By Emma Whitford

Law360 (May 20, 2020, 5:50 PM EDT) -- Alaska Gov. Mike Dunleavy's decision to allow commercial fishing this summer could precipitate a public health crisis for native villages in the Bristol Bay region in violation of state human rights law, native leaders and health experts say. 

The Bristol Bay Area Health Corporation, which serves 28 villages in southwestern Alaska, is calling on the governor 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.

Short of that, the corporation is seeking assurances that state health guidance is being enforced and that ample testing and quarantine measures are in place.  

"We don't have the infrastructure," Robert Clark, CEO of the health corporation and member of the native Village of Clark's Point, told reporters on a press call Wednesday. "Our hospital is too small. We can't take care of these folks coming in."

The Bristol Bay area has a year-round population of 6,500, most of whom are Alaska Native, Clark said. During the fishing season the region sees an influx of more than 15,000 commercial fishery and cannery workers from the lower 48 states, Europe and Africa.

The corporation's hospital in Dillingham, Alaska, currently has 16 beds and two ventilators, Clark said. Patients in need of intensive care must be flown 400 miles away to Anchorage.

A COVID-19 case was confirmed on May 15 in Dillingham. The patient is an out-of-state seasonal worker for Seattle-based Trident Seafoods and has been removed from the community, according to a press release from the state.

"It's starting," Clark said Wednesday, noting that multiple flights have already arrived bringing fishery workers to the region. 

In a May 13 complaint to the Alaska State Commission for Human Rights, the health corporation argued that Dunleavy has created a discriminatory two-tiered system in Alaska. He is respecting the wishes of native tribes in the state's interior to exclude outsiders during the pandemic, it says, while overriding those requests in Bristol Bay.

"Virtually all of the tribal communities in the region have enacted resolutions closing their communities to outsiders," Geoffrey Strommer of Hobbs Straus Dean & Walker LLP, who is representing the corporation, said Wednesday. In the case of Bristol Bay, the governor is "essentially putting fish over Alaska Natives' lives. That's fundamentally unfair."

The complaint requests a temporary restraining order blocking the opening of the Bristol Bay fishery, pending a human rights investigation. 

Strommer has not received a response from the Commission for Human Rights, he said. Commission Director Robert Corbisier declined to comment citing confidentiality laws.

Dunleavy's public health mandates regarding fisheries include requirements that arriving workers self-quarantine for 14 days, wear masks and submit to temperature checks. Fishing companies have been ordered to develop and submit COVID-19 mitigation plans.

"The State of Alaska acknowledges the importance of our commercial fishing fleet to our economy and lifestyle as Alaskans," Dunleavy said in his April 23 mandate.

This guidance "leaves it to the fish processors and businesses to come up with their own plans and resources to regulate themselves," the Bristol Bay health corporation warned Alaska Attorney General Kevin Clarkson in a May 11 letter.

In a statement to Law360, Assistant Attorney General Maria Bahr defended the state's efforts.

"The state is working closely with businesses and industry to ensure operations occur in a safe manner and Alaskans are protected," Bahr said. "Businesses have been very cooperative and want to ensure public health is protected. These are unprecedented times, and we need to come together to address these issues." 

She said if "cases are detected in a community or in a specific business facility," the state will address them.

A spokesperson for the governor's office declined to comment on the human rights complaint, and directed questions about Bristol Bay to the Alaska Department of Health and Social Services. That office did not immediately comment. 

The Alaska Native Health Board released a white paper this month with recommendations to prevent a health crisis in fishing villages this summer, including a broad, publicly available mitigation plan for COVID-19 outbreaks on fishing vessels.

"Even during the best of times, the shortages of providers and resources in these remote communities makes delivery of care difficult," the board wrote. The pandemic has already prompted Alaska health care providers to furlough hundreds of workers.

The board added that the current situation draws alarming parallels to the Spanish Flu of 1918.

"The anxiety comes from centuries of community trauma of diseases brought by outsiders," the ANHB wrote. "Whole Alaska Native communities were wiped off the Alaska terrain — and people fear the same with the current pandemic."

To date, Alaska has confirmed 399 positive cases of COVID-19 and 10 deaths.

--Editing by Amy Rowe.

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