*1 STATE of Alaska, Appellant,
Charles Appellee. BUNDRANT, of Alaska,
STATE Appellant,
Konrad S. URI et al., Appellees. of Alaska,
STATE Appellant, A. Appellee.
Cory KALDESTAD,
Nos.
Supreme Court of Alaska.
Jan.
Rehearing Denied March *3 . all waters of the in-
cluding tributary except all bays Bechev- Bay and Isanotski Strait lat., north of (the 54° 36' N. latitude of Cape lat., Sarichef), south of 60° N. east of the U. convention S.—Russia line of 1867. effort to avoid the eventu- depletion pre-
al of this resource fishery levels, yield serve the sustained Alaska, of Attorney Office General of quota the Board maximum established a Juneau, Markham, Atty. Gerald Asst. W. pounds 23 million of crab for area for Gen., Anchorage, appellant. (5 07.760).1 the 1973-74 season AAC *4 Ruskin, appel- Anchorage, for David B. prohibited possession also or sale of crab Faulk- lee Rozell of Bundrant. William B. regula- taken “in violation the rules and of Banfield, Holmes, Juneau, & ner, Doogan tions board” if promulgated such Fryer Moriarty, Long, of Mik- Douglas M. taken crabs were in waters seaward of the Broz, Seattle, Wash., ap- for kelborg & (5 36.040). state’s territorial waters AAC pellees Uri, others. Kaldestad and quota Bering Sea Area Shellfish pounds Septem- 23 million was reached on S., Levi, Atty. of the U. Edward H. Gen. whereupon by ber field order the Gen., Atty. and Johnson, Asst. H. Wallace area crabbing was closed to until Reed, June Rashkow and Michael W. Bruce C. C., as Washington, D. Dept, Justice, December, 1973, fisher several crab amicus curiae U. S. Court, brought asking men suit in Federal Cal., Atty. Younger, Gen. Evelle J. preliminary injunction against for a en Gen., Rod- Atty. and Boronkay, Asst. Carl and 5 AAC forcement of AAC 07.760 Gen., Walston, Atty. as ami- Deputy erick A three-judge 36.040. District Court for Cal. cus curiae case, Brooks, Hjelle heard and on RABINOWITZ, and J., C. Before enjoined April the state from en ERWIN, and CONNOR JJ. forcing regulations.2 those decision, Following Board re- this OPINION regulations and took pealed enjoined crabbing in the steps govern alternative ERWIN, begin July in the season due to Bering Sea Justice. 9, 1974, issued May the Board 1974. On King in crab occur harvestable numbers possession regulation prohibiting stopgap in several areas of the off the Bering Sea until in the state king of red crab Beginning coast of Alaska. in the late June 15, the 39.690). 1960’s, (5 AAC On the number of fishermen June reg- previous king crab repealed all Board sig- Bering crabs from the Sea increased gear (except the definition result, ulations nificantly. As a in 1969the Alaska 39.105, sections, 5 AAC began Fish efforts to limitation Board of and Game comprehensive area, issued a crabbing 39.975) in with the AAC 34.- 07.100, emergency regulations (5 AAC promulgation which cre- set of of 5 AAC 06.710, 5 005-.940, 03.710, 5 AAC Area” 5 AAC “Bering ated the Sea Shellfish basically 21.910). These AAC as: (BSSA), described 1974). F.Supp. (D.Alaska department game According a fish and promulgated biologist, this was request Fisheries Marine the National parties.” and “other interested Service open pots re- prohibited taking- possession illegal until all crab were system desig- who in a A moved from the area. The fishermen crabs closed area. Hjelle by 5 AAC earlier nation of closures was created had been successful 34.005, were asked the district court for a whereby “statistical areas” case created, temporary restraining order consisting of regulations, new but it was denied. comprised all registration area,
(1) statistical area All the waters within the of the individual cases consolidated subject alleged which are waters this arise from violations appeal state; jurisdiction of the regulations. of these closures related biological influ- adjacent seaward THE INDIVIDUAL CASES zone, comprised all wa- ence A. In No. defendant Bundrant statistical area which ters within the charged superior court with seven registration part are not area. possession migratory counts of shellfish giving appeal The acts rise occurred near (within Paul Island St. three-mile Q, Area defined 5 AAC Statistical October, 1973, on various limit) dates Bering 34.900 as “the waters of the shellfish were taken “upon the tributary including all and Chuckchi Sea seas and the Sea shellfish area” bays except Bay Bechein and Isanotski period during a closed game under fish and lat., Strait . north of 54° 36' N. (cid:127). regulations. statutory board reference (the Cape Sarichef).” latitude 5 AAC *5 complaint 16.10.200, the is to AS 34.910, provided crabbing season reads: open July this area was to on 1974. person is unlawful for a mi- organization of Ber July Prior to gratory migratory fish and shellfish ing (according news crab fishermen Sea high sea designated by areas the board accounts, Seattle), based in called the inor violation of regula- the rules and Institute,” promul “Shellfish Conservation promulgated by tions govern- board upcoming gated their own rules for the ing taking migratory of fish and mi- Bering group’s This rules Sea season. gratory shellfish in designated areas open called for the season to 26.3 June possess, sell, sell, barter, offer to of- flights date Even before that surveillance barter, fer give transport in the large engaged showed a number vessels state, including state, the waters of the fishing Bering in crab In re Sea.4 migratory migratory fish or shellfish. sponse, on 25 the board issued emer June Bundrant moved to jur- dismiss for lack of gency regulations 07.710(b), AAC isdiction, asserting invalidity 34.045, 34.035(c)(5), AAC 5 AAC 5 AAC regulations. Board’s The motion was de- 34.095(c), regu and 5 AAC 34.910. These 27, 1974, September nied on March but on basically put lations opening off the 10, after the federal Hjelle court in had gave season and the Commissioner of Fish enjoined 36.040, enforcement of 5 AAC open and Game discretion to the season judge trial granted reconsidered and “general when order can restored a. i motion to dismiss. can fishing be assured that will legal Washing- be conducted in Bundrant is a a manner which will not resident of jeopardize abiding ton state and is rights law not a resident of Alaska.6 He held is commercial fishermen.” The Commissioner also licenses vessel, Alaska in sued 1965-70and in His notices that the season would Id. Finding 3. See “Board of Fish and Game Emergency” (issued 1974), Appel- June stipulations 6. This information is from en- lant’s Brief No. at 36-37. tered in the record. Id. Billikin, registered in Alaska bers in always process- F. V. was use along gear. During ing ports with its the 1973 sea- facilities in Alaskan because the fragility son he had fished within the king three-mile crab rules out travel to (although period limit during ports. of the vi- more distant olations, 6-20, 1973, only- October he fished defendants Uri moved dismiss on zone). outside the three-mile had an- He grounds, number of lack including processed chored and crabs within the zone jurisdiction, vagueness the unconstitutional every night during period. He main- regulations, illegality and the Harbor, Alaska, tained in Dutch a ware- pots. search of defendants’ crab The mo- house in processing for use his He catch. granted judge, tion was the trial who fuel, food, water, repairs, received adopted the argument defendants’ emergency Alaskans, aid from and used regulations upon these had intruded fisheries data Department from the Alaska were in conflict with an area of exclusive of Fish and Game. established the Out- er Continental Lands Act Shelf and were Uri, B. No. et defendants consequently prohibited by Article ofVI ah, charged were with numerous counts of the Constitution of the United States. possession king crab on several dates C. In No. defendant Kaldestad 30, 1974, 24, 1974, between July June counts, charged with four the first area; within a possession closed three of which are identical charges to the pots area; crab in a closed and with hav- against the Uri defendants. The ing fourth taken crab in a closed area. These ac- count, however, possession charged within place tivities all took from 16 to 60 miles the three-mile limit of shellfish taken ille- from the Alaska (Actually only coast. one gally (this being basically outside defendant, Perovich, charged with fish- charge same that made Bun- ing July before original opening date drant, distinction being Bundrant for the area.) was charged under the old statutory references the com- charged while Kaldestad was under the *6 plaints are (unlawful pos- to 16.05.920 AS emergency regulations). session), (unlawful taking), AS 16.10.200 statutory references the fourth 34.900, 34.910, 34.098, AAC 5 AAC 5 AAC complaint count of the to are AS 16.10.- 34.090(c). and 5 AAC 200,7 34.910, 34.098, and 5 AAC AAC With the exception Vinberg, Emil all 34.090(c). AAC of the defendants in group this are resi- dents of states other than Alaska. Kaldestad’s case was handled below to- gether cases, with the and trial court’s Uri
The conduct cited here as criminal all applied dismissal to it as well. In his place took (in outside the limit three-mile memorandum, judge the that “these noted Bundrant, distinction to charged who is jurisdiction cases do not involve the state’s possession with within territorial waters of ‘landing enact and enforce so-called illegally shellfish it). taken outside charges specifi- laws.’ The in these cases proof state offered setting after their cally wholly occurring relate to conduct pots limit, outside the three-mile the de- outside of Alaska’s territorial waters.” fendants returned to territorial waters. Somehow, the fourth count Kaldes- Although the stipula- record has Uri no escaped judge’s tad the attention. tions like those in regarding Btmdrant ongoing operat- contacts with Alaska while In summary, the Uri defendants are ing Bering Sea, testimony there was charged wholly with extra-territorial activ- in Uri to the effect that American ity crab- prohibited emergency regula- “landing law,” barring illegal high 7. AS 16.10.200 is the state’s on the seas sub- and sequent possession in the state. near posses- fisheries resources charged agement with of the Bundrant is tions. coasts, announcing that taken our sion in the state’s waters shellfish regu- it in of the old contravention outside States re- the Government of United charged Kaldestad is with both lations. conserva- gards proper as to establish activity prohibited extra-territorial high zones in tion those areas of possession in state’s waters contiguous seas to the coasts taken of it in shellfish outside contraven- wherein activities United States regulations. emergency tion of the have been or in the future be devel- defendants, oped and maintained substantial Emil Vin- on a Of all group, rec- scale. berg, of Uri appears on Alaskan citizen.
