Fisheries

Alaska Gov. Mike Dunleavy says he’s going to pursue legal action against the Environmental Protection Agency’s veto of the Pebble mine. On Tuesday’s Talk of Alaska, he called the EPA’s final determination a political decision.

“It’s on state land. We traded land for this particular mineral find,” he said. “The whole premise of Alaska as a going concern, as an entity, as a sovereign is that we were to develop our resources. That’s the irony of this whole thing.”

The EPA has vetoed mining at the Pebble deposit in southwest Alaska, exercising a rarely-used power under the Clean Water Act to ban and restrict the discharge of mining materials in waters around the site. It says doing so will “help protect the most productive wild salmon ecosystem in the world.”

Some Bristol Bay tribes started petitioning the EPA to use that veto authority in 2010, and the process has flip-flopped between three presidential administrations. Dunleavy, meanwhile, has been one of the most vocal opponents of the EPA’s actions at the Pebble deposit.

Opponents of the mine are celebrating the decision, and Dunleavy said he understands that some don’t like the Pebble project.

“But as governor, my job is to make sure that we take advantage of every opportunity,” he said. “I believe we have the best environmental standards in the world. And I think it’s… I think it’s a sad day for Alaska for the country.”

The U.S. Army Corps of Engineers denied Pebble a federal permit in 2020, but the company appealed that decision.

EPA officials said in a news conference on Monday that this ban is specific to the Pebble deposit and does not apply to any other projects in the state. But Dunleavy called the EPA’s action a “dangerous precedent.” He also said it was one in a series of projects that could have provided jobs in Alaska but were struck down.

“The irony of a lot of these projects that are trying to be shut down is that they’re located in some of the poorest areas of our state,” he said. “Now, what’s the answer for some of those folks that want to develop their resources, whether it’s Kokhanok, whether it’s out of Pedro Bay, Iliamna, what’s the alternative for them? A check from the government?”

Opponents of the mine say it would threaten the region’s ecosystem as well as the Alaska Native cultures that rely on traditional harvesting of wild foods, like salmon.

The Bristol Bay Native Corporation echoed other groups that cheered the EPA’s decision.

“We’re ecstatic that the EPA issued the final determination,” said Daniel Cheyette, the corporation’s senior vice president for lands and resources. “We do want to develop.  But we want to develop in ways that are sustainable for the region and supported by the majority of the folks that live in the region and that are our shareholders.”

Cheyette calls the EPA’s decision a major brick in the wall to protect the region’s salmon-based economy. But he said the Bristol Bay Watershed needs an even bigger wall to protect it from projects like Pebble Mine; the corporation plans to ask Alaska’s congressional delegation for help in passing legislation to head off mining and other potentially harmful development in the region.

Alaska’s congressional delegation had mixed responses to the announcement. Sen. Dan Sullivan said that while he opposed Pebble, the EPA’s actions could set a precedent for development on state lands. Sen. Lisa Murkowski reiterated her opposition to the mine but said she supports mining in the state and that the Biden administration has a responsibility to support other projects. Meanwhile, Rep. Mary Peltola supports the EPA’s use of its veto authority at the site.

KNBA’s Rhonda McBride contributed reporting on BBNC’s reactions to this story.

A federal appeals court has affirmed Metlakatla tribal members’ right to fish in their traditional waters without state permits. But a new opinion issued Tuesday by the Ninth Circuit Court of Appeals leaves open the question of where exactly those traditional fishing grounds are.

Metlakatla Mayor Albert Smith welcomed the news.

“This is something that we’ve been fighting for a long time, so we are extremely pleased to know that the Ninth Circuit so strongly supported our fishing rights,” Smith said in a phone interview from Juneau.

Metlakatla’s tribal government sued Gov. Mike Dunleavy and other state officials in 2020. The tribe asserted that the 1891 federal law that created the Annette Islands Reserve, the only reservation in Alaska, guaranteed the tribe fishing rights throughout much of the southern panhandle. Congress passed the 19th-century law after members of the tribe relocated from their previous home in Metlakatla, British Columbia at the invitation of President Grover Cleveland.

