Southeast trollers question award of legal fees to Wild Fish Conservancy from chinook case
- Daily Sitka Sentinel
- 1 day ago
- 7 min read
By Anna Laffrey
Daily Sitka Sentinel
The Wild Fish Conservancy’s use of the Equal Access to Justice Act is alarming the small-boat fishermen who fought the conservancy’s lawsuit that sought to close the Southeast Alaska chinook troll fishery to preserve migratory chinook as prey for the endangered Southern Resident Killer Whales that feed in waters near Puget Sound.
WFC, a membership-based nonprofit with offices in Duvall, Washington, filed that lawsuit against the National Marine Fisheries Service in U.S. District Court in Washington in 2020. For months in 2023, a District Court order in the case threatened to close the summer and winter chinook troll fishery in Southeast Alaska.
Ultimately, an appeals court ruling allowed the Southeast troll fishery to continue as usual while NMFS updated the scientific documentation that it uses to authorize the fishery.
This past November, a U.S. District Court judge ordered the federal government to pay $1.6 million in attorney fees to WFC to cover its costs in its years-long lawsuit, pursuant to the Endangered Species Act and the Equal Access to Justice Act.
“It’s egregious to see WFC reimbursed for its costs,” said Tyler Emerson, treasurer of the Alaska Trollers Association, which intervened as a defendant in the lawsuit.
The lawsuit “caused an incredible amount of anxiety up and down the coastline,” Sitka fisherman Jeff Farvour said. “There’s financial impacts, and emotional or mental impacts, to Southeast fishermen and communities.”
Southeast communities contributed hundreds of thousands of dollars to support NMFS and the other defendants in the lawsuit, in defense of the hook-and-line chinook fishery in their coastal waters.
The conservancy “largely lost the case,” Farvour said. “Yet they demanded $2.3 million, and were awarded over $1.6 million.”
“The ones who they attacked – small rural Southeast Alaska communities, sustainable small-boat fisheries, tribes, the State of Alaska and others – are left paying their own bills with no recourse to cover their costs,” Farvour said. “It’s unbelievable that the Equal Access to Justice Act can be used this way.”
The justice act was enacted in 1980 with the intent of allowing veterans, social security beneficiaries, and other plaintiffs with limited income to seek attorney fees in a public interest lawsuit against the federal government, regardless of whether they were the prevailing party in the lawsuit.
Over the years, environmental groups have advanced their missions by utilizing their EAJA rights in suing the federal government over its protections for endangered species and their habitats.
For years, members of Congress, concerned by what they see as abuses of EAJA by some plaintiffs, have sought ways to reform the law. In December, the U.S. House Natural Resources Committee held an oversight hearing “examining how environmental non-governmental organizations abuse the Equal Access to Justice Act.”
As background for the hearing, the committee stated that “legal actions by NGOs (non-governmental organizations) force federal land management agencies to waste significant amounts of their budgets and time on litigation and decision reversals. This detracts from their responsibilities to manage and protect our natural resources.”
Emma Helverson, executive director of the Wild Fish Conservancy, said in an email to the Sentinel that EAJA “ensures that individuals and nonprofit organizations can hold the federal government accountable to the law.”
“EAJA is critically important to ensuring the public has a meaningful voice in the courts,” Helverson said. “Without it, many unlawful government actions would never be reviewed.”
Orca/chinook lawsuit
The Wild Fish Conservancy’s 2020 lawsuit argued that federal fisheries managers failed to address how the Southeast Alaska troll fishery that intercepts migratory chinook salmon could harm endangered Southern Resident Killer Whales that feed in waters near Puget Sound and harm specific chinook populations that spawn in Washington and Oregon rivers.
In May of 2023, a U.S. District Court judge threatened to close the Southeast Alaska troll fishery for chinook by vacating the NMFS “incidental take statement” that authorized the fishery despite its potential effect on those species.
In late June of 2023 the Ninth Circuit Court of Appeals granted a last-minute stay in the case, allowing the summer fishery to open as scheduled on July 1, while providing time for the NMFS to craft new scientific documentation authorizing the fishery.
In August 2024, an appeals court panel reversed the District Court judge’s decision from May 2023 that would have effectively shut down the regional, small-boat fishery in Southeast Alaska. The appeals court ruled in favor of the federal and state fishery managers whose management had been challenged by the WFC lawsuit.
In late 2024 NMFS said it had finished revamping its scientific documentation for the state-managed fishery to comply with the National Environmental Policy Act and Endangered Species Act.
