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Strong v. State of Alaska (4/1/2022) ap-2723

Strong v. State of Alaska (4/1/2022) ap-2723

                                                   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
  

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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



CLINTON           R .   STRONG          and     TUIE  

                                                          Court of Appeals Nos. A-13269 & A-13270  

STRONG,                                                               

                                                             Trial Court Nos. 3NA-17-00029 CR &  

                                   Appellants,                           3NA-17-00028 CR  



                          v.  

                                                                             O P I N I O N  

STATE OF ALASKA,  



                                   Appellee.                         No. 2723 - April 1, 2022  



                                   

                 Appeal from the District Court, Third Judicial District, Naknek,  

                 Christina L. Reigh, Judge.  



                 Appearances:  Charles M. Merriner, Law Office of Charles M.  

                                                                                   

                 Merriner,  Anchorage,  for  the  Appellants.    Ronald  Dupuis,  

                 Assistant  Attorney  General,  Office  of  Special  Prosecutions,  

                                                                     

                 Anchorage, and Kevin G. Clarkson, Attorney General, Juneau,  

                                                                            

                 for the Appellee.  



                 Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                

                 Judges.  



                 Judge WOLLENBERG.  


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

                              Clinton and Tuie Strong were convicted of a fishing violation for taking                                                                               



salmon in closed waters after Alaska Wildlife Troopers marked their gillnet outside the                                                                                                      

western boundary line of the Ugashik fishing district in Bristol Bay.                                                                                     1  



                                                                                                                                                                                      

                              At their minor offense trial, the couple admitted to taking salmon in closed  



                                                                                                                                                                           

waters but asserted the affirmative defense of necessity, claiming that they had drifted  



                                                                                                                                                                                         

into closed waters while attempting to repair a leak in the hydraulic system of their  



                                                                                                                                                                                

fishing boat.  The trial court, sitting as fact-finder, acknowledged the difficult situation  



                                                                                                                                                                                    

facing the Strongs but nonetheless rejected the necessity defense on the merits.  



                                                                                                    

                              On appeal, the Strongs argue, inter alia, that the court committed certain  



                                                                                                                                                                                           

legal errors in evaluating their necessity defense.   For the reasons explained in this  



                                                                                                   

opinion, we agree.  We also conclude that, given these legal errors, it is appropriate to  



                                                                                                                                                                                       

remand this case to the district court for reconsideration of the Strongs' defense.  



                                                                 

                Underlying facts and proceedings  



                                                                                                                                                                                          

                              In 2017, Clinton Strong and Tuie Strong were permit holders for the drift  



                                                                                                                                                                                             

net salmon season in the Ugashik fishing district in Bristol Bay.  Clinton Strong was the  



                                                                                                                                                                                  

skipper of the vessel, the F/V Entropy, and they ran the vessel as husband and wife.  



                                                                                                                                                                                     

                              On June 25, 2017, Alaska Wildlife Troopers patrolling the Ugashik fishing  



                                                                                                                                                                                              

district by helicopter observed the gillnet of a vessel - later identified as the Entropy -  



        1      See 5 Alaska Administrative Code (AAC) 06.350(f) (providing that "[s]almon may   



not  be  taken  in  any   locations"  other  than  those  authorized  by   regulation);  see  also  

AS 16.05.722(a) (providing that a person who, without any culpable mental state, violates                                          

a commercial fishing regulation is guilty of a violation); 5 AAC 39.002 ("Unless otherwise        

provided . . . a person who violates a provision of 5 AAC 01 - 5 AAC 41 is strictly liable for                                                                                   

the offense, regardless of his intent.").  



                                                                                            - 2 -                                                                                        2723
  


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

                                                                              2  

approximately 272 feet into closed waters.                                        The troopers marked the gillnet's location                     



in their GPS during an initial flyby.                                When they returned a few minutes later to take                                     



pictures, the           Entropy  was back in legal waters.                              



                         About   a   week   later,   a   trooper   served   Clinton   and   Tuie   Strong   with   a  



misdemeanor citation for fishing in closed waters.                                            (The citation was later reduced to a                             

strict-liability minor offense.                      3)  



                                                                                                                                                     

                         The Strongs explained to the trooper that their boat had drifted into closed  



                                                                                                                                                       

waters while they were addressing a mechanical failure onboard. They offered the same  



                                                                                        

explanation at their minor offense bench trial.  



                                                                                                                                                    

                         Clinton Strong testified that he, Tuie, and a third crew member were fishing  



                                                                                                                                                   

in legal waters about three-tenths of a mile inside the western boundary of the district  



                                                                                                                                                       

when the Entropy 's hydraulic system failed.  The main feeder line for the controls came  



                                                                                                                                              4  

                                                                                                                                                  

out of its fitting, and hydraulic fluid began leaking onto the deck of the boat.                                                                  Fearing  



                                                                                                                                                             

the contamination of the dozens of fish on deck and the 2,000 to 3,000 pounds of fish in  



                                                                                                                                                          

the  holds,  Clinton  Strong  immediately  cut  the  engine  (which  directly  powered  the  



                                                                                                                                                         

hydraulic system), moved the fish on deck away from the leak, and began repairs.  The  



                                                                                                                                               

other crew members helped to move the fish and tried to contain the leaking fluid.  



