Sitka resident and ADF&G biologist Patrick Fowler dipnetting for sockeye at Redoubt in early July, 2014. (KCAW photo/Rebecca LaGuire)

Sitka resident Pat Fowler dipnets for sockeye at Redoubt in early July, 2014. In his case, Sen. Kookesh argued that subsistence management plans like Redoubt’s complied with the Administrative Procedures Act, while bag limits in Angoon’s Kanalku Bay were arbitrary. (KCAW photo/Rebecca LaGuire)

The Alaska Department of Fish & Game’s authority to unilaterally set subsistence bag limits is being tested in the state’s highest court.

The Alaska Supreme Court this month heard oral arguments in a case brought by former state Sen. Albert Kookesh and three friends from the senator’s hometown of Angoon, who were cited in 2009 by troopers for overfishing their subsistence permits.

The outcome has flipped in two lower courts. The Supreme Court could be the last stop for the case, which the defendants are trying — in part — to frame as a Native rights issue.

Downloadable audio.

The case — officially titled Estrada, et al v. State of Alaska — is not very hard to understand, at least from a fisherman’s perspective.

Sen. Albert Kookesh, who at the time represented Angoon and many other communities in the former District C, was fishing for sockeye in Kanalku Bay not far from town.

Outgoing Sealaska Board Chairman Albert Kookesh addresses Native leaders during a 2011 issues forum. (Ed Schoenfeld/CoastAlaska)

Former state Sen. Albert Kookesh in 2011. (Ed Schoenfeld/CoastAlaska)

Sen. Kookesh, Stan Johnson, Rocky Estrada, and Scott Hunter were using a set net and doing pretty well. They had landed 148 fish.

A state trooper dropped by in a float plane to check on the fishermen. Only Sen. Kookesh, Johnson, and Estrada held subsistence permits. The bag limit that season was 15 sockeye for each permit, putting the group over their limit by 103 fish. Scott Hunter had not yet obtained his permit.

The trooper wrote tickets for the men, and the illegally-caught fish were turned over to the Angoon Senior Center. Scott Hunter’s violation was later amended to fishing without a permit.

But Sen. Kookesh and the two others decided to contest the tickets. In a 2010 ruling, Judge David George — presiding in Angoon District Court — agreed that the state had violated the Administrative Procedures Act because the Department of Fish & Game set the 15-fish bag limit unilaterally, with no public process.

Judge George dismissed the case.

The state subsequently appealed. The Appellate Court found that the state — through the Board of Fish — has the constitutional authority to delegate responsibility to the Department of Fish & Game to set bag limits, as well as to use other measures, like emergency closures, to manage the state’s resources.

The Appellate Court overturned the lower court’s dismissal. Now it’s up to the Supreme Court to settle things.

Sen. Kookesh’s defense team submitted a 52-page brief to the state’s high court last October. The justices heard oral testimony this March.

Attorney John Starkey spoke on behalf of former Sen. Kookesh and his two fishing partners. He argued that the 15-fish bag limit was arbitrary, and failed to account for the traditional approach to sockeye harvest in Angoon.

“The problem with the bag limit is that there’s no showing — there’s no requirement in the regulation — that the department consider reasonable opportunity in setting the bag limit.”

Starkey reinforced the argument originally supported in District Court by Judge George, that the subsistence harvest limit in Kanalku Bay was set in violation of the Administrative Procedures Act, with no input from the community. His reasoning held implications for fish and game management far beyond Angoon.

“To read this one statute as somehow allowing the Board (of Fish) to delegate its responsibilities to the department — and the department doesn’t have to do it in regulation, they can simply name the bag limit — undermines practically the entire structure of not only the entire subsistence statute, but also the structure of 16.05, that defines the administrative functions of the department and the regulatory functions of the Board.”

16.05 is the set of statutes establishing the office of the the Commissioner of Fish & Game, the department, and the Board of Fish.

The fishermen’s case boils down to one key idea: Must the state set harvest limits in regulation by the Board of Fish, or can it set harvest limits in permits from the Department of Fish & Game?

Predictably, the Alaska Attorney General’s office sees things quite differently. When a justice asked the state to elaborate on the claim that the Kanalku Bay subsistence permit was set without public input, attorney Seth Beausang responded:

“I would respectfully quibble with your honor a bit to say there hasn’t been a public process. The Board of Fish and the Board of Game are perhaps the most public of agencies. They have public meetings like no other agency where they adopt regulations on a regular cycle.”

Beausang also disputed the claim that the state took no account of Angoon’s traditional subsistence needs or manner of harvest when it established the 15 fish bag limit, as sockeye returns went into decline.

“There was a period of about 5 years where the department tried to work with the community and tried to come up with a solution other than lowering the bag limit, which was set at 25 at the time. There was a period where the department tried to engage the community to agree to a voluntary cessation of fishing, which was successful for a time, and ultimately proved unsuccessful. And only after all those efforts was the department forced to reduce the bag limit to 15 in 2006.”

Perhaps the most compelling argument brought by the state was that Sen. Kookesh and his friends Stan Johnson and Rocky Estrada were simply breaking the law. Regardless of how that bag limit was established, whether or not it was adequate to the needs of Angoon — the men were over it.

“These harvest limits are clearly listed on these permits. The defendants applied, signed for these permits acknowledging that they would comply with the harvest limits, and they did not. They harvested more than three times the sockeye than was allowed by the permits. Even if the harvest limits had stayed at 25, as the defendants think should happen, they would have been well, well over the limit. Even in that case.”

But in his rebuttal, attorney Starkey again drove home the idea that Sen. Kookesh and his partners were cited for exceeding a harvest limit that was set illegally.

“There are many permit hunts — that’s true. There are many permit fisheries. There are not permit hunts and fisheries across the state where the department unilaterally sets the bag limits behind closed doors — that’s the difference.”

Sen. Kookesh lost his seat in 2012 to Sitka Sen. Bert Stedman, when redistricting brought Angoon into a district with Sitka and Ketchikan. Kookesh remains on the board of directors of Sealaska, Inc., Southeast’s regional Native Corporation.

A decision from the supreme court could come as early as this spring.