Court of Appeals of Alaska (2022)
In Strong v. State, 508 P.3d 1127 (Alaska App. 2022), the court of appeals held that risk of harm to property can constitute a “significant evil” when establishing a common law defense of necessity in a criminal case. (Id. at 1132). A fishing boat with permits for drift net salmon fishing was fishing in legal waters in the Ugashik fishing district of Bristol Bay when the vessel’s hydraulic system failed. (Id. at 1129). The operators of the boat cut the engine to prevent spillage of hydraulic fluid, fearing that a leak would contaminate thousands of pounds of fish aboard. (Id.). Without a running engine, the boat drifted into closed waters where it was illegal to fish. (Id.). After a few minutes, the operators were able to resolve the mechanical failure, restart the engine, and return to legal waters. (Id.). As a result of the brief excursion into closed waters, the boat captured in its net a handful of fish against the law. (Id. at 1130). At trial, the boat operators admitted to taking fish illegally in closed water but asserted an affirmative defense of necessity. (Id.). To prove the common law defense of necessity in a criminal case in Alaska, the boat operators had to show they committed the charged offense to prevent a “significant evil.” (Id. at 1131). The trial court rejected the necessity defense, holding that risk of damage to property — the contamination of fish on board — could not constitute a significant evil as a matter of law and, as such, the fishing boat operators failed to prove their affirmative defense. (Id.). On appeal, the court of appeals held that the fishing boat operators satisfied the “significant evil” prong of the necessity defense as a matter of law. (Id. at 1134). The court reasoned that nothing in Alaska state law barred risk of property damage from constituting a significant evil. (Id. at 1132–33). Vacating the lower court’s decision, the court of appeals concluded that a risk of property damage could constitute a significant evil, the prevention of which could support a defense of necessity in a criminal case. (Id. at 1134).