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Phillip v. State (3/27/2015) ap-2446

Phillip v. State (3/27/2015) ap-2446

                                                NOTICE
  

        The text of this opinion can be corrected before the opinion is published in the  

        Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

        errors to the attention of the Clerk of the Appellate Courts:   



                               303 K Street, Anchorage, Alaska  99501
  

                                          Fax:  (907) 264-0878
  

                                   E-mail:  corrections @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



                                                      Court of Appeals Nos.          Trial Court Nos.  



DAVID PHILLIP                                          A-11580, A-11620              4BE-12-580 CR  

BRIAN IVAN                                             A-11581, A-11659              4BE-12-627 CR  

JOSEPH SPEIN                                           A-11582, A-11650              4BE-12-629 CR  

NOAH OKOVIAK                                           A-11583, A-11679              4BE-12-571 CR  

SAMMY JACKSON II                                       A-11584, A-11669              4BE-12-591 CR  

KENNETH ANDREWS                                        A-11585, A-11629              4BE-12-583 CR  

SAMMY JACKSON I                                        A-11586, A-11640              4BE-12-590 CR  

JAMES ALBRITE                                          A-11588, A-11619              4BE-12-582 CR  

MICHAEL M. ANDREW                                      A-11594, A-11670              4BE-12-602 CR  

JOHN I. OWENS                                          A-11595, A-11649              4BE-12-595 CR  

PETER W. HINZ                                          A-11596, A-11630              4BE-12-575 CR  

MICHAEL FRYE and                                       A-11604, A-11660              4BE-12-567 CR  

PATRICK F. BLACK,                                      A-11605, A-11639              4BE-12-560 CR 

                                                    

                         Appellants/  

                         Cross-Appellees,  

                                                                                  O P I N I O N  

                         v.  

                                                                         No. 2446 -  March 27, 2015  

STATE OF ALASKA,  



                         Appellee/  

                         Cross-Appellant.  



                Appeal from the District Court, Fourth Judicial District, Bethel,  

                                      

                Bruce G. Ward, Judge.  



                Appearances:  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  Appel- 


----------------------- Page 2-----------------------

                   lants/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.    



                   Judge ALLARD.  



                   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.  



     *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  



                                                          - 2 -                                                    2446
  


----------------------- Page 3-----------------------

            Background  



                         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  



      1     Alaska Statute 16.05.258 addresses the subsistence use and allocation of fish.  That  



statute requires the Board of Fisheries to identify the fish stocks or portions of fish stocks that       

can   be   harvested  consistently  with  sustained  yield.    See  AS  16.05.258(b).    If  the  Board  

determines that a fish stock can be harvested consistently with sustained yield, the Board is                                   

required to adopt regulations providing a reasonable opportunity for subsistence use.                                                                    See  

AS  16.05.258(b)(1)-(4).    However,  the  taking  of  fish  authorized  under  this   statute  "are  

subject to regulations regarding open and closed areas, seasons, methods and means, marking  

and identification requirements, quotas, bag limits, harvest levels, and sex, age, and size  

limitations." AS 16.05.258(e).  



                                                                           - 3 -                                                                      2446
  


----------------------- Page 4-----------------------

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,  

                                                                               



                                                           - 4 -                                                      2446
  


----------------------- Page 5-----------------------

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 various points between the fall of  



2012 and spring of 2013, and were convicted.  



                    Among the defendants who eventually went to trial were the thirteen Yup'ik  

                                                                                                              



fishermen  whose  claims  are  at  issue  in  this  appeal.    They  were  all  charged  with  the  

                                                                                            



offense of using gillnets that were prohibited under the emergency orders.  The conduct  



and motivations of these fishermen varied.  Some had apparently been told by their tribal  



offices that they could fish; others claimed to have been mistaken about the size of their  

                          



nets; and still others knowingly broke the law in protest of the emergency orders.  Of the  

                                                                                     



thirteen fishermen involved in this appeal, some caught just a few king salmon, while  

                              



others caught as many as sixty.  



