Kookesh dismissal sets stage for state's appeal

SITKA, ALASKA

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When Albert Kookesh, an Angoon Democrat, and three friends were cited in July of 2009 for overfishing their subsistence permits in Kanalku Bay near Angoon, the Senator appeared ready to make a Katie John-style constitutional argument questioning the state’s authority to manage subsistence on federal lands.

Angoon is situated on Admiralty Island, a national monument.

Kookesh told KCAW in 2009 that he thought he’d end up paying the state’s $500 fine, but he also thought the case was headed for federal court. “Dual management” – or, the state’s enforcement of federal subsistence authority – has been the de facto system of subsistence management since the legislature in the 1980s and 90s failed to pass an amendment to the state constitution, and reconcile state and federal law.

Kookesh thought he was in the right for several reasons: most importantly, that the state had crossed the line when it sent a trooper on to federal lands to cite him for overfishing sockeye salmon in a beach seine.

 “I also think there’s a public process argument. If you wanted to manage fish and game on federal lands, then you should have adopted a constitutional amendment when we had the opportunity.”

 But Sitka Superior Court Judge David George, acting as magistrate in Angoon District Court, touched on none of that when he dismissed charges against Kookesh and two of the men involved (a third, Scott Hunter, still faces a violation for fishing without a permit).

Instead, George’s 16-page dismissal focuses exclusively on state law. Especially the Administrative Procedures Act, which he wrote, “…requires that notice of the proposed adoption of regulation be published and disseminated 30 days before adoption.”

The state gave no such notice in 2006 when it reduced the catch limit for Kanalku subsistence sockeye from 25 to 15 fish, hence Judge George ruled that the limit could not “form the basis for prosecution in this case”.

“We think we followed correct procedure in the delegation the Board of Fisheries gave us to set those types of limits.”

That’s Denby Lloyd, the outgoing Commissioner of the Alaska Department of Fish & Game. In most, if not all, subsistence fisheries in Southeast Alaska, participants don’t learn the catch limit for a particular area until they pick their permits.

In Sitka, for instance, the catch limit for sockeye at Redoubt Lake is set every year with no public participation. Nor are there hearings for Salmon Lake or Klag Bay.

Lloyd says the district court’s interpretation of the Kookesh case could create a procedural snarl for the state that the Board of Fisheries process can’t handle.

“There are a number of subsistence fisheries, particularly throughout Southeast Alaska, that are managed with harvest limits set under these types of permit conditions. And that allows the department to tailor harvests to biological conditions in a given year. If in the end it’s decided we can’t operate that way then we will have to have much more engaged discussions with the Board of Fisheries and I’m not sure the system can effectively handle that kind of load.”

Prosecutor Doug Gardner says the state respects George’s ruling, but his motion for reconsideration makes clear that he believes the judge overlooked a couple of important points of law – especially the statutory authority of the Board of Fisheries to set catch limits. What George interpreted as setting “subsistence bag limits in a back room,” Gardner and the state see as a delegation of the Board’s authority to “manage, protect, maintain, improve, and extend the fish… resources of the state.”

Clearly, there are some big questions surrounding this case which, after all, is not a crime. Kookesh’s violation is basically a ticket from the state police. Gardner says the motion for dismissal is routine way to clarify a case for a judge, and is not necessarily a prelude to an appeal.

“There are a number of different regulations and statutes that we want to make sure the court’s had a chance to review in the context of the case. So we’ll await the outcome of whether or not the court decides to reconsider. But I don’t think there’s more than meets the eye. We’re just trying to make sure that our record is made and the court has a full and fair opportunity to consider any last-minute thing that may have an outcome on the court’s decision.”

 Commissioner Lloyd, however, says ADF&G, which has filed an amicus brief, will move the case to appellate court, if necessary.

“But we’re recommending at this time that it be appealed, and the Department of Law is going through that review.”

 Judge George has 30 days to rule on the motion for reconsideration.

CoastAlaska's Ed Schoenfeld contributed to this report.