IN THE SUPERIOR COURT FOR THE STATE OF AL/S3&@dn the Trial Courts

IN THE SUPERIOR COURT FOR THE STATE OF AL/S3&@dn the Trial Courts

State of Alaska First District

FIRST JUDICIAL DISTRICT AT SITKA Sitka

NOV 392020

SITKA TRIBE OF ALASKA,

Plaintiff,

)

)

)

)

v. ) Case No. 1ST-18-212CI

STATE OF ALASKA,

ALASKA DEPARTMENT OF )

FISH AND GAME, and )

ALASKA BOARD OF FISHERIES, )

)

Defendants, )

)

and ) ORDER GRANTING

) RENEWED MOTION FOR

)

)

)

)

PARTIAL SUMMARY

JUDGMENT!

SOUTHEAST HERRING

CONSERVATION ALLIANCE,

Defendant-Intervenor,

Presently before the court is the Sitka Tribe of Alaska’s (“STA”) June 3,

2020 renewed motion for partial summary judgment on Count I, relating to the

State of Alaska Department of Fish & Game’s (“ADF&G” ot “State”)

interpretation and implementation of 5 AAC 27.195(b). ‘The Southeast Herring

Conservation Alliance (“Alliance”) filed its opposition to STA’s motion on

June 9° and filed an erratum on June 19. ADE&G filed its response to STA’s

motion on June 10. STA filed its reply to ADF&G on June 15, and its

response to the Alliance on June 19.

On March 31, 2020 the court denied partial summaty judgment for all

parties on the claim under Count I that the State has unlawfully interpreted and

' Case Motion #25,

* Southeast Lerring Conservation Alliance Reply in Support of Motion to Renew Review of Summary Judgment

Motions, June 9, 2020.

ORDER - Case 1SI-18-212CI Alaska Court Systent

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implemented 5 AAC 27.195(b).’ The March 31 order reasoned that the

Alliance had submitted sufficient evidence from the Board of Fisheties’

(“BOF”) record to raise a genuine issue of material fact as to whether (6) as

codified reflects what the BOF adopted and is thus enforceable. This

conclusion relates to AS 44.62.110, which says in its entirety:

(a) The publication of a regulation in the Alaska Administrative

Code or register raises a rebuttable presumption that the text of

the regulation as so published is the text of the regulation

adopted.

(b) The courts shall take judicial notice of the contents of each

regulation or notice of the repeal of a regulation printed in the

Alaska Administrative Code or Alaska Administrative Register.

To overcome the presumption referenced in subsection (a), a challenger

must show a substantial failure to comply with the Administrative Procedure

Act (“APA”). It is a challenget’s burden to show this inconsistency.>

With its original pleadings the Alliance attached a BOF draft plan of

subsection (b), which appeared to provide a more permissive standard than

does the regulation as codified:

In managing the Sitka Sound commercial sac roe herring fishery

the department shall

(3) recognize that quality and quantity of herring roe on branches

and herring sac roe is an important consideration in the

management of the subsistence and commercial sac toe fisheries.°

‘The regulation, effective April 14, 2002 (and never amended), reads:

(b) In addition to the provisions of (a) of this section, the

3 See, Order Ret Cross Motions for Partial Summary Judgnent on Count One (denying Case Motions #19, 21,

and 22 as they related to 5 AAC 27.195(b)), entered March 31, 2020.

4 Mech, Contractors of Alaska, Ine. v, State, Dep't of Pub. Safety, 91 P.3d 240, 251 (Alaska 2004).

5 City of Valdex v, State, 372 P.3d 240, 246 (Alaska 2016).

“BOF Record, 70.

ORDER — Case 1S1-18-212CI Alaska Court System

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department shall consider the quality and quantity of herring

spawn on branches, kelp, and seaweed, and herring sac roe when

making management decisions regarding the subsistence herring

spawn and commercial sac roe fisheries in Section 13-B north of

the latitude of Aspid Cape.”

‘the Alliance also submitted with its original pleadings the BOF Summary of

Actions for January 7~14, 2002, which implied that the adopted language was

the (3) language rather than the (b)® language.

On May 1, 2020 the State filed a supplement to the administrative

tecord, The Alliance’s Case Motion #23 and the State’s Case Motion #26,

which were both filed shortly after the supplement, asked the court to renew

consideration of partial summary judgment as to the claim in Count I

pertaining to (p), in light of the supplement to the record.

