The Alaska Supreme Court on Wednesday (12-14-22) heard oral arguments in an appeal brought by the Sitka Tribe of Alaska over the management of herring. The Tribe asked the high court to reverse a 2021 Superior Court decision that ruled in favor of the state on a constitutional claim. A final ruling on the matter could take months.

Editor’s Note: Watch the full oral argument between representation for Sitka Tribe of Alaska, ADF&G and the Southeast Herring Conservation Alliance here.

In 2021, lawyers for the Sitka Tribe of Alaska argued that the state hadn’t met its constitutional obligation to provide the “best available information” to the Board of Fisheries, as it considered a number of proposals to limit the commercial harvest of herring in Sitka Sound during its 2018 meeting. The Tribe claimed that the state had omitted a particular document – called the Martell Report – which recommended a number of improvements to the way the Department of Fish & Game estimates the amount of available herring in Sitka Sound.

At the time, Juneau Judge Daniel Schally ruled that the state broke no rules by failing to provide the report to the Board of Fish. In his 13-page decision, he wrote that there is no requirement in the “sustained yield clause” of the state constitution for the state to provide the “best available information.” 

Over a year-and-a-half later attorney John Starkey challenged that claim before the Alaska Supreme Court.

“But our point is, despite how difficult it is, how technical it is, it’s up to the decision makers to make a judgment about all those issues,” Starkey said.

“Once it’s revealed, there can be a dialogue between the department and the board about the report. But if the board never gets to see the report, the board never gets to ask those questions, [and] the board never gets to make those judgments for itself,” Starkey said. “It takes the power away from the rulemaking authority to see the evidence, and for them to determine whether it’s too technical. In addition to that, Your Honor, it takes away the opportunity for the public to see the report.” 

Assistant District Attorney Kimber Rodgers, representing the state, argued that it’s the Board of Fisheries responsibility to balance the economic, ecological, and cultural concerns in its oversight of the state fisheries – not the court’s.

“This Court has repeatedly stated that courts may not substitute their judgment for that of the trained biologist and other scientists hired to manage Alaska’s complex fisheries,” Rodgers said. “But this is exactly what the Tribe is asking for. They’re asking for micromanagement of the decision making process. But the text of the sustain yield clause and this Court’s interpretations of that clause, do not impose such a duty on the department to provide any particular information to the board.”

Rodgers maintained that although state biologists weren’t constitutionally required to provide the Martell Report, their comments on regulatory proposals at the 2018 Board of Fish meeting were nonetheless informed by it. Rodgers said providing the whole document would not have been useful for board members.

“But that said, you know, herring were already returning in substantial abundance,” Rodgers said. “The department [was] going above and beyond and trying to do everything it can to make its forecasting model better. And that’s what the Martell Report was about. But it’s highly scientific and technical, very difficult for a layperson to digest.”

Rodgers also argued that the board could have obtained the report through the public process. It was never intended to be suppressed or concealed by the department.

“It’s true that the department did not specifically list that they had the Martell report, that it existed,” Rodgers said. “So but certainly I think members of the public could make [a] public records request to the department and say, ‘Please send me all the relevant information you have about this issue or that issue.’ And then the department would have some obligation to respond to that public records request. And then they might have, you know, as part of that, gotten the Martell Report and been able to provide it to the board themselves.”

Starkey, however, challenged that assertion, arguing that the state was overestimating the capacity of the Board to obtain material that wasn’t provided directly by the department.

“This remedy for finding out the information– that the public somehow going to discover the Martell Report, and be able to bring it out at the board meeting– it just, it doesn’t exist,” Starkey said. “The agency has got the information. They’re holding it. Sitka Tribe might have known that they were going to work on trying to prove the model, but they sure didn’t know that there was a report out there that explained how and what the problems were with with the current model.”

In her remarks, Senior Justice Dana Fabe suggested that the case pivoted on the idea of whether the department had failed in its responsibility to supply the Board with all the material needed for it to make an informed decision about Sitka’s herring population in 2018.

“And to that, our role is to ensure the agency is given reasoned discretion to all the material facts and issues,” Fabe said. “How can the board give its reasoned discretion that’s beyond our review once they take a hard look to all the material facts and issues, if those haven’t been provided to them? To me, that’s the bottom line of this case.”

The Supreme Court has taken the matter under advisement and will issue a written decision at a later date- which could be months away. 

View the Martell Report here, beginning on page 31