Dozens of Alaska Natives poured into a state Supreme Court hearing to show support for subsistence users in a case involving former state Sen. Albert Kookesh, who was cited along with two others in 2009 for exceeding salmon harvest limits while subsistence fishing in Southeast Alaska.
The question before the court is a technical one: Whether the state Board of Fisheries can delegate its authority for setting harvest limits to the Alaska Department of Fish and Game. The fishermen argue that should not have been done in the subsistence fishery at Kanalku Bay near Angoon.
The court's decision could have "far-reaching" implications if it rules in favor of the fishermen, potentially invalidating fishing and hunting permit limits across the state, said Seth Beausang, assistant attorney general for the state.
"Such a ruling would call into question hundreds of regulations that allow the Department of Fish and Game to include permit conditions that are not explicitly spelled out in regulation," Beausang said.
John "Sky" Starkey, attorney for the fishermen, said the implications will be positive if it means communities have a chance to weigh in before harvest limits are set in subsistence fisheries needed to feed families.
Four justices heard the oral arguments on Tuesday. Justice Daniel Winfree recused himself without explaining why.
In attendance was Kookesh, who said he challenged the harvest limit in part because there had been no public input into how Fish and Game set a family cap of 15 sockeye salmon a year at the fishery near Angoon, his hometown.
"They never had public input and secondly they didn't define family. It could be a family of two or a family of 15," Kookesh said.
He said he had long disagreed with the way subsistence limits had been set in the fishery. "To me, it's an ethical, moral question" that villages should be included in such decisions, he said.
Joining him in the case are Stanley Johnson and Rocky Estrada Sr. The fishermen beat charges of overfishing in state district court, but the state won on appeal.
Two prominent Native organizations, First Alaskans Institute and the Alaska Federation of Natives, urged readers on their Facebook pages to pack the courtroom. The justices "need to see that this case is not just about administrative law, it is about the rights of Native peoples to live Our Ways of Life," said the post from First Alaskans Institute.
More than 50 spectators attended, including Lt. Gov. Byron Mallott, a "personal friend" of Kookesh -- and a fellow Tlingit -- who said he was there to learn more about an important issue in which the state Supreme Court will shape policy.
Other prominent faces included Julie Kitka, president of AFN, which had filed a "friend of the court" brief in support of the fishermen, and Myron Naneng, president of the Association of Village Council Presidents in Bethel.
"We don't want the state to limit us from getting what we need," said Naneng. "They let commercial fisheries have unlimited fish, but they limit subsistence fishermen."
Starkey argued it's not legal for an area biologist to unilaterally set a limit for such an important fishery. Moreover, the decision was made behind closed doors, with no record of how 15 sockeyes was chosen as the limit.
Beausang told the justices the board has the authority to delegate permit-setting conditions to the department and has historically done so, including in small fisheries like the one near Angoon. The fishery has been "near collapse" and decisions need to be made yearly, not every three years when the board meets to discuss Southeast proposals.
Chief Justice Dana Fabe and Justice Craig Stowers asked most of the court's questions, often pressing Beausang. Fabe wanted Beausang to point out where the record showed why 15 fish were selected as the limit, saying she couldn't find it. Stowers noted that the district court had been unable to find that information.
Beausang said he disagreed with the district court that the information wasn't available. He said the area biologist had explained in a lengthy affidavit that the previous bag limit of 25 would lead to the fishery's collapse, but Beausang said he was not certain if the affidavit went into scientific detail.
Beausang said there was no closed-door decision and there are opportunities for public input before the Fish Board and the agency, including that the public can submit proposals for the board to consider. The community never submitted a proposal, he said.
Instead, fishermen caught three times as many fish as they should have, even after signing for permits and acknowledging they would comply. "They didn't raise any issue with the harvest limit until they were caught for overfishing," he said.
If the state wins, the case will return to district court for further proceedings.