ord proclamation merely This announced this principle, however, and did establish SETTING GENERAL LEGAL any such fisheries conservation zones. It most long has been held that for step was not until that any of this purposes, the territorial limits nation’s sort was In year Congress taken. point distant from the set at a three miles passed Contiguous Act, Zone Fisheries Although coast.8 low water line on the 1091-94, 16 U.S.C. which established §§ have States and international law United 12-mile zone within which the United historically recognized some limited exer exercises rights States “the same exclusive authority beyond sovereign cise this respect fisheries as it the zone has point (e. g., smuggling), the for control of in its territorial Except sea . . .”11 enjoyed boundary three-mile territorial has as by treaty, modified States’ Urtited great general favor continued for a jurisdiction over fisheries remains at this many years. point today,12 despite increasing calls for establishment of a 200-mile fisheries zone. States, sig
For the United
the first
departure
policy
nificant
came
Meanwhile,
before
had been
there
1945, when President Truman issued a
general
assumption that
the seaward
proclamation stating that
boundaries of
coastal
states extended
to the outer
edges
regards
re-
three-mile limit.
United States
the natural
Court,
Supreme
United States
sources
subsoil
seabed
in United
(First
States v.
continental shelf
seas
beneath
California
California),13
assumption
contiguous
reversed this
but
to the coasts of the Unit-
ruling
authority
that the states’
ends at the
appertaining
ed
mark,
States,
low-water
subject
point
and that from that
to the three-mile limit the “territorial sea”
control.9
*7
proclamation
jurisdic-
was
area of
explicitly
This
exclusive federal
referred
(The dispute
tion.
to
the mineral resources of the
case centered
continental
time,
upon the
exploita-
shelf. At the same
the
is
issue of the proprietary
President
separate
tion of
proclamation
expressing
reserves,
sued a
oil
undersea
but
opinion
premised
this
court’s
inadequate
essentially
nation’s concern with
man
was
disputes
ongoing
Act,
8.
are
method
11.
There
as to the
Thus
the Bartlett
§§
16 U.S.C.
1081-86,
calculating
line,
they
this
but
are
exclusion
vessels from
generally
general,
relevant
see A.
our territorial
was
to
12-
here.
sea
extended
Gross,
States,
The Maritime Boundaries
mile zone as well.
(1966).
64 Mich.L.Rev. 639
p. 537,
infra,
12. See discussion at
on the
Cong.
Shelf
Proclamation No.
U.S.Code
extent
to
the Outer Continental
applies
organic
--Lands
Serv. at 1199-1200
Act
resources.
Cong.
sponsibilities gave thereto rise to its Also of relevance this case are authority area.) mount regarding the numerous treaties North Pa cific fisheries. take note First case We fact The result of the California treaties, there now eleven such af by Congress in 1953 when was reversed fecting species per (SLA), which account for 96 passed Submerged Lands Act cent value of the This act con- manufactured 43 U.S.C. 1301-15.14 §§ products to the of Alaska’s fisheri proprietary firmed title each state commercial resources, fish, es.15 The two treaties which are most rele including lands and beneath vant here are the United navigable waters of the States —U.S.S.R. and within King state, Agreement Crab and the placed the outer boundaries of Japan Coniguous Fishery edge states Zone coastal seaward Agreement. Both of these crab the three-mile limit. bing Japan and the in that Soviet Union pass- session,.Congress In the same also portion of the east of the Unit ed the Outer Continental Shelf Lands Act ed States—Russia Convention Line 1331-43, (OCSLA), 43 U.S.C. which be- §§ Although the Russians are not now gan Submerged as an amendment exercising rights their to a limited crab ultimately separated Lands Act but was season agreement, under the Japanese passage separate from it before its as a apparently do. purposes act. appeal, For of this the heart OCSLA which reads: Although a number of bills have been in- § troduced in Congress compre- create It is (a) policy declared to be the management hensive fisheries scheme United States that the subsoil and seabed Shelf, the Outer Continental has none of the outer appertain Continental Shelf passed to date. to the United subject States and are jurisdiction, control, and power of disposition provided subchap- in this FEDERAL AND FED- EXCLUSIVITY ter. ERAL PRE-EMPTION (b) This subchapter shall be construed appellees’ legal first conten in such manner that the character as tion, stated, broadly fishery regula is that high seas of the waters above the outer tion the sea limit three-mile Continental Shelf and right to navi- is constitutionally an area of exclusive fed gation and fishing therein shall not be authority, eral thus Alaska is barred from affected. legislating therein. This sub contention exactly quite what phrase sumes two “subsoil and distinct constitutional the Just seabed” includes major question is a exclusivity pre ories: federal and federal doctrine, case. The Submerged emption. According Lands to former Act uses phrase “lands provisions beneath certain navigable of the federal constitu waters *8 . and delegate powers the natural tion which to the central resources within such lands government and (43 implicitly police waters” U.S.C. restrict § 1311(a) ), and powers the term thereby “natural of the states and resources” carve out is defined to regulated, all, include fish areas (43 which can be if at crabs U. applicable 14. Wunnieke, Legal This act was made to Alaska 15. Framework E. “The Act, Governing Fisheries”, the Statehood 72 Stat. 339. Alaska Alaska Fisheries Policy p. (1972) 237. 538 course, today it is decision.19 concept is historic Of The government.
by the federal Congress can all that evident that not domains. federal one of exclusive authority of the sweeping reach under pre-emp federal doctrine states. is forbidden to the commerce clause state the allocation tion also deals exclu- delineating the smaller arena of speaks but it responsibilities, federal concern, Supreme Court sive federal recognized is there situations where those upon suggested has the touchstone built authority. It and federal concurrent state Cooley: exercised has Congress that when holds are in subjects of this Whatever partic authority over regulatory national, only of their nature or admit in an indicate in manner to subject ular plan regula- system, one uniform there exclusively fully and to deal tention tions, of such a may justly be to be said with, particular in that regulation state all require legislation exclusive nature premise is yield. The basic must field by Congress.20 supremacy of federal law. difficulty with the criterion has Exclusivity Federal A. aspects application, been in its for few inherently wholly either “na- commerce are fishery Appellees’ contention wholly Al- tional” or “local” character. beyond traditional territorial regulation variety catchphras- though it has used a de federal domain is an exclusive waters labels,21 Supreme es and Court in mod- govern federal principally from the rives recognized ern times has that the issue is regulate interstate authority to ment’s essentially conflicting a reconciliation of manage for and to foreign commerce16 power, national claims of state and estab eign quite well relations.17 only by appraisal can be attained an the fed clause of lished that the commerce competing state and national interests func distinct eral constitution serves two stake.22 govern national to confer on the tions : the states authority concurrent with ment action, congressional f' Absent the famil com matters of interstate uniformity iar test is that of versus lo and, merce, even in the absence of cality : if a falls case within area prohibit
legislation, to
thought
/ commerce
to demand a uniform
“na
that are
certain areas of commerce
rule,
/ national
State
is struck
action
prohibitory force
tional” in nature. The
activity
predomi
If the
is one _^down.
clause was established
commerce
interest,
nantly local
sus
State action is
18
has
compromise”
great “Cooley
accurately,
question
tained. More
times since
been reaffirmed countless
outweighed
whether the
interest is
State
I,
U.S.Const.,
g.,
art.
8.§
16.
