A federal judge has awarded an environmental group more than $1.6 million for prevailing in a lawsuit against Endangered Species Act regulations for killer whales.
In 2020, the Wild Fish Conservancy nonprofit filed a complaint alleging the National Marine Fisheries Service violated federal laws with a “biological opinion” for the “southern resident” population of the species living off the Northwest coast.
In the biological opinion, or BiOp, the agency concluded that continued fishing for salmon — a key food source for killer whales — wouldn’t jeopardize the species, subject to harvest limits in Alaska and conservation measures for fish habitat.
Salmon are an important link between agriculture and killer whales, as irrigation and farming practices are considered to affect fish populations in Northwest rivers, and thus the health of the “southern resident” population.
According to the Wild Fish Conservancy, the BiOp lacked specific and binding plans and deadlines for killer whale conservation measures, such as insufficient details regarding a $5.6 million annual “prey increase” program proposed by NMFS to boost salmon fish hatchery output for about five years.

Judge’s ruling

A federal judge agreed with the environmental plaintiff that NMFS did “not include any specific deadlines for implementing the proposed mitigation,” including how much more prey the funding would make available for southern resident killer whales, or SRKW.
“Tellingly, NMFS fails to specify how the funds will be spent, how many additional fish could be produced, where fish would be released, or when, where, or how many salmon could be made available to SRKW or to aid recovery of Chinook salmon,” according to the ruling.
Due to these and other shortcomings identified in the ruling, the judge ordered the federal government to reconsider the BiOp and blocked part of the regulations related to commercial salmon harvest during certain seasons in 2023.
Though NMFS admitted that the Wild Fish Conservancy was entitled to some compensation under the Equal Access to Justice Act, under which plaintiffs can recover money for successful litigation against the federal government, but the agency claimed the group’s billing rates and hours were “inflated.”
The agency also argued that the legal remedies ordered by the judge fell short of what the environmental plaintiff had sought in its lawsuit, diminishing the scale of its victory, which should decrease the nonprofit’s $2.3 million request for compensation.
A federal judge has now determined the billing rates sought by Wild Fish Conservancy were “reasonable” given the “highly specialized practice of federal environmental litigation.”
However, the judge did reduce some of the hours sought by the group for time spent preparing documents and holding conferences, bringing the award down to about $1,633,000 in attorney fees and $42,000 in other litigation costs.