they migrate. Id. at 207-08. (389) See, e.g., Jessica Spiegel, Even Jaws Deserves to Keep His Fins: Outlawing Shark Finning in Global Waters, 24 B.C. INT'L & COMP. L. REV. 409, 431 (2001) (predicting that "an ecological imbalance with potentially disastrous repercussions will occur in the world's oceans" without sharks as a top predator in food chain). (390) O'NEILL ET AL., supra note 384, at 206-09; Rohlf, supra note 18, at 635-36. Keystone species are not always predators. For example, Professor Rohlf presents the example of trees in Manu National Park in Peru that produce fruit during the dry season, sustaining the entire community of fruit eating species during that season. Id at 636. (391) 16 U.S.C. [section] 1531(a)(3) (2000) (emphasis added). (392) See text accompanying notes 376-78, supra. (393) See supra notes 303-06 and accompanying text. (394) See supra Section III.A.4. (395) See supra note 25 and accompanying text. (396) See supra Section III.A.2. (397) Currently, the fourth criterion of the significance prong of the DPS requires "[e]vidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics." DPS Policy, supra note 19, at 4725. (398) See supra Section III.A.4.b. (399) See Baird et al., supra note 85, at 130 (lamenting that "testing for differences in morphology [in killer whales] ... is difficult, due to the paucity of available skeletal specimens"). (400) The Services were not always so incapable of dealing with taxonomic uncertainty. In fact, prior to the adoption of the DPS Policy, FWS used its ability to list distinct population segments to protect populations of species whose correct taxonomy was uncertain. See Pennock & Dimmick, supra note 51, at 614 (discussing the FWS decision to list populations of least terns (Sterna antillarum) specifically because of taxonomic uncertainty and commenting that "[t]he ability to list distinct population segments allowed the USFWS to protect fragile populations independent of often long standing and difficult to resolve issues regarding taxonomic status of organisms"). (401) See Zaepfel, supra note 45, at 152 ("Taxonomy is an artistic and interpretive science, highly dependent on one's academic training and intellectual perspective."); Doremus, supra note 17, at 1102 ("[C]lassification ... involves as much art as science."). (402) Zaepfel, supra note 45, at 179. (403) Id. (404) Id. (quoting UNITED STATES FISH AND WILDLIFE SERVICE, CANDIDATE SPECIES GUIDANCE, PRELIMINARY DRAFT 25 (1994)). (405) An exhaustive effort by the author could not uncover a copy of the guidance. (406) See J.B. Ruhl, The Battle Over Endangered Species Act Methodology, 34 ENVTL. L. 555, 561,567-71 (2004) (discussing the precautionary principle in the ESA context). (407) U.S. EPA, SAVE OUR SPECIES POSTER, at http://www.epa.gov/espp/poster/espp_poster.htm (last visited Apr. 11, 2004). (4080 See 16 U.S.C. [section] 1533(c)(2)(A)-(B) (2000) (requiring the Secretary to review the status of all listed species every five years and determine whether to remove the species from the list, or change the species' status from endangered to threatened or from threatened to endangered). (409) NMFS took the opposite course in the case of the Southern Resident killer whales, choosing not to take action, but promising to review the state of the taxonomic science periodically and act if appropriate. 12-Month Finding, supra note 12, at 44,138. (410) 16 U.S.C. [section] 1533(b)(1)(A) (2000). (411) See supra notes 203-16 and accompanying text. (412) See 12-Month Finding, supra note 12, at 44,134 (purporting to have relied on the "best available scientific and commercial information" in concluding that the Southern Resident killer whales are not a DPS); DPS Policy, supra note 19, at 4722 ("It is important in light of the Act's requirement to use the best available scientific information in determining the status of species that this interpretation follows sound biological principles."); ESU Policy, supra note 24, at 58,613 (noting that "species and populations are biological concepts that must be defined on the basis of the best scientific and commercial data available, just as the decision to list 'species' as endangered or threatened"). By binding itself to the best available science mandate, NMFS may have guaranteed itself a remand of the Southern Resident killer whale decision by the reviewing court. The BRT concluded that "the current designation of one global species for killer whales inaccurate, because available data suggest that the present taxonomy does not reflect current knowledge and that additional species or subspecies should be officially recognized." KRAHN ET AL., supra note 57, at xvii (emphasis added). Yet NMFS declared that it "considers the published standard of a single, global species as the best available scientific information." 