21. E.
“direct”
on interstate
com-
burdens
forbidden,
merce are
while “indirect” burdens
1,
U.S.Const.,
8,
I
art. II
art. 6.
§
§
17.
art.
permissible.
DeCuir,
Hall v.
are
95 U.S.
(12
Cooley
Wardens,
v.
Board
53 U.S.
485,
(1878) ;
24
“undue” burdens
L.Ed. 547
(1852).
How.) 299,
539
report
unhampered
Specifically,
in
cious.
1974
commis-
by a national interest
by the
sioned and distributed
operation
Department
commerce.23
interstate
prospect
of Commerce evaluates
has consist
interest
The national
regulation
fishing beyond
federal
state
in
predominate in two
ently
held to
been
territorial waters. It concludes:
regulates in an area
when a state
stances:
assumption
A basic
fisheries
about
nationally uniform
where
regulation is that the substantial differ-
regula
when state
truly necessary,24 and
caught
ences in both the kinds of fish
against out-of-state
discriminate
tions
fishing
and the
itself
among
effort
manufacturers,
threatening to
goods or
states
approach
several
render a uniform
inimical
retaliatory restrictions
provoke
fisheries regulation throughout
these circum
national commerce.25 Under
United States inadvisable and self-de-
stances,
clause invalidates
the commerce
feating.
purported
legislation.
state
expressly
Supreme
The
Court has
single
body
regulatory
juris
with
[A]
regu
distinguish
between
declined
diction
and extra
[territorial
regula
lations of interstate commerce
provide
territorial
would
the most
seas]
In
dealing with
commerce.26
tion
regulation
efficient and effective
prohibitory reach of
either case the
management of the fisheries
resources
by the same
clause is determined
commerce
the area.
submitted
that either
federal
analysis
competing
state and
commissions,
regional
states or
claims.27
experience
regulating
their substantial
court
principles,
Applying these
virtually
aspects
coastal
all
fishing
its
clause
the commerce
must decide whether
superior knowledge
and with their
powerless
the states
renders
peculiar
problems
to fisheries resources
beyond-the
three-mile
fisheries
waters
off their own coasts should
that sin
at
interest
potential
national
limit.
gle regulatory body.28
appears
As to
stake
multi-faceted.
The continued abstention from federal
uniformity
regulation,
need for national
waters,
in territorial
crabbing
appear
doubtful
would
so,29
despite
constitutional
to do
as
of such
nature
Sea is
ap
confirms
wisdom of
traditional
uniformity.
brief
such
jjequire
local,
proach
management
non-uniform
case,
in this
the United
Amicus Curiae
of fisheries resources.
no
for the
government makes
claim
Supreme
Indeed,
Court has held
regulation.
exigency of federal
problem may
if
be national
scope
that local
indicate
other
documents
attempted local
retalia-
solution will invite
regulation might in
be more effica-
fact
Kelly
87,
Washington,
1,
v.
Zook,
728,
725,
302 U.S.
58 S.Ct.
69
v.
836 U.S.
California
(1937) Bayside
;
Fish Flour Co.
1005,
(1949).
3
841, 848,
82 L.Ed.
93 L.Ed.
1008
S.Ct.
Gentry,
422,
513,
v.
297
56
80
U.S.
S.Ct.
Freight Lines, Inc.,
Navajo
g.,
24. M.
Bibb v.
;
(1936)
York ex rel.
v.
New
Silz
L.Ed. 772
962,
520,
L.Ed.
359 U.S.
79 S.Ct.
Eesterberg,
31,
10,
L.
29 S.Ct.
U.S.
Arizona,
;
Co.
Southern Pacific
(1908).
Ed. 75
1515,
89 L.Ed.
325 U.S.
65 S.Ct.
University,
Fed-
State and
North Carolina
(1945).
Regulation
eral
Jurisdictional Conflicts
Inc.,
Seelig,
g.,
F.
A.
29.4
25. E.
Baldwin v. G.
Waters,
United States Coastal
at 12-13
(1934).
L.Ed. 1032
U.S.
Michigan,
26. Bob-Lo Excursion Co.
Aspects
Browning,
Some
State
363-64,
3&40,
68 S.Ct.
in the Marine Environ-
Federal Jurisdiction
ment,
139-40
Trading,
Inc.,
27. Hale
Bimco
(1939) ;
tion
sister states.30
currently
is also
sig-
government
federal
con-
directly
may
lem
be national if
cerned
unilateral extension to 200
than
with the
nificantly
more
one state.31
affects
by
boundaries
nations
miles of maritime
Alaska is the state
it is
that
While
clear
Peru,
restricting
by
such as
access
thus
directly
by the conduct of
most
affected
fishermen,
fishermen to traditional an-
large
Bering
there are
Sea
chovy
grounds.
and tuna
Enforcement of
Washington
numbers of
crab fishermen
against foreign na-
regulations
the Alaskan
example
for
most
processors,
—like
just
tionals could
taken
such a unilat-
depend
be
appellees
on the re-
here—who
States,
step by
inviting
eral
the United
re-
may consequently
It
sources of this area.
ciprocal
by
moves
other nations.
recognized
least
be
that
some other
fishery.
states
in that
have an interest
response
regula-
is that these
The state’s
However,
crabbing
fact that
mere
tions, being
at United States fisher-
aimed
represents
Bering
commerce men,
foreign
not be enforced
will
among and
several
between
states does not
Indeed,
Hjelle v. Brooks.33
nationals. See
preclude
acting.
Alaska from
is clear
regulations
to the extent these
are incon-
“
that
is a
.
.
.
there
residuum of
rights granted
sistent
with
to for-
governing
state to make laws
mat-
eign
pursuant
treaty
nations
to the
power,
ters of local concern which nevertheless in
Supremacy
they
dictates that
Clause
some
interstate
or
measure affect
commerce
yield.
dispute
must
state does not
The
” 32
even,
extent, regulate
it.
. .
some
.
this,
urges
apparent
but
no
that
conflict is
Moreover,
absolutely nothing
there
probable
or even
in view of the
that
fact
regulations
suggest that
are either
these
regulations
promulgated
these
were
at the
by
their terms
their enforcement
urging
agencies
implement
discriminatory against
As-
non-Alaskans.
their treaties.34
suming for the
moment
state does
possible
The
regu-
ramifications of these
jurisdiction
have
crabbing
entire
appear
lations on international commerce
field, there is no reason to think that exer-
speculative
point.
at this
We
^extremely
cise
patently
of this
in a
neu-
that,
feel
absent
further showing
some
provoke
tral fashion
retaliatory
will
re-
impact,
aspect
of the national interest
strictions Alaska’s sister states.
given
weight.
should be
minimal
threat of
agree-
conflict with international
Appellees
also contend
the national
“
foreign rights
ments or
re-
. so
interest
in unfettered international com-
hardly
mote that it is
more than conceiva-
jeopardized
reg-
merce
Alaska’s
ble.” Bob-Lo Excursion
Michigan.35
Co. v.
face,
ulations. On their
these
fishermen,
apply
next
just
to all
court turns
to a consideration
Americans.
Thus,
potential
regulating
there is
for
state interest
conflict with
the har-
vesting
agreements
of crab in the
Fishing
United States
na-
Sea.
practices
largest
tions
now
concerning fishing
single industry
constitutes the
seas,
crabbing
Alaska
Bilateral
is a
example
Soviet
substantial
373,
(D.Alaska
Morgan
Virginia,
F.Supp. 430,
1974).
30.
v.
328
66
377
438
U.S.
S.Ct.
33.
1050,
(1946) ;
Specifically,
supervision of
has
for market
readying
foodstuffs
turn next
the contention
We
pecu-
a matter of
always been deemed
fishery
rep
challenged
liarly local concern.38
resent state intrusion
the field of for
into
affairs,
eign
domain.
an exclusive federal
regula-
that these
This court concludes
many
in so
Constitution does
problem particularly local
tions deal with a
government
national
words entrust to the
fully compatible
import
way
and in a
power
to conduct external relations.
sup-
derive
with the commerce clause. We
Instead,
parcels
aspects of
certain
out
Supreme
port
from the
for this conclusion
politi
power among
affairs
foreign
Maid,39
decision Alaska v. Arctic
Court
departments
imposed
prohi
cal
certain
the court considered the constitu-
bitions on the states. From these constitu
occupation tax
tionality of an Alaskan
from the fundamen
tional references and
ships
beyond territorial
freezer
stationed
premises
system
tal
our
federalism
receiving catches taken within
waters but
principles
flows one of our
basic
most
limit. The issue there was
the three-mile
government:
attempting to tax an
whether the state was
commerce,
af-
Governmental
over external
integral
link of interstate
distributed,
implicit
fairs is not
but is vested ex-
restrictions of
violation
holding
clusively
government.41
that the ter-
the national
commerce clause.
