Fisheries

The Biden administration could jump into a high-profile lawsuit involving a Southeast Alaska Native community that’s fighting with Republican Gov. Mike Dunleavy’s administration about its fishing rights.

The U.S. Department of Justice said in a filing late Tuesday that it’s considering submitting a friend-of-the-court brief in the dispute between the state and the Metlakatla Indian Community, a tribal government.

The three-year-old Metlakatla lawsuit, filed by the tribal government against Dunleavy’s administration, centers on the extent of fishing rights granted to the community’s members.

The Justice Department didn’t say which side it would take in the suit.

But the Biden administration has already filed a lawsuit against the state that it says is aimed at protecting the rights of rural subsistence fishermen in Southwest Alaska. And its filing Tuesday describes the federal government as having a stake in the Metlakatla lawsuit because it is the “trustee of the community’s federally reserved tribal fishing rights, with a general trust responsibility to preserve and protect those rights.”

A Justice Department spokesman, Matthew Nies, declined to comment, as did a spokeswoman for the U.S. Department of the Interior, whose attorneys also are named on the Biden administration’s filing.

Metlakatla, at the southern end of Alaska’s panhandle, is the only Indian reservation in the state. It was established by a congressional bill in 1891, after Indigenous Tsimshian people from British Columbia resettled there at the invitation of President Grover Cleveland.

In 1916, an executive proclamation by President Woodrow Wilson declared that the reservation extends 3,000 feet from the shoreline and gave Metlakatlans exclusive rights to the fish there.

The question in the lawsuit is whether Metlakatlans can also fish outside the 3,000-foot limit without being subject to the state of Alaska’s “limited entry” program, which requires commercial fishermen to have state-issued permits. In 2020, “in response to Alaska’s attempt to subject the Metlakatlans to its limited entry program,” the community sued the state in federal court, according to findings by a federal appeals panel.

After Alaska-based U.S. District Court Judge John Sedwick ruled for the state, the Metlakatla Indian Community appealed.

A panel from the 9th Circuit Court of Appeals sided with the community last year and reaffirmed its decision in February. It said the 1891 congressional bill gave the community’s fishermen non-exclusive rights to fish outside the limit without state permits, in “waters where they have traditionally fished.”

The case has now been returned to the lower court to decide precisely which areas those traditional fishing grounds include.

The Biden administration’s five-page filing this week asks U.S. District Court Judge Sharon Gleason, who’s taken over the case from Sedwick, to give the federal government until Jan. 12 to decide whether to participate as an “amicus curiae,” or friend of the court. The process for that decision, the filing said, was “recently initiated” and “involves multiple levels of review.”

Metlakatla’s mayor, Albert Smith, said he welcomes the federal government’s involvement, adding that the case is about preserving Metlakatla’s identity as a fishing community.

Other rural, Indigenous communities that lack their own fishing rights have seen sharp declines in permit ownership and participation under the limited entry system.

But Metlakatla’s fishing traditions, buoyed by the congressionally authorized tribal fishing rights, have thrived.

“It’s been a long time coming with the feds coming in,” Smith said. “I wish it could have been a little sooner, but they’re stepping in now, and we’re grateful and optimistic.”

In a prepared statement, a spokesperson for the Alaska Department of Law said her agency is hopeful that the federal government, after reviewing the case, “will come to support the state’s position” that the Metlakatla community “lacks the legal foundation for asserting their members hold an off-reservation fishing right.”

“This means that just like every other Alaskan, Metlakatla Indian Community tribal members would be subject to the laws that ensure sustained yield of our fisheries, including commercial fisheries,” said the spokesperson, Patty Sullivan.

If the Biden administration submits a brief on Metlakatla’s behalf, it would be the second time in just over a year that the federal government has challenged the state on behalf of rural fishermen.

The Biden administration last year sued the state over who has the authority to manage salmon harvests on Southwest Alaska’s Kuskokwim River. Dozens of villages along that river depend on salmon fish to feed their families, in a remote region where groceries are expensive.

Amid record low salmon runs, the federal government said only local rural residents could harvest salmon along a 180-mile stretch of the river inside a federal wildlife refuge. At the same time, the state issued its own orders that allowed subsistence harvests in the same area by all Alaskans, not just rural residents.

