By SHANNON HAUGLAND
Sentinel Staff Writer
Superior Court Judge Daniel Schally issued a ruling today denying the Sitka Tribe of Alaska’s request for a preliminary injunction against the Alaska Department of Fish and Game and state Board of Fisheries, which the tribe contends are not providing a “reasonable opportunity” for the subsistence harvest of herring roe.
“No party disputes the importance to the Tribe and arguably also to similarly situated entities and individuals, of the subsistence fishery in issue,” Schally wrote in his decision. “But,” he continued, “the Tribe has not demonstrated that it faces irreparable harm if the requested relief is not granted, as it requests, in the brief and dwindling period of time between now and the beginning of the 2019 commercial and subsistence fisheries in issue, or during these fisheries.” The judge put the word “irreparable” in italic type in his written ruling.
Schally conducted a hearing in Sitka Superior Court Tuesday on arguments for and against the tribe’s motion for the injunction. Schally, of Juneau, and the attorneys representing the parties in the case participated in the hearing by teleconference.
The Southeast Herring Conservation Alliance, a commercial fishing organization, is co-defendant with the state agencies named in the STA complaint.
In his ruling Schally said, “As most succinctly described in the Alliance’s opposition brief, the Tribe has not met its threshold burden of demonstrating irreparable harm. The balance of hardships test has not been met.”
Wednesday’s ruling was on the petition to the court that the Sitka Tribe filed in December, seeking “a preliminary injunction requiring ADF&G to develop a fishery management plan prior to the opening of the commercial herring sac roe fishery in Sitka Sound during the 2019 season that is consistent with the ADF&G responsibilities under subsistence laws and regulations and such other relief as the court deems just and proper.”
The Tribe also asked for a judgment declaring that the regulations adopted by the Alaska Board of Fish for the Sitka Sound herring fisheries “are invalid and illegal as violations of the state subsistence law, the Administrative Procedure Act, and Alaska’s constitution.” In its arguments for an injunction STA stressed the importance of the subsistence harvest of herring roe for cultural and traditional uses, as well as nutrition.
The judge said in his ruling: “Any threatened harm demonstrated by the tribe is less than irreparable, and it has not been demonstrated that the responding (opposing) parties (particularly the Alliance, but also ADF&G) can be adequately protected in the event that the requested preliminary injunction is granted. Therefore, in order to prevail on the alternative probable success on the merits test, the Tribe must meet the heightened standard of a clear showing of probable success on the merits. It has not done so here, as described by the responding parties (particularly, ADF&G).”
The court said that a preliminary injunction has been described by the Supreme Court as a “harsh remedy” and trial courts have been cautioned against the “too frequent resort to the injunction.”
“Neither test for entry of a preliminary injunction has been met in this case,” Schally said.
STA said it planned to issue a response to the judge’s decision.