                    These thirteen defendants waived any individual defenses they might have  

                                                                                                             



had, and instead they filed a collective brief asserting that their fishing in violation of the  



emergency  orders  was  religiously  based  conduct  that  was  protected  under  the  free  

                                                                                                              



exercise clause of the Alaska Constitution.  The district court ordered  an evidentiary  

                                                                                                               



hearing on this claim.  



                    At the hearing, the State presented evidence that the emergency orders were  

                                            



justified because the projected 2012 Kuskokwim River king salmon run was so perilously  

                                                                                           



small  that  any  additional  harvesting  of  king  salmon  would  have  jeopardized  the  



sustainability of the run.  The defendants, in turn, presented  expert testimony on the  

                                                                                                



central role that fishing for king salmon plays in Yup'ik culture and spiritual beliefs.  



                    The defense experts testified that according to traditional Yup'ik belief,  



Ellam  Yua  is  the  spirit  of  the  universe,  consisting  of  all  things  in  a  state   of  

                                                                                                                       



interconnectedness.  Ellam Yua provides the Yup'ik with the  resources they need to  

                                                                                                  



survive, and the Yup'ik are expected to work hard to harvest those resources.  If the  

                                                                                     



                                                              - 5 -                                                        2446
  


----------------------- Page 6-----------------------

Yup'ik stop fishing for salmon, Ellam Yua will take offense, and the salmon will cease                   



to make themselves available.  



                     The experts also testified that along the Kuskokwim River, where all of the  

                                         



defendants lived, king salmon is regarded as "the most important food."  It is the "apex"  

                                                                               



fish, and it is irreplaceable.  Other fish and other species of salmon are acceptable for  



eating, but they are not viewed as an adequate substitute for kings, in part because king  

                                                                                                                      



salmon is the first salmon to return to the Kuskokwim River in the spring, and it arrives  

                                                                                                                      



during the prime drying season.  



                     The  testimony  also  established  that  king  salmon  play  a  central  role  in  



traditional Yup'ik fish camps, which is where Yup'ik spiritual values are taught to the  

                                                  



next generation.  



                     Based  on  this  expert  testimony,  the  district  court  judge  found  that  the  



defendants had a religious interest in fishing for king salmon.  But the judge ruled that  

                                                                         



even assuming the sincerity of each individual defendant's religious belief, the State's  

                                              



compelling interest in preserving the Kuskokwim River king salmon run outweighed that  

religious interest.2  



                                                                                                                                    

                     Each defendant was then convicted of violating the emergency orders.  The  



                                                                                                    

defendants now appeal the district court's ruling that they were not entitled to a religious  



                                                                                                                         

exemption from the Department's gear restrictions.  The State cross-appeals, arguing that  



                                                                                                                        

the district court erred in finding that the defendants' conduct in fishing for king salmon  



with prohibited gear was religiously based conduct.  



     2     At   the  subsequent  trials,   the  defendants  testified  regarding   the  sincerity  of  their  



religious beliefs and the district court found that the defendants were sincere in their religious     

beliefs.  



                                                                - 6 -                                                            2446
  


----------------------- Page 7-----------------------

            Why we conclude that the religious exemption the defendants sought would           

            harm a compelling state interest  



                        In  Alaska,  the  test  for  whether  an  individual  is  entitled  to  a  religious  

                                                                                                                   



exemption from a facially neutral law is set out in the Alaska Supreme Court's decision  

                                                                               

in Frank v. State .3  



                                                                                                             

                        In  Frank ,  the  defendant,  an  Athabascan,  was  convicted  of  transporting  



                 

illegally  taken game after he participated in a hunt to provide a moose for a funeral  



                4  

potlatch.                                                                                                         

                   Frank admitted that he transported the moose, but he argued that applying the  

state's game regulation to him abridged his freedom of religion.5  



                        After an evidentiary hearing, the district court found that the funeral potlatch  



                                                                                                                  

was an integral part of the religious beliefs of the central Alaska Athabascan Indians, and  



      3     604 P.2d 1068 (Alaska 1979); see also Swanner v. Anchorage Equal Rights Com'n                                                                ,  



874 P.2d 274, 282 (Alaska 1994) (reaffirming the                                         Frank test for purposes of the Alaska  

Constitution and choosing not to follow federal constitutional law under Employment Div.,  

Dep't of Human Resources of Or. v. Smith , 494 U.S. 872 (1990)).  