Southeast fishing communities rallied funding and support for NMFS throughout the lawsuit. Both the State of Alaska and the Alaska Trollers Association intervened as defendants, and ATA also launched a legal defense fund.
Alaska’s congressional delegation and a coalition of Southeast Alaska tribal governments weighed in via amicus curiae briefs.
Emerson said that ATA raised about $217,000 in support of the defense, about two thirds of which came from municipal governments, tribal governments, hatchery organizations, members of the processing sector, other fishery gear groups, and the business community; and a third of which came from individuals.
He said other organizations contributed significant funds, and that the state and federal governments incurred the greatest costs.
NMFS Alaska Region Administrator Jon Kurland said the federal agency does not, as a matter of course, keep track of the costs involved with fighting lawsuits such as WFC’s.
$1.6 million award to WFC
In 2024, WFC filed a motion in the case requesting a $2.3 million award for the attorneys; fees and costs it incurred in suing the federal government.
WFC’s $2.3 million bill cited the cost of 4,686 hours of casework (at hourly rates between $260 and $750) by law firm Kampmeier & Knutsen partners and staff, and 320 hours of work by other legal counsel from 2020 through late 2025.
Defendants argued that those rates were “inflated,” and asked the court to reduce the award by 25%
District Court Judge Richard A. Jones decided in a Nov. 21 order that WFC is entitled to $1.6 million in attorneys’ fees, and an additional $79,000 in costs incurred since WFC filed the motion seeking the award.
Jones’ order followed with a court report that determined the award of more than $1.6 million is appropriate because WFC had “some degree of success on the merits” of its case.
Kurland, of NMFS, said that, when a court orders an award for attorneys’ fees and costs, “it either comes from (federal) agency funds, or from the Department of Justice’s judgement fund,” which pays settlements and judgements in lawsuits against the government.
Kurland said that the DOJ will make a final determination on whether WFC’s award is paid by the judgement fund or by NMFS.
“It’s a narrow issue at this point,” Kurland said. “The court has rendered that judgement, so now it’s just how we fulfill our obligations to the courts.”
Emerson said that the ruling awarding WFC’s legal fees “is frustrating for ATA and our fleet.”
“Taxpayers will now bear the burden of reimbursing $1.6 million in legal costs,” Emerson said.
He noted that WFC operates on annual revenues of about $2 million; some of that comes from federal grant funding.
The award of attorneys’ fees and other costs to WFC “encourages more lawsuits that target responsible fishing communities with limited resources, instead of focusing efforts on actual conservation solutions such as addressing pollution and habitat loss,” Emerson said.
Fisherman Mark Holst said that “it’s a clear abuse of our justice system that an environmental group can hire professional lawyers and litigators, get reimbursed, and continue their fight while us hardworking fishermen get stuck with a bill.”
Helverson said that WFC “does not profit from this or any litigation brought to enforce federal law.”
“The vast majority of the reimbursement is paid directly to our attorneys, with WFC only receiving reimbursement for costs we previously paid out of pocket,” Helverson said. “In this case, that is for costs paid to expert witnesses. All fee requests are submitted to, reviewed by, and approved by the court.”
WFC’s Endangered Species Act petition and second lawsuit
While its orca/chinook suit that threatened the Southeast Alaska troll fishery was ongoing, WFC in early 2024 filed a petition asking NMFS to list chinook as threatened or endangered across the Gulf of Alaska.
If approved, this listing would entitle NMFS to take over management control from the state for any Alaska chinook stocks listed under the Endangered Species Act, as well as their habitats; in general, federal regulations prohibit any harvest of fish stocks listed under the ESA, as well as any actions that would degrade their critical habitat.
In May of 2024 NMFS accepted the petition for a full review by issuing a 90-day finding that listing some Gulf of Alaska chinook stocks “may be warranted.”
A team of NMFS scientists had until January of 2025 to make a 12-month finding on whether an “endangered” listing is warranted for one or more of the Gulf of Alaska chinook stocks.
NMFS did not meet that deadline, so in May of 2025, WFC filed a new lawsuit against the National Marine Fisheries Service over its failure to provide a timely response to the conservancy’s petition.
As of today, a year after the deadline, NMFS has not released its finding on the ESA listing petition.
Kurland said that the parties in the case are working to find a way forward.
“There have been discussions ongoing between the Department of Justice and the plaintiffs regarding the schedule for proceeding in the case,” Kurland said.
In the ongoing lawsuit regarding the ESA petition deadline, WFC is again requesting a court-ordered EAJA award from the federal government to cover its legal fees.
• This article originally appeared in the Daily Sitka Sentinel.
