Judge faults federal plan to protect orcas from Southeast Alaska salmon harvests

SEATTLE — A U.S. District Court judge in Seattle has found the National Marine Fisheries Service has failed to ensure that Southeast Alaska salmon harvests not harm protected Pacific Northwest chinook and endangered southern killer whales that prey upon them.

The Monday ruling came in a brief summary judgment from U.S. District Court Judge Richard Jones. It is a significant victory for the Washington-based Wild Fish Conservancy, which argued that the National Marine Fisheries Service approved a flawed plan to compensate for the harvest by increasing hatchery release of chinook.

“We applaud Judge Jones’ ruling that is finally calling into question decades of unsustainable Chinook harvest management in Southeast Alaska,” said Emma Helverson, Wild Fish Conservancy executive director, who in a statement called the decision a “watershed moment” for efforts to recover southern resident orcas and wild chinook.

The southern resident killer whales are an endangered community native to the Pacific Northwest that consists of 73 members across three pods: J, K and L, which have struggled amid a decline in wild chinook populations that are a key part of their diet. Some whale advocates have long looked with concern to Southeast Alaska harvests of the salmon.

It is still uncertain what the judge’s ruling will mean for Southeast Alaska fisheries catching salmon that would eventually head south to British Columbia or the Pacific Northwest to spawn.

Litigants in the case, which include the state of Alaska and the National Marine Fisheries Service, are expected to brief U.S. Magistrate Court Judge Michelle Peterson on how to respond to the ruling.

One option, which likely will be sought by the state of Alaska, would allow the fishery to continue while the National Marine Fisheries Service develops a new plan for ensuring the harvests would comply with the federal Endangered Species Act and National Environmental Policy Act.

In what the Alaska Department of Fish and Game called in a statement “a worst-case scenario,” the harvest, which is managed by the state of Alaska, would shut down until that new plan could be drafted and gain court approval.

“We disagree with the ruling and are considering an appeal,” said Doug Vincent-Lang, commissioner of Alaska’s Department of Fish and Game. “We have a responsibility to look out for our fisheries and families that rely on them.”

The National Marine Fisheries Service declined to comment Wednesday, citing pending litigation.

The Alaska harvest is set by negotiations that take place between the United States and Canada under the Pacific Salmon Treaty. For 2022, the treaty allocation is 266,000 fish in the 12-month period that ends Sept. 30, with most of that going to commercial trollers who hook fish. Other quotas go to seine, gillnets, recreational and subsistence fisheries, according to a statement from the Alaska Department of Fish and Game.

Since 2006, the population of the southern resident killer whales has generally declined and not shown signs of recovery. The consistently low availability of chinook is one of the factors cited by the federal scientists as inhibiting the whales’ recovery.

The National Marine Fisheries Service, in approving the Southeast Alaska harvest in a 443-page document, found that the fishery would likely have adverse impact to some Columbia Basin and Puget Sound chinook runs, as well as the southern resident killer whales to the point of putting them in jeopardy — a legal term that denotes a threshold that cannot legally be crossed.

To compensate for the losses to the Southeast Alaska harvests, the National Marine Fisheries Service proposed funding for salmon hatcheries that would produce a 4% to 5% increase in chinook.

One example of that effort was an $11 million 2020 grant to the Washington State Recreation and Conservation Office. That money included funding for eight Puget Sound and Hood Canal restoration projects and three hatchery-focused projects, according to a statement from the office.

But Judge Peterson, in a 2021 report, found that the National Marine Fisheries Service failed to create a binding plan that would be subject to deadlines and enforceable obligations.

Peterson also found fault with the National Marine Fisheries Service using hatcheries to try to boost populations without a complete evaluation of how these fish might harm wild populations.

The Wild Fish Conservancy and other conservation groups have also had concerns about chinook fisheries off the Northwest. As a result of litigation, the Pacific Fishery Management Council developed new protections for nontribal commercial chinook salmon fishing in years when the estimated population falls below 966,000 fish, according to Helverson of the Wild Fish Conservancy.

If the federal court decision sticks, Alaska will be looking for chinook fisheries outside of Alaska to do more, Vincent-Lang said in a statement.