How much should Alaskan fishing be curtailed to provide more food for the endangered Southern Resident killer whales? It is an important question, enmeshed in conflicting federal priorities and provoked by a lawsuit brought by Wild Fish Conservancy, a Seattle-based conservation group.

A federal court ruled in August that the National Marine Fisheries Service had violated the Endangered Species Act and the National Environmental Policy Act in its approval of salmon harvests in the Southeast Alaska troll fishery. That fishery harvests Chinook salmon originating from streams as far south as the Columbia River, with some coming from Puget Sound.

Chinook salmon are the primary prey for the endangered whales, so Alaskan fishermen become another competitor for fish that the orcas need to survive. In court filings, Wild Fish Conservancy is seeking to shut down the lucrative summer and winter troll-fishing seasons, at least temporarily, because the federal government failed to adequately consider the effects of those fisheries on the Southern Resident killer whales.

“The SRKWs are at a severe and worsening risk of extinction due primarily to inadequate Chinook salmon for prey,” states a legal brief by the group, adding that without significant changes in fisheries management, the whales “will continue to decline towards extinction.”

The issue is further complicated by the fact that Puget Sound Chinook and other Chinook stocks have declined so severely that they themselves are listed on the Endangered Species List, joining the critically endangered orcas. Beyond Puget Sound, threatened Chinook stocks are found in the Lower Columbia, Upper Snake and Upper Willamette rivers..

NMFS, also known as NOAA Fisheries, seems to recognize these conflicts while urging the federal court to continue to allow fishing at the maximum level allowed by the Pacific Salmon Treaty, a pact with the Canadian government.

“This case involves a complex dynamic between fishing and protecting species that takes place in the context of a broad, bilateral management regime,” the agency states in a court brief. “This case also involves an intricate balance between two species — SRKW and Chinook salmon — one of which is prey for the other and both of which are protected under the ESA.”

NMFS argues that it can correct the errors identified in the court ruling without “far-reaching, unwarranted, and disruptive” effects that would result from closing the Southeast Alaska troll fishery. Meanwhile, the Alaska Trollers Association and the state of Alaska have entered the case, raising objections to proposed reductions in the Alaskan fisheries.

During oral arguments in court Tuesday, attorneys for both sides debated the economic effects of closing the fisheries and whether the declining health conditions among the killer whales warrants immediate actions that might provide them more food.

Violations identified by the court

The case revolves around management of Chinook stocks under the 2019 Pacific Salmon Treaty with Canada. The 10-year agreement establishes upper harvest levels for salmon in Alaska and other areas along the West Coast. It also commits the U.S. government to funding habitat restoration while increasing hatchery releases of Chinook — including a “prey-increase” program designed to boost the food supply for killer whales by 4 to 5 percent over five years.

The 2019 treaty reduced total harvest levels from the previous treaty in 2009, but Wild Fish Conservancy contends that the condition of the killer whales calls for the U.S. to impose further reductions, below what is allowed by the treaty.

“I believe Southern Resident killer whales need an immediate increase in the abundance of Chinook available to them to avoid functional extinction, as the current low birth rate with high early mortality is simply unsustainable,” University of Washington orca researcher Deborah Giles stated in sworn written testimony.

A biological opinion, required by the Endangered Species Act and written by NMFS, describes the adverse effects of fishing that targets listed Chinook stocks as well as the impacts on orcas that depend on them. NMFS authorized the impacts through an “incidental take statement,” listing future hatchery and habitat programs as mitigation. The agency concluded that the Southeast Alaska troll fishery — which involves fishing from a boat with multiple lines — would not jeopardize the ongoing existence of the species under proposed fishing and mitigation plans.

U.S. Magistrate Judge Michelle Peterson, based in Seattle, found that the federal agency could not rely simply on planned mitigation programs to allow the fishery to go forward. To offset the adverse effects on endangered and threatened populations, the mitigation must be subject to deadlines, funding, or otherwise enforceable obligations to avoid undue delays in implementation. The magistrate’s findings were converted to a court order by U.S. District Judge Richard A. Jones.

Quoting from the biological opinion, Peterson said she was particularly concerned that while fishing was going forward, the prey-increase program to benefit the killer whales was “less well defined” and “will likely be subject to additional review once they are fully described.”

