In oral arguments before Judge Daniel Schally last January, counsel for the Tribe claimed that the Alaska Department of Fish and Game was not allowing for a "reasonable opportunity" to harvest the amount of herring spawn necessary for subsistence users, in violation of its own regulations. The Tribe also claimed the state had failed to lawfully document how it was attempting to provide that reasonable opportunity.
In a judgment on Tuesday, March 31, 2020, Judge Schally agreed, writing that the state’s implementation of current regulations was unlawful.
In his 12-page opinion, Schally wrote that the Alaska Department of Fish and Game’s interpretation of the state code in question was “a hodgepodge,” and that “discerning exactly what ADFG’s interpretation is has proven to be an elusive task.”
In its defense, the state argued that its press releases had provided adequate documentation of subsistence opportunity, but Schally saw things differently. His ruling states that Fish and Game had not provided a sufficient record explaining how (or even if) it determines if a reasonable opportunity exists for subsistence harvest before opening the fishery.
“If adequate explanations for ADFG’s determinations do exist in the record, the state’s record does not clearly reflect them,” Schally stated.
(Read the fully summary judgment here.)
In a news release, Sitka Tribe of Alaska Tribal Chair KathyHope Erickson said the Tribe is pleased with the initial victory. “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.”
Though this is the first win for the Sitka Tribe, the fight over future management of the commercial herring fishery in Sitka Sound isn’t over yet. The full case is scheduled for trial at the end of July. Last year at this time, Schally ruled against the Tribe’s request for an injunction against Fish and Game in the days prior to the opening of the commercial herring fishery, saying that the Tribe had not demonstrated that it faced “irreparable harm” if the injunction wasn’t granted before the fishery occurred.
