Motion — Uri v. Alaska

md

Suprome Cort, §. $

LED

a AUG 18 1976

Supreme Court of the United RODAK, JR.CLE

OcroBer TERM, 1975

No. 75-1873

Konrab 8S. Urt, PER NyMARK, ARNOLD RASMUSSEN,

Ronacp BeEtrNeEs, Borce H. Mannzs, Cart PERO-

VICH, BJORN NYMARK, Sverre A. Yrt, OL!

HENDRICKS, SIGMUND ANDREASSEN, CORY

A. KALpEstTap, MICHAEL LYNCH, JR.,

LARS Mynre, THOMAS HarGaNn

and EmIL VINBERG,

Appellants,

vs.

STATE OF ALASKA,

Appellee.

On Appeal from the Supreme Court of the

State of Alaska

MOTION TO DISMISS

ARTHUR H. PETERSON,

Assistant Attorney General,

Office of the Attorney General.

State of Alaska,

Pouch K, State Capitol,

Juneau, Alaska 99811,

GERALD W. MARKHAM,

Assistant Attorney General,

Office of the Attorney General.

State of Alaska,

360 K Street, Suite 105,

Anchorage, Alaska 9950),

Counsel for Appellee.

PE!.NAU - WALSH PRINTING CO.- 562 MISSION STREET - SAN FRANCISCO. CA 94108

we

a

Page

tne ccc cessecegsiccccecssece 2

Bg EEE EEE CTTE TET ETETE TT LETTER TTT 9

This appeal is not within the jurisdiction of the court..... 9

EE © Pe 9

LEE TET TET OT ET ETTT TT TE TTT e 12

III. The decision of the Alaska Supreme Court is not a

REE EEE ED Pe 16

IV. The issues presented are not so substantial as to

warrant a departure from the practice of only review-

ing cases upon final judgment .....................

A. A state has power to regulate the conduct of

United States nationals in a fishery oceurring par-

tially beyond its territorial limit in order to

protect its interests in that fishery within its

EE rad pe cakh onqneseeecedccciececs

B. Federal law does not pre-empt Alaska’s power to

regulate the Bering Sea King Crab Fishery ....

Appendix A—Opinion of the United States District Court

dismissing Hjelle v. Brooks

26

32

Table of Authorities Cited

Cases Pages

Bayside Fish Flour Co. v. Gentry, 297 U.S. 422 (1936).... 2,32

Cox Broadeasting Corp. v. Cohn, 420 U.S. 469 (1975)

Douglas v. Sea Coast Products, Ine., No. 75-1255, US.

ile S | BB Fe TT ee. ae

Felton v. Hodges, 374 F.2d 337 (5th Cir. 1967) cert. denied

eS Be ere errr ree 28, 29, 30, 32

Frach vy. Schoetler, 46 Wash. 2d 281, 280 P.2d 1038

DEE «sonedddandguaaseesnnsnascicentanenessaaee 32

Gherra v. California Fish & Game Dept., No. 47823 SAW

os Se FO eer re rer TT Te rr 32

Guess v. Read, 290 F.2d 622 (5th Cir., 1961) ............ 33

Guess v. Read, 368 U.S. 967 (19G1) .....ccccccccccccces 33

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S.

ee GY idtre040e000006s end enesnceesedcesekieinwt 27

Harris v. Washington, 404 U.S. 55 (1971) ............... 24

Hjelle v. Brooks, 377 F. Supp. 480 (D. Ak. 1974) ......

c6b0sckuetndaue kin ceesaekeueneekkeaeeaen 4, 8, 22, 25, 33

Hjelle v. Brooks, ... F. Supp. ... (D. Ak. 1976) (Mem-

orandum Opinion ineluded herein as Appendix A) ...... 4

Hudson Distributors v. Lilly, 377 U.S. 386 (1964) ........ 16,17

Johnson vy. Gentry, 220 Cal. 231, 30 P.2d 400 (1934) .... 32

Magnum Import Co. v. Coty, 262 U.S. 159 (1922) ....... 27

Memphis vy. Natural Gas Co. v. Beeter, 315 U.S. 649 (1942) — 10

Mills v. Alabama, 384 U.S. 214 (1966) ...............08. 23, 24

Montgomery Bldg. & Construction Trades Council vy. Led-

hette® Jarection Co., Inc., 344 U.S. 178 (1952) ........ 10

North Dakota State Board of Pharmacy v. Snyder's Drug

Stores, Inc., 414 U.S. 156 (1973) ......cccccccccccces 18

Radio Station WOW vy. Johnson, 326 U.S. 120 (1945) .... 10

Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62 (1948) 10

—. «a BALIN

5 RR ORE RE tr oT EE HORE BA

ee 8 ee re ee

TaBLe or AuTHORITIES CITED lii

Pages

Samuels v. Mackell, 401 U.S. 66 (1971) ................ 23

Santa Cruz Oil Corp. v. Milnor, 55 Cal. App. 2d 56, 130

Re ee ere 32

Sierra Club v. Hickel, 433 F.2d 24 (9th Cir. 1970), aff’d

es ok ke ea ade ewe se ebauseubnel 25

Silz v. Hesterberg, 211 U.S. 31 (1908) .................. 2,32

Skiriotes v. Florida, 313 U.S. 69 (1941) .............. 28, 29, 30

State v. Browder, 486 P.2d 925 (Alaska 1971) .......... 18

State v. Charles Bundrant, 546 P.2d 530 (Ak. 1976) ....

Tee ee ee ae ee 3, 5, 7, 12, 13, 14, 15, 19, 21, 22, 23, 29

State v. Bundrant, 547 P.2d 838 (Alaska 1976) ...6,7, 14, 15, 26

Steffel v. Thompson, 415 U.S. 452 (1974) .............. 23

Takahashi v. Fish Commission, 334 U.S. 410 (1948) ..... 23

Toomer v. Witsell, 334 U.S. 385 (1948) ............ 2, 28, 29, 30

United States v. California, 332 U.S. 19 (1947) ......... 28, 29

United States v. Louisiana, 339 U.S. 699 (1950) ......... 29

United States v. Ray, 423 F.2d 16 (5th Cir. 1970) ....22, 34, 35

United States v. Texas, 339 U.S. 707 (1950) ............ 29

United States v. Thompson (No, A-87-72 Cir., U.S.D.C. D.

Ak., Deeember 15, 1972) (umreported) ............... 32

Younger v. Harris, 401 US. 37 (1971) ... 2. ccccccccess 23

Constitutions

United States Constitution :

gg ESRI REE LT SI a ee ee a ee 8

I Te oe iia eee ciele lala udugieie Coal ol 8

I ele nats Ce ae Ore ae Be es ae 6, 8, 14

ice dueiebaie ERE aa ote se ts 8

I as noch o0e6. oe cede teeeaeeeuoaseunanteban 8

Rules

United States Supreme Court Rules

Me beds ie eee ek dk ebekebeeseatees 1

SIDI ‘sic <\eng-craus ekki es cade ah dadadtikiedialedeniadia ail 27

iv TABLE oF AUTHORITIES CITED

Statutes

Alaska Statutes; Pages

i i heeded eheeedaedeheneees 29

Dn acduvecwendeseenss6e06n6eeeu'es 21

ect Pi ne cok iidad waeueseue ie’ 2

Sc vccedoequadsteaas geadesheces 2

De SE acaveadiatwilnakedéndecen taaisearenes 3

1958 Geneva Convention and Management Act, 15 U.S.C.

Section 473, TLAS 5578 (1953) ........cccccccccccees 34

Fishery Conservation and Management Act, 16 U.S.C.

NS ES oc wiagcadete sadkuseane 9, 20, 29, 35, 36, 37

16 U.S.C. :

SS SD cn s J cucbisenedeabeauaeddebennndens 35

NE CE eo cance pee eased sree utenneepeerues 9

SE EE obs ce ul oul ced bebed can enawatoas 9

ED ecco Nas sane a ees weeksaeeeae uae 20

DL EEE Scnueciseis bebeseteadecunesedsuesuuens 21, 29

i i. tctewekesbasetesteneseneeaae ced en 30

NS ee eee ee ae ede eee eS 30

28 U.S.C.:

i i cc cetcekcuntsekebehateseededeue eneckes 23

DD CE ucttccctdwenteseweceebeetetcenauaesue 9

ED ieee deen ene Cede Oe Sanwe Ks 27

PE CEE clot epideedeeseekeedearsiensbuadeccune 9, 27

Outer Continental Shelf Lands Act, 43 U.S.C., Sees. 1331-

DEN: ndsasedtmusucatiweacnkewncawe 6, 8, 12, 14, 29, 32, 33, 35

ey es SE ED Cin cevreneeeceesdeeusukeedswas 33, 34

Other Authorities

ee ee GUD: 60 6S 6cdeeseciseeenecsncdss 34

Hearings before the Comm. on Int. and Ins. Affairs,

Senate, 83rd Cong., Ist Sess. on S. 1901, Outer Contin-

ental Shelf (1953) pp. 405-07 ........ccccccccccccccs 34

Sen. Re. No. 411, 83rd Cong., Ist Sess. (1953) ........... 34

een

IN THE

Supreme Court of the United States

OctToBeR TERM, 1975

No. 75-1873

Kowrap S. Urt, Per Nymark, AnNoLD RasMvssEN,

RoNALD BEIRNES, Borge H. MANNEs, CARL PERO-

vICH, BJORN NYMARK, SVERRE A. YRI, OLI

HENDRICKS, SIGMUND ANDREASSEN, Cory

A. KALDESTAD, MICHAEL LYNCH, JR.,

Lars MyxHre, THomMAs HAUGAN

and EmIL VINBERG,

Appellants,

Vs.

STATE OF ALASKA,

9 Appellee.

On Appeal from the Supreme Court of the

State of Alaska

MOTION TO DISMISS

Pursuant to Rule 16 of the Rules of the Supreme

Court, appellee, State of Alaska, respectfully moves

that the appeal be dismissed on the grounds that it is

not within the jurisdiction of this court, because not

taken in conformity to statute or to these rules.

