Emma Helverson, executive director of the Duvall-based Wild Fish Conservancy (WFC), says that a May 2 U.S District Court decision looks like the best thing that has happened to Southern Resident Killer Whales – aka Puget Sound orcas — in the nearly half-century since people stopped trapping them for display at Sea World and other marine parks. Helverson was talking about U.S. District Judge Richard Jones’ recent decision that may shut down southeast Alaska’s summer and winter commercial troll fishery for chinook salmon.
It does seem like an important moment – albeit less aha! than duh! The killer whales in Puget Sound are starving. We say we want to save them. But we keep literally eating their lunch.
Meanwhile, only 3 percent of the chinook salmon caught in that southeast Alaskan troll fishery actually come from Alaska. The rest come from Washington, Oregon, and British Columbia. All are potential food for Puget Sound orcas, which have been listed as endangered.
But in 2019, the National Marine Fisheries Service (NMFS) issued a biological opinion (BiOp) that let the Alaskan fishery continue. The document acknowledged the impact on listed salmon and potentially on orcas but claimed that investments in hatcheries would mitigate the impact. The agency okayed the “incidental take” of those listed species of salmon. (Hey, we’ve got it covered; relax – eat your salmon. )
WFC sued, claiming the BiOp violated the Endangered Species Act, the National Environmental Policy Act, and the Administrative Procedure Act. Last year, basing his decision on lengthy recommendations by federal magistrate judge Michelle Peterson, Jones agreed. He awarded WFC summary judgment against NMFS, its parent Department of Commerce, and the State of Alaska and Alaska Trollers’ Association, which had intervened on behalf of the feds.
Having decided that the BiOp violated federal law, the next question was what to do about it. Again following Peterson’s recommendations, Judge Jones decided to remand the BiOp to NMFS so that it can come up with something that doesn’t violate federal law; and vacate – i.e., trash – the approval of “incidental take.”
Alaskan politicians were — predictably – less enthused than Helverson about Jones’ decision. “Outrageous,” Senator Dan Sullivan called it. His Senate colleague, Lisa Murkowski, opined that “this lawsuit should have been dismissed months ago.”
Statistically the decision doesn’t increase salmon for orcas all that much. Biologically, a lot. How can both things be true? Here’s how: WFC cited declarations by Robert Lacy, who lectures in University of Chicago’s graduate-level Committee on Evolutionary Biology. Lacy estimated that shutting down Southeast Alaska’s offshore summer and winter chinook troll fishery would increase the orcas’ food supply by about 5 percent. Not a large number — but Lacy said that small gain would be enough to stabilize the orcas’ population. Their number wouldn’t increase without additional help, but it would stop shrinking. The orcas would still have a long way to go, but they’d no longer be circling the drain.
Alaskan politicians presumably don’t buy that. What do they envision? Will a higher court ignore the extensive recommendations that Jones followed? Will a federal agency try to spin the same facts in a way that produces a different result? Will Congress pass a law that forces NMFS to leave the fishery alone? (Congress has recently done something similar, temporarily preventing NMFS from closing an area in the Atlantic to lobster fishing in order to keep endangered right whales from getting entangled in the lines that attach submerged lobster pots to buoys.)
It’s so easy to be cynical, so hard not to be. But — without disparaging the scientists and officials who are doing or trying to do good work – it’s not merely cynical to recall that the agency itself (a political entity) has a history with Southern Resident Killer Whales that doesn’t inspire confidence. NOAA tried to avoid listing the orcas, then tried to list them as threatened, rather than endangered, eventually listing them as endangered only because federal courts forced it to.
Don’t blame the fishermen. NOAA advised that continuing the Alaskan fishery wouldn’t reduce the survival chances of threatened chinook runs or endangered killer whales. Marine stewardship organizations also said the fishery was sustainable. They were lying, but people could be excused for taking their “expert” statements at face value. Now, there’s really no excuse.
Helverson thinks the feds should pay people for not fishing – rather than investing millions more in hatcheries, which aren’t likely to solve the problems. (Of course, commercial fishing can contribute to community culture, as well as income, and government subsidies can’t preserve that.)
Helverson and her predecessor, WFC co-founder Kurt Beardslee, point out that the Pacific Salmon Treaty between the United States and Canada, which governs salmon fishing in the Northwest, has never made a place for orcas. Instead, it has divided the catch among humans. Beardslee says that orcas should be guaranteed a share of their own. Judge Jones has taken a step toward giving them one.