            Under  the  federal  constitution,  the  free  exercise  clause   is  not  implicated  by  a  

religiously neutral and generally applicable law.  See Smith, 494 U.S. at 879.  In response to   

the Supreme Court's decision in                        Smith, Congress passed the Religious Freedom Restoration         

Act of 1993 (RFRA), which prohibits the federal government from enacting a neutral and  

generally applicable law that substantially burdens a person's free exercise of religion unless     

the government can demonstrate that the law is the least restrictive means of furthering a  

compelling government interest.  See Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751,  

2761 n.3 (2014) (RFRA's least restrictive means requirement provides broader protection for  

religious liberty than was available under the free exercise line of cases preceding Smith).  

RFRA, however, does not bind the states.  See City of Boerne v. Flores, 521 U.S. 507, 533- 

                                                                                             

34 (1997).  



      4     Frank , 604 P.2d at 1069.  



      5     Id.  



                                                                         - 7 -                                                                    2446
  


----------------------- Page 8-----------------------

                                                             6  

that Frank sincerely held those beliefs.                        The court also found that the Athabascan Indians     

considered moose more desirable than any other food for potlatch celebrations.                                                7  

                                                                                                                                 But the  



district court nevertheless concluded that the State's game regulation had not deprived  



Frank of his religious freedom because, however desirable it might be to have moose at  

                                                                 

a funeral potlatch, it was not "specifically required for this ceremonial occasion."8  



                                                                                                           

                     In reversing that decision, the Alaska Supreme Court announced a two-part  



                                                                                

test for assessing whether an individual is entitled to a religious exemption from a facially  

neutral law under the Alaska free exercise clause.9  



                                                                            

                     The first part of the test, which  assesses the validity of the individual's  



                                                                                                               

religious  interest,  comprises  three  inquiries:    (1)  whether  religion  was  involved;  (2)  



                                                                                               

whether  the  conduct  at  issue  was  religiously  based;  and  (3)  whether  the  claimant  is  

sincere in his beliefs. 10  

                                      The second part of the test assesses whether the State can meet  



                                                                                     

its  burden  of  proving  a  compelling  state  interest  that  would  justify  curtailing  the  

religiously based practice. 11  



                     Applying  the  first  part  of  the  test  to  Frank's  claim,  the  supreme  court  



concluded  that  the  district  court's  findings  supported  the  conclusion  that  the  funeral  



potlatch was a religious ceremony, that Frank's conduct in transporting the moose was  

                      



     6     Id.
  



     7     Id.
  



     8     Id.
  



     9     Id. at 1071.
  



      10   Id.
  



      11   Id.
  



                                                                 -  8 -                                                            2446
  


----------------------- Page 9-----------------------

                                                                                                12  

religiously based, and that his religious beliefs were sincere.                                     The supreme court also  



concluded, however, that the district court had improperly rejected Frank's claim based   



on   its  finding  that  moose  meat  was  not  "essential"  for  the  observance  of  a  funeral  



              13  

potlatch.                                                                                                    

                  The proper question, the supreme court declared, was not whether the eating  



                                                                  

of moose at the funeral was essential, but rather whether the practice was "deeply rooted  



                               14  

                                                                                                                     

in religious belief."              The court found "the evidence inescapable that the utilization of  



                                                                                                                                       15  

                                                          

moose meat at a funeral potlatch is a practice deeply rooted in the Athabascan religion." 



