Petition to List Sperm Whales in the Gulf of Mexico As a Distinct Population Segment

By Wayne D’Angelo, Kelley Drye & Warren, LLP.

Industries that are most often impacted by Endangered Species Act (ESA) listings, and those of us that represent them, are familiar with environmental organizations using ESA’s petition process –  and their own formidable litigation budgets –  to drive listing activity at the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), often beyond the resource capabilities of those agencies.  Perhaps the best known example is the 2011 Center for Biological Diversity/Wildearth Guardians settlement with FWS which resulted in listing deadlines for hundreds of species.  A growing and lesser known tactic is for environmental organizations to petition the listing agencies to divide species into “distinct population segments,” each of which might then be listed under the ESA.

Authority to designate Distinct Population Segments (DPS) comes from the ESA itself.  The ESA applies to distinct taxonomic species, “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife that interbreeds when mature.”

In 1978, when the phrase “DPS” was added to the ESA via the ESA Reauthorization Act, Congress wisely expressed concern that the language could be used to improperly disaggregate species to the extent that even healthy and abundant species could be shown to be endangered or threatened.  As such, in the conference report that accompanied the reauthorization, Congress admonished that DPS designation be used “sparingly and only when the biological evidence indicates that such action is warranted.”

Based on this admonition, NMFS and FWS crafted a DPS Policy that set a high bar for designating a DPS.  Under that policy, populations are not considered distinct unless they are both discrete and significant to the taxon as a whole.  When properly applied, the DPS Policy has resulted in “sparing” use, however petitioning groups are showing decidedly less restraint.  An interesting example of a DPS petition that would expand the designation far beyond what Congress intended, and the DPS policy allows, involves the sperm whale.

On December 9, 2011, Wildearth Guardians petitioned the National Marine Fisheries Service (NMFS) to list sperm whales in the Gulf of Mexico (GoM) as a DPS.  In most DPS petitions, the petitioner attempts to sub-divide a non-endangered species into narrowed segments that may qualify as “threatened” or “endangered” under the ESA.   The sperm whale, however, has been listed as endangered throughout its global range (including the GoM) since 1970.  It begs the question; Why petition to further delineate a species that is already endangered? It is not because there is particularly good evidence that sperm whale in the GoM are a DPS.  To the contrary, Wildearth Guardians’ petition falls far short of the DPS Policy standards.

Perhaps Wildearth Guardians is concerned that there is mounting evidence of global sperm whale abundance that may justify delisting or down-listing the species.  Indeed, the International Whaling Commission Moratorium effectively eliminated the largest supposed threat to the sperm whale in 1988.   Perhaps also, Wildearth Guardians’ stated organizational goal of eliminating all fossil fuel development and use has informed its focus on the Gulf of Mexico.

The Gulf of Mexico is important to the domestic energy industry as it accounts for over a quarter of all domestic oil production. The Bureau of Ocean Energy Management has determined that its new five-year drilling program will result in an annual “addition of between 20,025 and 51,825 jobs” and  that “