Judge blasts ‘mitigation’ that would imperil both orca and salmon

SEATTLE (CN) — A federal judge has rejected the National Marine Fisheries Service's "mitigation" for allowing continued "maximum" commercial harvests of the endangered Chinook salmon the imperiled Southern Resident killer whales need to survive — among the mitigations, that the agency will figure out better mitigations before the orcas go extinct.

U.S. District Judge Richard Jones accepted a magistrate judge's recommendation for summary judgment in a lawsuit filed by Wild Fish Conservancy in 2020. The recommendation revealed the National Oceanic and Atmospheric Administration's fisheries agency violated the Endangered Species Act and the National Environmental Policy Act by authorizing commercial salmon harvest at levels that are pushing protected wild Chinook salmon and Puget Sound orcas to extinction.

The Washington-based nonprofit challenged the authorization of the Southeast Alaska Chinook troll fishery, which the agency approved based on vague plans to fund production of 20 million young salmon annually to increase prey for the orcas by 4 to 5%. But the agency had no plans for where to get the young fish, who would release them and where, the age of the fish at release, the juvenile-to-adult return ratio, how many fish would be needed for future broods and whether all of this would be enough to sustain the orca in the long term.

In September 2021, U.S. Magistrate Judge Michelle Peterson called the agency's admittedly vague plans out in her 40-page recommendation for summary judgment in the nonprofit's favor.

"In considering National Marine Fisheries Service's proposed mitigation to provide funding to four Puget Sound conservation hatcheries, NMFS notes it cannot confirm additional fish will be produced by the funding," she wrote, using the acronym for the fisheries service. "Tellingly, NMFS fails to specify how the funds will be spent, how many additional fish could be produced, where fish would be released, or when, where, or how many salmon could be made available to Southern resident killer whales or to aid recovery of Chinook salmon. NMFS failed to describe, in detail, how funding these four conservation hatcheries would mitigate harvest impacts or provide 'deadlines or otherwise enforceable obligations' to guide the proposed mitigation as required under the Endangered Species Act."

Peterson also found the fisheries service violated the National Environmental Policy Act by signing off on a rudderless prey increase program without conducting any environmental reviews. Because the program amounted to a new action and was to be funded entirely with federal money, environmental impact statements or environmental assessments were required, Peterson, a Donald Trump appointee, said.

She also rejected the state of Alaska's request for dismissal under the Magnuson-Stevens Act, which the state argued bars the Conservancy's challenge of actions related to the delegation of management authority to the state. While the act can be used to defend against some challenges, Peterson found the Conservancy wasn't actually challenging the delegation of management to Alaska and its injuries are not related to said delegation.

At the time of Peterson's recommendation, the Conservancy reported only 73 orcas remain in the Puget Sound area. Reduced prey availability is the primary cause of the whale’s decline, the nonprofit said.

Southern Resident killer whales live in the sea near Seattle, in three extended, matrilineal families called pods. Their numbers never fully rebounded after aquariums that later became SeaWorld captured a third of them in the late 1960s.

Unlike transient killer whales, which roam larger areas and eat marine mammals, resident whales eat only fish — mostly Chinook salmon. Scientists say a lack of prey is the main factor causing the whales’ decline, and nine species of Pacific Northwest Chinook are listed as either threatened or endangered.

Many of the Chinook salmon travel thousands of miles in their years at sea, before returning to the rivers and streams of their birth to spawn. In southeast Alaska, 97% of the Chinook salmon caught by fishermen were born elsewhere. The fish they take never make it back to their home waters, where they could have been dinner for the Southern Resident killer whales.

In his order accepting the recommendation, Judge Jones — a George W. Bush appointee — said Peterson will submit an additional report with appropriate remedies for the violations of defendants, which include NOAA, the fisheries service and the U.S. Department of Commerce. The Alaska Trollers Association and the state of Alaska are defendant-intervenors in the case.

A spokesperson from NOAA declined to comment for this story.

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