State files opposition against Kookesh motion

Alaska DA, defendants dispute land ownership in subsistence case

Posted: Tuesday, February 16, 2010

The state is opposing a motion to dismiss charges against Sen. Albert Kookesh and three codefendants accused of illegal subsistence fishing near Angoon in July.

Attorney Tony Strong filed a motion on behalf of Kookesh, Rocky Estrada Sr., Stanley Johnson and Scott Hunter on Dec. 29 to have the case dismissed on grounds that the state acted outside its jurisdiction where the four men were fishing in Kanalku Bay on Admiralty Island. Strong claimed the area is owned partly by the Native corporation Kootznoowoo, Inc. and partly by the federal government through the U.S. Forest Service, which makes it under federal jurisdiction because of the Alaska National Interest Land Conservation Act, or ANILCA.

District Attorney Doug Gardner filed an opposition to the motion Friday, arguing that the state has regulatory jurisdiction and authority over the waters and submersed lands of Kanalku Bay below the mean high tide watermark where the defendants were charged with the fishing violations. A section of ANILCA cited in the motion filed on behalf of the defendants actually states that the land "above mean high tide" was granted to Kootznoowoo, according to the state.

"Those ANILCA provisions, which the defendants omit from their argument, make it clear that any ownership in the area by Kootznoowoo, Inc., is only of uplands, above the point of mean high tide," according to the state's motion. "It is not of marine submerged lands, lands submersible by the tides, or waters actually in Kanalku Bay."

Strong said Monday that he had not read the filing because the courts were closed in observance of Presidents Day and the copy faxed to him by the state was unreadable. He said he expects to ask the court for more time to respond to the motion.

"It's the normal process," Strong said. "I file a motion, they file their opposition and then I have an opportunity to respond to it."

Judge David George will make a ruling on the motions after they are all submitted to the court.

An Alaska State Trooper wildlife officer cited Kookesh, Estrada, Johnson and Hunter for illegally harvesting 73 sockeye on July 12, 2009, in Kanalku Bay near Angoon. The maximum fine for the citation is $500.

The men were cited after harvesting 148 sockeye with a beach seine net, 73 more salmon than allowed on the valid permits in their possession. Each person's subsistence permit allows for 15 sockeye to be harvested from the Kanalku Lake area. One man with a valid permit wasn't cited.

A trial scheduled to begin last month in Angoon was postponed until April.

The defendants' motion to dismiss also asks the court to instruct the state to no longer enforce subsistence regulations in Mitchell, Kanalku and Favorite bays.

The state contends the defendants are misusing the ANILCA provision cited to argue for federal regulation of the three bays.

"Nowhere does that provision declare or provide for federal or Kootznoowoo, Inc. ownership of the marine or tide waters of the area or their submerged or submersible lands, including Kanalku Bay," according to the state's motion. "Neither does it provide for a federal subsistence priority in those salt waters or underlying lands ...."

Strong said he stands by his motion to dismiss the charges.

"I haven't changed my mind about it," he said.

• Contact reporter Eric Morrison at 523-2269 or eric.morrison@juneauempire.com.



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