State v. Bundrant, s. 2295
| Decision Date | 19 January 1976 |
| Docket Number | 2444,Nos. 2295,2435,s. 2295 |
| Citation | 546 P.2d 530 |
| Parties | STATE of Alaska, Appellant, v. Charles BUNDRANT, Appellee. STATE of Alaska, Appellant, v. Konrad S. URI et al., Appellees. STATE of Alaska, Appellant, v. Cory A. KALDESTAD, Appellee. |
| Court | Alaska Supreme Court |
Office of Attorney General of Alaska, Juneau, Gerald W. Markham, Asst. Atty. Gen., Anchorage, for appellant.
David B. Ruskin, Anchorage, for appellee Bundrant. William B. Rozell of Faulkner, Banfield, Doogan & Holmes, Juneau, Douglas M. Fryer of Moriarty, Long, Mikkelborg & Broz, Seattle, Wash., for appellees Uri, Kaldestad and others.
Edward H. Levi, Atty. Gen. of the U. S., Wallace H. Johnson, Asst. Atty. Gen., and Bruce C. Rashkow and Michael W. Reed, Dept. of Justice, Washington, D. C., as amicus curiae for U. S.
Evelle, J. Younger, Atty. Gen. of Cal., Carl Boronkay, Asst. Atty. Gen., and Roderick Walston, Deputy Atty. Gen., as amicus curiae for Cal.
Before RABINOWITZ, C. J., and CONNOR and ERWIN, JJ.
King crab occur in harvestable numbers in several areas of the Bering Sea off the coast of Alaska. Beginning in the late 1960's, the number of fishermen taking crabs from the Bering Sea increased significantly. As a result, in 1969 the Alaska Board of Fish and Game began efforts to regulate crabbing in that area, with the promulgation of 5 AAC 07.100, which created the 'Bering Sea Shellfish Area' (BSSA), described as:
. . . all waters of the Bering Sea including all tributary bays except Bechevin Bay and Isanotski Strait . . . north of 54 36 N. lat., (the latitude of Cape Sarichef), south of 60 N. lat., and east of the U. S.-Russia convention line of 1867.
In 1973, in an effort to avoid the eventual depletion of this resource and to preserve the fishery at sustained yield levels, the Board established a maximum quota of 23 million pounds of crab for this area for the 1973-74 season (5 AAC 07.760). 1 It also prohibited possession or sale of crab taken 'in violation of the rules and regulations promulgated by the board' if such crabs were taken in waters seaward of the state's territorial waters (5 AAC 36.040).
The Bering Sea Shellfish Area quota of 23 million pounds was reached on September 9, 1973, whereupon by filed order the area was closed to crabbing until June 15, 1974.
In December, 1973, several crab fishermen brought suit in Federal Court, asking for a preliminary injunction against enforcement of 5 AAC 07.760 and 5 AAC 36.040. A three-judge District Court heard the case, Hjelle v. Brooks, and on April 30, 1974, enjoined the state from enforcing those regulations. 2
Following this decision, the Board repealed the enjoined regulations and took alternative steps to govern crabbing in the Bering Sea in the season due to begin July 1, 1974. On May 9, 1974, the Board issued a stopgap regulation prohibiting possession of red king crab in the state until June 30, 1974 (5 AAC 39.690). On June 15, the Board repealed all previous king crab regulations (except the definition and gear limitation sections, 5 AAC 39.105, and 5 AAC 39.975) and issued a comprehensive set of emergency regulations (5 AAC 34.005-. 940, 5 AAC 03.710, 5 AAC 06.710, 5 AAC 21.910). These regulations basically prohibited the taking and possession of crabs in a closed area. A system of designation of closures was created by 5 AAC 34.005, whereby 'statistical areas' were created, consisting of
(1) a registration area, comprised of all the waters within the statistical area which are waters subject to the jurisdiction of the state; and
(2) an adjacent seaward biological influence zone, comprised of all the waters within the statistical area which are not part of the registration area.
The acts giving rise to this appeal occurred in Statistical Area Q, defined in 5 AAC 34.900 as 'the waters of the Bering Sea and Chuckchi Sea including all tributary bays except Bechein Bay and Isanotski Strait . . . north of 54 36 N. lat., (the latitude of Cape Sarichef).' 5 AAC 34.910, provided that the crabbing season for this area was to open on July 1, 1974.
