U.S. v. Alexander, s. 89-30253

• Decision Date: 05 July 1991
• Docket Number: Nos. 89-30253,89-30259,s. 89-30253
• Citation: 938 F.2d 942
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George J. ALEXANDER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Henry W. PEELE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 942

938 F.2d 942

UNITED STATES of America, Plaintiff-Appellee, v. George J. ALEXANDER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Henry W. PEELE, Defendant-Appellant.

Nos. 89-30253, 89-30259.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 2, 1990.

Decided July 5, 1991.

Shawn J. Holliday, Groh, Eggers & Price, Anchorage, Alaska, for defendant-appellant Peele.

Sidney K. Billingslea, Asst. Fed. Public Defender, Anchorage, Alaska, for defendant-appellant Alexander.

Joseph W. Bottini, Asst. U.S. Atty., Anchorage, Alaska, for plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska.

Before KOZINSKI, O'SCANNLAIN and FERNANDEZ, Circuit Judges.

KOZINSKI, Circuit Judge.

Defendants Alexander and Peele were convicted of trafficking in herring roe on kelp--fish eggs on seaweed. ¹ This, it turns out, is an exotic delicacy that fetches as much as $60 per pound in Japan. In fact, global demand for this gustatory delight has endangered Alaska's fisheries, inducing the state to prohibit all harvesting except for subsistence uses. Unhappily for the government, this fish tale, like so many others, is about the ones that got away.

Facts

The facts that spawned this controversy are relatively straightforward. Defendants Alexander and Peele are Haida Indians. Peele harvested over half a ton of herring roe on kelp in Southeastern Alaska and enlisted Alexander's help in selling it. However, they had permits for only 444 pounds. Undeterred, they loaded an old Dodge station wagon to the gills with the contraband and trawled Canada for a buyer. Their plan began to flounder when they were unable to hook a buyer and the herring roe began to rot. They then attempted to enter the United States, hoping to unload their now malodorous cargo in the state of Washington. Alerted by Canadian officials, United States Customs agents snared the purloiners of prenatal pisces. ² Defendants were charged with violating the Lacey Act, which makes it illegal to transport in interstate or foreign commerce any fish or wildlife taken or sold in violation of state law. 16 U.S.C. Sec. 3372(a)(2)(A). The jury convicted and defendants appeal.

Discussion

Once again we confront "a dispute implicating two recurring Alaskan motifs: on the one hand, the clash between traditional and modern ways of life; on the other, fish." Kenaitze Indian Tribe v. Alaska, 860 F.2d 312, 313 (9th Cir.1988), cert. denied, 491 U.S. 905, 109 S.Ct. 3187, 105 L.Ed.2d 695 (1989). The juxtaposition of these two motifs is no accident. Many Alaska natives who are not fully part of the modern economy rely on fishing for subsistence. If their right to fish is destroyed, so too is their traditional way of life.

To prevent the destruction of "Native physical, economic, traditional, and cultural existence," 16 U.S.C. Sec. 3111(1), Congress passed the Alaska National Interest Lands Conservation Act, (ANILCA), Pub.L. No. 96-487, 94 Stat. 2371 (1980) (codified as amended in scattered sections of Titles 16 and 43 of the United States Code). ANILCA protects "subsistence uses [of fish and wildlife] on the public lands by Native and non-Native rural residents," 16 U.S.C. Sec. 3111(4), by requiring that nonwasteful subsistence uses of fish and wildlife be given priority over all other uses: Subsistence uses may not be restricted unless necessary to protect the continued viability of fish and wildlife populations. Id. Sec. 3114.

ANILCA, however, is a law without a bite. It does not of its own force regulate subsistence and nonsubsistence uses; it criminalizes no conduct; it prescribes no penalties. In fact, ANILCA does little more than provide a broad outline of what uses must be preferred over others; it leaves implementation to the Secretary of the Interior. See id. Sec. 3115(a)-(d).

ANILCA also contains an opt-in clause for the state of Alaska: If Alaska enacts laws consistent with the federal statute, the federal scheme is stayed and Alaska law controls instead. Id. Sec. 3115(d). "Given the choice between federal regulation or self-regulation with federal oversight, Alaska chose the latter." Kenaitze Indian Tribe, 860 F.2d at 314. It hatched a complex set of state hunting and fishing regulations, all of which, to be consistent with ANILCA, must give priority to subsistence uses. While defendants were not prosecuted under state law, these state regulations lie at the heart of this dispute nonetheless: To sustain a conviction under the Lacey Act, the government must prove that the herring roe was taken in violation of state law. See 16 U.S.C. Sec. 3372(a)(2)(A). ³

I

At trial, the prosecution contended the herring roe was taken in violation of two different state regulations; defendants argue that both regulations are invalid because they interfere with "customary trade," one of the subsistence uses protected by ANILCA. The controversy centers on the meaning of customary trade and, specifically, whether it includes sales made for cash.

