By SHANNON HAUGLAND
Sentinel Staff Writer
The Alaska Congressional delegation on Monday filed an amicus brief in the federal lawsuit Wild Fish Conservancy vs. Scott Rumsey et. al., which poses a threat to the Southeast king salmon troll fishery.
The State of Alaska and the Alaska Trollers Association have previously filed briefs on behalf of Rumsey, who is the acting regional administrator for the National Oceanic and Atmospheric Administration Fisheries, for the West Coast.
Sen. Dan Sullivan, Sen. Lisa Murkowski, both Republicans, and Rep. Mary Peltola, a Democrat, say in the introduction to their amicus brief that they “share a bipartisan interest in ensuring that the nation meets its (Pacific Salmon) treaty obligations and protects and promotes the Pacific Ocean’s shared environmental resources in a fair and responsible manner that does not needlessly disrupt regional fisheries.”
ATA board president Matt Donohoe said he was pleased to see the delegation follow up on their promise in recent months to file an amicus brief in support of the Southeast fishermen.
“Their involvement will help elevate this to a national level,” Donohoe said.
“We’re grateful to the congressional delegation,” said Jeff Farvour, a fellow ATA board member and fisherman. “It shows just how powerful the support is, all the way from the federal to the state level, and how wrong the WFC is.”
Filed in 2020, the lawsuit by the nonprofit WFC is aimed at protecting the southern resident killer whales, which spend part of the year in Puget Sound. It specifically seeks to invalidate the 2019 National Marine Fisheries Service biological opinion’s Incidental Take Statement for the salmon troll fishery, and to stop the prey increase program in the Columbia River and Puget Sound salmon hatcheries.
A federal magistrate judge issued a report and recommendation in December 2022 that the analysis governing the Washington state prey increase program was flawed under federal law and that the Incidental Take Statement governing the troll fishery was therefore legally deficient.
The report and recommendation was given to U.S. District Court Judge Richard Jones, in January of this year, for a final decision.
The nine-page amicus brief filed on Monday by the Alaska delegation concludes by asking the court to “remand without vacating or enjoining the prey increase program or vacating the ITS for the Southeast Alaska salmon troll fishery.” The “prey increase program” refers to one of the objectives of the Northwest fish hatcheries, which is to increase the numbers of king salmon as prey for killer whales.
The delegation says both the ITS and salmon hatchery operations under the Pacific Salmon Treaty are components “vital to the success of the Treaty’s negotiated approach to management.”
“The Treaty works to balance the interests of fisheries, protected species, and the rights and obligations of impacted states, countries, and tribes,” the delegation said. “The mitigation actions, including the prey increase program, are part of an interdependent management scheme that works to balance and achieve the Treaty’s objectives.”
Further, the brief says, the remedy being proposed “would undermine the objectives of the Treaty and will devastate the troll fishing communities of Southeast Alaska.”
The two arguments of the amicus brief are that:
1. The court should not vacate the prey increase program.
The argument is that the goal of the prey increase program is to provide a 4 to 5 percent increase in prey availability. They say that Congress funds the program with the understanding that it will allow king salmon fisheries to continue. Discontinuing hatchery work would reverse progress and endanger wildlife, and hatcheries may have to release juveniles early and without the tags, which allow for monitoring and managing genetic risk.
“This makes them less likely to survive and serve as a food source for southern resident killer whales, and potentially poses a greater risk to endangered species of Chinook salmon,” the delegation says. “Based on these potential impacts, the R&R correctly finds that vacating or enjoining the program would put the SRKWs at increased risk.”
2. The court should reject the magistrate judge’s recommendation to vacate the Incidental Take Statement for the Southeast salmon troll fishery.
The delegation argues that vacating the ITS misapplies the legal standards for vacating an ITS and “fails to consider the Treaty’s role in managing the complex web of competing interests and fishery management challenges at issue.”
The brief said if there were an error in the ITS the most appropriate action is to “remand without vacatur or vacatur held in abeyance pending resolution of any identified errors on remand.” In determining whether to vacate the ITS the court would weigh the seriousness of the National Marine Fisheries Service errors against the disruptive consequences of an interim change. When granting relief the court generally should pay particular regard for public consequences, the brief says.
“Contrary to the R&R, the Treaty, not the National Marine Fisheries Service, sets SEAK Chinook salmon harvest limits, and one of the Treaty’s guiding principles is avoiding undue disruptions to fisheries,” the brief says. “Yet when considering the potential environmental harms that might arise from leaving the ITS in place the magistrate judge relied on incorrect calculations and failed to balance or even mention the mitigating benefits of the prey increase program.”
The harm that would be caused would outweigh any deficiency in the ITS, the delegation says, estimating a $29 million annual loss from the cancellation of the Chinook troll fishery alone, plus the loss of hundreds of jobs.
The brief said the court could alternatively remand and “hold any vacatur in abeyance to avoid disruptive consequences.”
“Given this authority and the significant harm that would result in the vacatur of the ITS this court should remand without vacatur or order that any vacatur be held abeyance pending resolution of any remaining errors on remand.”
ATA has received financial donations for legal costs from communities, fishing organizations, processors, businesses and individuals throughout Southeast, plus resolutions of support from municipal governments, Southeast Conference, the Alaska State Legislature and nonprofit organizations.
Donohoe said ATA was pleased to receive a letter of support Wednesday from Southeast Alaska Conservation Council, a Juneau-based conservation nonprofit with membership from throughout the region.
“We’re hoping to get the environmental facts out to the public, which have been fed a stream of bogus PR,“ he said.
