NOAA says revised analysis could allow Southeast king salmon troll fishing, despite ruling

a group of fishermen
NOAA Fisheries Alaska Region administrator Jon Kurland (left) speaks to Southeast Alaska trollers during a June 7, 2023 meeting of the North Pacific Fisheries Management Council in Sitka. (Robert Woolsey/KCAW)

The National Marine Fisheries Service hasn’t ruled out the possibility of opening the summer troll season for king salmon in Southeast Alaska, despite a federal judge’s recent ruling to the contrary.

The service’s Alaska regional administrator, Jon Kurland, told a roomful of trollers during a June 7 meeting in Sitka that the agency was working hard to correct the problems identified in the federal lawsuit. The Wild Fish Conservancy in Washington state sued to stop the Southeast Alaska troll season, seeking to protect endangered Southern Resident killer whales’ food sources.

If successful, Southeast trollers might be able to harvest king salmon this summer – if not on the traditional date of July 1, then possibly in August.

To get a feel for the impact of the Wild Fish Conservancy lawsuit on Southeast trollers, try sitting in a room filled with them: Grizzled oldsters, seasoned men and women hardened by life on the ocean, well-known fisheries advocates,  young families, and a baby or two.

Kurland says that despite his lengthy title at NMFS, an arm of the National Oceanic and Atmospheric Administration, he is a neighbor and he gets it.

“So first off, I know that there’s been just a huge amount of concern about the implications of this suit and the potential for the troll fishery not to be able to open,” Kurland told the room. “I live in Juneau, I have a sense of how important this fishery is for Southeast Alaska for a lot of small businesses, a lot of families, a lot of communities. It’s a big deal.”

The Wild Fish Conservancy sued NMFS in 2020, arguing that the service had violated the Endangered Species Act by failing to fully account for the impact of Southeast trolling on Southern Resident whales.

The Conservancy won, and a judge ordered Southeast Alaska king salmon trolling shut down until the problem could be remedied. And it’s just commercial trolling for chinook in Southeast Alaska – no other commercial or sport fishery anywhere from Alaska to California is affected.

Listen to the full audio of Jon Kurland’s update to trollers, Wednesday, June 7 2023, in Sitka.

It’s a baffling strategy, and Kurland is as surprised as anyone that the suit got this far.

“We were all sort of incredulous that this suit is focusing on Southeast Alaska fisheries, when there are a lot bigger threats that Southern Resident killer whales are facing then what’s happening in these fisheries,” Kurland said. “The Southeast Alaska fisheries are a really small contributor to the challenges that Southern Resident killer whales face in their recovery. But anyway, it is what it is.” 

Kurland explained the nuts and bolts of the lawsuit, which were already known to many in the standing-room only crowd in Sitka’s Harrigan Centennial Hall: How it stemmed from a 2019 biological opinion prepared by NMFS, and the associated incidental take statement required to conduct a fishery that could affect an endangered species.

He then took questions – some tough questions. Deborah Lyons, the Alaska Trollers Association’s representative to the Pacific Salmon Treaty, wondered how NMFS could be outflanked by a nonprofit conservation organization on a question of environmental policy.

“So when I look at what happened in Washington, NMFS, who are the experts on fisheries, issued an opinion that said: The Southeast fishery – yes – take some threatened salmon and take some salmon that are prey of an endangered whale,” Lyons said. “But in the opinion of the National Marine Fisheries Service, it was not a significant threat to any of those species. And yet (the Wild Fish Conservancy) was allowed to appeal to a judge and provide hand-selected bits of data that the judge found more compelling than the opinion of the agency –  the federal agency – that’s supposed to render these decisions. Now, how does that happen?”

Kurland responded that the Endangered Species Act has a provision that allows any citizen to bring suit, and that’s what the Conservancy did.

Although NMFS has appealed to the U.S. Ninth Circuit Court of Appeals and asked for a decision in June, it’s unlikely that the court would act so fast.

Instead, Kurland – without giving away too much legal strategy – said NMFS had one trump card it could play.

“So the agency has the authority under the Endangered Species Act to issue a new biological opinion and a new incidental take statement,” Kurland said. “It could be reviewed by the court, the court doesn’t need to approve it upfront. But it’s certainly possible that the plaintiffs will take issue with whatever we put out, and will ask the court to review it. But there is no no implicit requirement or explicit requirement for the court to approve it before it takes effect.”

This prompted troller Robert Bateman to drill down.

“It’s my understanding that once the (incidental take statement) and the new (biological opinion) has been written, and correct me if I’m wrong, you can basically put that in effect straight away?” Bateman asked. “Now, if that didn’t happen before July 1, could we maybe go fishing in August still?”

“So your question is, if we are not able to get the new ITS coverage in place by July 1, but we get it in later, could there be an opening later in the season?” Kurland paraphrased. “Yes.”

Kurland was joined at the meeting by an attorney from the U.S. Department of Justice, which is representing the fisheries service. Kurland explained that the the DOJ steps in anytime someone sues the government.

“I get sued all the time,” Kurland said.

Robert Woolsey is the news director at KCAW in Sitka.

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