St. Paul — A Minnesota man who staged a one-person protest by illegally fishing Lake Mille Lacs before the season opened two years ago had his case rejected last week when the state Court of Appeals upheld a lower court decision.
Next time, his attorney said, based on the Appeals Court decision, his client’s “counterprotest” will take place at the same time, and on the same lake, as the “original” protest.
Steve Fellegy, 58, of Aitkin, said he purposely caught and kept a Mille Lacs walleye – in Aitkin County – the day prior to the May fishing opener in 2010, the same day tribal members were cited for a similar incident on Lake Bemidji in Beltrami County. Fellegy, a fishing guide, since has paid a $160 fine; the tribal members haven’t been prosecuted.
Once found guilty in Aitkin County Circuit Court, Fellegy and his attorney, Erick Kaardal, appealed the decision.
Last week, the state Court of Appeals affirmed the conviction. Kaardal, meanwhile, said it wasn’t the end of the road regarding the case.
“We’re going to proceed to the Supreme Court,” he said.
Appeals Court Judge Kevin Ross said part of the reason Fellegy’s appeal was denied was because of procedural errors in the defendant’s filing of motions (Fellegy originally defended himself).
According to Ross, Fellegy, before his trial, “challenged the charge as unconstitutional selective enforcement in violation of his constitutional right to equal protection under the law.”
The district court rejected the challenge without an evidentiary hearing, and found him guilty of illegal fishing.
The Appeals Court offered a number of reasons for its affirmation of the district court ruling.
According to Ross, Fellegy originally stated he was subjected to “selective enforcement” because “ … during the same timeframe (before the fishing opener) in Minnesota and Wisconsin citizens harvested approximately 65 tons of walleyes from the same lake.”
However, the court noted, shortly thereafter Fellegy’s argument was based on different facts – the case from Beltami County, and that the Beltrami County attorney hadn’t charged the tribal members similarly.
According to the Appeals Court: “The difference between the two assertions is substantial and supports the district court’s decision to treat them as different motions. Fellegy accurately points out that the November 2010 and March 2011 arguments both rest on the premise that the equal protection guarantees of the United States and Minnesota constitutions forbid racially motivated selective and discriminatory enforcement of nondiscriminatory laws … And it is true that both referred expressly or implicitly to the Chippewa Indians.
“But the Ojibwe have rights under a federal treaty to take fish from Lake Mille Lacs in … Aitkin County. And there is no corresponding treaty right for them to take fish from Lake Bemidji in … Beltrami County.”
Further, the court stated, Fellegy couldn’t make a constitutional case of “selective discriminatory prosecution” regarding the Beltrami County cases unless he satisfied the “ ‘heavy burden of establishing,’ among other things, that ‘others similarly situated’ have not faced prosecution for the same conduct (that resulted in) his prosecution.
“Fellegy, who has no apparent claim to a treaty right to take fish from (Mille Lacs), is not similarly situated to the Ojibwe, who take fish from the lake under their treaty rights. Put another way, Fellegy’s claim that the Ojibwe avoid prosecution ‘solely based on skin color and ethnic origin’ is obviously flawed; the tribal members avoid prosecution because, based on the Constitution’s Supremacy Clause, the tribe’s right under its treaty with the United States supercedes the state’s authority to prevent its members from taking fish from Lake Mille Lacs.”
Further, the court said, there wasn’t evidence to suggest dissimilar treatment of similar offenses in different jurisdictions offered proof of discrimination.
“ … even if (Fellegy) had suggested that evidence exists to establish that the Beltrami County attorney who allegedly did not prosecute two Ojibwe tribal members did so because of their race, Fellegy does not suggest how this reflects racially oriented prosecution decisions by the Aitkin County attorney who prosecuted Fellegy.
“In short, his claim of selective enforcement requires proof of the decision-maker’s discriminatory intent, and the intent behind one prosecutor’s action does not, without more, demonstrate the intent behind another’s inaction.”
What he and his client learned, according to Kaardal, is that subsequent counterprotests, like Fellegy’s, “must occur at the same time on the same lake as (others) are protesting.”
Leech Lake and White Earth band protests – netting walleyes off-reservation prior to the fishing season at Lake Bemidji – were meant to assert off-reservation fishing rights.
Beltrami County Attorney Tim Faver was unvailable prior to Outdoor News press time to comment on the status of those cases from 2010. Kaardal said there’s a three-year window during which the individuals can be charged with the alleged offense.
Kaardal said, regardless of the Appeals Court decision, there remains a matter to be resolved – and that until it is protests and counterprotests (illegal fishing) will continue. If tribes have issues regarding off-reservation rights, they need to be addressed by the court, he said.
“They can’t take matters into their own hands,” Kaardal said, regarding the Lake Bemidji incidents from 2010.
“We’ll be filing a petition to the (state) Supreme Court,” he said, adding that it must be done within 30 days of the July 11 Appeals Court decision. “We’re in this for the long haul.”