F/V AMERICAN EAGLE v. State

merely which' derive from to liberties

shifting arrangements.’4 EAGLE, economic AMERICAN The F/V ADF&G $100,677.50Representing No. 39 and adoption form which the The consent to 143,825 King lbs. Alaska Proceeds of in this case did not signed natural mother Crab Delivered Pursuant ADF&G she had the contain an advisement E95626, E95627, Appel- Fish Ticket No.’s her consent within ten right to withdraw Cross-Appellee, lant and days. particularly This omission was im- portant placement here because of the child v. parents and execution of adoptive Alaska, Appellee and STATE of simultaneously.5 I consent occurred Cross-Appellant. significance it consider of further adoption consent was executed Alaska, Appellant, STATE parent, natural without the advice of inde- counsel, pendent adop- in the office of the parent’s attorney acknowledged by

tive EAGLE, The F/V AMERICAN ADF&G reasons, For I attorney.6 these con- $100,677.50Representing the No. 39 and mother, clude natural in the factu- that the 143,825 King lbs. of Alaska Proceeds case, al context was denied due Delivered Pursuant ADF&G Crab I, process of law under Article section 7 of E95627, E95626, Appel No.’s Fish Ticket and thus that her Alaska Constitution lee. consent was invalid.7 3973, 3974, Nos. 4023. I appropriate. One further observation is that, majority to avoid fu- agree with the Supreme Alaska. Court of injustice, helpful ture it to include would 21, Nov. 1980. 20.15.070 similar statutory provision AS relinquishment provisions governing parental rights,8 provide would is invalid unless adoption that a consent to parent

it includes a statement has ten-day right of withdrawal. 551, description (1972). because it contained no of what 31 L.Ed.2d 558-59 rights provisions being were waived. actual 651, 1212, 4. 405 U.S. at 92 S.Ct. at 31 L.Ed.2d 67, 94-96, Shevin, U.S. See Fuentes v. quoting Cooper, at 95, Kovacs v. 336 U.S. 1983, 2001-02, 556, 578-79 S.Ct. (1972). 32 L.Ed.2d 69 S.Ct. 93 L.Ed. (Frankfurter, J., concurring). the authorities referred to Unlike opinion, dealing placement we are here with an 5. occur at the court’s Where and consent time, 10-day provision explicit legislative grant right withdraw same of a withdrawal 20.15.070(b) provides opportunity adoption. AS a consent to Given the fundamental beyond relationship importance parent-child reflection the consent decision potentially placement. withdrawal, right granted by emotional moment AS 20.15.- the 070(b), major- I find the authorities cited nothing 6. There is indicate that the record to ity unpersuasive. parent the natural had notice of her withdrawal right in time for her to exercise it within the 20.15.180(b)(1). Compare Indian 8.See AS 10-day period. 103(a), (c), 25 Welfare Act U.S.C.A. §§ Child 1913(a), (c) (West Supp.1980). §§ Although adoption the consent to form that signed the natural mother contained a “waiver provision, invalid of notice” this waiver was