Senior U.S. District Court Judge John Sedwick rejected the tribe’s claim and dismissed the case the following year.

Metlakatla appealed to the Ninth Circuit Court of Appeals, which ruled in favor of the tribe last year. The court said Congress guaranteed Metlakatla’s tribal members the right to fish in their traditional waters despite the state’s limited entry program, which limits the number of vessels targeting particular species of fish.

“Alaska’s limited entry program, as currently administered, is incompatible with the Metlakatlans’ off-reservation fishing rights. Fishing had always been, and continues to be, the heartbeat of the Community. Congress’ intent in the 1891 Act was that the Metlakatlans would have off-reservation fishing rights that would ‘satisfy the future as well as the present needs’ of the Community,” wrote Senior Ninth Circuit Judge William Fletcher.

The Ninth Circuit’s three-judge panel initially ruled that Metlakatla tribal members had the right to fish in the state Department of Fish and Game’s Districts 1 and 2. Those encompass areas around Ketchikan’s Revillagigedo Island and the southeastern coast of Prince of Wales Island.

Smith says the tribe has records of its members bringing fish from as far as the Aleutian Chain. But he acknowledges that the tribe’s fishermen largely harvested from waters within a day’s travel of the reserve at the southeastern tip of the state.

“Since time immemorial, we’ve been fishing all of those districts — 1 and 2, all the way down to the border,” Smith said.

But the new opinion notes that the state of Alaska disputes the extent of the tribe’s historical fishing grounds. It’ll be up to the lower court to determine just how far the tribe’s fishermen should be allowed to go.

In its new order, the court also denied a request from the state of Alaska to reconsider its decision or put it before a larger Ninth Circuit panel.

Alaska Department of Law spokesperson Patty Sullivan said in a statement that the Ninth Circuit panel “continues to fundamentally misunderstand the history and legal framework in this case.”

“Even if the Ninth Circuit panel disagreed that the case should be dismissed, it should have merely remanded the case back down to the district court so it could properly vet the factual background,” Sullivan wrote. She said the state is reviewing the opinion and considering its next steps.

Smith says Metlakatla is eager to continue with the case.

“We are ready for the next phase in this case and look forward to finally and permanently restoring our community’s fishing rights. … Wayi Wah!” he said, using a Sm’álgyax phrase that translates to “Let’s go!”

The court’s decision would allow tribal members to fish “for personal consumption and ceremonial purposes, as well as for commercial purposes.” But details of how the decision might be implemented once the case concludes remain unclear.

Alaska’s governor says he’ll appeal a pending federal court ruling that threatens to shut down the Southeast king salmon season.

Gov. Mike Dunleavy was unequivocal when answering a question from a listener during Alaska Public Media’s “Talk of Alaska” on Tuesday.

The Duvall, Washington-based Wild Fish Conservancy filed suit against the National Marine Fisheries Service in 2019, arguing that a flaw in the agency’s environmental analysis left a small population of endangered killer whales in Puget Sound exposed to further harm due to the interception of their primary food source: king salmon, also known as chinook.

In barest terms, the proposed remedy to correct this alleged oversight by the NMFS involves shutting down the Southeast Alaska salmon troll fishery until the full impact of the chinook harvest on Southern Resident killer whales can be assessed.

The Alaska Department of Fish & Game intervened in support of the National Marine Fisheries Service; so did the Alaska Trollers Association. It hasn’t gone well. Although a federal judge in 2020 declined to impose an injunction against the Southeast troll fishery, the latest “Report and Recommendation” in the U.S. District Court of Western Washington, by U.S. Magistrate Judge Michelle Peterson, leaves open the possibility that the Wild Fish Conservancy could prevail.

The ruling includes a proposed order vacating the Incidental Take Permit, or “ITS,” issued by NMFS that allows the Southeast troll fishery to harvest chinook year-round. If a judge signs off on the recommendation, trolling for king salmon in Southeast might be off-limits for ten months of the year, making the fishery uneconomic and unviable for many trollers.

Although the state joined the lawsuit, it’s been relatively quiet about the case. That changed on Tuesday morning when Juneau troller Tom Fisher posed the question directly to Gov. Dunleavy on Alaska Public Media’s “Talk of Alaska.”