The supplementary materials filed on May 1 contain several documents

of interest, ‘The first of these is a memo dated March 11, 2002 to the State’s

Regulations Attorney, Deborah Behr, from Assistant Attorney General Steve

White. This memo provides that the attached regulations include the

“subsistence part of the January 2002” BOI regulation package." It also says

that White had edited the regulations: “|t]he draft regulations, showing my

edits, should meer all requirements.”"! The language of one of the attached

regulations (at Page 24 of the attachments) is identical to the language of (3),

above, and is labeled 5 AAC 27.195(3). ‘The language of another one of the

75 AAC 27.195(b)

8 For the sake of brevity the court refers to the different versions of the regulation as (3) or (b).

° BOF Record, 5150. The “White memo.”

wid

MW Id

!2 BOF Record, 5140, 5149, 5174.

ORDER ~ Case 1$1-18-212CI Alaska Court System

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attached regulations (at Page 2 of the attachments) is substantially identical to 5

AAC 27.195(b) as codified (and is labeled the same as codified).'?

Second is a memo dated March 15, 2002 from Deborah Behr to

Lieutenant Governor Fran Ulmer.’ This memo states, inter alia, that the

regulations attached to the memo consist of regulations regarding “subsistence

herring” in “Sitka Sound;” that the “regulations were adopted by the board

after the close of the public comment period;” that the State Department of

Law (“DOL”) detected no legal problems with the adopted regulations and that

they are approved by DOL; and that DOL made technical corrections to the

regulations to conform to the regulation drafting manual.°

Third is a memo, also dated March 15, 2002, from Deborah Behr to

ADF&G Commissioner Frank Rue.'’ ‘This memo is substantially identical to

the Behr memo, noting technical corrections were made in accordance with AS

44.62.125.

‘The fourth document important to note is the 2002 Southeast Alaska

Sac Roe Herring Fishery Management Plan. Published in February 2002 by the

ADF&G—notably between the date BOF adopted the regulation in January

and the date the regulation became effective in April—the management plan

states that the BOF adopted 5 AAC 27.195 during its January 2002 meeting,

including the provision that the department sha// “[rlecognize that quality and

quantity of herring roe on branches, kelp, seaweed, and herring sac rose is an

important consideration in the management of the subsistence and commercial

alt +

sac roe fisheries.”"’ ‘The management plan went further, explaining what each

of the regulation’s provisions mean, As part of this description the

'3 BOF Record, 5145, S147.

4 BOF Record, 5142. The “Behr memo.”

‘5 BOF Record, 5142.

‘6 BOF Record, 5143. The “Behr I] memo.”

17 Southeast Alaska Sac Roe Herring Fishery 2002 Management Plan, ADF&G, Feb. 2002, at 4.

ORDER — Case 1S1-18-212CI Alaska Court System

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management plan provides that “[t]he third statement (3) is a statement of

finding that the quality, not just the quantity is important for both fisheries, and

therefore may be factored into management decisions.”"*

In sum, the White, Behr, and Behr I] memos show that the language of

(3) was adopted by the BOF in January 2002. ‘I'hey also show that either White

or Behr, or both, edited (3) to comply with the regulations drafting manual,

which yielded the language of (b) as now codified. The Plan confirms that the

language of (3) is what was originally adopted by the BOF.

There is no evidence that DOL materially changed the meaning of (3)

when drafting subsection (b). The Alliance has not identified any patticular

facts or legal precedent that would alter the above analysis, instead focusing on

the argument that (b) is unenforceable because the two use different language.

‘The fact that the codified version uses slightly different language does not

sufficiently rebut the presumption that the two subsections have the same

meaning and that (b) is therefore enforceable.”

Despite the mandatory nature of the subsections both in text and in

regulatory history, the Alliance maintains that the language of (3) is merely an

unenforceable “statement of finding” rather than a mandatory command.”

‘This argument is unpersuasive in light of the clear language of both (3) and (b).

In Case Motions #23, #25, and #26 all the parties agree that the AS

44,62.110 presumption issue has now been resolved and that partial summary

8 Td.

1 See also Regulation Drafting Manual, 99, http://law.alaska.gov/pdf/manuals/DraftingManual-

AdminRegs.pdf (“AS 44.62.125(b)(6) authorizes the regulations attorney to edit and revise a

regulation after filing to make technical corrections similar to those made in statutes by the revisor of

statutes. See AS 01.05.031(b). So long as it is done without changing the meaning of the regulation,

the regulations attorney may . . .”); Stale’s Response to Sitka Tribe of Alaska’s Renewed Motion for Summary

Judgment, Jone 10, 2020.

