Southern Resident killer whales, which frequent Puget Sound, are expected to benefit from more Chinook salmon later this year, as expressed in a court order calling for the suspension of a major troll fishery in Southeast Alaska.

Alaska state officials are dismayed by the ruling, saying that closing this commercial fishery would have a devastating effect on fishing families in Alaska and on many small communities along the coast. The state has launched an appeal of the ruling.

The court order, signed last week by U.S. District Judge Richard Jones in Seattle, revokes a federal permit that has, until now, allowed fishing to continue under the Endangered Species Act. Chinook, a species listed as threatened, is the primary prey for the Southern Residents, which themselves are listed as endangered.

A biological opinion, issued in 2019 by the National Marine Fisheries Service, concluded that the Southeast Alaska Chinook fishery does affect the whales, but it would not put them at risk of extinction, provided that mitigation measures be implemented. Such measures include a “prey-increase program” using salmon hatcheries. But U.S. Magistrate Judge Michelle Peterson, who reviewed the legal arguments and scientific evidence in the case, found that the proposed mitigation measures were too speculative and slow to develop, as I described in Our Water Ways last November.

After consideration, Peterson followed up her overall findings in December by recommending suspension of the winter and summer troll fishery until a revised biological opinion can be developed to show how the fishery could proceed without creating an undue risk to the whales. Judge Jones endorsed the magistrate’s findings in a formal court order (PDF 137 kb) last week — five months after Peterson’s recommendation (PDF 643 kb), with the winter season already over and summer fishing scheduled to begin July 1.

The court order has outraged commercial fishers and residents of fishing communities throughout Southeast Alaska. In legal filings, the state of Alaska argued that the fishing closure would create an “economic catastrophe” in Southeast Alaska, costing $29 million a year in economic losses without significant benefit for the orcas.

“These dollar amounts might be insignificant in the Lower 48, but in Southeast Alaska they are substantial,” states the filing by Alaska’s attorney general, arguing that many communities would be devastated without the summer fishing season. The court ruling is under appeal by the state of Alaska as well as the Alaska Trollers Association, which represents the fishers. They are also seeking a stay of the order to allow this year’s fishing plans to move forward.

Wild Fish Conservancy, a conservation group that brought the lawsuit, disputes the state’s estimate of economic effects with its own smaller estimate of $9 million per year. The group touts the court ruling, saying it is “likely the most important and impactful recovery action for the Southern Resident population since they were first identified as ‘endangered’ in the early 2000s (official statement).”

What’s at stake

The vast majority of the Chinook caught in the Southeast Alaska troll fishery originate in waters to the south, including the Fraser River in British Columbia and the Columbia River in Oregon and Washington. Puget Sound makes up a small fraction of the fish taken in that fishery, which involves catching fish on multiple hooked lines.

While killer whales are a major focus of the lawsuit, Wild Fish Conservancy also contends that closing the winter and summer troll fisheries in Alaska will bring more Chinook back to their spawning grounds, helping with recovery of depressed Chinook populations along the West Coast.

Timing of the court order complicates our understanding of the effects of halting this year’s summer troll fishery, if the ruling stands. Every year, a new estimate of total salmon abundance is used to establish allowable fishing quotas, divided into winter, spring and summer seasons. This year, the total quota is 149,100, as explained in an advisory announcement (PDF 129 kb). The overall harvest in Alaska and other areas must conform to provisions spelled out in the Pacific Salmon Treaty with Canada. (See fact sheet, PDF 816 kb, Governor’s Salmon Recovery Office.)

The winter season was over April 15. The spring season was exempted from the shutdown request, because most fish taken in that time period are from Alaska hatcheries. That leaves the summer fishery planned for July and August, with a potential fishery in September to complete the quota.

Dani Evenson, policy adviser with the Alaska Department of Fish and Game, said the summer quota won’t be known until after the spring season. Based on the best information to date, about 100,000 Chinook could be affected by the lawsuit this year. This is the number of fish that would not be caught by the troll fishery, thus allowing most to move south to British Columbia or into Washington and Oregon. Dani pointed out that the fish would then face a “gauntlet” of fisheries and predators.

What happens to the fish after that depends on their destination, according to Kyle Adicks, intergovernmental salmon manager for the Washington Department of Fish and Wildlife.

“We’re going to implement the (fishing) seasons as planned,” Kyle told me. “Most of the marine fisheries are quota-based, so if more fish are returning, it affects the timing of when the closure would happen.”

