Lawsuit targets Southeast Alaska salmon fishery to save 73 orcas

Critics say the Washington-based plaintiffs should look closer to home. The lawsuit aims to defend endangered killer whales, but the science is complex, and fishermen could be put out of work.

By: - March 14, 2023 2:40 pm
Sitka-based troller Jeff Farvour fishes last month in the waters outside his home town. (Photo by Max Graham/Northern Journal)

Sitka-based troller Jeff Farvour fishes last month in the waters outside his home town. (Photo by Max Graham/Northern Journal)

A north wind picked up as Jeff Farvour leaned over the stern of the Apollo, his 39-foot fiberglass fishing boat. With a gaff hook in one hand and a line in the other, Farvour pulled a single chinook salmon, almost three feet long and worth more than $100, onto the deck.

Chinook, also known as kings — the biggest, fattiest and most lucrative species of Pacific salmon — were the only fish Farvour was chasing last month as he trolled the choppy waters of Sitka Sound, about 12 miles southwest of its namesake town. 

The fish are also at the center of a lawsuit that could force Farvour and nearly a thousand other fishermen out of their jobs. 

Late last year, a Washington state-based judge recommended closing Southeast Alaska’s commercial troll fishery — a $30 million industry that’s open nearly year-round, sustains the region’s island communities with jobs and tax revenue and claims more active fishermen than any other commercial salmon harvest in the state, except the one in Bristol Bay.

The recommendation by Michelle Peterson, a federal magistrate, came two years after Wild Fish Conservancy, a Washington-based conservation group, sued the federal government. 

The group’s lawsuit centered on the impact of Southeast Alaska’s commercial chinook catch on endangered orcas off the coast of the Lower 48 and British Columbia. 

Just 73 whales remain in the “Southern Resident” population — which is about half its historic size — and chinook are a staple food. Some of the salmon caught by Southeast Alaska trollers migrate hundreds of miles south from the fishing grounds, and Wild Fish Conservancy says the orcas need them to keep from starving. 

The conservancy argued, and Peterson agreed, that the federal government broke environmental laws by failing to ensure the troll fishery doesn’t harm the endangered whales.

“Southern Resident killer whales are an iconic species and so important to our region,” Emma Helverson, the conservancy’s executive director, said in a phone interview. “If killer whales are starving to death, we have a problem with salmon recovery. I think it’s pretty difficult to unlink the situation that’s facing killer whales and what’s facing our wild salmon populations.”

To avoid functional extinction, the orcas need an “immediate increase” in chinook numbers, University of Washington biologist Deborah Giles said in a court declaration last fall. 

But defenders of the Southeast Alaska trollers sharply dispute the industry’s impact on the whales.

Critics of the lawsuit, including Alaska conservation groups, argue the orcas are struggling for other reasons, like industrial pollution, habitat destruction and ship traffic — particularly in busy Puget Sound, near Seattle, where the Southern Residents spend much of their time. 

The fishery’s supporters also say Alaska’s trollers don’t catch enough chinook headed to the orcas’ range to harm them.

Farvour handles a chinook salmon aboard the Apollo, his 39-foot fiberglass boat. (Photo by Max Graham)
Farvour handles a chinook salmon aboard the Apollo, his 39-foot fiberglass boat. (Photo by Max Graham)

Trollers have already endured conservation-focused harvest cuts over the past few decades. Shutting the fishery down entirely would produce “only a small benefit” for the killer whales, one federal scientist said in a court filing. 

“It’s so far-fetched that our fisheries would have an impact on those Southern Resident killer whales that we were astounded” by the magistrate’s recommendation to close the troll fishery, said Linda Behnken, executive director of Alaska Longline Fishermen’s Association, an advocacy organization that counts trollers among its members. 

The saga over the fishery’s fate has heated up in recent months, as both sides await a final decision from U.S. District Court Judge Richard Jones. Jones could rule next week, or next year; there’s no formal deadline. 

Meanwhile, the lawsuit has done something rarely seen in Alaska politics: It has united conservation groups, fishermen, seafood processing companies, the Biden administration and the state’s Republican and Democratic elected officials in opposition.

The Alaska House of Representatives this month passed a near-unanimous resolution calling on state and federal agencies to defend the troll industry. Alaska’s congressional delegation filed a recent friend of the court brief asking Jones to reject the magistrate’s recommendation and keep the fishery open. 

An array of local governments and fishing industry players in Southeast Alaska have sent money to the trollers’ legal defense fund. And Republican Gov. Mike Dunleavy has said the state would appeal an unfavorable ruling all the way to the U.S. Supreme Court.

One of the conservation groups opposed to the lawsuit, the Southeast Alaska Conservation Council, said in a recent statement that the case “ignores the massive environmental degradation happening in Seattle-based Wild Fish Conservancy’s own backyard” and instead is “fighting a far-off technicality.”

