Strong v. State, Court of Appeals Nos. A-13269 & A-13270

CourtCourt of Appeals of Alaska
Writing for the CourtJudge WOLLENBERG.
Parties Clinton R. STRONG and Tuie Strong, Appellants, v. STATE of Alaska, Appellee.
Docket NumberCourt of Appeals Nos. A-13269 & A-13270
Decision Date01 April 2022

508 P.3d 1127

Clinton R. STRONG and Tuie Strong, Appellants,
STATE of Alaska, Appellee.

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

Court of Appeals of Alaska.

April 1, 2022

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.



508 P.3d 1129

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 —approximately 272 feet into closed waters.2 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 out of its fitting, and hydraulic fluid began leaking onto the deck of the boat.4 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

508 P.3d 1130

leak, and began repairs. The other crew members helped to move the fish and tried to contain the leaking fluid.

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 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 defense.5 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.

The trial court rejected the Strongs’ necessity defense and found the Strongs 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 court fined the Strongs $500 each.6

508 P.3d 1131

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 or otherwise specifically delineated by the legislature.7 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 disproportionate to the harm avoided by breaking the law.8 When, as here, the offense is a continuing one, a defendant must also show that they stopped breaking the law as soon as the necessity ended.9

In considering the first, second, and fourth elements, the defendant's conduct is evaluated based on the defendant's reasonable beliefs at the time of acting.10 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 conduct was not actually calculated to avoid.11

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 dangerous situation. Likewise, round hauling 400-500 feet of net with fish in 15-20 knot winds with only three

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