      2     The  Ugashik  district  is  demarcated  by   regulations  of   the   Board  of   Fisheries,  



5 AAC 06.200(d).  



      3     Violations  of  Board  of  Fisheries  regulations  are  generally  strict  liability  minor  

                                                                                                                                                     

offenses,   although   the   State   may   prosecute   them   as   misdemeanors   under   certain  

                                                                                                   

circumstances.  See Beran v. State, 705 P.2d 1280, 1285-86, 1291 n.13 (Alaska App. 1985)  

                             

("[E]veryfish and game regulation comprises both a crime requiring mens rea and a violation  

                                                                                                                                                 

which differs from the crime only in that a conviction does not require a finding of mens  

                                                                                                                                                       

rea.").  



      4     Clinton Strong testified that he inspects his boat for needed repairs every spring, and  

                                                                                                                                             

that he had no prior indication that the line was bad.  



                                                                            -  3 -                                                                      2723
  


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

                    Clinton estimated that, when the system failed, the Entropy had about 500  

                                                                                                                               



feet of gillnet in the water, containing several hundred fish. A combination of an ebb tide  

                                                                                                                               



and winds from the east caused the Entropy to drift toward the western boundary of the  

                                                                                                                                



district.  Clinton spent about fifteen minutes repairing the hydraulic line, and was just  

                                                                                                                               



completing repairs when the crew saw a helicopter fly overhead. Clinton returned to the  

                                                                                                                                



bridge of the Entropy, saw that the vessel had drifted into closed waters, and immediately  

                                                                                                                  



piloted the boat back into legal fishing waters.  Clinton estimated that he had only been  

                                                                                                                             



in closed waters for one or two minutes and took maybe four or five fish during that  

                                                                                                                              



time.  



                    At trial, the Strongs acknowledged that they had been fishing in closed  

                                                                                                                          



waters. But they raised the defense of necessity, arguing that cutting the engine -which  

                                                                                                                           



resulted  in  the  boat  drifting  into  closed  waters  -  was  the  only  way  to  avoid  

                                                                                                                           



contaminating their catch and fish holds with hydraulic fluid.  

                                                                                               



                    Clinton estimated that, if he had not cut the engine power, about fifty-two  

                                                                                                                       



gallons of hydraulic fluid would have spilled within less than ten minutes.  He testified  

                                                                                                                        



that the fluid would likely have gotten into the fish holds where most of the catch was  

                                                                                                                     



stored, although he did not know whether the fluid would have drained into the ocean.  

                                                                                                                                     



Clinton stated that, if the fish holds were contaminated, the hydraulic fluid would have  

                                                                                                                             



ruined the several thousand pounds of salmon stored there, and cleaning such a spill  

                                                                                                                             



would have taken considerable time and expense.  He further noted that it would have  



been impossible to haul in his net without using the hydraulic system, and that, if he had  

                                                                                                                               



dropped the anchor, it likely would have snapped the line or failed to hold given the  

                                                                                                                               



conditions, the depth of the water, and the number of fish still in their net.  

                                                                                                           



                    Tuie Strong, who had been a crew member on the Entropy for the previous  

                                                                                                                       



eight  seasons,  affirmed  Clinton's  version  of  events  and  testified  that  they  had  no  

                                                                                                                                



alternative to cutting the engine. Two other witnesses, including the Strongs' other crew  

                                                                                                                             



                                                              - 4 -                                                          2723
  


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

member and another fisherman who had been on the radio with Clinton at the time,                                                                                                                   



provided corroborating testimony.                         



                                The State did not contest that the Strongs had suffered a hydraulic leak.                                                                                                         



The State also conceded that the Strongs were entitled to consideration of their necessity                                                                                                



                    5 

                                                                                                                                                                                               

defense.   But the State argued that the Strongs had a number of alternatives to cutting  



                                                                                                                                                                                                          

their engine:  dropping anchor, manually "round-hauling" their net, or sailing into an  



                                                                                                                                                                                                   

open area.  According to the State, because the Strongs never tried to do any of those  



                                                                                                                                                                                 

things, they had not proven the defense.  The State stressed that trying to avoid "a few  



                                                                                                                                                              

dollars in lost fish" did not give the Strongs the right to break the law.  



                                                                                                                                                                                              

                                ThetrialcourtrejectedtheStrongs' necessitydefenseand found theStrongs  



                

guilty of the closed-water violation, although the court acknowledged that the Strongs  



                                                                                                                                                                                                        

had no reasonable alternative and were placed in a "tough situation." At sentencing, the  



                                                                                                                                                                                                       

court continued to recognize that the Strongs found themselves in a "pretty unique and  



                                                                                                                                                                                                     

difficult situation," facing "something that was very much out of their control."  The  



                                                                                  6  

                                                                      

court fined the Strongs $500 each. 