20 See, ¢.¢,, Southeast Herring Conservation Alliance Opposition to Motion for Summary Judgment, Dec. 20, 2019,

at 13. (the Alliance’s reliance on the 2002 Management Plan’s commentary to the regulation that

mentions the word “may” is unpersuasive when compared with the draft language and codified

language.).

ORDER - Case 1S1-18-212CI Alaska Court System

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judgment is appropriate on the (b) claim. Indeed, the Alliance now agrees with

the State that no dispute of material fact remains because (3) “provides

definitive legislative history on how the codified version should be interpreted

and what the BOF intended in adopting (3)! But the Alliance qualifies this by

stating, “[a]s long as the language of a regulation as codified is interpreted

consistently with the language of the regulation as adopted, then no issue

arises ‘The State argues similarly.’ STA agrees that no genuine dispute of

material fact remains as to the validity of 5 AAC 27.195(b).

Summary judgment is appropriate when there is no genuine factual

dispute and the moving patty is entitled to judgment as a matter of law.™!

When factual disputes exist, the non-movant’s version of the facts must be

accepted as true and capable of proof, and the court makes no attempt to

weigh the evidence or evaluate witness credibility. All reasonable inferences

to be drawn from the facts presented must be drawn in favor of the nonmoving patty.”

Needless to say, if a particular issue involves a question of fact, it is

decided by a jury at trial; if the issue involves a question of law, it is decided by

the court2’ Courts “do not decide factual issues on summary judgment, they

‘ascertain what material facts exist without substantial controversy and what

material facts are actually and in good faith controverted.””* A claim that

21 Alliance’s Reply in suppott of its motion to renew review of summary judgment motions at 7.

2 Id.

3 State’s Response to

% Civil Rule 56; Mitchell v.

25 Td,

26 Id,

27 Taylor v. Interior Exnterprises, Inc, 471 P.2d 405, 406 (Alaska 1970).

28 Pederson 1. “Aretic Slope Reg'l Corp., 421 P.3d 38, 67 (Alaska), cert. denied, 139 S. Ct, 427, 202 L, Ed. 2d

327 (2018) (citing Civil Rule 56). Its fair to say that in other words, “An issue of fact becomes an

issue of law and loses its triable character if the undisputed facts leave no room for a reasonable

difference of opinion.” § 2A-405:57Questions of law or fact—Questions of law, 4C Anderson

U.C.C. § 2A-405:57 (3d. ed.)

ORD 1S1-18-212CT Alaska Court System

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renewed motion for partial summary judgment at 5-6.

wk Cominco Alaska Ine, 193 P.3d 751, 757 (Alaska 2008).

consists of material facts which exist without substantial controversy thus can

be resolved by the court as a matter of law. Here, all the parties agree that (3)

and (b) have the same meaning and that partial summary judgment is now

appropriate on this claim, ‘There is no longer a substantial controversy because

the regulatory history reveals that (3) and (b) necessarily have the same

meaning, and all agree. Because this dispute of material fact is resolved, the

Alliance’s Case Motion #23 and STA’s Case Motion #26 were granted by

orders entered on October 4, 2020, rendering the STA’s Case Motion #25 (the

current partial summary judgment motion, at issue in the instant order) ready

for decision.

‘The task is now to interpret the language of (b) to determine what it

means, commensurate with the understanding that the language of (3)

necessarily has the same meaning as the language of (b). And the court’s

interpretation of (b) as codified should be guided by the legislative history

provided by the language of (3).

Where an agency interpretation concerns expertise as to complex subject

matter or fundamental policy formulations, the court must defer to the agency

interpretation if it has a reasonable basis in law and fact.” This deferential

“reasonable basis” standard is also appropriate where an agency interprets its

own regulation.” For this standard to apply, the agency must have offered an

interpretation and must be a party to the casc.*' When this standard applies, the

court must defer to the agency’s interpretation of its own regulation unless its

interpretation is plainly erroneous and inconsistent with the regulation.”

29 Weaver Bros. v. Alaska Transp. Comm'n, 588 P.2d 819, 821 (Alaska 1978),

® Rave ». Commercial Fisheries Fintry Comm'n, 647 P.2d 154, 161 (Alaska 1982) (stating that this ground

for deference is “in addition” to the prior ground).

3 See Tea ex rel, A.T., 278 P.3d 1262, 1263 (Alaska 2012).

i ine, Ine. v. Solomon Gold, Inc, 356 P.3d 780, 788 (Alaska 2015).

