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Court Ruling on Endangered Killer Whales Could Force a Rewrite of Federal Fisheries Policy by Robert Woolsey KTOO, August 18, 2022

The Wild Fish Conservancy says 97% of king salmon harvested by Southeast Alaska trollers
don't originate in Alaska, depriving southern resident killer whales of their primary food source.

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 it published research on the harvest of king salmon in Southeast Alaska that failed to address its impact on a small population of killer whales in Puget Sound.

In a summary judgment granted to the Washington-based Wild Fish Conservancy, U.S. District Court Judge Richard A. Jones on Aug. 8 ordered that an "appropriate remedy" be found, that -- while it could limit commercial trolling for chinook in Southeast -- will more likely result in a rewrite of the biological opinion that led to the problem.

"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.

The Wild Fish Conservancy filed suit against the National Marine Fisheries Service in March of 2020, arguing that the government failed to adequately address the impact of Alaskan king salmon harvests on southern resident killer whales, whose population has dropped to critically low levels.

Read the plaintiff's motion for summary judgment.

The Alaska Department of Fish and Game puts the share of out-of-state chinook in the Alaska harvest much lower -- 30-80%, depending on the year.

Matt Donohoe, president of the Alaska Trollers Association, says few if any of those are from Puget Sound, where southern resident killer whales spend several months each year.

"The Alaska technical committee (of the Pacific Salmon Commission) says that less than 2% of the king salmon we catch are from Puget Sound," he said. "That's fish nerd speak for none. Less than 2% is unmeasurable. So we don't catch Puget Sound king salmon -- the whole thing's absurd."

The trollers' association 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 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.

"They're from Southeast Alaska, British Columbia, Washington, Oregon, and Idaho," Donohoe said. "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."

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 that threats to killer whales can't be reduced to just 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."

In a news release issued the day after the ruling, Alaska Department of Fish and 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 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.

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."

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.