STA employees sorted and weighed a 700 pound truckload of herring eggs on hemlock branches to distribute to Sitka elders. (KCAW photo / Enrique Pérez de la Rosa)
2019: STA employees sorted and weighed a 700 pound truckload of herring eggs on hemlock branches to distribute to Sitka elders. (KCAW/ Enrique Pérez de la Rosa)

A Juneau Superior Court judge will decide whether the state has met its constitutional obligation for subsistence, in the management of the Sitka Sound Sac Roe Herring Fishery. The court heard oral arguments on January 14 from attorneys representing the Sitka Tribe of Alaska, the state, and commercial fishing interests. The outcome could give Sitka’s Indigenous population a larger role in determining how herring are shared among user groups in the future. 

The Sitka Tribe filed suit against the state in 2018, claiming mismanagement of the herring fishery had infringed upon subsistence rights. Last year, the court made two judgments in STA’s favor: The Alaska Department of Fish and Game must demonstrate how they consider the quality and quantity of herring spawn on kelp and branches when making management decisions about the commercial fishery. And the department must ensure there is reasonable opportunity for subsistence users in its management of the commercial fishery.

In this latest hearing on January 14, the Tribe’s case rested on a third question: Whether the state has met its (Alaska) constitutional requirement to manage the Sitka Sound herring fishery for subsistence? 

STA attorney Andy Erickson argued that ADF&G had a constitutional obligation under the “sustained yield mandate” to provide the Board of Fish with the best available information so it could make informed decisions about managing commercial and subsistence fisheries. He said ADF&G failed to do that by omitting key reports and findings on the state’s scientific model.

He cited two specific reports — the subsistence harvest data report and the “Martell report,” both of which he argued ADF&G failed to provide to the Board of Fish. 

The Martell Report was a scientific study of ADF&G’s herring fishery model, written by a professor at the University of British Columbia in 2016. The report was commissioned by ADF&G and included some critiques and suggested fixes for the state’s modeling. Erickson said the public and STA weren’t aware of the report’s existence until it came up during discovery. 

“ADF&G had never provided that report, as far as record reveals or as far as anyone knows, to the board in 2018 or 2019,” Erickson said. “And the reason that’s important is because during those years the board was being asked specific proposals to change the regulation that ADF&G was implementing by using that particular model.”

Attorneys for the state and the Herring Conservation Alliance, which represents commercial fishing interests, argued that the state had met its constitutional obligations. 

Attorney Jeffrey Pickett said the Tribe’s argument did not “meet the constitutional threshold,” and if the state ruled in the Tribe’s favor, it would give competing user groups the right to demand constitutional review for any scientific judgements made by state experts, down to things like whether a spotter plane should “fly at 120 knots or 140 knots.” He said that wouldn’t be tenable.

Pickett said Erickson implied that ADF&G scientists were withholding information from the Board of Fish, which he said was “offensive.”

“Suggesting that these scientists and experts have put their thumb on the scale in favor of the commercial fishery,” he said. “There’s no evidence of that, that there’s any kind of malfeasance conspiratorial intent.”

Michael Stanley, who represents the commercial fishing alliance, said the Martell Report was only a small piece of information considered by ADF&G and it wasn’t unusual for the department to not provide it to the Board of Fish. And he said it could have been obtained by Sitka Tribe and the general public through a public records request.

Judge Daniel Schally presided over the hearing from Juneau. Around 40 people tuned into the broadcast on Youtube, and the Tribe’s opening oral arguments were not broadcast, due to technical challenges during the first half hour.

Schally said he found all of the arguments illuminating, and said issuing his decision would take some time.