        5       To merit consideration of the defense of necessity, a defendant must first present               



"some evidence" on each of the elements of the defense.                                                                           State v. Garrison, 171 P.3d 91, 94  

(Alaska 2007).                       Initially, the State contested the applicability of the necessity defense to a                                                                                          

strict liability offense, but ultimately conceded that the defense applied in this case.                                                                                                              See  

Clucas v. State, 815 P.2d 384, 388-90 (Alaska App. 1991) (holding that                                                                                                        a   defendant is  

entitled to assert a justification defense to a strict liability fishing violation because such a                                                      

defense does not implicate the culpable mental state of an offense);                                                                                    see also Lawler v. State,  

 1998 WL 894944, at *1-2 (Alaska App. Dec. 23, 1998) (unpublished) (noting that defendants  

                                                                                                                                                                           

can raise "defenses . . . unrelated to culpable mental state" in strict liability proceedings and  

                                                                                                                                                                                     

evaluating whether defendant proved necessity defense by preponderance of evidence in  

strict liability commercial fishing violation case (citing Clucas, 815 P.2d at 388-90)).  



        6       The Strongs were also subject to the assessment of demerit points against their fishing  

                                                                                                                                  

permits  by  the  Commercial  Fisheries  Entry  Commission.                                                                                        See  AS  16.43.850(b)(1);  

                                                                                                                                                                        

                                                                                                                                                                                 (continued...)  



                                                                                                  -  5 -                                                                                             2723
  


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

            A closer look at the defense of necessity and the trial court's ruling                                             



                         Criminal   defendants   in   Alaska   may   assert   an   affirmative   defense   of  



necessity to the extent permitted by common law, except when the defense is preempted                                                         



                                                                                                           7  

                                                                                                                                                             

or   otherwise   specifically   delineated   by   the   legislature.                                            To  prove  the  defense  of  



                                                                                                                                                           

necessity, a defendant must show by a preponderance of the evidence that:   (1) the  



                                                                                                                                                             

defendant committed the charged offense to prevent a significant evil; (2) there was no  



                                                                                                                                                          

adequate  alternative  to  the  charged  offense;  and  (3)  the  harm  caused  was  not  



                                                                                                            8  

                                                                                                                                                    

disproportionate to the harm avoided by breaking the law.                                                       When, as here, the offense  



                                                                                                                                                              

is a continuing one, a defendant must also show that they stopped breaking the law as  



                                                     9  

                                         

soon as the necessity ended. 



                                                                                                                                           

                         In  considering  the  first,  second,  and  fourth  elements,  the  defendant's  



                                                                                                                                                              10  

                                                                                                                                                                   

                                                                                                                                                  

conduct is evaluated based on the defendant's reasonable beliefs at the time of acting. 



                                                                                                                                              

Thus, the defense is available to someone whose apprehension of harm was reasonable  



                                                                                                                                                             

but mistaken, but not to someone who seeks to justify a criminal act after the fact by  



                                                                                                                            

reference to harms they did not perceive at the time they acted or harms their criminal  



                                                                                    11  

                                                                         

conduct was not actually calculated to avoid.                                           



      6      (...continued)  



20 AAC 05.1971(a).  



      7     AS 11.81.320.  



      8     See AS 11.81.900(b)(2)(B) (providing that a defendant has the burden of proving an   



affirmative  defense  by   a  preponderance  of   the  evidence);   Garrison,  171  P.3d  at  94  

(explaining the elements of the necessity defense).  



      9      Garrison, 171 P.3d at 94.  



       10   Id.  



       11  

                                                                                                                               

             Compare Allen v. State, 123 P.3d 1106, 1108-09 (Alaska App. 2005) (holding that  

                                                                                                                                         (continued...)  



                                                                            -  6 -                                                                       2723
  


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

                                                  The trial court issued a written order explaining its verdict and its reason   



for rejecting the Strongs' necessity defense. The court expressly found that the Strongs                                                                                                                                                                                                              



did  not   intend   to   go   into   illegal   waters   and   were   "distracted   because   of   an   urgent  



mechanical issue." According to the court, Clinton Strong shut off the engine to "avoid                                                                                                                                                                                                                   



spilling excessive amounts of hydraulic fluid," and the boat drifted into closed waters                                                                                                                                                                                                                   



while the crew was trying to fix the leak.                                                                                                                 



                                                  The court rejected the State's arguments that throwing the anchor or round-                                                                                                                                                                             



hauling the net were reasonable alternatives under the conditions and found that the                                                                                                                                                                                                                                   



 Strongs had proved the second element of necessity -                                                                                                                                                            i.e., that they had no adequate                                                 



alternative to shutting off the engine in order to repair the hydraulic leak.                                                                                                                                                                                                              The court   



acknowledged:   



                                                  The defendants were placed in a tough situation.                                                                                                                                           . . .       The  

                                                  conditions at the time of the leak - the amount of wind, the                                                                                                                                                        

                                                  direction of the tide, the depth of the water, the amount of net                                                                                                                                                    

                                                  and fish in the water, and the strength of the three-person                                                                                                                    

                                                  crew - left the defendants with no other alternative than to                                                                                                                                                            

                                                  turn off their engine and fix their hose.                                                                                                        It was reasonable for                                               

                                                  the defendants to believe that throwing their anchor in those                                                                                                                                               

                                                  conditions would be unsafe and potentially lead to a more                                                                                                                                              



             11          (...continued)  



defendant charged with driving with a suspended license was entitled to an instruction on  

