Update On Fish Northwest’s Second Federal Lawsuit

A federal judge has dismissed portions of a lawsuit filed by a North Sound fishing organization over Washington salmon seasons the past two years and how they’re set, but will entertain further arguments on some elements of it.

Yesterday’s ruling comes as 2020’s and 2021’s fisheries are now largely past but offers Fish Northwest something of a road map on how it might proceed in court in the future, while federal overseers are also likely to adjust their own game plan in response, informs a learned observer.

The Anacortes-based group sued the National Marine Fisheries Service, U.S. Fish and Wildlife Service and Bureau of Indian Affairs, along with WDFW, in late April right after the conclusion of North of Falcon in which WDFW and the Northwest Indian Fisheries Commission agreed to 2021-22’s Chinook, coho, sockeye, pink and chum salmon seasons and sent them off for federal Endangered Species Act consultations and coverage.

Fish Northwest subsequently amended its suit a couple times, filed for an injunction, as well as dropped WDFW from the case.

In part they wanted US District Court for Western Washington to not only declare that this season’s fisheries violated aspects of ESA but last year’s as well. Numerous salmon stocks are listed for protection under the federal act.

But in his 19-page decision, Judge Thomas S. Zilly in Seattle wrote that challenges to 2020’s biological opinion and incidental take statement, or ITS, for May 2020-April 2021 salmon seasons were moot as they had been superseded by the 2021-22 editions and the court “lacks jurisdiction to hear moot claims.”

He also dismissed Fish Northwest’s claim against the 2021 biop and ITS but with leave for the group to amend their arguments. However, the covered fisheries would seem to soon face the same issue of mootness, given that on the sportfishing side all that’s substantively left to open is the remnants of once-larger hatchery winter Chinook fisheries.

Indeed, Chinook restrictions are part of what led to this and another federal lawsuit by Fish Northwest. North Sound anglers have been frustrated to see opportunity shrink from seven months as recently as five years ago to all of seven days in the entire 2021-22 season. They feel the state has a weak position in negotiations with the tribes, given how fisheries have been approved in recent years.

Judge Zilly also permanently dismissed Fish Northwest’s claims that BIA, NMFS and USFWS committed procedural violations in regards to ESA Section 7 consultations.

And he said the group failed to establish their standing for bringing the lawsuit on behalf of itself and its members and on each claim in the first place, an obstacle but not one that couldn’t be overcome, according to the observer.

But while Zilly identified serious deficiencies in Fish Northwest’s court filings that NMFS et al haven’t enforced ESA in regards to WDFW and treaty fisheries in recent years, he will allow them to put forth further arguments on that point and gave them just under three weeks to do so.

Brett Rosson, president of Fish Northwest, saw the ruling as a positive takeaway.

“This means that FNW survived the defendants’ procedural objections and will get to present the merits of some of its claims to the court,” he posted on Facebook last night. “FNW’s main claim, that NMFS failed to ensure no jeopardy (the protection of ESA-listed wild fish), will proceed. The judge wants a more specific recitation of FNW’s injury and directed FNW to file an amended complaint with those specifics by Nov. 1.”