Tribe, state exchange blows over ‘reasonable opportunity’ for subsistence harvest of herring eggs
The tribal lawsuit over herring in Sitka Sound boiled down to one question this week: Does the management of the commercial seine fishery still allow residents a “reasonable opportunity” to harvest enough spawn for subsistence?
Attorneys for the Sitka Tribe of Alaska and the Alaska Department of Fish & Game offered polar opposite views on the issue, during oral arguments January 28, 2020, in Sitka Superior Court.
Both the Sitka Tribe and the state have made cross motions for “summary judgment” in the case, with the Tribe arguing that fisheries managers are failing to comply with the state’s own regulations for the Sitka Sound Sac Roe Herring fishery spelled out in Alaska Administrative Code.
Attorney Andrew Erickson spoke on behalf of the Tribe. Although the venue for the case is Sitka, Erickson and the other counsel appeared before presiding Judge Daniel Schally in his courtroom in Juneau.
“That’s where we are now,” Erickson said. “We’ve filed for declaratory judgment asking the court to declare what the regulation means.”
Erickson argued that the court needed to “fill the gaps” in statute to ensure that the law was followed.
The state’s position — since the case opened in 2018 — is that the authority to implement fisheries regulations lies with the Alaska Board of Fisheries — not with the courts. Attorney Michael Stanley represents the Southeast Herring Conservation Alliance, an intervenor in the case on behalf of the state. Stanley argued that the Sitka Tribe was bypassing the board process, and hoping to catch a break in the courts.
“The notion that the board has failed to take a hard look at these fisheries is absurd, frankly. Now counsel for the Tribe know this. They did what any capable lawyers zealously representing their clients would do: They cast about for a hook to snag some relief. And they landed on 5 AAC 27.195.”
That’s the specific Alaska Administrative Code covering the Sitka Sound Sac Roe Herring fishery, which says the Department of Fish & Game “shall…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 uses.”
Stanley went on to suggest that trying to establish the meaning of “reasonable opportunity” was not a problem the courts could solve.
“That’s the problem, Your Honor,” said Stanley. “The case is a construct. It’s an artifact of litigation. It’s abstract. It’s not grounded in reality.”
The Tribe countered by diving into a deposition made by state biologist Eric Coonradt, who manages the fishery. Attorney Erickson quoted from portions of the deposition where Coonradt testified that — all things being equal — he would allow a commercial opening to occur on the border of the closed subsistence area, if the fish there were more marketable than another school farther away.
Erickson said that this testimony clearly identified the state’s priorities were not aligned with statute.
“That’s the essence of this claim: Is that they’re subjugating the subsistence priority to the needs of the commercial fishery,” Erickson said. “And they’re saying that the closed area mostly took care of everything. But essentially there’s no fish getting into the closed area if they’re opening a commercial fishery right on the border and intercepting all the fish.”
Erickson cited additional testimony in which the state biologist said he had no access to any data during the fishery which would allow him to determine whether subsistence harvesters had reasonable opportunity.
Erickson suggested that this was concrete evidence that the state was out of compliance with it’s own requirement to ensure reasonable opportunity.
“This isn’t a construct that we’ve created,” said Erickson. “It’s just a matter that the department hasn’t been implementing the regulations.”
Judge Daniel Schally made no ruling following the hour of argument, but took the matter under advisement, and promised a decision soon. “The court is certainly aware of the time factor,” he said, “given that we’re in late January and this fishery, if it occurs, is in late March.”
Judge Schally a year ago ruled against the Sitka Tribe when it sought an injunction to require the state to revise its management strategy in the weeks prior to the 2019 Sac Roe fishery. However, no commercial fishery opened in Sitka Sound last season due to weak markets for the relatively small fish available — the first time there had been no opener since 1977.
Depending on Judge Schally’s ruling on summary judgment, the Sitka Tribe’s full case against the state is scheduled for trial in July.