                     The supreme court then turned to the second part of the test.  The court  



found that the State had an indisputably compelling interest in maintaining a healthy  



                             16  

moose population.                                                                             

                                 But the court concluded that this was only the start of the inquiry:  



                                                                                             

the  State  also  must  show  that  its  interest  "will  suffer  if  an  exemption  is  granted  to  

accommodate the religious practice at issue."17  



                     The court concluded that the State failed to meet this burden in Frank .  The  



                                                                                                         

court  noted  that  the  State  had  failed  to  offer  any  evidence  that  granting  a  religious  



exemption  to  the  Athabascan  Indians  to  obtain  moose  meat  for  funeral  potlatch  



                                                 

celebrations would jeopardize Alaska's moose populations:  "We are not advised as to  



                                                                                           

how many funeral potlatches are held each year, nor how many moose are legally taken,  



                                                                    

nor the level of harvest which would cause a population decline ... [a]ll the record reveals  



                                                                         

is that there was but one funeral potlatch  in Minto in 1975, and that one moose was  



     12   Id. at 1073.  



     13   Id. at 1072-73.  



     14   Id. at 1072.  



     15   Id. at 1073.  



     16   Id.  



     17   Id.  



                                                                - 9 -                                                           2446
  


----------------------- Page 10-----------------------

                          18  

needed for it."               The court further noted that the State could adopt regulations governing        



the religious exemption and that such regulations could guard against abuses and also aid                                                         



in record keeping so that the State could determine what impact, if any, the religious  

exemption might have on the moose population.19  



                        The application of Frank to the present case  



                        The defendants in this case argue that Frank entitles them to a religious  



exemption from the gear restrictions imposed by the emergency orders.  They assert that  

                                              



their  subsistence  fishing  for  king  salmon  in  violation  of  the  emergency  orders  was  



religiously based conduct and that the State failed to meet its burden to show that the  

                                                                  



Department's emergency orders were the "least restrictive means" available to preserve  



the health of the king salmon population.  The defendants point to several alternative  

                                                                                        



measures that they argue could have protected the salmon run without abridging their  



religious interest - closing down the Kuskokwim Bay commercial fishery, implementing  

Tier II subsistence allocations,20 or limiting the Bering Sea pollock bycatch.  



      18    Id. at 1074.  



      19    Id.  at 1075; see 5 AAC 92.019(d) (providing for an affirmative defense to prosecution       



for hunting or taking big game outside of season or bag-limit restrictions when the meat is                                                       

used in certain religious ceremonies) (effective Aug. 8, 1987).  



      20  

                                                                                                                              

            Under the "Tier II" permitting system, if the harvestable portion of the fish stock is  

not sufficient for all subsistence uses, the state may distinguish among subsistence users  

                  

based on their customary dependence on the fish stock and their ability to obtain food if  

subsistence use is restricted or eliminated.  See 5 AAC 92.062(a); see also AS 16.05.258- 

                                               

(b)(4)(B) (authorizing the adoption of regulations distinguishing among subsistence users  

                                                              

based on their customary and direct dependence on the fish stock as a mainstay of livelihood,  

the proximity of their domicile to the stock, and the ability of the subsistence user to obtain  

food if subsistence use is restricted or eliminated).  



                                                                         -  10 -                                                                    2446
  


----------------------- Page 11-----------------------

                       But  the  evidence  presented  to   the  district  court  established  that  these  



alternatives were either impractical or impossible to implement mid-season or that they  



would not have appreciably increased the numbers of king salmon.  



                       Moreover, the defendants' arguments misconstrue the State's evidentiary  



burden under Frank . Once the district court found the defendants' fishing in violation of  

                                                 



the emergency orders was religiously based conduct, the burden shifted to the State to  

                                                



establish that its compelling interest in preserving the viability of the Kuskokwim king  

                                                                                                                           



salmon population "will suffer if an exemption is granted to accommodate the religious  



                                21  

practice at issue."  

                                                                                                                                      

                                     Contrary to defendants' arguments, the State was not required to  



show that there were no other conceivable means to protect the salmon.  



                       Nor do we think such a test would be appropriate in these circumstances.  



