Whether or not the commercial herring fishery in Sitka moves forward this spring could now be in the hands of a Juneau judge.
Superior court judge Daniel Schally on Tuesday (2-19-19) heard oral arguments on a request for an injunction brought by the Sitka Tribe of Alaska. If granted, the injunction could force the Alaska Department of Fish and Game to change policies and delay the fishery, which is only weeks away. KCAW’s Katherine Rose reports:
While the audience was full, seats for the plaintiff and defendant were empty at Sitka Courthouse. Around 25 Sitkans were in attendance in court to listen as legal teams from Sitka Tribe of Alaska, the Alaska Department of Fish and Game, and the Southeast Herring Conservation Alliance teleconferenced in for a hearing on the Tribe’s request for an injunction.
In December, Sitka Tribe of Alaska filed suit against the Alaska Department of Fish and Game and the Alaska Board of Fisheries after what it claimed were years of fishery mismanagement, resulting in unsustainable commercial harvest levels and drastically lower subsistence harvests. The Tribe called for an injunction requiring ADF&G to develop a new management plan prior to the start of the fishery this spring.
Juneau Superior Court Judge Daniel Schally heard oral arguments from both the Sitka Tribe and the state, as well as from the Southeast Herring Conservation Alliance, a nonprofit that joined the lawsuit as an opponent to Sitka Tribe. Both the regional Native corporation Sealaska and the Central Council of the Tlingit and Haida Indian Tribes have joined the suit as intervenors on behalf of STA.
Before and during the proceedings a few people stood outside the courthouse, holding signs that read “Start caring” and “protect the herring.”
STA’s attorney John Starkey argued that the Sitka Tribe is suffering irreparable harm as a result of ADF&G’s management practices, and not allowing reasonable opportunity for subsistence users. By default, Starkey claimed, the department was not following the regulations set forth by the state. The Tribe wants an injunction on the commercial fishery until ADF&G shows that they’re considering factors like the quality and quantity of spawn on branches when making management decisions, and to restrict the commercial harvest by fishing time and area.
Attorney Seth Beausang, representing the state, argued that the evidence the Tribe presented looked almost exactly like what was presented to the Board of Fish in January of 2018, when the board heard proposals to change regulations in the herring fishery. He said the Sitka Tribe delivered three of those proposals to the board.
“The board heard that evidence and other evidence- evidence of declining participation in the fishery, evidence from the department of scientists about how well they’re managing the fishery and how confident they are that the stock is healthy and they’re managing for sustained yield,” he said. “The board made its determination that there was a reasonable opportunity for subsistence uses. And the Tribe, not happy with that determination, is asking you to make a different call.”
Beausang argued that the state doesn’t consider the quality and quantity of herring spawn on branches before the fishery because the commercial fishery occurs prior to spawning. Lastly, he argued that the court wasn’t the proper channel for the Tribe.
“If the court were to entertain this injunction, then why even go to the board, right?” he asked. “If future plaintiffs know that they can just get what they want from a court rather than go to the board, that’s what they’ll do.”
Judge Schally had one question for Starkey and the STA legal team: Would this strategy necessarily lead to a delay in the commercial fishery?
Isn’t the result- even if you’re not asking for specific actions such as the delay of the opening of the fishery- isn’t the direct result or a very likely direct result, exactly that end?” he asked.
Starkey responded that it wasn’t the Tribe’s intention to put an unbearable burden on the department. With the fishery still up to a month away Starkey said, “There’s nothing to demonstrate that what we’re asking is such a burden on the department that it would result in a delaying of the fishery.”
Given the tight time frame, Judge Schally told the parties that he would rule on the request for injunction as soon as possible.