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State files motion for reconsideration in Kookesh subsistence fishing case

Posted: Sunday, September 19, 2010

The state of Alaska has filed a motion asking a court to reconsider the dismissal of charges related to subsistence fishing in excess of a permitted amount against a state senator and three others.

Earlier this month, Superior Court Judge David George dismissed those charges against Sen. Albert Kookesh, D-Angoon, along with similar charges against Rocky Estrada Sr., Stanley Johnson and Scott Hunter. Hunter still faces a charge related to obtaining a permit after previously being cited by Alaska Department of Fish & Game officers for exceeding a bag limit, according to Empire archives..

The motion, filed by District Attorney Doug Gardner, states the court overlooked or failed to consider at least two important statutes and also failed to consider a key regulation. The court also misapplied the holding in a previous state case that was key in the arguments of both sides, the motion states.

According to the motion, the court did not consider a statue that gives the Board of Fisheries independent authority to authorize the issuance of subsistence permits, and states that the Board may adopt regulations providing for the issuance and expiration of subsistence permits. Nor did it consider a law that allows the Board to delegate authority to the commissioner of the Department of Fish & Game to act in its behalf.

The state argues that the department has independent authority to "manage, protect, maintain, improve, and extend the fish... resources of the state in the interest of the economy and well-being of the state."

The dismissal order failed to mention the regulation that authorizes, regulates, and monitors the subsistence salmon fishing in the area where the defendants fished, according to the motion to reconsider. Alaska also argues the judge did not apply the holding in Brigman v. State correctly in its motion. Brigman, the state contends, applied to an area open to hunting, not to a harvest limit.

Gardner declined to comment for this story.

Kookesh's attorney, Tony Strong, was not immediately available for comment as of press time

• Contact Klas Stolpe at klas.stolpe@juneauempire.com.



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