2

STATEMENT OF THE CASE

Appellee cannot agree with the characterization of

the case which the appellants have offered in hopes of

demonstrating the jurisdiction of this court,’ nor can

their general statement of the case be accepted.*

Alaska has prohibited the taking of fish and shell-

fish beyond its three-mile limit since at least 1960

when during the second session of the first Alaska

State Legislature it passed Chapter 121, SLA 1960,

Alaska Statutes 16.10,180-220° authorizing the Alaska

Board of Fish and Game to establish and regulate

areas adjacent to state territorial waters in which

migratory fish and shellfish were found. The purpose

of this statute is expressed in the legislative findings

which it contains. The Alaska Legislature acted in

recognition of the facts’ that species of fish and shell-

fish found within these adjacent areas are indistin-

guishable from fish and shellfish within state territo-

rial waters and migrate to and from state territorial

waters, and that in order to preserve and protect the

state’s fishery resources within the state’s territorial

waters, it is necessary to regulate certain fishing he-

yond them.

In 1969 the Alaska Board of Fish and Game ex-

tended its regulatory efforts into the then pioneer Ber-

1 Appellants’ Jurisdictional Statement 2.

2Appellants’ Jurisdictional Statement 14.

3Sce Appellants’ Jurisdictional Statement App. F. 24-26.

4 Alaska Statute 16.10.1890.

5Compare Toomer v. Witsell, 334 U.S. 385, (1948); Bayside

Fish Flour Co. v. Gentry, 297 U.S. 422, (1936); Silz v. Hester-

berg, 211 U.S. 31 (1908).

3

ing Sea shellfish fishery. In that year it established

the area described by appellants® and established a

series of regulations setting seasons, size limits, and

standards for gear. These regulations were originally

challenged by a group composed of the same class, if

not the same persons, as appellants, known as the

North Pacific Vessel Owners Association in the United

States District Court for Alaska.’ The action was dis-

missed in June 1970.

In 1973 the Alaska Board of Fish and Game estab-

lished a maximum quota of 23,000,000 pounds of crab

for the Bering Sea area.* This regulation was prom-

ulgated at the urging of experts speaking on behalf

of the National Marine Fisheries Service of the U.S.

Department of Commerce.® The Bering Sea Shellfish

Area quota of 23,000,000 pounds was reached on Sep-

tember 9, 1973, whereupon, the season was closed to

erab fishing until June 25, 1974.

In December of 1973, the State of Alaska filed a

seven count criminal complaint in the Alaska Superior

Court alieging that Charles Bundrant had violated the

fishing regulations and statutes in October 1973 by

taking crab during the closed period in an area beyond

three miles of St. Paul Island, Alaska, and thereafter

bringing said crab within state territorial waters.

State v. Charles Bundrant, No. 2295.

6 Appellants’ Jurisdictional Statement 14.

TNorth Pacific Vessel Owners Ass’n. v. Noerenberg, U.S. Dis-

trict Court for the District of Alaska, No. J-9-70.

8} AAC 07.760; Appellants’ Jurisdictional Statement App.

F. 27.

*State v. Bundrant, 56 P.2d 530, 540 (Ak. 1976).

4

That same month, three crab fishermen, one of whom

is an appellant herein, brought suit in the United

States District Court in Alaska to enjoin the state

from enforcing the fishing laws under which Bundrant

had been charged, A three-judge district court heard

the case and on April 30, 1974, entered a preliminary

injunction against the state preventing the enforce-

ment of those regulations, Hjelle v. Brooks, 377 F.

Supp. 430 (D. Alaska 1974). The District Court did

not declare that the State of Alaska was constitution-

ally powerless to regulate fishing for king crab in the

Bering Sea beyond its three-mile limit, but only held

that, upon a preliminary analysis of an incomplete rec-

ord, there were grounds to suspect that Alaska’s regu-

lations infringed upon the plaintiffs’ rights to due

process of law and ran afoul of the implied limitation

on state power emanating from the Commerce Clause

of the United States Constitution, If carefully writ-

ten to serve legitimate local goals, said the court, such

laws might well “pass constitutional muster.” //jelle

v. Brooks, supra at 441,

Accordingly, on June 15, 1974, the Alaska Board of

Fish and Game adopted new regulations conforming

with the guidelines established by the District Court

in Hjelle v. Brooks, supra, The plaintiffs in Hjelle

applied to the District Court for an injunction against

the enforcement of these new regulations, but the

Court denied their application in June, 1974. Tn an

opinion dated June 11, 1976, following an August 1975

trial, the District Court explained that it had refused

to enjoin enforcement of the new regulations hecause

5

of their apparent validity under the guidelines of the

Court’s earlier opinion."

Under the new regulations, the commercial crab fish-

ing season in the Bering Sea had been scheduled to

open on July 1, 1974. However, prior to July 1, a pri-

vate, ad hoc organization, constituted of the many

fishermen who have taken this appeal, as well as

other fishermen and processors, which called itself the

“Shellfish Conservation Institute” had promulgated

its own “rules” for the upcoming Bering Sea season,

Those “rules” represented a wholesale defiance of the

State’s new regulations, with which the district court

had declined the occasion to interfere, for they pro-

claimed that the season would open on June 26, 1974.

In fact, even before that date surveillance flights de-

tected a large number of vessels engaged in crab fish-

ing in the Bering Sea. In response to this blatant

repudiation of state sovereign authority, the Alaska

Board of Fish and Game on June 25, 1974, issued an

emergency regulation postponing the opening of the

season and empowering the Alaska Commissioner of

Fish and Game to open the season when “general

order can be restored and the state can be assured that

fishing will be conducted in a manner which will not

jeopardize the rights of law abiding fishermen,”"

The illegal fishing activities which prompted the

criminal charges in these cases occurred between June

Opinion, n. 3, Appendix A herein.

State v. Bundrant, supra at 534,

Seen

30, 1974, and July 24, 1974."" Additionally, appellant

Kaldestad was charged with possession within the

state of shellfish taken illegally outside the State."

Meanwhile, the defendant in State v. Bundrant, No,

2295, had moved for dismissal of the charges against

him in the Alaska Superior Court upon a stipulation

of facts. That court granted Bundrant’s motion to

dismiss on September 10, 1974, and the State ap-

pealed.,

Appellants herein also made motions in the Alaska

Superior Court to dismiss their cases on numerous

grounds, including (1) lack of jurisdiction, (2) un-

constitutional vagueness of the regulations, and (3)

illegality of the search of their erab pots." Unlike

defendant Bundrant, however, appellants herein did

not stipulate to any facts, and these issues remain very

much alive as a result.'®

On December 17, 1974, the Superior Court dismissed

the State’s complaint against appellants on the sole

basis that the regulations in question had intruded

upon an area of exclusive federal jurisdiction estab-

lished by the Outer Continental Shelf Lands Act, 48

U.S.C, §§1331-1348, and were consequently prohibited

by article VI of the Constitution of the United

7 d., at 535,

87d, at 536,

7 d., at 535,

5State v. Bundrant, 547 P.2d 838 (Alaska 1976) (order deny-

ing petition for rehearing),

7

States." That ruling was also appealed to the Alaska

Supreme Court by the State."

Subsequently, the cases against defendant Bundrant

and appellants herein were consolidated for purposes

of appeal. On January 19, 1976, the Alaska Supreme

Court reversed the decisions of the Alaska Superior

Court and remanded the cases to that court for fur-

ther consideration in conformity with its opinion,"*

On March 26, 1976, rehearing was denied by the

Alaska Supreme Court. Again, the court emphasized

the right of appellants herein to present for decision

those defenses which had not previously been decided

by the Superior Court."

Appellants filed their notice of appeal to this Court

on May 10, 1976, On May 26, 1976, on appellants’

motion, the Alaska Supreme Court stayed the trials.

in these cases pending disposition of appellants’ appeal

to this Court.”°

1State v. Bundrant, 546 P.2d at 535.

Appellants’ su ion in their Jurisdictional Statement at

17, that thereafter both houses of the Alaska Legislature passed

a resolution condemning the actions of appellants is totally mis-

leading. The resolution was not so much a condemnation of

appellants as it was a directive to enforce and defend the crab

fishing laws to the extent constitutionally permissible.

18State v. Bundrant, 546 P.2d at 556.

State v. Bundrant, 547 P.2d 838, 839 (Alaska 1976). On

June 30, 1976, defendant Bundrant pleaded nolo contendere in

the Alaska Superior Court. The plea (and conviction and fine)

was subject to a condition that it be expunged (and the fine

remitted) if the challenged fishing laws were struck down by

this court. Thus, the only case in which there are facts of record

is not before this court.

: ee Jurisdictional Statement, App. J. Appendix A

erein,

On June 11, 1976, the United States District Court

filed its opinion in //jelle v. Brooks, supra, dismissing

the action therein.*'

Nothing is “final” about the Alaska Supreme Court's

disposition of these cases except the Court’s holding

that regulation of the Alaska king crab fishery is not

preempted by the Outer Continental Shelf Lands Act

and that some state regulation of fishing beyond the so-

called three-mile limit is not forbidden per se.

Remaining in dispute are the issues of whether (1)

whether the State’s regulation of the Alaska crab fish-

ery is an undue burden on interstate commerce (2)

whether it interferes with the United State’s plenary

authority over the conduct of foreign commerce® and

foreign relations,® and (3) whether the State of

Alaska has in fact sufficient interest or “nexus” to the

Alaska king crab fishery in the Bering Sea and par-

ticularly in the area in which appellants were fishing

or to appellants themselves to permit the regulation of

their conduct in accordance with the requirements of

due process.** Also remaining for decision by the Su-

perior Court are those federal and state questions to

which neither the Alaska Superior or Supreme Court

have spoken, the vagueness of the regulations and the

alleged unreasonable search of appellants’ erah pots.

2“'This opinion may be found in Appendix A herein, Plaintiffs

in Hielle v. Brooks have moved that court for reconsideration,

and a ruling on that motion is imminent,

221 'nited States Constitution, artiele T, section 8,

25U'nited States Constitution, article I, section 8, article TI,

section 1, article VI,

24U'nited States Constitution, amendment V, amendment XTV.

Resolution of these issues must necessarily await the

making of an evidentiary record,

Moreover, the appellants continue to deny that they

even engaged in the conduet upon which the criminal

charges are based, and they may raise other affirma-

tive defenses at the trials of these cases,

Finally, and most significantly, on April 13, 1976,

the Fishery Conservation and Management Act, 16

U.S.C, §§1801-1882, became law, and the United States,

for the first time, has now undertaken to conserve and

manage the fishery involved herein, 16 U.S.C, §1812,

effective as of March 1, 1977. 16 U.S.C, §1811, n.

ARGUMENT

THIS APPEAL IS NOT WITHIN THE

JURISDICTION OF THE COURT

I,

SUMMARY OF ARGUMENT

This appeal*® is taken pursuant to Title 28, United

States Code, section 1257. Appellants’ Jurisdiction

Statement 1. However, the sections relied upon by ap-

pellants only provide for review of “final judgments

or decrees rendered by the highest court of a state in

which a decision could be had...” 28 U.S.C. §1257.