ORDI 3R — Case 1S1-18-212CI1 Alaska Court System

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Where no deference is due to an agency interpretation of a regulation,

the court must use its independent judgment “secking to adopt the tule of law

that is most persuasive in light of precedent, reason, and policy.” Under this

standard, when a regulation’s interpretation is challenged, the court must apply

the same standards that arc applied to statutory interpretation.” “When

construing statutes, [courts] consider three factors: ‘the language of the statute,

the legislative history, and the legislative purpose behind the statute.’ ”® “{T]he

plainer the language of the statute, the more convincing any contrary legislative

history must be . . . to overcome the statute’s plain meaning,.”*°

‘The subject matter addressed in 5 AAC 27.195(b)—how ADP&G

considers or recognizes “quality and quantity of herring roc on branches, kelp,

seaweed, and herting sac roe” —requires complex expertise and thus ADF'&G’s

interpretation as to the how is entitled to deference if reasonable. But whether

ADF&G must consider it at all when making management decisions to open or

close the commercial fishery is not technically a complex or a fundamental

policy decision and thus the court should conduct an independent

interpretation of (b) in that regard.

As to the whether question, the text of (b) and regulatory history

contained in (3) is decisive. The regulation, (b), in substance imposes a

mandatory “shall” duty on ADF&G to consider the quantity and quality of

“herring spawn on branches, kelp, and seaweed, and herring sac roc” when

making “management decisions” concerning the commercial fishery and

subsistence herring sac roe in Sitka Sound, Subsection (3) also imposed a

mandatory “shall” duty on ADF&G: “ijn managing the Sitka Sound

commercial sac roe herring fishery” ADF&G shall “recognize that quantity of

Id.

34 Tea ex rel, -

81d

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T., 278 P.3d 1262, 1265 (Alaska 2012).

herring roe on branches, kelp, seaweed and herring sac roe is an important

consideration in the management” of the commercial fishery and subsistence

herring sac roe.

There is no difference between the mandatory nature of “shall” in (3)

and the “shall” in (b).” Nor is there a difference between making “management

decisions” in (b) and “in managing” in (3). Both minimally apply to the same

thing: ADF&G’s mandatory determination under 5 AAC 27.195(a) of whether

a reasonable opportunity for subsistence harvesting exists, and if not,

ADF&G’s distribution by time and area to the extent necessary for a

reasonable opportunity to exist. Moreover, there is no real difference between

the verb “consider” in (b) and the phrase “recognize” as an “important

consideration” in (3).”

Despite both the evident mandatory meaning of the regulation from the

text and regulatory history, the State insists that the language of (3) is a mere

statement of finding, not compulsory on ADF&G. It cites the 2002

Management Plan, which again states that “[t]he third statement (3) is a

statement of finding that the quality, not just the quantity is important for both

36 Id.

37 Regulation Drafting Manual, 51, _http://law.alaska.gov/pdf/manuals/Drafting Manual-

AdminRegs.pdf. (“Use the word ‘shall’ to impose a duty upon a person or entity. The Alaska

Supreme Court has stated use of the word ‘shall’ denotes a mandatory intent, Fowkr v. City of

Anchorage, 583 P.2d 817 (Alaska 1978).”).

38 2002 Management Plan at 3 (indicating that the determination to distribute by time and area to the

extent necessary for a reasonable opportunity is an in-season management decision: “The ‘if

necessary’ clause in statement (2) emphasizes that management decisions must be made in-season by

the department based on the department manager’s best judgment concerning the in-season

situation.”),

” Compare Dictionary.com, “recognize”, H i rows (“to

ackrowlerge or accept formally a specified factual oF peel situation”), with fs Dictionaiy cot,

“consider”, St dictionary, s si (“to think carefully about, especially

in order to wake a decision; contemplate; reflect on.”). 7 aso Regulation Drafting Manual, 99,

http://law.alaska.gov/pdf/manuals/DraftingManual-AdminRegs.pdf (“AS 44.62.125(b)(6)

authorizes the regulations attorney to edit and revise a regulation after filing to make technical

corrections similar to those made in statutes by the revisor of statutes. See AS 01.05.031(b). So long

as it is done without changing the meaning of the regulation, the regulations attorney may . . .”).

ORDER — Case 1S1-18-212CI Alaska Court System

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fisheries, and therefore may be factored into management decisions."

However, as the STA points out, a mere BOF finding is not itself a regulation

under the AAPA." The fact ¢

in reaching the conclusion that the regulation is mandatory; like a statute, a

at a mere finding is not a regulation is persuasive

court should give meaning to all parts of a regulation if it does not produce

harsh and unrealistic results.”

