Hjelle v. Brooks

• Decision Date: 09 December 1976
• Docket Number: Civ. A. No. A-191-73.
• Citation: 424 F. Supp. 595
• Parties: Severin HJELLE et al., Plaintiffs, v. James W. BROOKS, Commissioner of Fish and Game for the State of Alaska, et al., Defendants.
• Court: U.S. District Court — District of Alaska

424 F. Supp. 595

Severin HJELLE et al., Plaintiffs, v. James W. BROOKS, Commissioner of Fish and Game for the State of Alaska, et al., Defendants.

Civ. A. No. A-191-73.

United States District Court, D. Alaska.

June 11, 1976.

Motion for Reconsideration Denied December 9, 1976.

William B. Rozell, Faulkner, Banfield, Doogan, Gross & Holmes, Juneau, Alaska, Douglas M. Fryer, Moriarty, Long, Mikkelborg & Broz, Seattle, Wash., for plaintiffs.

Richard A. Bradley, Acting Deputy Atty. Gen., Juneau, Alaska, Gerald W. Markham, Asst. Atty. Gen., Anchorage, Alaska, for defendants.

Before WRIGHT, Circuit Judge, and VON DER HEYDT and PLUMMER, District Judges.

OPINION

PLUMMER, Senior District Judge:

Plaintiffs, a group of commercial king crab fishermen, seek injunctive and declaratory relief to prevent enforcement against them by the State of Alaska of State fishing regulations in the Bering Sea outside of three miles from Alaska's coastline.¹ The regulations in effect at the time this suit was commenced² were repealed after we issued our prior opinion enjoining their enforcement. Hjelle v. Brooks, 377 F.Supp. 430 (D.Alaska 1974). After repealing the old regulations, the State adopted emergency interim regulations on May 9, 1974, and then the current regulations on June 15, 1974. We refused to enjoin the emergency regulations because of their possible validity under a rationale we suggested in Hjelle.³ Thereafter, on July 15, 1974, the State filed criminal charges against seven crab fishermen who are plaintiffs in this federal action for violation of the new regulations. The third amended complaint, challenging the regulations cited in note 1, was filed July 31, 1974, fifteen days after the criminal charges were filed. Since then, the state and the federal actions have proceeded independently until we granted a stay of our proceedings at the parties' request pending the decision of the Alaska Supreme Court in the state proceeding.⁴

On January 19, 1976, the Supreme Court of Alaska issued its opinion in State v. Bundrant, 546 P.2d 530 (Alaska 1976). The petition for rehearing was denied March 26, 1976, 547 P.2d 838. In Bundrant the Alaska Supreme Court reversed the state trial court's dismissal of the criminal charges brought against seven crab fishermen. The decision upholds the constitutionality of the regulations under which the fishermen were charged, and which are in issue here.

The question now presented is whether this court should make a second determination of the constitutional validity of the State's Bering Sea king crab regulations. For the reasons that follow, we think that this court should not do so. Accordingly, we dismiss as to all plaintiffs and all claims. We rely chiefly on rationales developed in cases relating to abstention.

Abstention by a federal court when there is a pending state criminal prosecution is governed by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and subsequent Supreme Court cases. Younger provides that equitable relief in federal court is not available to interfere with a pending state criminal proceeding absent bad faith harassment by the state officials. In our case, only seven of the federal plaintiffs are involved in pending state criminal proceedings. Normally, each federal plaintiff is treated individually for purposes of abstention. Doran v. Salem Inn, Inc., 422 U.S. 922, 928, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975); Steffel v. Thompson, 415 U.S. 452, 471 note 19, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Accordingly, absent other factors, the criminal proceedings against the seven state defendants should not be imputed to the other thirty-seven federal plaintiffs. However, when there is sufficient "joint activity and common interest" abstention may be justified even as to those federal plaintiffs who are not state defendants. Allee v. Medrano, 416 U.S. 802, 832 n. 8, 831-832, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974) (Burger, C. J. concurring). Hicks v. Miranda, 422 U.S. 332, 348-349, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975); Sole v. Grand Jurors For the Counties of Passaic and Bergen, 393 F.Supp. 1322, 1329 n. 12 (D.N.J.1975). In this case, there is such joint activity and common interest.

To lightly impute state prosecution to a federal plaintiff not a party thereto would obviously frustrate the policies announced in Steffel, supra, and Dombroski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Yet in this case the pleadings and testimony of plaintiffs so clearly demonstrate the "joint activity and common interest" of all plaintiffs that we believe imputation is proper.

