Alaska Supreme Court dismisses fishing overharvest charges against former state senator

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ANCHORAGE, Alaska — The Alaska Supreme Court has dismissed charges of overharvesting salmon against a former state senator and two other fishermen.

The justices in a decision issued Friday ruled fishing regulators did not follow state law before lowering the harvest limit of sockeye near Angoon, in southeast Alaska.

A wildlife trooper in July 2009 arrested then-state Sen. Albert Kookesh, D-Angoon, and three other fishermen after watching them harvest 148 fish with a seine net from Kanalku Lake on Admiralty Island. Their subsistence permits allowed them 15 salmon each.

The Department of Law throughout the case argued that the state Board of Fisheries and the Alaska Department of Fish and Game had authority from the Alaska Legislature to lower harvest limits to maintain healthy fisheries.

Seth M. Beausang, assistant attorney general, said the Department of Law is evaluating the opinion and its potential ramifications but would not no further comment.

The attorney for the fishermen, John Starkey, said Friday his clients feel pleased and vindicated despite the stress and personal sacrifice.

"They were very committed to seeing this thing through as a matter of principal and to try to establish this case and this precedent," Starkey said.

According to the justices' decision, the harvest limit for Kanalku sockeye from 2001 through 2005 was 25 fish. The Department of Fish and Game determined the harvest at that level was unsustainably high. Angoon residents informally agreed to a voluntary moratorium on fishing for 2002 and again in 2004.

Department officials in 2006 determined the moratorium had not been effective and wrote Angoon community leaders that the harvest limit would be reduced from 25 to 15 sockeye salmon. The department in May 2007 issued a news release stating that the limit would remain 15 fish.

After the fishermen's 2009 arrest, an attorney for Kookesh and two other men, Rocky Estrada and Stanley Johnson, argued the Board of Fisheries could set harvest limits only through adoption of regulations in accordance with a state law. A District Court judge agreed and dismissed the case.

Prosecutors appealed and argued that state officials had informally consulted with Angoon residents about the need to protect the fishery and that the 15-fish limit was noted on subsistence permits. The Court of Appeals reversed the District Court decision, agreeing with the state that the fisheries board could interpret its authority from the Alaska Legislature to restrict harvest levels.

Supreme Court justices, however, said the board needed to follow state law on regulations because setting a harvest limit clearly altered the rights of fishermen while providing no public participation in the change. The change to a 15-fish limit was first announced after it was adopted, justices said.

Starkey said important decisions such as bag limits for subsistence fishing deserved the same public review as, for example, sport fishing in the Kenai River.

"This is very important for subsistence users to establish that all their decisions about their way of life, particularly something like how many fish they can catch, needs to be through a public process where they are fully engaged and have a chance to get something that works and satisfies their way of life," he said.

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