By SHANNON HAUGLAND
Sentinel Staff Writer
Superior Court Judge Daniel Schally today heard oral arguments in Sitka Tribe of Alaska’s lawsuit against the Department of Fish and Game over the department’s constitutional obligation to manage the Sitka Sound herring fishery for subsistence.
At issue in today’s hearing is whether the department applied principles of scientific management in its reports to the Board of Fisheries, which adopts policies that are used to manage both the subsistence and commercial fisheries.
Attorneys representing STA, the Department of Fish and Game and the Southeast Herring Conservation Alliance argued in an online hearing this morning. The Alliance, representing the commercial fishing industry, is an intervenor in this case.
Live video of the hearing was carried on the judge’s YouTube channel.
STA filed its original lawsuit in 2018, claiming that Fish and Game is not ensuring there is a “reasonable opportunity” for subsistence harvest of herring roe on branches, and whether ADF&G is complying with its constitutional requirement to provide the best available information to the board.
“This case is a big deal,” said Andy Erickson, the attorney representing the tribe. “For decades, subsistence harvesters have not been able to meet their needs. This is a pressing issue, and what ADF&G’s constitutional obligations are, are extremely important going forward.”
Fish and Game disputed STA’s claim that the agency has not been providing reasonable opportunities for subsistence harvest in accordance with its obligations. The Southeast Herring Conservation Alliance argued that the case is moot.
In his closing arguments Erickson discussed the use of “best available information” for management of the fishery, and the need to clarify the obligation of F&G.
“The tribe’s claim is asking the court to interpret: what are ADF&G’s constitutional duties,” he said, adding that the court has ruled on similar issues. “.... We’re asking the court to interpret, what does the constitution require ADF&G to do when it performs its functions – that’s not a judicially unmanageable standard.”
He said that in other rulings “the Alaska Supreme Court specifically said the ADF&G’s statutory obligations mirror its constitutional mandates. And so what the constitution means and requires ADF&G to do is a legal question. It’s a proper claim here.”
The state’s attorneys defended Fish and Game’s management of the stocks, saying department biologists with years of experience use methods to ensure “predictive and accurate” estimates in making decisions, and providing information to the board.
“In order to do that, they exemplified the highest professional integrity,” said Jeff Pickett, senior assistant attorney general for the state. “There’s absolutely no question about that. They have not put their thumb on the scale. They have not shaded information. They have not withheld information in any kind of conspiratorial or malfeasant way. Instead, what they’ve done is they’ve collected this massive amount of data and analyzed it.”
In that process, he said, they have made judgment calls “as any scientist or expert has to when dealing with the amount of information that is relevant to a complex fishery such as this one.”
That process includes determining what information is available, using the best information available, and exercising their scientific judgment in deciding “which – within that vast universe of data – is relevant to, and most helpful and useful, maybe exercising their management duties, and also informing the board so the board can craft a management plan that is constitutional as well as effective at managing the resource.”
Some of the arguments surrounded the “Martell report” by Dr. Steve Martell, and whether it should’ve been included in information presented to the board of fisheries.
Pickett said a ruling in favor of the tribe would “create a brand new constitutional cause of action that will give competing user groups the right to demand that this court and every other Superior Court in Alaska undertake a constitutional review of the scientific judgments that the state’s experts in natural resource management – scientists – are making. The tribe would subject those judgment calls to a constitutional review.”
He provided various examples of how Fish and Game estimates returning biomass through such means as aerial surveys and dive deposition surveys.
Pickett said the tribe has other recourse if it thinks the state is not managing the resource properly. He said the tribe’s claim, if granted, would elevate it to a constitutional review, “which is not tenable.”
“That’s the threshold issue here,” he said.
Michael Stanley, representing the commercial fishing alliance, also argued in opposition to the STA claim.
“They (STA) want the court to devise a new cause of action for challenging decisions by ADF&G – indeed every resource agency in the state – on the grounds the state failed to fulfill a constitutional duty to provide relevant information in the decision-making process,” he said. “They want the court to take on the role of scrutinizing how ADFG or any other or any other resource agency have presents information from a constitutional perspective. ...”
He said the flaw in the tribe’s argument “is the lack of judicially discoverable and manageable standards for the state to take on this role.”
In 2020, STA prevailed in two claims related to the original lawsuit. The court ruled in March that Fish and Game needed to ensure there is reasonable opportunity for subsistence users before calling a commercial fishery; in the second, in November, the court ruled that the quantity and quality of the herring must be taken into account in herring fisheries management.
The hearing today was off to a rough start with several technical problems on the YouTube channel that dozens of Sitkans and others watched online. The hearing was conducted through Zoom videoconference, with attorneys participating remotely. The judge was in the Juneau courthouse, but it is a Sitka case.
Schally apologized for the problems. As to when he would make a ruling, he said it “wouldn’t be tomorrow in any event.” He said the “significant issues” at play will require some time to analyze.
