Category Archives: Tribes

Orca health assessment, legal rights, and two upcoming presentations

The ongoing shutdown of the federal government has kept federal marine mammal biologists and administrators from paying close attention to the critically endangered Southern Resident killer whales. The folks I know at NOAA’s Northwest Fisheries Science Center must be going crazy over their inability to do their jobs, which have always been central to the survival of our beloved orcas.

To take a breath sample, mist from an orca’s blow is collected at the end of a long pole then tested for pathogens. // Photo: Pete Schroeder

But now a coalition of non-government orca experts plans to step in to at least conduct an initial health assessment of two orcas showing signs of “peanut head,” an indicator of malnutrition that frequently leads to death. Initial plans for taking minimally invasive fecal and breath samples were developed during a meeting of the minds on a conference call yesterday. Further efforts, such as medical treatment, would need special authorization from federal officials.

I won’t go into further details here, since you can read the story published this morning by the Puget Sound Institute.

Treaty rights related to orcas

After all my years of covering killer whale issues, it is interesting to see the emergence of the Lummi Nation as a major participant in the orca discussions. Kurt Russo, senior policy analyst for the Lummi Sovereignty and Treaty Protection Office, told me that tribal members have a spiritual connection with the orcas that goes back thousands of years. The inherent right to commune with the “blackfish” or “qwe i/to! Mechtcn” was never superseded by treaties signed between the tribe and the U.S. government, so these rights still stand, he said.

A letter from Lawrence Solomon, secretary of the Lummi Nation, outlines the tribal position.

Based on moral concerns, the tribe supports strong actions to save the Southern Resident orcas from extinction. That should involve a health assessment for the two orcas that seem to be in declining health, Kurt said. Feeding the two whales and providing medicine to help them recover could be part of the plan, he added. Whether the tribe could support capturing the whales to nurse them back to health is a controversial question that has not yet been resolved among tribal members, he said.

“How does the moral obligation define that scenario?” Kurt wondered. “It would be traumatic to take a whale away from its family. There is not a firm decision yet about that solution.”

Finding a way to feed the entire population of 75 Southern Residents could be critical to their survival, Kurt said, and it might require setting up feeding stations where the whales could come for food.

“The killer whales are sending a message,” Kurt said. “It’s now or never. We will soon know if the Salish Sea is going to remain an ecosystem that can be repaired. It’s not an issue of more science. We have to act on what we know.”

Legal rights for orcas themselves

A coalition of various groups today unveiled a declaration proclaiming the inherent rights of the Southern Resident orcas to exist. The recognition comes with some urgency, according to the group, because a new calf was recently born — the first birth in three years.

“We’d be having very different conversations if we approached recovery with the orca’s best interests in mind,” said Elizabeth M. Dunne in a news release.

“The orca shows us how our current laws are not remedying the severe decline of entire ecosystems – from the Salish Sea to the Columbia River basin and Snake River watershed,” said Dunne, who helped draft the declaration. “We must adopt a framework recognizing that ecosystems have the rights — to exist, flourish, evolve, to sustain life, and to be restored to a healthy state — if we truly want to save the orca, and ultimately ourselves, from extinction.”

Among its provisions, the Declaration of the Rights of the Southern Resident Orcas calls for the immediate creation of a stewardship board for the Salish Sea based on a rights-of-nature framework. It should include a guardian representation for the Southern Resident Orcas, according to the petition.

Movie: “The Whale” to play in Port Orchard

The true story of Luna, a young killer whale separated from his Southern Resident community, will be shown tomorrow (Thursday) at 6:30 p.m. at Dragonfly Cinema in downtown Port Orchard. Kitsap County Commissioner Charlotte Garrido invited me to be on hand after the movie to answer questions and talk about orcas.

Luna, or L-98, made his appearance suddenly in 2001 in Nootka Sound along the West Coast of Vancouver Island, where he became lonely and developed a habit of seeking out human companionship. An effort to capture the orca and return him to the Salish Sea failed amidst a conflict between the Canadian government and the local band of First Nations people.