A. The first regulation the government relies on is 5 Alaska Admin.Code Sec. 01.010, which prohibits the sale of herring roe caught for subsistence. The question is whether this blanket prohibition is consistent with the priority ANILCA accords to subsistence uses. ⁴ The government insists it is. According to the government, selling fish eggs for cash is, by definition, not a subsistence use. Defendants argue that the regulation prevents Alaska Natives from engaging in a subsistence use called "customary trade." Customary trade, they contend, includes sales for cash. The dispute turns on the answer to two questions: First, is customary trade a subsistence use protected by ANILCA? Second, does customary trade include sales for cash?

The first question has an easy answer: Customary trade is, in fact, a subsistence use. ANILCA defines subsistence uses as:

the customary and traditional uses by rural Alaska residents of wild, renewable resources ... for barter, or sharing for personal or family consumption; and for customary trade.

16 U.S.C. Sec. 3113 (emphasis added). Neither party quarrels with this conclusion.

The second question--whether customary trade includes sales for cash--is harder: ANILCA does not define customary trade. Nonetheless, trade is commonly defined as "[t]he act ... of buying and selling for money; traffic; barter." Black's Law Dictionary 1492 (6th ed. 1990). It appears, therefore, that customary trade could include sales for cash, as well as barter transactions.

Examining the statute further leads to the conclusion that such an interpretation is not merely permissible but necessary. "Barter" is separately listed as a subsistence use, 16 U.S.C. Sec. 3113; if the phrase "customary trade" is to add anything at all to the statute, it must include buying and selling for money. ⁵ The Alaska Joint Boards of Fisheries and Game seem to agree: Their criteria for identifying subsistence uses provides that "customary trade may include limited exchanges

for cash." 5 Alaska Admin.Code Sec. 99.010(b)(7). ⁶ We therefore conclude that the term customary trade includes some sales for cash. To the extent Alaska law prohibits cash sales that are part of customary trade, it conflicts with ANILCA. ⁷

B. The government also contends that the herring roe was taken in violation of state law because defendants exceeded the catch limits of 5 Alaska Admin.Code Secs. 01.730(a), (g). Defendants challenge those limits. They point out that Alaska failed to make an exception for customary trade when it banned sales of subsistence caught fish eggs, see id. Sec. 01.010(d); they ask us to infer that Alaska similarly neglected to allow for sales made in customary trade when it established the harvest limits. We decline to give serious consideration to a challenge based on such speculation. Defendants have presented no evidence of what was or was not considered by the Board of Fisheries in adopting 5 Alaska Admin.Code Secs. 01.730(a), (g); nor have they provided us access to the administrative record of the promulgation proceedings. Because we are unable to make an informed judgment on defendant's challenge to the harvest limits, we reject it without prejudice to its renewal on the basis of a more complete record on remand.

II

Having concluded that Alaska's prohibition on cash sales conflicts with ANILCA, we consider the consequences.

A. The government has an easy answer: There are none. According to the government, the conflict between state law and ANILCA doesn't help the defendants because they failed to petition the Board of Fisheries to change its regulations before they went fishing. The image of these two defendants driving their beat-up Dodge station wagon to the Board of Fisheries to argue that a small section of the regulations is inconsistent with an obscure phrase in a massive federal statute is a bit incongruous; they are fishermen, not legal scholars. Their only meaningful opportunity to challenge the regulations was at their trial. We will not find their challenge precluded "unless there is persuasive reason to believe that such was the purpose of Congress." Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967). ⁸ The government has offered no such reason.

The only conceivable basis for refusing to consider defendants' argument is ANILCA section 807, 16 U.S.C. Sec. 3117. Section 807 creates a civil cause of action for persons aggrieved by the State's failure to provide for subsistence uses. Subsection (c) provides that section 807 is "the sole Federal judicial remedy created by this subchapter." ANILCA Sec. 807(c), 16 U.S.C. Sec. 3117(c).

It is unclear whether this language precludes the defense of statutory invalidity in a criminal proceeding. Defendants haven't requested anything one would normally think of as a "judicial remedy"; they do not seek an injunction, damages or the suppression of evidence. Instead, they ask us to...