“My question is, will the state commit all resources necessary to take this court case to Ninth Circuit Court of Appeals? And if necessary, the Supreme Court?” Fisher asked.

“Yes. The answer is yes,” Dunleavy responded. “Because this is another example of opportunities being curtailed in Alaska. And again, I think we do fisheries better than the Feds did when we were territory. So the answer to that is yes.”

“We very much appreciate the governor’s conviction on pursuing this lawsuit to the end,” said Amy Daugherty, director of the Alaska Trollers Association. “You know, it’s just so frivolous, and so harmful to all of Southeast and our way of life here. So it’s such good news.”

Daugherty says her job has changed dramatically since the Wild Fish Conservancy filed suit three years ago. The existential threat to Southeast trolling — which is somewhere between 700 and 800 small businesses across the region — has grown, as the suit has progressed. She says the issue has not been overhyped.

“I think, it’s extremely valid,” Daugherty said. “The Wild Fish Conservancy has a lot more means certainly than the Alaska Trollers Association. And they seem to be applying it with absolute conviction. So we’re just doing everything we can: We’re getting a lot of resolutions, we’re getting new money every day, a lot from fishermen, a lot from organizations, processors, stores even. And we’re just hopeful that there will be some common sense, you know, brought forward through this process.”

It’s unclear what the immediate impact of a ruling in favor of the Wild Fish Conservancy would have on Southeast trolling, given the this newly reelected governor’s interest in fighting the suit to the bitter end. During the same “Talk of Alaska,” Gov. Dunleavy didn’t just go to bat for trollers, he reaffirmed a commitment to the industry as a whole, and to subsistence harvesters on Alaska’s interior river systems whose way of life is threatened by a still-unexplained collapse of king salmon and chum runs.

“I would say that this is priority number one when it comes to resources for this administration for the next four years,” Dunleavy said, in response to another caller. “And you know, missing a fishing season — two or three fishing seasons — has a detrimental effect not just as you said on food, but also on the fact that it’s difficult to pass down the ways of life and the culture if you can’t bring the kids out the fish camp.”

A final decision by the US District Court of Western Washington on the Dec. 13 “Report and Recommendation” in the case of the Wild Fish Conservancy versus the National Marine Fisheries Service (NOAA), et. al., is pending.

The U.S. Environmental Protection Agency announced Tuesday morning that it is effectively killing the controversial Pebble mine project in Southwest Alaska.

The decision caps a decades-long battle over a region that is not only home to one of the world’s largest deposits of copper and gold, but also the world’s largest wild salmon run. The EPA says the mine would cause too much damage to the salmon habitat, and it’s banning certain mining activities at the Pebble deposit.

United Tribes of Bristol Bay Executive Director Alannah Hurley called EPA’s decision historic. It’s a move some Bristol Bay tribes have been pushing the EPA to take for 13 years.

“Many of those who began this battle are no longer with us. New generations of our people have been born and raised with the cloud of Pebble hanging overhead,” she said at an EPA press conference on Monday. “But our ancestral responsibility to safeguard our watershed and fishery has united all of us in our work to defend the world’s last great wild salmon fishery.”

The EPA is exercising its rarely used veto authority under section 404-c of the Clean Water Act to prohibit mining the Pebble deposit. This is the 14th time in the history of the Clean Water Act and just the third time in the past 30 years that the federal agency has done so.

Hurley thanked the Biden administration multiple times. She pointed to its nation-to-nation discussions with the region’s tribes and said the federal government consulted with tribes when the state government would not. She also said tribes will continue their efforts to protect the region.

“Our work will not be done until every inch of our traditional homelands are protected,” she said. “And EPA’s action today helps us build that future where our people can remain Yup’ik, Dena’ina and Alutiiq for generations to come.”

Before Tuesday, the proposed Pebble mine already faced serious headwinds. The Pebble company had proposed building an open-pit copper and gold mine about 17 miles from Iliamna Lake. The U.S. Army Corps of Engineers denied Pebble a federal permit two years ago, and the mining company is appealing that decision.