The dispute centers on competing interpretations of the landmark Alaska National Interest Lands Conservation Act, which Congress passed in 1980.

The Biden administration and the Alaska Federation of Natives, or AFN, argue that under that act, the federal government maintains the authority to manage fisheries in the contested stretch of the Kuskokwim.

The case has become a major source of tension between the Dunleavy administration and tribal groups, and AFN has intervened in the lawsuit on the federal government’s behalf.

AFN is closely watching the Metlakatla case and the potential for the Biden administration’s participation, according to Nicole Borromeo, its in-house attorney.

“We’re reviewing the filings, and taking a very keen interest in how DOJ proceeds,” she said.

Fishermen from outside of the reservation, who are subject to the state’s commercial permitting program, are also closely following the case, said Justin Peeler, a board member of the Southeast Alaska Seiners Association, a major trade group.

“It could drastically affect the fishing industry,” Peeler said. Everyone with a Southeast Alaska fishing permit, he added, “should be watching this very carefully.”

Nathaniel Herz welcomes tips at natherz@gmail.com or (907) 793-0312. This article was originally published in Northern Journal, a newsletter from Herz. Subscribe at this link.

A federal investigation into the unusually large number of Bering Sea and Aleutian killer whales found dead this summer determined that most but not all of the deaths were killed by entanglement in fishing gear.

The National Oceanic and Atmospheric Administration’s Alaska Fisheries Science Center on Friday released some details about the deaths in the Bering Sea and Aleutians, which had spurred sharp criticism of seafood trawling practices.

Of the nine killer whales that were found ensnared in bottom-trawling gear, six were killed by those entanglements but two others were already dead before they were netted, the investigation found. The other whale was seriously injured by the gear entanglement but escaped alive, the agency said.

In addition to the nine whales found in bottom-trawl gear, there were two other cases of dead killer whales found entangled in other types of fishing gear.

The bottom-trawling gear that entangled the nine whales, also called orcas, was from vessels in what is known as the Amendment 80 fleet – roughly 20 large ships that both catch and process fish. These catcher-processors use trawl nets that sweep the seafloor to harvest Atka mackerel, yellowfin sole, rock sole and other flatfish species. They do not harvest pollock, the species that makes up the biggest volume of harvested Alaska seafood.

In the other two cases, one dead killer whale was found in trawl gear used by a vessel harvesting pollock, the agency said. That whale was determined to have been dead before it became entangled.

Alaska’s pollock harvesters do not use bottom-trawl gear; instead, their nets scoop fish in waters that are more in the middle range of the ocean depths.

The 11th case was a whale found dead in longline gear used by a NOAA Fisheries vessel to conduct an annual survey for sablefish and groundfish. It was the first killer whale death in the 30 years that NOAA Fisheries has been conducting the survey, the agency said.

Genetic analysis of samples that were collected from eight of the whales revealed that all were members of the Eastern North Pacific resident stock, the most plentiful of Alaska’s killer whale stocks. All were female, the agency said.

While the total number of dead killer whales was much higher than past years’ totals but not high enough to cause negative population effects, the investigation found.

“Given the high level of incidental catches of killer whales in 2023, we knew it was important to move as quickly as possible to better understand whether these incidental takes pose a conservation concern to any of the potentially affected killer whale stocks,” said Robert Foy, director, Alaska Fisheries Science Center. For that reason, the center expedited the genetic analysis to better understand potential impacts on Alaska’s different killer whale populations.

To Jon Warrenchuk, a senior scientist with the environmental group Oceana, the results raise some additional questions. He said killer whale deaths have been increasing in trawl fisheries.

“We’re well past the point for taking a hard look at the impacts of bottom trawling in Alaska,” Warrenchuk said.

And he noted that the flatfish being harvested by the ships involved in the deaths are generally lower-priced and of lower value. “The fact that it happened during the harvest of this low-value fish brings into question whether the value of that fishery is even worth the cost of killing all these whales,” he said.

Warrenchuk said it is possible that the trawlers involved in the whale entanglements were targeting sablefish, a more valuable species than the flatfish that make up the bulk of the vessels’ harvests. Amendment 80 vessels in past years were prohibited from targeting sablefish, but that has changed recently, and they now have quota rights to some of those higher-value fish, he noted.