In a move review I wrote for Water Ways in September 2011, I called “The Whale” a beautiful film for its photography and careful portrayal of characters and situations. It was not easy to balance the varying viewpoints, but I thought filmmakers Suzanne Chisholm and Michael Parfit pulled it off accurately.

I happen to know something about this story, because I was in Nootka Sound for two weeks leading up to the attempted capture of Luna and for a short time after the project was abandoned. I was the so-called “pool reporter” representing U.S. media, and I became acquainted with Mike and Suzanne.

Ways of Whales Workshop

On Saturday, the annual Ways of Whales Workshop, including speakers and presentations on a variety of marine mammal topics, will be held from 10 a.m. to 4 p.m. at Coupeville Middle School, 501 S. Main St, on Whidbey Island.

Speakers and their topics include:

  • Howard Garrett of Orca Network on Lolita/Tokitae;
  • Cindy Elliser of Pacific Mammal Research on harbor porpoise status and identification;
  • Stephanie Norman of Marine-Med and Central Puget Sound Marine Mammal Stranding Network on harbor porpoise health and diseases;
  • Sandra O’Neill of Washington Department of Fish and Wildlife on contamination in herring, salmon and orcas;
  • Amy Carey of Sound Action on nearshore habitat protection and regulatory reform; and
  • Deborah Giles on Southern Resident killer whale research.

Singer/songwriter Dana Lyons will perform his song “The Great Salish Sea.”

The event is sponsored by Orca Network. Cost for the workshop is $35, or $25 for students and seniors. Lunch is available for an additional $10. Advance registration is highly recommended because of limited seating. Visit www.orcanetwork.org, email info@orcanetwork.org or call either 360-331-3543 or 1-866-ORCANET.

A no-host social will follow at Ciao Restaurant in Coupeville for everyone attending the workshop.

Salmon report mixes good and bad news, with a touch of hope

The story of salmon recovery in Washington state is a mixture of good and bad news, according to the latest “State of the Salmon” report issued by the Governor’s Salmon Recovery Office.

It’s the usual story of congratulations for 20 years of salmon restoration and protection, along with a sobering reminder about how the growing human population in our region has systematically dismantled natural functions for nearly 150 years.

“We must all do our part to protect our state’s wild salmon,” Gov. Jay Inslee said in a news release. “As we face a changing climate, growing population and other challenges, now is the time to double down on our efforts to restore salmon to levels that sustain them, our fishing industry and the communities that rely on them. Salmon are crucial to our future and to the survival of beloved orca whales.”

The report reminds us that salmon are important to the culture of our region and to the ecosystem, which includes our cherished killer whales. It is, however, frustrating for everyone to see so little progress in the number of salmon returning to the streams, as reflected in this summary found in the report:

  • Getting worse: Puget Sound chinook, Upper Columbia River spring chinook
  • Not making progress: Upper Columbia River steelhead, Lower Columbia River chum, Lower Columbia River fall chinook, Lower Columbia River spring chinook, Snake River spring and summer chinook
  • Showing signs of progress: Mid-Columbia River steelhead, Lake Ozette sockeye, Lower Columbia River steelhead, Snake River steelhead, Puget Sound steelhead
  • Approaching recovery goals: Hood Canal summer chum, Snake River fall chinook

It would be reassuring if we could know that our efforts in salmon recovery are making some real difference before we “double down on our efforts,” as the governor suggests. That’s why I spent considerable time trying to answer the question of whether we have turned the corner on habitat destruction in Puget Sound. Could we at least be improving the habitat faster than we are degrading it with new development? Check out “Are we making progress on salmon recovery” in the Encyclopedia of Puget Sound.

As I point out in the article, this question is not just a matter of counting salmon that return to the streams, because many factors are involved in salmon survival. Researchers with NOAA’s Northwest Fisheries Science Center are investigating habitat conditions and the fate of young salmon before they reach saltwater, based on many ongoing studies. I’m hoping their upcoming findings can boost confidence that restoration work is on the right track.

