9th Circuit Court Affirms Feds’ Chinook Prey Increase Program Yet Again

A three-judge panel of the US 9th Circuit Court of Appeals has affirmed a lower court’s ruling that left in place a hatchery-based prey increase program meant to provide more Chinook for Washington’s starving southern resident killer whales.

Part of the National Marine Fisheries Service’s 2019 biological opinion authorizing king salmon fisheries in Southeast Alaska, the prey program and other elements of the biop have been part of a long-running Wild Fish Conservancy lawsuit in the federal court system.

(Read our previous coverage here, here, here, here, here, and here.)

The 9th Circuit Court previously weighed in on the suit in June 2023, and in today’s decision on WFC’s appeal, Judges Mark Bennett, Anthony Johnstone and Milan Smith ruled that US District Court Judge Richard Jones in Seattle did not go overboard in “remanding without vacating” increased hatchery production of Chinook from facilities in Washington and elsewhere, which has been occurring for several years now.

They wrote that given potential “significant disruptions and ‘possible environmental harm[s], the district court did not abuse its discretion by concluding that the disruptive consequences of vacating the prey increase program outweighed the seriousness of the Service’s errors.”

WFC typically targets hatchery production, which props up most state and tribal salmon and steelhead fisheries. A staffer infamously said the only good hatchery was a closed hatchery during a Washington legislative session.

NMFS’s prey program errors included ESA and NEPA issues, and earlier this year as part of the remand, the agency held comment on a new draft programmatic environmental impact statement for the hatchery effort, which produced 8.3 million smolts last year, with as many as 11.75 million additional fish anticipated to be released this year.

The circuit court judges did fault Jones for vacating the biop’s harvest authorization that otherwise allowed commercial winter and summer troll Chinook fisheries in Southeast Alaska to occur (the fisheries eventually did anyway).

They wrote that he “disregarded the likelihood that the take statement would be supported by better reasoning, and readopted, on remand,” and “erred by overlooking the severe disruptive consequences of vacatur” to panhandle communities.

NMFS has vowed to finalize its new SE AK biop by December 1 – this spring, it said it was working “diligently” on that and the new prey EIS – and the three judges appeared comfortable with that promise.

NMFS, which is also working on a blizzard of WFC and related groups’ petitions to list various West Coast and Gulf of Alaska salmon and steelhead stocks, had no comment on today’s ruling.

But Alaska fishing interests lauded the decision as a big win for them.

“Today the Ninth Circuit ruled in favor of Alaska’s troll fishery, reversing the District Court’s decision to close the summer Chinook fishery and upholding the prey increase program — i.e., the Wild Fish Conservancy lost on both accounts and NMFS/ADFG/ATA and Alaska’s fishermen WON,” stated the Alaska Longline Fishermen’s Association.

Added SalmonState Executive Director Tim Bristol, “The Endangered Species Act is a powerful and important tool but it needs to be wielded properly and responsibly. Thankfully, the Ninth Circuit just reminded the Wild Fish Conservancy of that fact.”

A learned observer mused that WFC got something of a “paper victory” out of the lawsuit, meaning tying NMFS up in paperwork, more so than ultimately any sort of stoppage of the prey increase program or the Southeast Alaska commercial troll fishery.

For more on today’s ruling, see this Reuters story.