208 F.2d 244 (9th Cir. 1953), 13621, Hotch v. United States

Docket Nº13621.
Citation208 F.2d 244
Party NameHOTCH v. UNITED STATES.
Case DateSeptember 14, 1953
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 244

208 F.2d 244 (9th Cir. 1953)

HOTCH

v.

UNITED STATES.

No. 13621.

United States Court of Appeals, Ninth Circuit.

September 14, 1953

On Rehearing Dec. 2, 1953.

Further Rehearing Denied March 22, 1954.

Frederick Paul, Seattle, Wash., William L. Paul, Jr., Juneau, Alaska, for appellant.

Patrick J. Gilmore, Jr., U.S. Atty., and James M. Fitzgerald, Asst. U.S. Atty., Juneau, Alaska, for appellee.

Page 245

Before STEPHENS, BONE, and ORR, Circuit Judges.

STEPHENS, Circuit Judge.

Steven V. Hotch, a registered commercial fisherman, is appealing from a conviction and sentence for taking salmon for food from Alaskan waters in violation of a regulatory extension of statutory closing hours and contrary to a Department of the Interior regulation. Appellant admitted in the United States District Court and here admits that he is a commercial fisherman and that he committed the acts alleged in the complaint and that his '* * * defense is that the regulation is invalid because prohibited by statutes.' That is, that the applicable statute reserves to appellant the right to take salmon for personal food requirements. The text of the regulation is as follows:

'102.51 Prohibited by commercial fishermen.

No commercial salmon fisherman shall take salmon for personal use during any commercial salmon season except in compliance with commercial fishing regulations, * * *.' 17 F.R. 1475; 50 C.F.R. § 102.51.

Sections 232 and 234 of Title 48 U.S.C.A., and all other code citations herein are codifications with amendments of the various Acts regulating fishing in Alaska. 1

Section 232 2 makes unlawful the taking of salmon from Alaskan streams and five hundred yards seaward of any stream's mouth except by means which may be termed hand tackle, i.e., 'hand rod, spear, or gaff'.

Section 234 3 permits the taking of salmon beyond five hundred yards seaward of a stream's mouth by gear other than hand tackle (in this section 'hook and line' is added) except during certain hours of each week during a season. 4 This section is not limited to streams and five hundred yards seaward of

Page 246

streams, but makes unlawful the taking of salmon in any American Alaskan waters by other than hand tackle except for special defined periods.

Salmon converge in numbers seaward of rivers up which they run for spawning. The taking of salmon in large numbers by seines and nets for commercial purposes in Alaskan waters is an important industry and salmon is an essential food for many Alaskans and their draft dogs. Experience has taught that the industry would be ruined and the inhabitants up stream would starve in unlimited taking of salmon for commerce were permitted in the streams or near their mouths.

As will appear by comparing them, Sec. 234 covers much the same ground as Sec. 232 but operated chiefly in waters beyond the five hundred yards outward from the streams' mouths. In such areas the taking by other than hand tackle is permitted, for any purpose, but is limited to certain open hours each week. The closed hours, however, may be increased by Departmental regulation.

Section 232 contains a provision that taking salmon for local food requirements or for dog feed shall not be 'prevented' and Section 234 contains a provision that the taking for the same use shall bot be 'prohibited'. The reservation in Sec. 234, the section covering the area in which appellant was fishing, is limited by the clause 'but such authority (the authority to increase the closed period) shall not be exercised to prohibit the taking of fish for local food requirements or for use as dog feed.' Since salmon may be taken in the extended sea area by means additional to hand gear and at any time except the closed period as provided by Sec. 234 or an extension thereof, and since the food reservation of Sec. 234 applies specifically to the extended time, we must conclude that appellant was well within his rights when he caught two salmon for food by other than hand tackle during an extension of the closed period unless the Regulation 102.51 of 50 C.F.R. (17 F.R. 1475) is valid as to appellant and validity prohibits him as a commercial fisherman from taking salmon for food during the extended closed period.

