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Court hears arguments appealing Kuskokwim fish trial rulings

Suzanna Caldwell
Fishermen walk into a Bethel courtroom for their trials on May 20, 2013. Each of the defendants were cited in 2012 for subsistence fishing for king salmon during an emergency closure. They relied on a religious defense, saying that the taking of king salmon is an essential part of their culture and religion. On Tuesday, the case was argued before the Court of Appeals. Loren Holmes photo

When a group of rural Alaska fishermen along the Kuskokwim River violated a chinook salmon fishery closure in 2012, they argued that their right to fish stemmed, in part, from deeply held spiritual and cultural beliefs. But did practicing those belieftrump conservation of the fish, which were coming back in increasingly small numbers along the river?

In 2013, Bethel District Court Judge Bruce Ward said it did not, and that religious beliefs were not a compelling enough interest to compromise the overall health of the fishery.

The fishermen disagreed, and on Tuesday, the Alaska Court of Appeals heard oral arguments over whether that lower court decision should be overturned. The appeals court will issue a ruling sometime in the coming months.

The appeal stems from charges filed in June 2012, when 22 fishermen were ticketed for violating a closure on fishing for chinook, or king salmon, on the Kuskokwim. The fishermen were found guilty in a series of emotional hearings. The men were all charged fines between $50 and $500.

He took issue with in-season managers who closed down the fishery June 20, 2012, but who three days later opened fishing to subsistence fishermen, which scooped up thousands of king salmon as bycatch, even though escapement goals hadn’t been -- and wouldn’t be -- met. Those restrictions are unfair to the fishermen and constitute a conflict with their religious right to fish on the river, he argued. Later in the summer, managers later opened commercial fisheries that still caught stray kings.

“If you couldn’t let them fish, why would you open up the commercial fleet?” Davis told the judges.

Laura Fox, assistant attorney general, argued that the state was working within the framework of the established regulations. The facts known to in-season managers at the time of the closure were grim, she said, yet they still had to work with day-to-day information and manage multiple user groups.

“Maybe in hindsight the state shouldn’t have allowed that (subsistence) opening,” Fox told the court. “But to say it allowed more fishing than it should have is not to say the state should allow even more fishing. It doesn’t really make sense.”

Alaska Federation of Natives President Julie Kitka attended the hearing. She said she wished there had been “a bunch of Yup'ik people” answering questions directed at the lawyers to get a better sense of what their religious beliefs mean to them. She said it was hard to forget the frustrations running deeply through the region at that time.

“They were frantic,” Kitka said. “Part of who they were was really being challenged.”

AFN filed an amicus brief supporting the appeal. Kitka said if the court overturns the decision, it would bring more Native voices to the table during the allocation process.

“I think from a practical point of view, this changes how the state deals with Native people and their religious beliefs and creates more flexibility in the regulatory process,” Kitka said. “I don’t think it would do overwhelming damage to resources that are there.”

CORRECTION: An earlier version of this story misidentified which fishery to which Alaska Assistant Attorney General Laura Fox referred. It was the subsistence, not commercial fishery. The story has also been updated clarify differences between the subsistence and commercial fishery.