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.

It was a roll­er-coast­er legal jour­ney for Lar­ry Bellefy, a Red Lake band mem­ber and one of the 10 de­fend­ants. Bellefy, who owns a bar in Bagley, Minn., was indicted on a charge of buy­ing poached fish and re­sell­ing it. He pleaded guil­ty July 26.

Af­ter Tun­heim tossed four of the Leech Lake in­dict­ments in No­vem­ber, say­ing they vio­lat­ed In­di­an rights un­der an 1837 trea­ty, Bellefy tried to with­draw his guil­ty plea, but U.S. District Judge Rich­ard Kyle would not al­low it, and a sen­ten­cing date was set. Af­ter pros­ecu­tors re­vealed the legal flaw, Kyle dis­missed Bellefy’s in­dict­ment.

In the state cases, the DNR has some “pre­limi­nary in­for­ma­tion” that 38 charges were brought against 26 in­di­vidu­als in Beltrami, Cass, Clearwater, I­tas­ca, Otter Tail, Pen­ning­ton and Polk coun­ties.

Of the 38 charges, 30 re­sul­ted in con­vic­tions, the DNR said. Ken Soring, chief con­ser­va­tion of­fi­cer for the DNR, said he be­lieved that none of those con­victed re­ceived jail time. One per­son charged is now de­ceased; one had his charge dis­missed and re­ferred to trib­al court. Some cases in­volved plea agree­ments that in­clud­ed dis­miss­al of some charges and con­vic­tions on oth­ers.

“There were an­oth­er 11 in­di­vidu­als where 27 charges were iden­ti­fied that were not charged be­cause of limi­ta­tions, prosecutorial dis­cre­tion, trib­al ju­ris­dic­tion or the in­di­vid­u­al be­ing de­ceased,” the DNR said.

The sta­tus of cases brought in Red Lake or Leech Lake trib­al courts is not known. Calls to of­fi­cials at both res­er­va­tions were not re­turned.

Let tribe han­dle it?

George Goggleye, chair­man of the Leech Lake trib­al gov­ern­ment from 2004 to 2008, said in a re­cent inter­view: “I didn’t think [the in­dict­ments] were a good i­de­a to be­gin with. The tribe has its own con­ser­va­tion code. The trib­al con­ser­va­tion of­fic­ers should have han­dled this, not the gov­ern­ment.” He said the men in­volved should have been is­sued tick­ets rath­er than being in­dict­ed.

“A lot of these peo­ple were my friends who were in­dict­ed, and pro­vid­ed fish to fami­lies who could not go out to fish them­selves,” he said. “These peo­ple were tar­get­ed. It was po­lit­i­cal­ly mo­ti­vated at the time. These peo­ple did not sup­port the trib­al lead­er­ship.”

With this year’s fish­ing o­pen­er on Saturday, the DNR’s Soring was asked what im­pact the fed­er­al in­ac­tion will have on en­force­ment. “We will still be en­for­cing state laws as we al­ways have,” said Soring.

He also under­scored that poach­ing hurts all an­glers. “If ev­er­y­one was com­pli­ant,” he said, “lim­its on wall­eye could po­ten­tial­ly be high­er than they are. Compliance is ne­ces­sary in ord­er to main­tain a heal­thy fish­er­y.”

 

Randy Furst • 612-673-4224

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