A U.S. District Magistrate Judge in Seattle is recommending that U.S. District Judge Richard Jones deny a motion by Wild Fish Conservancy seeking to close Chinook fishing in southeast Alaska because of impacts on endangered orcas.
In Wild Fish Conservancy v. Barry Thom et al., Magistrate Judge Michelle Peterson concluded in a June 9 report to the court that the Conservancy missed its 30-day deadline under the Magnuson-Stevens Act to challenge the commercial troll fishing season, scheduled to open July 1.
Peterson noted the National Marine Fisheries Service concluded in a 2019 biological opinion (BiOp) that the fishery is not likely to jeopardize the orcas. However, she said it is likely to result in "some level of harm" to orcas due to reduced prey availability, which could cause the orcas to forage for longer periods, travel to other locations or abandon the hunt.
Peterson concluded that the authority for the fishing season is exclusively under Magnuson-Stevens Act regulations. Because the Conservancy's request for an injunction is under the purview of the Magnuson-Stevens Act and they missed the deadline for challenging the act and its delegated authority, "this Court lacks jurisdiction to enjoin the commercial troll salmon fishery," she wrote.
Under the act, the report noted, the most recent regulation delegating commercial troll salmon fishery management authority to the state of Alaska was published on Dec. 21, 2012, and a BiOp allowing the fishing season was issued on April 5, 2019. Both dates are well past the act's "strict 30-day limitation on judicial review," Peterson wrote.
In an objection to Peterson's report and recommendation, Wild Fish Conservancy argued that the matter was not subject to the Magnuson-Stevens Act. In the June 15 objection, the Conservancy wrote that it was not required to file claims within 30 days of the BiOp for southeast Alaska fishing because their claims arose from events unrelated to NMFS giving its authority to manage the fishery.
The Conservancy asked the court to grant the injunction, even if it's after the July 1 opening of the season, as the commercial fishery continues through August and sometimes into September, and the winter harvest season begins in October.
Jones, who is the presiding judge in the case before the U.S. District Court for the Western District of Washington, appointed Peterson to serve as magistrate judge on April 14.