929,
Brooks,
F.Supp. 430,
199,
Hjelle
al
and internation-
mentioned,
As
the result in First
required
al
commerce
result.
negatived by
the Sub
California
court
observed
Act,
merged Lands
but that act did not
purport
rights beyond
to effect
the three-
.
insofar as the nation asserts
mile limit of the territorial sea. Conse
law,
rights under international
whatever
quently, the rationale of the First Califor
of value
the seas
discovered in
ap
nia and Louisiana cases is still
valid
protec-
next to its shores and within its
plied to areas seaward of the territorial
belt,
naturally
tive
will most
be appropri-
belt. And while those decisions never ex
ated for its
any
use. But whatever
na-
plicitly refer
the living
resources of the
sea,
open
tion does in the
which detracts
(the
oceans
motivation behind both cases
nations,
from its common usefulness to
*13
lay
exploitation
in control of
of mineral
may charge
which another nation
de-
resources, particularly oil), appellees argue
it,
question
tracts from is
consider-
logic
equal
that
applies
with
force to
such,
among
ation
nations
and not
as
use
the surface and waters for fish
separate governmental
their
units.49
ing purposes as to use of the seabed and
1950,
exploitation:
subsoil for mineral
in both
response
In
by
to a claim Loui-
instances, regulation by individual
siana
states
jurisdiction
of territorial
as far as 27
could conflict with federal activities in the
shore,
miles from
the Court
in United
defense,
affairs,
foreign
areas of national
States v. Louisiana held that First Califor-
and international
nia
commerce.51
controlled and noted that
The First
Louisi
If,
.
.
.
as we held in California’s
California
ana decisions therefore
case,
among
stand
other
the three-mile belt is in the domain
things
principle
for the
that
the federal
sep
the nation rather than that of the
government
paramount authority
has
States,
over
arate
it follows a fortiori that the
submerged
seas and
lands on both sides
ocean
that
limit
also is.
limit;
of the traditional
with
three-mile
ocean seaward of the
belt is
marginal
law,
19,
constitutional
that
attributes
as
48. 332 U.S.
S.Ct.
L.Ed.
powers
sovereign
these external
of the federal
government
paramount
rights
marg-
has
1666-67,
Id. 332
at
U.S.
S.Ct. at
inal sea.” 420
at
U.S.
Currently pending are bills Supremacy not invalid under clause the “High to enact the Fisheries States, Seas Conser- Constitution turn we vation Act of 1973.” These ex- measures now to question of the extent to which plicitly agencies may authorize of the federal Alaska extend the reach of its laws government regulate police to Amer- power beyond activities of and the confines of its Propo- ican citizens ocean fisheries. territorial borders.
nents are first view that is the appellees (ap- and the United States attempted ex- occasion on which it has to pearing curiae) as amicus argue that a ercise federal control legal authority state has no to extend its fishery strongly resources.75 suggests This control any over fisheries over area out- pre- to us that OCSLA did not have the They side three-mile limit. take the emptive intent which is ascribed it position that the cases of Manchester v. appellees. Massachusetts and Toomer v. Witsell78 upon by appellants relied must be read re- event, any we ultimately persuad- are strictively provide may that ex- ed that under ab- circumstances the ercise only to regulate fisheries any sence of clear indication the federal the limits its territorial sovereignty. exclusivity or pre-emption this area is appellant and the State of Califor- significant. ap- The issue as raised in this nia, amicus, urge strongly as on the other peal is unquestionably import, of crucial hand that such cases must be lib- construed own, for other states well as our and in erally permit fishery order to effective question view the closeness of the —of management. They propose theory that considerable, argu- merit find in we “imperium,” “political” juris- state’s or presented ments on both sides—this is a diction, can extend to activities uniquely appropriate case honoring “dominium,” territory, its boundaries of presumption constitutionality validi- when there is sufficient nexus between ty legisla- which adheres to the acts of our legitimate activities and state interests— ture. This court acknowledges duty particularly management in the area to declare statutes unless unconstitutional of migratory argue fish game. They repugnancy such clearly appears.76 We that not reg- must the be State able moreover acknowledge that our decision ulate fishing of all within the three-mile today may provide the most effective vehi- limit, permitted must assuring 'cle for that this matter will fishing of all outside the three-mile limit last receive prompt and definitive at- those zones im- where there a definite tention final ques- arbiters of such pact integral relationship or an between Congress Supreme tions—the -or the Court fishery control of the resource outside of the United States. three-mile limit and inside the three-mile argue limit. They fishing management STATE FISHERIES JURISDICTION is meaningless if fishermen until may wait particular fishery migrates Having resource concluded that the doctrines outside exclusivity the three-miles limit and pre-emption then are not applicable, these fish without restraint. Cong., Enterprises, 74. H.R. H.R. 1st g., 93rd R. 76. E. United States v. & J. (1973). Leege (D.C.Alaska 1959) ; F.Supp. Sess. Martin, (Alaska 1963) ; In Re P.2d 447 See, g., e. Statement Dr. M. Robert Paul, (1957). 17 Alaska White, Administrator, National Oceanic Atmospheric Administration, Hearings Be- 35 L.Ed. fore the U. House on S. Committee Merchant Fisheries, Fish- Marine and Subcommittee eries and 78. 334 Wildlife Conservation and the En- vironment, Cong., 93rd Sess. 1st
51Q upon high seas duct its citizens appeal- appellant is position While respect to matters with resource standpoint of effective ing from a legitimate interest and where has a State whether becomes question management, with acts of Con- by the there no conflict recognized been has this factor 77, 929). at gress. at 61 permitting (313 U.S. S.Ct. as Supreme Court States United political control. state the extension development in A recent the Skiriotes passed line after of cases came Florida the same cases party cites Each permitting regulation fishing statute ac- lan- from the differing conclusions draws however, tivities both within and without the find, We guage thereof.79 Hodges,83 In Felton Flor- boundaries.82 v. help- particularly to be language of several ap- ida conservation officials arrested the ful. pellant traps operating crawfish outside is the touchstone Florida80 v. Skiriotes during the state’s territorial limits in this area. the dispute for much of crawfishing closed season for in that state. fisherman, Skiriotes, a citizen sponge action, rights brought Felton a federal civil Florida, taking sponges charged with was reg- claiming authority the state had no prohibited diving equipment, wa- crawfishing ulate its territorial controversy state law. There denying process. ters him due and so was occurred within the incident whether affirmed a dismissal of appeals court waters, how- Florida’s territorial without his federal court action on the basis ever; Supreme but United States Skiriotes. It said: no question was of said that that Court concern, power to the state had because approach Following the dictated proscribe activity inside or out- defendant’s inquire must Flor- Skiriotes. we whether Specifically, it waters. side territorial legitimate ida interest in control- has legitimate had a interest found that Florida reg- ling sought it the activities which police power, at exercise of the ap- appears ulate . here. applied the territo- least as far as was pellant’s traps in a crawfish were located conflicting rial waters the absence of adjacent group of reefs Florida Then, reasoning by legislation. Keys, and that the in this area crawfish principle may analogy to the that a nation terri- freely move in and out of Florida’s citizens on control the activities of its own waters, any taking of them torial so seas,81 the court said: high upon clearly would have effect conservation efforts. Under State’s may If control the the United States circumstances, apparent think it these we upon
conduct of its citizens
has an
sufficient
interest
State
seas,
why
see
we
no reason
State
appellant, one of
subject
to enable it to
govern
Florida
not likewise
the con-
1193,
69,
924,
80.
61
85 L.Ed.2d
Massachusetts,
240,
U.S.
S.Ct.
313
79. Manchester v.
139 U.S.
(1941).