Looking beyond the streams, I have reported on the Salish Sea Marine Survival Project, which is asking important questions about what happens to young salmon after they leave the streams and head out to sea. You can read the four-part series called “Marine survival: New clues emerging in salmon deaths” in the Encyclopedia of Puget Sound.

The new “State of the Salmon” report describes, in a general way, the work that needs to be done, concluding that renewed efforts should be focused on:

  • Larger habitat restoration and protection projects
  • Better control of harmful development
  • Management and cleanup of stormwater
  • Addressing climate change
  • Restoring access to spawning and rearing habitat
  • Engaging communities
  • Reducing salmon predators and destructive invasive species, and
  • Integration of harvest, hatchery, hydropower and habitat actions

These general discussions, which are found in Section 9 of the executive summary to the “State of the Salmon” report, could be helpful if you haven’t heard any of this before. If you would like more details, however, I would direct you to these documents:

One of the most engaging sections of the new “State of the Salmon” report is the one containing “Salmon Recovery Stories.” If you read through all 24 of these stories (not necessarily in one sitting), you can confirm what you already know, and you are bound to learn some new things along the way. I know I did. The writing is tight and informative, while the pictures, videos are graphics complete the story-telling. The section is like a primer in salmon restoration.

“It’s not that we don’t know how to recover salmon,” Kaleen Cottingham, director of the Recreation and Conservation Office, said in a news release. “We know what needs to be done, and we have the people in place to do the hard work. We just haven’t received the funding necessary to do what’s required of us.”

Salmon treaty designed to boost spawning count and feed the orcas

Allowable fishing for chinook salmon in the waters of Canada and Southeast Alaska will be cut back significantly this year as a result of a revised 10-year Pacific Salmon Treaty between the United States and Canada.

Chinook salmon // Photo: NOAA Fisheries

The goal of the updated treaty is to increase the number of adult chinook returning to Washington and Oregon waters, where they will be available to feed a declining population of endangered orcas while increasing the number of fish spawning in the streams, according to Phil Anderson, a U.S. negotiator on the Pacific Salmon Commission.

Most chinook hatched in Washington and Oregon travel north through Canada and into Alaska, making them vulnerable to fishing when they return. Changes to the treaty should reduce Canadian harvests on those stocks by about 12.5 percent and Alaskan harvests by about 7.5 percent, Phil told me. Those numbers are cutbacks from actual harvests in recent years, he said, so they don’t tell the complete story.

If you consider allowable harvest levels under the previous 2009 treaty with Canada, the cutbacks are even greater — up to 25 percent for some stocks, he said. The difference is that actual fishing never reached the allowable levels because of declines in the overall chinook population.

“I think we achieved some major reductions in fisheries from the existing agreement,” said Anderson, a former director of the Washington Department of Fish and Wildlife. “The actual change in allowable catches in some cases is much greater than 12.5 percent. A lot of people doubted that we were going to be able to get any cuts at all, so this is a significant advancement in conservation for Washington stocks.”

Negotiations for the revised treaty were completed in July, but details of the treaty remained under wraps pending full ratification by the United States and Canada. Because the treaty was expiring at the end of 2018, the two governments agreed to impose the new treaty provisions on an interim basis beginning Jan. 1. Consequently, the Alaska Department of Fish and Game released the chinook chapters to the treaty on Dec. 31.

Because the interests of Washington and Oregon don’t always line up with Alaska, it took nearly a year to formulate the U.S. position, which includes consultation with state and tribal governments. It took another 16 months to reach an agreement with Canada. During that time, the commissioners got together for about 14 meetings as well as many more conference calls, according to Phil Anderson, who represents the interests of Washington and Oregon on the international commission.

“Even though we had some tough issues to resolve, we were able to keep everyone at the table by showing civility and respect for each other,” Phil said, noting that those involved were conscious of the failed 1999 treaty negotiations. That’s when talks broke down, the treaty expired and the thorniest issues had to be resolved at higher levels of government — including the U.S. State Department.