In Larson v. Cooper , the supreme court declined to interpret Frank as requiring the State  

                                                                                      



to prove that the prison regulations that restricted prisoners' free exercise of religion were  

                                                                     



the least restrictive means available, reasoning that courts are "ill-positioned to second- 

                                                                                                             



guess prison administrators' judgment," and that subjecting the day-to-day decisions of  

            



prison officials to an inflexible strict-scrutiny analysis "would seriously hamper their  



ability to anticipate security problems and to adopt innovative solutions to the intractable  

                                                                              

problems of prison administration."22  



                                                                                                                        

                       The supreme court has similarly observed that courts are "singularly ill- 

equipped to make natural resource management decisions."23  

                                                                                                            Here, the State's evidence  



      21    Frank , 604 P.2d at 1073.  



      22    Larson v. Cooper , 90 P.3d 125, 132-33 (Alaska 2004).  



      23    Native Vill. of Elim v. State , 990 P.2d 1, 8 (Alaska 1999); see   Charles v. State, 232  



P.3d 739, 745 (Alaska App. 2010) (noting that the district court should not second-guess the   

wisdom or efficacy of game regulations because "[m]anaging game for subsistence and other                                                

competing uses is a complex task that requires considerable expertise").  

                                                                      -  11 -                                                                  2446  


----------------------- Page 12-----------------------

established that in-season management of salmon populations requires "rapidly evolving"  



responses to "day-by-day assessment[s]."  The facts of this case are illustrative:  the  



Department  of  Fish  and  Game  initially  set a  management  objective  of  127,000  king  

                                                                   



salmon, but by early June, it appeared that this objective was based on wildly optimistic  

                                                                                                    



forecasts and that as few as 30,000 king salmon might make it to the spawning grounds  

                                                                                              



in the Kuskokwim River and its tributaries.  This number was so low that the fisheries  



manager for the area worried that 2012 would be the year that would "wipe out the run."  

                                                                                                                



The State presented evidence that even a one-day general opening in June could have  

                                



killed  10,000  or  more  king  salmon,  and  the  projections  at  that  time  showed  that  the  



population did not have 10,000 salmon to spare.  Ultimately, the Department's worst fears  



were not realized, as an estimated 77,000 king salmon made it up to the river's spawning  

                                                                                                         



grounds, and another 20,000 were harvested incidentally by subsistence users.  



                    In light of the time pressures and scientific uncertainty that accompany in- 

                                                 



season management of salmon stocks, including the Kuskokwim River king salmon run,  

                                                          



we  conclude  that  it  would  seriously  hamper  the  Department's  ability  to  manage  the  

                                                                                                            



fishery for sustained yield if courts required the State to show that each emergency action  

                                        

it took was the least restrictive alternative available.24 

                                                                               We therefore reject the defendants'  



formulation of the State's burden in this case.  Instead, we agree with the district court  



                                                 

that the question under Frank is whether the State can meet its burden of proving that its  



compelling interest in maintaining a healthy and sustainable king salmon population  



                                                                                                            

would be harmed if the court granted the religious exemption sought by the defendants.  



                                                                                

                    We also agree with the district court that the State met that burden here.  The  



district court found that "the natural consequence of allowing the unfettered taking of  



     24   See  Alaska  Const.  art.  VIII,    4  (providing  that  state  fisheries  "shall  be  utilized,  



developed, and maintained on the sustained yield principle"); 5 AAC 07.365 (providing  

guidelines for managing the Kuskokwim River salmon fisheries for sustained yield).  

                                                           -  12 -                                                       2446  


----------------------- Page 13-----------------------

Chinook [king] salmon under the religious free exercise exception through subsistence  



harvest  urged  by  the  defendants"  would  be  "the  decimation  of  the  species  by  over  

                                                                                                        



fishing."  This finding is well-supported by the testimony of the fisheries biologists and  

                                     



the extensive data presented at the evidentiary hearing.  



                   The  defendants  argue  that  the  district  court  erred  in  characterizing  the  

                                                                                       



religious  exemption  they  sought  as  "unfettered  fishing";  they  claim  that  the  only  



exemption they sought was to "briefly pursue king salmon."   



                   We disagree with the defendants' characterization of the record.  In the  



district court, twenty-two defendants joined the motion to dismiss.  Like the thirteen  



defendants who remain in this appeal, the conduct and motivations of these twenty-two  

                                        



defendants varied, as did the amount of fish they caught, the length of time they fished,  

                                                           



and the type of prohibited gear they used.  



