The US Endangered Orcas with Overfishing, Court Finds

By approving unsustainable salmon harvest levels, the U.S. government failed to protect endangered southern resident killer whales, the federal court in Seattle has found.

The National Oceanic Atmospheric Association violated the Endangered Species Act by authorizing commercial salmon harvest in southeast Alaska at levels that they knew would push southern resident killer whales, who almost exclusively eat Chinook, closer to extinction.

The court also found that NOAA violated the National Environmental Policy Act when, instead of limiting harvests, it turned to hatcheries as a way of bolstering fish populations, a mitigation method that the court concluded was undeveloped, unresearched and uncertain.

The Aug. 8 decision could have far-reaching implications that affect fisheries in both B.C. and the U.S.

NOAA could now be forced to severely limit fisheries operations in Alaska. As 97 per cent of the Chinook harvested in southeast Alaska originates from rivers throughout the Pacific coast, this will lead to larger returns for communities across B.C.

Rethinking the salmon harvest might also open the door for a renegotiation of the Canadian-U.S. treaty that sets salmon harvest rates.

It could also call into question current fishing practices and how we mitigate these. Specifically, in deeming hatcheries unacceptable, a court is forcing both the U.S. government — and, perhaps, the Canadian one, too — to rethink how they approach extraction and conservation.

The context

There are 73 southern resident killer whales that roam the coasts of B.C., Washington and Oregon. Eighty per cent of their diet is Chinook salmon, with the remaining 20 per cent chum and steelhead. Both the U.S. and Canada classify these whales as “endangered.”

According to summary reports by the Alaska Department of Fish and Game, hundreds of thousands of Chinook are caught in the southeast area (districts 101 to 104 and 106). In 2021 alone, commercial fisheries harvested 216,338 Chinook salmon.

The fish were caught during migration when all stocks mingle together in northern waters. This type of fishing is called “intercepted fisheries.” It means that the salmon were caught before they could swim south, and before they could be eaten by the southern resident killer whale population.

For the past few years in B.C., commercial and recreational salmon fisheries have been closed while the population is in residence, affecting fisheries in the Southern Gulf Islands, the Strait of Juan de Fuca and at the mouth of the Fraser River. Fisheries off Washington and Oregon also see closures.

In their most recent analysis, NOAA found intercepted fishing at the rates pursued by fisheries in southeast Alaska was unsustainable for the long-term survival and reproductive success of the southern resident population. Of the 74 whales, there are 26 reproductive females. Only 14 of these have successfully reproduced in the last 10 years, and no calves have survived since 2016.

These considerations were on the table in May 2019 when Canada and the U.S. negotiated the latest Pacific Salmon Treaty, an agreement on harvest rates. Chapter 3 of the treaty included harvest reductions in both Canadian and U.S. Chinook fisheries. However, the harvest in Alaska was not limited enough. Instead, to avoid violating the Endangered Species Act, NOAA opted to invest in hatcheries, promising that they would increase production of Chinook by four to five per cent. In 2020 this amounted to $11.6 million in extra funds compared to 2019.

The court ruling

The Seattle federal court found that NOAA's decision to use hatcheries instead of reducing harvests violated the Endangered Species Act.

This is because, when NOAA approved harvest levels in 2019, they did not have a specific plan for how they would increase Chinook production by four to five per cent. This plan contained no deadlines or otherwise enforceable obligations. The court found that this was not a satisfactory strategy to protect southern resident killer whales.

Additionally, Chinook take years to grow in a hatchery. And that’s if all the facilities are fully operational — which they weren’t. NOAA needed to build an entirely new facility.

“The mindset is this: I’m going to save the starving animal by doing something years from now,” said Kurt Beardslee, director of special projects at the Wild Fish Conservancy, the plaintiff in the civil suit. “But the one thing that they know will absolutely work is to not take the food out of the animal's mouth right now.”

Boosting hatchery production also doesn’t necessarily lead to more fish for the southern residents because of the way that the harvest rates are set. The allowable catch is not a specific number across the 10 years. It changes based on the number of wild fish. An increase in the number of wild fish also, therefore, permits an increase in the allowable catch.

“Planting more fish doesn’t mean more killer whales are gonna get fish,” Beardslee said. “It just means more fishing, more vessel traffic, which also just causes more problems.”

The court also questioned the validity of using hatcheries in the first place. According to the Wild Fish Conservancy, hatcheries can actually present a risk to wild Chinook populations because hatchery-raised fish take food from wild populations. Hatchery fish are also weaker than wild fish, leading to an overall decrease in the genetic diversity and resilience of Chinook populations.

In fact, NOAA itself recognizes hatcheries and associated impacts as one of the top four factors contributing to the decline of wild salmon, alongside overharvest, habitat loss and hydroelectric dams.

“It was like they were trying to put out a fire by pouring gas on it,” said Beardslee.

Implications for fishing practices

With hatcheries no longer an option, NOAA must seek an alternative.

Beardslee wants to see the Pacific Salmon Treaty reopened and renegotiated. He would like to see a treaty that is more transparent, and has a greater emphasis on restoration, not just extraction.

“If we can reopen the Pacific Salmon Treaty and have it be transparent, and have representatives that can insist on recovery efforts, not just extraction goals, that will be a giant step forward,” he said.

Other advocates are hoping that this decision will force the U.S. and Canada to rethink fishing practices, specifically eliminating intercepted fisheries.

“Closing the fisheries on the migration routes of fish is the most obvious solution,” said Misty MacDuffee, wild salmon program director at Raincoast Conservation Foundation.

