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Law360 (June 4, 2020, 4:37 PM EDT) -- An Alaska Native health corporation's human rights complaint decrying a potential COVID-19 outbreak in Bristol Bay and seeking to block seasonal commercial fishing lacks jurisdiction and will be rejected as drafted, the state's human rights commission has said.
The Bristol Bay Area Health Corp. failed to demonstrate that Alaska Gov. Mike Dunleavy discriminated on the basis of race or national origin by preventing native villages in its service area from blocking commercial fishing this season, according to Alaska State Commission for Human Rights Executive Director Robert Corbisier.
Dunleavy's mandate deeming commercial fishery and cannery workers "essential" applies to Native Alaskan villages outside of Bristol Bay as well as non-native fishing villages, Corbisier said in a May 22 letter.
"While we understand the public concern with opening travel for subsistence fishing and the fishing industry, the potential risks it poses apply statewide regardless of race or national origin," Corbisier wrote.
The health center's complaint also fails a four-pronged jurisdiction test — employment, public accommodation, real property, or credit and financing — according to Corbisier.
"While your client may disagree with the Dunleavy administration's policy decision(s), the commission's function is to enforce Alaska's human rights laws rather than investigate and adjudicate policy grievances, and the draft complaint does not articulate a jurisdictional case," the commissioner wrote.
"If your client wishes to proceed, I encourage it to work with one of the commission's experienced investigators to discuss whether a jurisdictional case can be outlined," he added.
Geoffrey Strommer of Hobbs Straus Dean and Walker LLP, counsel for Bristol Bay Area Health Corp., told Law360 he is working on a response to the commission.
"We are disappointed that the response reflects a decision by lawyers at the commission to seek to dismiss the complaint on procedural grounds without giving the commission an opportunity to assess the merits of the important issues raised by the complaint," Strommer said.
The health corporation serves 28 villages in southwestern Alaska and has called on Dunleavy to shut down commercial salmon fisheries for the high season of June and July to prevent a potential influx of COVID-19 cases that the hospital says it's not equipped to handle.
The Bristol Bay area has a year-round population of 6,500, most of whom are Alaska Native, according to health corporation CEO Robert Clark. During the fishing season the region sees an influx of more than 15,000 commercial fishery and cannery workers from other states, Europe and Africa.
In its May 13 human rights complaint, the health corporation sought a temporary restraining order blocking commercial fishing in the region. The corporation argued that Dunleavy created a discriminatory two-tiered system in Alaska by respecting the wishes of native villages in the state's interior to exclude outsiders during the pandemic, while overriding those requests in Bristol Bay.
The Alaska Department of Health and Social Services did not immediately respond to a request for comment.
"The commission is disappointed the confidentiality provisions the Alaska Legislature included in the Alaska Human Rights law to encourage and protect reluctant individuals to come forward with discrimination complaints, as well as to protect unfairly accused respondents, were ignored," Corbisier said in a statement to Law360.
A spokesperson for the Alaska Law Department reiterated comments made to Law360 last month, that "the state is working closely with businesses and industry to ensure operations occur in a safe manner and Alaskans are protected."
And, that "the state of Alaska cannot provide information regarding the initiation of any specific complaints or information obtained by the commission because those matters are confidential."
Alaska "reopened" on May 22, according to Corbisier's letter. Under current state guidance, those traveling between communities for "essential services / critical infrastructure" cannot be "subjected to any automatic quarantine or isolation on arrival."
Southwestern Alaska has documented four COVID-19 cases and no deaths as of June 3, according to the state. Statewide, there have been 505 positive cases and 10 deaths.
--Editing by Bruce Goldman.
For a reprint of this article, please contact reprints@law360.com.
