Subsistence fishing case may set legal precedent on other limits

Charges against three Southeast subsistence fishermen — including former Sen. Albert Kookesh — have once again been dismissed. In an opinion issued Friday, the Alaska Supreme Court found that because the regulation used to cite the men was not created lawfully, it’s unenforceable.

The decision could have a major impact on Department of Fish and Game bag limits across the state.

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Estrada v. the State of Alaska concerned three men accused of taking more fish than their permits allowed. A fourth man, Scott Hunter, eventually pled guilty to an amended charge of fishing without a permit.

Rocky Estrada, Hunter, Stanley Johnson and former Angoon Sen. Albert Kookesh were cited in July 2009 for harvesting 148 fish; their permits only allowed for 15 sockeye salmon harvested per family from Kanalku Bay near Angoon. Kookesh — who’s served in both bodies of Alaska’s Legislature and as chairman of Sealaska — says he wasn’t even fishing that day.

“When I saw Fish and Game come in and start giving them citations, I was looking for something that would challenge the bag limit,” Kookesh said. At the time of the citations, he was representing Senate District C, which included a number of Southeast villages. “When I saw them giving my brothers a citation, I went over and said, ‘Here’s my permit; I want to get a citation, too.’”

The charges were dismissed by a judge at first, but the state appealed.

The fishermen saw the citations as unfair. Kookesh said no one in Angoon recalled the Department of Fish and Game consulting with locals informally — which the department claims it did — let alone officially. If they had, Kookesh says the resulting regulation that set the bag limit may have been more agreeable to locals. He says the department erred in not establishing a definition for “family” or explaining how they decided on 15 fish.

“Less than a mile away from where we got cited, commercial fishermen were fishing, catching all the fish they wanted,” he said.

In 2013, the Alaska Court of Appeals reinstated the charges. Their reasoning was that because the Legislature knew the Board of Fisheries was enacting this kind of regulation, their inaction to amend or clarify the board’s power indicated that they believed the board acted within its authority.

That’s a conclusion the Supreme Court found to be beside the point.

For the justices, the question wasn’t about the authority to create regulations; it was about whether those regulations were established according to the Administrative Procedures Act — a law that defines the process for creating a regulation.

How extensively this decision will affect bag limits across the state is still unknown.

“This may not just be for the bag limit in Angoon. There are bag limits for everything in the state — for moose, for deer, for everything. And we don’t think that this is going to be such a small Angoon case; it’s going to be an Alaska case,” Kookesh said.

Fish and Game Deputy Commissioner Kevin Brooks says the department is also trying to figure out what the decision means for their subsistence management regime.

“We’re going to pull together our directors on Monday morning and with the Department of Law just walk through it,” Brooks said. “It has resource management implications and they’re pretty varied. It’s commercial, sport, subsistence and wildlife. We’ve got to spend some time and figure it out.”

A spokeswoman for the governor said the Walker administration is still reviewing the case.

Kookesh says this is just one of many issues surrounding subsistence management in the state that will be challenged over the coming years. He says this case was really about making the department consult with people in rural Alaska.

“We intended to fight this,” he said. “We intended to challenge it and we did. And today after all those years and all that heartache and all that stress, we finally got a result that we think is right.”

Correction: The Alaska Supreme Court opinion issued Friday states that the fishermen were arrested at the time of their citations. A previous version of this story included that detail, which is not true.   

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Jennifer Canfield is a reporter at KTOO in Juneau.

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