To address this point of contention further, S1'A correctly points out

that in the context of an agency’s implementation of the law, “[w]here an

agency fails to consider an important factor in making its decision, the decision

will be regarded as arbitrary.”” Here, (3) itself provides that quality and

quantity are an “important consideration” in the management of the fishery.

Thus, BOF’s designation of this factor as important necessarily requires that

the regulation have some tecth. But the most important consideration for the

court in concluding that the regulation is mandatory—not a mere finding—is

the plain language of both (3) and (b): the use of the word “shall” should make

it quite clear that this is the correct conclusion. The 2002 Management Plan is

mere regulatory history: the clearer the language of the rule, the more

convincing the regulatory history must be to overcome it.“

# 2002 Management Plan at 3 (emphasis added).

41 See Regulations Drafting Manual, 53, http://law.alaska.gov/pd£/manuals/DraftingManualpdf (“At times an agency, especially a board or comm: n, ‘adopts’ findings regarding

one or more regulation provisions to provide important background information or to document the

agency’s rationale supporting the provisions. Because these findings are not themselves a regulation

under the Administrative Procedure Act, only in extremely rare circumstances may they be included

in a regulation. Consult the Legislation and Regulations Section before including findings in a final

set of regulations for adoption.”); AS 44.62.640(a)(3) (““regulation’ means every rule, regulation,

order, or standard of general application or the amendment, supplement, or revision of a rule,

regulation, order, or standard adopted by a state agency to implement, interpret, or make specific the

law enforced or administered by it, or to govern its procedure, except one that relates only to the

internal management of a state agency... .”). A mere finding docs not “implement, interpret, or

make specific the law.” Nor does a mere finding govern an agency’s procedure.

© Adamson v. Municipality of Anchorage, 333 P.3d 5, 13 (Alaska 2014),

8 Pacifica Marine, Inc. v. Solomon Gold, Inc., 356 P.3d 780, 790 (Alaska 2015) (internal citations omitted).

4 Tea ex rel. AT., 278 P.3d 1262, 1265 (Alaska 2012).

ORDER — Case 1S1-18-212CT Alaska Court System

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‘Therefore, 5 AAC 27.195(b) is not a mere BOF finding, it is a

mandatory duty imposed on ADF&G, as is subsection (a)(2). In more

straightforward language, (b) (as interpreted using (3)) imposes a mandatory

duty on ADF&G to consider the important factor of quality and quantity of

herring roe on branches, kelp, seaweed, and herring sac roe when making a

management decision concerning the subsistence and commercial herring sac

roe fisheries, including when making required determinations under 5 AAC

27.195(a)(2).”

Next we move on to how ADF&G goes about considering this important

factor when making such management determinations. In this regard, ADF&G

deserves deference in its interpretation. ADF&G interprets the regulation as

not requiring ADF&G to conduct an in-season assessment of the quantity and

quality of herring roe on branches, kelp, and seaweed, and herring sac roe

before making a management decision.”® ‘The State cites current ADF&G Sitka

Area Marine Biologist Eric Coontadt’s affidavit for its interpretation:

The department does not collect or have access to data regarding

the quantity and quality of the herring spawn on branches during

the season (when herring are spawning). That data is collected by

the Sitka Tribe of Alaska and ADF&G Division of Subsistence

after the season is over through surveys and is usually not

published in a timely manner—sometimes taking years for the

information to be published.

In 5 AAC 27.195(b), the board has directed the department to

“consider the quality and quantity of herring spawn on branches,

kelp, and seaweed, and herring sac roe when making management

decisions regarding the subsistence herring spawn and commercial

45 ‘The Onder Re: Cross Motions Jor Partial Summary Judgment on Count One at 7 held that 5 AAC

27.195(a)(2) requires ADF&G ‘to “(1) determine whether subsistence users have a reasonable

opportunity to harvest the amount of herring spawn necessary for subsistence uses in Sitka Sound as

a whole, which is 136,000-227,000 pounds; and (2) if ADF&G determines that a reasonable

opportunity does not exist, distribute the commercial harvest by fishing time and area to the extent

and in a way necessary to ensure a reasonable opportunity does exist in Sitka Sound as a whole.”

%6 State’s motion for partial summary judgment at 36-37.

ORDER — Case 1S1-18-212CI Alaska Court Systent

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sac roe fisheries in” Sitka Sound. Upon information and belief,

the department has never interpreted this regulation as requiring

the department to assess in-season the quality and quantity of

herring spawn on branches in order to make management

decisions for the commercial or subsistence fisherics. Information

tegarding the quality and quantity of herring spawn on branches is

typically not available until years after a particular fishing season

has concluded.