It seems reasonable to assume that the reservations as to food in §§ 232 and 234 were meant to permit the settlers, trappers and Indians to take salmon in the established customary manner by traps and gillnets for immediate use and as well for the continuance of the ancient practice of drying fish for use through the long, hard winters. Taking salmon by hand tackle during the seasonal runs for such purposes is impractical if not impossible. But this reason for the rule does not apply at all to persons in the business of taking salmon in the open sea for profit. If such person can catch enough salmon during the open period of each week to profit by it as a vocation, he cannot reasonably be faced with local food requirements that demand the taking of salmon during the short extension of the closed period. The reservation then as to taking salmon for food requirements, as contained in Sec. 234, cannot be reasoned into a bar to the regulation of taking salmon by commercial fishermen if their practices interfere with the purposes of the fisheries Act.

And it was found that their practices do tend to frustrate the purposes of the Act. It is easy enough for the few dishonest commercial fishermen, to the prejudice of the honest ones, to continue to fish after the hour of the open period and when caught, to assert that they were fishing for their own food requirements. Enforcement of the closed period would be impractical as to the policing; and inspecting would be intolerable and unreasonably expensive; and convictions in court would be extremely difficult. We think the food provision of the statute cannot reasonably be construed to support appellant's contention that the regulation is void or invalid as to him as a commercial fisherman.

There is further support for the validity of the Regulation 102.51. Whether Congress could either directly or through delegated authority prohibit all fishing in

Page 247

Alaska including the ancient right to take fish for personal use as food, we need not decide, but we have no hesitancy in holding that it could prohibit commercial fishing '(f)or the purpose of protecting and conserving the fisheries * * *.' 5 Fishing commercially is entirely an act of volition on the part of the fisherman and permission on the part of the government on terms prescribed by the government which of course must be the same as to all in any certain class.

The governmental Department in authority is of the opinion that closed periods during the salmon runs are necessary for the protection and conservation of the business of commercial fishing and the furnishing of food as hereinbefore outlined. It appears that the Congress and the Department were of the opinion that there would be too little cessation of commercial fishing without a reasonable regulation. Hence Congress enacted §§ 232 and 234 of Title 48 U.S.C.A. and the Department promulgated Regulation 102.51 of Title 50 C.F.R.

In studying and relating §§ 232 and 234, see texts in footnotes 2 and 3 supra, each to the other and to the instant case, it should be borne in mind, as we have heretofore stated, that they are parts of a codified version of an original integrated Act. Some apparent inconsistencies may be explained by comparing the code sections with the original Act. 6

The point we now consider is one which counsel for appellant waived in his oral judgment. Nevertheless we are of the opinion that it is our duty to consider it.

The regulation admittedly violated was Regulation 102.51 of Title 50 C.F.R., 17 F.R. 1475. However, the section in an amended form had been promulgated but was not in effect when the acts complained of were committed. The heading of the complaint mistakenly made reference to the regulation 'as amended', but the error was not carried into the body of the complaint. The District Judge rendered an opinion in the case in which he quoted the regulation as amended. Can the judgment stand?

The erroneous reference in the heading is of no moment, as an offense is correctly stated in the body of the complaint. Williams v. United States, 1897, 168 U.S. 382, 389, 18 S.Ct. 92, 42 L.Ed. 509. The offense charged is based upon Regulation 102.51, supra, before amendment, which appellant admits he violated and he admits his guilt unless the regulation is void or of no effect because of the food provision of Sec. 234. We have already covered the latter point adversely to appellant's contention.

We have heretofore quoted the original or unamended Regulation 102.51. As amended it reads:

'Sec. 102.51 Prohibited with commercial gear; exception.