559,
(1890) ;
11 S.Ct.
transmute these enforcement efforts into undoubtedly some of them enter Califor- constitutional violations. ability nia during migration. their People shrimp v. Foretich85 the court dealt California to control the with- its waters charge illegal dependent, fish with territorial extent, gear. Defendants, some upon ability who were California citi to limit the zens, extraction shrimp claimed to outside the bed be- territorial waters; yond. they the State of California said were within state The court made waters. preemp- The court also no federal found ruling boundary dispute on the such tion, since actually no federal law conflict- line, defendants were within but also regulations. ap- ed with the state The law noted clearly that the intended the statute plies Californians, noted, only to the court operate dispute, law to area and this was juris- the basis the state’s by fully capable held that Skiriotes was diction, regulated the situs of activ- beyond of prosecuting its citizens own ities. territorial limits. There was held to be no must point We confess this conflict with 16 because that U.S.C. § interpretations of the case various law part section was Contiguous of the 12-mile this area as urged able counsel Act, 1091-94, Fisheries Zone 16 U.S.C. §§ clearly language opinions, within regulation which was not itself a and we an extremely would have difficult fisheries in that zone. approach favoring time one over the other discussing Another case this issue is were it not for a recent decision of the Su- Gherra v. Fish and Game California preme Court of the United States which
Dep’t.86 fishermen, shrimp Certain citi- appears generally tip the balance in fa- California, zens of fished in California appellants vor of the herein. shrimp regular yearly beds until the clo- sure, beyond then a shrimp Alaska;87 fished in bed In United States v. the United limit, partly three-mile the 12- Supreme States noted a Court distinction contiguous mile During fisheries zone. between for the purpose of fish period operated they latter with Ore- and wildlife and the exercise of historic gon fishing permits, and without reenter- purpose establishing dominion for the (N.D.Cal.1973) [unpub- Id. at 339. 86. No. 47823 SAW opinion reprinted Appendix ap- lished Cal.Rptr. Cal.App.3d Supp. 85. 92 pellant’s 2435], brief No. (Cal.App.19T0). 87. 422 45 L.Ed. 2d 109 fishery depleted sovereignty can be to the point fishery where no crab exists. The detri- state: persons ment to all is obvious. en- the fact conclusion Our *20 will analysis par- fish We now turn to the and of game forcement of aspects problem ticular as a matter of the inadequate, extending is of in Cook Inlet police power jurisdiction to the the state’s title law, historic extra- to establish of territorially. on is not based inland waters inlet as na- technicality. assertion The mere of The state argument by has bolstered its waters coastal tional reference to cases from other in states management purposes of fisheries for a law”88 has “landing been upheld extent geographic in
frequently differs
being
within the constitutional
of
as inland
claimed
the boundaries
regulate
a state to
the
activity outside
area
See,
Presi-
g.,
e.
territorial waters.
even
its sovereignty.
of
a
cites
of
number
2668, 59 Stat.
No.
Proclamation
dential
cases which will be discussed in turn.
circumscription
(1945). This limited
In
Hesterberg,89
Supreme
Silz v.
the
on
fishing
or the traditional freedom of
upheld
Court
prohibiting
New York laws
rec-
based,
part,
a
on
is
the
seas
possession
game
the
of
in New York dur-
interest
that
special
the
ognition of
season,
ing
including
game
closed
preservation
has in the
coastal state
of
brought in from outside the state. The
ad-
high seas
in the
the
resotirces
living
stated
Court
that the laws
not
were aimed
territorial sea. Convention
jacent to its
affecting
legality
taking game
at
the
Liv-
of the
Fishing and Conservation
on
state,
protecting
outside the
but rather at
6,
Seas,
High
Art.
ing Resources
game located in the state.
It concluded on
TIAS
17 U.S.T.
If
this basis that the laws
the
did
violate
(1966). [Emphasis added]
process
due
clause
the Fourteenth
prem-
This distinction constitutes basic
Amendment. The Court also concluded
important
opinion
herein
ise in this
and is
unlawfully
laws did not
ines-
recognizes
simple
the
but
because it
interstate commerce because the
on
effect
capable
argument
appellant
commerce was
re-
incidental and
pow-
regulatory
of some
absence
effective
mote.90
er,
totally
state is
unable
the coastal
functionally
Bayside
Gentry,91
In
Fish Co.
preserve
the
protect and
what are
case,
upheld
certain California fish and
In
instant
Court
its fisheries resources.
game
regulated
migratory
processing
laws that
habit
crab are demon-
California,
devel-
sardines
the sar
strated in the record. Most
whether
dines were
within
opmental stages in a crab’s life occurs
taken
the waters of
purpose
little
state and
state or outside them. The
territorial waters of the
found,
regulation,
fishing
is
in such waters be-
the Court
was to con
for crab
done
during
serve for food the fish
cause of the condition of
crab
found
state wa
provisions
However,
regulated only
move
period.
the crab then
ters.
manu
state,
deeper
feeding,
facture within the
their
into
waters
etc.
direct
any
operation,
actual,
con-
fishing begins.
wholly
the absence of
intended and
areas,
any
the entire
local. The
found
in
trol over these
stock
Court
effect on
opinion,
40-41,
“land-
88. As mentioned earlier
in this
Id. at
29 S.Ot. at
ing
prohibit
posses-
laws” are laws which
79-80.
transportation
game
sion,
sales or
fish or
80 L.Ed.
91. 297 U.S.
in a
are
state which
taken
violation of
regulations.
laws or
89. 211
terstate and
commerce to
ly
indirect,
incidental,
pur
qualifies
Alaska’s
whether
interest
as one
poses
recognized
legitimate
pol
extent the
for a
legislation.”
To the
exercise of
yes—
power.
clearly
laws dealt with
use or treatment of
ice
answer
outside,
brought
fishery
fish
into
state from
there is
established
with clear
stated,
impact
legal justification
fishery
their
economic
Court
ground
operated
they
migratory
on
area. The
habits of the
rested
crab
depletion
predictable
“as a
the covert
shield
outside the
supply,
depends
growth
to ef
limit
local
three-mile
and de
thus tend[ed]
by rendering
velopment
policy
fishery
fectuate the
of the law
within the
If
limit.
easy.”
destroys
evasion of it less
outside the three-mile
the re
limit
*21
outside,
similarly destroy
source
it will
the
upheld
Other courts have
similar laws on
resource inside the three-mile limit. If the
each,
similar
In
found
bases.94
the courts
of Alaska
protect
State
cannot
this re
power
police
that it
a valid
was
exercise of
police power,
source under its
then such
attempt
for states
to
fish locat-
to
conserve
power is far
any
more limited than
re
ed in
fur-
state waters. The courts found
case
corded
reveals.
right
ther that
to
this
includes the
prohibit possession
fish
outside
taken
doWe
not find that the state’s interest
or,
Oil,
Crus
state
in the case of Santa
in regulation
position
is
as limited as
supra,
permit
any
require
fishing
to
for
adopted
by appellees
by
asserted
waters,
operating
boat
in
if the
state
even
Hjelle.
in
three-judge federal court
caught
boat
of its fish
all
outside
state. Hjelle court based its decision on the con-
Courts have found the effects of these
purpose
that
landing
clusion
laws on
inciden-
interstate commerce to be
beyond
laws
towas
the crabs
necessary
prevent
tal
possible decep-
to
limit, not within
said:
it. The court
by
might
tion
the fishermen:
fishermen
This line of cases leads us to conclude
otherwise subvert the conservation efforts
proffered
that Alaska’s
nexus between
by
fishing
in
states
state waters but
legitimate
regu-
and its
state interests
claiming
they
beyond
that
took their catch
of certain
lation
extraterritorial conduct
those
The inability
distinguish
waters.
to
pass
would
muster if its
constitutional
fish taken
the state
those
within
tak-
regulations
conserving
were
directed
en outside
render
would
enforcement of
fishery
the crab
Alaska’s
within
waters
the state laws difficult at best.
area, and,
by regulating
that
crabbing in
Appellees
by
counter
asserting,
enforcement,
to
order
facilitate
posited
Brooks,95
Hjelle
v.
that a state
possession
prohibiting the
of crab in the
may regulate
only
extra-territorial conduct
season,
during
the closed
even if
if
regulations
facilitate conservation of
caught
that crab were
outside
state.
clearly
resource
within
They
the state.
Despite the
regula-
state’s claim that the
then
position
take
major-
that since the
ity
tions are on “all
of all
fours” with these “land-
king
for
crab occurs out-
limit,
side the three-mile
only
cases,
find,
crab
ing
that
law”
we
after consider-
molt,
come inside the limit to mate
ing
language
regulations
there
simply
is
protected
state fishery
no
presented
the affidavits
be
. “rea-
regulations.
sonably certain” to
that
establish
92.
(1934) ;
Id. at
Hjelle, while seemingly
higher
applying a
ing applied
equally applica-
one area is
standard, failed to consider either Skiriotes
ble to the other.
Witsell,
or Toomer
supra.
cases
Those
Appellees urge
reading
a
restrictive
clearly found
sufficient nexus on
min- Skiriotes101 to limit the extra-territorial
proof
imal
of “nexus” while extra-territo-
control
solely
over fisheries
to residents of
rial
clearly
was
necessary to
the State of Alaska. The effect
such a
preserve migratory
a
resource.
result is obvious from both a conservation
practical
and a
standpoint.
