In its Wednesday ruling (6-21-23) the Ninth Circuit Court of Appeals disagreed with a lower court’s decision to “vacate” the authorization for the Southeast king salmon troll fishery until the National Marine Fisheries Service corrected flaws in its environmental analysis. In the five-page order granting the motion for a stay, the appellate judges concluded that the stakes were too high to halt a regional fishery without the certainty that Southern Resident Killer Whales would benefit: “Here, the moving parties (NMFS, Alaska, and Southeast trollers) have established a sufficient likelihood of demonstrating on appeal that the certain and substantial impacts of the district court’s vacature on the Alaskan salmon fishing industry outweigh the speculative environmental threats posed by remanding without vacature.” In the photo, researchers from the National Marine Fisheries Service check on Southern Resident Killer Whales near the San Juan Islands. (NMFS)

Southeast Alaska trollers will now have a summer season for king salmon after all. The US Ninth Circuit Court of Appeals this morning (on Wednesday 6-21-23) ordered a stay of an earlier lower court ruling that would have closed the fishery indefinitely.

Alaska Trollers Association president Matt Donohoe was parked in his car when the email came through. He is rarely at a loss for words, but this news left him feeling elated, and for a moment, speechless.

“I’m over the moon,” said Donohoe. “But I’m so in shock and shaky that, you know, just emotionally that you know,  I don’t know what to think… I mean, I do know what to think, it’s great news.”

Back in May, the US District Court of Western Washington had ruled in favor of an environmental group seeking to halt commercial trolling for king salmon in Southeast. The Wild Fish Conservancy argued that the National Marine Fisheries Service had failed to comply with the Endangered Species Act in allowing the fishery, and that a population of about 72 Southern Resident Killer Whales were suffering as a result.

The lower court vacated the language authorizing trolling, effectively blocking the season which begins on July 1.

The National Marine Fisheries Service, the State of Alaska, and the troller’s association asked the 9th Circuit Court of Appeals for a stay of that ruling – no later than June 23. That the decision came two days early was almost as surprising as the outcome.

“We were fairly certain that we were going to have a decision on the motion of the stay,” Donohoe said. “But what that decision was going to be, we didn’t know.”

A call to the Wild Fish Conservancy has not been returned yet.

Hundreds of pages of motions have been filed in the federal courts since the Wild Fish Conservancy first gave notice that it intended to sue the National Marine Fisheries Service in January, 2020.

The 9th Circuit’s stay order, however, is only five pages and among the most concise legal language of the entire case, stating “A flawed agency rule does not need to be vacated on remand, and instead may be left in place when equity demands.” This is legalese for “don’t throw out the baby with the bathwater.” 

Having the National Marine Fisheries Service fix its language has been the crux of this case since it was filed, rather than identifying any specific harm from a relatively small fishery on the welfare of killer whales 800 miles away. It just took three years for the courts to spell it out.

“That language has been there right  in front of us all along,” said Deborah Lyons, who represents commercial fisheries on the Northern Panel of the Pacific Salmon Commission.

“That just because the ruling (NOAA’s 2019 BiOp) was flawed doesn’t mean the fishery absolutely must be closed,” she added, “although that has been like typical court procedure, that the permit has to go away if the document is flawed. But  it clearly left room to make an argument that you know, if there are extenuating circumstances, you don’t just close a fishery reflexively.”

Those “extenuating circumstances” involve a 40-percent loss in income for the roughly 800 permit holders who would put out their hooks on July 1. The total harvest for commercial trollers this season is 149,000 kings – not a large take compared to other Alaska salmon fisheries like Bristol Bay sockeye – but the kings are incredibly valuable, and central to the Southeast Alaska identity and lifestyle for over a century.

Lyons believes salmon trollers – who are sometimes confused with trawlers, an altogether different kind of industry – were slow to tell this story.

“I think a lot of people just assumed ‘Well, you’re guilty. You’re catching fish the whales need. You should go out of work,’” said Lyons. “You know it was that simple. And in people’s minds, they did not understand the tiny amount of fish that we were catching, the amount of scrutiny we’re under, and we made not a great case defending ourselves on that front.”

There was consistent support for trollers across the region as the case progressed. Alaska’s Congressional Delegation weighed in with an amicus brief, and just last week, so did Central Council of Tlingit and Haida Indian Tribes of Alaska. “They’re our first line,” said Lyons, “that’s our food source in rural communities.”

Alaska Department of Fish & Game Commissioner Doug Vincent-Lang had praise for the state Department of Law, but he also believes that it took a group effort to win the stay. 

“I’m incredibly proud of the coalition that gathered together to get people in line and supportive of the appeal,” said Vincent-Lang, “and I’m certainly happy the 9th Circuit Court of Appeals agreed with us.”

Winning the stay doesn’t necessarily mean winning the appeal (although there’s language that suggests the appellants have a good case). There is still much work to be done, both at the agency level, and in the courts.

In the meantime, Vincent-Lang says trollers can return to their work.

“We will open the fishery on July 1,” he said.