659 Gen., Atty. An- Gissberg, Asst.

John G. Gen., Gross, Atty. Ju- M. chorage, Avrum neau, cross-appellant. appellee, OPINION J., CONNOR, RABINOWITZ, C. Before MATTHEWS, JJ., and STEW- BURKE ART, Judge. Superior Court RABINOWITZ, Justice. Chief civil forfei- an in rem This case involves brought viola- proceeding ture regulating this state’s Alaska’s laws tions of January fishery. On king crab important 15, 1976, fishing vessel was while it by state officials was seized Pelican, The sei- Alaska. unloading crab in .195,1 pursuant to AS zure 16.05.190— regulations prohibiting violating various for during closed taking possession, and season, from the Island Mikkelborg, Fryer, Moriarty, M. Douglas area “O” in Seattle, Wash., king crab statistical Wil- district of Broz, Fryer, &Wells on- The vessel’s Rozell, Faulkner, Banfield, the Aleutian Islands. Doogan liam B. $100,- equal Juneau, gear proceeds and Holmes, appellant, cross-ap- board for & were also the sale of crab 677.50 from pellee. vehicles, sleds, paraphernalia provides: and other tor 1. AS 16.05.190 gear in in aid of a violation of this used or or without warrant and confiscation Seizure title, promulgated regulation this under or tackle, Guns, nets, fishing by traps, court. title, parts game of fish all fish and or vehicles, and boats, aircraft; automobiles or other birds, taken, eggs game and transported or nests or sleds, paraphernalia in used in or and other contrary pro- possessed to the or chapter, or rule or aid of a violation of this title, promulgat- regulation this or may visions of regulation department be seized of the it, may search, forfeited to the state game, ed under be or or all fish and under valid (1) upon eggs offender in a parts game, conviction of the or nests or of fish and birds, taken, proceeding transported, possessed of this title con- of a violation or criminal jurisdiction; trary provisions chapter, competent or rule or to the of this in a court of department competent regulation (2) upon judgment be of the shall a court of or by any persons designated proceeding in 150 of jurisdiction § seized in rem that chapter. Upon conviction of the offend- specified this in aid of was used in or item above having upon judgment regulation pro- of the court er or of this title or a a violation taken, jurisdiction trans- the item was mulgated under it. chap- possessed ported, this or in violation of (a) (b) specified in of this section Items department, regulation rule or of the ter or may action. under this forfeiture be forfeited game, parts them are for- or all fish (c) under this sec- An action for forfeiture disposed be of as feited to the state and shall may joined an alternative action tion sold, proceeds by If directed the court. brought by damages recover the state to proper to the of the sale shall be transmitted game damages or the value of fish deposit general fund. state officer for taken, eggs parts of birds them or nests or tackle, boats, Guns, nets, traps, fishing air- contrary pro- transported possessed or vehicles, sleds, craft, para- other or other or regulation promulgat- or a visions of title provisions phernalia of this seized under the ed under it. depart- regulation chapter, or or of the rule person (d) who It is no defense that court, ment, by unless forfeited order (a) specified this section had the item returned, completion of the shall after possession seizure at the time of its use and fine, any. payment if case and acquitted or in a not been convicted has part: provides pertinent AS 16.05.195 arising resulting proceeding from or criminal Guns, (a) traps, equipment, Forfeiture of its use. out aircraft, nets, vessels, fishing gear, mo- other subsequently parties seized. The state filed a com- order of the dated February plaint forfeiture which in its final exchange posting for the of a bond following specific amended form by $350,000. the owners in the amount of taking possessing king violations: or Trial in this matter was superior held out of season as defined 5 AAC 34.6102 court at Kodiak. court’s final order Region Emergency and Westward Shellfish proceeds directed forfeiture of the crab sale 23,3 prohibited by Orders No. 20 and posted the bond for the release of the 34.098,4 34.090(a)5 AAC AAC and AS vessel. 16.10.2006 January on or about appeal brought This has been by the own- taking possessing king crab out of season vessel, Hansen, ers of the Harold Severin 34.090(c),7 in violation of 5 AAC and AS Hjelle, Tynes, 16.10.210.8 The and Reidar all vessel was later released residents of fishing pursuant stipulated for local to a Washington. allege (1) The owners provides: 2. 5 AAC 34.610 VIOLATIONOF REGULATIONS. It is un- any person lawful for to violate King FISHING SEASONS. be tak- regulations chapter. of this en as follows: September through from 12:00 noon 34.090(a) provides: 5. 5 AAC February 15 unless closed earlier emer- UNLAWFUL order, POSSESSION OF KING gency king crab six and one-half GEAR, (a) CRAB OR KING It is un- (165 CRAB mm) greater inches may in width of shell any person possess unprocessed lawful for possessed; be taken or king crab aboard vessel licensed as a com- (2) during periods opened to be and closed any registration mercial vessel within order, emergency king crab seven and validly registered area unless the vessel is for mm) (191 greater one-half inches or in width open, the area and the is season or unless the may possessed. of shell be taken or person acting pursuant to the authoriza- Region Emergency 30(d), 3. Westward 35(e) Shellfish Order tion of sec. chapter. sec. or sec. of this 4, 1975, perti- No. dated November reads part: nent provides: 6. AS 16.10.200 present level of catch and rate fish- taking prohibited. Unlawful It is ing unlawful king success indicate that the desired person taking migratory migra- fish and Egg crab catch for the Island district sta- tory high designated by shellfish sea areas tistical area willO be attained 12:00 noon the Board of Fisheries inor violation of the November 7. regulations promulgated by the Board of analysis Bering The same of data for the governing taking migratory Fisheries (statistical Q) king fishery Sea area crab indi- migratory designated fish and shellfish in the king cates that the desired harvest of red sell, sell, barter, possess, areas to offer to crab will be attained 12:00 noon Novem- barter, state, give transport offer to or ber 14. state, including migratory the waters of the Egg Therefore Island district of area O migratory fish or shellfish. king fishing will close to crab after 12:00 Bering noon November 7 and the Sea will 34.090(c) provides: 7. 5 AAC fishing king close to crab red after 12:00 (c) any person possess, It is unlawful to noon November 14. sell, barter, purchase, transport king or crab Region Emergency Westward Shellfish Order subject within waters within the state or 18, 1975, part: No. dated November reads in jurisdiction person if of the state EMERGENCY ORDER: king SEASONS, knows or has reason to know that such 34.610. AAC FISHING and 5 possessed WATERS, crab were taken or in contraven- AAC 34.635. CLOSED and 5 AAC regulations chapter. WATERS, of this tion of 34.535 CLOSED shall be amended to read as follows: provides: 8. AS 16.10.210 King 5 AAC 34.610. FISHING SEASONS. prohibited. Unlawful sale or offer It is possessed crab be taken or from 12:00 person possess, purchase, unlawful for a through February noon November 1 15 un- sell, purchase, sell in the offer offer to registration less the area is closed earlier migratory migratory state fish or shellfish emergency order. high knowing taken on the seas King 34.635. AAC CLOSED WATERS. regulation pro- were taken in violation of a fishing prohibited: crab mulgated by governing the Board of Fisheries (a) Egg after 12:00 noon November 7 in the taking migratory migratory fish or Island district .... designated by in certain areas shellfish provides: 4. 5 AAC 34.098 Board of Fisheries or the commissioner. beyond the three-mile territorial limit of jurisdiction regulate had no state beyond the of the vessel al- fishing regulations activities were state waters when the limit; territorial waters three-mile Alaska However, assuming the violated.9 legedly which the vessel was (2) regulations lim- operations beyond were the three-mile are unconstitution- alleged to have violated it, possesses val- we conclude that in rem (3) absence of an ally vague; regulate fishing authority id post-service hear- procedure prompt and a question was precise these waters. This law; process of the owners due denied Bundrant, 546 P.2d 530 State decided admitting statis- (4) the trial court erred sub nom. Uri v. (Alaska), appeal dismissed migration relating to crab tical evidence L.Ed.2d 97 S.Ct. 429 U.S. size; court erred in the trial published one week (1976), a decision fees to the state. awarding attorney’s Eagle allegedly violated after the American cross-appeal, brought The state has state’s In Bundrant upheld we the law. trial court erred in allow- alleging that jurisdiction over crab regulatory exercise of of the vessel to substitute ing the owners three-mile limit beyond fisheries $350,000 forfeiting the bond in lieu of based on federal exclu- against arguments appeal, merit in either vessel. We find no and other doctrines.10 sivity, preemption, ruling. and affirm the lower court’s regulate beyond the territori- power This spend much of boundary, al where I. Jurisdiction over the vessel’s Alaska’s beyond activities in waters shown in that case to be cycle, their life was three-mile territorial limit. economically necessary if the clearly important migratory popu- ecologically whether dispute

There is some over territorial bound- lation within the state’s within operating the American January extending Testimony within miles of lines at trial showed that on occurred three January Ameri- 5 witnesses saw the F/V miles of between headlands or within three Eagle fishing Egg However, can within the closed Island groups in the district. of islands district of crab statistical area O. On pots protection officer testified that state January officers Fish and Wildlife a circle six one-half were found within proceeded chartered a vessel and diameter, did not miles in and the state at trial they eight sets of Island district. There found attempt alleged to show location of buoys identified as from the F/V American specificity. with more violations Eagle. pots pulled. It was One of these 16, January 27 contained baited and buoys crabs. On our in Bundrant v. 546 10. After decision traps belonging vessel were to the (Alaska 1976), Congress P.2d 530 Fishery enacted Egg Akutan Island in the identified south of Management Act of Conservation and district, num- Island seven of which matched (FCMA), provides fish- 1976 which for federal January buoys Alas- bers of the found on management in areas seaward of Alaska’s eries in 5 AAC ka’s territorial waters are defined 39.975(13): boundary maritime to a distance of three-mile (cid:127) Pub.L.No.94-265, 90 Stat. 331 200 miles. waters Alaska” means the “waters of amended, (1976), at 16 U.S.C.A. as codified Boundary north and west of the International (West, Supp.). To the extent 1801-82 1979 §§ including extending those Dixon Entrance between state there be a conflict three miles seaward (A) regulations regulations and federal fisheries promulgated coast; from Act, authority Alaska’s under the (B) extending to lines from headland from regulate been fisheries under Bundrant has to inlets, straits, bays, pass- headland across all es, (West, superseded. See 16 1856 § U.S.C.A. entrances; sounds juris- (delineating Supp.) federal and state 1979 islands, (C) group in- an island or from Nevertheless, area). events in diction this cluding Alexander Archi- the islands of the prior March case arose to the pelago, groups of and the waters between the there were no date of the FCMA and effective islands and the mainland. taking regulations applicable state, federal king relying in the form of on an exhibit at the activity domestic vessels effect map depicts roughly Consequently, we have relied on Bun- time. district American during within the Island drant. the 1975-76 season and the location alleged buoys, maintains that the violations

