Celebrating a Landmark Legal Victory for Southern Resident Killer Whales and Wild Chinook Recovery

Celebrating a Landmark Legal Victory for Southern Resident Killer Whales and Wild Chinook Recovery

On August 8th, the Honorable Richard A. Jones, U.S. District Judge issued a stunning summary judgement in favor of Wild Fish Conservancy’s lawsuit challenging the federal agency NOAA Fisheries for authorizing Southeast Alaska’s commercial troll harvest at levels NOAA acknowledges are pushing Southern Resident killer whales and wild Chinook closer to extinction. Despite this acknowledgment, NOAA authorized the fishery to continue citing speculative mitigation the agency claimed would offset this ongoing harm.

This landmark Court decision overwhelmingly agreed NOAA violated the law by improperly relying on uncertain future mitigation measures in the form of hatchery production that lack specificity, are not enforceable, and ultimately are not reasonably certain to occur. In short, NOAA was unable to justify legally and scientifically that the mitigation would actually work, while we know with certainty that the fishery is contributing to the decline of the Southern Resident orcas and wild Chinook they depend on.

Specifically, the Court found NOAA violated the Endangered Species Act (ESA) by relying on the supposed benefits to the whales from increasing hatchery production, without fully evaluating the harm those same hatchery increases will cause to wild Chinook. NOAA recognizes hatcheries and associated impacts as one of the top four factors contributing to the decline of wild salmon, along with overharvest, habitat loss, and hydroelectric dams. The Court also found NOAA violated the National Environmental Policy Act (NEPA) in part by implementing the increased hatchery production without any NEPA procedures, which would include opportunities for public input and an evaluation of alternatives, such as reductions in harvest.

The purple region shows the Southeast Alaska Chinook troll fishery. The fishery occurs outside the normal range of the Southern Residents and within a salmon nursery, a food rich environment where immature wild salmon migrate to feed and grow before returning to spawning grounds. Harvesting in the nursery reduces the size, fecundity (reproductive rate), and diversity of wild Chinook and makes it impossible for resource managers to protect threatened and endangered salmon populations that need to recover.

The findings of the Court are expected to come as a surprise to many in the public. Despite overwhelming scientific evidence, the impacts of harvest on Southern Resident orca survival and wild Chinook recovery have largely been played down or ignored in policy, by seafood certifiers, and in the media.

For example, many people are surprised to learn that only 3% of all Chinook harvested in the Southeast Alaska Chinook troll fishery originate from Alaskan rivers. The majority 97% originate from rivers throughout British Columbia, Washington, and Oregon, with over half of those fish originating from the Columbia River and its tributaries, including the Snake River. If given the opportunity, these Chinook will migrate back down the coast serving as the primary prey for the Southern Residents as the Chinook pass through the whale’s key forage areas. Instead, these Chinook are being harvested outside of the range of the whales, regardless of their status under the ESA, and at levels that federal fishery managers acknowledge are unsustainable for the long-term survival and reproductive success of both wild Chinook and the Southern Resident population.

Dr. Deborah Giles, the Science and Research Director of Wild Orca, who filed a declaration in the lawsuit further explains:

“This is unbelievable news, yet so long in coming. Most fish caught in the Southeast Alaska Chinook fishery are from home rivers in the Southern Resident killer whales’ critical habitat—areas designated by NOAA Fisheries as essential to their survival. The government’s own research has shown that Chinook from Washington State rivers are vital prey in winter, and yet they have permitted these fish to be caught when they’re feeding in Alaska, depriving the whales of the vital nutrition needed to sustain healthy pregnancies and grow this population.”

To add to the public’s confusion, all Chinook caught in Southeast Alaska’s troll fishery are certified by both U.S. major seafood certifiers as a ‘sustainable’ choice and will go on to be marketed as ‘wild-caught Alaskan Chinook’, when in fact majority of the Chinook harvested originate from Oregon, Washington, and British Columbia and many are from ESA-listed populations. The Court’s decision finding the fishery’s management plan is illegal demonstrates the degree to which these flawed certifications have misled well-intentioned consumers into paying premium prices for products they were led to believe are sustainable.

Adding more public confusion still were the results of Governor Inslee’s Orca Task Force, responsible for developing recommendations for a recovery strategy to reverse the decline and restore the Southern Residents killer whales. Even though the Task Force’s primary objective was to increase prey availability for starving orcas, they ultimately chose to ignore the politically complex issue of harvest despite harvest reductions being the most obvious and expedient emergency measures to immediately increase prey availability. One of the sole recommendations addressing harvest actually recommended Washington state support funding and implementation of the Pacific Salmon Treaty’s Southeast Alaska troll fishery management plan that the Court ruled this week violated our most fundamental environmental laws.