                                                                                                                                         

necessity defense because he presented some evidence that he reasonably, if mistakenly,  

                                                                                                                                                                                                                                                                                         

believed that his mother needed speedy medical attention and there was no alternative to  

                                                                                                                                                  

driving), with Muller v. State, 196 P.3d 815, 818 (Alaska App. 2008) (holding that defendant  

charged with criminal trespass was not entitled to raise defense of necessity because he  

                                                                                                                                                                                                                                                                                           

offered no evidence that he reasonably believed his actions could prevent a significant evil  

                                                                                                                                            

or that he reasonably believed he had no adequate alternative to trespassing); see also  2  

                                                                                                                            

Wayne R. LaFave, Substantive Criminal Law § 10.1(d)(3), at 168 (3d ed. 2018) ("To have  

the defense of necessity, the defendant must have acted with the intention of avoiding the  

                                                                                                                                                                                                                                                                                      

greater harm.  Actual necessity, without the intention, is not enough.  . . .  An honest (and,  

                                                                                                                                                                                                                                                                         

doubtless, reasonable) belief in the necessity . . . is all that is required[.]").  



                                                                                                                                                         -  7 -                                                                                                                                                    2723
  


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

                                                                         dangerous situation.                                                                                           Likewise, round hauling 400-500 feet                                                                                                         

                                                                         of net with fish in 15-20 knot winds with only three people                                                                                                                                                                                                                                   

                                                                        ranging from 40 to 70 years old would have been nearly                                                                                                                                                                                                          

                                                                         impossible . . . [or] taken a lot longer than fixing the hose and                                                                                                                                                                                                                                              

                                                                        they may have been even farther into closed waters.                                                                                                                                                                                                                                         



                                                                         The court also found that the Strongs had proved the fourth element of the                                                                                                                                                                                                                                                                                                                



necessity defense -                                                                                               i.e., that they stopped violating the law as soon as the necessity                                                                                                                                                                                                                                             



 ended:    



                                                                         The defendant [Clinton Strong] credibly testified that as the                                                                                                                                                                                                                                                     

                                                                        trooper's   helicopter   was   flying   over   his   vessel,   he   was  

                                                                         finishing up fixing the hose.                                                                                                                           Within five minutes of that fly-                                                                                                                        

                                                                        by,  the   vessel was back                                                                                                                 into legal waters.                                                                                      The evidence   

                                                                         supported   a   finding   that   as   soon   as   the   defendants   could  

                                                                        power their engine, they quickly entered into legal waters,                                                                                                                                                                                                                                 

                                                                        thus ending the harm as soon as possible.                                                                                                                                                                                          



                                                                         However, the court found that the Strongs had not proved the first and third                                                                                                                                                                                                                                                                                                      



prongs of the necessity defense.                                                                                                                                                As to the first prong - whether the Strongs acted to                                                                                                                                                                                                                                     



prevent a significant evil - the court determined, as a factual matter, that the Strongs                                                                                                                                                                                                                                                                                                                                                  



had not acted out of concern for the environment or their own safety but primarily to                                                                                                                                                                                                                                                                                                                             



prevent the contamination of their catch and gear and to avoid the resulting economic                                                                                                                                                                                                                                                                                                                                         



 consequences.     The   court   further   concluded,   as   a   legal   matter,   that   these   potential  

 financial harms were not a "significant evil" that triggered the necessity defense.                                                                                                                                                                                                                                                                                                                                                                   12  



                   12                The court initially ruled that the Strongs did not meet the first element of the defense                                                                                                                                                                                                                                                                                             



 as a matter of law because they never made a conscious decision to fish in closed waters, and                                                                 

thus never formed any reasonable belief                                                                                                                                                                                   that   fishing   in closed waters was necessary to   

prevent harm.  Upon reconsideration, however, the court ruled that knowledge of closed-                                                                                                                                                                                                                                                                                                                                                       

water fishing was not required -                                                                                                                                                  i.e., the risk that the boat might drift into closed waters  

with its net extended was sufficient - but that the Strongs had still failed to establish the                                                                                                                                                                                                                                                                                                                                                                       

 first prong of the necessity defense because "potential economic impact . . . does not rise to                                            

the level of a 'significant evil.'"  



                                                                                                                                                                                                                              -  8 -                                                                                                                                                                                                                          2723
  


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

                                    As to the third prong - whether the harm caused by breaking the law was                                                                                                                   



 disproportionate to the harm avoided - the court reasoned that even if the economic                                                                                                                          



 harm   the   Strongs   sought   to   avoid   constituted   a   significant   evil,   that   harm   did   not  



 outweigh the risk of damage to the state's resources resulting from fishing in closed                                                                                                                                



 waters. The court acknowledged that "hydraulic fluid would have been a disaster for the                                                                                                                                        



 defendants to clean up and would have prevented them                                                                                            from delivering several thousand                               



 pounds of fish," but that this harm did not outweigh the "possible disruption of the                                                                                                                                          



                                                                                                                                                           13  

 balance of escapement and harvest of the state's salmon."                                                                                                       



                                                                                                                                                                                            

                                    The court therefore concluded that the harm caused was disproportionate  



                                                                                           

 to the harm the Strongs sought to avoid.  