663 ambiguity ary perpetuated. applica- is to be 546 P.2d at 557.11 Some did exist in the Although specific some of the statutes and regulations, ble as a result of conflict over regulations questioned in this case differ jurisdictional pow- extent of the state’s Bundrant, from those discussed both er. In 1968 the Alaska Board Fish and challenges by fishermen cases involve who 36.040, adopted Game had 5 making AAC it in another state to Alaska laws which reside transport, possess, buy unlawful or sell prohibit taking possession king any king crab “taken in violation of the crab outside the territorial limit of state regulations promulgated by rules and waters, transport subsequent or the board,” if “in any such crab was taken sale Alaska of crab within waters.12 We officially designated waters of that seaward Bundrant, applied therefore reaffirm ” as the territorial waters of Alaska . . .. this case. 430, Hjelle Brooks, F.Supp. (D.C. v. 377

II. vagueness Unconstitutional 1974); Bundrant, Alaska v. State P.2d regulations applied to the F/V 530, crab fish- Eagle. obtaining ermen were successful in a pre- regulation imper-

A statute or liminary injunction against the enforcement missibly vague when the “language is so regulation of this from the federal district perimeters indefinite prohib three-judge panel in Alaska. The unclear,” violating ited zone of conduct are held that the evidence before the court at rights process to due because the law fails prove time did a sufficient basis give adequate type notice of what applicable regulation for an extraterritorial prohibited. City conduct Marks v. only beyond to crab taken the three-mile Anchorage, (Alaska 1972). 500 P.2d limit, but regu- confirmed that Alaska could The owners of the American Eagle argue king fishing beyond late the three- regulations which the vessel was mile boundary regulations if related to a violating accused of are unconstitutionally “nexus inter- legitimate between its state vague identify because fail regulation ests and its extraterri- of certain certainty subject regulation the area conduct, Brooks, Hjeile F.Supp. torial v. the state which was closed at the time of the violations. at 441.13 Supreme People developed, quantitatively 11.The California Court and in and are both Weeren, Cal.Rptr. 26 Cal.3d aspects, their financial in the record before - denied, (1980), -, P.2d 1279 cert. U.S. difficulty discerning us. We have no (1980), penal S.Ct. 66 L.Ed.2d found preservation popula- of its valuable fish jurisdiction charged over defendants with fish requisite tion the for extraterri- state interest ing illegally when the commission of the Furthermore, torial enforcement. charged offense occurred outside of Califor present laws here at issue no conflict with nia’s territorial waters: policies federal swordfish because no federal Supreme The United States Court has held yet promul- been rules that field have as affecting legitimate that in matters its inter- gated under the FCMA. may regulate ests a state the conduct of its Id., 261-262, Cal.Rptr. at 1285- 163 607 P.2d high citizens the seas where no conflict (citations omitted). 86 presented. specifi- with federal law is More cally, recognized the court that a state’s in- supra through 12. See notes 2 8 and State preserving nearby terests in ciently strong fisheries is suffi- Bundrant, 546 P.2d 535 permit such extraterritorial pur- enforcement of its laws enacted for that pose. Judge Wright’s language 13. This is contained concurring majority opinion. Judge Plummer’s by adoption It and en- seems obvious opinion emphasized that state bears the regulations of its forcement control Califor- proof regu- burden of a nexus for to establish prevent depletion very nia seeks to aof activity. Judge lating F.Supp. at 442. By valuable natural resource. Fish swim. dissented, Heydt stating der that the evi- Von very freely their nature move across conflicting dence before the court was too arbitrary those boundaries which are enacted reasonably plaintiffs were conclude that by governmental pur- entities for official prevail against certain to Alaska’s assertions poses. The commercial and recreational val- regulating an ultimate state interest ue of fisheries are self-evident California’s Thus, boundary of the area decision, the seaward the state with this conformity intended to enforce its the state in which regulations to the king amended area was within each statistical regulations the Ameri- at the time of in existence form intent, according to The unspecified. left regu- These alleged violations. Eagle’s can state, boundary to extend was for the areas, each statistical lations established beyond area as far within the statistical area” where consisting “registration of a jurisdiction as state could three-mile limit laws would be enforced state conservation merits under justified in a trial on the king crab re- and maintain protect “to The vessel owners ar- Hjelle criteria. state,” 34.005(c) 5 AAC sources of the only that the reason- gue on the other hand biological influence “seaward adjacent regulations is interpretation of the able infor- would collect zone” where the state regulate only that the state intended protective development of mation for the limit, to the response the three-mile “king crab resources govern regulations intention, a If this was the Hjelle decision. subject jurisdiction to the inhabiting waters of Alas- as “territorial waters phrase such 34.005(d). regis- The 5 AAC of the state.” post- pre-Hjelle and employed ka” in the “comprised as area was defined tration or “waters of Alas- regulations Bundrant statistical area which within the all waters ka,” territorial the state’s which defines jurisdiction subject to are waters 39.975(3),would reason- in 5 AAC waters influ- .state,” biological seaward while the rather than employed, have been ably with- as “all waters ence zone was described subject jurisdiction “waters part which are not in the statistical area boundary of describing the utilized in state” 34.005(b). 5 AAC registration area.” 5 AAC registration area in the version of boundaries of statistical geographic While we 34.005(b) Hjelle. adopted after O, exactly in 5 AAC area were defined by the disagree interpretation with this boundary desig- owners,16 was ambiguity language 34.600. The seaward is evident. depth employed regulations contour.14 in the nated the 800-fathom O, statistical area Island district of ambiguity delineat- Regardless of the occurred, in which violations area, however, registration had described in 5 AAC its exact boundaries prior issued Emergency Orders However, regu- 34.605(c).15 nowhere in the Eagle’s activities to the American any was in- boundary, lations /the if question little district left Egg Island exist, registration tended to between district was closed the entire 7,1975. and the seaward area of statistical area O Authorized fishing November as of 16.05.060,Emergency zone of the same area Closure Orders biological influence by AS Al- of law.17 have the force and effect delineated. limit, Udagak fishing beyond Island tude of (166 degrees Strait on Unalaska the territorial and further long.), stating of a of the effect of extra-ter- 15 minutes W. south that evidence (53 population Unalaska Is. ritorial industry on the crab local line from Erskine Point on degrees Lat., assessing degrees be considered in should 59 minutes N. validity regulation. long.) minutes 45 seconds W. to Jackass (54 degrees Akun Island 06 minutes Point on reads: 14. 5 AAC 34.600 lat., degrees minutes W. 35 seconds N. Description Statistical Area. (54 degrees long.) to Avatanak Point then eastern bound- Statistical area O has as its lat., degrees 17 minutes 30 seconds N. light, ary longitude Cap and as of Scotch long.), longitude and west of the minutes W. boundary long., degrees its western W. (165 degrees minutes of Avatanak Point 1.7 boundaries the 800-fathom and its seaward long.) including waters of Beaver Inlet W. contour, excluding depth the waters of statis- Udagak Strait. tical area Q. supra. 16. See note 9 34.605(c) in full: states 15. 5 AAC Description 17. AS 16.05.060 states: of Districts. Openings Emergency and Closures power chapter (c) limit the of the Egg This does not all Pacific Island district: Ocean designee, longi- or his authorized commissioner waters of statistical area O east of though specifically longer 5 AAC 34.035 authorizes “no needed.” The order states areas, registration the closure of neither its only the rescission is prospective- effective prohibit terms nor those of 16.05.060 AS ly.21 Thus the order cannot be interpreted closure entire statistical area or dis- retroactively fishing authorize crab trict thereof.18 Region Westward Egg closed Island such district as the Emergency Shellfish Orders Nos. 20 and 23 American Eagle to have con- state unequivocally Egg that the Island dis- ducted, prior occurred king fishing trict close to would crab rescinding effective date order. 7, noon on November 1975.19 The bounda- district, ries Egg of the Island already as We therefore conclude that closure of stated, ambiguity are described without in 5 Egg district by Emergency Island Order 34.605(c) comprising AAC as “all Pacific was not “in terms so that men of vague Ocean waters statistical area within O” intelligence common must necessarily guess specified lines.20 geographic Emergency at its meaning differ to its applica- 28, 1975, Order 18, No. dated November tion,” in process rights violation due no way contradicted the earlier Its orders. Stock Eagle’s of the American owners. text “[tjhree states districts remain 3, (Alaska 1974). P.2d Since open,” of which none of those listed was the the other regulations question have been district. Finally, Emergency Island ambiguities amended to eliminate the noted Order No. January dated stat- after Bundrant clarified the opinion, in this ed previously that several emergency issued jurisdiction question orders, extra-territorial in fa- including Nos. and 28 “are state, rescinded effective immediately” because vor there is no need to further require, summarily (5) proportion when circumstances of immature or softshell open change king being handled; close or seasons areas or to weekly periods game on (6) general closed fish or information on condition of emergency emergency means of An king area; orders. crab within the order (7) has force and effect of law after pertaining information to the maximum field announcement commissioner yield king sustainable level crab within the designee. emergency his authorized An or- registration area. adopted subject der under this section is not provides: 5 AAC 34.610 to the Administrative Procedure Act. King may SEASONS. tak- FISHING possessed en or from 12:00 noon November 1 supra. provides 18.See note 5 AAC 34.035 through February registration 15 unless the part: by emergency area is closed earlier order. Registration Closure of Areas (a) The commissioner shall monitor supra. 19. See note 3 king condition of crab stocks in all statistical through areas the use such data and infor- supra. 20. See note 15 practically mation as are available. (b) When the commissioner finds con- Emergency 21. Order reads: No. 32 fishing jeopardize tinued ability effort would the vi- WESTWARD 1975 SHELLFISH REGION king area, registration crab within FIELD EMERGENCY ORDER NO. 32 registration he shall close the area emer- JUSTIFICATION: gency order. Region Westward 1975 Shellfish Field (c) determining regis- whether to close Emergency area, dur- Orders No. 1-31 were issued tration the commissioner shall consider year regulate the shellfish fisheries appropriate all factors the extent there is Region. These Westward remain information available on such Fac- factors. effect may until rescinded. Some of those no are tors which be considered include: longer (1) must needed whereas others remain the effect of overall effort within Therefore, following effect encompassing regis- for a time. the statistical area area; emergency January adopted order is effective tration (2) per 1976. unit of effort catch and rate of har- vest; ORDER: EMERGENCY (3) Region Shellfish Field relative abundance of within Westward through (including comparison preseason Emergency the area in pectations No. 1 ex- Orders 3A) department; through (including 17A) are and 8 guideline immediately such harvest levels as rescinded effective No. promulgated by regulation; and 31 March are rescinded effective 600 due process. due The standards of dural in the any existing deficiencies