Conservation aspects of the treaty became the driving factor in negotiations, Phil said. Puget Sound chinook are listed as threatened under the Endangered Species Act, while Southern Resident killer whales are listed as endangered. Alaskan officials, who represent fishermen with big money to lose, had to be convinced that Washington and Oregon were doing their part to preserve the species.

“If you are asking people to cut their (fishing) opportunities for your conservation reasons, it is not surprising that they need to know that we are doing everything we can here, both in fishery management and on the habitat side of things,” Phil said.

Charles Swanton, deputy commissioner for Alaska Department of Fish and Game, toured the region to observe extensive habitat-restoration projects, hatchery programs and other conservation projects in Puget Sound. Swanton, who has since resigned, represented the interests of Alaska on the Pacific Salmon Commission. Ron Allen of the Jamestown S’Klallam Tribe represented U.S. tribal interests, alternating in the commissioner post with McCoy Oatman of the Nez Perce Tribe. Bob Turner of NOAA Fisheries represented the federal government on the commission.

Planning for this year’s fishing seasons begins with an estimate of the total number of fish that have survived to adulthood. The terms of the treaty place limitations on Alaskan and Canadian harvest of stocks returning to Puget Sound, the Columbia River and the Washington and Oregon coasts.

The total number can vary greatly year to year, but in recent years Puget Sound runs of hatchery and wild chinook have ranged from about 200,000 to 250,000 fish, while the Columbia River has seen returns of roughly a million chinook. Preseason forecasts for this year’s salmon runs are scheduled to be discussed at meetings Feb. 26 in Montesano and Feb. 27 in Lacey.

Both U.S. and Canadian officials are interested in protecting chinook salmon to feed the 74 remaining Southern Resident killer whales, which travel from southern British Columbia through Puget Sound and down the West Coast to California. A shortage of chinook, their primary prey, has been identified as a major cause of their drop in population from 97 animals in 1996 to 74 today, a decline of 24 percent.

Phil said the commission spent a good deal of time talking about the orcas and the impact of fishing on the prey base. “We did a lot of analysis and modeling to make sure we fully understood the effect (of the agreement) on the prey base. The orca issues were a big deal to both countries.”

Also important is the goal of getting more chinook back to their spawning grounds, where habitat has been improved in many areas.

As harvest managers plan for upcoming fishing seasons, increasing consideration is being given to which chinook stocks are important to the killer whales and where the orcas are likely to hunt for them. The effect of saving salmon for the whales as well as for spawning has led to an overall shift in allowable fishing from the open ocean, where stocks are mixed, to fishing areas closer to the streams. That way more abundant runs can be targeted by fishers after the fish have swum past areas where the whales are most likely to get them.

Fishing seasons are established to allow a percentage of the fish to be harvested in each area along their way back to their home streams. Because Puget Sound chinook are listed as threatened, the federal government has established a maximum percentage of harvest allowed for each stock, known as the “rebuilding exploitation rate.”

Under the previous 2009 agreement, only 17 percent of the Puget Sound chinook stocks would have met the negotiated goal. As a result of further fishing cutbacks the past few years, the RER was actually achieved for 42 percent of the stocks. Under the new agreement, it is anticipated that the goal will be reached for 67 percent of the Puget Sound populations.

That’s a nice jump, but it still leaves a lot of Puget Sound streams that are not meeting the objectives, Phil conceded.

“Yes, we’re not meeting them today,” he said, “and even if we close all fisheries, we would not be meeting them either.”

Under the Endangered Species Act, the federal government requires mitigation measures, such as habitat restoration and conservation hatcheries, designed to increase the overall populations. Without mitigation measures, fisheries on depressed stocks would not be allowed at all.

The Pacific Salmon Treaty also covers coho and chum salmon fishing. Provisions for coho were simplified but did not change much. The provisions for chum call for decreased fishing pressure when the runs are low.

One of the steps before full implementation of the new treaty is for NOAA Fisheries in the United States to complete a biological opinion to ensure that the treaty complies with the Endangered Species Act.