Finally,
Hjelle
in
specifi-
court
fact
cally recognized that other “nexus” might
If the
has
authority
regulate
no
well sustain the
in question if
non-resident
fishermen of a migratory
Florida,
Skiriotes v.
concept of “citizen”
the Skiriotes
authority
broaden
has
effective
species it
no
fishery
nationals, and
encompass all American
in
fishery.
noted
As
Bering
if
most
not all
Sea
hence
Hjelle v. Brooks:102
in
opinion
dissenting
crabbers,
nexi
because of their numerous
population
king crab
Bering Sea
The
with Alaska.
Marine
by the National
obtained
data
that
establishes
Fisheries Service
theory
mainly
The state’s
is based
fisher-
capacity of commercial
present
case,
general
one
but it draws on certain
far exceeds
king crab
take
men to
principles of domestic and international
yield
sustained
maximum
estimated
law
as well. The one
Jacobson v.
case
Biolo-
Area.
Shellfish
Maryland
Commission.104
Racing
Jacob-
productivity of
agree that
gists generally
son,
hors-
owner and trainer of race
a
absent
fishery
sustained
cannot be
es,
Maryland
as such
licensed
which
as that
such
scheme
regulatory
Racing Commission. A rule of the Com-
presently
.
plaintiffs
attack.
prohibited
a horse
mission
resale of
in
aft-
claiming
days
claimed
a
for 60
race
distin-
Further,
forced to
if a state is
er
race.
three hors-
claimed
and citizens
its own citizens
guish between
Jacobson
days
Maryland
ines
race and within 60
giving extra-territorial
states in
of other
sold
them New York.
Commission
laws, the state’s own citizens
to its
effect
thereupon
licenses,
suspended
his
objec-
legitimate
easily frustrate the
can
Ja-
petition
filed
asserting, among
cobson
tranferring
simply
laws
tives of these
things,
Maryland
other
rules could
An
to another state.
citizenship
their
ac-
applied
his out-of-state
easily
example,
citizen, for
could
Alaskan
court,
pointing
tivities.
after
out
by trans-
laws
effect of Alaska’s
avoid the
only by means of a license from the Com-
Washington.
citizenship
his
ferring
ap-
engage
racing
mission could
hardly
same as that
one
reality is
This
it is
parent
issues since
international
Maryland,
by the
held
bound
Jacobson
difficult,
considerably
ad-
and less
more
very
Commission’s rules.
It invoked the
nation to
a citizen of one
vantageous, for
general proposition that
acts done outside
citizenship
his
to another nation
change
produce detrimental ef-
nation’s
of his
order to avoid
effect
justify
punishing
fects inside
a state
Hence, a
fishing laws.
extra-territorial
he
caused
if
had been
who
the harm as
he
citizenship limita-
reading
narrow
present
place
at .the
effect.105
suggested in Skiriotes
lead to
tion
could
*24
also
Skiriotes and
cited
declared:
of a state’s ex-
deliberate frustration
sug-
fishing
tra-territorial
state
laws. The
think
had
that
become
We
Jacobson
instead,
important
acceptable
gests,
and
racing
Maryland
citizen
as the
of
far
widening
by
of the usefulness of Skiriotes
purposes
effects
are
and
Rules
reading
concept
its
If
“citizen.”
acquired
concerned and that this State
may
Alaskan
personal jurisdiction
citizens
restricted
him
sufficient
Bering
crabbing,
regulation
their
Sea
racing
permit
of licensed
matters
very
will
in managing
not be
efficacious
to enjoin
him Rule
.
and to
80
theory
stock.103 But the
punish
state’s
would
disobeyed
him if
that
he
rule.
F.Supp. 430,
(D.C.Alaska 1974)
Daily,
444
221
Strassheim
105. See
(dissenting opinion).
(1911) ; United
S.Ot.
posits thereby- the defendants have opinion win’s which deals with the issues citizens” of Alaska. fishing become “crab exclusivity of federal pre-emp- and federal persuaded that the Although persuasively are not tion. we Erwin demon- Justice concept a “crab strates that crabbing state’s creation of the Alaska’s particularly helpful both citizen” within and is territorial seas —or is appropriate entirely compatible find Jacobson to even do with the federal con- —we stitution precedent existing legislation. afford sufficient rational to con- and federal However, regulations appropriate in this case I deem it express clude that Alaska’s my regarding permissible proper do views not amount to more than and reach logical police police of state powers extention of the state’s in the absence of power.107 Therefore, paramount authority. all federal we find that persons charged. properly herein were significant ap- I think it In order that there is no confu pellees in this prosecuted matter were un regard holding, sion with reiter to our we der different regulations statutes and ate that the difference in status between which deserving are analysis. of individual each jur offender not Alaska’s does affect Appellee prosecuted pos Bundrant was for appellee isdiction over him. Whether the sessing, waters, within Alaska’s crab taken Vinberg), was an Alaska (as resident in high seas area that had been closed was arrested within the limit three-mile fishing.1 Such conduct has been criminal (as Bundrant), was or was arrested ized 16.10.200, provides AS : high Bering (as seas in the Sea crab area person unlawful for a migra- Uri), proceed State to en tory fish and migratory shellfish in force its crab herein sea designated by areas Board appellee. said Fisheries or in violation of the regula- These cases reversed and remanded tions promulgated by the Board of Fish- confomity further consideration eries migratory governing taking of opinion.108 with this fish migratory and desig- shellfish in the sell, nated possess, sell, areas to offer BURKE, JJ., and BOOCHEVER barter, barter, give transport offer to participating. (1934), Florida, P.2d stipulation Bundrant, Skiriotes 106. The No. 85 E.Ed. 1193 to' similar facts which the state offers (1940).” prove cases, effectively in the establish other daily crabbers use of make 108. By herein, our virtue of decision we facilities, Alaskan territorial waters legal pass arguments did not on other ad probably could not continue crab by appellees. vanced decision the trial using area without Alaskan shore-based fa- court was based on the doctrine cilities. pre-emption, he did not consider other *25 consequently find in com- ourselves We grounds Clearly argu for dismissal. these agreement analysis plete suggested in may be ments renewed the trial court. unreported Thompson, United v. an States applicable regulations District the decision the Court 1. The relevant (No. Or., alleged for the of Alaska time of conduct District A-87-72 Bundrant’s criminal 15, Br, 07.100, 1972) appendix, 2295], regu Ant which defined the [see Dec. were 5 AAC 07.760, latory question, the where court concluded that the constitu- area in and 5 AAC propriety by the a tional of an effort State of which authorized closure of the area when quota polar hunting pounds king to crab Alaska the bear of 23 million quota “activities and the area [who of American citizens were met. The was reached (cid:127) 9, September on the seas and Bun- Alaska] non-residents closed effective adjacent subject shortly to not censure occurred thereafter. Alaska is to drant’s actions light Gentry, of Johnson v. 220 Cal. 557 state, Indeed, the waters of the including in the sources within the state. AS state, migratory legislature shell- 16.10.180 migratory fish or the stated much as rather explicitly: fish. legislature legislation is recognizes indistin- and
Functionally this finds “landing laws” these facts: guishable from so-called a sustained as courts have which numerous (1) Migratory migratory fish and powers.2 Al- police of state valid exercise shellfish present quan- in commercial an have though unquestionably laws these tities inside and outside territorial on conduct territorial effect waters of the state. state, legitimacy their derives of a confines (2) Migratory migratory fish and objective is the that their from fact shellfish taken from the waters state natural preservation important cases, state are indistinguishable, in most impair resource, would the loss of which adjacent high those taken from the par- health, safety, and welfare of seas. Thus, equally 16.10.200is ticular state. AS (3) quantities Substantial migrato- police powers legitimate as an exercise ry fish migratory and shellfish in- move of Alaska that the State if it can be said shore intermittently and offshore and at crab migratory interest in the has a valid various during year given times and I its territorial waters. resources within doing so often enter and leave territorial at bar demon- in the case think record waters of the state. an interest. such strates that Alaska has (4) To migratory conserve fish that crab exists we evidence have Here and migratory shellfish found inside throughout Alaska’s waters within waters of the state necessary it is evidence, this according and to the year,3 strictly enforce local and regula- laws fishery subject to constant resource is tions. stages of harvest.4 when Even (5) By regu- making certain laws and remain molting mating these crabs passed promulgated lations for the larger marine both man value fishery applica- of the coastal otters, seals Walrus, fur ecosystem. sea areas, ble to adjacent high sea en- mammals marine variety other regulations forcement these laws depend waters territorial inhabit our is facilitated. food.5 source of major king on crab as wa- Thus, in Alaskan population (6) the crab regulations Conservation should importance to those is of inestimable promulgated impose ters not be economic depend our livelihood lives and whose sanctions.
marine resources.