12-Month Finding, supra note 12, at 44,138. These statements are inconsistent and NMFS cannot have it both ways. Because the latter statement is unsupported by the findings in the BRT Status Review, this action was contrary to the statutory science mandate to which NMFS purports to be bound. For these reasons, among others, NMFS is now reevaluating this listing decision under court order. Ctr. For Biological Diversity v. Lohn, 296 F. Supp. 2d 1223, 1236-40, 1243 (W.D. Wash. 2003). (413) See supra Sections III.A.1 & III.A.3.a. (414) Doremus, supra note 17, at 1035-36. (415) Id. at 1075. (416) Id. (417) Id. (418) KRAHN ET AL., Supra note 57, at 82-83. (419) See supra notes 143-48 and accompanying text. (420) See KRAHN ET AL., supra note 57, at 72 (stating that "[f]urther clarification by taxonomists is needed" to resolve the correct taxonomy of the Southern Resident killer whale). (421) Id at 82-83. (422) Id. at 71. (423) See Doremus, supra note 17, at 1064 ("If the relevant empirical tests cannot be performed, the scientific process stalls at the hunch stage. The hunches of scientists represent, for the moment at least, the best information attainable.'); id. at 1071 ("[T]he hunches of scientists may represent the most reliable answer available to questions which have not yet been tested, or which for some reason cannot be tested at this time."). (424) Id. (425) See KRAHN ET AL., supra note 57, at 78 fig.11 (illustrating the decision tree used by the BRT and emphasizing the uncertain results). (426) BAIRD, supra note 1, at 65-70 (applying the biological species concept to the killer whales of the North Pacific and concluding that "[c]ombined, the evidence suggests that the two forms of killer whales off western North America should be considered distinct biological species"); Baird, supra note 66, at 128 (concluding that the transients and residents are likely two distinct species). Dr. Baird concludes the chapter "The Species Question" of his latest book on killer whales with the rhetorical query: "Perhaps [killer whales] are the Darwin's finches of the marine mammal world?" BAIRD, supra note 1, at 70. (427) See BAIRD, supra note 1, at 70 ("Given the history of naming species based on morphological differences, for such species to be accepted by the scientific community, it will require detailed examination of skeletal differences between the [resident and transient killer whales]. Whether or not such skeletal differences exist at this stage is unknown. There are few skulls available for comparison.... "). (428) Doremus, supra note 17, at 1071-72. (429) See, 50 C.F.R. [section] 424.11(a) (2004) ("In determining whether a particular taxon or population is a species for the purposes of the Act, the Secretary shall rely on standard taxonomic distinctions and the biological expertise of the Department and the scientific community concerning the relevant taxonomic group."). (430) Those portions below in roman typeface are lifted verbatim from the DPS Policy. DPS Policy, supra note 19, at 4725. Those portions of the original DPS Policy that should be stricken are indicated with a line through them. Those portions below in italics are proposed additions to the DPS Policy. DEREK O. TEANEY, [c] Derek O. Teaney, 2004. Editor in Chief, Environmental Law, 2003-2004. J.D. and Certificate in Environmental and Natural Resources Law expected May 2004, Lewis and Clark Law School; B.A. 1997, University of San Diego (Communications). After completing his undergraduate degree, the author spent four years as an environmental educator in the field of marine science. In the summer of 2003, the author interned in the Seattle, Washington office of the Earthjustice Legal Defense Fund, the law firm representing the plaintiffs in a lawsuit challenging the administrative decision that inspired this Comment. The views expressed by the author are solely his own, and do not necessarily reflect the views of Earthjustice or its clients. The author thanks Professor Daniel J. Rohlf for his encouragement, assistance, feedback, and guidance as advisor to this Comment; Brent Plater and Patti Goldman for their review and valuable feedback; and Ron Opsahl for his objective editorial eyes. Of course, all errors remain those of the author alone. Additionally, the author thanks his wife Staci for her unending support and understanding. |
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