In addition, the treaty must undergo a period of parliamentary consideration in Canada and executive approval in the U.S., and Congress must approve funding to implement provisions of the treaty that include habitat restoration, hatchery conservation, marking of Southeast Alaska hatchery chinook, and increased production of hatchery chinook specifically to feed the orcas.

Salmon migration on display during Saturday’s Kitsap Salmon Tours

Recent rains are bringing chum salmon into numerous streams on the Kitsap Peninsula, according to Jon Oleyar, biologist for the Suquamish Tribe. But more rains are needed to help the salmon reach the upper tributaries and fully seed the system, he added.

Chum salmon swim up Chico Creek on Thursday (11-1). // Photo: Emma Jeffries

“The fall fish are right on schedule,” Jon told me, “but I wish they had more water, especially for the tributaries.”

Folks attending the Kitsap Salmon Tours this Saturday should be able to see fish in most locations on this year’s list. Read on for details.

The fall chum themselves seem larger than average this year, Jon said, which means the streams need a little more water than usual for the fish to easily swim upstream.

Salmon can move quickly upstream and become stranded in too-shallow water after a downpour followed by a dry period, he said. In a worst-case scenario, fish may die before spawning. Once the rains have saturated the soil, the risk of low flows is reduced, but as of today we’re not at that point yet. Heavy rains last Saturday brought many fish into the streams, he added, but streams levels have dropped somewhat since then.

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Efforts continue to retrieve orca Lolita, despite legal setback

Although the Endangered Species Act may encourage extraordinary efforts to save Puget Sound’s killer whales from extinction, it cannot be used to bring home the last Puget Sound orca still in captivity, a court has ruled.

A 51-year-old killer whale named Lolita, otherwise called Tokitae, has been living in Miami Seaquarium since shortly after her capture in 1970. Her clan — the Southern Resident killer whales — were listed as endangered in 2005, but the federal listing specifically excluded captive killer whales.

In 2013, People for the Ethical Treatment of Animals (PETA) successfully petitioned the National Marine Fisheries Service to have Lolita included among the endangered whales. But the endangered listing has done nothing to help those who hoped Lolita’s owners would be forced to allow a transition of the whale back into Puget Sound.

This week, the U.S. Eleventh Circuit Court of Appeals in Atlanta reiterated its earlier finding that Lolita has not been injured or harassed to the point that her captivity at the Miami Seaquarium violates the federal Endangered Species Act, or ESA.

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New film celebrates the history of the Wild and Scenic Rivers Act

Today marks the 50th anniversary of the Wild and Scenic Rivers Act, and I was pleased to see that producer/director Shane Anderson and Pacific Rivers are allowing the documentary “Run Wild Run Free” to be shown online for three days before the film goes back into limited showings.

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Impassioned task force faces the challenge of saving endangered orcas

Passion for saving Puget Sound’s killer whales is driving an exhaustive search for ways to restore the whales to health and rebuild their population, but hard science must contribute to the search for workable answers.

I recently updated readers on the efforts of the Southern Resident Killer Whale Task Force, appointed by the governor to change the course of a population headed toward extinction. Read the story I wrote for the Encyclopedia of Puget Sound or the version reprinted in the Kitsap Sun.

I began the story by mentioning the term “no silver bullet,” a term I have heard numerous times from folks involved in the task force. They are emphasizing how difficult it is to restore a damaged ecosystem, while orcas wait for food at the top of a complex food web. All sorts of people are looking for a quick fix, something that will increase the number of Chinook salmon — the orcas’ primary prey — within their range, which includes the Salish Sea and Pacific Ocean from Vancouver Island to Northern California.

The quickest and simplest answers:

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Spring Chinook return to the Skokomish River to start a new salmon run

Spring Chinook salmon are being reared at a new hatchery on the North Fork of the Skokomish River. The hatchery is owned and operated by Tacoma Public Utilities. // Photo: Tacoma Public Utilities

For the first time in decades, an early run of Chinook salmon has returned to the Skokomish River in southern Hood Canal.