Scientists have identified lack of large and abundant Chinook salmon as the primary cause of the decline of the Southern Resident killer whale population. Photo by: Conrad Gowell

The Court’s decision is an enormous victory expected to lead to reductions in overharvest and far more wild Chinook returning to rebuild in rivers throughout the coast. Reducing harvest on the whale’s primary prey is the only scientifically proven recovery action moving forward that promises immediate access to Chinook for these starving whales. At the same time, science clearly demonstrates allowing more wild Chinook to reach spawning grounds provides the greatest chance of restoring the larger, more diverse, and more fecund life histories of wild Chinook the whales evolved to eat and which are fundamental for their long-term recovery.

This legal victory will not only directly benefit the recovery of Southern Resident killer whales and wild Chinook from British Columbia to Oregon, but it also shines a light on the urgent need to address the coast-wide failure of harvest management strategies, including the chronic, systemic failure of the Pacific Salmon Treaty to sustainably and equitably manage wild salmon. The Southeast Alaska Chinook troll fishery is just one fishery managed under this international agreement between the U.S. and Canada intended to “divide up the pie” of salmon stocks that occupy both US and British Columbia waters.

In their latest analysis of the fishery, NOAA admitted that the parties to the Treaty could not agree to reduce harvest to levels that would not contribute to the further decline of Southern Residents and wild Chinook. As a result, NOAA proposed the flawed mitigation at issue in our case they hoped could avoid an Endangered Species Act violation while allowing the fishery to continue.

The alarming decline of the Southern Resident killer whale population led to their listing under the U.S. Endangered Species Act in 2007 and Canada’s Species at Risk Act in 2001, yet the most recent version of the Treaty between the two countries doesn’t mention the Southern Resident killer whales or their needs once in over 147 pages. More bluntly put, the whales receive zero allocation of the available Chinook managed by the Treaty. This is just one of the major flaws associated with increasing hatchery production as a strategy for feeding killer whales. Under the current Treaty, if Chinook abundance increases so will the harvest allocations in commercial fisheries, while killer whales will still be promised zero fish.

It’s important to emphasize that Alaskan fishers who follow the rules are not to blame. The fault lies with government fisheries managers for consistently approving unsustainable harvest plans that have failed fishers, wild salmon, and orcas for decades. While it’s important to consider the potential impact of the Court’s decision on Alaskan fishers, it’s also important to recognize the chronic, decade-long cascading impacts of the Southeast Alaska troll fishery on other commercial, Tribal, and First Nation fisheries in British Columbia, Washington, and Oregon whose fish are being harvested far from home regardless of their rivers of origin or ESA-listed status. These communities are forced to disproportionately shoulder the burden of wild salmon and orca recovery, which includes sacrificing their own cultural, social, and economic relationship with wild salmon.

“While our entire region has been searching for a solution to this extinction crisis, federal fishery managers and our region’s representatives to the Pacific Salmon Treaty have been approving harvest at levels they acknowledge are pushing orcas and wild Chinook closer to extinction.

What’s worse, the only solution they’re willing to consider to solve this problem is producing more hatchery fish which will further harm wild Chinook recovery and which these managers are well aware will largely be absorbed by commercial fisheries under a management paradigm that offers zero allocation to orcas.”

Kurt Beardslee, Wild Fish Conservancy Co-founder and Director of Special Projects

The Court’s decision is an enormous victory that is already being celebrated by communities throughout the Pacific Coast. Proving the merits of our case against the federal government, the State of Alaska, and the Alaska Trollers Association was a true David and Goliath accomplishment.

Southern Resident killer whales and wild Chinook are fundamental to the cultural and biological fabric of the Pacific Northwest. Since 2007, when the Southern Residents were first listed, Wild Fish Conservancy has spent thousands of hours working to raise awareness of the role overharvest has played in both species decline and seeking every possible avenue to educate and advocate for decision-makers to take action to address this urgent problem. Over a decade later, with little progress made and both species continuing to decline toward extinction, we knew we had no choice left but to take legal action to hold the government accountable for putting commercial harvest ahead of its duty to protect and restore threatened and endangered species.

As this legal case moves forward to remedy, we look forward to presenting science-based solutions that will meet the prey needs of the Southern Resident killer whales and wild Chinook recovery.

We are entirely grateful to our staff and attorneys at Kampmeier & Knutsen, PLLC and Corr Cronin, LLP who devoted endless time and energy over the past two years and whose expertise led to this enormous legal victory.

We also want to thank geneticist Dr. Gorden Luikart, conservation scientist Dr. Robert E. Lacy and killer whale scientist Dr. Deborah Giles for providing expert declarations that were invaluable to successfully arguing this case, and to Bill McMillan and Pete Soverel for supporting standing. We also want to thank economists Shannon Davis and Hans Radtke for their technical expertise.

Last but not least, we want to thank you and our entire community of members and supporters. This landmark accomplishment is just one example of what your support makes possible. We hope you’ll consider making a donation today to support our continued work protecting and restoring the Northwest’s ecosystems and the diverse species that depend on them.

Header Photo: Southern Resident Killer Whale J19 “Sachi” leaping in Puget Sound, August 2022 (Wild Orca, Taken under NMFS permit # 26288, wildorca.org)

Further Reading:

Share This