After over a year of consideration, the Alaska Supreme Court has sided with the state in a lawsuit over the management of the Sac Roe Herring fishery in Sitka. The five-justice panel upheld a 2021 ruling by a Superior Court judge who denied a claim by the Sitka Tribe of Alaska that Department of Fish & Game managers had violated the state constitution.
The Sitka Tribe of Alaska first sued the state in 2018, alleging that the commercial fishery management put herring stocks and traditional harvesting in jeopardy. After winning on statutory and regulatory claims, the Tribe argued that the Alaska Department of Fish and Game had a constitutional obligation to provide the “best available information” which it failed to do when it did not provide an independent scientific report to the Alaska Board of Fisheries. The report recommended a number of improvements for the method the department uses to estimate fish in Sitka Sound. The state countered that the report was highly technical and would not have been directly relevant for the Board of Fish in its decision making.
In 2021, Juneau Superior Court Judge Daniel Schally determined that the state hadn’t broken any constitutional rules by not providing the report, as there was no requirement in the “sustained yield clause” of the state’s constitution for the state to provide the “best available information.” The Tribe appealed the decision before the Supreme Court in December of 2022.
In a 23-page opinion issued on Dec. 29, the Court upheld Judge Schally’s decision to deny Sitka Tribe of Alaska’s constitutional claim. Law already requires agencies to provide all “relevant information” in resource management issues, and by not releasing the report to the Board of Fish, the Court said the Department of Fish and Game was exercising its own discretion. The Court also denied Sitka Tribe of Alaska’s request for a preliminary injunction under the “public interest,” and upheld Judge Schally’s decision to deny the Tribe’s attorney fees for its earlier claims. The Court determined that neither the state nor the Tribe had “bested” the other since both achieved victories in the case. Determining the prevailing party in a case, the Supreme Court wrote, is at the Court’s discretion.
In a press release, Tribal Council Chair Lawrence “Woody” Widmark responded to the ruling, saying, “While we are disappointed that the Supreme Court did not agree that the Alaska Constitution requires the state to use the best available information in fisheries management, the Tribe’s litigation still resulted in substantial improvements in management of the commercial sac roe herring fishery in Sitka Sound.”
“And while we will not receive attorney fees, we do not regret using our resources to defend the Tribe’s sovereignty over natural resources in our traditional territory,” he continued. “Our people have stewarded and protected the yaaw (herring) since time immemorial, and we will continue to do so.”
In a press release from the Alaska Department of Law, Attorney General Treg Taylor applauded the Court’s decision, “supporting the Department of Fish and Game’s work to provide the Alaska Board of Fisheries with guidance that is helpful and well-grounded in science, so that our fisheries will continue to produce for generations to come.”
And ADF&G commissioner Doug Vincent Lang wrote that the department takes its constitutional mandate to manage ‘consistent with sustained yield principle’ as its cornerstone. “It’s refreshing to see the courts recognize us for those efforts,” Vincent-Lang said.
Alaska’s newest Supreme Court Justice Jude Pate, who is from Sitka and is a former public defender and tribal attorney, was not on the court when the case was argued a year ago.