In a written statement responding to Tuesday’s announcement, Pebble CEO John Shively said the EPA’s use of its Clean Water Act authority while the appeal process is ongoing is “unlawful and unprecedented,” and that doing so will likely result in legal action.

“For well over a decade, we have argued that fair treatment under the rules and regulations of the U.S should be followed for Pebble or any other development project,” said Shively’s statement. “Unfortunately, the Biden EPA continues to ignore fair and due process in favor of politics. This preemptive action against Pebble is not supported legally, technically, or environmentally.”

Gov. Mike Dunleavy issued a statement Tuesday along with leaders of several state departments blasting the EPA’s veto. He said the veto “sets a dangerous precedent.”

“Alarmingly, it lays the foundation to stop any development project, mining or non-mining, in any area of Alaska with wetlands and fish-bearing streams,” he said. “My Administration will stand up for the rights of Alaskans, Alaska property owners, and Alaska’s future.”

Alaska Attorney General Treg Taylor called the EPA’s decision “legally indefensible.”

The EPA said Tuesday that the mine’s harm to salmon habitat would be “unacceptable.” It said it would damage or destroy 100 miles of streams that support spawning and breeding and approximately 2,100 acres of surrounding wetlands.

The EPA’s action also goes beyond banning Pebble’s proposed project. It bars future projects that would cause a similar loss of aquatic resources, and it restricts the discharge of mining materials in the South and North Fork Koktuli Rivers and in the Upper Talarik Creek.

Still, EPA Administrator Michael Regan said the determination is focused on the Pebble deposit.

“We know that this particular project would have adverse impacts, that would significantly impact not only the industry, but also impact the ecosystem and have a significant impact from a cultural standpoint as well,” he said.

The EPA’s Assistant Administrator for the Office of Water Radhika Fox said the agency’s decision means that the Army Corps cannot grant Pebble’s appeal as proposed. But she said it does not ban every future project.

“It provides a roadmap for those types of projects that would create these adverse impacts, but does not at all apply to other projects that could potentially be considered,” she said. “And it does not apply to any resource development beyond this one in the state of Alaska.”

The EPA said the habitat around the Pebble deposit supports the diversity of Bristol Bay’s salmon and many other species, which in turn sustain the region’s Alaska Native communities and support its sport and commercial fisheries.

This story has been updated.

The Sitka Assembly is moving forward with plans to donate $25,000 to the Alaska Trollers Association, to support the organization’s ongoing legal fight against a Washington environmental group that hopes to shut down commercial fishing for king salmon in Southeast Alaska. And other organizations and locals are piling on, in anticipation of a lengthy — and costly — appeals process.

Alaska trollers and the Alaska Department of Fish & Game intervened in a lawsuit against the National Marine Fisheries Service brought by the Wild Fish Conservancy in 2020. The Duvall, Washington-based group argues that commercial trolling in Alaska threatens an endangered population of killer whales in Puget Sound by depriving them of king salmon – their primary food source. And they’ve been successful in court: In December a US District Court judge issued a report that, to make a long story short, puts the Southeast king salmon fishery at risk of closure.  And that means a bigger hole in the troll association’s pocket, as it anticipates a lengthy appeals process.

In early January, trollers drummed up support at the assembly table. And at its Jan. 24 meeting, more folks came out of the woodwork in support of the organization. Roger Hames of Hames Corporation, which owns a major grocery store in Sitka, said he’d been asked to contribute $5,000, but he’d likely contribute $10,000. Tad Fujioka is chairman of the board for Seafood Producers Co-Op. He said the Alaska Trollers Association had requested around $48,000 from SPC, but employees asked them to donate more money from their profit sharing pool.

“So even though ATA only asked for $48,500, the SPC board voted to contribute $59,000. It’s a investment in our company’s future. We can’t afford to lose access to troll salmon. And neither can Sitka,” Fujioka said. “So I encourage the assembly to be similarly farsighted, and make this investment alongside your citizen fishermen.”

And Jacquie Foss said it’s not just fishermen who have contributed to the trollers’ cause: The trollers association is receiving a lot of individual donations, and contributions from municipalities like Craig, Port Alexander and Pelican.