In other words, if Chinook show up in greater numbers, the quotas would be reached quicker than normal, so fishing areas would be closed sooner than would occur otherwise. That could mean more fish for spawning, although some changes in fisheries could be made to target hatchery Chinook closer to home.

While experts have some idea where the Chinook caught in Alaska come from, it isn’t clear when the fish that avoid being caught in July and August in Southeast Alaska might show up along the Washington coast or enter the Columbia River, Kyle noted.

Although every year is different in terms of fish production, Dani Evenson pointed me to a 2019 genetic study (PDF 3.2 mb) for a general “broad-scale” idea about the origins of Chinook caught during the Southeast Alaska summer troll fishery.

During July, the study showed that about 50 percent of the fish caught were from Canada, 42 percent were from Oregon and Washington, and 7 percent were from Alaska. On a finer scale, the largest contributions were 35 percent from the South Thompson River, a tributary of Canada’s Fraser River, followed by 18 percent from the Columbia River. About 70 percent of the summer harvest occurs during the July opener.

During August 2019, 65 percent of the Chinook caught were from Oregon and Washington, 31 percent were from Canada, and 3 percent were from Alaska. On a finer scale, 27 percent were from the Columbia River, with 17 percent each from South Thompson, Washington Coast and Oregon Coast. Chinook from Puget Sound were not significant in the summer troll fishery.

With significant variations from year to year, Chinook from the Columbia River often make up at least 20 percent of the total Southeast Alaska troll harvest, reaching 44 percent in 2014, 37 percent in 2015 and 39 percent in 2016. The endangered killer whales have been known to forage off the Washington and Oregon coasts, including marine areas near the Columbia River.

In March, the Alaska Legislature passed a formal resolution urging federal and state agencies to “defend the state’s fisheries, including the Southeast Alaska troll fishery.” The Legislature found that the fishing fleet is one of the largest in the state with about 1,450 fishers earning a direct income from the fishery. The resolution says the Alaska harvest is just a “small portion” of the salmon runs important to the killer whales, and it calls for state fisheries officials to work with Alaska’s congressional delegation to keep the fishery open.

Magistrate judge’s remedy

A “primary limiting factor” for recovery of the Southern Resident killer whales is a lack of prey abundance and availability, according to Magistrate Judge Peterson, relying on testimony from biologists about the weakened body condition of more than 20 percent of the orca population. After she ruled that the federal biological opinion failed to comply with environmental laws and fully mitigate for the risk to the Southern Resident orcas, she turned her attention to what should be done.

To determine if the federal fisheries permit — called an “incidental take statement” — should be revoked, the magistrate judge relied on three considerations, as established by higher courts: 1) the seriousness of the agency’s errors, 2) the environmental effects of vacating or leaving the permit in place, and 3) whether the agency could simply offer better reasoning and return to the same decision regarding fishing quotas.

As for seriousness, the court found that the orcas are at such a high risk of extinction that reliance on “uncertain and indefinite mitigation measures” to avoid further declines cannot be warranted without further analyses required by the National Environmental Policy Act.

As for “disruptive consequences,” the Endangered Species Act requires the courts to focus more on “environmental disruption” and prevention of species extinction than on “economic disruption,” said Peterson, who uses the abbreviation “SRKW” for Southern Resident killer whales.

“Though there is uncertainty as to how much prey would ultimately reach the SRKW,” she wrote, “the record before the court suggests that closure of the fisheries meaningfully improves prey available to the SRKW, as well as SRKW population stability and growth, under any scenario.”

Peterson said she does not take lightly the economic consequences of closing the fishery, but given the risk to the endangered whales, the economic damage does not outweigh the serious violations of law nor the court’s mandate to protect endangered species.

The third question she answered was whether the National Marine Fisheries Service could follow different procedures and rewrite the permit in a different way to allow the troll fishery to continue as allowed since 2019. That does not appear likely, she said.

“NMFS will need to explore, and may indeed require, additional or alternative mitigation measures to meet its ESA and NEPA obligations in a new BiOp,” she wrote, adding that the option of reducing salmon harvests must be considered, given questions about the hatchery mitigation program.

Ultimately, she concluded that closing the winter and summer troll fishery in Southeast Alaska is the proper remedy for violations she found in the permit allowing the fishery.

Hatchery mitigation program

Central to Wild Fish Conservancy’s legal arguments in this case was an effort to halt the hatchery mitigation program. The program was proposed to help killer whales by producing hatchery Chinook to offset fish taken in the Southeast Alaska fishery as well as fisheries in other areas. WFC argued that the environmental effects of hatcheries were ignored when issuing the fishing permit with requirements for hatchery production.