                                                                                                                                                                                              

                   Why we conclude that the Strongs satisfied the first prong of the necessity  

                                                                               

                  defense as a matter of law  



                                                                                                                                                                                                                                

                                    The Strongs appeal two separate aspects of the trial court's ruling on the  



                                                                                                                                                                                                                    

 first element of the necessity defense: (1) the trial court's factual finding that the Strongs  



                                                                                                                                                                                                           

 were not acting to prevent environmental harm; and (2) the trial court's legal conclusion  



                                                                                                                                                                                                                             

 that destruction of property and/or salmon does not constitute a "significant evil."  



                                                                                                                                                                                                             

                                    As we already noted, the trial court found that the Strongs were concerned  



                                                                                                                                                                                                                     

 about the potential damage from the hydraulic fluid to their catch and to their fishing  



                                                                                                                                                                                                                                

 equipment, but not contemporaneously concerned about the possibility of polluting the  



                                                                                                                                                                                                                               

 ocean. The court found that any concern for environmental harms was simply a post hoc  



                                                                                                                                                                                                                                           

justification rather than a motivating factor in the Strongs' decision to cut the engine.  



          13       "Escapement" refers to "the annual estimated size of the spawning salmon stock;   



 quality of the escapement may be determined not only by numbers of spawners, but also by                                                                                         

 factors  such  as   sex  ratio,  age  composition,  temporal  entry   into  the  system,  and  spatial  

 distribution within the salmon spawning habitat."  5 AAC 39.222(f)(10).  



                                                                                                              -  9 -                                                                                                        2723
  


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

This is a factual finding that is entitled to deference.                                    Having reviewed the record, we                      

conclude that the court's finding is supported by the record and is not clearly erroneous.                                                        14  



                                                                                                                                 

                       However, we agree with the Strongs that the trial court erred in concluding,  



                                                                                                                                        

as a matter of law, that the potential damage to property and destruction of salmon  



                                                                                                                           

resulting from the hydraulic spill did not constitute a "significant evil" for purposes of  



                                                                                                                                            

the first prong of the necessity defense.  In reaching this conclusion, the trial court drew  



                                                                                                                                              

on  cases  holding  that  the  risk  of  physical  harm and  threats  to  personal  safety  can  



                                                                                                                                      

constitute significant evils.  But these cases do not foreclose the risk of harm to property  



                                                                                                                                     

from being considered a significant evil.  Neither this Court nor the Alaska Supreme  



                                                                                                                                     

Court has ever ruled that the necessity defense applies exclusively to situations involving  



                 

physical harm.  



                                                                                                                                                

                       Indeed, both the Alaska Supreme Court and this Court have considered the  



                                                                                                                                        

necessity defense in cases involving the risk of property damage or financial loss without  



                                                                                 15  

                                                                                                                                                 

                                                                                       For instance, the supreme court in  

dismissing the defense as legally unavailable. 



                                                                                                                                         

 Greenwood v. State considered whether a defendant, who believed that her former  



                                                                                                                                        

boyfriend was about to attack her and burn down his parents' nearby home, was entitled  



      14    See Burton v. Fountainhead Dev., Inc., 393 P.3d 387, 392 (Alaska 2017) (noting that  



in a bench trial, the judge is the trier of fact, and factual findings are reviewed for clear  

                                                                                                                                             

error).  



      15    See, e.g., Pasco v. State, Dep't of Admin., Div. of Motor Vehicles, 45 P.3d 325, 326-28  

                                                                                                                     

(Alaska 2002) (considering whether substantial evidence supported administrative officer's  

decision to reject driver's defense that he operated vehicle while intoxicated to ameliorate  

                                                                                     

the risk of his home burning down); Nelson v. State, 597 P.2d 977, 979-80 (Alaska 1979)  

                                                              

(evaluating  adequacy  of  necessity  instruction  in  case  where  defendant  was  accused  of  

                                                                                                                          

joyriding in highway vehicle to recover truck from marsh); see also Schnabel v. State, 663  

P.2d  960,  965-66  (Alaska  App.  1983)  (concluding  that  defendant  was  not  entitled  to  

necessity instruction because he failed to submit "some evidence" that he had no alternative  

                 

to moving heavyequipment across a salmon stream to prevent significant economic damage).  

                                                                                   



                                                                     -  10 -                                                                 2723
  


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

                                                                                                                                             16  

to an instruction on necessity for driving under the influence.                                                                                   In considering the first                     



element, the court acknowledged the risk of several harms, separately noting both the                                                                                                           



potential physical harms to the defendant and others                                                                    and  the potential property damage                            



                                                17  

                                                                                                                                                                                                   

resulting from arson.                                 And at least two scholarly treatises refer to property damage as  



                                                                                                                                                          18  

                                                                                                                                       

a qualifying harm for purposes of triggering the necessity defense. 