Prior to July 1, an organization of Bering Sea crab fishermen (according to news accounts, based in Seattle), called the 'Shellfish Conservation Institute,' promulgated their own rules for the upcoming Bering Sea season. This group's rules called for the season to open to June 26. 3 Even before that date surveillance flights showed a large number of vessels engaged in crab fishing in the Bering Sea. 4 In response, on June 25 the board issued emergency regulations 5 AAC 07.710(b), 5 AAC 34.035(c)(5), 5 AAC 34.045, 5 AAC 34.095(c), and 5 AAC 34.910. These regulations basically put off the opening of the season and gave the Commissioner of Fish and Game discretion to open the season when 'general order can be restored and the state can be assured that fishing will be conducted in a manner which will not jeopardize the rights of law abiding fishermen.' 5 The Commissioner also issued notices that the reason would not open until all illegal crab pots were removed from the area. The fishermen who had been successful in the earlier Hjelle case asked the federal district court for a temporary restraining order against the new regulations, but it was denied.
All of the individual cases consolidated in this appeal arise from alleged violations of these closures or related regulations.
A. In No. 2295, defendant Bundrant was charged in superior court with seven counts of possession of migratory shellfish near St. Paul Island (within the three-mile limit) on various dates in October, 1973, which shellfish were taken 'upon the high seas and the Bering Sea shellfish area' during a closed period under fish and game board regulations. The statutory reference in the complaint is to AS 16.10.200, which reads:
It is unlawful for a person taking migratory fish and migratory shellfish in high sea areas designated by the board or in violation of the rules and regulations promulgated by the board governing the taking of migratory fish and migratory shellfish in the designated areas to possess, sell, offer to sell, barter, offer to barter, give or transport in the state, including the waters of the state, migratory fish or migratory shellfish.
Bundrant moved to dismiss for lack of jurisdiction, asserting the invalidity of the Board's regulations. The motion was denied on March 27, 1974, but on September 10, after the federal court in Hjelle had enjoined enforcement of 5 AAC 36.040, the trial judge reconsidered and granted the motion to dismiss.
Bundrant is a legal resident of Washington state and is not a resident of Alaska. 6 He held commercial fishing licenses in Alaska in 1965-70 and in 1973. His vessel the F. V. Billikin, was registered in Alaska along with its gear. During the 1973 season he had fished within the three-mile limit (although during the period of the violations, October 6-20, 1973, he fished only outside the three-mile zone). He had anchored and processed crabs within the zone every night during this period. He maintained in Dutch Harbor, Alaska, a warehouse for use in processing his catch. He received fuel, food, water, repairs, and emergency aid from Alaskans, and used fisheries data from the Alaska Department of Fish and Game.
B. In No. 2435, the defendants Uri, et al., were charged with numerous counts of possession of king crab on several dates between June 30, 1974, and July 24, 1974, within a closed area; with possession of crab pots in a closed area; and with having taken crab in a closed area. These activities all took place from 16 to 60 miles from the Alaska coast. (Actually only one defendant, Perovich, is charged with fishing before July 1, the original opening date for the area.)
The statutory references in the complaints are to AS 16.05.920 (unlawful possession), AS 16.10.200 (unlawful taking), 5 AAC 34.900, 5 AAC 34.910, 5 AAC 34.098, and 5 AAC 34.090(c).
With the exception of Emil Vinberg, all of the defendants in this group are residents of states other than Alaska.
The conduct cited here as criminal all took place outside the three-mile limit (in distinction to Bundrant, who is charged with possession within territorial waters of shellfish illegally taken outside of it). The state offered proof that after setting their pots outside the three-mile limit, the defendants returned to territorial waters. Although the Uri record has no stipulations like those in Bundrant regarding ongoing contacts with Alaska while operating in the Bering Sea, there was testimony in Uri to the effect that American crabbers in the Bering Sea always use processing facilities in Alaskan ports because the fragility of king crab rules out travel to more distant ports.
The Uri defendants moved to dismiss on a number of grounds, including lack of jurisdiction, the unconstitutional vagueness of the regulations, and the illegality of the search of defendants' crab pots. The motion was granted by the trial judge, who adopted the defendants' argument that these regulations had intruded upon and were in conflict with an area of exclusive federal jurisdiction established by the Outer Continental Shelf Lands Act and were consequently prohibited by Article VI of the Constitution of the United States.
C. In No. 2444, defendant Kaldestad was charged with four counts, the first three of which are identical to the charges against the Uri defendants. The fourth count, however, charged possession within the three-mile limit of shellfish taken illegally outside of it (this being basically the same charge as that made against Bundrant, the distinction being that Bundrant was charged under the old regulations while Kaldestad was charged under the emergency regulations).
The statutory references in the fourth count of the complaint are to AS, 16.10.200, 7 5 AAC 34.910, 5 AAC 34.098, and 5 AAC 34.090(c).
Kaldestad's case was handled below together with the Uri cases,...
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