In closely watched oral arguments on Thursday, a three-judge panel of the 9th U.S. Circuit Court of Appeals indicated that it is unlikely to grant an environmental group’s petition for an order that could halt — at least temporarily — a valuable Southeast Alaska king salmon fishery.
In May 2023, a judge in the U.S. District Court covering western Washington issued an order stating that federal officials were allowing Alaska fishermen to harvest king salmon at rates that harmed an endangered population of killer whales in Puget Sound.
That order could have halted Southeast Alaska’s troll king salmon fishery, critical for residents in the region, but the 9th Circuit stayed the lower court’s ruling, putting it on hold.
The Washington-based Wild Fish Conservancy, which brought the initial lawsuit, is seeking to lift the hold and thus stop the fishery.
The state of Alaska, the Alaska Trollers Association and a coalition of environmental, tribal and other groups are all seeking to keep the hold in place, as is the National Marine Fisheries Service, the lead defendant.
As legal matters proceed, the federal government is rewriting the fisheries rules that were the subject of the lawsuit, and a new version of the rules is expected by November.
Attorney Thekla Hansen-Young, representing the National Marine Fisheries in court on Thursday, said that “it is undisputed that whales are not going to go extinct in the next four months. … On the other side, if the stay were to be lifted, that would irreparably harm Southeast Alaska communities because there would be considerable uncertainty about how they could continue to fish.”
Judges Milan Smith, Mark Bennett and Anthony Johnson appeared sympathetic to that line of thought and skeptical of the idea that they should lift the hold before the new rules are released.
Speaking to attorney Brian Knutsen of the Wild Fish Conservancy, Bennett said documents submitted to the court indicate “a lot of uncertainty” about whether whales will be helped by a halt to fishing.
Meanwhile, “closing some of the fisheries is absolutely going to cause harm to inhabitants of Alaska and their various subsistence and cultural practices,” he said.
“I find it very difficult to come out on your side, given the uncertainty about the numbers, but convince me why I should be less troubled,” Bennett told Knutsen.
Knutsen responded that there’s also “a significant amount of speculation with respect to the economic impacts,” suggesting that Alaskans might switch to fishing different kinds of fish if barred from catching kings.
Knutsen said the Conservancy doesn’t believe — based on prior experience with other federal issues — that NMFS will complete the new rules by November.
“We think, if there may be delays, that the benefit of the doubt should be given to the (whale) species and not to the hopes … the gambling that NOAA will get legal and new documents out,” he said.
In response to those concerns, the judges asked Hansen-Young if she could assure them that the November timeline will hold.
She said that it could commit, “barring unforeseen circumstances.”
After that comment, one of the judges asked whether Hansen-Young would approve of an order that halts fishing if the federal government fails to meet that November timeline.
She initially said she “wouldn’t agree to such a broad grant of relief to plaintiffs,” but when asked whether she would approve of the 9th Circuit issuing more limited instructions in case of a missed deadline, she said that the government “would not object, so long as any instruction to the district court would be post-December 1.”
• James Brooks is a longtime Alaska reporter, having previously worked at the Anchorage Daily News, Juneau Empire, Kodiak Mirror and Fairbanks Daily News-Miner. This article originally appeared online at alaskabeacon.com. Alaska Beacon, an affiliate of States Newsroom, is an independent, nonpartisan news organization focused on connecting Alaskans to their state government.