comment on federal consti- process Alaska and under the past.22 deprivation proper- of require tutions that a of of law in the process III. Denial due ty opportuni- notice and accompanied by be of the vessel. seizure ty hearing meaningful a time Etheredge v. possible injury. minimize Ea the American The owners of Bradley, 502 P.2d 146 were denied due gle complain they also illicit allegedly used in an property Where forfeiture stat process of law officials vessel, by government is act confiscated gear, and sale utes which the under action, or'-' a no notice pending forfeiture provide seized for no in rem proceeds were prior to seizure. hearing necessary is prompt post-seizure or notice procedure Leasing Calero-Toledo v. Pearson Yacht deficiency, broad hearing.23 Given this Co., 40 L.Ed.2d U.S. S.Ct. owners, in our have raised a opinion, However, prop- when (1974). the seized statutory whether question substantial earning a adequate proee- face used its owner erty scheme on its affords provide (em- (1) applicable regulations does to facilitate enforcement now not tend phasis added): regulations applicable registration area; ES- 34.005. STATISTICAL AREAS AAC protect (2) or conserve does not tend TABLISHED. king inhabiting crab territorial waters Alaska; or (b) consists Each statistical area (3) that the has an insufficient inter- state area, comprised (1) registration of all the king inhabiting in the crab the zone est area which are waters within statistical jurisdiction Alaska; warrant extension waters territorial state zone. (2) adjacent biological infíu- seaward zone, comprised 5 AAC 34.035. CLOSURE OF REGISTRA- of all the waters within ence part AREAS. TION the statistical area which are registration (a) shall the con- area. The commissioner monitor (c) Registration king areas are areas in which the dition of crab stocks in all statistical department apply through shall conservation and areas use of such data and informa- regulations management protect practically in order to as are tion (b) available. king and maintain crab resources of the When the commissioner finds that con- fishing jeopardize state. would the vi- tinued effort (d) Adjacent biological area, influence seaward ability king registration crab within a department zones are areas shall which biological registration he shall close the area emer- to obtain utilize effort gency order. necessary other data and information for the comprehensive formulation of and effective (f) foregoing provisions this section management regulations conservation districts, applicable are subdistricts, sections, also to closures of governing king inhabiting the crab resources any portion of or other However, registration regulations gov- area. a statistical area. registration ap- erning the area will be also UNLAWFUL WITHIN 5 AAC 34.091. ACTS plied adjacent biological inñu- seaward AN ADJACENT SEAWARD BIOLOGICAL with sec. of this ence zone consistent any INFLUENCE It unlawful ZONE. chapter. person king or take crab do other [to acts] 34.010. REGU- AAC APPLICATION OF 010(b) chapter. sec. this ... violation of LATIONS. (a) King 5 AAC 34.610. FISHING SEASONS. any provision Notwithstanding other may as follows: taken chapter chapter, regulations all this non, through (1) September from 12:00 ap- applicable registration to a area shall be February by emergency until closed or plicable biologi- adjacent also in its seaward order, (165 king six and inches one-half cal influence zone. mm) greater may or in width of shell (b) navigating within an Persons on vessel possessed; taken or adjacent biological zone seaward infíuence during periods opened closed to be operations shall conduct their and activities order, by emergency seven and regulations compliance appli- in full with the (191 mm) greater in width one-half inches or appurtenant registration cable to the area. possessed. of shell be taken (c) may suspend ap- The commissioner wholly plication partially of this section supra. 23. See note biological influence zone if he seaward application: finds that such 667 livelihood, proved notice and an op- unconditioned warrant issued Alaska under Rule of portunity to contest the state’s reasons for Criminal Procedure 37.25 Under this rule’s seizing the property must follow the seizure requirements, one of the owners on board hours, within if days, satisfy not due the vessel at the time of the seizure was process guarantees govern- even where the formally notified then of the state’s action. ment interest urgent. seizure is The other owners indicated they in Stypmann v. City County Fran- San fact timely seizure, received notice of the cisco, Lee v. (9th 1977); 557 F.2d 1338 Cir. for prior to filing the state’s of a formal Thorton, (2d 538 F.2d 27 Cir. complaint civil for forfeiture thirteen days seized, after the vessel was attorneys their We question need not reach the mentioned possibility of suing for re- the constitutionality of the in ques statutes lease of the vessel. case, however, tion in The owners had this because it apparent unqualified immediate and right vessel owners were contest justification Jen procedural fact afforded state’s process. due for the seizure be- nings Mahoney, v. 25, 180, fore a judge 37(c).26 under Criminal Rule U.S. S.Ct. Eide, Wiren v. (1971); 30 L.Ed.2d 146 542 Rather than avail themselves of oppor- this (9th 1976).24 F.2d 757 Cir. tunity, The seizure of negotiated owners the release of property and other the vessel gear and its to local fishing by pursuant owners was a judicially ap- entering into a voluntary stipulation of a acknowledged days 24. Wiren the old line within 10 of United after its date. The officer Supreme authority taking States property Court on which the under the warrant rely proposition (1) vessel owners process provided give person that due shall to the from whom or grace premises as a matter of or in property from whose was taken deprive litigant court rules does copy warrant, a of his copy support- of the of the standing challenge require spe affidavits, failure to receipt property for the procedures applicable cific taken, statute itself. or Pizzutti, 542 F.2d at 762. See Wuchter v. copies receipt shall leave the 13, 259, (1928); U.S. 48 S.Ct. 72 L.Ed. 446 Coe place property from which the was taken. Works, 413, v. Armour Fertilizer 237 U.S. promptly The return shall be made and shall 625, (1915); S.Ct. 59 L.Ed. 1027 Central accompanied by inventory a written Georgia Ry. 127, Wright, Co. v. 207 U.S. any property taken as a result of the search 47, (1907); Security S.Ct. 52 L.Ed. 134 Trust pursuant conjunction to or in -'4th the war- Safety Lexington, Vault Co. v. 203 U.S. inventory rant. The presence shall be made 323, 87, (1906); People 27 S.Ct. 51 L.Ed. 204 v. applicant of the for the warrant and Broad, 1, 941, 216 Cal. 12 P.2d cert. denied sub person possession premis- from whose or People Acceptance nom. v. General Motors taken, property es the was if are Corp., 287 U.S. 53 S.Ct. 77 L.Ed. 570 present, presence or in the of at least one (1932). explained past Wiren that these deci person applicant credible other than the light Supreme sions must be read in person pos- the warrant from whose self-imposed Court’s more recent rules of re taken, premises property session or was deciding questions. straint constitutional signed by and shall be penalty officer under the Raines, 542 F.2d at 762. See v. United States perjury pursuant to AS 09.65.012. (1960). 362 U.S. 80 S.Ct. 4 L.Ed.2d 524 judge magistrate upon request shall Wiren, Jennings was not discussed in but held copy inventory person deliver person that a marily suspended by whose driver’s license was sum premises from whom or from whose agency an administrative property applicant was taken and to the challenge validity applica could not the warrant. statute, though ble tionality presented even the statute’s constitu (c) Property Motion for Return of and to question,” a “substantial Suppress Evidence. suspension stayed where the license pending completion had been person aggrieved by A an unlawful search judicial review. may judi- and seizure move the court in the property cial district in which the was seized quasi-criminal pro- 25. The of forfeiture nature property or the court in which the ceedings under AS 16.05.190-. 195 has been rec- property used for the return of the and to ognized by Graybill suppress anything for use as evidence so (Alaska 1976). P.2d Alaska R.Crim.P. ground property obtained on the that the provides part: illegally seized. (b) Inventory. Execution and Return With supra. The warrant shall be executed and returned 26.See note 25 open while during area it was state; Island parties agreed also the bond the proceeds placed sale of question, the the in was one the to have seized season and interest-bearing pending account Hjelle in an suit over the in the plaintiffs named for forfeiture. completion of the suit regu authority state to jurisdictional responsible fishing. late Hansen was apparent the find in owners’ We no merit Eagle’s records of the American keeping requires that process claim that due such circum operating expenses. Under by seized the state for of a vessel owner stances, oppressive to unduly it is not activity abso illegal in has an suspected use knowledge of property Hjelle release the and Hansen with right charge to obtain lute adequate an bond. To posting Eagle’s the of activi of the American control purpose one of this would frustrate permit on board at they were not ty, though even forfeitures, prevent use possible which is to as was alleged infractions the time of the illicit the in further acts. Cale property of Tynes. co-owner Co., Yacht Leasing ro-Toledo v. Pearson 416 U.S. S.Ct. of the bond the forfeiture IV. Error in (1974). While Calero-To- L.Ed.2d proceeds by the and sale ordered suggests process may require ledo due that superior court. property right of to have a to owners seized were they they its return when can show lieu of of the bond in the A. Forfeiture negligent allowing illegal in not aware of or an vessel, order in- and failure to of none the owners property,27 use of in the bond. crease have appealing here demonstrat the seizure argues cross-appeal in its The state completely innocent third ed that are allowing the superior that court erred in the claimants held entitled parties. Unlike forfeit Eagle the American owners of cited to relief from forfeiture the cases $350,000 they posted, rather than re bond owners, three owners of the by the itself, the forfeiture of the vessel quiring all active partners are of ordering increase in the value the vess enterprise operating the business ap rise vessel’s bond to reflect a in the risk of They profits el.28 share stipulation praised subsequent value to the fishing activity. Hjelle skip loss from its crab-fishing whereby vessel the vessel was released.29 pered another summarily Calero-Toledo, petition denied for remission Su- the United States statute; yacht preme upheld Court the forfeiture of a owner car under federal forfeiture marijuana against illegally transport used to had not known of or condoned he return, though for its claim owners even gun illegal carrying in the vehicle alleged silencer yacht persons the owners had leased the to the father, government not had his committing knowledge that crime without owner); negligence United States One opinion used. stat- the vessel would be so XR7, (C.D. Cougar F.Supp. Mercury ed, however: boyfriend 1975) (owner loaned car to Cal. her reject the constitu- would be difficult [I]t pick up passenger airport car at and the property whose had tional claim of an owner boyfriend passenger were seized when privity him without his been taken from heroin; violative of sale of held arrested for Similarly, might be only that he the same consent .... process to the owner due not to return the car proved said of an owner who had no awareness of where record showed she was uninvolved wrongful activity, and unaware illegal possible done and had all use the car’s also had done but that he prevent reasonably expected to could reasonably pre- expected all that could use). illegal property; proscribed vent the use of the circumstance, would in that it be difficult appar- appraised has value the vessel 29.The legitimate conclude forfeiture served approximately $1.5 ently $1.3 to increased purposes unduly oppressive. was not and 689-90, million, including government mort- a federal 2094-2095, at 416 U.S. at 94 S.Ct. equity gage interest to the addition (citations footnotes L.Ed.2d omitted). 471-72 appellants. v. One 1972 Chevrolet 28. Cf. United States Blazer, 1977) (case (9th Cir. F.2d evidentiary hearing remanded for full where competent jurisdiction, superior to deliver particularly