This court has had an opportunity to interpret the

final judgment requirement of 28 U.S.C, §1257 and on

several occasions has said the requirement “is not one

of those technicalities to be easily scorned, It is an

25In the alternative appellants petition this court for a writ

of certiorari pursuant to 28 U.S.C. §2103,

10

important factor in the smooth working of our federal

system.” Radio Station WOW v. Johnson, 326 U.S.

120, 124 (1944); Montgomery Bldg. & Construction

Trades Council v. Ledbetter Erection Co., Ine., 344

U.S. 178, 180 (1952). This court has recognized as the

basis for its interpretation, the general consideration

of good judicial administration, the mischief of eco-

nomic waste and of delayed justice occasioned by

review of intermediate rulings, and the added consider-

ation of minimizing the potential conflicts between the

courts of two different governments. Radio Station

WOW v. Johnson, 326 U.S. 120, 124 (1945). More-

over, appellants have the burden of affirmatively

establishing this court’s jurisdiction, Memphis v. Na-

tural Gas Co, v. Beeter, 315 US, 649 (1942).

The decision of the Alaska Supreme Court re-

manded the cases to the Alaska Superior Court to con-

sider other grounds for dismissal raised by appellants.

Presumably, if those motions are unsuccessful, the

cases will be set for trial.** Traditionally, in its pres-

ent posture, the decision of the Alaska Supreme Court

is not a final judgment. Republic Natural Gas Co. v.

Oklahoma, 334 U.S, 62 (1948).

Since this court’s decision in Radio Stat. » WOW v,

Johnson, supra, however, this court has accepted juris-

diction in situations in which the highest court of a

state has finally determined the federal issue presented

in a partienlar case, but in which there are further

proceedings in the lower state courts to come, Cow

Broadcasting Corp. v. Cohn, 420 U.S. 469, 477 (1975).

26Appellant’s Jurisdictional Statement 4, n. 1,

11

In Cox Broadcasting Corp. v. Cohn, supra, at 477-

485 this court enumerated four categories of such

cases in which this court has taken jurisdiction with-

out awaiting the completion of the additional proceed-

ings anticipated in the lower state court, noting as it

did so that:

In most, if not all, of the cases in these categories,

these additional proceedings would not require

the decision of other federal questions that might

also require review by the Court at a later date,

and immediate rather than delayed review would

be the best way to avoid ‘the mischief of economic

waste and of delayed justice.’ Id., at 484.

The four categories of cases are as follows:

1. Those cases in which “the case is for all prac-

tical purposes concluded,” the outcome is “preor-

dained.” That is, when there is “no defense other than

his federal claim.” Cox Broadcasting Corp. v. Cohn,

420 U.S. 469, 479 (1975).

2. Those cases where “the federal issue, finally de-

cided by the highest court in the State, will survive”

the lower court proceedings, and the other issues to be

decided below, “ ‘could not remotely give rise to a fed-

eral question . .. that may later come here... .’” Jd.,

at 480.

3. Those cases “in which later review of the federal

issue cannot be had, whatever the ultimate outcome of

the ease.” Id., at 481.

4. Those cases “in which the party seeking review

might prevail on the merits on non-federal grounds”

12

and where “the state court decision might seriously

erode federal policy”. Id., at 482-483.

II.

POSTURE OF THE CASE

As characterized by the Alaska Supreme Court, the

propriety of the state’s regulation of the king crab

fishery beyond the three-mile limit in the area in ques-

tion turned upon an analysis of two main issues.

The first issue, entitled generally “Federal Exclu-

sivity and Federal Pre-Emption,” State v. Bundrant,

supra, at 537, dealt with a number of lesser issues re-

solving questions of whether Alaska’s regulations were

an interference with the exclusive federal domain of

the regulation of interstate and foreign commerce, the

management of foreign relations, or were in conflict

with federal law, specifically the Outer Continental

Shelf Lands Act, 43 U.S.C. §1331-1343, and certain

treaties. In reaching its decision the Alaska Supreme

Court was required to make certain factual determina-

tions and assume others on the basis of a seant record

and general knowledge allowing the court to deter-

mine that the state’s regulations neither discriminated

against nor burdened interstate commerce, nor in-

truded upon an area of foreign affairs. State v. Bun-

drant, supra, at 537-48.

The second issue dealt with by the Alaska Supreme

Court was entitled “State Fisheries Jurisdiction,”

State v. Bundrant, supra, at 548, and dealt. with the

13

extent or reach of Alaska’s law beyond the territorial

sea within the confines of due process. State v. Bun-

drant, supra, at 548-54. As viewed by the Alaska Su-

preme Court, the extent of the state’s authority to

regulate is determined by its interest or “nexus” to the

fishery to be regulated. Again based upon a record

which consisted of nothing more than a set of stipula-

tions agreed to by Bundrant (who is not an appellant

herein) for the purpose of deciding his motions and

the state’s offer to prove similar facts in the cases of

Uri, et al., and Kaldestad, the Alaska Supreme Court

found that those facts, if proven, constituted sufficient

interest or “nexus” between the State and the fishery.

It is essential to the consideration of the finality of

the Alaska Supreme Court’s decision to keep in mind

that the case before it involved essentially two differ-

ent classes of appellants. In the case of State v.

Charles Bundrant, Alaska Supreme Court No. 2295,

there existed before the court a stipulation of facts

which the parties had agreed would control the legal

issues before the courts. State v. Bundrant, supra, at

534. In that case the superior court had granted

Bundrant’s motion to dismiss as applied to the facts

in that stipulation and accordingly all of the issues

which the Alaska Supreme Court spoke to in its opin-

ion were before it in that case. Appellants however,

presented a second class of cases to the Alaska Su-

preme Court. Appellants did not enter into a stipula-

tion of facts. In arguing the matter to the Alaska

Superior Court, the State of Alaska was only permit-

ted to make an offer of proof that there existed sim-

14

ilar facts to those agreed to in State v. Charles

Bundrant, No. 2295. State v. Bundrant, supra at 535.

Additionally, some evidence was before the Alaska Su-

preme Court in the form of judicially noticeable facts

and portions of unsigned depositions which the appel-

lants had attached to their motion to dismiss. State v.

Bundrant, 547 P.2d 838 (Alaska, 1976) (on rehear-

ing). Appellants’ arguments included the same federal

constitutional issues raised by State v. Charles Bun-

drant, No. 2295, requiring determinations of fact ;-i.e.,

the burden upon interstate and foreign commerce, the

intrusion upon foreign affairs, and the lack of a nexus

between the State and tue fishery resulting in viola-

tions of appellants’ due process rights. Unlike the

Alaska Superior Court in State v. Charles Bundrant,

No. 2295, however, the Alaska Superior Court here

ruled upon only one of appellants’ arguments, speci-

fically that the regulations under which they were

charged intruded upon, and were in conflict with an

area of exclusive federal jurisdiction established by

the Outer Continental Shelf Lands Act, 43 U.S.C.

§§1331-1343, and were consequently prohibited by arti-

cle VI of the Constitution of the United States. Nor

did the Alaska Superior Court make factual findings

necessary to finally resolve the other issues raised by

appellants. Accordingly, though the Alaska Supreme

Court ruled upon numerous federal issues raised by

appellants, its rulings as applied to the facts dealt

only with facts established in State v. Charles Bun-

drant, No. 2295. As to appellants, the court’s decision

except as to the legal issue of whether the state reg-

ulations conflict with the Outer Continental Shelf

—_

- no

a ee

15

Lands Act, and possibly the further legal conclusion

that some state regulation of fishing beyond the state’s

three-mile limit is not forbidden per se, is based on no

more than the state’s offer of proof which the appel-

lants maintain they strongly contest. To demonstrate

the degree to which the appellants contest the state’s

offer of proof in this matter, this court need only

review appellants’ petition for rehearing filed to the

Alaska Supreme Court (R. 387-89). There appellants

claimed that this court’s opinion was based upon “ma-

terial factual assumptions” which “are strongly dis-

puted” by all of the appellants. (R. 387).

On rehearing, the Alaska Supreme Court clarified

further its already clear pronouncement in its first

opinion” and stated:

In any event, appellees have not been precluded

from raising specific defenses based on matters

not previoisly determined by the trial courts.

State v. Bundrant, 547 P.2d 838, 839.

Accordingly, many issues raised and answered by

the Alaska Supreme Court in the opinion as to State

v. Charles Bundrant, No. 2295 below, remain to be an-

swered as to appellants only after a hearing of the

facts by the Alaska Superior Court below.

Also remaining for decision by the Alaska Superior

Court are those questions to which neither it nor the

Alaska Supreme Court have spoken, the vagueness of

27™By virtue of our decision herein, we do not pass on other

legal arguments advanced by appellees. The decision of the trial

court was based on the doctrine of federal pre-emption and did

not consider other grounds for dismissal. Clearly these arguments

may be renewed in the trial court.” State v. Bundrant, 546 P.2d

530, 556 n. 108.

16

the regulation and the alleged unreasonable search of

appellants’ crab pots.**

Itt

THE DECISION OF THE ALASKA SUPREME COURT

IS NOT A FINAL JUDGMENT

As this court noted at the outset of its opinion in

Cox Broadcasting Corp. v. Cohn, supra, at 477-478, in

most if not all of those interlocutory state court de-

cisions of which it xccepted jurisdiction, the further

state court proceedings would not require the decision

of other federal questions that might also require re-

view by this court at a later date.

Appellants cite only one case which they claim sup-

ports their position that an interlocutory decision

which leaves open further state court decisions on

other federal questions, may be a final judgment.?®

Hudson Distributors v. Lilly, 377 U.S. 386 (1964).

Hudson is, of course, the one case which could have

prompted the “in most if not all” language in Cor

Broadcasting Corp. v. Cohn, supra. As Mr. Justice

Harlan pointed out in dissent in Hudson Distribu-

tors v. Lilly, supra at 500-01, this court gave no ex-

planation at all in that case for its departure from its

established principles. Mr. Justice Harlan suggested

that the reason for this departure was due to the fact

28Appellants themselves recognize that the federal issue of

the vagueness of the regulations remains open for consideration.

Appellants’ Jurisdictional Statement 7, n. 6.

