EDITORIAL: Common interests: Religion shouldn't trump state salmon fishing rules

Norman Maclean famously began his novel, “A River Runs Through It,” with this line: “In our family, there was no clear line between religion and fly fishing.”

Maclean’s little book carried ideas and emotions powerful enough to make it an enduring national best seller. In Alaska during the past year, we’ve watched as people employ powerful ideas and emotions that also equate fishing and religion.

In Alaska’s case, though, those who blur the line do so not to entertain readers but to immunize the fisherman against prosecution for violating rules. A judge last week said he couldn’t grant such immunity, and he made the right decision.

Last summer, dozens of Yup’ik fishermen set their standard nets for king salmon in the Kuskokwim River during periods when the state had closed fishing and reduced net mesh sizes to protect the scarce fish. About 60 were charged. In court this winter, attorneys for some of the fishermen argued that they had a religious right to ignore the state rules.

Fishing for food is not just an economic activity but also a religious one, the fishermen said, and therefore the government had no authority to stop them. They cited not only the First Amendment of the U.S. Constitution but also Article 1, Section 4 of the Alaska Constitution, which states that “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof.”

This argument has some well-established legal footing in Alaska. In 1975, the state charged Carlos Frank, who lived in Minto, 40 miles west of Fairbanks, for shooting a moose out of season to supply a funeral potlatch.

Frank was prosecuted and convicted, but the Alaska Supreme Court reversed that conviction in 1979 after deciding the potlatch was a religious ceremony. “No value has a higher place in our constitutional system of government than that of religious freedom. The freedom to believe is protected absolutely,” the court said.

However, the court firmly asserted that belief is different from action. “The freedom to act on one’s religious beliefs is also protected, but such protection may be overcome by compelling state interests,” it said.

In the Frank case, the court said, the state’s worries about unregulated moose hunting were not compelling enough to justify a blanket prohibition on shooting an occasional moose to supply a funeral potlatch. It suggested the state set up a system to allow the practice, which since has been done.

In contrast, Magistrate Bruce Ward, ruling in the Kuskokwim fishing case, decided the state does have a compelling interest in limiting king salmon fishing with nets. For reasons that are not well understood, king salmon runs have been extremely poor in the Kuskokwim and elsewhere. The state must limit the harvest so enough fish escape to spawn in the streams far upriver. If it doesn’t, the problem will just get worse.

One might ask whether the state should set up some sort of mechanism to allow a few king salmon to be taken for religious purposes. Like the potlatch moose exemption, it could be workable; however, it probably wouldn’t satisfy the fishermen.

They assert that the religious act threatened by the state’s regulation is not, as in the Frank case, an occasional ceremony but rather is the regular catch of king salmon. Perhaps so — after all, if a fly fisherman can find religion in pestering trout, surely the experience of sustaining one’s family by netting king salmon from Alaska’s rivers drips with spirituality.

Nevertheless, the supremacy of the “compelling state interest” is not the enemy of this religion. In the end, it’s the very thing that protects the fishermen — because to ignore it would endanger the fish upon which their religious experience depends.

 

Updated: 
06/06/2013 - 6:48am

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