Daily Sitka Sentinel

Judge Denies Stay In SE Troll Ruling

SHANNON HAUGLAND

Sentinel Staff Writer

Matt Donohoe, Alaska Trollers Association board president, received word this afternoon that U.S. District Court Judge Richard Jones denied a motion for a stay which would have allowed the summer troll king season to take place July 1.

“He also denied Wild Fish Conservancy’s motion to shut down the hatchery prey program in the state of Washington,” Donohoe said.

Donohoe called the Sentinel at 2 p.m. today with the news, which was passed on from the ATA attorney Douglas Steding. 

Donohoe also forwarded a copy of Jones’s five-page decision on the request for a stay.

The judge in his conclusion wrote: “Nothing in this order precludes the parties from applying to the Ninth Circuit for a stay of the May 2, 2023, order.”

The Wild Fish Conservancy filed its lawsuit in 2019 claiming the National Marine Fisheries Service’s incidental take statement unduly restricts the number of Chinook allowed to return to their native waters as prey for the endangered Southern Resident killer whales that spend part of the year in Puget Sound. 

On May 2 Jones issued a ruling upholding the December 13, 2022, recommendation by a federal magistrate judge to require NMFS to vacate and redo the biological opinion (BiOp) and the incidental take statement (ITS) that allow for the take of king salmon by the Southeast Alaska troll fleet.

The State of Alaska and Alaska Trollers Association are defendant- joiners of the lawsuit against the National Marine Fisheries Service. NMFS, ATA and the state asked for a stay of the order which Jones denied today.

On Tuesday, the Department of Justice filed a notice that it also plans to appeal Jones’ original May 2 decision.

The state argued that the court erred in not considering the consequences that vacating the ITS would have on communities dependent on fishing. The state also said any increases in wild Chinook will not immediately benefit the southern resident killer whales.

Jones said the court undertook an extensive analysis of the economic consequences raised by Defendants and did not take those economic consequences lightly in adopting vacatur as the remedy.

“Ultimately, the Court concluded those consequences did not overcome the seriousness of National Marine Fisheries Service’s violations given the presumption of vacatur, the harm posed to the SRKW 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. Alaska has also failed to show the other factors warrant a stay.”

He added that vacating the incidental take statement does not result in a prohibition on fishing “in and of itself” in federal or state waters.

“ ... Rather, it means there is no exemption from liability under Section 9 of the Endangered Species Act in the event that take occurs.”

Jeff Farvour, from ATA, said, “which effectively closes our fishery because it removes the ESA protections that we had, and that other salmon fisheries have all up and down the coast.”

Donohoe said he was not surprised by Jones’ decision against granting a stay, but is still hoping for a positive outcome from the 9th Circuit Court of Appeals.

“I never expected the man to rule against himself,” he said. “It will now go to the 9th Circuit Court of Appeals.”

The Sentinel will have more details on the order in Tuesday’s edition.