                               Moreover, under the Alaska Constitution, "[t]he legislature shall provide  



                                                                                                                                                                                                   

for the utilization, development, and conservation of all natural resources belonging to  



                                                                                                                                                                                              

the  State,  including  land  and  waters,  for  the  maximum benefit  of  its  people,"  and  



                                                                                                                                                                                                 

"[w]herever occurring in their natural state, fish, wildlife, and waters are reserved to the  



                                                           19  

                                                                                                                                                                                                 

people for common use."                                         Under AS 16.05.831, even a reckless "failure to utilize the  



                                                                                                                                                                                                   

majority of the [salmon] carcass" is a sufficiently significant evil to warrant a penalty of  



                                                                                                                                                                                          

up to 6 months imprisonment and a $10,000 fine, or to subject a violator to "a civil action  



        16      Greenwood v. State, 237 P.3d 1018, 1020 (Alaska 2010).  



        17     Id. at 1023.  



        18     2 Wayne R. LaFave, Substantive Criminal Law                                                                  § 10.1(d)(1), at 166 (3d ed. 2018)  



(recognizing that "[t]he harm avoided need not be physical harm (death or bodily injury)";  

it "may . . . be harm to property"); 2 Paul H. Robinson,                                                                Criminal Law Defenses § 124(g)(3),  

at 62-63 (1984) (current through July2021 supplement) (observing that, although some states                              

limit the necessity defense to cases involving threats of personal injury, that approach is not                           

the universal   view and it does not accord with the policy rationale behind the defense;   

"[s]ince the proportionality requirement demands that the harm resisted must always be                                                            

greater than that actually caused, there can be no danger in leaving the triggering conditions   

open to seemingly minor threats").  



        19     Alaska Const., art. VIII, §§ 2-3; see also O'Callaghan v. Rue, 996 P.2d 88, 99 (Alaska  



2000) (noting that "salmon remain subject to the common use clause while in the natural  

waters of the state").  



                                                                                             -  11 -                                                                                         2723
  


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

                                                                                                                                                                            20  

 by the state for the cost of replacing the salmon wasted."                                                                                                                        The fact that the legislature                        



 has expressly prohibited the wasting of salmon demonstrates the value of this resource.                                                                                                                                                                                  



 Its unnecessary destruction is a harm not only to the financial interests of individuals but                                                                                                                                                                 



 to the whole state of Alaska.                                  



                                         The court acknowledged that, had the Strongs allowed the fluid to continue                                                                                                                           



 leaking,   it   would   potentially   have   contaminated   their   catch,   substantially   damaged  



 important equipment on the boat, and rendered the hydraulic system inoperable, leaving                                                                                                                                                          



 no way for the Strongs to haul in the several hundred feet of net that was still in the water                                                                                                                                                         



 and the fish inside.                                       Given these factual findings, we conclude that the Strongs acted to                                                                                                                                  



 avert a "significant evil" and therefore                                                                          established the first prong of the necessity defense                                                                         

 as a matter of law.                                    21  



           20        At trial, the parties disputed whether the Strongs could be held liable for salmon waste  



 if they allowed their catch to become contaminated. Ultimately, the trial court found that the  

                                                                                                                                                       

 Strongs lacked the required mental state to be guilty of violating this statute because they did  

                                                                                                                                                                                                                                                               

 not recklessly cause the hydraulic fluid to start leaking.  See AS 16.05.831; 5 AAC 93.310(c)  

                                                                                                                                                                

 (exempting  from  liability "contamination  .  .  .  not  the  result  of  intentional,  knowing,  or  

                                                                                                                                                                                               

 reckless actions"). We question the trial court's resolution of this issue - liability under the  

                                                                                                                                                                                                                                             

 statute could presumably hinge on whether the Strongs were reckless in responding to the  

                                                                            

 leak, not only in causing it.  But we do not decide this issue.  We note the existence of the  

                                                                                                                                                                                                                                                               

 salmon  waste  penalties  only to  emphasize  the  legislature's  determination  that  waste  of  

                                                                                       

 salmon is a harm to  the  state  as a whole.   We owe deference to the legislature's value  

                                                                                                                                   

judgment on this point.  Cf. Cleveland v. Anchorage, 631 P.2d 1073, 1079-81 (Alaska 1981)  

                                                                      

 (holding that necessity defense cannot be based on avoidance of "harm" expressly legalized  

                                                                                                                                                                                                                                              

 by legislature).  



           21        Because we conclude that the waste of salmon and the economic harms the Strongs  



 sought to avoid constitute a significant evil for purposes of the necessity defense, we need  

                                                                                                                                                                                                                     

 not address the Strongs' argument that the first prong of the necessity defense would be "void  

                                                                                                                                                                                                     

 for vagueness" if it did not encompass these harms.  



                                                                                                                           -  12 -                                                                                                                        2723
  


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

              Whether the Strongs established the third prong as a matter of law                                                              



                           The trial court also concluded that the Strongs failed to demonstrate the                                                                     



third prong of the necessity defense - that "the harm caused was not disproportionate                                                         



                                                                                    22  

                                                                                                                                                            

to the harm avoided by breaking the law."                                                This prong requires an objective balancing  



                                                                                                                                                                      

of the harms the Strongs sought to avoid against the harm reasonably foreseeable from  



                                                                                                                                                                23  

                                                                                                                                                                      The  

the Strongs' illegal conduct, viewed in light of the facts perceived by them. 