If the court were to also order the department to delay opening

the Sitka Sound commercial sac toe herring fishery until after the

first spawn and after an in-season assessment of the herring

spawn on branches, that would make achieving the guideline

harvest level almost impossible. ‘There is a limited window of

opportunity for conducting this fishery and adding requirements

prior to the opening cuts into that window of opportunity. Any

reduction in that opportunity will likely result in decreased

harvest, if a harvest can be had at all. Such a requirement would

fundamentally change the way this fishery is managed .. . “7

Nothing in the court’s independent interpretation (the whether interpretation),

above, cuts against ADF&G’s interpretation, as articulated by Coonradt (the

how interpretation). ‘There is nothing unreasonable about ADF&G’s

interpretation that the regulation does not require ADF&G to conduct an in-

Season assessment of the quantity and quality before making a determination to

open or distribute the commercial fishery in a certain way, thus it is entitled to

deference if reasonable. The amount of weight ADF&G gives to this

important quantity and quality factor, where it detives the data it uses when

considering the factor, and precisely how it considers the factor, ate entirely

committed to the discretion of ADF&G if reasonable. But ADF&G must

meaningfully consider the factor in some reasonable way before making such a

management decision. ‘The consideration need not be immediately before the

decision is made, but the consideration must have some substance.

# Eric Coonradt’s Affidavit (STA’s motion for partial summary judgment Ex 16 at p. 3-5).

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Having interpreted 5 AAC 27.195(b), the court must now decide

whether ADF&G is unlawfully implementing the regulation. Once the

interpretation of the regulation is resolved, the agency’s application of the

regulation to the particular factual circumstances is committed to the agency’s

sound discretion. ‘he court’s review of the agency’s application of the

regulation is “limited to whether the decision was arbitrary, unreasonable or an

abuse of discretion.”

STA argues that ADF&G neither considers the quantity and quality of

herring roe on branches, kelp, seaweed, and herring sac roe in-season nor out

of season before making such a management decision. It argues that the news

releases do not mention consideration of this important factor.” STA also cites

251

Eric Coonradt’s deposition, which it calls “a smoking gun.

Question

So there are many factors considered in terms of getting good

quality eggs?

Answer

Yes.

Question

How do you consider those factors when determining your

management of the commercial fishery? Do you factor in those

subsistence needs for quality when you are managing a

commercial fishery?

Answer

No, we don’t because won’t get any information on quality. Its

not collected, it’s not in any of the documents. We just don’t have

it.

Question

So when you — pointing you back to the regulation . . . | want you

to, if you don’t mind looking at it again. I's 25 — if you don’t

mind looking at this copy tight here. So section (b) of that

requires the department to consider the quality and quantity of

8 Pacifica Marine, In

9 Id,

50

v, Solomon Gold, Inc, 356 P.3d 780, 788 (Alaska 2015).

motion for partial summary judgment at 55.

Renewed motion for partial summary judgment at 8.

ORDER -- Case 1S1-18-212CT Alaska Court System

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31

herting roe on branches when making management decisions

about the commercial and subsistence fishery. Are you able to do

that?

Answer

So you said it requires us, but it says ‘shall’. So it does require us,

but it is ~ we don’t have any information on quality. So no, we

cannot assess quality, at all.”

STA thus concludes that Coonradt admitted that ADF&G does not consider

quality and quantity of herring spawn on branches “at all” when making

management decisions regarding the commercial fishery. ‘The State cites

Coonradt’s affidavit, set out in block quotations above, in its concession that

ADF&G does not consider the important factor of quantity and quality iaseason.

But the State retorts that ADF&G does consider this important factor

post-season using the data derived from the harvest survey program implemented

by ADF&G’s Subsistence Division in cooperation with STA, which is a

voluntary survey program that collects data on quantity and quality prior to and

during fishing periods. The State cites the 2018 Southeast Alaska Sac Roe

Herring Fishery Management Plan at page 7, which states ter alia:

Beginning with the 2002 season, in lieu of using a permit system to

estimate the subsistence herring roe harvest, the Sitka Tribe of

Alaska and ADF&G Subsistence Division have worked

collaboratively to develop a methodology using a household survey

to estimate harvest. Following cach season, the Sitka Tribe of

Alaska conducts a “census” survey whereby all known participants

in the subsistence fishery are contacted to determine the results of

the subsistence harvest. The list of participants is changed cach

season to reflect newly identified participants and to remove past

participants who have either moved or passed away. The survey

information is used to determine the amount and quality of the

subsistence harvest and would indicate whether the amount

Coonradt’s Deposition (

53 State’s Opposition at 22.

Td.

