U.S. District Court Judge Timothy Burgess has his holiday season work cut out for him. Nearly two dozen commercial fishing operations working in the Western Aleutian Islands are pushing him to decide in their favor so they can return their livelihoods by the start of 2012. If he aims for that deadline, Burgess has less than two weeks to decide whether the fishermen's interest in catching cod and mackerel were wrongfully sacrificed to protect the area's Steller sea lions, an endangered species.
The issue has pitted the State of Alaska, nearly two dozen Washington-based fishing operations and Alaska Native interests in the affected region against the National Marine Fisheries Service and Greenpeace, which has entered the fray as a government ally.
On Thursday, Burgess presided over a hearing in which tables full of battling attorneys tried to convince him to see things their way. The plaintiffs argue the fisheries service took far too many liberties in deciding to close the fisheries, with devastating social and economic consequences to the people who live and work in the Western Aleutians.
If the fisheries are not restored, more than $83 million dollars in total earnings and $4 million dollars in tax revenue will be lost, they argue, adding that there is a social justice component to consider: the disproportionate impact of the lost fishing fleets to economically disadvantaged and minority communities -- in this case, the Alaska Natives who make of the majority of the region's population.
The case centers on several themes:
• That federal fisheries service failed to get community input or adequately consider community impacts in violation of a handful of federal mandates;
• That the fishing closures were based on an inaccurate interpretation of its obligations under the Endangered Species Act;
• That the agency incorrectly gauged the imperiled status of Steller sea lions in the area, and failed to prove that fishing was to blame for the sea lions’ slow recovery rates.
One such misapplication of duty was a fisheries service determination of what actions it must take when a protected species begins to tip toward ongoing decline rather than recovery, according to Ryan Steen, a lawyer for the Freezer Longline Coalition. He suggested that the law requires action when a species tips from precarious survival to a state of likely extinction. His clients and the federal decision makers disagree on whether this condition exists. And, taking the disagreement a step further, Steen argued it was wrong for federal fisheries service to try to ensure recovery of the Steller sea lion population by shutting down the fishery, especially since the sea lions, a chronically declined population, don’'t face a new, more acute threat.
"That is surely reaching the limit" of the agency's discretionary leeway, Steen told Judge Burgess.
"There was no emergency here, only a crisis created by the agency's own internal delays," argued Linda Larson, a third plaintiff's attorney who was there on behalf of the Alaska Seafood Group. "The harm to the plaintiffs is real and ongoing."
With the Western Steller sea lion population currently estimated at nearly 70,000, it didn't make sense to rush in with an extreme decision when waiting a few more weeks to allow fishing to get underway and community members to weigh in wouldn't change the situation, she said.
"It is clear that what the agency was trying to do was bring about environmental change," said Murray Feldman, an attorney for the state of Alaska who argued fisheries service didn't weigh social and economic conditions as required, but merely disclosed there would be impacts.
John Martin, a Justice Department attorney representing the fisheries service, urged Burgess not to be fooled by the plaintiff's arguments. "None of them hold water," he said when it was the defense's turn to make its case.
The western population of Steller sea lions isn't rebounding as quickly as its eastern neighbors. The western zone near Atka, some 1,200 air miles from Anchorage, is particularly struggling. Because of this, fisheries service was under "irreduceable time pressure to avoid violating the Endangered Species Act," he said. The agency, he argued, had a duty to "ensure the avoidance of jeopardy" to the sea lions.
"The overall trend is alarming," Martin said. Within a few years, the population is projected to half of it's high point in the 1990s, a threshold that requires additional protective action, he said.
It's not known why this group of Steller Sea Lions is languishing. Predation by killer whales, disease and ecosystem changes are not enough to explain the drop, said Martin. The birthrate among the sea lions is low, a trend that indicates nutritional stress. It is therefore reasonable to consider competition from fisherman, who seek the same fish seal lions eat, Martin said. And if nothing changed, the sea lions' numbers could drop even further.
Courtroom procedure allowed the plaintiffs to get the final words in, and attorney Linda Larson ended the day by pointing out that an estimated 26 Steller Sea Lions are directly killed each year by fisherman across the state of Alaska. With less than two dozen boats working the waters surrounding Atka, "We are not going to wipe out Steller Sea Lions," she said.
Earlier in the hearing Judge Burgess remarked on how fitting it was he heard the arguments on one the longest motions before him this year on its shortest day -- solstice. Taking the matter under advisement, he said he'd make a decision as soon as possible. Whether that decision will come swiftly enough for the fisherman seeking the go ahead to get to work Jan. 1 remains to be seen.
Contact Jill Burke at jill(at)alaskadispatch.com