Daily Sitka Sentinel

Trollers Want Court To Recognize Experts

By SHANNON HAUGLAND

Sentinel Staff Writer

The attorney for the Alaska Trollers Association filed an objection Tuesday in the lawsuit filed by an environmental organization against the National Marine Fisheries Service.

ATA and the state of Alaska are intervenors on the side of NMFS in the lawsuit filed by the Wild Fish Conservancy. The lawsuit is aimed at protecting southern resident killer whales, which historically have spent part of the year in Puget Sound.

The defendant listed in the lawsuit is Barry Thom, regional administrator of the National Marine Fisheries Service.

The lawsuit seeks to invalidate the 2019 biological opinion that delegated management authority for king salmon from the federal government to the state of Alaska. WFC is trying to halt the production of Chinook salmon by Columbia River hatcheries that were intended to increase prey availability to the southern resident killer whales, and invalidate the Incidental Take Statement that makes the fish available to the Southeast Alaska troll fishery.

ATA’s 14-page objection was filed in U.S. District Court in Seattle Tuesday by attorney Douglas Steding of Northwest Resource Law.

The objection says that in their lawsuit the WFC “exploited flaws in environmental analysis performed by the federal government in a quest to decimate that generational way of life of thousands of Alaskans.”

In a news release sent out today, ATA clarified their points of objection.

ATA said the federal magistrate judge hearing the case improperly concluded that the declarations of two Southeast Alaska fishery and economics experts were not admissible, and the court erroneously accepted WFC’s request to strike information they provided.

“Such testimony is critical to the Court’s understanding of the troller’s predicament and should be admitted under the liberal standards that govern this type of testimony,” ATA said. The trolling group requested that the judge consider the dismissed declarations in its evaluation of ATA’s objections. 

ATA also said the Report and Recommendation “illogically and inequitably” concluded that the Incidental Take Statement should be vacated.

“The Magistrate’s recommendations contradict NMFS’ conclusion that the ITS would not ‘appreciably reduce the likelihood of both survival and recovery of Southern Resident killer whales or destroy or adversely modify their designated critical habitat,’” ATA said. “ATA argues that the Report and Recommendation also fails to explain why the mitigating measures currently in place are insufficient despite the conclusions in the Biological Opinion that state otherwise.”

The filing concludes with a request for the court to adopt an equitable remedy for mistakes made by NMFS, and  “decline to vacate the ITS and continue to allow the trollers in Southeast Alaska to fish.”

“Any impacts of allowing the ITS to continue to authorize the trollers to fish will be mitigated by the prey increase program,” Steding said. “The economic consequences of the proposed remedy, however, will be dire to Southeast Alaska.”

ATA is objecting to the Report and Recommendations issued in September 2021 by federal magistrate judge Michelle Peterson, which found that the analysis governing the Columbia River prey increase program was flawed under federal law, and the ITS governing the Southeast Alaska troll fishery was therefore legally deficient.

A copy of the objection was forwarded to the Sentinel Wednesday.

In Sitka, the City and Borough Assembly heard a request from the Alaska Trollers Association Tuesday for a $25,000 contribution to the ATA’s legal expenses as intervenors. The Assembly was receptive to the request, and will consider an appropriation ordinance at the Jan. 24 and Feb. 14 Assembly meetings.

Other communities, groups and individuals have contributed to the legal expense fund, responding to what Assembly members called an “existential threat” to troll fishermen and other gear groups. 

A number of trollers added their voices to the arguments at Tuesday’s regular Assembly meeting, saying the the magistrate judge’s ruling was in error and would have a devastating effect not only on the fishing industry, but the entire Sitka economy,

ATA board president Matt Donohoe said the organization’s position is that very few Puget Sound Chinook were caught by the Southeast Alaska troll fleet out of the hundreds of thousands caught elsewhere, and the Southeast harvest is not a threat to the survival of the Southern Resident killer whales.

Donohoe told the Assembly that the last decade has seen the largest king returns on record since the dams were built on Northwest salmon rivers.

“Who would believe that these killer whales are starving because a small artisan fishery 1,000 miles away was catching (a few hundred) Puget Sound kings?” he said. “Wouldn’t they consider a sport fishery catching 84,000 in Washington, the Strait of Juan de Fuca, was more of a problem?”

Fisherman Jeff Farvour told the Assembly that the $25,000 requested from the city would be a good investment for the local economy. He said not only is fishing a mainstay of the local economy but is the largest private sector employer in the state. The local troll fleet is the second largest fleet in Alaska and the largest in Southeast, with about one-third of the troll fleet based in Sitka.

“Commercial salmon trolling is the only year-round (fishery) in Sitka that sustains year-round employment,” Farvour said. “Including trolling, processing and all related multiplayer effects, the troll fleet has a total economic impact in Sitka of approximately $34 million annually and $85 million for the whole of Southeast annually, as measured in terms of total output.”

Linda Behnken, executive director of the Alaska Longline Fishermen’s Association, said the group’s membership includes other gear groups as well.

“What’s particularly frustrating to me with the lawsuit is its complete ignoring of the science that does indicate, that not only is it not our fisheries, (and) not fisheries, that are a problem for the whales – it’s toxins,” Behnken said. “They’re one of the most highly polluted whales, marine mammals, on the planet. Their load of industrial toxins is high. Everything they eat is coming out of waters that are polluted. They’re struggling with habitat issues. They’re struggling with what’s been done in the world around them.”

She said fishermen in Southeast have worked for years to keep resources here healthy, keep rivers clean, and take care of the whole ecosystem.

“To now have this overreach by an area that’s not done their job to take care of that habitat, I think really illustrates who else will be at risk if this lawsuit perseveres,” Behnken said.

ATA and ALFA co-authored a white paper, and a short two-page summary was included in the packet for Tuesday’s Assembly meeting.

An ordinance to appropriate $25,000 for the ATA legal fund will be on the Assembly agenda for first reading Jan. 24. Sponsors are Thor Christianson and Kevin Mosher.