A federal judge in Seattle has ruled that the National Marine Fisheries Service violated a key provision of the Endangered Species Act in 2019, when NMFS published research on the harvest of king salmon in Southeast Alaska – and failed to address its impact on a small population of killer whales in Puget Sound.
US District Court Judge Richard A. Jones on August 8 ordered that an “appropriate remedy” be found, that – while it possibly could limit commercial trolling for chinook in Southeast – will more likely result in a rewrite of the biological opinion that led to the problem.
Nothing looks more like a big win in court than summary judgment. US District Court Judge Richard Jones on August 8 granted summary judgment to the plaintiff, the Washington-based Wild Fish Conservancy. The headlines that caromed around the internet spelled doom for commercial salmon trollers in Southeast Alaska.
“I think we’ve won the recognition that this fishery was actually causing harm to threatened and endangered species, and for all intents and purposes was illegal,” said Kurt Beardslee, director of special projects for the Conservancy.
Beardslee has been the driving force behind the lawsuit since its inception.
The Wild Fish Conservancy filed suit against the National Marine Fisheries Service in March of 2020, arguing the government failed to adequately address the impact of Alaskan king salmon harvests on Southern Resident Killer Whales, whose population in the Puget Sound area of Washington has dropped to critically-low levels.
Read the plaintiff’s motion for summary judgment.
The statistic that the Wild Fish Conservancy repeats most is that “97-percent” of king salmon harvested by Southeast Alaska trollers don’t originate in Alaska, depriving Southern Resident Killer Whales of their primary food source.
The Alaska Department of Fish & Game has its own number, and it’s so far off the Wild Fish Conservancy’s position that it’s less about splitting hairs, and more like a haircut.
“The Alaska technical committee (of the Pacific Salmon Commission) says that less than 2-percent of the king salmon we catch are from Puget Sound,” said Matt Donohoe, president of the Alaska Trollers Association. “That’s fish nerd speak for none. Less than 2-percent is unmeasurable. So we don’t catch Puget Sound king salmon, the whole thing’s absurd. It’s right out of Alice in Wonderland.”
Matt Donohoe is president of the Alaska Trollers Association. The ATA intervened in the suit, along with the State of Alaska. Donohoe trolls for kings in a 100-year old wooden boat, catching one salmon at a time on a hook and line, in a fishery that’s meticulously renegotiated with Canada every decade in a document called the Pacific Salmon Treaty. Southeast Alaska’s trollers have taken steep reductions in their harvest allocations in the last two treaty rounds – in the name of conserving stocks.
Read the Alaska Trollers Association motion opposing summary judgment.
Donohoe says the Wild Fish Conservancy lawsuit unjustly characterizes Southeast trollers as intercepting fish they’re not entitled to.
“The fish we have fished on in the troll fishery for over 100 years, and of course, the Native indigenous people here for thousands of years before that, are a mix of fish,” Donohoe said. “They’re from Southeast Alaska, British Columbia, Washington, Oregon, and Idaho. And those are United States of America fish except for the British Columbia fish. And that’s all regulated by the Pacific Salmon Treaty. It’s not like we don’t have a legitimate claim on the harvest of those fish. Those fish spend most of their lives in Southeast Alaska waters. Not the Puget Sound fish: the Puget Sound fish are not far-north ranging king salmon, unlike the Columbia (river kings). So they don’t come up here.”
Donohoe says it’s unfair that Southeast trollers have been singled out in the lawsuit, when in his view there are far more significant factors at play in the decline of this small population of killers whales: the rapid urbanization of the Puget Sound area, industrial pollutants in the water, large-scale whale watching, hydroelectric projects, and a popular sport fishery for immature chinook he says are misleadingly called “black mouths.”
Kurt Beardslee, with the Wild Fish Conservancy, agrees “nothing is the only problem.” But he doesn’t want to let trollers off the hook, just because the other problems aren’t as well understood.
“Everybody also wants to point to something else, if they happen to get in the crosshairs,” he said. “But the problems are many, and it’s going to take a lot of change across the board, to help us prepare for the challenges that are to come, and climate change is probably our biggest one.”
The State of Alaska tilts more toward Donohoe’s view, that it’s wrong to pin the decline of endangered species in Puget Sound on the harvest of healthy fish stocks in Alaska. In a news release issued the day after the ruling, Alaska Department of Fish & Game Commissioner Doug Vincent-Lang wrote, “The State of Alaska abides by the terms of the Pacific Salmon Treaty and the Biological Opinion that is tied to it and it is troubling that this ruling singles out our fisheries. We will be looking at our options in the coming weeks. In the meantime, Southeast Alaska salmon fisheries will proceed as normal.”
This is where the lawsuit will likely lead – not to a shutdown of trolling in Alaska, but to a better understanding of what’s brought the population of Southern Resident Killer Whales – now thought to have around 75 members – to near-extinction.
Linda Behnken is a noted fisheries advocate in Alaska, an environmentalist, and a troller. She responded to news about the ruling while fishing for chum in Sitka Sound. She believes it’s up to the National Marine Fisheries Service to fix what’s broken in its 2019 biological opinion, and try again.
“Bottom line, the agency needs to write a stronger biological opinion to back up their decision,” said Behnken.
Behnken hasn’t been successful communicating with the Wild Fish Conservancy, who on any other topic might be allies of the Southeast Alaska troll fleet. The Conservancy filed an injunction to halt trolling last year, but a judge didn’t grant the request. If the “remedy” sought now by Judge Jones should somehow stop trolling, Behnken believes it would be a larger loss than the Wild Fish Conservancy imagines.
“The people who troll are advocates for healthy wild salmon,” said Behnken, “and that if the effect of their lawsuit is shutting down the troll fishery, they are losing a strong voice for conservation, and a strong voice for taking care of wild stocks.”
Alaska Trollers Association president Matt Donohoe says he’s got data indicating that closing the Southeast king salmon troll fishery would accomplish nothing for the remaining Southern Resident Killer Whales. Again, he says these are not the fish the whales are eating.
“It’s just really discouraging with all the problems we have in the world to create problems like this that don’t do a thing for either the king salmon in question or the killer whales question,” Donohoe said. “It doesn’t do anything for them.”
Kurt Beardslee and the Conservancy want to see king salmon management overhauled, and wouldn’t mind returning to an earlier era, when fish were harvested near their rivers of origin. This is a conversation he thinks they should be having when the US and Canada next sit down to renegotiate the salmon treaty.
“I think they’ve been too focused on allocating extraction, and less focused on recovery,” he said.
In the meantime, although Judge Jones has granted summary judgment to the Wild Fish Conservancy, the case is far from over. The ruling steers the litigation in a new direction, and all parties now will submit briefs on a “remedy” that complies with Endangered Species Act, and preserves the Southeast Alaska troll fleet, king salmon, and the community of 75 killer whales that depend on them.