Within any regulatory area, district or section, all fishing for personal use with gillnet, seine or trap shall be subject to the laws and regulations governing commercial fishing during the period starting 48 hours before the opening of a commercial season for such gear and continuing until 48 hours after its close: * * *.' 50 C.F.R. §...

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17 practice notes
  • 221 F.2d 62 (D.C. Cir. 1955), 11991, Eastern Air Lines v. Union Trust Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • February 8, 1955
    ...relied on the fact that the traffic pattern had not been published in the Federal Register and cited Hotch v. United States, 9 Cir., 1953, 208 F.2d 244, 250, as authority that it was therefore not a binding regulation. The pattern had been officially prescribed, however, and Eastern had act......
  • 256 F.2d 304 (4th Cir. 1958), 7372, Finn v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • May 28, 1958
    ...an offense, although the point was made for the first time after the case had been argued on appeal. Hotch v. United States, 9 Cir., 1953, 208 F.2d 244, 250. We thus reach the merits of the motion. It is undisputed that a 'statement of the essential facts constituting the offense charged' i......
  • 125 A.2d 735 (N.J.Super.A.D. 1956), No. A--560, State v. Hintenberger
    • United States
    • New Jersey Superior Court of New Jersey
    • October 5, 1956
    ...denied 335 U.S. 909, 69 S.Ct. 412, 93 L.Ed. 442 (1949); Johnson v. United States, 206 F.2d 806 (9 Cir. 1953); Hotch v. United States, 208 F.2d 244, 250 (9 Cir. 1953). We proceed to consider the merits of the point. As noted, the defendant argues that "hugging and petting" a child ......
  • 243 F.2d 546 (6th Cir. 1957), 13024, Wright v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • April 8, 1957
    ...Rule 12(b)(2), Rules of Criminal Procedure; Johnson v. United States, 9 Cir., 206 F.2d 806, 808; Hotch v. United States, 9 Cir., 208 F.2d 244, 249-250. The sufficiency of an indictment must be judged by the allegations of the indictment. Las Vegas Merchant Plumbers Ass'n v. United States, 9......
  • Request a trial to view additional results
17 cases
  • 221 F.2d 62 (D.C. Cir. 1955), 11991, Eastern Air Lines v. Union Trust Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • February 8, 1955
    ...relied on the fact that the traffic pattern had not been published in the Federal Register and cited Hotch v. United States, 9 Cir., 1953, 208 F.2d 244, 250, as authority that it was therefore not a binding regulation. The pattern had been officially prescribed, however, and Eastern had act......
  • 256 F.2d 304 (4th Cir. 1958), 7372, Finn v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • May 28, 1958
    ...an offense, although the point was made for the first time after the case had been argued on appeal. Hotch v. United States, 9 Cir., 1953, 208 F.2d 244, 250. We thus reach the merits of the motion. It is undisputed that a 'statement of the essential facts constituting the offense charged' i......
  • 125 A.2d 735 (N.J.Super.A.D. 1956), No. A--560, State v. Hintenberger
    • United States
    • New Jersey Superior Court of New Jersey
    • October 5, 1956
    ...denied 335 U.S. 909, 69 S.Ct. 412, 93 L.Ed. 442 (1949); Johnson v. United States, 206 F.2d 806 (9 Cir. 1953); Hotch v. United States, 208 F.2d 244, 250 (9 Cir. 1953). We proceed to consider the merits of the point. As noted, the defendant argues that "hugging and petting" a child ......
  • 243 F.2d 546 (6th Cir. 1957), 13024, Wright v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Sixth Circuit
    • April 8, 1957
    ...Rule 12(b)(2), Rules of Criminal Procedure; Johnson v. United States, 9 Cir., 206 F.2d 806, 808; Hotch v. United States, 9 Cir., 208 F.2d 244, 249-250. The sufficiency of an indictment must be judged by the allegations of the indictment. Las Vegas Merchant Plumbers Ass'n v. United States, 9......
  • Request a trial to view additional results