                   Their defense attorney, who was representing them collectively, argued that  

                                                                                      



the  question  before  the  district  court  was  whether  the  conduct  of  these  twenty-two  

                                                                                    



defendants jeopardized the State's compelling interest in protecting the Kuskokwim River  



king salmon run.  The defense attorney pointed to the testimony of a State witness, a  



federal biologist, who testified that the sustainability of the run would not have been  

                                                                                                                 



threatened by allowing twenty-two people to fish for a "brief period" on one day.  



                   But, as the district court recognized, this was not the correct framing of the  

                                                                                           



legal question.  The defendants were asking the court to recognize, as a free exercise  



defense  to  criminal  charges,  a  religious  exemption  that  would  apply  to  all  Yup'ik  



subsistence fishers who shared similar religious beliefs and engaged in similar conduct.  

                                                          



The defendants did not show that they all fished for only a "brief period"; nor did they  

                                                          



assert that their religious interest could be satisfied by fishing for a brief period of time  



or by harvesting only a limited number of kings.  



                                                          -  13 -                                                      2446
  


----------------------- Page 14-----------------------

                     To the contrary, the defendants offered expert testimony that "having a full   



fish rack" of king   salmon was religiously important for the Yup'ik.  A Yup'ik elder  



testified that subsistence fishing for king salmon is sacred to                                 all Yup'ik fishers; that the  



whole family participates in subsistence fishing; and that it was spiritually important to                            



"successfully ... harvest[] the resource."  He declared that Yup'ik religious or spiritual               



precepts  require  fishers  "to  make  an  effort  to  catch  ...  the  king  salmon  ...  that  was  



available on the river at that particular time."  Given this record, we conclude that it was  

                                                                                                      



not  error  for  the  district  court  to  find  that  the  defendants  had  essentially  asserted  a  



religious right to "unfettered" subsistence fishing.  



                     The defendants have similarly improperly framed the legal question to be  

                                                                                                                   



answered in this appeal.  They argue that, under the second part of the Frank  test, the  



question  is  whether  the  State  showed  that  the  collective  conduct  of  these  particular  



defendants, standing alone, threatened the State's interest in protecting the Kuskokwim  

                                                                                                



River king salmon run.  But that is not the proper analysis under Frank .  As the supreme  

                                                                                                                  



court explicitly recognized in Frank , the religious exemption Frank sought would apply  

                                                                                                           



to  all  Athabascans  needing  moose  meat  for  a  funeral  potlatch,  not  just  to  Frank  

                                                                                            

personally.25                                                                  

                      Likewise, the religious exemption  being sought here is the right of  all  



                                             

Yup'ik  subsistence  fishers  to  fish  for  king  salmon  according  to  their  sincerely  held  



religious beliefs without regard to emergency closures or gear restrictions.  



                                                                                                 

                     Once  this  legal  question  is  properly  framed,  we  have  little  difficulty  



                                                                 

upholding the district court's finding that the State's compelling interest in preserving the  



viability of the Kuskokwim River king salmon run would suffer if the court were to grant  



the religious exemption sought by the defendants in this case.  



                                                                                        

                     We do not address whether a more limited religious exemption might apply  



                                                                    

under certain circumstances or for certain individuals, as that question is not before us.  



     25   Frank , 604 P.2d at 1074.  



                                                               -  14 -                                                          2446  


----------------------- Page 15-----------------------

Nor do we find it necessary to address the claim the State raises on cross-appeal:  whether  



the district court erred in finding that the defendants' conduct in fishing for king salmon  

      



with different types of prohibited gear was religiously based conduct.  As we have just  

                                                                                                         



explained, even assuming the defendants met that burden, the religious right they asserted  

                                                                                    



was  outweighed  by  the  State's  compelling  interest  in  maintaining  the  health  of  the  

        



Kuskokwim River king salmon population.  



          Conclusion  



                   We AFFIRM the judgments of the district court.  



                                                           -  15 -                                                     2446
  

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