Federal cases against Minnesota fishing poachers collapse

  • Article by: RANDY FURST , Star Tribune
  • Updated: May 3, 2014 - 7:53 PM

In­dict­ments have fizzled in the cases of 10 ac­cused in a huge op­er­a­tion on state Indian res­er­va­tions.

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On his first day as U.S. attorney for Minnesota, Andy Luger was told about “a po­ten­tial flaw” in the in­dict­ment and need­ed to dis­miss the case against four men charged in the poach­ing scheme on the Red Lake reservation.

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Like the big fish that got away, a fed­er­al crack­down last year on fish poach­ing on some of north­ern Minnesota’s most popu­lar lakes has left auth­ori­ties emp­ty-hand­ed.

Of the 10 fed­er­al in­dict­ments an­nounced with much fanfare in April 2013, none has gone for­ward, to the de­light of defense at­tor­neys and to the dis­may of sports­men con­cerned that un­checked poach­ing will ruin the catch for legal an­glers. Of the cases:

• Four have been dis­missed in the past two months at the re­quest of the pros­ecu­tors them­selves af­ter they dis­cov­ered that the cen­tral ar­gu­ment in the in­dict­ment was flawed.

• Four oth­er in­dict­ments were over­turned by U.S. District Judge John Tun­heim last No­vem­ber, cit­ing a 177-year-old In­di­an trea­ty that he said trumped the legal case brought by the U.S. at­tor­ney’s of­fice.

• Two oth­er cases are on hold, await­ing the out­come of an ap­peal of Tun­heim’s de­ci­sion to the Eighth U.S. Circuit Court of Appeals. The Eighth Circuit does not of­ten o­ver­turn dis­trict judg­es.

Tom Hef­fel­fin­ger, form­er U.S. attorney, ex­press­ed dis­ap­point­ment at the sta­tus of the fed­er­al in­dict­ments. “It is un­for­tu­nate these cases are not re­sul­ting in peo­ple be­ing held ac­count­a­ble, at least not yet,” said Hef­fel­fin­ger, who is also the form­er coun­sel for the Leech Lake In­di­an Reservation. “These fish on these wa­ter­way are tre­men­dous re­sources for these tribes, and with­out hav­ing pros­e­cu­tion as an ef­fec­tive tool to pro­tect the water­ways and the re­sources, it re­al­ly under­mines the a­bil­i­ty of the tribes to pro­tect trib­al re­sources.”

Last spring, fed­er­al auth­ori­ties an­nounced that they had in­dict­ed 10 men from north­ern Minnesota on charges of net­ting hun­dreds of thou­sands of dol­lars’ worth of wall­eyes and oth­er fish from the Red Lake and Leech Lake In­di­an res­er­va­tions and selling them in vi­o­la­tion of fed­er­al law. Oth­ers were charged in state and trib­al courts.

“It’s a very big deal,” Jim Kon­rad, then en­force­ment di­rec­tor for the Minnesota Department of Nat­u­ral Resources (DNR), said at the time. “It’s il­legal ac­tiv­i­ty that has sig­nifi­cant ef­fects not only on state re­sources but trib­al re­sources.”

But the fed­er­al cases, at least, have gone bad­ly, and defense at­tor­neys have watched with some sat­is­fac­tion as the legal jus­ti­fi­ca­tion for the pros­ecu­tions col­lapsed.

“Giv­en the enor­mous in­ves­ti­ga­tive and prosecutorial re­sources that have been poured into this case, what the gov­ern­ment now has to show for it is em­bar­rass­ing,” said at­tor­ney Robert Rich­man, whose cli­ent, Thomas Sum­ner, a member of the Red Lake Band of Chippewa, had his case dis­missed March 17.

Andy Lu­ger’s first day

For Andy Lu­ger, his first day as Minnesota’s new U.S. attorney was a sober­ing one.

He was sworn in at 2:30 p.m. Feb. 14, got finger­print­ed, which is stan­dard pro­ce­dure, then filled out some in­itial pa­per­work. At 3:30 p.m., he ar­rived at his sixth-floor of­fice, where he said three as­sist­ant U.S. at­tor­neys were wait­ing to tell him some un­set­tling in­for­ma­tion: They had dis­cov­ered “a po­ten­tial flaw” in the in­dict­ment and need­ed to dis­miss the case against four men charged in the poach­ing scheme on the Red Lake reservation.

The in­dict­ment alleged that the men had tak­en and sold the fish in vi­o­la­tion of the U.S. Code of Federal Regu­la­tions, which states that “no per­son shall en­gage in com­mer­cial fish­ing” on Red Lake ex­cept as authorized by the Red Lake Fish­er­ies Association, which was in­corpo­rat­ed un­der Minnesota law.

“It was dis­solved and now there is the Red Lake Na­tion Fish­er­y,” said Lu­ger. “It’s a new cor­po­ra­tion, but it is not in­corpo­rat­ed in the state of Minnesota and its by­laws have not been ap­proved by the [U.S.] secretary of In­ter­ior.” Nor had the U.S. code been re­vised to re­flect the change.

“We all agreed on that Fri­day af­ter­noon that the cases should be dis­missed,” says Lu­ger. “The is­sue was brought to the judge’s at­ten­tion the next week, and the cases were dis­missed.”

Lu­ger ob­serves that the defense did not a­lert them to the flaw, but pros­ecu­tors dis­cov­ered their own mis­take and to their cred­it dis­closed it.

The four men in the Red Lake in­dict­ments will not be re­charged, Lu­ger said.

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