Subsistence fishermen file brief in appeals court

by Angela Denning-Barnes on November 21, 2013

Jordan Lake-Nicolai of Akiak holds a protest sign June 20, 2012. Photo courtesy of Sheila Williams.

Jordan Lake-Nicolai of Akiak holds a protest sign June 20, 2012. Photo courtesy of Sheila Williams.

New court documents were filed in Alaska’s Appeals Court arguing why the convictions against Yup’ik subsistence fishermen should be overturned. The case goes back to June of 2012 when the Kuskokwim River was closed to King salmon fishing for 12 days, longer than ever before. The Alaska Department of Fish and Game called the closure to get more Kings to the spawning grounds because the runs had diminished in recent years.

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Fishermen and their families were anxious to get fish hung up and smoked while the dry weather lasted. Some villages organized a kind of fishing protest where dozens of fishermen threw their nets in the river anyway.

State and federal managers responded by citing about three dozen people in one day. The fishermen were found guilty and fined in the Bethel District Court and now about a dozen of them are taking the case through the appeals process.

James Davis Jr. is their lawyer.

“Subsistence is so essential to Yup’ik people and the way they see themselves in the world and their sense of how the universe operates, that needs to be protected just as if it were a more orthodox religion such as Catholicism or Judaism,” Davis says.

The trial court found that the fishermen had a spiritual connection to King salmon and fishing for them was a religious practice but that the State’s obligation to protect the run supersedes that.

Three groups have filed friends of the court briefs supporting the fishermen in the appeals court: The Alaska Civil Liberties Union, the Association of Village Council Presidents and the Alaska Federation of Natives.

Sky Starkey is an attorney representing AFN and AVCP. He says their brief has two points. The first supports the lower court ruling that subsistence fishing is a religious practice.

“The second part of the Amicus brief focuses in on the actions that the state could have taken that would have allowed some fishing that could accommodate this spiritual, religious aspect of fishing while also preserving the Chinook runs on the Kuskokwim,” Starkey says.

That could have included restricting the Pollock fleet or other non-Yup’ik fishermen on the river.

The State still has to file its appeals brief responding to the fishermen’s. A request for an extension was filed meaning it won’t be turned in until January 4th.

Assistant Attorney General Laura Fox says the state will argue that the court of appeals should uphold the convictions. She says the Fish and Game Department tries its best to manage and protect the salmon runs which is not an easy task.

“Sometimes the Department of Fish and Game has to restrict fishing to make sure enough King salmon can make it up the river to spawn and it’s important that the state be able to enforce its fishing restrictions to protect the sustainability of the King salmon run for future generations,” Fox says.

The whole appeals process will likely take months including more briefs being filed, oral arguments, and then eventually the court’s decision.

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