Oceana has asked for more information about the specific locations and time of the whale incidents

Critics of Bering Sea trawling practices have said the killer whale deaths might be attributable to the discards of fish netted incidentally as bycatch. The whales have identified the trawlers as a source of food, the critics argue.

In particular, they have pointed to a practice known as “halibut deck sorting,” in which the Amendment 80 trawl vessels are allowed to return incidentally caught halibut to the sea without it counting against their bycatch limits as long as the fish are sent back to the ocean within 35 minutes and in good shape. However, a recent report submitted to the North Pacific Fishery Management Council shows a significant reduction since 2020 in observed incidences of killer whales feeding off Amendment 80 trawler discards.

There are other concerns about halibut bycatch by the Amendment 80 fleet. Last week, NOAA Fisheries enacted a new rule that could reduce the fleet’s halibut bycatch cap. The rule replaces the current fixed limit of 1,745 metric tons with one that can be reduced as much as 35% below that if halibut populations are low.

This story originally appeared in the Alaska Beacon and is republished here with permission.

When scientists estimated that more than 10 billion snow crab had disappeared from the Eastern Bering Sea between 2018 and 2021, industry stakeholders and fisheries scientists had several ideas about where they’d gone.

Some thought bycatch, disease, cannibalism, or crab fishing, while others believed it could be predation from other sea animals like Pacific cod.

But now, scientists say they’ve distinguished the most likely cause for the disappearance. The culprit is a marine heatwave between 2018 and 2019, according to a new study authored by a group of scientists with the National Oceanic and Atmospheric Administration.

Mike Litzow is a co-author of the study and the director for NOAA’s Kodiak lab. He said starvation mediated by increased temperatures caused the collapse.

“Really the crab were not able to get the food they needed,” Litzow said. “They were just outstripping the resources that were available to them.” 

According to Litzow and his fellow researchers, the crab faced a number of compounding factors: First, higher temperatures meant increased metabolism so they needed more food; on top of that, there was less space for the crab to forage that food; and finally, the crab were just smaller than usual.

Researchers took data from the many possible hypotheses for the disappearance and they examined it alongside the data they have on the collapse. They examined possible mortality from a range of sources, including directed fishing from the snow crab industry as well as bitter crab syndrome — a fatal disease among crustaceans caused by parasites — and trawl bycatch.

“The take-home message is really that none of those other proposed mechanisms explains the collapse with the data we have,” Litzow said.

He said it’s tough to know what the collapse from increased ocean temperatures could mean for other species, but it’s safe to say we’ll probably see more marine heatwaves like this, and they’re likely to be bigger and more frequent, as the world continues warming.

“As we’re seeing these big surprising collapses, there is a general awareness that we have to build: we’re going to see more of those,” he said. “We need systems that can be resilient to those really outsized, surprising events.”

More carbon dioxide in the atmosphere means warmer temperatures, Litzow said, which is bad news for the cold-loving snow crab. And more greenhouse gasses also mean more acidic oceans, which can also be dangerous for some crab.

“Carbon dioxide that we release through fossil fuels is also taken up by the oceans and has the effect of reducing the pH of the ocean — it makes it more acidic,” Litzow explained. “Because crab use calcium carbonate in their exoskeleton, they’re vulnerable to that acidification because calcium carbonate dissolves more and more easily as pH goes down.”

The good news — at least for snow crab — is they’re not as sensitive to ocean acidification as other species.

“In our lab in Kodiak, we’ve run a bunch of different studies over the years looking at different crab species in different ages — life history stages — in terms of how vulnerable they are to acidification,” he said. “And the good news is it looks like snow crab are one of the more resilient species — like we don’t see a strong effect for snow crab the way we do for red king crab or the way we do for Tanner crab.”

Alaska’s snow crab fishery has been closed since 2022, when regulators declared the population overfished.

The snow crab crash in combination with a two-year closure of Bristol Bay red king crab was a devastating blow to Alaska’s lucrative crab fishery, and it left some harvesters and coastal communities, such as St. Paul Island, looking for other sources of income.