ORDER — Case 1S1-18-212CI1 Alaska Court System

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“A’s motion for partial summary judgment Ex 13 at 7-8).

reasonably necessary for subsistence had been successfully

harvested. For the period 2002-2016, the subsistence roc harvest

estimate has ranged from 71,936 to 381,226 pounds and averaged

150,729 pounds. ‘The results of harvest monitoring for the 2017

season will not be available until later this year. he amount

necessary for subsistence is a range of 136,000-227,000 pounds.

Per this 2018 Plan and Coonradt’s affidavit, the results of the survey would not

be available until years later when it is finally published. What is important of

course is whether ADI'&G actually considers the survey’s results before

making its in-season determinations under 5 AAC 27.195(a)(2). The 2018 Plan

however does not actually provide any evidence that ADF&G considers results

supplied by the survey on the quality of “herring spawn on branches, kelp, and

seaweed, and herring sac roe” when making an in-season management decision

concerning the fishery. The 2018 Plan does indicate however that ADF&G

considers the quantity of herring roe spawn in making management decisions, a

fact that ST'A does not seriously dispute.

Quite a different factor from the quality of “herring spawn on branches,

kelp, and seaweed, and herring sac roe” is ADF&G’s undisputed consideration

of the distribution and roe quality of the herring before spawning occurs on the

branches and substrates. ADF&G argues that it coordinates with industry

vessels to conduct test fishing as necessary to determine roe quality, citing the

2018 Plan:

Herring distribution and roe quality will be monitored prior to and

during the fishing periods. Monitoring methods for 2018 will

include aerial surveys, vesscl sonar surveys, and test fishing, In

2018, ADF&G will coordinate with industry vessels to conduct

test fishing as necessary to determine roe quality. Prior to making

test sets, the identified test boats will contact department biologists

on the grounds to monitor set locations and to plan for transport

ska Sac Roe Herring Fishery Management Plan, 7,

2,

ORDE! S si Alaska Court System

Page 15 of 19

of herring samples to a central location for analysis by industry

technicians. The areas open to fishing will depend on the

distribution of herring, the need to provide for a fishery that will

harvest good quality herting, and the need to provide a reasonable

opportunity for subsistence.”

But consideration of the quality of roe before spawning is not consideration of

quality of “herring spawn on branches, kelp, and seaweed, and herting sac roc.”

(emphasis added).

The State further insists that ADF&G considers the quality of the

herring spawn post-season after it receives the survey results from prior years.”

For this proposition the State first references Coonradt’s deposition at 87.

Therein STA’s attorney poses questions referencing certain factors (timing,

duration, location, and weather)” considered in assessing herring spawn quality

as provided in a 2017 report authored by Lauren Sill, the ADF&G Subsistence

Resource Specialist for Southeast Alaska. But the answers to the questions are

not relevant to whether ADF&G considers the quality of herring spawn in

making management decisions; if anything they tend to prove that ADF&G

does not.’

lhe State also references Lauren Sill’s deposition at 63-65. Therein

Sill, like Coonradt, answers questions concerning her opinion of certain factors

that may influence the quality of herring spawn, but the pages cited by the State

do not provide testimony relevant to whether ADF&G considers the quality of

herring spawn in making management decisions.

36 ADF&G 1940; also at 2018 SE Alaska Sac Roe Herring Fishery Management Plan, 7,

hutp://www. ADF&G. alaska. gov/TPedAidPDFs/RIR.1.2018.02. pdf.

57 State’s Opposition at 22.

38 There is testimony explaining that herring roe spawned on sandy substrates

reduces roe quality

because of the sand; that longer duration spawns yields higher quality roe because high quality roe

requires thick layers of spawn on the substrate; and that other facts can affect q

8 The full report referenced is titled “The Subsistence Harvest of Pacific Herring Spawn in Sitka

Sound, Alaska 2016, dated December, 2017, ‘Technical paper No. 435.

ORDER = Case 1S1-18-212C] Alaska Court System

Page 16 of 19

STA returns fire by arguing that simply having the Subsistence Division

provide a post-season subsistence harvest report does not fulfill the

requirement that ADF&G consider the quality and quantity of herring spawn

when making management decisions.” STA concludes that Coonradt’s

deposition betrays the State’s obfuscation by revealing plainly that ADF&G

does not consider herring spawn quality when making management decisions—

whether in-season or post-season—“at all.”

A sampled review of the voluminous news releases also does not

demonstrate that ADF&G considers the quality of herring roe spawn in

making management decisions.“ It is evident though that ADF&G does

consider the quantity of herring spawn when making management decisions.

