Daily Sitka Sentinel

STA Wins Round In Herring Lawsuit

By SHANNON HAUGLAND
Sentinel Staff Writer

Sitka Tribe of Alaska has won a victory in its lawsuit against the state in connection with its claims related to management of the sac roe herring fishery, and protection of the subsistence resource.

On Tuesday, Juneau Superior Court Judge Daniel Schally ruled on cross motions for summary judgment on Count 1 of the lawsuit, filed by Sitka Tribe of Alaska against the Department of Fish and Game and the Southeast Herring Conservation Alliance.

“The issue is whether ADFG’s interpretation of 5 AAC 27.195 is lawful,” Schally said.

That regulation relates to a requirement Fish & Game distribute the commercial harvest to ensure a “reasonable opportunity” to harvest herring spawn for subsistence.

Both the state and Southeast Herring Conservation Alliance, a fishing industry association, argued that the case should be dismissed.

In oral arguments Jan. 28, STA said Fish & Game was failing to follow the regulation that requires state biologists to “distribute the commercial harvest by fishing time and area if the department determines that it is necessary to ensure that subsistence users have a reasonable opportunity to harvest the amount of herring spawn necessary for subsistence users,” to meet the needs of Sitka, the region and the rest of the state.

The Department of Fish and Game has said it does take subsistence into consideration when it calls the time and location of the commercial fisheries, and believes it provides for an adequate opportunity for subsistence. Fish & Game said in an affidavit that it calls a commercial opening based on distribution of herring, the need to provide a fishery with good-quality and marketable herring, and the need to provide a reasonable opportunity for subsistence.

Other motions were denied in Tuesday’s ruling.

STA said the tribe was pleased with the initial victory.

“This is instrumental in our case and we are happy the result was positive,” said STA Tribal Council Chair KathyHope Erickson in a news release today following the decision on cross motions for summary judgment on Count 1. “We will continue in our steadfast manner as this litigation proceeds to protect the herring, not just for subsistence users and Tribal citizens, but for all users of herring as a resource.” 

The Department of Fish and Game said it had no comment at this time.

“We just received it and we haven’t had time to review it with state attorneys and what it means going forward,” said Troy Thynes, Fish and Game commercial fisheries regional management coordinator, speaking from Petersburg. “We need to have that discussion before we would make a comment.”

STA has claimed in its lawsuit that fishery managers and biologists failed to provide a “reasonable opportunity” for subsistence, in its management decisions for the commercial herring sac roe fishery. The court said the record does not show this.

Schally found in STA’s favor, saying, “If adequate explanations for ADFG’s determinations do exist in the record, the state’s record does not clearly reflect them. Because ADFG has failed to adequately explain its determinations in the record the court does not defer to the agency’s implementation determinations, to the extent they exist.”

The judge said: 

– the parties’ cross motions for partial summary judgment were all denied as to the claims relating to a requirement for the department to adequately consider the quality and quantity of herring spawn on branches, kelp and seaweed, and sac roe, when making management decisions related to subsistence spawn and sac roe fisheries.

– the state’s and Alliance’s motions were denied, relating to the distribution of the commercial harvest by time and area to ensure subsistence users have a reasonable opportunity to harvest herring spawn for subsistence.

– STA’s claim was granted, as it relates to requiring the department to distribute the commercial harvest by time and area to ensure a reasonable opportunity for subsistence.

STA said today it filed its lawsuit in 2018 after “experiencing consistently failing subsistence fisheries,” and argued that Fish & Game failed “to follow its legal duty to provide a meaningful right for subsistence harvest under Alaska’s subsistence law.”

STA said it “defended a 2002 Board of Fisheries regulation meant to ensure the commercial sac roe fishery was managed in a manner that would protect the herring egg subsistence harvest.”

STA cited Schally’s determination that “based on the undisputed record before the court, ADFG’s implementation of 5 AAC 27.195(a) is unlawful.”

“Tuesday’s court ruling makes it clear that ADF&G has failed to lawfully manage the herring fishery; and sends a signal to ADF&G that the Board regulations implementing the subsistence priority must be followed when managing the commercial fishery,” STA said in its news release.

The court date for the lawsuit is scheduled for July 27 in Sitka.