“I feel super just grateful to live in a place where everyone’s rallying around small boat fishermen. And so I know Sitka’s the biggest and it’s the most, and our ask might feel like a lot,” Foss said. “But a third of the fleet is here.”

Most assembly members said they’d support a $25,000 donation to the legal fund, and some said they’d be open to contributing beyond that amount in the future. Assembly member Tim Pike said he wanted to shift the conversation around ‘why’ the contribution was necessary.

“I heard it here a couple of times tonight, you know, ‘Trollers paid a bunch of taxes, so we owe it to them.’ I don’t see it that way,” Pike said. “I see it as a community investment. I see it as coming out of all of our pockets. I see it as something for all of us to contribute to. I don’t see it as ‘trollers have earned this.’ Okay, you’ve earned it because you are Sitkans, and you’re part of our economy. But I think it belongs to all of us, it doesn’t just belong to the trollers.”

City administrator John Leach said they would be putting more resources toward supporting the trollers association in the suit by putting pressure on the congressional delegation. He said staff and the city’s lobbyists had a meeting with staff from Senators Murkowski and Sullivan, and from Representative Peltola’s office last week to discuss options.

“It was reiterated by all all staff members on the call that it’s a very important issue for all three members of the delegation,” Leach said. “They found legal counsel with MSA and the salmon treaty expertise to assist them and are coordinating with each other regarding a possible amicus brief that they could file jointly with the court, and said they intend to circulate a draft internally among themselves as early as this week.”

Along with a separate resolution supporting the Southeast troll fishery, the assembly approved the $25,000 donation unanimously. The ordinance will come before the assembly for a final reading at the next regular meeting on Feb. 14.

After two weeks of staying at the dock, Kodiak’s tanner crab fleet is finally going fishing. Crabbers agreed to a price with the island’s processors on Saturday.

Each of Kodiak’s four canneries offered slightly different deals — Alaska Pacific Seafoods agreed to $3.35 per pound plus a retro payment — which can boost the final payout to fishermen after the season. Pacific Seafood also agreed to $3.35 per pound with a possible retro to fishermen. OBI settled with crabbers for $3.25 plus profit sharing, and Trident Seafoods stayed at $3.25 per pound.

It wasn’t exactly the deal Kodiak crabbers were hoping for, and some boats from Kodiak may still take their crab out west where processors are offering slightly more per pound. But ultimately, 80% of those in attendance at Saturday’s meeting agreed — it was time to go fishing.

“We stuck together, we’re gonna roll this thing out together, and we’re looking at it as a victory,” said Kevin Abena, the secretary and treasurer for the Kodiak Crab Alliance Cooperative, which represents the fishery’s permit holders.

Crabbers were initially offered $2.50 per pound ahead of the season, which started Sunday, Jan. 15. And at one point, nearly 200 vessels up and down the Aleutian Chain said they weren’t going fishing unless they were offered a better price.

Crabbers in Chignik and the South Peninsula started fishing last week after coming to an agreement with canneries in King Cove. But as of Friday, about 130 vessels from Kodiak still weren’t fishing. Alaska’s Department of Fish and Game also confirmed it hadn’t received any harvest reports or landings in that time.

“It’s important for these processors to know that we can stick together and organize and and honestly get a more fair deal on the table,” said Abena.

With a deal in place, crabbers will now set their gear at noon on Monday, Jan. 30 for the start of Kodiak’s tanner crab season.

Fishing can go fast in Kodiak’s tanner crab fishery — last year, the fishery closed after just about a week. This year’s quota is much larger, at 5.8 million pounds; that’s more than five times the size of last year’s harvest level. Abena said they’re expecting a bottleneck at local canneries, and some vessels might be stuck waiting to unload their harvest.

But despite all that, he says the fleet is more than ready.

“For a fisherman, he’s worried about when he’s going fishing and how long he’s going to be out fishing,” he said. “And now we have that first piece of that puzzle – we have when we’re leaving –  that’s huge.”

Abena is also the skipper of the fishing vessel Big Blue. He said after the last two weeks, he’ll feel a sense of relief when he pulls out of the harbor.