A federal judge has denied the state of Alaska’s request for a stay of an order that could close down the Southeast king salmon troll fishery this summer and winter. The last option to open the fishery this season is another appeal.
After the judge’s ruling last Friday, the state immediately filed a request with the 9th U.S. Circuit Court of Appeals for a stay that would — if granted — allow trollers to work while the National Marine Fisheries Service attempts to better justify the fishery, as required by the judge’s May 2 order.
“The state is requesting a decision by June 23 so that the fishermen can gear up for the summer season, which starts on July 1,” the Alaska Department of Fish and Game wrote in its appeal to the 9th Circuit.
Unless a stay is granted on appeal, “this (May 2) order has the practical effect of closing the directed summer and winter chinook troll fisheries until a new incidental take statement is in place,” the department wrote.
NMFS wrote last week that it would be fall 2024 before it could prepare a new biological opinion required to issue a new incidental take permit — which might overcome the judge’s objections.
In denying the state’s request for a stay, U.S. District Court Judge Richard Jones last Friday affirmed his May 2 ruling that vacates the incidental take statement crafted by NMFS four years ago. That 2019 agency action allowed the Southeast Alaska troll fishery to operate despite its impact on the endangered southern resident killer whales of Puget Sound and British Columbia.
Jones ruled that NMFS failed to fully address how the Southeast troll fishery could harm species listed under the Endangered Species Act, including the killer whales and some chinook stocks that originate in Washington and Oregon and migrate through Alaska waters.
The Wild Fish Conservancy, a Seattle-based organization, had sued federal fisheries managers over the 2019 NMFS biological opinion, which includes an incidental take statement giving the troll fishery a green light despite its potential impacts on the endangered species.
The lawsuit alleges that the troll fishery deprives the killer whales of an essential food source, threatening their survival.
Jones’ May 2 order upheld a December 2022 recommendation by a federal magistrate judge to require NMFS to vacate and redo its biological opinion allowing the take of king salmon by the Southeast Alaska troll fleet.
The lawsuit does not threaten any other commercial gear group or recreational fishery that intercepts migratory chinook.
Jones on May 2 ordered NMFS to publish a new biological opinion that fully addresses the troll fishery’s impacts on the endangered species.
The state and the Alaska Trollers Association had joined the lawsuit to defend the NMFS position.
The state argued that the court erred in not considering the consequences of a potential shutdown on communities dependent on fishing. The state also said any increases in chinook returns to Puget Sound will not immediately benefit the southern resident killer whales.
Jones said the court undertook an extensive analysis of the economic consequences and did not take those economic consequences lightly. “Ultimately, the court concluded those consequences did not overcome the seriousness of National Marine Fisheries Service’s violations … the harm posed to the SRKW (southern resident killer whales) by leaving the incidental take statement in place, and the court’s mandate to protect the endangered species,” he said.
“Accordingly, the court finds that Alaska will not succeed on the merits,” the judge wrote in denying the state’s request for a stay. “Alaska has also failed to show the other factors warrant a stay.”
Separate from the state’s action, the U.S. Department of Justice, on behalf of NMFS, also filed a notice of appeal of the May 2 court decision.
Matt Donohoe, board president of the Alaska Trollers Association, said in Sitka last week that he is pleased to see the federal government weigh in on the issue. “I think it’s a good thing,” Donohoe said. “We certainly hope the court grants a stay of the order that would allow us to fish king salmon July 1.”
Shannon Haugland of the Sitka Sentinel contributed to the reporting for this story.
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