State Sen. Albert Kookesh had his motion to dismiss charges for fishing in excess of his State of Alaska subsistence-use salmon permit denied by Superior Court Judge David George on Tuesday in Sitka, paving the way for a trial next month.
Kookesh and co-defendants Rocky Estrada Sr., Stanley Johnson and Scott Hunter argued subsistence fishing in Kanalku Bay is protected by Title VIII of the Alaska National Interest Lands Conservation Act, or ANILCA, thereby precluding state enforcement. The defendants also argued the waters of Kanalku are managed exclusively by the federal government and Kootznoowoo, Inc., the Angoon-based native cooporation.
However, George ruled in favor of the state, holding it has jurisdiction over the navigable waterways and tidelands where the alleged violations occurred and it has jurisdiction to enforce state fish and game laws, even on federal lands.
Under the Submerged lands Act of 1953, the federal government transferred title to submerged lands surrounding Alaska to the new state during statehood in 1959. According to George's order of denial, ANILCA applies to "public lands," defined as federal lands. It does not include lands "validly selected under the Alaska Statehood Act or granted to the Territory or State of Alaska under any other provision of federal law. When Alaska became a State it received both title to the submerged lands of Kanalku Bay and the management authority over navigable water in the Bay."
"We will be ready for trial on September 8," Juneau District Attorney Doug Gardner said. "We are still awaiting the court's decision on the issue of whether the department of fish and game's bag limits were legal under Alaska law."
Calls to Kookesh's attorney Kirsten Swanson were not returned as of press time. A pretrial hearing is set for Sept. 2.
The defendants were charged with subsistence overfishing on July 12, 2009 while beach seining along the shore of Kanalku Bay on Admiralty Island, according to court documents. Their net was attached to a boat operating in the waters of the bay.
The defendants allegedly harvested 148 sockeye salmon and held, collectively among them, three to eight possible valid subsistence permits. Each permit entitles the holder to a total of 15 sockeye salmon. Hunter's citation was later amended to fishing without a permit as the state alleges he did not obtain the permit until after the citation was issued.
Previous Juneau Empire articles and court documents show that the sockeye fishery the defendants are accused of overfishing was on the verge of collapse in 2001 and again in 2003 with less than 300 fish.
"Through conservation measures that the community and the department have worked together on, the run has rebounded to much better levels," said David Harris, assistant Juneau area commercial fisheries manager said. "In the Spring the ADF&G reviews harvest and biological data to determine permit usage but at this time there is no change in the number of fish per household."
The Alaska Department of Fish and Game has a weir in place on Kanalku Creek. The current 2010 return is around 2,400 fish into the lake, Harris said.
"That is a very good return," Harris said. "We have been monitoring it for a number of years, back when it was at a very low level. It is rebounding quite nicely. We have heard there was a good harvest this year by the local people and we had a fine escapement."
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