It follows that
is ful
AS 16.10.200
ly
landing
as a
sustainable
conventional
promul
Although
landing
authority
law and
under the
may
legislation
of this
gated
fulfillment
cases,6
law
val
appellee Bundrant
artfully as some
have
drafted
been
prosecuted
idly
possession
king
for
crab
wish,
no reason
doubt
I find
would
provi
within the
violation of that
enacting
objective in
AS
legislature’s
sion.
re-
protection of marine
16.10.200was
Gentry,
g., Bayside Fish
v.
Co.
6. E.
challenged
example,
Compare,
stat-
;
L.Ed. 772
U.S.
Sehoettler, 46 Wash.2d
in Fraeh v.
utes
Eesterlerg,
31, 29
Silz
Gentry,
(1955),
Johnson
P.2d
Sehoettler,
(1908) ;
Frach
P.2d 400
220 Cal.
(1955) ;
John
to state The criminal tice provides Erwin’s view that Skiriotes al- charges of these which form the basis adequate validity foundation for the legedly Bering occurred in Sea against action appellees. these That desig- coast, in off an area to 60 miles case is one larger manifestation of the Q. registration nated as area principle that a apply state sanctions activity legislature has criminal attached outside its borders has a regula- substantial, sanctions direct to the violation such and foreseeable deleteri- ous by and AS effect tions the terms of AS 16.05.920 within the when it Thus, legality pros- these 16.10.200. undertaken a citizen aof sister state depends upon who significant ecutions whether the state has juris- contacts with the may validly crabbing Thus, its diction. apply my opinion, prosecu- tion occurring remaining appellees this conduct territorial under the waters. emergency regulations is also a valid exer- cise police powers. state’s one,
Among
appellees
Emil
these
there is
Vinberg,
a citizen of the state
who is
In summary, therefore,
landing
law
Alaska. It is
Flori-
clear since Skiriotes v.
cases emanating
Hesterberg,
from Site v.
da,,
U.S.
61 S.Ct.
85 L.Ed.
559
dominium,
seas,
e., imperium,
than
rather
laws,
i.
mani-
application
torial
of criminal
shrimp.
over
Skiriotes,
remaining
the
part
in
fested
appellee Kaldes-
appellees in
et
and
Uri
al.
First
The rationale for the
California
their con-
prosecuted for
tad
also be
important. The court reasoned
decision is
I
new
and
break
duct.
Erwin
its
control
the sea and
resources is
that
Justice
recog-
all,
expressly
only in
ground, if at
up
so bound with international affairs and
principle.
nizing that broader
question
“is a
national defense that it
such,
as
among
consideration
nations
CONNOR,
(dissenting).
Justice
separate governmental
not
their
units.”
dispute
1666,
whom the
35,
Like the crabs about
at
which national . interpretation of is and ments. Therefore the The outer Shelf not Continental context boundary of OCSLA the of international law never has been within the relevant, Territory, is, conclusive, is if not as any it to its State or there- meaning. likely It that fore, uniquely an area of Fed- does not seem exclusive language, sections, jurisdiction same eral and control. indeed the same report Department could meaning have a different in interna The states part: meaning preemption tional from its law for United, purposes. States v. Cf. California is, ‘This—that the outer Continental 139, 165, (Second California), 381 U.S. area, Shelf—is a Federal outside State 1401, 14 (1965); L.Ed.2d 296 United boundaries, and give to the states a sort 16, (5th Ray, States F.2d Cir. of extra jurisdiction territorial it is 1970). unnecessary and The undesirable. situa- comparable rights tion is not that of of nations to federal- to the resources of ly State, clearly owned areas within a to continental shelf were more de- as by which fined in State law has some measure of international law Geneva applicability. Shelf, Particularly the Convention on the in view of Continental 471, U.S.T. intermingling (1958). national and interna- T.I.A.S. 5578 Article area, 2.4 rights important provides tional of that convention Government, natural appertaining that the Federal has which resources to nations include, responsibility handling foreign shall for relations, have the exclusive control of organisms “living sedentary belonging to ” lawmaking and law enforcement there.’ species, which, organisms say, is to stage, An the harvestable are im- amendment certain senators either mobile on or under would have extended state the seabed or un- to except physical able Shelf, including to move in constant Continental the “con- states, servation contact with laws” of the the seabed or the subsoil.” defeated. Cong.Rec. 7228, That crabs are included in that classifica- importantly, language Most the stat- past dispute tion is country. in this See ute (43 itself pro- U.S.C. 1332 (1953)) Agreement § Between the Government of vides “jurisdiction, for federal control, and the United States of America and the Gov- disposition.” This appear would ernment the Union Soviet Socialist encompass considerably more than mere Republics Relating King Fishing “ownership”. Crab, [1965] U.S.T. T.I.A.S. No. high seas of the waters above the outer believes that crabs were not intended to be covered 1332(b) OCSLA does not affect “the Notwithstanding all the OCSLA. 43 U.S.C. § expressly provides this, character majority that the as et Socialist and the S.T. for King and Tanner ernment of the United art. Government of T.I.A.S. 1; Republics Relating Agreement No. Crab, States of Between Union art. [1973] 1 (exten- America Fishing 24 U. Sovi- Gov- sion: December 1974). Continental Shelf right . therein greatest rights . .” order to vest the true principal against foreign gov- concern of United Congress States was with mineral deposits, living ernments, the terms of the OCSLA must H.R.Rep. resources. See be interpreted broadly light No. 83rd of later de- Cong., velopments. 1st Sess. itBut should be court has even held that One recognized that the language of the OC- the extent that any the terms of “[t]o SLA was at the same time attempt are inconsistent with the [OCSLA] establish the policy adopted of the United States to later Geneva on the Convention
§61 they only by government the federal when Shelf, be consid they should Continental marginal are taken the three Ray, outside mile superseded.” ered SLA, 43 provisions sea under the Cir.1970).2 I see U.S.C. (5th F.2d however, OCSLA, 1301(a) (b) inconsist nothing in the § interpretation are a that crabs ent with the validity this conclusion can be *29 shelf, and continental resource of the by approach. Let us as- tested inverse as States appertain to the United hence sume, arguendo, that cannot be OCSLA against governments, and state construed to include crabs as a resource the water above. rather than column the seabed conti- subsoil and of the outer this to Ray, supra, found United States v. nental still follow that shelf. does not “sedentary coral, be also a the case with SLA, preemption. there is no 43 U. Read, course, species”. Of Guess provides: 1302(1953) S.C. § denied, cert. (5th Cir.1961), F.2d “Nothing chapter this shall be 957, 82 L.Ed.2d 388 U.S. any rights deemed the to affect wise totally is in (1962), by majority, the cited of the States natural re- United to the applicable that the agree All would here. portion sources and of that of the subsoil pertaining to the the treaties OCSLA and lying seabed of the Continental Shelf rights the continental shelf do not affect seaward of lands and outside of the area sea, air above or the water column the waters, navigable beneath defined in as above the shelf. title, section this all which 1301 of portions legis- upon Reliance various appertain natural the resources relationship history dealing lative with the States, jurisdiction control and the begs of the the “fishing rights” OCSLA to the con- by United States is question. included in Whether crabs are (Emphasis added) firmed.” fishing rights or are a resource of the language I would find that the above from floor, purposes pre- ocean act is preempts regulation beyond the SLA cisely question at the issue here. Senator marginal the three-mile The section sea. only language Cordon’s indicates cannot be the limiting read as effect rights believed for “all ma- Senator import that is SLA. While the rine life the land beneath the above part section, language itself first the (emphasis seas” added) were included emphasized specifi- goes above further Sen.Rep.No. OCSLA. See 83rd cally “confirming”3 “jur- exclusive Cong., crabs, 1st Sess. But in both isdiction and control” as the states. law, above, international as related section, Under this it makes no difference municipal Act, law, United States Bartlett whether crabs are crea- conceived of (1964), U.S.C. are creatures of § tures of the shelf of the wa- continental floor, sea belonging and not fish to the it; column ter the section reserves above water column “above the land itself.” jurisdiction to the and con- United States I crabs, conclude that as a resource trol over resources” “all . natural shelf, the continental regulated sea, marginal be outside the and 43 U.S.C. § Supreme Supreme yet The United States Court used a the more Court chose concluding usage. similar rationale in the defini- I know of no modern international provided interpretation why tions in The Convention the Ter- reason method of this Contiguous applied ritorial and Zone Sea should not also to OCSLA. 