29 Appellants’ Jurisdictional Statement 7, n.6.

— ee

17

that the jurisdictional question was not called to the

court’s attention by a motion to dismiss raising the

issue. Mr. Justice Hurlan also pointed out that

the exceptions (the four categories in Coz) all in-

volved intermediate rulings having “serious public

consequences”. Id., at 397. Hudson, like the instant

case, does not meet that test.

Clearly even if this court has on one occasion ac-

cepted jurisdiction over a decision which leaves open

for decision other federal questions, it will not do so

“in most” cases. Cox Broadcasting Corp. v. Cohn,

supra at 477-78.

Appellants claim® that this case comes within both

the third and fourth categories of cases described in

Cox Broadcasting in which this court has determined

that a judgment is final though something further

remains to be litigated.*'

This court described the third category in Cox

Broadcasting as consisting of those cases “in which

later review of the federal issue cannot be had, what-

ever the ultimate outcome of the case.” Id. This cate-

30 Appellants’ Jurisdiction Statement 8-9.

31Clearly this case does not come within the first category set

forth in Cox Broadcasting Corp. It does not involve a case in

which there are further proceedings vet to occur in state court

but on which the federal issue is conclusive or the outeome pre-

ordained. 420 U.S. 479. The federal issue decided by the Alaska

Supreme Court is not conclusive on the outcome of this litigation

and the outcome of the proceedings below are certainly not

pre-ordained.

Similarly, this case does not come within the second category

of cases in Cox Broadcasting Corp. There simply can be no ques-

tion but that there are other federal issues to be decided below

which may later come here.

18

gory consists of cases in which there are no other

federal issues and the highest state court has finally

decided the single federal issue. See North Dakota

Pharmacy Bd, v. Snyder's Store, 414 U.S. 156, 163

(1973). But where, as here, there are a abundance

of other federal issues, and where, as here, the State

may appeal from an adverse ruling on those issues,

State v. Browder, 486 P.2d 925 (Alaska 1971), the

rule from those cases simply does not apply. At any

event, if the appellants do prevail on the other federal

issues (and the State takes no appeal), the State

must either abandon the fishing laws in issue (thereby

rendering the Alaska Supreme Court’s ruling on pre-

emption—the issue on appeal here—nugatory and of

no actual force or effect) or enforce them in another

mode, which would then result in the federal issue

being brought here. In plain fact, either the State

must abandon its laws (in which case, there will be

no federal issue) or most certainly “later review of the

federal issue” will be had.

Nor does this case come within the fourth category

of exceptions described in Cox Broadcasting. That

category consists of those eases (1) where the party

seeking review might prevail on the merits below, (2)

where the reversal of the State court’s ruling on the

federal issue would preclude further litigation on the

cause, and (3) where “a refusal immediately to review

the state court decision might seriously erode federal

policy... .” Cor Broadcasting Corp. v. Cohn, 420

U.S, 469, 482-483. First, the cases in this category are

those in which there is only a single federal issue, See-

19

ond, they involve state court decisions which will seri-

ously erode (or interfere with) established federal

policy. While much has been said to the effect that the

decision below and the fishing laws in issue do just

that, in plain fact they do not.

In State v. Bundrant, 546 P.2d 530, 558-559 (Alaska

1976), Mr. Justice Rabinowitz (concurring) said:

In summary, therefore, the landing law cases

emanating from Stlz v. Hesterberg, 211 U.S. 31

(1908), authorize the State’s prosecution of ap-

pellees Bundrant and Kaldestad under count

IV. The prosecution of appellee Vinberg is un-

questionably authorized by Skiriotes v. Florida,

supra, Under the broader principle governing the

extraterritorial application of criminal laws, man-

ifested in part in Skiriotes, the remaining appel-

lees in Uri et al. and appellee Kaldestad may also

be prosecuted for their conduct. Justice Erwin

and I break new ground, if at all, only in ex-

pressly recognizing that broader principle.

Because this holding and the holding that Alaska’s

regulation of the fishery was “entirely compatible with

the federal constitution and existing federal legisla-

tion” (id., at 556) were the only holdings in which a

majority concurred, they constitute the law of the case.

It is diffieult to see how such a decision might “seri-

ously erode” federal policy.

The decision does not chill a free press, misapply

the Equal Protection Clause, interfere with federal

regulation of labor relations, misapply federal trade

laws, interfere with federal regulation of communica-

tions, or otherwise erode federal policy. It simply ap-

20

plies well established federal doctrines to what until

now has been a void in the conservation of important

fishery resources, The decision (and Alaska’s regula-

tion) eschews any control whatsoever over foreign

nationals. No claim is laid to any resource claimed by

the United States. All that is done is to protect a

vital resource (and dependent economy) by reasonable

regulation of Alaskan fishermen and fishermen from

neighboring States. There is no hint of discrimination

against nonresidents,

If the exceptions analyzed in Cox Broadcasting have

a common factor it is precisely that the decisions

being reviewed posed “serious public consequences” or

“seriously erode federal policy.” The decision in the

instant case does neither, nor can it do so in future,

Congress has filled the void by adopting the Fishery

Conservation and Management Act. 16 U.S.C, §$1801-

1882. Alaska’s stop-gap efforts to protect an important

fishery resource will expire in the immediate future,

to be replaced by a federal-state cooperative program.

16 U.S.C, §1852(7).

While appellants suggest that the contested regula-

tions go beyond the 200-mile limit adopted by this

Act, and therefore, beyond its coverage, Jurisdictional

Statement 8, there is nothing of record to indicate

that Alaska has enforced or will enforee them beyond

that limit. In any event, interlocking circles with

diameters of 200 miles may be drawn about Alaska’s

coast and offshore islands so as to cover the entire

eastern Bering Sea, i.e., that portion of the sea open

to American fishing and closed to Russian fishing.

21

Jurisdictional Statement, App. F. 19. (U.S. Soviet

Treaty on Fishing for Crab). Accordingly, there is no

reason to assume that Alaska’s regulations exceed the

coverage of the new Act or speculate that they might

be applied to do so, And as we will show, the Act itself

provides a mechanism for preventing any State from

acting contrary to federal policy.

In the meantime, it can hardly be suggested that the

State’s regulation or the decision below will erode the

federal policy announced in the new Act. The Act does

not preclude extraterritorial regulation of fishing by

vessels which are registered in Alaska. 16 U.S.C, §1856

(a). Bundrant’s vessel was registered in Alaska, State

v. Bundrant, 546 P.2d 530, 534-535 (Alaska 1976).

There are no facts of record concerning appellant’s

vessels, but it may be assumed that they, like Bun-

drant, followed the law requiring that commercial

fishing vessels be licensed to fish or land fish in Alaska.

They were not charged with its violation. 7d,

The pertinent law, Alaska Statute 16.05.490(a),

reads:

Vessel license. (a) As a condition to delivery

or landing of fish or engaging in commercial fish-

ing in the State, a license is required for a com-

mercial vessel, including a vessel used in charter

service for the recreational taking of fish and

shellfish.

Tn sum, the decision is in no significant way hostile

to any federal policy, and it is entirely consistent with

announced federal policy. That being so, the rule from

Cox Broadcasting simply does not apply.

Appellants appear to urge this court to adopt yet

another category or at least a subcategory not enumer-

ated in Cox Broadcasting, that is, if the United States

files an amicus brief before a state supreme court

in a controversy that may have an incidental effect on

some United States policy and the state court fails to

adopt every point in the United States’ position™ or if

a three judge panel of the United States District

Court has preliminarily enjoined different state regu-

lations involving the same general issue,“* then this

court should take jurisdiction even though the litiga-

tion is still in its preliminary stages. The argument

is not supported by authority or reason.

Nor is appellants’ argument bolstered by the fact

that in reaching its decision the Alaska Supreme

Court agreed with the ruling but not. completely with

the legislative analysis" of one United States Court

of Appeals ruling. United States v. Ray, 423 F.2d 16

(5th Cir, 1970). The decision in issue certainly does

not contradict the holding in Ray that the United

States has the exclusive right to explore and exploit

coral reefs as part of the outer-continental shelf. In

reality no federal-state conflict exists in this case.

82Here of course the United States’ main concern in its amicus

brief was in assuring that Alaska’s regulations not be applied to

foreign nationals, a point resolved at the outset by the State of

Alaska’s acceptance of it. State v. Bundrant, supra at 540;

Helle v. Brooks, supra at 438,

See State v. Bundrant, supra at 547.

“Contrary to appellants’ assertions, Appellants’ Jurisdictional

Statement 10, the Alaska Supreme Court did not refuse to follow

the reasoning of the United States Distriet Court at the pages

cited by appellant. It simply disagreed with that court on the

meaning ot state laws since repealed and not part of this case,

23

If this court were to consider noting probable juris-

diction in this case, it would likely conclude that it

would be the least appropriate case in which to ex-

pand those categories of final judgments enumerated

in Cox Broadcasting Corp, v, Cohn, supra.”

Of foremost concern in this court’s consideration

should be the undesirability of interfering with a good

faith state criminal prosecution at this incipient stage

of the litigation, Aside from the general principles of

federalism and comity which apply to all civil pro-

ceedings, a federal court’s decision to intervene in a

good faith state criminal prosecution strikes at the

very heart of our federal system. Compare, Younger

v. Harris, 401 U.S. 37 (1971); Samuels v. Mackell,

401 U.S. 66 (1971) ; Steffel v. Thompson, 415 U.S. 452

(1974). Of all of the cases in which this court has ac-

cepted review of interlocutory appellate orders, appel-

lee is aware of only two which involved criminal pro-

ceedings, Mills v. Alabama, 384 U.S. 214 (1966) and

*SAppellants’ reliance upon this court's notation of probable

jurisdiction in Douglas v. Sea Coast Products, Ine., No, 75-1255

coon US. ..., 96 S.Ct. 1723 (1976) is misplaced. An analysis of

the issues in Douglas v. Sea Coast Products, Inc., reveals that

the challenged state statute there allegedly discriminates against

fishing by resident aliens in direct contradiction to this court's

decision in Takahashi v. Fish Commission, 334 U.S. 410 (1948).