state contends general Port of relying gear court erred on rules It vessel and Kodiak. holding stipu- admiralty law in requires “technically the owners to seize” complete lated served as a substitute bond pots belonging to the vessel and stored limiting re- res, thereby the state’s waters, acting “agents” Alaska bond, rather than a form covery to that provisions state. indicate These an intent temporary bail in order to allow for rights by the state to obtain to the vessel. We no only. release of the vessel hold that However, the document also states superior by error committed the court right by “said release to be final with no [is] in regard. this claimants to return said vessel and relieve themselves of the conditions a thereof until language We look first of the judgment appellate final of this or an stipulation February of to resolve added) (emphasis is and includes entered” by question. this We must conclude that may as a “that the stipulation ambiguous. The reason release vessel itself the is fish,” as the of gear locally indicating document identifies the vessel and state’s lack action, part of res in the forfeiture and in further preventing the interest use of the owners, requires the “on an order of a court vessel its owners.30 by Hansen, Hjelle stipulation That Harold P. Enter- 30. The reads: 4. Tynes Enterprises, prises, Inc. and do Inc. STIPULATION agree agent hereby to act as for the WHEREAS, prepar- the State Alaska is of technically seizing pots the crab of Amer- the complaint to file a civil for forfeiture and they may ican wherever be. damages (copy in the above-entitled matter Hansen, Hjelle That and; 5. Harold P. Enter- attached) prises, Tynes Enterprises, Inc. and WHEREAS, fur- Inc. filing the of this forfeiture agree requirements ther to waive and all complaint according some to authorities pots. State that the seize said crab and; preceded by must seizure res WHEREAS, part in is of the res this case Hansen, Hjelle That 6. Harold P. Enter- Eagle, the vessel American a steel- prises, Tynes Enterprises, Inc. and Inc. fur- gear hulled with own val- agree vessel all her boat promissory ther a execute note $350,000 and; approximately attached) ued at (copy by to the State secured attached) WHEREAS, presently preferred ship the mortgage (copy this vessel is in and custody having policy Alaska State of been of secure endorsement the of insur- pursuanfto seized warrant on the the the for search ance vessel to State of Alaska as and; may appear and their interest of seizure in-the amount WHEREAS, vessel, appraised part value in- of res in case is of unless this pots surance this amount then in of unavailable the number crab now located and; amount insurance can be obtained near Juneau Alaska waters commercially, keeping policy WHEREAS, full said agreeable it is to restore the and effect force for the vessel’s full value may vessel to claimant so that the vessel appellate until relieved of this order or an locally gear, and fish collect her court. IT IS AGREED AND as fol- STIPULATED lows: Hansen, Hjelle Enter- 7. That Harold P. Faulkner, Banfield, 1. William B. Rozell of prises, Tynes Enterprises, Inc. and Inc. fur- Doogan appearance Holmes will his agree & enter not to said ther pots permanently remove vessel and for defendants named herein waive for- from the United States process complaint. competent jurisdic- mal of this service order on an of a court Hansen, Hjelle pots 2. Harold P. Enter- tion to deliver said That vessel Inc., good prises, Tynes Enterprises, of Kodiak in as a condition as Inc. and Seat- the Port seized, excepted. tle, Washington, by through when normal wear tear counsel Wil- hereby liam B. Rozell do enter their claim as plaintiff agrees 8. That State of Alaska may appear, their interests to the res to be simultaneously that complaint filing with complaint. in this forfeited Superi- herein that it will move the Hansen, Hjelle Harold P. That Enter- or Court for release of said vessel claim- prises, Tynes Enterprises, Inc. and Inc. do subject ants expressed the conditions care, hereby custody agree to Stipulation, retake and con- this said release to be final with right by trol of the vessel from State and to hold no claimants to return said vessel any damage harmless State as for and relieve themselves of the conditions may possession judgment after occur the time thereof until a final or an appellate court retaken. is entered. $350,000 proceeds of to be tendered exe- the insurance note for promissory the vessel. How- required by as case of loss of owners cuted ever, ambiguous stipulation agreement lan- recites equally stipulation contains undersigned prom- gear the vessel and its at the time of providing guage, “[t]he approximately the sum of stipulation of Alaska were “valued pay ises to State $350,000.”32 provisions While are the vessel these assessed any fine forfeiture an state to competent intent Eagle by a court consistent American the re- security to ensure retain sufficient “in the event that jurisdiction ...” judgment, vessel itself turn port with- Eagle is delivered to under- interpreted also .. . note shall of Alaska the State [t]his standing parties the bond void,” amount between but be null and “[t]he $350,- would provisions completely exceed this note shall not and insurance due under solely for “[tjhis note is executed satisfy 000” and in exacting state’s interest security to the providing purpose penalty from the vessel owners if forfeiture any fine or forfeiture of Alaska for State willingness was ordered. The to re- state’s stipu- ....”31 may be assessed which lease the vessel so that it could continue to requires the owners to agreement lation be used in local could a lack indicate “in the on the vessel of storing maintaining secure insurance resources for ves- value of the the vessel appraised as well as the amount a decision that requires the vessel was promissory unlikely the note to be used sel” and in further Anchorage this_day DATED in court. of Feb- The amount due under this note shall $350,000. ruary, not 1976. exceed This note shall not be construed as an AVRUMM. GROSS any liability admission of or as an admission ATTORNEYGENERAL that the Eagle’s owner, American skipper By: _ separately and crew collectively or have en- Gerald W. Markham gaged any illegal activity; or as an ac- Attorney Assistant General knowledgement that the seizure of the vessel FAULKNER,BANFIELD,DOOGAN& HOLMES by Eagle of American the State Alaska was legal a is and is valid and action. This note solely purpose providing for executed security the of William B. Rozeil any State Alaska for fine or of of for Defendants by forfeiture which a court assessed ORDER competent jurisdiction. of IT IS ORDERED that the vessel American In the event fine or forfeiture is Eagle presently under seizure be to released against Eagle, entered the American or in the care, custody the and control of defend- authority of the under event that the State subject expressed to ant/claimants the terms Eagle which vessel was seized the American Stipulation. in the by _ if is held invalid a final order of a court or day February, DATED this of 1976. taken, by appeal entry is after of a mandate court, appropriate appellate in the or the Judge Superior Court Eagle is to event the delivered that American port the of Alaska and notice within State full: reads in 31. The note delivery given the of said Attorney is to the office of NOTE- PROMISSORY Alaska, of or event in the General pay promises State undersigned the The fire, totally by destroyed the vessel is lost or any fine or forfeiture of Alaska the sum of sinking or similar accident covered Eagle by a American vessel assessed hull on and the under- insurance the vessel arising jurisdiction competent out court signed’s proceeds said hull interest any or be com- commenced action now of Alaska insurance are tendered to State (90) days, ninety next within the menced deposited Superior- with or the Clerk crabbing illegal any alleged arising out of or United Dis- Court the Clerk of the States the vessel activities Court, then in event shall engaged trict this note November from to have Alaska be null and void and in no further force present State of in the until paid State all the State effect and the of Alaska will take fine shall be said title, any (30) days necessary thirty steps right, final after all release within Alaska appeal Eagle. is taken or if in the and interest vessel American judgment is entered entry days thirty (30) after within therefrom supra. appellate See notes 30 and 31 appropriate mandate aof for violations, reasons for release can ment the return of vessel these but court, apply the state’s concerns either order of the is consistent with equally to treat- judgment. forfeiture security before after a the vessel as alternate for the payment bond amount ensure proper It was therefore promissory Finally, argues note. law, to relevant judge trial to look case final because the trial court’s order of guidance absent forfeiture explicit December