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Important fishery regulation question at core of Kookesh overfishing case

Craig Medred

Then-Alaska state Sen. Albert Kookesh, from the village of Angoon on wild Admiralty Island in Southeast Alaska, thought the Alaska Department of Fish and Game had over-stepped its authority when it snagged him for overfishing in 2009.

A powerful, veteran lawmaker intimately familiar with Alaska law, Kookesh and four other fishermen were caught in Kanalku Bay with 148 sockeye salmon, nearly double their combined legal limit of 75. Four of the five men eventually faced charges of exceeding their limits.

At the time he was cited, Kookesh argued it was common practice for local fishermen to ignore bag limits in order to catch extra fish to bring home to their community. And at trial, he contested Fish and Game's authority to set a 15-salmon-per person bag limit.

Only the state Board of Fisheries could set catch limits, his attorney argued. Sitka Superior Court Judge David George agreed and tossed the charges against the four men. The state appealed, fearful George's decision could set a dangerous precedent.

Alaska's Fish Board has long delegated management authority to Fish and Game. Most of the state's commercial salmon fisheries are run each summer by what are called "emergency orders." The emergency orders come from state fisheries biologists whose job it is to interpret the strength and timing of salmon runs, and then allow fishing -- or not -- to accommodate the harvests on which commercial, subsistence and sport fisheries depend, and ensure spawning goals are met to main future salmon returns.

All of these decisions are made under authority delegated to the agency by the Fish Board. And it was just this sort of delegation on which Kookesh challenged and won. The state, fearing chaos in many fisheries with such a potentially far-reaching ruling, appealed.

The Alaska Court of Appeals this week ruled in favor of the state, stipulating that there is a two-tier system of regulation in Alaska. The Fish Board, the court observed, is the ultimate regulatory authority, but that doesn't prevent the Board from delegating broad responsibilities to Fish and Game.

"...We disagree with the district court," the three-judge panel wrote. "We conclude that Alaska law does allow the Board of Fisheries to enact this second type of regulation -- i.e., regulations that allow the Department of Fish and Game to establish restrictions on fishing by making these restrictions a condition of fishing permits."

Kookesh and his fishing buddies had picked up such subsistence seining permits. Those permits specifically limited them to 15 fish each.

"The question presented in this appeal is whether the Alaska Legislature has given the Board of Fisheries the authority to enact regulations that (1) require all participants in a particular fishery to have a permit and that (2) authorize the Department to impose terms or conditions on these permits that restrict harvest levels, types of gear, and such -- thus effectively allowing the Department of Fish and Game to make decisions about harvest levels and other harvesting restriction," the appeals court wrote.

"...In situations like the one presented in the Kanalku Lake area -- situations where a fish population is an important subsistence resource, but where the subsistence harvest is too great to maintain a sustained yield from the population....Can the Board enact regulations that control fishing, and fisheries, through a permitting process -- a process that allows the Department of Fish and Game to set harvest limits and other harvesting restrictions as conditions of the permit?"

The court decided the Fish Board can enact such regulations, as it has long done, and suggested that if people are dissatisfied with the way things are working, the place to go for change is the Legislature.

"...Because the question in this case is ultimately one of legislative intent, it is instructive that the Board of Fisheries has been enacting this type of regulation for decades," the opinion notes. "The Alaska Legislature has had ample opportunity to learn that the Board of Fisheries is enacting regulations of this type. If the Legislature believed that the Board of Fisheries had misinterpreted or overstepped its authority, the Legislature could have intervened by amending the pertinent authorizing statutes. The Legislature’s failure to do so indicates that the Legislature does not perceive these regulations to be ultra vires— that is, beyond the Board’s lawful authority.''

The chairman of the Native regional corporation Sealaska, the former co-chair of the Alaska Federation of Natives, a commercial fishermen and a lodge owner, Kookesh spent 16 years in the Legislature, first in the House and then in the Senate, and never attempted to amend the law. He lost his Senate seat in Republican Bert Stedman from Sitka in 2012.

Things have not gone so well for Kookesh since. He was rushed to the Providence Alaska Medical Center in February of this year after suffering a heart attack at the Juneau airport. And now he's headed back to court to once more face charges of overfishing. 

Kanalku Lake sockeye salmon, meanwhile, remain a species of concern. The returns there have been weak for a decade. Fish and Game imposed the 15-per-person limit largely at the urging of Angoon residents worried the run could be fished out.

Reduced harvests have not, however, restored the run as yet. Kootznoowoo, Inc., the village Native corporation for Angoon, in 2010 petitioned the Federal Subsistence Board to take over salmon management in Chatham Strait and cut-off interceptions of Kanalku sockeye. The feds eventually said "no,'' and last fall told the corporation to work with state officials to try to reduce interceptions.

The bycatch of Kanalku Lake sockeye in the northern Panhandle fisheries targeted on other salmon is believed to be small, but as is in the case in many of Alaska's mixed-stock salmon fisheries, no one knows for certain. 

Contact Craig Medred at craig(at)alaskadispatch.com