On the other hand, the Alaska court has said of the laws with

which these appellants are charged:

Moreover, there is absolutely nothing to suggest that these

regulations are either by their terms or in their enforcement,

discriminatory against non-Alaskans. State v. Bundrant,

supra at 540,

More importantly a completely disregard the fact that

this court noted jurisdiction in Douglas v. Sea Coast Products,

Inec., pursuant to 28 U.S.C, §1253 which provides for a direct

appeal to this court from a decision of a three judge United

States District Court enjoining the enforcement of a state statute,

24

Harris v. Washington, 404 U.S. 55 (1971). In Mills,

it was conceded that nothing remained to be tried

below, and in Harvis, it was the trial itself that vio-

lated the United States Constitution. Moreover, here,

a three judge panel of the United States District

Court has reviewed the state’s laws and the prosecu-

tions thereunder, and while granting a preliminary

injunction against the laws as they were originally

worded, has refused to grant preliminary relief to the

laws as rewritten. And after an extensive analysis of

the matter, including a complete evidentiary hearing,

that court declined to interfere with the enforcement

of these state laws, evidently holding the view that

the State of Alaska had apparently complied with the

court’s suggestion as to how the state might ac-

complish its regulatory objectives.” Cireuit Judge

Wright’s concurring opinion indicates that the state’s

actions are in all manner proper and in good faith.

It can hardly be argued in the face of Judge Wright’s

conclusion that the state has not made a conscientious

effort to tailor its regulations to the language of that

court’s prior opinion,

Moreover, intervention by this court at this stage

of this litigation could seriously hamper the outcome

of these state court criminal trials. Over two years

have passed since the state filed its charges in these

matters while appellants’ motions were ruled on by

the Alaska Superior Court and appealed to the Alaska

Supreme Court. During the further passage of time

that this court may require in resolving the legal is-

36 Appendix A herein.

25

sues now raised, the State of Alaska’s ability to prove

that the appellants even committed the acts with which

they are charged could be seriously jeopardized.”

As this court noted in Cor Broadcasting Corp. v.

Cohn, supra, 420 U.S. 486 n. 13, in response to Mr.

Justice Rehnquist’s dissent, in determining whether a

decision comes within the fourth category of final

judgments enumerated in that opinion, this court will

make a limited corsideration of the merits of the case

to determine whether an issue is substantial and the

state court’s decision is incorrect. This limited consid-

eration presumably is similar to the consideration a

United States District Court makes in determining

whether to grant a preliminary injunction. See Sterra

Club v. Hickel, 433 F.2d 24 (9th Cir. 1970), aff’d. 405

U.S. 727 (1972). The only issue before this court at

this stage of the litigation is appellants’ supremacy

clause argument. In making a determination as to

whether to grant a preliminary injunction on this

very issue the three judge panel of the United States

District Court for Alaska held:

At this incipient stage of the litigation the Court

does not conclude that plaintiffs are ‘reasonably

certain’ to succeed ultimately on the basis of their

supremacy clause argument. Hyjelle v. Brooks,

supra, at 438.

Furthermore, when the matter was finally briefed and

after a trial on the merits in United States District

Court, that same three judge panel held that. Alaska’s

37Trials in these matters have been stayed by the Alaska

Supreme Court pending appeal to this Court. Appellants’ Juris-

dictional Statement, Appendix J.

26

new regulations seemed to be in compliance with the

directions of their earlier opinion and that court was

content to abstain from reviewing the challenged reg-

ulations which were before them on ell federal issues

which are to be litigated in this case.

Of course appellee does not urge this court that it

is bound by a decision of a three judge panel of the

United States District Court in deeiding whether this

court should assume jurisdiction. Nonetheless the dis-

trict court did make a similar decision on not one but

two occasions, the latest occasion occurring after ex-

tensive briefing and a trial on the merits and after the

decision of the Alaska Supreme Court in State v.

Bundrant, supra. Moreover, this decision by the

United States District Court is one which it is most

competent to make. Under these circumstances, this

court should give great weight to the district court’s

determinations and refuse to note probable jurisdic-

tion.

—_—_—__

IV

THE ISSUES PRESENTED ARE NOT SO SUBSTANTIAL AS TO

WARRANT A DEPARTURE FROM THE PRACTICE OF ONLY

REVIEWING CASES UPON FINAL JUDGMENT.

If this court ever reaches the issue, and undertakes

a limited review of the merits of this appeal in order

to determine whether the issues here are substantial

enough to place it within the fourth category of cases

enumerated in Cox Broadcasting Corp. v. Cohn, it will

conclude that the issues involved here do not justify

this court in deviating from its practice of only re-

viewing final judgments.

27

In reviewing this court’s language in Cox Broad-

casting Corp. v. Cohn, supra, 420 U.S. 487, n.13, it

seems clear that the test of whether the issues pre-

sented meet the requirements of that exception are at

least as difficult as meeting the considerations of a pe-

tition for certiorari.** Accordingly, and to avoid repeti-

tion, this part of appellee’s argument is also made

in opposition to appellants’ request that if this court

holds that it does not have jurisdiction pursuant to

28 U.S.C. §1257(2), it treat appellants’ jurisdiction

statement as a petition for a writ of certiorari under

28 U.S.C. §2103.

This court has affirmed that certiorari will issue, in

the exercise of its discretion, only in cases of gravity

and general importance and in order to secure uni-

formity of decision. Magnum Import Co. v. Coty,

262 U.S. 159 (1922); Hamilton-Brown Shoe Co. v.

Wolf Bros. & Co., 240 U.S. 251 (1915). As has pre-

viously been stated, the cases heretofore excepted

under the fourth category in Cox Broadcasting have

involved the authority of the tribunal to try a case or

a first amendment violation.

With the foregoing propositions in mind the appel-

lee shall, within the confines of a limited considera-

tion of the merits, address appellants’ legal arguments

and demonstrate that they are insubstantial.

38Where a state 2ourt has decided a federal question of sub-

stance not theretofore determined by this court, or has decided

it in a way probably not in accord with applicable decisions of

this court. U.S. Sup. Ct. Rule 19, 28 U.S.C.

28

A. A state has power to regulate the conduct of United States

nationals in a fishery occurring partially beyond its terri-

torial limit in order to protect its interests in that fishery

within its territorial limit.

The application of state law to the conduct of its

fishermen beyond the state’s territorial boundary in

the absence of conflicting federal law is well settled.

Skiriotes v. Florida, 313 U.S. 69 (1941); Felton v.

Hodges, 374 F.2d 337 (5th Cir. 1967) cert. denied, 389

U.S. 971 (1967). Skiriotes was the first case to recog-

nize this principle and the wisdom of that case has

never been questioned. Appellants contend that, “Ski-

riotes has probably proven unwieldly in application

to modern international fisheries and it can reason-

ably be predicated that it will be overruled.” Appel-

lants’ Jurisdictional Statement 22. Appellants then go

on to state that it may be unnecessary to overrule

Skiriotes to reverse the Alaska Supreme Court below.

However, appellants’ point is irrelevant. If Sktriotes

has become “unwieldly,” the solution has already been

provided by Congress in enacting the Fisheries Con-

servation and Management Act. In addition to the

new Act and Skiriotes there is also Toomer v. Witsell,

supra. Toomer followed this court’s decision in United

States v. California, 332 U.S. 19 (1947), and expressly

reaffirmed the power of the states to regulate fishing

despite the paramount powers of the United States in

the marginal sea, in the absence of conflicting federal

legislation. The Outer Continental Shelf Lands Act

creates no greater bar to reasonabie and nondiscrimi-

natory state regulation of American fishermen in the

waters over the shelf than did United States v. Cali-

29

fornia, supra. The paramount rights with respect to

fishing arc the same there as they are in the marginal

sea. And this principle underlies the recent decision by

the United States Court of Appeals for the Fifth Cir-

cuit.*” That court clearly could not have perceived the

Outer Continental Shelf Lands Act as overruling Ski-

riotes.

Appellants’ argument based upon the “tidelands

cases,” United States v. California, 332 U.S. 19

(1947); @nited States v. Louisiana, 339 U.S. 699

(1950) ; United States v. Teras, 339 U.S. 707 (1950),

cannot survive this court’s distinguishing in Toomer

and California hetween the power of the state to

regulate fishing, absent conflicting federal legislation,

and the United States’ “paramount rights” in and to

the seabed or the waters.

Toomer involved nonresidents. Skiriotes and Felton

involved residents. In adopting the Fisheries Con-

servation and Management Act, Congress made that

distinction irrelevant, relying instead, and quite prag-

matically, on the locus of vessel registration. 16 U.S.C.

§1856. Bundrant (concerning whom there are facts

of record) had registered his vessel in Alaska. State

v, Bundrant, 546 P.2d 530, 534-535 (Alaska 1976). The

appellants (concerning whom there are no facts of

record) may he presumed to have done so in accord-

ance with the requirements of Alaska Statutes

16.05.490 as they were not charged with the violation.

39F elton v. Hodges, 374 F.2d 337 (5th Cir. 1967) cert. denied,

389 U.S. 971 (1962).

30

Id. Accordingly, in extending Skiriotes and Felton,

if at all, the Alaska Supreme Court in these cases

has done nothing more than Congress has done. Since

the cases do not present a concrete factual situation

involving the application of the regulations to those

whose vessels are not registered in Alaska, it would

be inappropriate for this court to consider it in the

abstract. Cf. Toomer v. Witsell, supra, at 394.

For appellants to argue that Congress has not re-

solved the question is plainly incorrect. Even if the

phrase “registered under the laws of such State” in

16 U.S.C. §1856(a) were ambiguous, Congress, in the

very next subsection has cured the effect of any am-

biguity. This is because 16 U.S.C. §1856(a) and (b)

together read:

(a) In general.—Except as provided in sub-

section (b) of this section, nothing in this chapter

shall he construed as extending or diminishing

the jurisdiction or authority of anv State within

its houndaries. No State may directly or indirectly

regulate any fishing which is engaged in by any

fishing vessel outside its boundaries, unless such

vessel is registered under the laws of such State.

(b) Exeception—(1) If the Secretary finds,

after notice and an opportunity for a hearing in

accordance with section 554 of Title 5, that——-

(A) the fishing in a fishery, which is covered

by a fishery management plan implemented

under this chapter, is engaged in predominately

within the fishery conservation zone and beyond

such zone; and

(B) any State has taken anv action, or

omitted to take any action, the results of which

31

will substantially and adversely affect the carry-

ing out of such fishery management plan;

the Secretary shall promptly notify such State

and the appropriate Counsel of such finding and

of his intention to regulate the applicable fishery

within the boundaries of such State (other than

its internal waters), pursuant to such fishery

management plan and the regulations promul-

gated to implement such plan.

(2) If the Secretary, pursuant to this subsee-

tion, assumes responsibility for the regulation of

any fishery, the State involved may at any time

thereafter apply to the Secretary for reinstate-

ment of its authority over such fishery. If the

Secretary finds that the reasons for which he

assumed such regulation no longer prevail, he

shall promptly terminate such regulation.