                                                                                                                                                         

Strongs argue that the trial court applied the wrong legal analysis and erred in concluding  



                                                                                       

that the balance of harms weighed against them.  



                                                                                                                                                                         

                           As we previously noted, the harms that the Strongs sought to avoid - the  



                                                                                                                                                           

contamination of thousands of pounds of salmon, substantial damage to the Entropy 's  



                                                                                                                                                                      

equipment,  and  the  resulting  financial  consequences  -  implicated  both  their  own  



                                                                                                                                                                        

interests  and  the  interests  of  the  state  of  Alaska.                                                      The  remaining  prong  of  the  



                                                                                                                                                           

proportionality inquiry required the trial court to weigh these harms against the harms  



                                                                                                      24  

                                                                                     

reasonably foreseeable from the Strongs' conduct. 



                                                                                                                                                                           

                           The evidence established that the Strongs shut off their engine in order to  



                                                                                                                                                                         

repair their hydraulic line, and that they intended to restart the engine only once the  



                                                                                                                                                                         

hydraulic line was repaired.  The foreseeable result of turning off the engine under the  



                                                                                                                                                          

conditions that day was drifting toward the seaward boundary of the district, potentially  



                                                                                                                                                                       

into closed waters, and continuing to "fish" until the repair was complete because it was  



       22    State v. Garrison, 171 P.3d 91, 94 (Alaska 2007).  



       23    Id.  at 95-97; Greenwood v. State, 237 P.3d 1018, 1026-27 (Alaska 2010);                                                                          see also  



LaFave,  Substantive  Criminal  Law   §  10.1(d)(2),  at  167  ("[I]n  cases  where  there  is  a  

difference between the harm which [a defendant's] conduct actually causes and the harm                                                  

which            was         necessarily              to       be       expected             from          his       conduct             .     .    .     it     is      the  

harm-reasonably-expected, rather than the harm-actually-caused, which governs.").   



       24    See Greenwood, 237 P.3d at 1026-27.  



                                                                                 -  13 -                                                                              2723
  


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

                                                                                                                                                                                                                                25  

not otherwise possible to haul in the net.                                                                                                                                                                                                As the trial court acknowledged, the proper                                                                                                                                                                     



inquiry is not how many fish the Strongs actually took while in closed waters, but how                                                                                                                                                                                                                                                                                                                                                                                 



many  fish   one   could   reasonably   foresee   might   be   taken   during   that   time   and   the  



 consequent disruption of this taking on salmon escapement.                                                                                                                                                                                                            



                                                                          In many cases, the harms that could foreseeably result from the violation                                                                                                                                                                                                                                                                      



 of a statute are intuitive and may not require any particular evidence or argument to                                                                                                                                                                                                                                                                                                                                                                                             



 elucidate.     For   example,   a driver                                                                                                                                                        who   violates traffic laws by                                                                                                                                          driving   directly   into  



 oncoming traffic poses a clear risk to the safety of other drivers, and a fact-finder can                                                                                                                                                                                                                                                                                                                                                                                



 easily comprehend those foreseeable risks based on their everyday experience without                                                                                                                                                                                                                                                                                                                                                               



 any particularized evidence in the record.                                                                                                                                                                                              



                                                                          The foreseeable harms resulting from                                                                                                                                                                                   this   violation of the closed-water                                                                                 



regulation are far less intuitive, however.                                                                                                                                                                                        The trial court concluded that the Department                                                                                                                                             



 of Fish and Game enacts closed water regulations for a variety of reasons, including to                                                                                                                                                                                                                                                                                                                                                                                            



 ensure a proper balance of escapement and harvesting of Alaska's salmon resources.                                                                                                                                                                                                                                                                                                                                                                                                               



The court also expressed concern that if "fishermen with mechanical problems who                                                                                                                                                                                                                                                                                                                                                                                     



 accidentally drift into closed water were exempted from following the boundary rules,                                                                                                                                                                                                                                                                                                                                                                          



those rules would quickly erode."                                                                                                                 



                                                                          We acknowledge that the balance of escapement and harvest of Alaska's  



 salmon resources are important values, explicitly protected in the state constitution, and                                                                                                                                                                                                                                                                                                                                                                                



the trial court properly inquired into the impact the Strongs' conduct had upon that                                                                                                                                                                                                                                                                                                                                                                                    



balance.   But the key question in this prong of the necessity defense is not what                                                                                                                                                                                                                                                                                                                                                                 general  



harms the statutory scheme was created to avoid. If this were the test, then the necessity                                                                                                                                                                                                                                                                                                                                                  



                   25                See  5   AAC  06.350(f)   (prohibiting  the  "tak[ing]"  of   salmon  in  closed  waters);  



AS 16.05.940(35) (defining "take," for purposes of the fish and game code, as "taking,                                                                                                                                                                                                     

pursuing, [or] fishing, . . . or attempting to take, pursue, . . . fish, . . . or in any manner capture                                                                                                                                                                                                                                                                                                       

or kill fish").  