“We urge the Wild Fish Conservancy to reconsider their misguided litigation,” the statement said.

Fresh fish, high prices

About 900 or so trollers fish in Southeast Alaska each season, according to state data. Altogether, they harvest an average of 200,000 chinook each year.

Trolling’s supporters say the industry is to fishing what small-scale, organic agriculture is to farming. It’s a “quintessential small-boat, owner-operator fishery,” said Farvour, who’s on the Alaska Trollers Association board. 

Like many other trollers, Farvour, 52, fishes alone in the winter and with just one deckhand in summer.

A dozen or so vessels were in Sitka Sound on Feb. 20, and each, from a distance, looked like a giant insect: Two long poles, one on either side of the boat, jutted out at 45-degree angles, like wings. 

From the Apollo’s poles, Farvour dropped two lines apiece, each with a series of evenly -spaced hooks. The lines reached 250 feet into the sea, trailing the boat as it bumped through the chop. 

A troller plies the waters of Sitka Sound last month. (Photo by Max Graham)
A troller plies the waters of Sitka Sound last month. (Photo by Max Graham)

Unlike net fishermen, trollers catch, clean and ice salmon one at a time. That individual care keeps fish fresh and helps fetch a higher market price: Troll-caught chinook filets are shipped around the country and sold at high-end grocery stores for as much as $40 a pound.  

In winter, Southeast trollers target chinook. But in summer they also catch coho and chum salmon. 

Coho, also known as silvers, tend to make up most of a troller’s annual harvest by weight, while the higher-value chinook typically account for 40% to 60% of total income, said Behnken, from the longline fishermen’s association. 

The lawsuit concerns only chinook, but trollers sometimes reel in chinook when fishing for cohos. If Jones, the district judge, adopts the magistrate’s recommendation, the entire troll fishery — not just the chinook portion — could be closed, Behnken said.

Because trollers catch a relatively small number of salmon, their industry isn’t as lucrative as big net fisheries like trawling, said Deborah Lyons, a retired Sitka troller. That’s one reason it’s cheaper to buy a troll permit than a gillnet or seine permit, making it an entry-level fishery dominated by Alaska residents, she said. 

The troll fleet has the highest level of local permit ownership, 85%, of any major fishery in the state, according to an Alaska Sustainable Fisheries Trust report published last year. 

In Sitka, that means “the water aerobics instructor is married to a troller. My husband’s oncology nurse is married to a troller. The city clerk is married to a troller. The teachers in the schools, the kids in the schools, are from trolling families,” Lyons said.

“I think that’s why the response has been so strong from the communities,” she added.

Economics vs. environmental impacts

Until Jones, the district judge, releases a decision, the fishery remains in limbo. 

Trollers aren’t sure how to get ready for the peak summer season, or if they’ll even have jobs in a few months. Fish processors don’t know how many plant workers or tender boats, which collect fish from trollers, to hire. And local governments risk losing revenue from taxes on the troll catch. 

“I don’t have a backup plan,” said Farvour. 

“It’s already having a lot of impacts, besides just the stress, the emotional distress,” he added. “I can’t hire a crew member yet.” 

Executives at Seafood Producers Cooperative, a member-owned fish processor with a plant in Sitka, are also struggling to prepare for the summer without knowing whether the troll fleet will deliver the $5 million in salmon that arrive in an average year. 

A fishery closure could force “radical cost cutting measures,” said Norm Pillen, the cooperative’s president. 

Much, though not all, of the troll fleet is based in Sitka, on Southeast Alaska’s Outer Coast. (Photo by Max Graham)
Much, though not all, of the troll fleet is based in Sitka, on Southeast Alaska’s Outer Coast. (Photo by Max Graham)

Sitka’s troll fleet, the region’s largest, earns more than twice as much — $10 million — as any other town’s. But the fishery’s reach extends across the region, from as far south as Ketchikan to as far north as Yakutat.

In Pelican, a rural Southeast fishing village with about 100 year-round residents, canceling the troll fishery would have “a domino effect” on the economy, said Mayor Patricia Phillips. “It just brings the fleet in here — using our harbor, using our laundromats, going to the restaurant, buying fuel,” she said.   

Peterson, the magistrate judge, acknowledged that her recommendation, if adopted, would harm Southeast Alaska’s economy, writing that she “does not take such economic consequences lightly.” But, she added, “they do not overcome the seriousness” of the government’s violations of the Endangered Species Act and National Environmental Policy Act, the potential harm to the orcas and the legal system’s obligation to protect them.

Lawyers for Alaska’s state government, in response, said economic impacts should be given “much more weight” and described elements of Peterson’s report as “sterile” and “preposterous.”