“Therefore,” she wrote, “the court finds that NMFS failed to create a binding mitigation measure that provides ‘in detail the action agency’s plan to offset the environmental damage caused by the project,’” as required by previous court rulings.

In Tuesday’s court hearing, attorneys for NMFS said the prey-increase program was already underway, so it is no longer speculative, and it is providing benefits to the killer whales. But attorneys for Wild Fish Conservancy said the program’s benefits remain undefined, and NMFS still has not documented how the hatchery fish will help the whales.

Judge Peterson questioned the lawyers about when the hatchery-reared fish proposed as mitigation would grow large enough to become ample food for the whales. The biological opinion on the effects of the fisheries acknowledges that it will take several years for hatchery fish to become adults, but particular details were not provided.

Details also were lacking for four so-called conservation hatcheries, meant to boost the Chinook populations, as well as for proposed habitat restoration projects. The projects were not even assured of necessary funding from Congress at the time the biological opinion was written, the judge noted in her previous findings.

“Tellingly,” she wrote, “NMFS fails to specify how the funds will be spent, how many additional fish could be produced, where fish would be released, or when, where, or how many salmon could be made available to SRKW or to aid recovery of Chinook salmon.”

Peterson also agreed with Wild Fish Conservancy that while NMFS cited the benefits of the prey-increase program for killer whales, the agency had not properly assessed the adverse effects of that program on existing Chinook runs, as required by the Endangered Species Act. In court documents and written testimony, WFC argued that increased hatchery fish could harm wild Chinook populations and might ultimately harm killer whales as well.

The court also found that NMFS violated the National Environmental Policy Act by issuing its biological opinion on the fishery and adopting the prey-increase program without first conducting a required environmental review.

Court’s next step

Following Tuesday’s hearing, Judge Peterson is closing in on a decision about how to address the deficiencies. Wild Fish Conservancy has proposed that federal approval be removed for a major portion of the fishery. NMFS, the Alaskan Trollers Association and the state of Alaska have proposed keeping all the fisheries at full force until corrections can be made in the biological opinion and incidental take statement.

Technically, WFC is seeking to vacate portions of the biological opinion that authorized a “take” of endangered Southern Resident killer whales and threatened Chinook salmon. The proposal would effectively block commercial harvesting in the Southeast Alaska troll fisheries during winter and summer seasons while allowing spring fishing to go forward. The group also seeks to halt the prey-increase program, which involves hatchery production.

Allowing the spring troll fishery would have minimal effect on the whales, since it involves mostly Chinook from Alaska hatcheries, according to WFC. The WFC proposal also would not affect “terminal” fishing near the streams and hatcheries, nor would it affect subsistence or sport fishing for Chinook. The proposed order would not affect coho harvests nor Chinook incidentally caught while fishing for other species.

WFC contends its proposal “narrowly focuses on the fisheries that have the most impact on ESA-listed SRKWs and Chinook salmon.” Halting the winter and summer harvests would increase prey available to the killer whales by about 4.8 percent, according to testimony provided by Robert Lacy, a population biologist who submitted sworn testimony on behalf of WFC. Lacy estimates that prey for the killer whales needs to be increased by about 5 percent to merely stop the population decline, with greater increases and other protective measures needed to achieve good population growth toward recovery.

NMFS disputes those numbers using other analyses. The agency contends that the troll harvest would reduce prey by an average of 0.5 percent in winter (or up to 1.1 percent) and by an average of 1.8 percent in summer (or up to 2.5 percent) during “times and areas in which Chinook salmon are most likely to become potential prey to SRKW.” “Seasonal movements” are assumed to put the orcas along the coast from October through April and within inland waters from July through September.

“Closing the Southeast Alaska troll fisheries and enjoining the prey increase program will likely result in a net reduction in prey available to the whales,” said Lynne Barre, branch chief in the NMFS’ Protected Resources Division. Her written testimony referred to Lacy’s analysis as “outdated and not based on the best available science,” although Barre’s own expertise was called into question by Wild Fish Conservancy.