                                                                                                                                                                                                                                -  14 -                                                                                                                                                                                                                                 2723
  


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

defense would never apply to a fish and game violation, since the overall preservation                                                                                       



of the resource would always outweigh the harm to the resource caused by the violation.                                                                                                                  



                                   Instead, the proper inquiry is whether the Strongs' particular violation of                         



the closed-water statute would meaningfully impact these ecological goals under the                                                                                                                                      



                                                                            26  

                                                                                                                                                                                                                        

circumstances   of   their   case.                                                   That  is,  the  trial  court  should  have  determined  the  



                                                                                                                                                                                                              

reasonably foreseeable harms that would result fromthe Strongs' conduct -the number  



                                                                                                                                                                                                                           

of fish they would potentially take during the period of time they would foreseeably be  



                                              

in closed waters, and the ecological impact of those takings - and compared that risk  



                                                                                                                                                                                                                         

of harm to the waste of 3,000 pounds of salmon, the damage to the Entropy, and the  



                                                                                                                                                                                                                   

substantial economic losses that would have resulted from an unabated leak.  We agree  



                                                                                                                                                                    

with the Strongs that the trial court did not properly apply this analysis.  



                                                                                                                                                                                                                       

                                   Having established legal error, the Strongs ask this Court to apply this  



                                                                                                                                                                                                        

analysis in the first instance and resolve the proportionality prong of the necessity  

                                                         27  The Strongs point to their uncontroverted testimony that they  

defense in their favor. 



                                                                                                                                                                                                                        

gained no advantage by crossing the seaward boundary of the district during the ebb tide  



                                                                                                                                                                                                                        

and emphasize that the State did not dispute their estimate that they took only four or five  



         26      See  Greenwood,  237  P.3d  at  1026-27  (emphasizing  that  the  balancing  of   harms  



requires  "an  objective  comparison  of   the  relative  seriousness  of   the  harms  caused  and  

avoided" from the perspective of the defendant, and considering the particular circumstances     

of the defendant's drunk driving - that it had occurred on a back road, at low speed, and for   

a little less than a mile).  



         27       The State contends that the Alaska Supreme Court's opinion in Greenwood v. State  

                                                                                                                                                                                                               

establishes that proportionality is a question of fact and argues that we should review the trial  

                                                                                                                   

court's proportionality finding in this case under the clearly erroneous standard. Id.  Relying  

                                                                                                                                                                                                              

on this Court's opinion in Allen v. State , the Strongs argue that the proportionality element  

                                                                                                                                                                                                              

is a question of law that must be reviewed by this Court de novo.  Allen v. State , 123 P.3d  

                                                                                                                                                                       

 1106,  1108  (Alaska  App.  2005).                                                         Given  that  we  are  remanding  this  case  for  further  

                                                                                                                                              

proceedings in the trial court, we need not resolve this issue.  



                                                                                                         -  15 -                                                                                                      2723
  


----------------------- Page 16-----------------------

fish during the one or two minutes that they spent in closed waters.                                                                      28  



                                                                                                                                                                            

                           But we decline to undertake this analysis in the first instance.  Because the  



                                                                                                                                                                           

trial court did not apply the proper analysis, it did not make the necessary findings of fact  



                                                                                                                                                                            

relevant to the proportionality determination: the harms reasonably foreseeable fromthe  



                                                                                                                                                                              

Strongs' closed-water violation.  We believe that the trial court is in the best position to  



                                                                                                                                   

make these factual findings and to then resolve the question of proportionality, taking  



                                                                                                                                                      

into account our conclusion that the harms the Strongs sought to avoid qualified as a  



                                      

"significant evil."  



                                                                                                                                                            

                           We therefore remand this case for reconsideration of the harms reasonably  



                                                                                                                                                                    

foreseeable from the Strongs' conduct and determination of whether the Strongs proved  



                                                                                                                                  29  

                                                                                                                         

their necessity defense based on the evidence presented at trial. 



              Conclusion  



                                                                                                                                                                        

                           The judgments of the district court are VACATED.  We REMAND these  



                                                                                                                                                                        30  

                                                                                                                                                

cases for further proceedings consistent with this opinion.  We retain jurisdiction. 



       28     We note that the State offered no evidence about the specific harms of harvesting                                                              



salmon  in  that  location  or  the  particular  ecological  or  commercial  justifications  for  the  

location of the seaward boundary in the Ugashik fishing district.                                                             Cf. Demmert v. State, 2021  

                                                                                                                                                                              

WL 3754590, at *2 (Alaska App. Aug. 25, 2021) (unpublished) (discussing testimony of  

Alaska Department of Fish and Game area management biologist about the ecological impact                                                         

of commercial fishing offenses).  



       29     See  Colgan  v.  State,  711  P.2d  533,  536  (Alaska  App.  1985)  ("Because  Colgan  

                                                                   

received a non-jury trial, however, we do not believe that a reversal and retrial are called for.  

                                                                                                                   

Rather, application of the correct standard can be accomplished by simply remanding this  

                                                                                                                                                     

case to the superior court for reconsideration of the verdicts of conviction.").  



       30     Given our resolution of this appeal, we need not  address the Strongs' remaining  

                                                                                                                   

claims at this time.  



                                                                                   -  16 -                                                                               2723
  

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