U.S. v. Kaiyo Maru No. 53

• Decision Date: 23 May 1983
• Docket Number: 81-3293,Nos. 81-3273,s. 81-3273
• Citation: 699 F.2d 989
• Parties: 13 Envtl. L. Rep. 20,539 UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. KAIYO MARU NO. 53, with its fishing gear, furniture, appurtenances, stores, fish, cargo, et al., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 989

699 F.2d 989

13 Envtl. L. Rep. 20,539

UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. KAIYO MARU NO. 53, with its fishing gear, furniture appurtenances, stores, fish, cargo, et al Defendants-Appellees, Cross-Appellants.

Nos. 81-3273, 81-3293.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1982.

Decided Feb. 22, 1983.

As Amended May 23, 1983.

John H. Bradbury, Bradbury, Bliss & Riordan, Anchorage, Alaska, for defendants-appellants.

D.E. Dennis, Asst. U.S. Atty., Anchorage, Alaska, Donald A. Carr, Dept. of Justice, Washington, D.C., for plaintiff-appellant.

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

Before WRIGHT, SKOPIL, and ALARCON, Circuit Judges.

SKOPIL, Circuit Judge:

INTRODUCTION

The Japanese stern trawler KAIYO MARU NO. 53 ("KAIYO") was seized for failing to log a large quantity of fish and for taking prohibited species in violation of the Fishery Conservation and Management Act ("FCMA" or "the Act"), 16 U.S.C. Secs. 1821, 1857. The district court imposed a $450,000 penalty, rejecting the government's contention that the penalty must equal the vessel's full value. The district court also rejected the vessel owners' ("claimants") arguments that the Coast Guard's search and seizure of the vessel violated the fourth and fifth amendments. The government appeals the district court's ruling on the forfeiture issue. The vessel's owners cross-appeal, seeking review of their fourth and fifth amendment arguments.

FACTS

In the spring of 1979 the KAIYO began fishing in the waters off the remote western part of the Aleutian Islands of Alaska. It was fishing by permit in the Fishery Conservation Zone ("FCZ"), the 197 mile-wide band of ocean beyond the territorial waters of the states in which federal fisheries management jurisdiction prevails. ¹ Early on June 2, the vessel changed from its assigned fishing area to another area which was available to it upon notice given to the Coast Guard. The required shift message was transmitted. ²

Later that morning the Coast Guard Cutter STORIS, while on routine patrol, sighted the KAIYO with its gear down fishing within the FCZ near Kiska Island. The STORIS requested information regarding the KAIYO from its Juneau office and was erroneously informed that the KAIYO had not made the required shift message. The commanding officer of the STORIS decided to make a routine boarding of the KAIYO to inspect her documents and catch, and determine if she was fishing in the proper area.

Without a warrant or probable cause to believe that wrongdoing was or had been occurring, ³ a party of Coast Guard officers boarded the KAIYO. Examination of the vessel's radio log indicated that the requisite shift message had been sent. A comparison of the KAIYO's catch log with the amount of frozen fish in the vessel's holds, however, indicated significant underreporting. A large quantity of halibut, a species prohibited to all foreign fishermen, was also discovered.

A systematic search was undertaken. Results of the search indicated serious violations of the FCMA. The STORIS requested permission from the Juneau office to seize the vessel. The request was transmitted to the Coast Guard Commandant in Washington, D.C., who approved the seizure. The vessel was seized and escorted to Kodiak, Alaska.

The United States' complaint for forfeiture was filed on June 11 and the vessel was arrested by the United States Marshal the following day. ⁴ Following a court hearing, the catch ⁵ was ordered sold by the United States Marshal, and the vessel was released on security pending the outcome of forfeiture proceedings. Shortly after release, the KAIYO's fishing permit was revoked and the vessel returned to Japan.

Trial was held in May 1980, after which the district court concluded that the KAIYO had violated the FCMA and assessed a civil penalty of $450,000.

The United States appeals from the district court's assessment of a civil penalty in an amount less than the entire value of the vessel. The claimants appeal the district court's rejection of their arguments regarding statutory and constitutional infirmities of the search, seizure and arrest of the

vessel. They urge that warrants should have been obtained before the search and seizure of the vessel and that a hearing should have been held before the ship was arrested.