Economic impacts

Court documents from NMFS say closing the winter and summer troll fisheries would have significant economic effect on the fishing industry, since the troll fishery is allocated an average of 74 percent of the Chinook covered by international treaty with the “vast majority” of the fish taken in winter and summer. Economic studies cited by the agency place the total annual value at $29 million.

An economist for Wild Fish Conservancy estimated that the proposed reduction would cost $9.5 million, comparing that to an average annual income of $411 million for the entire Southeast Alaska seafood industry.

“Notably, NMFS seeks to spend $8.6 million annually on increased hatchery production to mitigate the Chinook salmon harvests, while the Southeast Alaska commercial harvest of Chinook salmon provide around $9.5 million in annual income,” states WFC. The federal government could compensate fishers for their lost income or even buy out their fishing licenses, since government officials created the problem, the group says.

The Alaska Trollers Association also disputes WFC’s economic analysis. “The relief proposed by WFC presents a small hypothetical benefit to the SRKW population but a guaranteed economic disaster for the communities that rely on the Southeast Alaska troll fishery.”

The ATA represents more than 350 members who are part of a fishing community of nearly 72,500 residents living in 33 towns and villages, according to the organization. The group cited an economic report that identified 1,400 fishers involved in the disputed fishery plus other direct and indirect jobs for a total economic output of $85 million a year.

“This is a highly complex, multi-faceted problem,” the document continues. “Singling out the Southeast Alaska trollers only punishes Southeast Alaska communities. Closing a fishery, let along one that is among many components of a multi-state and multi-national system, is a remarkable action for the court to take.”

Attorneys for the state of Alaska expressed concerns about the economic damage to communities in Southeast Alaska if the troll fishery were to be shut down. They also argued that halting the hatchery programs would likely result in “cascading impacts” to fisheries off the coasts of Washington and Oregon as well as Puget Sound. That’s because the increased hatchery production was proposed as mitigation for Chinook fishing along the entire coast under treaty with Canada.

The notion that commercial and sport fishers are competing with endangered killer whales for Chinook salmon is no less a concern in Washington and Oregon than in Alaska. For the time being, the risks of taking too many fish away from the endangered orcas is addressed by Amendment 21 to the Pacific Coast Salmon Fishery Management Plan, which covers fisheries from Cape Falcon in Oregon to the Canadian border. The amendment basically calls for fishing to be reduced through a series of restrictions in any year that the total estimate of Chinook abundance falls below an action threshold, currently 966,000 fish. This year’s fishing seasons were not affected by that threshold, but some orca advocates say more restrictions are needed.

Attorneys for Alaska point out that fisheries in Washington and Oregon were approved on condition that hatchery production would be increased to produce more Chinook for the killer whales. Without the hatcheries, they say, many chinook fisheries could be in danger of violating the Endangered Species Act. Furthermore, without the hatchery fish, the Chinook abundance could fall below the action threshold of Amendment 21.

Attorneys for Alaska also argue that cutting back fishing in Southeast Alaska would result in minimal benefit for the whales. They say the salmon that survive other natural predators would migrate south, where they would likely be caught by fishers in Canada or Washington before the whales would get them.

Officials with Wild Fish Conservancy counter that prudent actions by the U.S. and Canada would allow a fair number of Chinook to continue their migrations and become available for the killer whales. In fact, the Canadian government has already taken steps to close several commercial fishing areas and retire fishing licenses as part of a $647-million Pacific Salmon Strategy Initiative and 2022 management measures to protect the whales, according to Giles, the orca biologist who testified in writing for WFC.

Another legal challenge

While the parties wait for Magistrate Judge Peterson to submit a recommended final ruling in the case, Wild Fish Conservancy, along with The Conservation Angler, continues to pursue a somewhat related lawsuit in state court. That case, filed in King County Superior Court, seeks to block an ongoing expansion of salmon hatcheries operated by the Washington Department of Fish and Wildlife. (See WFC press release).

The state’s hatchery expansion was proposed with the stated purpose of providing more food for killer whales, but the conservation groups contend that the Washington Fish and Wildlife Commission failed to evaluate the harmful effects of the expansion while ignoring the advice of fisheries and orca scientists. A motion by WDFW to dismiss the case is pending before Superior Court Judge Brian McDonald in King County.