Backgrounder: The court case over the Southeast Alaskan Troll fishery on Chinook salmon
Wild Fish Conservancy v. Quan et al.
In 2020, the non-profit Wild Fish Conservancy (WFC) filed a lawsuit in the U.S. District Court that challenged the 2019 Biological Opinion developed by NOAA fisheries. Wild Fish Conservancy alleged NOAA fisheries violated the Endangered Species Act (ESA) and National Environmental Policy Act (NEPA) when it permitted Chinook harvest in the Alaskan troll fishery that affected endangered Southern Resident killer whales and threatened Chinook salmon. Analysis has shown that Chinook harvest in SEAK fishery reduces prey for Southern Residents and ultimately jeopardizes their likelihood of recovery
On August 8, 2022, the district court ruled that NOAA Fisheries did violate both the ESA and NEPA.
With respect to the ESA, the court determined that the “prey increase program” (particularly the increased production of Puget Sound hatchery Chinook) used by NOAA Fisheries to justify the impacts associated with the harvest of Chinook in Alaska, lacked details, obligations, and certainty regarding the production of Chinook. The court also determined that NOAA failed to evaluate the effectiveness of the prey increase program on ESA-listed Chinook salmon.
With respect to NEPA, the court concluded the proper analysis was not conducted when NOAA Fisheries issued an ‘incidental take statement’ that exempted ESA-listed species (Chinook and killer whales) from being considered in the Southeast Alaska Chinook fishery. The court also concluded that NOAA failed to conduct adequate analysis on the prey increase program (particularly Puget Sound hatchery production) as adequate mitigation to compensate for the impact of the fishery on ESA listed species.
The court remanded that the NOAA address its deficiencies regarding the ESA and NEPA. As such, NOAA began its consultation on the “Incidental Take Statement” in the fall of 2023. “Take” means harm or death to the species of concern from the fishery, and “Incidental” means that harming or killing the species is the consequence of the fishery, and not its intention.
In May of 2023, the State of Alaska, the Alaska Trollers Association, and NOAA fisheries appealed the 9th circuit court’s decision to ‘vacate’ the operation of the troll fishery while NOAA fisheries corrected the flaws in its ESA and NEPA conclusion. The appellate judges concluded that the economic stakes were too high to halt a regional fishery without the certainty that Southern Resident killer whales would benefit. Hence, the troll fishery proceeded in 2023, and will proceed in 2024 while NOAA conducts its analysis.
In November 2023, WFC and NGO partners, including Raincoast, submitted scoping comments on the preparation of an “Incidental Take Statement.” We argued that NMFS must consider all the ways that the SEAK troll fishery can harm not just endangered Southern Residents, but also endangered Chinook salmon from the Pacific northwest.
In December 2023, the Raincoast Conservation Foundation, along with six other Canadian NGOs, submitted an amicus brief to the U.S. 9th circuit court (PDF). Raincoast et al. argue that the Puget Sound hatchery program – used as a “remedy” for the harvest of 100,000 or so Chinook in the Southeast Alaska troll fishery – does little to offset the food problem for Southern Residents.
In January 2024, NOAA released two draft Environmental Impact statements (EIS). One is the Environmental Impact Statement on the hatchery focussed “prey increase program” in Puget Sound. The second is the Environmental Impact statement regarding the “Incidental Take Statement” under the Endangered Species Act. These documents are available for comment until March 11, 2024.
Once these documents are completed by NOAA fisheries and submitted to the court (likely late 2024), the 9th circuit court will make a decision on whether NOAA’s proposed remedy meets the ESA and the NEPA requirements, and how to proceed on the matter of harvesting Chinook salmon in the Southeast Alaska troll fishery.
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