Fishing guide loses appeal

ANCHORAGE — A fishing guide whose boat was confiscated following a 2012 conviction for aiding clients in violating the law has lost his appeal

Ray Blodgett was first issued a summons to appear in August 2011. He and his clients were at the time fishing in the Talkeetna River drainage. His clients were allegedly using multiple hook lures baited with salmon eggs in waters restricted to artificial lures.

Blodgett told Alaska Wildlife troopers he thought he was in Clear Creek. He was actually in Fish Creek.

“Fish Creek had been a tributary of Clear Creek… it had flowed into Clear Creek about a half-mile before Clear Creek joined the Talkeenta River. But, in 2006, major flooding altered these water courses. Since that time, Fish Creek has flowed directly into the Talkeetna River,” Alaska Appeals Court Judge David Mannheimer writes in a ruling handed down Dec. 11.

Mannheimer describes Blodgett’s four points of appeal:

First, Blodgett and his attorney Chad McGrady argue, the lower court should have “taken judicial notice” of the location of Fish Creek and Clear Creek.

Second, they argue that the state shouldn’t have been allowed to call Gerald Sousa as a witness because he testified as an expert, but wasn’t officially recognized as one.

Third, they argue that the state shouldn’t have been allowed to enter evidence of a previous guiding violation for which Blodgett was convicted.

Fourth, they argue that it was a prohibited and excessive punishment to seize Blodgett’s boat and motors.

The only point that the appeals court agreed with was the third, the one about the prior conviction.

The question about whether the judge should have taken notice of the location of the creeks, Mannheimer wrote, would have essentially decided the case in favor of Blodgett prior to trial.

The issue hinged on maps printed in state Department of Fish and Game publications. Those maps and descriptions of the creeks didn’t reflect the changes in 2006.

“Blodgett asserts that the maps and written descriptions issued or endorsed by the Department of Fish and Game are legally binding, even though they do not reflect geographic reality. Blodgett argues that he ‘had the right to follow even an inaccurate finding by Fish and Game’ concerning the geographic relationship of Fish Creek, Clear Creek, and the Talkeetna River — even if he knew it was wrong,” Mannheimer writes.

But — Mannheimer writes — the maps and descriptions aren’t intended that way. The department even makes sure to note the laws apply to streams even when they’ve changed course.

As to the second point, the one about Sousa, Mannheimer writes that Sousa didn’t actually testify as an expert. He didn’t provide information that required expert knowledge to understand. He only testified to his personal experience fishing those waters and his knowledge that the creeks had changed course after 2006.

As for the fourth point, the one about the seizure of the boat, Blodgett contended that the boat wasn’t used in the crime because the clients were fishing from the banks.

“It is possible to imagine situations where, after a fishing guide has transported a client to a fishing site, the client unexpectedly begins to do something illegal… and the guide decides to go along with the client,” Mannheimer writes. “In such situations, it might make sense to distinguish (1) the guide’s initial innocent use of a boat to transport the client to the site, versus (2) everything that occurred later.”

But that’s not the case here.

Blodgett also argued that the seizure was excessive, that the crime for which he was convicted carried a fine of $10,000 but the equipment taken was worth $45,000. To exceed the value of the fine like that, the judge would have had to find that there was need to protect the public from Blodgett.

But, while the judge didn’t explicitly use those words, Mannheimer writes that the judge did speak about Blodgett’s willingness to break the law and the unlikelihood he could be reformed. Which is to say the judge strongly implied the need to protect the public.

As for the third point, the only one on which the appeals court agreed with Blodgett, the problem with the evidence of the past crime was that it was of a different sort. In finding him guilty prosecutors in 2006 had to prove that Blodgett knew what the law was and disregard it when he took clients out fishing the day after the season closed in order to let them pull fish out of the water and photograph them.

Knowledge of the law was not at issue in 2011. Everyone agreed what the law was and that Blodgett knew it. The issue was whether he knew where he was fishing and whether he should have been expected to.

Because the two crimes are so different, the first one couldn’t come up in the trial for the second.

But, Mannheimer wrote, that error was harmless.

“The testimony concerning this prior offense took up a tiny portion of a trial that was a week long. The prosecutor’s reference to this offense during his summation was similarly brief,” he wrote.

Contact Andrew Wellner at 352-2270 or andrew.wellner@frontiersman.com.