Late last year, the Secretary of Commerce announced a disaster declaration for both fisheries to assist communities affected by the closures. That funding has historically taken years to reach fishermen and communities. Some Bering Sea harvesters are still waiting on disaster relief from 2019 requests.

While the bigger picture is still pretty grim — crab have been declining in Alaska since about the early 80s — Litzow said there’s still lots of cold water in Alaska’s seas and with it, hope for the spindly crustaceans.

“Snow crab have bounced all over the place,” he said. “Historically, there have been ups and downs — there have been previous overfished declarations. And we’re certainly hopeful as we see small crab showing up in the survey in 2022 and 2023.”

But, Litzow said, the rebound could take some time.

“If conditions stay reasonable for the next, say, four years, we should expect this crab to grow up to the size where they can start to support the fishery,” he said.

The snow crab crash really blindsided Alaska’s industry, and more similar surprises are likely on their way, according to Litzow. He said the more dependent a community or fishermen are on a single fishery, the more vulnerable they will be.

While diversification may be one of the most productive solutions to these kinds of startling crashes, Litzow said it’s also likely one of the most challenging.

“We have this management system where everyone has access — it’s allocated in a certain way, or everyone has gear, vessels that’s really specialized for just this particular kind of fishery,” he said. “And then when those surprises and those disruptions come along, it’s hard in practice for people to have a backup.”

Like other research, Litzow said this study isn’t the final answer, but he said it is an important step.

“It really does a great job of framing out our expectations,” he said. “We should not expect that the crab were just gone somewhere else, down on the Slope, or up in Russia, or anything like that. I think this study really makes it clear that they died, and gives us our best explanation for why that happened.”

A father and son who are part-owners of a Petersburg fishing lodge were charged Tuesday by the State of Alaska with over 50 violations of state fishing laws.

Walter Payne, 74, and Mikel Payne, 50, are also the operators of Rocky Point Resort, along with other family and staff.

Mikel is facing 42 charges and Walter is facing 13 charges for violations in the June, July, and August of 2020.

All of the charges are misdemeanors involving illegal fishing for halibut. Halibut is strictly regulated with a limited quota for commercial and sports fishermen, and the harvests must be documented. State and federal officers were involved in the investigations. The officers say the two men helped their clients take too many halibut and did not accurately document the halibut that was caught.

Many of the charges stem from guided angler fish halibut. That’s halibut quota sold by commercial fishermen to guided sports fishermen through a federal catch-sharing program.

The charges follow over 50 similar counts charged in May against four fishing guides at the lodge.

Summons for both Paynes were issued on Wednesday. Their arraignment is set for Dec. 4 at the Petersburg Courthouse. Mikel Payne, when reached by phone Thursday, said he hadn’t seen the charges yet. Walter Payne could not be reached.

The state’s prosecuting attorney is Ronald Dupuis with the Office of Special Prosecutions in Anchorage.

Northern pike, an invasive species of fish, have been eradicated from the Kenai Peninsula, according to the Alaska Department of Fish and Game. The species, which are native to Interior and Western Alaska, were illegally introduced to the Kenai Peninsula by fishermen in the 1970s.

Northern pike pose threats to native species in the region, including salmon. They thrive in slow-moving waters and can grow their populations quickly, dominating other species and causing permanent changes to ecosystems. Invasive Species Biologist Kristine Dunker is involved in eradication efforts on the peninsula, which began in 2008.

“In terms of eradication, getting rid of all the pike in a population, the priority really has been eradicating them for the Kenai Peninsula, which as far as we know, is now the case,” Dunker said. “All known populations have been removed.”

In 2019, pike were discovered in Vogel Lake at the northern tip of the Kenai Peninsula. Before then, they had only been identified in lakes accessible by car. Research following the discovery indicates that pike can use Cook Inlet to travel between freshwater ecosystems.

After the discovery was made, Fish and Game added a weir near Vogel Lake to prevent northern pike in Cook Inlet from entering the body. Scientists say pike are most likely entering the Inlet by way of the Susitna River.

Invasive Species Biologist Parker Bradley says northern pike were eradicated from Vogel Lake, and the Kenai Peninsula, in 2021.

“We’ve eradicated pike from a total of 28 water bodies in Southcentral, and of those, 21 have been on the Kenai Peninsula,” he said.

