The Alaska Court of Appeals has reinstated overfishing charges against former state senator Albert Kookesh and two other men. The court’s decision was released Friday and reverses a Sitka district court judge’s 2010 dismissal of the charges.
Kookesh said in an interview Friday that he’d like to keep fighting the citations, but he’s not sure how he and the other two men involved would proceed.
The attorney who represented Kookesh, Rocky Estrada and Stanley Johnson since the initial charges in 2009 was disbarred in June for misconduct in an unrelated case. A subsistence defense fund that was created to defend the men against the citations is at the center of a recent embezzlement investigation. Another complication is timing; the decision was released between Christmas and New Year’s Day, which leaves Kookesh concerned about being able to file an appeal within the 10-day deadline.
“This is a small part of the question of subsistence in Alaska, but it’s an important part and I don’t want to walk away from it,” Kookesh said. “I think that people have to have the right to appeal ... state regulations that affect them adversely.”
What happened in Kanalku Bay
Kookesh, Estrada, Johnson and a fourth man, Scott Hunter, were seining for sockeye salmon off the beach in Kanalku Bay near Angoon when a state wildlife trooper cited the men for overfishing July 12, 2009. According to the trooper, the men collected 148 sockeye salmon but were only allowed 15 each.
Hunter accepted a plea deal; the other three men appealed the citation. In September of 2010 the charges we dismissed, but a few weeks later the State of Alaska filed a motion asking for the charges to be reconsidered.
In the case that dismissed the charges, the judge had determined that the Board of Fisheries — an entity whose members are appointed and confirmed by the Legislature and governor — acted unlawfully by enacting regulations that hand over decision-making power to the Alaska Department of Fish and Game.
When the state appealed that decision, it argued the court didn’t consider a state statute that gives the Board of Fisheries authority to issue subsistence permits and to adopt regulations regarding those permits. The state also argued another law allowed the board to delegate authority to Fish and Game.
The Court of Appeals’ Friday decision highlighted inaction on part of the state Legislature to amend or clarify the Board of Fisheries’ authority to set harvest limits through the permitting process, thereby disqualifying the fishermen’s argument that the Board of Fisheries is not authorized to “delegate decision-making power to the (Alaska) Department of Fish and Game.”
“... (T)he Alaska Legislature has had ample opportunity to learn that the Board of Fisheries is enacting regulations of this type,” the decision states. “If the Legislature believed that the Board of Fisheries has misinterpreted or overstepped its authority, the Legislature could have intervened by amending the pertinent authorizing statutes. The Legislature’s failure to do so indicates that the Legislature does not perceive these regulations to be ultra vires — that is, beyond the Board’s lawful authority.”
Regulations with adverse affects
The fishery in Kanalku Bay had been at risk of collapse in 2001. Local residents met with Fish and Game in 2002 and, according to the department, agreed to “adopt voluntary measures to protect the fishery.” As part of the agreement, Fish and Game increased the authorized catch limits for sockeye in nearby fisheries that were determined to be less endangered.
The cause of the depleted fishery, according to a 2007 Fish and Game Kanalku Lake Subsistence Sockeye Project report, was “(h)igh subsistence harvests in the 1990s combined with escapements of less than 300 fish in the early 2000s prompted concerns about the future productivity of the sockeye salmon stock returning to Kanalku Lake.”
In 2006, Fish and Game decided that the voluntary conservation measures weren’t working. The department changed the Kanalku subsistence permits by reducing the sockeye catch limit from 25 salmon to 15 salmon per permit. In 2006 and 2009, Angoon’s village corporation, Kootznoowoo, filed proposals with the Board of Fisheries seeking changes to the purse seine management plan to protect the sockeye subsistence harvest.
The Board of Fisheries denied a Fish and Game proposal to create a local area management plan for Angoon in 2009. In 2012, the village corporation submitted a proposal to the Southeast Alaska Subsistence Regional Advisory Council calling for the Federal Subsistence Board to support a federal takeover of the fisheries in northern Chatham Strait. The council recommended waiting another three years to see if a local solution could still be created.
The question of subsistence
The State of Alaska has a long a varied history in dealing with subsistence regulations. The question of whether rural residents should have priority in subsistence became a publicly-divisive issue in 1983 when a Fairbanks sport hunters group got an initiative on the ballot to repeal the 1978 Subsistence Act, which had established a priority for rural subsistence hunters and fishers when stocks were scarce.
The initiative was unsuccessful, but that same year Anchorage hunter Sam McDowell filed a lawsuit against the state arguing that the subsistence law was unfair. After the Alaska Supreme Court eventually overturned the 1978 law as part of a case separate from McDowell’s, the state adopted a new law limiting subsistence to rural residents. McDowell then amended his lawsuit to challenge the new subsistence law. The Alaska Supreme Court ruled rural priority as unconstitutional in 1990. By July of that year, the federal government had taken over subsistence management on federal lands.
Numerous changes and challenges to subsistence regulations and citations have happened since, but a case filed in 1984 by Ahtna elder Katie John may still have major implications for the future of subsistence in Alaska.
John first sued the state in 1984 after she was denied access to a traditional fish camp in the Wrangell-St. Elias National Park. Ten years later, John won the case, which allowed rural residents subsistence priority on all federal waters in Alaska. The state appealed the decision, saying that the subsistence priority under the Alaska National Interest Lands Conservation Act — which the decision was based on — was too broad.
After the 9th U.S. Circuit Court of Appeals reaffirmed the Katie John decision in 2001, Gov. Tony Knowles — after appealing three rulings against the state in the case— changed his mind and announced that the state would not appeal the case to the U.S. Supreme Court.
“We must stop a losing legal strategy that threatens to make a permanent divide among Alaskans,” Knowles said when making the announcement. “Let today be the beginning in closing the urban-rural divide.”
After 12 years, the state decided to again take up the case, now known as State of Alaska v. Sally Jewell. In November, the state filed a petition with the U.S. Supreme Court requesting a review of the decision.
“This decision not only threatens the principle that Alaskans should manage their own fish and game, which was the impetus for Alaska statehood, but also the ability of the State to conserve its resources for future generations,” Attorney General Michael Geraghty said in a Nov. 4 statement.
The Alaska Federation of Natives has intervened in the case and is currently drafting a response that is due by Jan. 21. AFN leadership has said that the organization intends to vigorously defend the case and traditional subsistence use.
The question of money
The state Department of Law supports the decision to reinstate the 2009 charges against the Angoon fishermen.
“The decision affirms a longstanding form of Alaska fishery regulation and bolsters ADF&G’s and the Board’s ability to maintain healthy fisheries across Alaska and ensure the fisheries are sustained for future generations,” the office said in a statement to the Associated Press.
AFN President Julie Kitka said that while the organization had no immediate intentions to get involved in the case, the charges were disappointing.
“These kinds of cases are a top priority for AFN and our membership,” Kitka said. “The system is broken and anytime you have a management system that is constantly changing, you’re going to have problems.”
Kitka said AFN was currently allocating all of its resources to respond to the state’s challenge of the Katie John case.
As for the court’s reasoning that the Legislature has had plenty of time to intervene with the Board of Fisheries implementation of its authority, Kookesh said he doesn’t think it makes sense. He said just because things have been a certain way for so long without intervention, doesn’t make it right.
“Things can go for 25 years because people can’t afford to appeal. People can’t afford to object,” Kookesh said. “Well, we appealed and we objected here, and I think the objection is reasonable.”
• Contact reporter Jennifer Canfield at 523-2279 or at email@example.com. Follow her on Twitter at https://twitter.com/canfieldjenn.