Appellants are first to assert that the fishery involved

in this case is predominately within the fishery con-

servation zone and beyond such zone, 1.e., beyond the

marginal sea. Jurisdictional Statement, at 16-17. That

being s», if Alaska were to regulate the fishery ad-

versely to the United States, the Secretary may oust

Alaska altogether. It would be far better for the

Secretary to make the determination of whether the

vessels are subject to Alaska’s regulations in the first

instance than for this court to consider the issue in

the abstract. At any event, and upon a proper record

and following some administrative experience with

the Act, this court will undoubtedly have an oppor-

tunity to examine its proper interpretation.

Appellants also recognize that adopting their argu-

ments would cast serious doubt upon the validity of

32

another solid line of cases* upholding state “landing

laws” which prohibit the possession of fish within

state waters taken in violation of law beyond state

waters, Appellants’ Jurisdictional Statement 23, Con-

sidering the local and temporary nature of the

regulations and of the decision below, there hardly

seems grounds for doing so.

Finally, appellants’ argument that this matter is

one of “conflict” among lower state and federal courts

is not correct. The Alaska Supreme Court was itself

following a decision of the United States District

Court" in reaching its decision. Numerous other lower

state and federal court decisions are in accord with

its holding. Felton v. Hodges, supra; People v. Fore-

lich, 14 Cal. App. 3d Supp. 6, 92 Cal. Rptr. 481 (Cal.

App. 1970); Gherra v. California, Fish & Game

Department,” No, 47823 SAW (N.D. Cal. 1973);

Frach v. Schoetler, 46 Wash, 2d 281, 280 P.2d 1038

(1955); Johnson v. Gentry, 220 Cal, 231, 30 P.2d 400

(1934); Santa Cruz Oil Corp. v. Milnor, 55 Cal. App.

2d 56, 130 P.2d 256 (1942).

B. Federal law does not preempt Alaska's power to regulate the

Bering Sea King Crab Fishery.

Appellants’ second argument simply consists of

asserting that the provisions of the Outer Continental

Shelf Lands Act 43 U.S.C, §1331-1343 establish not

only the seahed but also fishing for the erab thereon

49Silz v. Hesterberg, 211 U.S. 31 (1908); Bayside Fish Flour

Co, v. Gentry, 297 U.S, 422 (1937),

41[nited States v. Thompson, (No, A-87-72 Cr., Dee. 15, 1972)

unpublished opinion, see Record File 4,

#2Unpublished opinion, see Record File 4.

33

lying beyond the state’s territorial limits as an area

and subject of exclusive federal regulation. Appel-

lants’ Jurisdictional Statement 23-27. Appellants how-

ever, cite no decision by this court or by any court

in support of their argument.

On the other hand, the Outer Continental Shelf

Lands Act distinetly provides:

This subchapter shall be construed in such manner

that the character as high seas of the waters

above the outer continental shelf and the right

to navigation and fishing therein shall not be

affected.”

Admittedly there has never been a decision by this

court speaking to precisely this issue, but simply

because appellants have raised an argument never

decided by this, or any court does not make it sub-

stantial. In Guess v. Read, 368 U.S, 957 (1961), this

court refused to grant certiorari to a decision by a

United States Court of Appeals" holding the clear

meaning of this language to be that the exclusive

provisions of the Outer Continental Shelf Lands Act

do not apply to the waters above the shelf,

The legislative history behind the meaning of this

passage is voluminous and was substantially briefed

by both sides below." Adequate support exists for the

state’s position that the exclusive federal regulatory

provisions of the Outer Continental Shelf did not

4943 U.S.C. §1382(b). (emphasis added)

‘4(juess v. Read, 290 F.2d 622 (5th Cir. 1961). See also

Hielle v. Brooks, supra, at 430,

‘*Record File 4.

34

appertain to the regulation of fishing by citizens of

the United States."

The United States did acquire title or paramount

rights with respect to foreign nationals to Alaska

king crab as a sedentary species of the continental

shelf pursuant to article IT, section 4, of the 1958

Geneva Convention on the Continental Shelf’; how-

ever, the United States did not thereafter undertake

to regulate this resource or to declare it to be within

the exclusive domain of the federal government. This

state of law continued until very recently when this

absence of federal regulation, in part, prompted the

passage of the Fishery Conservation and Management

Act early this year."*

United States v. Ray, 423 F.2d 16 (5th Cir, 1970),

relied upon by the appellants is not at all in conflict

with the Alaska Supreme Court decision as that case

involved a trespass and a claim against the title

asserted by the United States and did not reach the

question of whether state domestic law could be ap-

plied by a state to a United States citizen’s fishing

in the waters over the seabed, At any event, the rule

from Ray is that no one may exploit the shelf’s re-

sources without the express consent of the United

46Sen, Re. No, 411, 83rd Cong., Ist Sess. (1953). See also

remarks of Senator Douglas 99 Cong. Ree. at 2868 (1953);

We are not particularly interested in kelp or shrimp or

ovsters, those are sideshows. The question is to oil and gas.

See also a discussion of this verv provision of 48 U.S.C.

§$1332(h) by Senator Cordon (the bill's manager) expressly sup-

porting the state’s position. Hearings before the Comm. on Int.

and Ins, Affairs, Senate, 83rd Cong., Ist Sess. on S, 1901, Outer

Continental Shelf (1953) at 405-07,

4715 U.S.T. 473, TITAS 5578 (1953).

#816 U.S.C, §1801 et seq. (1976),

35

States. Under Ray, appellants are confessed tres-

passers against the United States.

If appellants have a valid legal argument on this

sole ground, a brief analysis of the Outer Continental

Shelf Lands Act legislative history will reveal that

it is an argument which is bound up in international

law and the rationale of the “tidelands” cases. Insofar

as the activities of fishermen are concerned, it is the

Fisheries Conservation and Management Act and not

the Outer Continental Shelf Lands Act which ex-

presses the policy of the United States. The Alaskan

king crab is squarely with the coverage of the new

Act. 16 U.S.C. §1802(4). Appellants are arguing on

an “issue” which, pragmatically, has ceased to exist.

Under this court’s pragmatic approach to jurisdiction,

little reason exists to consider the issue,

Finally, the decision below has no national impact

whatsoever. Whatever impact the decision may have

had has already been superseded by an Act of Con-

gress. A whole new federal regimen for regulation

of this and other off-shore fisheries has been estab-

lished and is in the process of implementation. It is

that new program, and not the challenged decision,

which will have a national impact.

CONCLUSION

This court has jurisdiction to hear and decide ques-

tions raised on a final judgment from the highest

state court from which review may be obtained. This

court has not applied to final judgement rule in a

36

purely mechanical fashion but has established a num-

ber of categories of cases wherein it will review the

decisions of the state courts which are not technically

final. In most, if not all of these cases however, the

additional proceedings will not require the resolution

of other federal questions that might also require

review by this court at a later date.

Appellants’ case presents numerous federal and

state issues which if disposed of would avoid the

necessity of this court’s review of the issue before it.

Appellants’ case also presents numerous federal issues

which might also require this court to take review at

a later date. Moreover even if this appeal did not

have infirmities, it cannot be considered a final jude-

ment bheeause it does not fall within any of the

categories of cases in which this court will review

an interlocutory state court decision.

The Alaska Supreme Court’s decision does not pre-

sent issues of conflict among lower federal courts

and it especially does not conflict with the opinion of

the United States District Court for Alaska which

has reviewed the regulations and the decision in issue.

Likewise anv concern of the United States should

have been alleviated by Alaska’s acknowledgement

that the state law does not apply to the activities of

foreion fishermen. The issue that appellants raise

that has not been firmly decided by this court (exeln-

sive jurisdiction under OCSLA) is one whieh has, in

all effect, heen resolved as to future controversies hy

the recent passage of the Fishery Conservation and

Management Act,

37

Appellants have tried to inflate a controversy which,

prior to the enactment of the Fishery Conservation

and Management Act, had the potential for becoming

a matter of some national importance. However, that

importance has since passed. If appellants have justi-

fiable legal claims they should and shall have the

opportunity to present those claims to this court at

the proper time, when there has been a final judgment

that disposes of all of their state and federal claims.

At that time this court will be able to determine their

rights, if any, in this matter.

This appeal should be dismissed on the grounds

that it is not within the jurisdiction of this court and

it should not be considered in the alternative as a

petition for certiorari,

Dated, August 9, 1976.

Respectfully submitted,

Artuur H. Pererson,

Assistant Attorney General,

Office of the Attorney General,

State of Alaska,

Pouch K, State Capitol,

Juneau, Alaska 99811,

Geratp W. MARKHAM,

Assistant Attorney General,

Office of the Attorney General,

State of Alaske,

360 K Street, Suite 105,

Anchorage, Alaska 99501,

Counsel for Appellee.

(Appendix A Follows)

-_—_— —— - a

APPENDIX A

Appendix A

In the United States District Court

for the District of Alaska

Civil Action No. A-191-73

Severin Hjelle, et al.,

Plaintiffs,

vs.

James W. Brooks, et al.,

Defendants.

[ Filed June 11, 1976]

OPINLON

Before: Wricut, Cireuit Judge, and von bER HEypT

and PituMMeEr, District Judges

PLUMMER, Senior District Judge:

Plaintiffs, a group of commercial king crab fisher-

men, seek injunctive and declaratory relief to prevent

enforcement against them by the State of Alaska of

State fishing regulations in the Bering Sea outside of

three miles from Alaska’s coastline.’ The regulations

in effect at the time this suit was commenced? were

1The regulations are 5 AAC 34.005, 34.020, 34.030, 34.035,

34.040, 34.050, 34.060, 34.070, 34.085, 34.090, 34.095, 34.096,

34.097, 34.900, 34.910, 34.915, and 34.920(a). Plaintiffs also seek

a declaration of invalidity of A.S. 16.10.1909, 16.10.200 and

16.10.210 insofar as said statutes purport to authorize the regula-

tion of plaintiffs fishing for king crab in the Bering Sea.