decreed forfeiture statutes, stipulation. interpret Fed ship and ordered the vessel's return Kod- have held admiralty uniformly eral cases iak, itself forfeiture of the vessel was the stipulation agreements the value stipulation. intention Under admi- complete vessel generally serve substi law, however, ralty the court must decree res; posted, tutes once limit against forfeiture before final the vessel recovery See to that amount. United judgment against substitute bond is en- Ames, v. L.Ed. 295 States 99 U.S. Ruth, (3d 1927). Cir. tered. The 20 F.2d (1878); v. Welding J. Gotham Marine K. superior requiring later order court’s (S.D.N.Y.1931). Corp., 47 F.2d Such substitution of the bond for forfeiture of agreement stipulations constitute with this rule. the vessel in accord court, involving substitution of a chose place in action owner in against the is indicated same result vessel The bond sued in rem. filed becomes event under Although Alaska case law. give the res which alone is sufficient to form, civil in actions are basically forfeiture jurisdiction. Welding rem J.K. Co. criminal in v. Graybill nature. Corp., 47 F.2d Gotham Marine 334- general P.2d As a (S.D.N.Y.1931). ad Under rules of rule, law, are disfavored forfeitures miralty, stipulation post once a for value is and thus statutes should be forfeiture court, ed with the is once-seized vessel government. strictly against construed free in the same from re-arrest action. See State, 1265, 565 One Cocktail Glass v. P.2d 524, (E.D.S.C. The 42 F.2d 527 Shreveport, (Alaska 1977). The 1268-69 conditions mistake, duress, 1930). fraud, Absent was upon voluntarily which the vessel re stipulation amount of the bond will not are leased not clear government though be raised even value of the Furthermore, from the stipulation. one Ames, vessel v. increases. United States releasing vessel, the reasons cited 35, (1878). U.S. 25 L.Ed. 295 fishing, enable it to is return inconsistent that complains state the above justifications The one of the state’s cases liens operating deal with commercial requiring itself-pre forfeiture of the vessel admiralty under established rules. How In venting illegal fishing. this con further ever, the have been applied same rules text the of the interpretation agree better well to a government proceeding forfeiture owners ment is that in favor of the of the against transporting a vessel for contra vessel, against more whom this substantial Ruth, (3d 1927). band. 20 F.2d 314 The Cir. penalty could be assessed. admiralty The state cases in which also cites courts discretion refuse to used their forfeiture of the was B. Whether bond a stipulated release absent vessels on bond penalty. an excessive of the vessels in case provision for return complain, The the vessel owners of Seal, See The upheld. forfeiture was hand, on the even forfeiture of other v. (S.D.Cal.1929); F.2d 243 United States trial the bond was an abuse of the court’s F.Supp. (D.Del.1953). Memory, discretion to' for under AS 16.05.195 order not lead to But these cases do the conclu all, feiture of none of res. See part, or judge here in inter sion the trial erred State, 565 P.2d One Cocktail Glass v. preting conflicting lan ambiguous (Alaska 1977). They argue 1271 n.ll stipulation ap guage particular regulating law uncertainty proved Limiting as he did. in this case fishery Bundrant prior decision liability owners’ to the amount of forfeiture of the vessel’s of- mitigated the seriousness bond, agree- despite provision Hjelle in addition con- vessel argue fenses. Hansen and owners this evidence should being unduly penalized be- not have been they tend are admitted as it is sta- unreliable, tistically cause were not on board vessel due to the limited size infractions. location of the alleged samples upon the time of the some of the statistical conclusions were Yet the owners admit their awareness of based and due to alterations in the fish appeal Bundrant dur- pendency which conclusions about tickets ing the 1975-76 season and therefore of the dis- from different of crabs average size jurisdictional ques- unsettled nature of the addition, the owners In tricts were based. tion in the courts of this state. We have refusing erred superior claim already regulatory concluded that trial after the obtained admit new evidence gave adequate scheme in effect notice to caught crabs could that smaller alleged. the vessel’s owners of the violations Western District. light position the stated of the own- ers if anything willingness evidences a court, trial by this review “[a] On deliberately existing hopes laws in violate admitting reversed for only will judge that they will be declared invalid at a later relevant, evidence but otherwise prejudicial, part- date. The fact that two of the active of discre a ‘clear abuse if he has committed operation ners in the of the vessel were not ” Zartman, 542 P.2d Poulin v. tion.’ on board when the violations occurred does Chism, v. 1975), citing Davis (Alaska responsibility relieve them of for its 1973). The test 513 P.2d use, illegal already as has been discussed. has some relevancy is whether the evidence taking violations involved proposition tendency in reason to establish profit biological commercial a crucial re- 401; the case. Alaska R.Evid. material state, source of the the existence of which (Alas Hutchings v. 518 P.2d depends regulation on careful of harvest. relevant, rever ka If the evidence In these circumstances we hold that forfei- prejudical where its appropriate only sal proceeds ture of the bond and crab sale value that outweighs probative effect so superior not an abuse of the court’s discre- a clear abuse of dis admission constitutes tion. Zartman, 542 P.2d cretion. Poulin Admissibility V. of certain state evi- (Alaska 1975). dence. testimony, case the In the instant to witnesses who testified to addition evidence, and fish tickets admit statistical seeing Eagle Egg the American Is- were relevant by superior ted the court finding Eagle land district and American Eagle’s question of where the American the district, pots produced crab in that the state caught. likely to have been crabs were biologists game several and fish and offi- arguments be presented Both sides their regarding cials who testified differentials in relia superior regarding the the fore court size, weight, geographical the and locations its prior evidence admission. bility of the and species crab statistical area 0 regarding raised the question was Some study introduced into evidence a on the size evi validity accuracy and statistical and habits of crab in the migratory However, also substantiat dence. introduced this Unalaska area. The state sampling of on its own ed its claims based unlikely in order it evidence to show taken from samples populations Eagle the crabs from the American seized interviews catches and commercial came from the Western District of area fishermen. Alteration with commercial they were where the vessel owners claimed filling in tickets, in the form of fish Egg caught, essentially by showing that in a catch number of crabs data such as the distinctly tend to be Island district crabs from which registration area and from the Western Dis- smaller than those taken, justified by the state were was crabs seized from the trict and that the crabs proc necessary when the fishermen as were of size infor- to submit such required by law essors expected from the Island district. The with the supe- it. broad discretion accorded the supply- mation omitted The sources for awarding rior court in attorney’s only the omitted were fees information identified where appears the award to be processors “manifestly as the fishermen and themselves Lee, unreasonable.” Alaska Placer v. well as Co. samples as direct measurements (Alaska 553 P.2d from catches and observations The award direct of ves- by in this supported case is both Civil Rule any believe sels. We deficiencies in 82(a)(1), allowing the court to award the to its go primarily weight the evidence admissibility, percentage any money judgment rather than its cannot indi- court, from a cated the statute conclude review record “[u]nless directs,” discretion, mis- its sufficiently evidence otherwise and Civil outweigh probative leading 82(a)(2) value and Rule providing that the court shall its admission a clear abuse of render discre- base its award on “amount and value of Likewise, tion. we conclude that the addi- legal services rendered” actions where “[i]n caught tional evidence of smaller crabs in the money judgment is not an accurate the, the Western District does not sufficiently for fee.”33 determining criterion] generalizations refute the regarding fees, $55,000 Awarding regardless of its size reached from the other evidence to judgment relationship against that the superior indicate court’s refusal to owners, vessel “manifestly is not unreason- consider evidence was abuse of dis- opinion able” our for complex litigation cretion. which extended for over years. two vessel owners claim costs. Attorney’s fees

