Here’s a thought experiment: Four populations of chinook salmon — all nominally protected by the Endangered Species Act (ESA), all potentially edible by sea mammals that are more endangered than they are — swim into the waters of a jurisdiction far from those in which they were spawned. Fishing boats from that jurisdiction deliberately catch them, a practice that earns millions of dollars.
If this jurisdiction were a foreign country, how do you suppose the U.S. government would respond? Right. We’d be upset. But in real life, that jurisdiction isn’t a foreign country. It’s the state of Alaska. It’s where trollers in Southeast Alaska catch chinook salmon from threatened populations spawned in and around Puget Sound, the Snake River, the upper Willamette, the lower Columbia.
An estimated 97 percent of the Chinook caught by that Alaskan fishery spawn outside Alaska. Many of those fish might normally nourish the Southern Resident Killer Whales (SRKWs) – our Puget Sound orcas. These orcas have been listed as endangered since 2005 and are generally thought to be starving.
So what has the federal government done? It has tried to give the Alaskan fishery legal cover.
The National Marine Fisheries Service (NMFS), which has the duty to preserve and restore listed marine populations, delegates management authority to the state of Alaska, but NMFS still has to okay the effects on listed species. In a 2019 Biological Opinion (BiOp), NMFS acknowledged that the Alaskan fishery would have an impact on the orcas’ food supply but approved the “incidental take” of listed species anyway. NMFS argued that this wouldn’t really jeopardize the orcas’ survival or recovery because extra chinook, produced at – unspecified and unfunded – hatcheries, would take up the slack.
This gambit hasn’t worked. And so the Duvall-based Wild Fish Conservancy (WFC), has sued and has been winning in federal court. In 2021, U.S Magistrate Judge Michelle Peterson said in a report and recommendation that NMFS had violated the ESA, the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA.) Last year, U.S, District Judge Richard Jones followed her recommendation in a ruling granting summary judgment to WFC.
Now, Judge Peterson says that the 2019 BiOp (1) should “be remanded to NMFS to remedy the ESA and NEPA violations previously found by this Court, and (2) portions of the . . . BiOp that authorize ‘take’ of SRKW and Chinook salmon resulting from commercial harvests of Chinook salmon during the winter and summer seasons (excluding the spring season) of the troll fisheries [should] be vacated.” In other words, shut it down.
Judge Richard Jones will have the final say, too. But if he follows Peterson’s recommendation again, he will strip away the legal rationale for allowing most of Southeast Alaska’s chinook troll fishery, which also means effectively shutting that fishery down.
During the remedy hearing before Judge Peterson, WFC attorney Brian Knutsen said, “[NMFS’ parent agency] NOAA could not [legally] approve the harvests under the standards of the Endangered Species Act. That’s a finding that NOAA has not challenged here.”
So how could the feds have come out with such an egregiously flawed opinion? It’s easy to be cynical. “[T]he goal within both [NMFS and the U.S. Fish and Wildlife Service (FWS)] is to always produce a no-jeopardy opinion,” Craig Johnson, who once led FWS’ endangered species division and then served as national interagency consultation coordinator for NMFS, told Andrew S. Lewis for an article in The New York Times Magazine. Johnson explained that “[a]gency doctrine is: If you write a jeopardy opinion, you have put your career at risk; you put the agency at risk.”
Captive federal agency aside, the root of the problem is that when those chinook exit from the Sound, the Snake, the upper Willamette River, and the lower Columbia, they turn right, and their northward course takes them to Alaska. As do chinook populations from British Columbia. All their paths lead to Alaska, where the commercial trollers await.
Those fish populations are all protected by their home governments. And they all provide food for Puget Sound orcas. No one disputes that the troll fishery takes listed salmon, or that the salmon are – or would be – food for the listed orcas. Again, the big question arises: How has this been allowed to happen?
Here’s another explanation. The real root of the problem isn’t biological but legal. WFC executive director Emma Helverson points a finger at the Pacific Salmon Treaty, which basically divvies up the coastal salmon catch between the United States and Canada. It’s not an environmental treaty, since orcas do not get a share of the fish. The politics arguably gives an incentive to do the wrong thing. As Helverson sees it, “the party who can over-harvest someone else’s share the most has the most leverage.” All in all, she says, “the Pacific Salmon Treaty is broken.”
As for the economic effect of closing the Alaska fishery, WFC says the summer and winter chinook fisheries bring in only about $9.5 million. Opponents point to the fishery’s multiplier effect on local economies and say the valued is roughly three times as much. Ultimately, there’s no doubt that shutting down the fishery would hit some fishers in the wallet. Helverson argues that the government should take some of the money it spends and plans to spend on hatcheries and use that money to cushion the economic shock instead.
From a strictly legal standpoint, the economics aren’t relevant. “[I]t’s not a balancing test,” Judge Peterson said at the hearing. “It’s not like the Court says, what’s the economic harm to the communities in Southeast Alaska versus what’s the harm to the endangered species? The endangered species controls.”
But if you’re the state of Alaska and you see the trollers as constituents, it may be hard to take that detached view of the economics. The state and the Alaska Trollers Association have intervened in the case. “Southeast Alaska chinook salmon treaty fisheries under attack,” screamed the headline of an Alaska Department of Fish and Game press release. The state of Alaska does a pretty good job of managing its fisheries, WFC’s Helverson says, but those chinook aren’t Alaskan fish.
The troll fishery doesn’t just leave Puget Sound orcas with fewer fish to eat. It also leaves them with smaller fish. Size matters. People assume that orcas prefer chinook to salmon of other species because chinook grow larger. If you have to expend roughly as much energy catching a big chinook as you do a smaller salmon – and one chinook equals anywhere from two to half a dozen smaller fish – then catching the bigger one will be a much more efficient use of energy. Orcas evolved to eat really big fish.
In the mid-1970s, Helverson says, the average chinook weighed 75 pounds, but now the average is more like 10. A century ago, Helverson says, the average chinook weighed more than 20 pounds, but now the average is more like 10. So while the decline in chinook numbers obviously matters, the decline in size matters, too.
It also matters to the human imagination. When the Elwha dams came down, a lot of people were captivated by the prospect of seeing those 100-pound chinook that once spawned upstream. Fish have indeed come back to the upper river, but the really big ones? Don’t hold your breath. It takes years for a Chinook to reach that size. If fishers target it in a mixed-stock fishery every year it spends in the ocean, sooner or later, it won’t live long enough to get really big. This is another consequence of the Southeast Alaska fishery – and of other mixed-stock fisheries, too.
All in all, a decision to basically shut the Southeast Alaska chinook troll fishery down would be a big deal. But it might not be final since a decision either way will probably be appealed. And Congress could get involved. The $1.7-trillion federal spending legislation passed at the end of December included a provision to postpone for six years new regulations that would limit Maine lobster fishing in order to protect endangered North Atlantic right whales, which can get entangled in the ropes that fasten lobster pots to buoys. Maine’s whole congressional delegation lobbied this provision into the spending bill. If the Southeast chinook troll fishery gets shut down, Alaska’s delegation may try something similar (although the odds of getting a bi-partisan agreement currently look pretty slim.) But for the time being, the ball is – literally – in Judge Jones’ court.
It has seemed obvious for years that with orcas’ Puget Sound population estimate down to 73, we’ve reached the time to put up or shut up. So far, we’ve done neither. This case provides an opportunity to actually take a significant step forward toward saving critters we claim to care about. So far, federal agencies haven’t taken that risky step on their own. Maybe the court will finally give them the necessary shove.