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Federal Judge Upholds Puget Sound Killer Whale Protections

A federal judge on Wednesday dismissed a lawsuit filed by building and farm groups that challenged the decision to make Puget Sound's resident killer whale population an endangered species.

In the decision, U.S. District Judge Thomas S. Zilly said the Building Industry Association of Washington and the Washington Farm Bureau couldn't prove they would be harmed. The lawsuit cannot be refiled, he said.

"We're surprised," said lawyer Russell C. Brooks with the Pacific Legal Foundation, which represented the plaintiffs.

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The National Marine Fisheries Service said last year that the whales deserved protection. The lawsuit claimed the move would result in needless water and land use restrictions for farms, and would open them to fines or jail time for "the most basic farm practices."

The three orca pods — or families — that live in western Washington's inland waters are a distinct population of a subspecies, the Northern Pacific resident orcas, which include orcas off Alaska and Russia.

The plaintiffs had argued that the Endangered Species Act applies only to a distinct population of a species — not a subspecies.

"Just because there are orcas elsewhere in the Pacific Ocean doesn't mean we're willing to live without them in Puget Sound," said Patti Goldman, an attorney for Earthjustice, said after the lawsuit was filed. The group challenged the lawsuit.

Puget Sound's southern resident orcas are genetically and behaviorally distinct from other killer whales. The pods use their own language, mate only among themselves, eat salmon rather than marine mammals and show a unique attachment to the region.

The three pods now total 85 whales — down from historical levels of 140 or more in the last century, but up from a low of 79 in 2002.

Pollution and a decline in prey — the region's salmon runs also are protected under the endangered species law — are believed to be their biggest threats, although stress from whale-watching tour boats and underwater sonar tests by the Navy also are concerns.