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Monday, December 11, 2023 | Back issues
Courthouse News Service Courthouse News Service

Coast Guard on the Hook in Killer Whale Lawsuit

The Coast Guard must face claims by two Northwest tribes that a plan for oil tanker traffic threatens the habitat of southern resident killer whales, a federal judge ruled this week.

SEATTLE (CN) — The Coast Guard must face claims by two Northwest tribes that a plan for oil tanker traffic threatens the habitat of southern resident killer whales, a federal judge ruled this week.

The Tulalip and Suquamish Tribes sued the Coast Guard last year over its adoption of a traffic-separation plan off the coast of Washington state.

The tribes say the Coast Guard did not consult with the National Marine Fisheries Service before adopting the plan. The “seven-fold increase” in oil tanker traffic en route to Canada threatens the southern resident killer whales, according to the lawsuit.

That particular group of killer whales, also called orcas, is the only population of killer whales protected under the Endangered Species Act.

There are fewer than 80 orcas in the population, and they spend a large part of each year in the waters of Puget Sound, the Strait of Juan de Fuca and the Georgia Strait.

The tribes sought a court order requiring the Coast Guard to consult with the Fisheries Service on a new shipping traffic plan, with permanent measures to “ensure against jeopardy, prevent adverse modification of critical habitat, and minimize incidental take.”

“Killer whales are revered by our people. They are part of our ancestral marine ecology and continue to be very important to our culture. They now face their biggest threat to date: the expansion of the Trans Mountain pipeline,” Marie Zackuse, Tulalip Tribes chairwoman, said last year.

Plans to expand that 700-plus mile pipeline stretching from Alberta to British Columbia have been hotly protested by environmental activists, native groups and others.

Kinder Morgan, the company behind the $7.4 billion expansion, said this week that issues with permits will delay the start-up until December 2020.

Like others, the tribes in the lawsuit expressed concern that killer whales and other marine life will be threatened by the increased tanker traffic and the risk of oil spills.

The Coast Guard sought to dismiss the lawsuit, claiming there was no reasonably likely possibility of the kind of harm the tribes claim.

U.S. District Judge Marsha Pechman disagreed in a 10-page order Wednesday.

“Plaintiffs need only plead that it was the Coast Guard’s inactivity that resulted in the failure to consult as mandated by the ESA [Endangered Species Act], not that the failure to consult is the ‘cause’ of the threats of oil spills and vessel strikes which are the type of ultimate negative outcomes that environmental consultation is intended to avert,” Pechman wrote.

She said the Coast Guard’s arguments “miss the point,” and that the tribes proved they have standing.

“The injury plead in plaintiffs’ complaint is a procedural injury – the failure to consult as required by the ESA – and the redress of that injury is: to consult,” Pechman wrote.

The tribes are represented by Earthjustice.

Last year, Washington state Rep. Kristine Lytton introduced a bill that would ban people from flying drones within 200 yards of a killer whale. There are already restrictions on keeping other vessels away from the animals.

Bradley Oliphant, who represents the Coast Guard, did not respond to a request for comment.

Categories / Civil Rights, Environment

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