These bright, torpedo-shaped hatchery fish are the first of what is expected to become an ongoing run of spring Chinook as part of a major salmon-restoration effort related to the Cushman Hydro Project. Eventually, the salmon run could provide fishing opportunities for humans and orcas.

“it is pretty exciting,” said Dave Herrera, fish and wildlife policy adviser for the Skokomish Tribe. “Our objective has always been to restore the salmon populations that were once here.”

Andrew Ollenburg, Cushman fish facilities manager for Tacoma Public Utilities, reported that 19 spring Chinook — 15 females and four males — have been captured at the base of the lower Cushman Dam on the North Fork of the Skokomish River. As of this week, biologists estimated that 50 or 60 spring Chinook were in the river farther below the dam — and more are coming.

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U.S. Supreme Court justices raise questions about culvert damage

As state and tribal attorneys faced off yesterday in the 20-year battle over culverts, justices for the U.S. Supreme Court drilled both sides about numbers.

A coho salmon tries to leap into a culvert on Gorst Creek where water discharges from fish-rearing ponds. // Photo: Meegan M. Reid, Kitsap Sun

The culvert case is not about the 50-50 sharing of the annual salmon harvest. The courts ruled years ago that treaties with Puget Sound tribes guarantee Indians half the total salmon harvest, to be shared equally with non-Indians.

The culvert case is about the environment, specifically the idea that culverts are capable of blocking the passage of salmon, reducing the salmon population to a meaningless number and making the treaty right worthless.

From the transcript of today’s Supreme Court hearing, I’ve tried to pull out the most interesting and legally relevant questions.

Opening the hearing and speaking for the state, Assistant Attorney General Noah Purcell said the lower courts have essentially established a new treaty right with the ruling under appeal. If culverts must be replaced as a result of the treaty, then consider what could happen to dams and virtually any development that has ever had an impact on salmon runs, he said.

In legal briefs, state attorneys have argued that the treaties work both ways, that tribes gave up the right to manage the lands they ceded to the U.S.

Justice Samuel Alito noted that the treaty describes the right of Indians to take fish. “What do you think that means?” he asked Purcell.

Three rights come from that language, Purcell said. They are the right to fish in historical places, the right to a fair share of the available fish and a “right to be free of certain types of state actions that are not justified by substantial public interest.”

The tribes, he added, need to show that state culverts specifically are responsible for a “large decline” on a particular river. There are many other causes of salmon declines as well, and the state is trying to work on all of them, he said.

Alito said he doesn’t understand the meaning of “large decline” or even “substantial decline,” the term used by the federal government, which is a party to the case on behalf of the tribes.

“Well,” Percell said, “it has to be more than a fraction of 1 percent of historic harvests or 5 percent of recent harvest. We think, for example, certainly a decline of half the salmon would certainly easily qualify …”

Asked Justice Elena Kagan, “I mean, do you have a number in your head?”

Justice Neil Gorsuch wanted to know whether a 5-percent reduction in the salmon runs would be adequate to support the tribes’ position. “If they could show that 5 percent is attributable to the culverts, would that suffice to satisfy you?” he asked. “And, if not, I guess I’m where Justice Kagan is. What’s your number.”

Purcell said he thought that half would obviously quality but not 5 percent.

“Suppose,” said Alito, “that there were more than salmon than anybody knew what to do with, and then the state did something that caused a decline. Would that be a violation of the treaty?”

“I don’t think that would be a violation even under the respondents’ (tribes’) theory, Your Honor,” Purcell replied. “… and that recognizes the crucial other piece of language… The treaties ceded control of the off-reservation land to future government to regulate in the public interest. And so the government has to have the ability to make some types of decisions, even if they affect the treaty fishing right when there are substantial interests involved.”

Gorsuch said he is struggling with that concept, the idea that state government could pursue other public interests and balance them against treaty rights.

“The point of a treaty, I would have thought, would have been to freeze in time certain rights and to ensure their existence in perpetuity, regardless of what other social benefits a later municipality might be able to claim,” he said.

Purcell said the treaty must recognize interests other than the fishing rights of the tribes, and that includes actions to protect natural resources and public health.