Still, the lawsuit hinges less on the economic value of the troll fishery than on its environmental impacts. 

Specifically, the dispute stems from a 443-page document published in 2019 by the National Marine Fisheries Service, the federal agency charged with making sure Southeast Alaska’s fisheries don’t harm endangered species. 

In that document, known as a “biological opinion,” the agency said trollers could harvest chinook without harming the endangered Southern Resident killer whales — a necessary finding to comply with the Endangered Species Act. 

But there was a catch. 

A pod of orca whales surfaces. (National Marine Fisheries Service photo)
A pod of orca whales surfaces. (National Marine Fisheries Service photo)

The fisheries service said that Southeast Alaska’s chinook harvest could, in fact, reduce the orcas’ prey numbers. But the agency said it would spend $118 million on hatcheries and habitat restoration to offset the potential harm. 

Those hatcheries — intended to counteract several coastal fisheries, not just Southeast Alaska trollers — would pump out salmon for the endangered orcas to eat.

Wild Fish Conservancy’s lawyers have argued, and Peterson, the magistrate, agreed, that the fisheries service’s mitigation plan was flawed. The conservancy says the proposal wasn’t specific enough, didn’t guarantee money for the hatcheries and didn’t do a rigorous enough environmental analysis. 

“We don’t see mitigation as being a sufficient strategy to offset harvest,” said Helverson, the conservancy’s director. She added: “I wish that this was not the place we’re at, but we’re making decisions today that are going to decide: Do these species exist in the next 20 or 30 years? Are future generations going to experience Southern Resident killer whales?”

Since the conservancy filed its lawsuit, though, the hatcheries have been funded and are now producing prey for orcas, according to court filings. 

When Peterson recommended closing the troll fishery, she also said the hatcheries should stay open, to keep from lowering the orcas’ prey numbers. The conservancy wants the hatcheries closed, saying they could harm threatened wild chinook stocks.

The fisheries service, meanwhile, is revising the biological opinion challenged in the lawsuit.

An unexplained decline

None of the parties question the grim outlook for the Southern Resident population, which has been struggling for years. The group of whales garnered national attention in 2018 when one of its matriarchs, Tahlequah, carried a stillborn calf for more than two weeks. 

But some scientists — and conservationists in Southeast Alaska — say the issue is more complicated than Wild Fish Conservancy asserts. 

Research on orcas and chinook published after the challenged biological opinion suggests the troll fishery has “a much lower impact” than previously thought, a state of Alaska biologist said in a court declaration last year.  

Only some chinook stocks caught by trollers overlap with the Southern Resident orcas’ range, and even among those that do, not all fish would have ended up in a starving whale’s jaws, said Dani Evenson, a scientist at the Alaska Department of Fish and Game. 

The salmon might have been caught by fishermen in British Columbia or Washington, she said. Or, they could have been eaten by sea lions, sharks or Northern Resident orcas, which feed on some of the same chinook stocks and have boomed in recent years. 

Farvour leans over the stern of his boat toward Mt. Edgecumbe, a volcano near Sitka.

“This lawsuit tries to paint a black and white picture that’s extremely complex,” Andrew Thoms, the Sitka Conservation Society’s executive director, said in an interview. Warming ocean waters, habitat degradation and pollution in Puget Sound are other dynamics that could harm both chinook and the Southern Residents, he said. 

Thoms praised Southeast Alaska trollers, who have protested large-scale logging and mining, as defenders of salmon habitat. And he said that Wild Fish Conservancy’s decision to file a lawsuit “targeting” the troll fishery is “a disservice to larger work, across the board, to take on the environmental challenges that we’re all dealing with.” 

Farvour, aboard the Apollo, called the lawsuit “crazytown” and a “publicity stunt.” He has fished for more than three decades around the state — as a longliner in the Bering Sea and the Gulf of Alaska, a gillnetter in Bristol Bay and a seiner in Southeast.

“Net fishing is more efficient,” Farvour said. “This fishery” — trolling — “is intentionally kept, I hate to say, inefficient.”

After hours of fishing, Farvour had caught just four chinook — a haul worth perhaps $400. It was a slow day, but not unique for winter, Farvour said. He radioed a friend, who said he’d been skunked: no fish at all.

The wind picked up to 25 knots, and the white-capped waves rose to over eight feet tall. It was time to motor back to the harbor, earlier than Farvour would have liked. 

But not before catching one more chinook.

Farvour leans over the stern of his boat toward Mt. Edgecumbe, a volcano near Sitka. (Photo by Max Graham)
Farvour leans over the stern of his boat toward Mt. Edgecumbe, a volcano near Sitka. (Photo by Max Graham)

Reach Max Graham at [email protected].

This article was originally published in Northern Journal, a newsletter from journalist Nathaniel Herz. Subscribe at this link.

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