Alaska Supreme Court issues final decision in Sitka Tribe of Alaska herring litigation

By Jasz Garrett

A stock photo of herring roe.

Sitka, Alaska (KINY) – On Dec. 29, the Alaska Supreme Court issued a final decision in the Sitka Tribe of Alaska’s (STA) long-running litigation against the State of Alaska over its management of the Sitka Sound commercial sac roe herring fishery.

The justices upheld a lower court decision to deny the Tribe’s constitutional claim and award of attorney fees for having prevailed in its statutory and regulatory claims. The decision concludes the legal action that the Tribe initiated against the state more than four years ago.

The STA has expressed concern about the impact of the commercial sac roe herring fishery on the health of the herring population in Sitka Sound and the availability of subsistence herring eggs for decades.

Between 2001 and 2009, the Tribe worked to address these concerns with the Alaska Department of Fish and Game (ADF&G).

In 2012, the Board of Fish responded to the Tribe’s concerns by closing a portion of Sitka Sound to commercial fishing.

The Board expanded the closed area in 2018.

In late 2018, the STA sued the Department and the Alaska Board of Fisheries after poor subsistence harvests of herring eggs, claiming the problem came from the commercial fishery that catches herring before they spawn.

The Tribe alleged that the state’s management of the commercial Sitka Sound sac roe herring fishery violated the subsistence priority in state statute and the common use and sustained yield clauses in the Alaska Constitution.

The Superior Court denied the Tribe’s claim that the sustained yield clause of the Alaska Constitution requires the state to use the “best available information” to regulate the fishery, as well as its request for attorney fees for having substantially prevailed on the statutory and regulatory claims. The Tribe sought a preliminary injunction, which the Superior Court denied.

In 2023, STA appealed to the Supreme Court on these issues.

In its consideration of the Tribe’s appeal, the Supreme Court concluded that ADF&G had appropriately exercised its judgment in providing technical information to the Board of Fish.

It found that the Superior Court had not abused its discretion in deciding not to award attorney fees to STA for having substantially prevailed on statutory and regulatory claims.

“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 ligation still resulted in substantial improvements in management of the commercial sac roe herring fishery in Sitka Sound,” Tribal Chairman Lawrence “Woody” Widmark said. “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. Our people have stewarded and protected the yaaw (herring) since time immemorial, and we will continue to do so.”

Chairman Widmark also expressed his thanks to other Tribes, Native corporations, and partners for their support of the Sitka Tribe of Alaska’s defense of the yaaw and the rights of subsistence harvesters.

Senior Assistant Attorney General Aaron Peterson gave a summary of the defense made for the state during an interview.

“The sustained yield clause requires the application of the sustained yield principle and that the model used by the department in managing Sitka Sound herring, and that the plan established by the board of fisheries for the management of that stock, appropriately ensured sustained yield into the future, rather than a rigid formula,” he said. “The sustained yield principle takes more into account. It requires more fulsome analysis of the fishery and ebbs and flows in fisheries and various other factors.”

Peterson said herring is measured in a variety of ways, and one of the ways it is measured is in miles of shoreline spawn. He added that data supports that the management did not violate the constitutional rule.

“There was an extremely significant spawn event in ’19, an even larger one in ’20, an even larger one in ’21. The importance of that is not simply, well, there were a lot of herring in these years. What’s important about that is it’s been measured in a certain way. The commercial fishery has been prosecuted in a certain way. And that continued throughout,” he said. “So, the correlation with, you know, because there’s a commercial fishery, that must be the reason for any other fishery seeing a reduced success…the just sheer magnitude of the data strongly suggests otherwise.”

ADF&G Commissioner Doug Vincent-Lang said ADF&G takes their constitutional mandate to manage ‘consistent with sustained yield principle’ as its cornerstone, and it was refreshing to see the courts recognize ADF&G for those efforts.