An attorney who successfully overturned a billion-dollar Alaska oil tax credit program is now targeting the state’s management of its salmon fisheries.
On Monday in Bethel, attorney Joe Geldhof argued that the state is managing those fisheries so poorly that it is violating the Alaska Constitution. Article VIII, Section 4 of the constitution says that fisheries should be managed “on the sustained yield principle,” and Geldhof — representing a Juneau man, Eric Forrer — argues that declining king and chum salmon returns in the Kuskokwim and Yukon rivers “illustrate a failure to adhere to the constitutional directive regarding sustained yield.”
An unprecedented collapse in those fisheries has resulted in orders banning traditional subsistence fishing along the river.
In a lawsuit filed last year against the state and the commissioner of the Alaska Department of Fish and Game, Forrer asked a judge in Bethel to issue a ruling declaring that the state is unconstitutionally managing the Yukon and Kuskokwim salmon fisheries and for a “mutually agreeable consent decree” outlining an as-yet-unwritten new management system.
Geldhof’s case is one of the first challenging the state in court over the failure of the Yukon and Kuskokwim fisheries, and he isn’t sure what a fix would look like.
“All I really want is for a judge to say at some point, ‘You haven’t done your job according to the constitution,’” Geldhof said. “Let’s get the judiciary to say we’ve obviously failed, the fish are gone. We haven’t managed them sustainably as is required.”
For the moment, Geldhof is on the defensive; after he filed his lawsuit, the state asked to have the lawsuit dismissed.
That request was the subject of Monday’s hearing.
Assistant Attorney General Noah Star told Bethel Superior Court Judge Nathaniel Peters that because Geldhof failed to challenge a specific management decision, the case should be thrown out.
Simply noting the poor returns on the Yukon and Kuskokwim isn’t enough, Star said, citing a 1999 decision by the Alaska Supreme Court.
In that case, residents of the village of Elim alleged that management of a fishery near False Pass violated the sustained yield clause because it reduced the number of fish available in Norton Sound.
The court ultimately ruled in favor of the state and against Elim.
“Mr. Forrer’s claims largely rest on a narrative of how the fishery has declined over time, but merely stating that the fisheries are in decline does not amount to a constitutional claim,” Star said.
In 2015, the court also ruled against Cook Inlet fishermen who sought to challenge the state on constitutional grounds similar to those raised by Geldhof.
“The state’s position is that Alaska Supreme Court precedent supports dismissal and in fact, is the only appropriate outcome based on the allegations made in Mr. Forrer’s complaint,” Star said.
The state has also argued that it was inappropriate for Geldhof to file a lawsuit against the ADF&G commissioner for management directed by the Alaska Board of Fisheries.
Geldhof has submitted an amended complaint listing the board as a defendant; the state opposes that addition.
Geldhof said that if the lower court rules in his favor, he’ll continue fighting the issue in Bethel. Even if the Superior Court rules against him, he said, he likely will appeal to the state Supreme Court.
“We need good law to protect our fish,” he said.
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