By GARLAND KENNEDY
Sentinel Staff Writer
After more than three months of deliberation, an Alaska Superior Court judge ruled in March that the Department of Fish and Game doesn’t have a constitutional mandate to use best available information, and therefore denied Sitka Tribe of Alaska’s motion for summary judgment in a lawsuit over the herring sac roe fishery in Sitka Sound. STA responded to the decision this week.
The lawsuit has been in litigation since 2018.
“Much like the court’s Nov. 20, 2020, order on ADF&G statutory obligation to consider herring roe quality on branches, kelp, and seaweed, the court finds that ADF&G has a constitutional duty to act in accordance with the Common Use and Sustainable Yield Clauses. (But) there is no explicit or implicit requirement that ADF&G use (best available information) to comply with these constitutional provisions,” Judge Daniel Schally wrote in a March 19 ruling.
In its suit, STA asked the court to determine that Fish and Game has a duty under the state constitution which “include(s) an implied requirement to use the best available information,” the judge noted.
Schally cited a ruling from the lawsuit Kanuk ex. Rel. Kanuk v. State Department of Natural Resources, which concluded that the determination of best science was not a matter for the courts.
“The court held that the executive and legislative branches were the proper parties to determine what the ‘best available science’ was and that such a claim was not justifiable,” Schally wrote in his decision.
In a statement released Tuesday, the Tribe expressed disappointment.
“STA is disappointed in the court’s ruling. STA continues to believe that scientific management of Alaska’s natural resources, as required by the Alaska Constitution, requires ADF&G to use the best available information. Alaska’s Constitution requires the conscious application of principles of management intended to sustain healthy and abundant fish stocks. There is wide consensus among fishery scientists and management agencies that use of the best available information is a critical element of responsible fishery management,” the press release states.
Moving forward, the Tribe could consider an appeal or request changes to Fish and Game policy to require that best available information be used in decision making.
“STA is considering its options and the implications of this decision going forward,” STA General Manager Lisa Gassman said in the release. “STA has not yet decided whether to appeal the court’s ruling or seek changes from the Alaska Legislature or Board of Fisheries to explicitly require ADF&G to use the best available information.”
Following Schally’s decision last month, the Tribe wrote that their claims in the suit have been resolved.
In 2020, Sitka Tribe prevailed in two claims related to the original lawsuit. The court ruled in March that Fish and Game needed to ensure there’s 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.
Both parties in the lawsuit, STA wrote, have now requested that the court enter into final judgment in the case.
