Alaska appeals court hears subsistence case

BETHEL, Alaska — The Alaska Court of Appeals is considering a case involving western Alaska subsistence fishermen who are appealing their convictions of illegal king salmon fishing on the Kuskokwim River during a weak run in 2012.

Attorneys for both sides argued before the appellate court in Anchorage Tuesday, KYUK reported. The 13 Yup’k Eskimo fishermen, who were convicted last year, contend the state failed to weigh their spiritual right to fish for king salmon before imposing tight restrictions.

The fishermen’s Anchorage attorney, James J. Davis, said the state had a duty to accommodate the fishermen’s religious beliefs. That defense is based on a free-exercise clause of the Alaska Constitution.

“We submit that the state had a duty but failed to comply with the duty,” Davis said.

Assistant Attorney General Laura Fox, representing the state, said that issuing citations for fishing during an emergency closure was necessary to protect king salmon.

“There was never any harvestable surplus of kings in 2012 and at the end of the day the state missed the escapement objective by 50,000 fish,” Fox said.

A three-judge panel is considering arguments in the case and will issue a decision, likely later this year or early next year.

Friend of the court briefs have been filed in the case by groups including the Association of Village Council Presidents and the Alaska Federation of Natives.

During their Bethel trials last year, about two dozen fishermen argued they have a spiritual right to fish for King salmon when restrictions are in place.

Judge Bruce Ward sided with the state. He said he looked at the case closely, reviewing a 1979 state Supreme Court case that shows the free-exercise clause may work when religion is involved, conduct is religiously based and the person is sincere. Ward said the fishermen met the first two requirements and addressed the sincerity question in individual trials.

But the judge said the state’s need to restrict kings supersedes the fishermen’s religious rights.

The fishermen who are appealing the ruling say that during low king salmon numbers, for example the state could allow a subsistence priority to Yup’ik fishermen or press action against commercial pollock trawlers that catch thousands of kings each year as bycatch off Alaska’s coast.

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