Sitka Tribe scores one win in herring lawsuit and tries for another

STA staff and volunteers distribute herring eggs on branches after the 2020 subsistence harvest (KCAW/Berett Wilber)

The Sitka Tribe of Alaska in November won another round in its legal fight with the state over the management of the commercial herring fishery. And next week the court will hear new oral arguments and decide whether the state has upheld its constitutional responsibilities in its management of the fishery.

Andy Erickson is a lawyer with the firm Landye Bennett Blumstein, representing the Sitka Tribe of Alaska in its legal battle with the state that’s spanned over two years.

He says November’s proceedings were essentially “part two” of the court’s ruling on whether the state’s interpretation of a specific herring fishery regulation was lawful.

In March, Judge Daniel Schally ruled that the state had failed to demonstrate it was providing a “reasonable opportunity” for subsistence harvesters before opening the commercial fishery.

And in November, Schally issued a second order for “partial summary judgement” in Sitka Tribe’s favor. Schally determined that the state had failed to follow a regulation established by the Board of Fish in 2002.

“ADF&G must consider the quality and quantity of herring spawn on branches when making those determinations about whether there’s a reasonable opportunity, and whether to distribute the commercial fishery by time and area,” Erickson said.

In the 19 page decision, Schally explained that if the state Department of Fish and Game does consider the quality of spawn when making management decisions about the fishery, “its consideration is not clearly or adequately reflected in the record.” Schally wrote, “the consideration need not be immediately before the decision is made, but the consideration must have some substance.

The ruling means ADF&G must make some changes. Moving forward, the department must demonstrate in the record how it’s considering the quality and quantity of herring eggs as it makes management decisions. But Erickson said how the state interprets Schally’s ruling as it manages the upcoming Sitka sac roe herring fishery is still up in the air.

“That’s one of the unresolved questions because the court did say that ADF&G has some discretion in deciding how it considers quality and quantity,” he said.

In the decision, Judge Schally wrote that details such as how much weight the state gives to the quality and quantity of herring eggs and where it pulls its data from are “entirely committed to the discretion of ADF&G if reasonable.”

In a press release from Sitka Tribe of Alaska, General Manager Lisa Gassman said, “This should send a signal to ADF&G that the Board’s regulations implementing the subsistence priority must be followed when managing the commercial fishery.”

Lead attorney Sky Starkey said he hoped the court’s decision would result in a revival of a previously cooperative relationship between Sitka Tribe and Fish and Game.

Erickson says the next big milestone for Sitka Tribe’s case is just days away.

“The third and final aspect of this case, as it is right now is a constitutional claim,” he said. “The question there is whether ADF&G has complied with its constitutional duties regarding the management of this fishery.”

Oral argument is scheduled for January 14, at 8:30 a.m.

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