Senator moves to have case dropped

Posted: Wednesday, January 06, 2010

State Sen. Albert Kookesh and the three codefendants charged with illegal subsistence fishing near Angoon in July filed a court motion last week to have the case dismissed on grounds that the State of Alaska acted outside its jurisdiction.

A trial was scheduled to begin Monday in Angoon but has been postponed until April. Judge David George gave the state until Feb. 12 to respond to the motion filed by attorney Tony Strong on behalf of defendants Kookesh, Rocky Estrada Jr., Stanley Johnson and Scott Hunter.

"We intend to oppose the motion and we will do so during that period of time," Juneau District Attorney Doug Gardner said. He had no further comment on the case.

"It's filed and the state has an opportunity to oppose," Strong said Monday. "After they file their opposition, I will respond."

An Alaska State Trooper wildlife officer cited Kookesh, Estrada, Johnson and Hunter for illegally harvesting 73 sockeye on July 12 in Kanalku Bay near Angoon. The maximum fine is $500.

The men were cited after harvesting 148 sockeye with a beach seine net, 73 more salmon than allowed on the valid permits in their possession at the time. Each person's subsistence permit allows for 15 sockeye to be harvested from the Kanalku Lake area. One man with a valid permit wasn't cited.

The motion to dismiss filed on Dec. 29 contends that the state was acting outside of its jurisdiction because the area where the four men were fishing in Kanalku Bay on Admiralty Island is owned partly by the Native corporation Kootznoowoo, Inc. and partly by the federal government through the U.S. Forest Service.

The motion contends that the "management of the recreational and natural values of the area" where the four men were subsistence fishing is under federal jurisdiction because of the Alaska National Interest Land Conservation Act, or ANILCA.

"That language is a clear expression of Congressional intent that the management of Kanalku and its immediate environs are to be managed in a cooperative management and regulations framework with the Federal government and Kootznoowoo, Inc.," according to the motion. "That clear manifestation of Congressional intent excludes State regulations.

... "The State of Alaska lacks authority to regulate the activities in the location Defendants were in, in the case before this Court."

The motion goes on to say that the waters of Kanalku Bay are designated by Congress as "reserved waters" and are authorized as a subsistence fishing area for the residents of Angoon, the lone community on Admiralty Island.

The motion says the state has tried to enforce subsistence regulations upon residents of Angoon in the past, efforts it says are not supported by the law.

"Those citations and charges cause the residents of the community undue hardship and stress and interferes with their statutory right to provide for their livelihood in those locations," according to the motion.

The motion to dismiss also asks the court to instruct the state to no longer enforce subsistence regulations in Mitchell, Kanalku and Favorite Bays.

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