“But where does this public interest theory come in in the treaty?” asked Kagan. “I thought this was an agreement. I give you my land. You give me the right to take fish. And — let’s make it narrower here — I have the right that you will not put up obstructions on these streams such that I can’t take fish.”

“Well, Your Honor,” said Purcell, “if the rule is narrowly limited like that, it’s much less problematic for the state, but the findings would not support that rule and it would outlaw every dam in the Northwest. So it’s inconsistent with the parties’ long-standing behavior.”

Alito asked federal prosecutors in the case whether federal dams also violate the treaties.

Assistant Solicitor General Allon Kedem of the U.S. Department of Justice said that issue was never part of the case and the legal issues have never been developed. Still, he added, many dams are built with fish ladders. In other cases, the U.S. government has compensated the tribes monetarily.

Justice Ruth Bader Ginsburg returned to the original language of the treaties, which “gives the tribes the right to take fish in common with all citizens.” One could simply interpret that to mean that nobody should discriminate against Indians, she said.

Kedem said the state had argued that point years ago, but the courts considered representations made by federal officials to the Indians when the treaties were signed. The conclusion, upheld by the Supreme Court, was that the tribes have access to fish in perpetuity.

Justice Kagan returned to the issue of numbers, asking Kedem if he has an idea how much habitat damage constitutes “substantial” degradation — the term used to define a treaty violation.

“So we don’t have a number,” Kedem said, adding that the lower courts used a habitat approach, the idea that loss of habitat would reduce the salmon population.

Later, Justice Alito turned to Attorney William Jay, representing the tribes.

“I hate to keep asking the same question,” he said, but does ‘substantial degradation’ mean a number or “significant degradation’ mean a number?”

“I don’t think it means a hard and fast number,” Jay said. “I think it is something that you would look at in context, in context of the particular species, in context of the strength of the species at a particular time.”

Without giving a number, Jay said, the court found that the state’s culverts are so numerous and reduce access to such a large spawning area that the impact on the fishery is significant.

“I just don’t see how that can mean anything other than a number,” Alito said, “and I still haven’t gotten an answer that seems to give any substance to this.”

Jay said the idea that the local, state or federal government could disregard the intent of the treaty while balancing their own perceived public interests is not consistent with promises made by the president of the United States and ratified by the Senate.

“If the promise made by the United States in exchange for millions of acres of the tribes’ land means anything … it protects against a threat to the fishery like these, a threat that obstructs fish from getting to the usual and accustomed fishing grounds where the tribes have a right to fish.”

For further reading:

Can carefully planned fishing seasons help the endangered orcas?

Salmon harvests in Puget Sound have been shared between Indian and non-Indian fishermen since the 1970s, when the courts ruled that treaties guarantee tribal members half the total catch.

Now a third party — Puget Sound’s endangered orcas — could take a seat at the negotiations table, at least in a figurative sense, as their shortage of food becomes a critical issue.

It isn’t at all clear how fishing seasons could be structured to help the Southern Resident killer whales, but the issue was discussed seriously at some length yesterday, when the 2018 salmon forecasts were presented to sport and commercial fishers. Thus began the annual negotiations between state and tribal salmon managers to set up this year’s fishing seasons.

General areas, in blue, where fishing closures in British Columbia are planned to provide extra salmon for Southern Resident killer whales.
Map: Department of Fisheries and Oceans

Penny Becker, a wildlife manager with the Washington Department of Fish and Wildlife, said a steady decline in the body mass of the Southern Residents has been observed, as the population fell to a 30-year low of 76 animals. People are calling for emergency measures, she said, noting that both Gov. Jay Inslee and the Legislature are working on ideas to protect the whales. See Water Ways Feb. 23 and Water Ways Feb. 17 and the Encyclopedia of Puget Sound, Nov. 2, 2017.