25 AAC 07.760 and 36.040.

li

repealed after we issued our prior opinion enjoining

their enforcement. Hjelle v. Brooks, 377 F.Supp. 430

(D.Ak, 1974). After repealing the old regulations,

the State adopted emergency interim regulations on

May 9, 1974, and tlien the current regulations on June

15, 1974. We refused to enjoin the emergency regu-

lations because of their possible validity under a

rationale we suggested in Hyjelle.’ Thereafter, on July

15, 1974, the State filed criminal charges against seven

crab fishermen who are plaintiffs in this federal ae-

tion for violation of the new regulations. The third

amended complaint, challenging the regulations cited

in note 1, was filed July 31, 1974, fifteen days after

the criminal charges were filed. Since then, the state

and the federal actions have proceeded independently

until we granted a stay of our proceedings at the par-

ties’ request pending the decision of the Alaska Su-

preme Court in the state proceeding.‘

On January 19, 1976 the Supreme Court of Alaska

issued its opinion in State v. Bundrant, 546 P.2d 530

(Ak. 1976). The petition for rehearing was denied

March 26, 1976, 547 P.2d 838. In Bundrant the Alaska

Supreme Court reversed the state trial court’s dis-

missal of the criminal charges brought against seven

%At 377 F.Supp. 441 we stated (emphasis in original):

“Tt Alaska’s] regulation of certain extraterritorial conduct

would pass constitutional muster if its regulations were

directed at conserving the crab fishery within Alaska’s waters

by regulating crabbing in that area and, in order to facilitate

enforcement, by prohibiting the possession of crab in the state

during the closed season, even if that crab were caught out-

side the state.”

‘Defendants’ closing argument, page 8, filed September 26,

1975; plaintiffs’ reply argument, page 6, filed October 9, 1975.

na cant NO A

ili

crab fishermen, The decision upholds the constitution-

ality of the regulations under which the fishermen

were charged, and which are in issue here.

The question now presented is whether this court

should make a second determination of the constitu-

tional validity of the State’s Bering Sea king crab

regulations. For the reesons that follow, we think

that this court should net do so, Accordingly, we dis-

Miss as to all plaintiffs and all claims. We rely chiefly

on rationales developed in cases relating to absten-

tion.

Abstention by a federal court when there is a pend-

ing state criminal prosecution is governed by Younger

v. Harris, 401 U.S. 37 (1971), and subsequent Su-

preme Court cases. Younger provides that equitable

relief in federal court is not available to interfere

with a pending state criminal proceeding absent bad

faith harassment by the state officials. In our case,

only seven of the federal plaintiffs are involved in

pending state criminal proceedings. Normally, each

federal plaintiff is treated individually for purposes

of abstention. Doran v. Salem Inn, Inc., 422 U.S. 922,

928 (1975); Stleffel v. Thompson, 415 U.S. 452, 471

note 19, (1974). Accordingly, absent other factors, the

criminal proceedings against the seven state defend-

ants should not be imputed to the other thirty-seven

federal plaintiffs. However, when there is sufficient

“joint activity and common interest” abstention may

he justified even as to those federal plaintiffs who are

not state defendants. Allee v. Medrano, 416 U.S. 802,

832 n.8, 831-832 (1974) (Burger, C.J. concurring).

iv

Hicks v. Miranda, 422 U.S. 332, 348-349 (1975) ; Sole

uv. Grand Jurors For the Counties of Possatic and

Bergen, 393 F.Supp. 1322, 1329 n.12 (D.N.J. 1975).

In this case, there is such joint activity and common

interest.

To lightly impute state prosecution to a federal

plaintiff not a party thereto would obviously frustrate

the policies announced in Steffel, supra, and Dom-

broski v. Pfister, 380 U.S. 479 (1965). Yet in this

case the pleadings and testimony of plaintiffs so

clearly demonstrate the “joint activity and common

interest” of all plaintiffs that we believe imputation

is proper.

Severin Hjelle, by affidavit filed June 17, 1974,

stated that:

“[t]his action was originally commenced . . . on

behalf of the members of the North Pacific Vessel

Owners Association [NPVOA].”

sy supplemental memorandum filed June 21, 1974,

plaintiffs indicated that they had

“now included as parties all non-resident mem-

bers of the [NPVOA] who are prepared to com-

mence fishing in the Bering Sea on June 26,

1974.”

Hjelle’s affidavit also indicated that he was Presi-

dent of the NPVOA as of June 17, 1974. Apparently

Hjelle’s ineumbency expired sometime thereafter, for

at trial Konrad Uri, a federal plaintiff and state de-

defendant, testified that he was President of the

NPVOA.

— et A SR tM gt a

In an affidavit of May 23, 1974, Hjelle stated:

“To avoid a complete lack of management for

the Bering Sea king crab fishery, the individual

members of the [NPVOA], now comprising some

42 vessel operators and the seven processors who

purchase the vast majority of king crab caught

in the Bering Sea have formed an organization

called the Shellfish Conservation Institute. The

institute has adopted regulations ... which honor

the treaty restrictions on the capture of king

crab and, in addition, [has] proposed to com-

mence the king crab fishing season in the Bering

Sea on June 26, 1974.”

Hjelle’s June 17 affidavit explained how individual

fishermen looked to the Shellfish Conservation Insti-

tute for guidance in pursuing their work:

“All plaintiffs in this case stand ready to com-

mence fishing in the Bering Sea on or before

June 26, 1974, as specified in the industry regula-

tion of the Shellfish Conservation Institute and

will suffer irreparable harm if not permitted to

do so.” (Emphasis added)

In a telegram attached as an exhibit to plaintiffs’

third amended complaint, the Alaska Fish and Game

Commissioner recognized as a “flagrant challenge of

authority”:

“the announcement by the Shellfish Conservation

Institute that it had adopted king crab fishing

regulations on the basis that it did not recognize

the regulations and jurisdiction of the State of

Alaska... .”

The most recent indication of the joimt nature of

the state and federal proceedings is the agreement by

vi

all federal plaintiffs, including those not under state

indictment, to a stay of the federal proceedings pend-

ing the decision of the Alaska Supreme Court.

While the numerous federal plaintiffs own their

vessels and gear individually rather than collectively,

it is clear to us that they are all so closely related in

terms of “control and management” (Doran, 442 U.S.

at 928), that application of the “imputation” prin-

ciple is proper.’ The participation of Konrad Uri,

5We perceive the facts before us as placing this case somewhere

between Steffel and Allee.

In Steffel, the federal plaintiff was net a state defendant,

although his handbilling companion was. It was precisely this

relationship which enabled Steffel to overcome the case or con-

troversy requirement. 415 U.S. at 458-60. According to Chief Jus-

tice Burger, concurring in Allee:

“There was no indication in [Steffel] that the petitioner and

the arrestee were associated otherwise than in the distribu-

tion of antiwar handbills. Furthermore, in Steffel, the peti-

tioner departed to avoid arrest while his companion in

handbilling stayed. The joint activity of petitioner and his

companion in Steffel ceased prior to the arrest of the com-

panion. Finally, there is no indication that the arrestee would

seek to or be able to vindicate petitioner’s rights in the

criminal proceeding. .. .”

416 U.S. at 831 (Burger, C.J., coneurring.).

In Allee, all individual federal plaintiffs were subject to state

prosecution. 416 U.S. at 821-26, 830-32 (Burger, C.J., concurring).

Thus the Chief Justice noted that the union with which the

individual parties were associated should not be able to surmount

Younger obstacles which could not be overcome by its individual

members. Id. at 830-31.

The situation such as that before us was considered by the Chief

Justice, who suggested:

“There is no need to attempt to further define those situa-

tions in which it would be proper to impute the state criminal

prosecution of one who is not a federal plaintiff to one who

is. The association of the state criminal defendant and the

federal plaintiff necessary for imputation will depend upon

facts of joint activity and common interest.”

Allee, supra, 416 U.S. at 832 n.8 (Burger, C.J., coneurring). The

ease before us is a somewhat stronger one for imputation than is

the hypothetical one described above, since here seven of the 44

federal plaintiffs are state defendants.

te ewe

vu

President of the NPVOA, in the state proceeding

gives the federal plaintiffs the “assurance that those

presently being prosecuted will challenge the consti-

tutionality of the regulations.” Accordingly, in the

discussion that follows, we will treat all federal plain-

tiffs identically.

One possible ground for invoking Younger absten-

tion is that the state criminal proceedings, begun on

July 15, 1974, were commenced prior to the filing of

the third amended complaint, filed July 31, 1974. By

treating the third amended complaint as a >°w cause

of action, we would be within Hicks v. Miranda, 422

U.S. 332 (1975), which requires abstention if the state

criminal charges are brought before any federal pro-

ceedings of substance on the merits, Although we may

have discretion to so interpret the third amended com-

plaint, compare Griffin v. County School Board of

Prince Edward County, 377 U.S. 218, 226-227 (1964)

with Cherry v. Morgan, 267 F.2d 305 (C.A. 5 1959),

we decline to do so. Instead we look to the plaintiffs’

own actions.

Prior to our issuance of a stay this case was near

its conclusion, The trial had been held and proposed

findings and final written arguments had been sub-

mitted. Thereupon, at pages 7 and 8 of defendants’

closing argument the following statement and propo-

sal was made:

“Although the Court need not dismiss this aec-

tion on abstention grounds, the imminence of a

ruling by the Alaska Supreme Court in the re-

lated criminal cases would warrant a stay of this

action until the State cases are resolved. The

briefs filed in those cases demonstrate that the

same parties have through the same counsel pre-

sented many of the same legal arguments, Those

arguments have been through the refining proc-

ess of trial court adjudication and are expected

by all to be resolved on appeal shortly. Needless

tu say, the State is hopeful of success in those

cases, and we are confident that the fishermen will

honor the Alaska Supreme Court’s rulings. Ac-

cordingly, principles of comity would be served

by a temporary stay of this proceeding pending

the Alaska Supreme Court’s decision, following

which this Court could entertain motions to dis-

miss this action or such further briefing as may

be desired.”

Plaintiffs concurred in this proposal. While not call-

ing their agreed procedure “abstention,” the parties

did agree on principles of comity to a stay of the

federal proceeding until the state court could rule.

The stay was granted and the Alaska Supreme Court

has ruled. The question is whether a party ean vol-

untarily seek a prior state court ruling on his claim

and then reapply to a federal court if the state ruling

is adverse, rather than pursue his state court reme-

dies.

Two United States Supreme Court cases control the

resolution of this problem, England v. Louisiana State

Board of Medical Examiners, 375 U.S. 411 (1964) ;

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975).

England involved Pullman® rather than Younger ab-

6Railroad Commission of Texas v. Pullman Company, 312 U.S.

496 (1941).

ne ci a ew a

ee

ee es

ix

stention, but it is relevant because a pending federal

‘ase was interrupted by a state court determination

of the merits of the federal claim, similar to our case.

Huffman involved Younger abstention and shows the

effect of a state court decision on concurrent proceed-

ings in federal court.

