A new appeal has been filed in a fisheries case rooted in the alleged impact of the Southeast Alaska commercial salmon troll fishery on endangered Southern Resident killer whales (SRKW) in Puget Sound.
The Alaska Trollers Association (ATA) on Monday asked the U.S. District Court for Western Washington to deny a plea from the Wild Fish Conservancy (WFC) in Seattle to end an already funded prey increase program intended to provide more salmon to the endangered killer whales. The WFC continued litigation to halt the commercial salmon troll fishery, contending that halting that fishery would provide more fish in Puget Sound for then endangered whales.
The WFC argues in its motion that “any risk of adverse impacts to SRKW from vacatur of the prey increase program has been largely negated by the court’s partial vactur of the incidental take statement (ITS) authorizing the commercial harvest of Chinook salmon-the activities that necessitated the mitigation in the first place.”
The case is rooted in management of Chinook salmon stocks under the 2019 Pacific Salmon Treaty with Canada, a 10-year agreement that establishes upper harvest limits for salmon in Alaska and other areas of the West Coast. The treaty also commits the U.S. federal government to provide funds for habitat restoration while increasing Chinook releases from hatcheries, including a prey increase program to boost food to killer whales over a five-year period.
A court ruling issued last August found that the National Marine Fisheries Service (NMFS) had violated the Endangered Species Act and the National Environmental Policy Act in approving salmon harvests in the Southeast Alaska salmon troll fishery, with that fishery harvesting Chinook salmon originating in streams as far south as the Columbia River, including some from Puget Sound.
Then U.S. Magistrate Judge Michelle Peterson in Seattle found that NMFS could not rely simply on any planned mitigation programs for the fishery to go on. Peterson ruled that to offset adverse effects on the SRKW that the mitigation had to be subject to obligations that could be enforced to avoid undue delays in being implemented.
The ATA contends that the prey increase program was intended to provide more to the endangered whales than just continued reductions of catch allocations under the latest version of the Pacific Salmon Treaty in 2019. The ATA said in vacating the ITS and maintaining the prey increase program, the court erred in its equitable analysis under the vacatur standards, just not how WFC alleges. As harvest numbers from the commercial troll fisheries and other released data demonstrate, the benefits of the prey increase program outweigh impacts to the endangered orcas from two seasons of the commercial troll fishery, the ATA contends. To avoid destroying a way of life and a regional economy in Southeast Alaska, that incidental take statement should not have been vacated, the ATA said.
The ATA also noted that the WFC’s own expert had identified that just stopping the Southeast Alaska commercial troll fishery would not improve the Southern Resident killer whale population, that it would only maintain the status quo with no growth over the next 100 years.
The Puget Sound Institute at the University of Washington noted in an article last November that the WFC is seeking to shut down the Southeast Alaska commercial salmon troll fisheries because the federal government failed to adequately consider effects of those fisheries on the endangered whales.
The Puget Sound Institute article also noted that the issues are further complicated by the fact that Puget Sound Chinook and other Chinook stocks have declined so severely that they themselves are on the Endangered Species List, joining the critically endangered orcas. Threatened Chinook stocks are also found in the Lower Columbia, Upper Snake and Upper Willamette rivers.