Now that northern pike are utilizing the Inlet, the focus has shifted to prevention, which includes education and enforcement efforts. Eradication efforts of northern pike are still underway in the Matanuska-Susitna Borough, which scientists say is more difficult.

Fish and Game asks anyone who catches an invasive pike to report it and retain the fish, when possible. You can report your findings on Fish and Game’s website or by dialing 1-877-INVASIV.

Sean Den Adel and his fiancee Skye Steritz live in Cordova and are among a handful of small-scale seaweed farmers in Prince William Sound.

They’ve been harvesting mostly sugar kelp on about five acres of water since 2022. Den Adel said he’s excited about the future of the industry, which he sees as more sustainable – ecologically and economically – than the fisheries that have supported Prince William Sound for generations.

“I really do think it’s going to create a lot more jobs in coastal communities, and it already is doing that,” he said.

But in order to grow the industry, Cordova’s kelp farmers need a way to process seaweed locally.

Prince William Sound has experienced five fisheries disasters since 2016, in part because of climate change. These disasters put a major economic strain on coastal communities. Growers like Den Adel are hoping seaweed can help bolster and diversify the region’s economy.

Cale Herschleb, another Cordova-based kelp farmer with Royal Ocean Kelp Company, has commercially fished for salmon in Prince William Sound for the last 15 years. The fisheries disasters have been challenging and the future of salmon fishing feels uncertain, he said, and growing kelp makes sense as an off-season occupation.

“I’ve been looking for a way to diversify and still use the [fishing] equipment that is pretty expensive, try to keep the boat working through the winter,” he said. “I just view it as a way to diversify and do something positive for the environment.”

Den Adel’s and Steritz’s kelp farm is called Noble Ocean Farms. Den Adel said eventually they would like to hire employees, but for now the two of them run the entire operation. They produce kelp to be made into seaweed snacks.

Den Adel said they’re facing one big problem with growing their business: there’s no reliable way to process seaweed in Cordova.

“We don’t really have anywhere to process right now, which is a huge, huge conundrum for us,” he said.

Specifically, there’s nowhere to dry large quantities of seaweed, which means Noble Ocean Farms is shipping out their kelp wet.

Kelp is about 90% water, which means it’s a lot heavier to ship when it’s fresh than when it’s dry.

“When we’re just selling wet kelp frozen, the energy costs are high. The shipping costs are high,” Den Adel said.

Alysha Cypher, a marine biologist at the Prince William Sound Science Center in Cordova, is trying to solve this processing problem for local kelp farmers.

“There’s fish processors here and they are interested [in seaweed], but until there’s a larger market, it’s not worth it for them to buy any equipment or get involved,” Cypher said.

Right now the kelp-farming market is tiny. According to Den Adel, there are only seven permitted growers in Prince William Sound, and only five of them are actively farming. They’re limited by the lack of processing capacity.

But Cypher recently obtained a $380,000 grant from the Environmental Protection Agency to pilot a seaweed-drying project in Cordova over the next three years. Electricity to power dehydrators is expensive off the road system, so Cypher’s idea is to use waste heat from the Cordova Electric Co-op’s diesel generators to dry the seaweed.

“It’s like 115 degrees on the pad,” Cypher said. “The building — you can see the heat billowing off of it.”

The co-op offered to let Cypher and her team build an insulated structure on their property and pipe in waste heat from the diesel generators.

“Then most likely what we’ll do is we’ll tumble seaweed in big tumblers to see if we can get seaweed dry enough that it’s a shelf-stable product,” Cypher said.

She and her team have a grant period of three years to figure out if they can make this seaweed drying project work. Noble Ocean Farms and Herschleb’s Royal Ocean Kelp Company each agreed to donate a thousand pounds of this year’s harvest to test the process.

If the project is successful, Cypher envisions that seaweed farmers could form a cooperative to process their harvests together with the waste heat method.

Herschleb is hopeful that this project will encourage fish processors in Prince William Sound to start investing in mariculture.

“We have reached out to the local processors and tried to get them interested,” he said. “Maybe something like this would help them see that it’s viable.”

Cypher and her team will spend the winter designing the waste heat drying system. She hopes they’ll be able to test-dry their first batch of Cordova seaweed this spring.