For example, in a Sitka Sound Herring Fishery Announcement for December

23, 2019, ADF&G announced that the guidelines harvest level for the 2020 sac

roe herring fishery would be 25,824 tons of mature herring. ‘This was based at

least partly on ADF&G’s forecast of the herring egg abundance:

To forecast biomass, the department uses an ASA model with a

long time series of egg abundance and age composition data from

department surveys conducted during and following the spring

fishery. Herring egg abundance is estimated using aerial surveys,

designed to map the length of shoreline receiving spawn, and dive

surveys, which are used to estimate the density of eggs and average

width of the spawn, ‘The department mapped 5 5.8 nautical miles

(nmi) of herring spawn in the Sitka Sound area during the spring of

2019, compated to the recent 10-year average of 63.7 nmi Ege

deposition observed during dive surveys in 2019 was very high (6th

highest recorded since 1976), particularly along the southern shore

of Kruzof Island. Estimated age composition by number of

spawning herring in 2019 was 76% age-3, 8% age-4, 6% age-5, 1 %

ageb, 8% age-7, and <1% age-8+.°

© STA’s Reply to its renewed motion for partial summary judgment at 12.

61 See ADF&G News Releases (ADF&G 1-0336);

02 ADF&G 2974,

ORDER — Case 1S1-18-212CI Alaska Court System

Page 17 of 19

‘The State has not cited to any document in the record, and the court has not

located one, that engages in an analysis of the quality of the herring spawn.

In important non-adjudicative determinations, “the record should at

Icast explain the reasons for the agency’s action.” ‘The regulation recognizes

that quality and quantity of herring spawn is an important consideration in

management decisions. Again, “{where an agency fails to consider an

important factor in making its decision, the decision will be regarded as

arbitrary." Like ADF&G’s determinations under 5 AAC 27.195(a)(2), its

consideration of this important factor under 5 AAC 27.195(b) in making 5

AAC 27.195(a)(2) management determinations is a non-adjudicative “quasiexecutive” action.” Because ADF&G’s consideration of this factor under the

regulation is non-adjudicative, a formal decisional document is not required,

but its consideration must be adequately explained in the record. In other

words, ADF&G must demonstrate in the record that it, and how it, in some

meaningful way, considered the quality of herring spawn in making

management determinations under 5 AAC 27.195{a)(2).

‘There is therefore no genuine dispute of material fact as to whether

ADF&G is unlawfully implementing 5 AAC 27.195(b) by failing to consider

quality of herring spawn “on branches, kelp, and seaweed, and herring sac roe”

before making required management decisions under 5 AAC 27.195(a)(2). If

ADF&G does consider quality when making these decisions, its consideration

is not clearly or adequately reflected in the record. Although a decisional

document is not required, it is advisable that one exist when ADF&G makes

6 [ds Usibelli Coal Mine, Ine, ». State, Dep't of Nat. Res., 921 P.2d 1134, 1149 (Alaska 1996) (“as long as

the record clearly reflects the reasoning underlying the agency's decisions.”).

Pacifica Marine, Inc, v. Solomon Gold, Inc, 356 P.3d 780, 790 (Alaska 2015) (internal citations omitted).

ORDER — Case 1ST-18-212C1 Alaska Court System

Page 18 of 19

important decisions to open, close, or distribute the herring sac roe fishery in

Sitka Sound, Because its decision is not clearly or adequately reflected in the

record, its implementation of 5 AAC 27.195(b) is unreasonable and an abuse of

discretion. STA is accordingly entitled to partial summary judgment on its 5

AAC 27.195(b) claim contained in Count I as to quality. Accordingly, STA’s

renewed motion for partial summary judgment is GRANTED.“

DATED this 27" day of November 2020 at Juneau, Alaska.

Daniel Schally

Superior Court Judge

CERTIFICATION

| certify that on__.30 day of Nov 2020

a true copy of this do was placed

in attorney's box/mailed to the tow :

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6 Jd. “agencies often make discretionary decisions not requiting formal procedures”) (“we have

s discretionary decision that docs not require formal procedures as ‘quasi-

described an agency

executive”) (“we review such decisions only for an abuse of discretion”) (internal citations omitted).

‘To the extent that STA’s Count I may consist of claims that go beyond the claim that ADF&G has

unlawfully interpreted and implemented 5 AAC 27.195(b), those claims are not affected by this order

and remain open to litigation in this cas

ORDER — Case 181-18-212CT Alaska Court System

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