The U.S. Ninth Circuit Court of Appeals has handed a victory to the Alaska Trollers Association (ATA) by reversing a lower court’s ruling that found commercial chinook salmon fishing in Southeast Alaska endangered southern resident killer whales.
In May 2023, at the bequest of the environmental nonprofit Wild Fish Conservancy, a U.S. federal judge ruled the National Marine Fisheries Service (NMFS) must remake its management plan for king salmon, finding NFMS did not adequately analyze the fishery’s impact on the southern resident killer whale population in the U.S. state of Washington.
The ATA, a group representing commercial fishermen in Southeast Alaska, appealed to the Ninth Circuit, hoping to win back the legal underpinning for its summer fishing season, which took place each of the past two years following the issuance of an emergency stay, though the August season this year was canceled due to overharvesting issues. On Friday, 16 August, in an unpublished opinion, the court ruled partially in ATA’s favor, finding U.S. District Court Judge Richard Jones had erred in his judgment removing its fishery’s so-called take statement authorization.
Specifically, the court found Jones should not have vacated the authorization – an NMFS-issued document that permits commercial troll harvests of Chinook under the U.S. Endangered Species Act.
“The district court erred by ignoring that the agency’s errors, although serious, were unlikely to affect the substance of the decision adopted on remand,” it said.
The court said that despite evidence, by ending Chinook salmon fishing would lead to only minor benefits for the killer whale population Jones incorrectly worked to “tip the scale” in their favor with his judgment and did not adequately take into account the “severe disruptive consequences” of his decision.
“Even the Conservancy’s experts conceded that vacating the take statement would lead to millions of dollars of losses for Alaskan fishermen and their communities. The district court, however, glossed over these significant economic consequences, as well as the downstream social and cultural harms to fishing villages and Alaska Natives,” it said.
Jones should have waited for NMFS to fix its errors in a new biological opinion, expected to be issued by 1 December 2024, the Ninth Circuit found.
“The court disregarded the likelihood that the take statement would be supported by better reasoning, and readopted, on remand,” it said.
“In light of the agency’s representation that any delay is beyond the realm of imagination, this court expects the NMFS to adhere to its deadline,” it said.
The ruling means Jones will be left to look at the issue again after NMFS releases the updated document.
In a statement, the ATA celebrated the Ninth Circuit’s ruling.
“We are thankful that the 9th Circuit had the wisdom to overturn the lower court’s decision and trolling can continue in Southeast,” ATA said. “The lower court’s decision would have been disastrous for the many small Southeast communities that have long history of harvesting king salmon throughout our waters. ATA is also thankful to the many individuals and businesses and communities that contributed to our legal fund. We have heard that our input was very helpful in illustrating the potential harms to our entire region.”
Separately, the Wild Fish Conservancy is seeking to have Alaska Chinook salmon listed as threatened or endangered under the U.S. Endangered Species Act, which would give them additional protection from commercial fishing.
