Fishing in Southeast Alaska by the commercial troll-fishing fleet will not be cancelled this year, as ordered by a Seattle judge, thanks to a last-minute ruling by the U.S. Ninth Circuit Court of Appeals.
Considerations for the economic damage that would be caused by shutting down the Alaskan fishery outweigh the “speculative environmental threats” that led the lower court to effectively close the fishery, according to the appeals court order. The heart of the legal battle — how fishing for Chinook salmon affects the endangered Southern Resident orcas — remains in play.
News that the fishery, which targets Chinook, will go forward on July 1, as scheduled, was widely celebrated among troll fishers and residents of Southeast Alaska.
“This has been an extremely challenging time for all of us,” said Amy Daugherty, executive director of the Alaska Trollers Association, in a written statement. “But thankfully, with the state’s help and the tribes’ recent declarations and our (congressional) delegation, we have alerted the court to the disastrous consequences of a summer in SE without trolling.”
Emma Halverson, executive director of Wild Fish Conservancy, which brought the lawsuit, said she was “in shock and disheartened” to learn that fishing would continue unchanged following a three-year court battle to protect the killer whales, which she argues will now be at a greater risk of extinction.
Chinook salmon are the primary prey of the endangered whales, and lack of food has been shown to be one of the major threats to the population. Although numbers are disputed, a large majority of the Chinook caught in Southeast Alaska return to streams in Washington and Oregon as well as British Columbia, where the whales primarily reside.
U.S. District Judge Richard Jones ruled that the National Marine Fisheries Service, which oversees the Endangered Species Act, had issued a faulty “incidental take statement” used to certify that fishing at proposed levels would not put the killer whales at risk of extinction. Conditions of approval required mitigation measures, including a hatchery program to increase the number of Chinook available to the whales. See Our Water Ways, May 11.
In his order (PDF 137 kb), Jones followed the recommendations (PDF 6453 kb) of U.S. Magistrate Judge Michelle Peterson, who said NMFS failed to show that the hatchery program would be implemented successfully and on schedule to benefit the whales. As a result, the extinction risks determined by the agency were not reliable, she said, and the agency must rewrite a biological opinion used to support the incidental take statement.
Under the law, she added, the “overriding federal policy objective” is to prevent a species from going extinct, so protecting endangered species must be given priority over economic considerations. Without the findings of the appellate court, her recommendations, as supported by the district judge, would have halted the troll fishery until the federal government completes a new risk analysis.
In the order issued Wednesday (PDF, 218 kb), the appeals court came up with a different conclusion for the fate of troll fishers this year, pending a full hearing about the merits of the case. Factors in deciding whether to issue a temporary stay include which side is likely to prevail in the end, the extent of injury to the various parties with or without a stay, and where the public interest lies.
“A flawed agency rule does not need to be vacated upon remand and instead may be left in place when equity demands,” the court stated in its order. “Here, the moving parties have established a sufficient likelihood of demonstrating on appeal that the certain and substantial impacts of the district court’s vacatur on the Alaskan salmon fishing industry outweigh the speculative environmental threats posed by remanding without vacatur.”
The economic value of the commercial troll fishery remains in dispute. Wild Fish Conservancy says a cancellation of the fishery would have a financial cost of $9.5 million annually, which could be offset with government financial relief, but the defendants place the costs at $29 million, all according to Peterson’s findings.
Halverson of Wild Fish Conservancy said the appeals court seems to be taking the view that economics trumps endangered species protections, and that’s contrary to how the law is supposed to work. She said Magistrate Judge Peterson considered the various arguments for three years before making her final recommendation, yet the appeals court acted quickly within three months to overturn those findings and ensure that unfavorable conditions will remain in place for the endangered whales, at least for this year.
The next step, Halverson said, is to get all the facts of the case before the appeals court. The scientific evidence is extensive, she said, and it isn’t clear that the appeals court judges have been able to thoroughly weigh all the arguments.
“At the end of the day, I think we can find solutions to protect the economic interests and to bring back the killer whales, because extinction is forever,” she said. “This is definitely a huge setback, but we have been working hard on this for 20 years, and we are not going to let this stop us.”
The state of Alaska and the Alaska Trollers Association joined the case early in support of the National Marine Fisheries Service, also known as NOAA Fisheries.
A newcomer to the case — joining the appeal after the district court ruling — were organizations representing indigenous peoples in Alaska, including the Central Council of Tlingit & Haida Indian Tribes of Alaska and 15 fifteen other federally recognized tribes in Southeast Alaska.
“The district court greatly discounted the severe economic impacts of its decision and failed to consider the devastating cultural and economic impact this closure will have on indigenous communities,” states an amicus (“friend-of-the-court”) brief (PDF 176 kb) filed jointly by those groups. “Southeast Alaska’s indigenous communities face irreparable injury if the stay is not granted.”
Nearly 600 trolling permits are held by tribal citizens, who make up about one-third of all the trollers, the brief says. “Trolling is one of the few industries that offers well-paying jobs in remote Southeast Alaska, jobs which enable tribal citizens … to practice their traditional ways of life.”
The sudden intervention by tribes and tribal representatives was a new wrinkle in the case.
“That may have been critical. I’m choked up. Really grateful,” Matt Donohoe, president of the Alaska Trollers Association told Nathaniel Herz in his newsletter Northern Journal.
The brief expressing the tribal perspective built upon arguments already made by the Alaska Trollers Association.
“For many individual fishers in Southeast Alaska, trolling is a way of life — one that has been passed down for generations,” states a brief filed by the association. “Closing just one year of the summer and winter seasons of the SEAK troll fishery will upend the lives of hundreds of trollers in Southeast Alaska.
“The trollers have sacrificed a great deal in the name of conservation; their harvest limits have been significantly reduced over the last two iterations of the Pacific Salmon Treaty,” the brief continues. “Unlike those reductions, this litigation and the district court’s vacatur of the ITS present insurmountable risks of irreparable harm to the trollers.”
Trollers do their fishing from boats with hooks and lines, catching one fish at a time. The state of Alaska had asked the appeals court to issue its stay of the lower court ruling by today (June 23) so that fishers have time to get their gear ready for fishing on July 1.
Another issue in dispute is whether the federal government met its obligations under the Endangered Species Act to analyze the environmental effects of the Chinook hatchery program. The district court found that NMFS violated procedural requirements but allowed the hatchery program to remain in place, saying it will ultimately benefit the whales. But the Wild Fish Conservancy continues to argue that hatchery fish will harm wild Chinook populations — and ultimately killer whales — and should be stopped. The appeals court supported the decision to continue the hatchery program pending further review.
The National Marine Fisheries Service has said in agency briefings that the analyses required by the district court should be completed by November 2024. Given that date, further action by the appeals court could change the court-ordered demands placed upon the agency or even alter next summer’s troll fishing seasons.