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Fishermen appealing convictions say state erred

Posted: November 18, 2013 - 12:04am

ANCHORAGE — Subsistence fishermen appealing their convictions of illegal fishing say the state failed to weigh their spiritual right to fish for king salmon before imposing tight restrictions on the Kuskokwim River during a weak run.

The 13 Yup’ik fishermen said in court documents filed Thursday that the state failed to employ other means of protecting king salmon stocks to accommodate their religious needs.

The state has filed a cross-appeal, and its response is due in early December. Assistant Attorney General Laura Fox said she expects to request an extension to that deadline.

A “friend of the court” brief also has been submitted on behalf of the fishermen by the Alaska Federation of Natives and the Association of Village Council Presidents.

The fishermen were cited last year during a poor king salmon run.

During their Bethel trials last spring, about two dozen fishermen argued they have a spiritual right to fish for king salmon when restrictions are in place. The fishermen based that defense on a free-exercise clause of the Alaska Constitution.

Judge Bruce Ward found the state’s need to restrict kings supersedes the fishermen’s religious rights.

The fishermen who decided to appeal 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. The state could have closed down a commercial fleet operating around the mouth of the Kuskokwim that catches an annual average of 2,400 king salmon “incidentally,” the fishermen said.

“The Yup’ik Fishers are not asking to rob the Kuskokwim of all its King salmon every fishing season,” their appeal argument states. “They are only asking for an opportunity to practice their religious beliefs.”

Ward, in siding with the state in May, said he looked at the case closely, reviewing a 1979 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 there was a compelling need to restrict the Kuskokwim king run based on recent data. The plaintiffs argue that the state failed to show it was necessary to interfere with their religious practices to protect the king run.

The fishermen were placed on probation for one year and most were issued $250 fines.

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