According to MacDuffee, most developed countries and even some fisheries in Canada have banned mixed-stock, intercepted fisheries because the catch is indiscriminate. It targets huge schools of mixed fish migrating together, and therefore cannot be selective and focus on strong runs, leaving weak runs to recover.

For example, Canada has banned mixed-stock fisheries in the North Atlantic. Mixed-stock fisheries in the Johnstone Strait (on the north coast of Vancouver Island) are also closed.

More closures could be coming. In the Pacific Salmon Strategy Initiative, published in June 2021 and aimed at fighting population declines, Fisheries and Oceans Canada promised to implement extensive closures to commercial salmon fisheries in areas with “significant stocks of conservation concern.”

When asked for a statement on further measures to limit intercepted fisheries, Fisheries and Oceans Canada stated that they were attempting to protect killer whales via reducing harvest.

“Chapter 3 of the Pacific Salmon Treaty includes harvest reductions in both Canadian and U.S. Chinook fisheries to help address ongoing conservation concerns for stocks in both countries,” the statement read. “These reductions will complement measures being taken in Canada to protect and conserve our Chinook stocks, including those harvested in Alaska.”

When asked about whether they were considering the closure of all intercepted fisheries, they did not respond.

MacDuffee argues that Canada and the United States need to move towards “terminal fisheries,” which catch fish inland in rivers and streams. These salmon, she says, have passed through whale habitat and been given time to mature. This approach also allows fishers to target strong runs, and allow weaker runs to recover.

Terminal fisheries also mean that communities across the B.C. coast — which are largely First Nations — will be able to fish their own stock again, rather than seeing their fish being caught prematurely by commercial operations in Alaska.

“I’m not saying that we can’t catch anymore Chinook salmon,” said MacDuffee. “I’m saying that we can’t catch Chinook salmon in the manner that we are doing it now.”

Legal implications for Canada’s fisheries

Seattle’s federal court decision could have knock-on effects in Canada’s courts.

Dyna Tuytel, a lawyer who specializes in species at risk and climate change at Ecojustice, Canada’s largest environmental law charity, noted the court’s disapproval of unproven mitigation measures. She said this was a step in the right direction.

“We constantly do that in Canada,” said Tuytel. “When approving a project, we rely on hypothetical and unproven mitigations that may or may not come to fruition.”

But the tools of the court are different in Canada, said Tuytel. In some ways, she added, they are more limited.

Specifically, the provisions under the Species at Risk Act that prohibit harm to animals or the destruction of habitat are structured to apply to third parties. Should a third party violate them, they will be sued by the government (or occasionally non-government actors). These provisions are not structured to apply directly to the government.

The Canadian equivalent of the Endangered Species Act, the Species at Risk Act, is also more limited in this scenario. The Wild Fish Conservancy successfully sued NOAA because it violated the Endangered Species Act and endangered the southern resident killer whale. But they also successfully sued because NOAA’s harvesting rates (and hatchery program) endangered wild Chinook, a species also protected by the ESA.

In Canada, southern resident killer whales are protected by the Species at Risk Act, however Chinook are not. In fact, no commercially harvested fish are included in the act.

In Canada, researchers and scientists do not have the final say in what animals are considered at risk. Instead, they recommend species, and then the minister of environment and climate change makes a listing recommendation to the relevant minister. For Chinook and other fish, the federal fisheries minister, Joyce Murray, would make the call about whether to protect species via the act.

The minister of fisheries has a dual mandate to protect Canada’s oceans and to “prioritize the growth of Canada’s blue economy.”

The Committee on the Status of Endangered Wildlife in Canada is the independent body that compiles status reports and recommends species to be categorized as Schedule 1 under SARA. Of the 59 salmon species in Canada, COSEWIC has categorized 22 as endangered — a wildlife species facing imminent extirpation or extinction. Only one, the inner Bay of Fundy population, is protected under SARA.

So in Canada, while salmon are indirectly protected because they count as critical habitat for whales, they have no direct protection.

When asked for comment on why only one salmon is protected under SARA, Fisheries and Oceans Canada said that they were in the final stages of the process for determining whether or not to list several Atlantic Salmon populations under SARA.

Pacific Salmon are also being considered, though many steps lie ahead in the process. The DFO is advising Environment and Climate Change Canada, who may then recommend the at-risk species to the fisheries minister. Ultimately it would be Murray's choice whether or not to list them under SARA.

“Fish are really underlisted compared to other animals,” Tuyvel said.

Similar to Canada, NOAA, the U.S. federal authority responsible for the preservation and conservation of marine animals, is also the authority responsible for the economic growth and prosperity of the fishing industry. In the eyes of advocates like Beardslee, these “diametrically opposed mandates” mean that extraction is too often prioritized above conservation.

The Pacific Salmon Treaty is another example of a misprioritization like this, Beardslee says.

“The decisions that are being made are all about natural resource extraction,” Beardslee said. “It is driven by individuals that are either in the harvest industry or have relationships to the commercial industry.”

Beardslee argues that the policies contained in the Pacific Salmon Treaty need, instead, to be driven by ecologists, prioritizing future generations and the needs of coastal communities.

Misty MacDuffee would like to see modelling that predicts how many Chinook southern resident killer whales need, and then limits harvest accordingly. She calls this creating a “threshold of abundance” that is as strategic and formulaic as the fishing forecast outlined in the Pacific Salmon Treaty.

“We make a forecast so that fishermen can go fishing,” said MacDuffee.

“We certainly don’t make a forecast so the whales can get something to eat. The States have started down that road. It’s not adequate, but they’ve started.”