1958 should be used to define “inland waters” Submerged ap- By using “confirm”, under Lands Act. United word it would (Second Congress California), pear thought control California marginal al- resources sea outside by case, Depart- ready government 2d 296 In that State in the federal vested opinion my passage ment letters from the era of SLA First case. California actually above). adopt- (see contradict the definition later that belief was erroneous ed Convention, in the 1958 Territorial “fish, specifically 1301(e) includes One reason for is thrust concern lobsters, shrimp, oysters, clams, crabs, by nations, other as evidenced at the both sponges, kelp, action, marine animal Conference and and other individual to ex plant (emphasis added) tend life” their unilaterally within territorial seas to right definition of “natural “spe resources”. miles. The asserted is the cial interest of coastal States in maintain preemption reason for federal must ing the productivity of living resources be drawn from the rationale the First adjacent of the sea areas to their coasts case, supra. The whole area of California ” 5. This same essentially the regulation of ocean-floor resources inex majority basis used justify tricably entwined with international law extension of Alaskan into the seen, any rights affairs. As we have such, Sea. As could defi cause at all in area of the conti *30 nite embarrassment to our ne international nental develop shelf derive from recent gotiators. merely example It is one more ments in the field the unsettled of interna very—a and real example, current and not Congressional tional law pro of the sea. slightest “speculative” in the and “indirect” posals to establish a 200-mile federal fish —of pervasive involvement of ing zone4 generated publicity have much affairs in this area. dissension; appear and it would that Alas ka’s own widely Senators hold di terms complications, of international vergent propriety views leg imperium on the of such Alaska’s of assertion cannot islation at this topical distinguished time. The whole assertion of domin- area, special by ium ownership reference to certain Latin It American states. regulatory authority and over is resources of not clear all that Latin na- American the continental deep-sea bed, shelf and recognize tions functionally practical is dis- a currently being negotiated two;6 in the Interna tinction between the it more is even tional Conference on the Law of the unclear Sea. that those of the world’s nations of principal One concerns of the Unit legal firmly whose consciousness is less ed is attempts by States possibly majority rooted in Law than Roman is Latin Ameri- of the world’s to ca’s, nations extend necessarily national will clearly under- control farther and farther into the by sea. stand the difference intended Western- “ [B] ills that would declare a 200-mile fish- right ale: of state to “ensure the con- ing zone have in protection been introduced both Houses servation of its re- natural Congress firmly regulate but the administration is sources the use thereof to opposed giving Agreements Chile, fishermen exclu- Ecua- . .” between rights fearing signed sive out Peru, to 200 miles that dor and at the First Conference disrupt Exploitation such action would the 1974 Law of of the on the and Conservation global arrange- Pacific, the Sea Conference where Maritime Resources the South hopefully August 1952, Santiago, ments on will be reached.” Revista Peruana University (prepared Internacional, XIV, North Carolina de for Na- Derecho No. tomo Atmospheric seq., reprinted Lay, tional Oceanic and tion), Administra- at 104 et in Church- supra (translation Nordquist, State and Federal ill Jurisdiction Con- at 231 Regulation by Nations). flicts of United States Secretariat the United important McDougal Burke, generally See Coastal Waters 8 M. and W. study fairly The to note that this cannot Public of the & n. be char- Order Oceans 453-54 in acterized as a “federal document” the sense policy it evinces the official Decree-Law, supra 6.The Brazilian note I States. believe the reliance United upon states that Brazilian can be “interestfs] report officiality in the ma- effectively protected the exercise opinion jority misplaced. sovereignty concept inherent Extending Thus, apparently Territorial territorial sea.” 5. Decree-Law Sea to does not recognize efficacy Miles, (Brazil, Diario March of such as notions Official imperium 1970), reprinted Lay, Churchill, limited R. I S. off-shore recognition Nordquist, right Directions the Law resources. The of a M. New (transla- inexorably, leads in Brazil’s the Sea: Documents view, Department). Chile, the establishment of dominium tion U.S. State Ecua- adopted dor, and Peru similar ration- area. have domin- tionals of other imperium engage ers terms States between the in fishing importantly, it is same stock or perhaps But more stocks of ium. fish or other living marine resources any not at all that the United States State clear area or areas high seas, Department accepts the distinction the other itself apply shall measures, certainly all States has which shall cases. be discriminatory fact, in form opposed or in legislation purporting to Canadian their own nationals not later than imperium establish that seven government’s months after the date on arctic, which the regulate pollution in the mea- Canadian sures shall have been notified to high as it relates to the seas.7 Cana- Director-General of the Agri- Food and rely upon arguments dians of ne- similar Organization culture of the United colleagues Na- cessity my in the case at do (Article tions.” 5). bar.8 Even if assumes that the one Thus, if may regulate states “fishing” on “fishing”, crabs is and does not under OC- seas generally, regulations, their fall under federal on the SLA once notified to proper authorities, cre shelf, continental it must be noted that the ate obligations. international Signatory Fishing and Geneva Convention on Con- foreign nations whose nationals subse Living servation of the Resources of the quently fish pass the area must similar 1958) High (20 April provides that Seas laws for their nationals. While this would *31 properly10 adopts when a for its own not immediately Bering crab, affect Sea in nationals, particular,11 it would be applicable gen in purpose “measures . for eral were the principle established that living conservation of resources may regulate states fishing outside the affected” marginal sea. Thus the rationale of the and, by fishing (Article 3), case, First regulation that California high inextricably “subsequent adoption seas is to the of the mea- entwined with sures referred to in articles affairs, 3 and na- foreign opinion leads me Department 7. of State Statement on Govern- mechanism of Article as outlined in the ment of Canada’s Bills on Limits of the Ter- text. Sea, Pollution, ritorial Fisheries and Department 11. Japan State Press Release No. Soviet Union are the two April 1970, reprinted Lay, foreign of 15 in I S. R. states most interested in Churchill, Nordquist, currently signatory in crab, M. New Directions and neither is danger posed by the Law of the Documents 211 Sea: the 1958 Convention. The real; general, Convention however is Summary April including 8. signatories, of Canadian Note of are 22 there Great by Secretary Tabled ternal for Ex- of State Britain and the United States. is not House, April enough reply government Affairs that (from provided Embassy by notifying text Canadian refrain from the Director-Gen Washington, D.C.), Lay, at I S. R. Chur- eral of the under fact FAO Article 5. The chill, Nordquist, coupled might so, M. New Directions in the that it do the existence with regulations, Law of the Documents Sea: 216-17 can be a constant source negotiations, especially irritation with fully nations not governmental conversant the inter with Reprinted Lay, Churchill, in I R. S. rivalries inherent in American Nordquist, Further, M. New Directions the Law of federalism. it is not clear wording the Sea: Documents Article the United may notify the Director-General. Department, Under Article when nationals of other Hence even if assurance the State engaged believed, might carry weight nations are not If in the area. little with engaged, uncertainty foreign powers any nationals are so Articles should exist contemplate negotiations might and 9 international as to whether a third able concerning reg- notify machinery between the concerned nations and set the Article 5 regulations negotiated ulations. Such also be- motion. applicable come to later nations regulation fisheries is re seas government.12
served to the federal YARBOR, Appellant, James C. opinion majority notes that Alaska promulgated in this area was Alaska, Appellee. STATE of note, request agency. I of a federal No. however, that the has filed United States Supreme Court of Alaska. supports appellees an amicus brief which 23, 1976. Feb. against the of Alaska. This brief State prepared Department by the of Jus- tice, “in consultation other con- especial- agencies,”
cerned federal
ly Legal in consultation with the Ad- Department
viser for the Thus State.13 infer, majority appears
I as the cannot
do, that the Alaska have the
implicit approval govern- of the federal
ment, especially they foreign poli- affect
cy. conclusion, I find would that:
(1) legislation preempted by State
OCSLA, 1332(a), 43 U.S.C. as crabs are §
legally a of the ocean resource floor rather
than of the water above that column floor.
(2) legislation preempted by State
SLA, 1302, regardless 43 U.S.C. §
characterization of the crab resource. above, Notwithstanding any of the *32 military affairs are so inex-
tricably entwined with the that, explicit seas resources absent
Congressional delegation states, to the
area is regulation. excluded from state I preemption
Since would find federal field, subject of state
is, my opinion, Therefore, irrelevant. I
express opinion no subject. on that I
would affirm judgment superior
court. Bay majority in the Bristol area would be relies on Alaska v. Arctic business beyond Maid, Alaska’s reach.” at 81 S.Ct. 6 L.Ed. U.S. importance (1961), at 931. The court remanded 2d 227 to show local clause, ap- many case for a how fish under the commerce and seems to determination of peal argument balancing to this under its test were obtained outside of Alaska’s territorial (366 considering foreign 929), and when affairs. This re- waters appeal misplaced. ease liance is preme The United was settled before States Su- upheld any Supreme Alaska that case never Court. Court attempt by activity Alaska to tax outside the opinion Support fact, ex- three-mile limit. United States Memorandum pressly ques- states that if the fish there in Motion for Leave to File Brief Amictis Curiae purchased tion “were taken or outside Alas- at 2. respondents’ waters, ka’s territorial all of