Concerns are running equally high in British Columbia, where the orcas spend much of their time in the Strait of Georgia. The Canadian Department of Fisheries and Oceans has proposed an experiment with fishing closures this year in four areas frequented by the orcas:

  • Mouth of the Fraser River
  • West side of Pender Island
  • South side of Saturna Island, and
  • Strait of Juan de Fuca

“The primary objective of the proposed measures is to improve chinook salmon availability for SRKW by decreasing potential fishery competition, as well as minimizing physical and acoustic disturbance in key foraging areas to the extent possible,” states a “discussion paper” (PDF 1.9 mb) released Feb. 15.

The closures would be in place from May through September this year, with increased monitoring to measure potential benefits to the whales. Comments on the proposal are being taken until March 15.

Canadians also are working with ship owners to see if noise can be reduced significantly by slowing down large vessels moving through the Salish Sea. Previous studies have shown that noise reduces the ability of whales to communicate and to find food through echolocation. Experts are compiling the results of the “Haro Strait Vessel Slowdown Trial” conducted last year.

One bill in the Washington Legislature would require boaters to slow down to 7 knots when in the vicinity of killer whales.

Limiting fishing in specific areas of Puget Sound, such as the west side of San Juan Island, could be implemented through state-tribal negotiations, Penny said. The closures would occur during summer when chinook salmon — the orcas’ primary prey — are in the area. One option would be to implement the closures on certain days of the week.

Some people have talked about giving the orcas a clean break from whale watchers, and that could involve excluding whale-watch boats from salmon-rich areas at the same time as the fishing closures.

“We’re looking for creative solutions to make this work within our constraints,” Penny told the group.

One fisherman at the meeting said every person on the water should automatically turn off his motor and sit still when whales are approaching. It’s a courtesy to help the killer whales find fish, he said, and anyway the fish are not going to bite on one’s line while whales are around. Generally, they don’t stay long in one place.

One bill in the Legislature would help the Southern Residents by increasing hatchery production of chinook salmon in Puget Sound. Reaction to the idea has been mixed, because hatchery salmon have been known to affect the fitness and genetic makeup of wild salmon. If approved, the boost in hatchery production would likely be a temporary solution.

Sport fishermen generally like the idea of increased hatchery production, because they would be encouraged to catch all the hatchery fish not eaten by killer whales.

The hatchery bill, HB 2417, was approved unanimously by the House Agriculture and Natural Resources Committee. No further action has been taken so far, but its provisions could be attached to the supplementary budget with funds specified for hatchery production.

Tuesday’s meeting in Lacey launched the beginning of the negotiations between state and tribal salmon managers, a process known as North of Falcon. The name comes the fishery management area from Cape Falcon in Oregon north to the Canadian border. The full schedule of meetings and related documents can be found on the WDFW website.

Forecasts approved by WDFW and the tribes predict poor returns of several salmon stocks this year in Puget Sound, the Pacific Ocean and the Columbia River, resulting in limited fishing opportunities.

“We will definitely have to be creative in developing salmon fisheries this year,” Kyle Adicks, salmon policy lead for WDFW, said in a news release. “I encourage people to get involved and provide input on what they see as the priorities for this season’s fisheries.”

Warm ocean conditions and low streamflows in recent years affected several salmon stocks returning this year. As ocean conditions return to normal, experts hope for improved salmon runs in years to come.

A total of about 557,000 coho returning to Puget Sound is about 6 percent below the average over the past 10 years. Extremely low numbers predicted for the Strait of Juan de Fuca and the Snohomish River are expected to force managers to limit fishing in those areas.

While hatchery chinook returning to Puget Sound are expected to be 38 percent higher than last year, the need to protect “threatened” wild chinook could mean ongoing fishing restrictions in many areas.

Next month, NOAA, which oversees threatened and endangered species, is expected to provide guidance for managing this year’s fisheries, including possible discussions about protecting Southern Resident killer whales.

A 10-year “Comprehensive Management Plan for Puget Sound Chinook” is scheduled to be resubmitted this summer in response to comments received from NOAA on the first draft.

Plans for protecting Puget Sound chinook and Southern Resident killer whales have begun to overlap in major ways, as saving one involves saving the other.