Legal Update on the WFC Efforts

from Attorney Doug Steding

There have been multiple developments as the Wild Fish Conservancy continues its assault on fishing in Southeast Alaska:
First, on January 11, 2024, WFC filed a petition with the National Marine Fisheries Service to list Alaskan Chinook salmon as threatened or endangered under the Endangered Species Act. WFC argues that fish from the Southern Aleutian Islands, Cook Inlet, Alexander Creek, Theodore River, Unuk River, Chickamin River, Stikine River, Andrew Creek, Chilkat River, King Salmon River, Taku River, Situk River, Alsek River and Karluk River should be listed under the ESA. They also specifically attack the management of fisheries by the State of Alaska as insufficient to protect Chinook salmon. This petition triggers a process within NMFS where it will make a finding within 90 days of whether NMFS will accept the petition or not. If it is not accepted, that is the end of the process with NMFS and WFC can then initiate litigation challenging the denial of the petition by NMFS. If NMFS accepts the petition, it will then start a 12- month process where it will engage in public comment and peer review to determine whether listing is warranted or not. That decision is due from NMFS within one year of receiving the petition. If the decision is to list the species under the ESA, NMFS then has one additional year to promulgate rules listing the species under the ESA. We will know whether NMFS accepts the petition or not by April 2024. If they accept the petition, we will be involved in public comments on the finding that the petition presents substantial information that suggests listing of the species is appropriate under the ESA. The Trollers will continue to engage on this issue to protect its members’ rights to fish.
Second, on January 26, 2024, WFC Issued a 60-Day Notice of Intent to Sue NMFS, the Washington Department of Fish and Wildlife, the Oregon Department of Fish and Wildlife and Clatsop County Fisheries for alleged violations of the Endangered Species Act related to the operation of hatcheries in the Columbia River Basin. WFC is specifically targeting “Mitchell Act” funding, which has been in place since 1938 to assist with fishery production after the placement of the dams along the Columbia River. That funding provides tens of millions of dollars for the operation of salmon hatcheries along the Columbia River, and those salmon are some of the abundant stocks relied upon by trollers in Southeast Alaska. WFC is also targeting other hatchery funding and is likely going to seek the shutdown of those hatcheries when it files its lawsuit, which it can do after the end of March. The ATA continues to monitor this important issue and how it may impact its members.
Finally, briefing is now complete on the appeal of the Western District of Washington’s order that would have shut down the troll fishery this past summer. The ATA, working with tribes and the State of Alaska, successfully obtained emergency relief from the Ninth Circuit Court of Appeals that kept the Southeast Alaska troll fishery open during this appeal. ATA expects that the Ninth Circuit will hold oral argument on this appeal later this year. An opinion on the appeal likely will not be issued by the Ninth Circuit until the end of 2024, at the earliest.