Severin Hjelle, by affidavit filed June 17, 1974, stated that:

"this action was originally commenced . . . on behalf of the members of the North Pacific Vessel Owners Association NPVOA."

By supplemental memorandum filed June 21, 1974, plaintiffs indicated that they had

"now included as parties all non-resident members of the NPVOA who are prepared to commence fishing in the Bering Sea on June 26, 1974."

Hjelle's affidavit also indicated that he was President of the NPVOA as of June 17, 1974. Apparently Hjelle's incumbency expired sometime thereafter, for at trial Konrad Uri, a federal plaintiff and state defendant, testified that he was President of the NPVOA.

In an affidavit of May 23, 1974, Hjelle stated:

"To avoid a complete lack of management for the Bering Sea king crab fishery, the individual members of the NPVOA, now comprising some 42 vessel operators and the seven processors who purchase the vast majority of king crab caught in the Bering Sea have formed an organization called the Shellfish Conservation Institute. The institute has adopted regulations . . . which honor the treaty restrictions on the capture of king crab and, in addition, has proposed to commence the king crab fishing season in the Bering Sea on June 26, 1974."

Hjelle's June 17 affidavit explained how individual fishermen looked to the Shellfish Conservation Institute for guidance in pursuing their work:

"All plaintiffs in this case stand ready to commence fishing in the Bering Sea on or before June 26, 1974, as specified in the industry regulation of the Shellfish Conservation Institute and will suffer irreparable harm if not permitted to do so." (Emphasis added)

In a telegram attached as an exhibit to plaintiffs' third amended complaint, the Alaska Fish and Game Commissioner recognized as a "flagrant challenge of authority":

"the announcement by the Shellfish Conservation Institute that it had adopted king crab fishing regulations on the basis that it did not recognize the regulations and jurisdiction of the State of Alaska . . .."

The most recent indication of the joint nature of the state and federal proceedings is the agreement by all federal plaintiffs, including those not under state indictment, to a stay of the federal proceedings pending the decision of the Alaska Supreme Court.

While the numerous federal plaintiffs own their vessels and gear individually rather than collectively, it is clear to us that they are all so closely related in terms of "control and management" (Doran, 422 U.S. at 928, 95 S.Ct. 2561), that application of the "imputation" principle is proper.⁵ The participation of Konrad Uri, President of the NPVOA, in the state proceeding gives the federal plaintiffs the "assurance that those presently being prosecuted will challenge the constitutionality of the regulations." Accordingly, in the discussion that follows, we will treat all federal plaintiffs identically.

One possible ground for invoking Younger abstention is that the state criminal proceedings, begun on July 15, 1974, were commenced prior to the filing of the third amended complaint, filed July 31, 1974. By treating the third amended complaint as a new cause of action, we would be within Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975), which requires abstention if the state criminal charges are brought before any federal proceedings of substance on the merits. Although we may have discretion to so interpret the third amended complaint, compare Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 226-227, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964) with Cherry v. Morgan, 267 F.2d 305 (C.A.5 1959), we decline to do so. Instead we look to the plaintiffs' own actions.

Prior to our issuance of a stay this case was near its conclusion. The trial had been held and proposed findings and final written arguments had been submitted. Thereupon, at pages 7 and 8 of defendants' closing argument the following statement and proposal was made:

"Although the Court need not dismiss this action on abstention grounds, the imminence of a ruling by the Alaska Supreme Court in the related criminal cases would warrant a stay of this action until the State cases are resolved. The briefs filed in those cases demonstrate that the same parties have through the same counsel presented many of the same legal arguments. Those arguments have been through the refining process of trial court adjudication and are expected by all to be resolved on appeal shortly. Needless to say, the State is hopeful of success in those cases, and we are confident that the fishermen will honor the Alaska Supreme Court's rulings. Accordingly, principles of comity would be served by a temporary stay of this proceeding pending the Alaska Supreme Court's decision, following which this Court could entertain motions to dismiss this action or such further briefing as may be desired."

Plaintiffs concurred in this proposal. While not calling their agreed procedure "abstention," the parties did agree on principles of comity to a stay of the federal proceeding until the state court could rule. The stay was granted and the Alaska Supreme Court has ruled. The question is whether a party can voluntarily seek a prior state court ruling on his claim and then reapply to a federal court if the state ruling is adverse, rather than pursue his state...