VI. should to the “public be entitled interest” exception attorney’s to the normal award of reject We the vessel owners’ fees to v. prevailing party. See Girves attorney’s of costs and claim that award Borough, Kenai Peninsula 536 P.2d superior to the state was in error. fees 1975); 526 P.2d Gilbert $55,000, advancing awarded state (Alaska 1974). basically This case is 1) the award two reasons its decision: dispute between the state and three individ is a discretion the Court reasona “in the uals, concerning private property valuable precedentsetting, fee” based ble violating regulating seized state laws case, 2) complex nature of the enterprise. The substantial commercial 10% of the approximated awarded amount type economic interest at stake is not of against judgment of the total value which is interest” protected “public additional amount owners “but with an argu exception, we find no merit to this so novelty complexity added due to We the owners’ ment the owners.34 find We will interfere issues involved.” 82(a) money judgment states: In actions where the R.Civ.P. Alaska Party determining criterijon] Prevailing Costs. not an accurate (a) Allowance discretion, side, court, prevailing oth- the fee to be allowed to the in its (1)Unless at- following directs, schedule shall award a court fee erwise commensurate fixing such into adhered torney’s will be fees legal with the amount and value of services money any recovering party fees rendered. costs therein, part of the as judgment attorney’s The allowance of fees by law: foregoing allowed action court in conformance with the CASES AVERAGE IN fixing FEES ATTORNEY’S not schedule is construed as attorney fees between and client. Non- Without Contested Trial regarding 34. We faced a similar issue attor- ney’s $2,000 appeal Bailey, fees on 15% Thomas v. First 20% W $3,000 (Alaska 1980): P.2d 12.5% 539 & n.9 Next 15% O $5,000 10% Next 12.5% determining In attorney’s the amounts of W $10,000 5% 7.5% Over appeal public fees litigation, on interest we O ap- believe that the same are considerations had, attorney’s fees recovery be no Should plicable as at the trial a level. When suffi- by the may be fixed party prevailing public involved, cient interest action, it is there- part costs a as court appropriate fore attorney’s to award full fees discretion, amount. in a reasonable contentions, other that an award for attor-

