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Phillip v. State

Court of Appeals of Alaska

March 27, 2015

STATE OF ALASKA, Appellee/ Cross-Appellant

Appeal fro the District Court, Fourth Judicial District, Bethel, Bruce G. Ward, Judge. Trial Court Nos. 4BE-12-580 CR, 4BE-12-627 CR, 4BE-12-629 CR, 4BE-12-571 CR, 4BE-12-591 CR, 4BE-12-583 CR, 4BE-12-590 CR, 4BE-12-582 CR, 4BE-12-602 CR, 4BE-12-595 CR, 4BE-12-575 CR, 4BE-12-567 CR, 4BE-12 -560 CR.

Thomas M. Daniel and Sarah J. Fisher, Perkins Coie, LLP, and James J. Davis Jr. and Goriune Dudukgian, Northern Justice Project, LLC, Anchorage, for the Appellants/Cross-Appellees.

John M.Starkey, Law Office of John Sky Starkey, LLC, and Thomas Stenson, ACLU of Alaska Foundation, Anchorage, as amici curiae, aligned with the Appellants/Cross-Appellees. Laura Fox, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee/Cross-Appellant.

Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*]


Page 129


In June 2012, the thirteen defendants in this case -- all Yup'ik fishermen living a subsistence lifestyle -- were charged with violating the Alaska Department of Fish and Game's emergency orders restricting fishing for king salmon on the Kuskokwim River. The defendants moved for dismissal of the charges, asserting that their fishing for king salmon was religiously based activity, and that they were entitled to a religious exemption from the emergency orders under the free exercise clause of the Alaska Constitution.

The district court denied the motion to dismiss, holding that the religious exemption claimed by the Yup'ik fishers would defeat the State's compelling interest in protecting the sustainability of the species. Following this ruling, all thirteen defendants were convicted in bench trials.

On appeal, the defendants renew their claim that their fishing for king salmon was protected under the free exercise clause. For the reasons explained here, we reject that claim and affirm the decision of the district court.

Page 130


The Kuskokwim River's king salmon run tends to be " boom and bust," with periods of high abundance followed by periods of low abundance, due to many variables. From 2003 until 2007, the Kuskokwim River had above average king salmon runs, but in subsequent years the numbers declined. In 2011, for the first time, the run was so low that the long-term sustainability of the king salmon population appeared threatened.

Preparing for the 2012 fishing season, the Alaska Department of Fish and Game initially predicted that the king salmon run on the Kuskokwim River would number 197,000. The Department concluded that 127,000 king salmon needed to reach the spawning grounds in the Kuskokwim's various tributaries in order to protect the sustainability of the river's king salmon population.[1] The Department's plan was supported by the Kuskokwim River Salmon Management Working Group, a group set up to give subsistence, sport, and commercial fishers a voice in managing the river's salmon populations.

However, by early June 2012, far fewer king salmon had appeared in the river than the Department's initial forecasts, and state fisheries biologists and managers realized that the run " wasn't going to come in as expected." With the support of the Working Group, the Department announced a seven-day emergency closure prohibiting hook-and-line fishing for king salmon, and limiting the use of other fishing gear that was optimal for catching kings. These were " rolling closures," meaning the location of the restrictions moved up the river along with the king salmon they were designed to protect.

Five days into this emergency closure, the number of king salmon in the river remained extremely low; the Department of Fish and Game now estimated that only 30,000 king salmon would reach the spawning grounds -- almost 100,000 below what the Department considered necessary to sustain the run. Faced with these projections, the Department extended the fishing gear restrictions by issuing additional emergency orders.

Under the Department's emergency orders, only gillnets with four-inch or smaller mesh size and a length of no more than sixty feet were allowed. It was possible, and legal, to catch king salmon with such nets, but they were designed to catch smaller species, such as whitefish, and they were an inefficient method of catching any salmon. In late June, when the chum and sockeye salmon started up the river, the Department loosened the gear restriction to allow gillnets with a six-inch mesh size, in an attempt to minimize the king catch while allowing harvest of chum and sockeye. By the time six-inch gillnets were allowed, the main species in the river were chum and sockeye salmon, and the Department did not expect kings to be caught in significant numbers. (A larger, eight-inch net is optimal for catching kings when chum and sockeye are present.)

Even with these gear restrictions, about 20,000 Kuskokwim-bound kings were caught during the 2012 fishing season. Most of this catch was incidental, occurring during the periods when four-and six-inch mesh gillnets were allowed. According to the preliminary estimates available to the district court, the total escapement for the 2012 season (that is, the estimated total number of king salmon that reached the spawning grounds) was 77,000.

About sixty people were cited for violating the June 2012 emergency orders on the Kuskokwim River. Some of these fishers were allowed to keep one king salmon, but the rest of their illegally caught kings were donated to charity. Some of the violators pleaded guilty to the charges; others went to trial at ...

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