The hatchery program, as proposed, violates approved hatchery guidelines developed by scientists to protect and enhance wild salmon runs, according to WFC. To protect the genetic makeup of wild salmon, the guidelines prescribe limits on the percentage of hatchery-origin fish allowed to spawn in streams. In most areas where increased hatchery production is underway, these limits are already exceeded, thus putting Chinook at an even greater risk of extinction, WFC argued. The guidelines were developed by the Hatchery Scientific Review Group under purview of the federal government.

The magistrate judge agreed that the National Marine Fisheries Service, also called NOAA Fisheries, failed to adequately consider the effect of the hatchery mitigation program on wild Chinook and the potential repercussions for the killer whales. She ordered a new analysis with reconsideration of the mitigation measures, but she declined to block the increased hatchery production, which is well underway and already used to justify other sport and commercial fisheries along the West Coast.

“It is clear from the record, including WFC’s own experts, that the SRKW require a rapid increase in the abundance of Chinook salmon,” she wrote. “The whales do not distinguish between hatchery produced or wild fish. As such, a certain and definite increase in prey is available to the SRKW from the prey-increase program.”

A disruption to the prey-increase program or hatchery funding “thus appears primed to result in gaps in prey abundance that would lead to increased risk to the health of the SRKW and threaten any future operation of the program.”

In deciding whether to vacate the “take” permit, Peterson used the same three-pronged format — considering seriousness, environmental effect and outcome. She concluded that halting the hatchery mitigation would do more harm than good, pending a required rethinking of permitted actions.

“Therefore,” she concluded, “despite the seriousness of NMFS’s ESA and NEPA violations with regard to the prey-increase program, the disruptive consequences of vacatur of the prey-increase program would ultimately put the SRKW at further risk of extinction.”

Wild Fish Conservancy has appealed the mitigation portion of the ruling, which was included in Peterson’s recommendation adopted by Jones in the final order. The appeal is pending before the Ninth Circuit Court of Appeals.

Further considerations

On Monday, the state of Alaska asked Judge Jones in a legal motion to delay imposition of the fishing shutdown. If the judge doesn’t act by May 26, the state will file a similar motion with the Ninth Circuit Court of Appeals.

In a news release, the Alaska Department of Fish and Game said it could technically still open a troll fishery in state waters, but it would put the state and individual fishers at risk.

“Fishermen would be liable for any incidental take,” the release says. “Unlawful ‘take’ of a listed species is a federal felony violation with severe penalties. In short, without incidental take authorization, the troll fishery simply cannot occur.”

Alaska Gov. Mike Dunleavy emphasized that his government will continue to defend fishing opportunities for Alaska families. “The state will file an appeal of this unfavorable ruling and request a stay of implementation,” he said in the news release.

Doug Vincent-Lang, state commissioner for Fish and Game, added, “Alaska will not tolerate the suspension of its fisheries while other West Coast fisheries equally or more impactful to killer whales and dependent upon the same hatchery mitigation actions but not the target of this lawsuit, are allowed to proceed.

“If this decision sticks,” he added, “we will be looking at having all fisheries that affect these killer whales being treated equally under the law.”

Alaska Attorney General Treg Taylor called the fishery closure a “radical step” and vowed to pursue every legal option.

“We understand the critical importance of this fishery to the affected fishermen and communities across the Southeast,” he said in a separate news release.

A statement by Wild Fish Conservancy celebrates the legal victory while expressing sympathy for the Alaskan fishers and placing blame on the federal government.

“We want to emphasize that Alaskan fishers are not at fault for NOAA’s chronic mismanagement of this fishery, and we are sincerely sympathetic to the burden this decision will pose to Southeast Alaskan communities,” the statement says. “The fault lies with government fisheries managers for consistently approving unsustainable harvest plans that have failed fishers, wild salmon and Southern Resident killer whales.”

The statement says decades of mismanagement has also harmed native people and coastal communities in British Columbia, Washington and Oregon “whose local Chinook are being harvested far from home,” causing people to sacrifice their own cultural, social and economic relationships with wild salmon.

Wild Fish Conservancy says it has been raising awareness about the plight of orcas and salmon since the Southern Residents were first listed as endangered in 2005, when nine species of West Coast Chinook were already on the Endangered Species List.

“Nearly two decades later, with little progress made and both species continuing to decline toward extinction, we knew we had no choice left but to take legal action to hold the government accountable for putting commercial harvest ahead of its duty to protect and restore threatened and endangered species,” says the WFC statement.