ney’s beyond the fees above and res forfeit- MOSS, Appellant, Prevace barred, ed in the action is and that certain state granted costs in addition to the Alaska, Appellee. STATE of attorney’s fees award should not have been allowed, No. equally to be without merit.35 ruling Supreme below is AF- Court of Alaska. FIRMED. 5, 1980. Dec.

BOOCHEVER, J., participating. Justice,

CONNOR, dissenting.

I for the same reasons which I dissent dissenting opinion in my

stated in State v. (Alaska

Bundrant, 1976). P.2d See Sieminski,

also in State v. my dissent

P.2d view, juris- does not have my three mile limit. beyond

diction This

proposition by Congress’ strengthened ac- management

tion in fisheries setting up

controls in outward from the three the area Any regulatory

mile limit. activities of the

state in the area the three mile limit outside accomplished

would have to be under the

aegis authority. of federal appeal public on to a successful interest liti- integrated [citations into omitted] [footnote times, gant. may depend At such a decision text], balancing public private pressing litigation. interests involved 35. The owners claim that the state should not balancing such We have utilized test in have been allowed claim costs because

determining attorney’s whether fees should hearing notice on the costs of the date of the against party an unsuccessful assessed required by timely bill was not Alas- served litigated claiming question public to have However, 79(a). ka R.Civ.P. the assistant at- sums at stake in the interest. Where the torney attorney general the owners’ called sufficiently large controversy prompt are offering ten-day period, within the to set a interest, regardless public suit date, mutually hearing convenient offer attorney’s against losing award fees compliance sufficient refused. This is party reasonable. In such has been found 79(a)’s requirement with Alaska R.Civ.P. cases, expense that fear or will the concern hearing “together notice of the be served date significantly litigating deter citizens from ten-day period. with” the costs bill within questions general interest communi- object The owners to the award of costs also ty Similarly, questions inapplicable. plane fare for out-of-state witness. primarily private rights par- affect the explicitly This cost is in lieu of allowed in-state requisite public ties lack the before the court mileage 9(b). Alaska R.Admin.P. award, prohibit an even if some character to public issues are involved. or constitutional

Case Details

Case Name: F/V AMERICAN EAGLE v. State

Court Name: Alaska Supreme Court

Date Published: Nov 21, 1980

Citation: 620 P.2d 657

Docket Number: 3973, 3974, 4023

Court Abbreviation: Alaska