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State files cross-appeal in tribal fishing case

Posted: July 11, 2013 - 12:21am

ANCHORAGE— The state has filed a cross-appeal in a case it won against 13 subsistence fishermen who are contesting their convictions of illegal fishing on the Kuskokwim River.

About two dozen fishermen were found guilty in May after trials before a judge in Bethel. Those who decided to contest their convictions filed appeals in June, launching a process that could last months before formal arguments are made.

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

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

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

The fishermen’s Anchorage attorney, James J. Davis, contends that Ward erred in that ruling. The state could press for action against the commercial Pollock trawlers that catch thousands of kings each year as bycatch off Alaska’s coast, Davis said. The state also could protect king runs and still allow Yup’ik fishermen a subsistence priority over non-Yup’ik residents, even for a short fishery limited to people with a spiritual connection to it, he said.

In siding with the state, Ward said he looked at the case closely, reviewing the 1979 state Supreme Court case. That case shows that the free exercise clause may work when religion is involved, the 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.

Ward, however, decided that there is a compelling need to restrict the Kuskokwim king run based on recent data.

In the convictions, Ward imposed $250 fines for all but one fisherman, who was fined $500. The fishermen also were placed on probation for one year.

Altogether, 60 fishermen from western Alaska originally faced misdemeanor charges of using restricted gear or fishing in closed sections of the Kuskokwim River during the king run last summer.

Most charges were later reduced to minor violations. Many of the fishermen pleaded guilty to the reduced counts and were ordered to pay $250 fines.

Assistant Attorney General Laura Fox said the state’s cross-appeal filing serves as a place-holder for future arguments.

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