ISSUES

1. Does the FCMA authorize warrantless searches and seizures?

2. Do warrantless searches and seizures under the FCMA violate the fourth amendment?

3. Did the arrest of the vessel by the government pursuant to Fed.R.Civ.P. C (Supplemental Rules for Certain Admiralty and Maritime Claims) violate the due process clause of the fifth amendment?

4. Did the district court have discretion to impose a monetary forfeiture of less than the total value of the vessel?

DISCUSSION

1. Statutory Authorization.

The FCMA provides that:

Any officer who is authorized by the Secretary [of Commerce], the Secretary [of Transportation], or the head of any Federal or State agency which has entered into an agreement ... to enforce the provisions of this chapter may--

(1) with or without a warrant or other process--

* * *

* * *

(B) board, and search or inspect, any fishing vessel which is subject to the provisions of this chapter;

(C) seize any fishing vessel ... used or employed in, or with respect to which it reasonably appears that such vessel was used or employed in, the violation of any provision of this chapter; and

(D) seize any fish ... taken or retained in violation of any provision of this chapter; and

(E) seize any other evidence related to any violation of any provision of this chapter;

(2) execute any warrant or other process issued by any court....

16 U.S.C. Sec. 1861(b). Claimants argue that the "with or without" language of the Act contemplates the use of warrants when practicable and yet affords the authority to proceed without them if exigent or other appropriate circumstances exist. Unfortunately, the legislative history is silent on the matter. Based on a reading of the Act as a whole and considering the objectives of the Act and the circumstances under which it was enacted, we conclude that the above quoted provisions of the FCMA authorize warrantless searches and seizures whether or not obtaining a warrant is practicable or exigent circumstances exist.

The FCMA was enacted at a time when overfishing, particularly by foreign fishermen, was commonplace. Commercial and recreational fisheries for a number of species were threatened because of the inability to effectively regulate the harvest beyond the three mile jurisdictional limits. ⁶ The states exercised some control over domestic fishermen beyond three miles but foreign fishermen were essentially unregulated because of meager federal efforts. The failure of the federal attempts to manage ocean fisheries by treaty and later by the Bartlett Act ⁷ led to a resource problem of crisis proportions. ⁸ It was in this crisis atmosphere that the FCMA was enacted. ⁹

The circumstances of its creation supports our view that Congress intended to authorize the most potent possible enforcement procedures.

Our interpretation of section 1861 is also consistent with the thrust of the FCMA as a whole. The Act requires that foreign nations and the owner or operator of a vessel fishing in the FCZ allow official United States observers aboard the vessel, ¹⁰ and to agree to permit any authorized officer to board and search or inspect the vessel. ¹¹ The Act requires any permit issued be prominently displayed in the wheelhouse and requires that the permit be shown upon request to any officer authorized to enforce the Act. ¹² Moreover, it is a criminal violation to refuse to allow any authorized officer to board a fishing vessel for the purpose of conducting any search or inspection in connection with its enforcement. ¹³ Regulations implementing the Act also require the keeping of extensive records and log books and authorize the inspection of these log books at any time. Regulations also require that foreign vessels keep the Coast Guard constantly apprised of their location and activities. ¹⁴ We agree with the district court that these stringent requirements support an interpretation of the Act that authorizes warrantless searches and seizures.

Claimant's interpretation reads too much into the language of section 1861. If Congress had intended warrantless searches to proceed only when there were "exigent" or "other appropriate" circumstances, it would have said so. Congress had no difficulty in expressing limitations on warrantless arrests of persons by requiring "reasonable cause to believe such person has committed an act" prohibited by the FCMA. See 16 U.S.C. Sec. 1861(b)(1)(A).

Congress was aware of the physical difficulties of obtaining a warrant at sea. We agree with the district court that the FCMA contemplates routine warrantless inspections or searches and seizures as part of the enforcement scheme of the Act.

2. Fourth Amendment.

The fourth amendment protects individuals from "unreasonable" searches and seizures. Its purpose is to impose a standard of "reasonableness" upon the exercise of discretion by government officials in order "to safeguard the privacy and security of individuals against arbitrary invasions...." Marshall v. Barlow's, Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978), quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967).

a. Search

The fourth amendment applies to administrative inspections of private commercial property. Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967).

                However, "unlike searches of private homes, which generally must be conducted pursuant to a warrant in order to be reasonable under the Fourth Amendment, legislative schemes

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