State has 30 days to consider Kookesh subsistence ruling

Posted: Sunday, September 12, 2010

The clock is ticking on the state of Alaska as it considers whether to appeal a decision dismissing charges of fishing in excess of subsistence-use salmon permits against state Sen. Albert Kookesh and three others.

The state has 30 days to file an appeal from Judge David George's order written Friday dismissing the charges.

"I suspect that we will review the order and at some point in time brief the Attorney General on it and a decision will be made as to what, if anything, the state is going to do," District Attorney Doug Gardner said Friday.

Gardner said he had a full caseload Friday, so he had not had time to fully review the order.

"We have got 30 days to appeal, so nothing is changing, the order is what it is ... and the sockeye season is over. So for right now it needs to be looked at by the criminal division and by (Alaska Department of) Fish & Game's counsel, "he said.

The ADF&G filed an amicus, or friend of the court, brief in support of the permit regulations Kookesh, D-Angoon, along with Rocky Estrada Sr., Stanley Johnson and Scott Hunter were accused of violating.

The defendants argued the bag limit set by the state was invalid because it was not adopted via requirements of the Administrative Procedures Act, or APA, while the state maintained the actual setting of bag limits should be left to the management expertise of the ADF&G, according to court documents.

Since the department's decision to limit subsistence fishing to 15 fish in the Kanalku subsistence sockeye fishery stock is a specific restriction that subjects violators to prosecution and affects the public's use of the resource, it is a regulation, the order to dismiss states. As a regulation, it must comply with the APA, which requires public notice, public comment, public participation or a public record to be valid, the order states. The ADF&G did not follow these procedures, the order states.

An agency may not avoid the requirements of the APA simply by using terms like "policy" or "guideline," the order states.

ADF&G Commissioner Denby Lloyd declined to respond to the Juneau Empire's questions concerning the dismissal. However, in an e-mailed response, ADF&G Legislative & Communications Director Jennifer Yuhas stated they have to await an interpretation from the Department of Law.

The Attorney General's office did not receive the written order until 3 p.m. Friday, Bill McCallister, spokesman for the AG's office, stated in an e-mail. It is under review, and the office has several days to contemplate any potential response, he stated.

• Contact Klas Stolpe at 523-2263 or at klas.stolpe@juneauempire.com.



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