In England the three-judge district court abstained

because of the presence of uncertain issues of state

law. Both the state and federal issues were submitted

to the state court which ruled adversely to the federal

plaintiffs on each. When they returned to the district

court, plaintiffs’ claims were dismissed on grounds of

res judicata and full faith and credit. 194 F.Supp.

521 (B.D. La. 1961). On review by the Supreme Court,

it held that federal plaintiffs were not required to

submit to the state court the federal issue, but were

only required to inform the state court of the issue

so that the state could construe state law in light of

federal constitutional questions, Resolution of the fed-

eral issue could be expressly reserved to the federal

forum by not submitting it to the state court. Thus,

the Supreme Court preserved federal plaintiff’s choice

of a federal forum to resolve his federal claim. The

Court did not, however, reserve to the federal plain-

tiff the right to have the matter resolved twice. At

375 U.S. 419 the Court stated:

“But we see no reason why a party, after un-

reservedly litigating his federal claims in the

state courts, although not required to do so,

should be allowed to ignore the adverse state de-

cision and start all over again in district court.”

x

If this language is directly applicable to our case,

then federal plaintiffs have waived their rights to a

determination by us of the merits of their federal

claim. However, there are substantial differences be-

tween Pullman and Younger abstention and blind

cross-application of principles is unwarranted. For a

distinction, see Huffman v. Pursue, 420 U.S. 592, 616

n.2 (1975) (Brennan, J. dissenting). But there are

similarities. Here, federal plaintiffs were not required

to request a stay of the federal proceedings in order

to allow the state court to rule. By doing so they

unreservedly litigated their federal claims in state

court when not required to do so. Thus, their re-

application to our court is similar to the situation in

England where the Supreme Court held that a liti-

gant is not entitled to two chances on his federal!

claim.

Even if the above language is not directly appli-

cable, nevertheless Hnyland is helpful in other as-

pects. The reason that the Court allowed the plaintiff

to preserve his right to return to federal court by

reserving the federal issue from the state court was

to preserve plaintiff's right to choose a federal forum

for his federal claim. “The right of a party plaintiff

to choose a Federal court where there is a choice

‘cannot be properly denied.” 375 U.S. 415 quoting

Wileor v. Consolidated Gas Co., 212 U.S. 19, 40

(1909). The major justification for preserving the

federal district court forum is to preserve federal

fact finding. “It is the typical, not the rare, case in

which constitutional claims turn upon resolution of

as OE ee

ee ee ee ee

oe OF el ann aS

aan Reb eee

xl

contested factual issues.” 375 U.S. at 416-417 quoting

Townsend v. Sain, 372 U.S. 293, 312 (1963). But

where the state proceeding is criminal, federal fact

finding is preserved through habeas corpus. At note

8, 375 U.S. 417, the court states:

“Even where fact findings on federal constitu-

tional contentions are for state tribunals to make

in the first instance, as in state criminal prosecu-

tions, they are not immune, when brought into

question in federal habeas corpus, from District

Court consideration and, in proper cases, from

de novo consideration. Townsend v. Sain, 372

U.S.”

Thus, the reason for allowing the federal plaintiff

immediately to return to the abstaining federal court

after a state decision is lacking where the state pro-

ceeding is criminal and habeas corpus available, Fed-

eral fact finding is preserved in other ways.

Implicit in all of this is that after Younger absten-

tion a federal plaintiff should not reserve his federal

claim or defense, but should unreservedly submit it

to the state court. Once having done so, he cannot

immediately return to federal court after an adverse

ruling, but must pursue his remedies by appeal and

habeas corpus. He cannot return to the three-judge

district court that abstained, at least not until the

state proceeding is final.

The other guiding case in our decision is Huffman

uv. Pursue, Ltd., 420 U.S. 592 (1975). It involved a

civil nuisance action by the State of Ohio seeking to

close a theatre for exhibiting pornographic movies.

xii

The Court held that this proceeding was sufficiently

similar to a eriminal prosecution to be within the

limitations of Younger. The federal plaintiff sought

to distinguish the nuisance action because of the non-

availabilitv of habeas corpus. The Court replied at

420 U.S. 606 (emphasis in original):

“Appellee’s argument, that because there may

he no civil counterpart to federal habeas it should

have contemporancous access to a federal forum

for its federal claim, apparently depends on the

unarticulated major premise that every litigant

who asserts a federal claim is entitled to have it

decided on the merits by a federal, rather than

a state, court. We need not consider the validity

of this premise in order to reject the result which

appellee seeks. Even assuming, arguendo, that

litigants are entitled to a federal forum for the

resolution of all federal issues, that entitlement

is most appropriately asserted by a state litigant

when he seeks to relitigate a federal issue ad-

versely determined in completed state court pro-

ceedings. We do not understand why the federal

forum must be available prior to completion of

the state proceedings in which the federal issue

arises, and the considerations canvassed in

Younger militate against such a result.”

In the succeeding paragraphs the Court may have

undercut the premise of the right to a federal court

forum, But to the extent that there is such a right,

the majority felt that it arises at the termination of

the state court proceedings.

The three dissenting justices did not agree that

Younger was applicable. But they implied that where

xi

Younger abstention is applicable federal relief is not

available until the termination of the state proceed-

ings. At note 2, 420 U.S. 616, Mr. Justice Brennan

discussed this point:

“Abstention where authoritative resolution by

state courts of ambiguities in a state statute is

sufficiently likely to avoid or significantly modify

federal questions raised by the statute is another

matter. Abstention is justified in such cases pri-

marily by the policy of avoidance of premature

constitutional adjudication. The federal plaintiff

is therefore not dismissed from federal court as

he is in Younger cases, On the contrary, he may

reserve his federal questions for decision by the

federal district court and not submit them to the

state courts. England v. Louisiana State Board

of Medical Examiners, 375 U.S, 411, 84 S.Ct. 461,

11 L.Ed.2d 440 (1964). Accordingly, retention

by the federal court of jurisdiction of the federal

complaint pending state court decision, not dis-

missal of the complaint, is the correct practice.

Lake Carriers’ Assn. v. MacMullan, 406 U.S. 498,

512-513, 92 S.Ct. 1749, 1758, 32 L.Ed.2d 257

(1972).”

If Younger abstention requires dismissal, as the

quotation indicates, the federal plaintiffs’ only reme-

dies are to appeal the state court ruling and habeas

corpus. Both remedies come after the termination of

the state court proceedings. Thus, in the dissenters’

view, as in the majority’s, to the extent that there is

a remedy, it comes after the state court decision is

final.

The state has raised the issue of the res judicata

and collateral estoppel consequences of the Alaska

xiv

Supreme Court decision. Because of our holding that

the consequences of abstention prevent relitigation of

the merits of plaintiffs’ claims at this time, we need

not consider the applicability of res judicata and col-

lateral estoppel. It is not an issue entirely free from

doubt. Huffman, supra, 420 U.S. at 607, note 19. See

Thistlethwaite v. City of New York, 497 F.2d 339

(2nd Cir. 1974) ; Goodrich v. Supreme Court of South

Dakota, 511 F.2d 316 (8th Cir. 1975). Compare the

res judicata implications had a declaratory judgment

been rendered by this court. Steffel v. Thompson,

415 U.S. 452, 470 (Brennan for the Court), 477

(White coneurring), 482 (Rehnquist coneurring)

(1974). The reversal and remand by the Alaska Su-

preme Court may not be a final decision for res judi-

cata purposes. East Bay Union of Mach., Local 1304

uv, Fiberboard Products Corp., 285 F. Supp. 282 (N.D.

Cal. 1968) aff'd. 485 F.2d 556 (9th Cir. 1970). Be-

cause resolution of these complex questions is not nee-

essary under our reasoning, we will not do so at this

time.

In essence, what has happened in this case is ab-

stention by stipulation. We see no difference between

the consequences of abstention by agreement of the

parties or by order of the court. In either case fed-

eral review of the state decision is postponed until

the state proceedings are final. We do not sit as a

court of appeals to review the decision of the Alaska

Supreme Court.

For the reasons stated, the third amended complaint

is dismissed as to all federal plaintiffs. The injune-

sen eh Na ig a i EI tl tt A

me Oe beeen

xv

tive order issued by this Court on May 16, 1974, is

now vacated. All prior controversy is declared moot.

/s/ Raymond E. Plummer

Raymond EF. Plummer

Senior United States District Judge

/s/ James A. von der Heydt

James A. von der Heydt

United States District Judge

Dated: 6/11/76

Warieut, Circuit Judge, concurring in the result.

The res judicata and collateral estoppel effects of

the final decision’ of the Alaska Supreme Court in

State v. Bundrant, 546 P.2d 530 (Ak. 1976), require

that we dismiss the federal complaint as to those seven

federal plaintiffs who are parties defendant in the

state criminal proceeding.’

I agree with the analysis of the majority imputing

the state criminal prosecution to the remaining 37

federal plaintiffs. While the relationship between the

seven and the 37 is not such that the doctrines of res

judicata and collateral estoppel should be applied to

1The fact that only three of five Alaska Supreme Court

Justices participated in Bundrant does not detract from the

precedential value of that decision. Cf. Recent Cases, 86 Harv.

L. Rev. 1307 (1973); Comment, 50 Wash. L. Rev. 901, 907 &

n.42 (1975).

2The constitutional issues raised in the third amended federal

complaint are the same as those decided by the Bundrant court.

There is identity of parties as to the seven federal plaintiffs who

are also state defendants in Bundrant. The federal defendants

are in privity with the State of Alaska, the state plaintiff.

Therefore, the estoppels are mutual.

xvi

those federal plaintiffs who are not state defendants,

the relationship is sufficiently close to apply Younger

principles to all federal plaintiffs.

I would treat the third amended complaint as a new

claim, filed after the promulgation of new state regu-

lations and commencement of state criminal proceed-

ings pursuant to them.* Younger teaches that we must

dismiss the third amended complaint as to all federal

plaintiffs deemed subject to the state criminal pro-

ceeding.

3Plaintiffs’ third amended complaint is actually a “supple-

mental pleading,” since it “[sets] forth transactions or oceur-

rences or events which have happened since the date of the plead-

ing sought to be supplemented.” Fed. R. Civ. P. 15(d). The

repeal of a statute, regulation or ordinance the enforcement of

which has been previously enjoined, followed by enactment of a

new measure, is a typical situation calling for the filing of a

supplemental pleading. See, e.g., Griffin v. County School Board

of Prince Edward County, 377 U.S. 218, 226-27 (1964).

While an amended complaint is not ordinarily regarded as a

new “cause of action,” this supplemental pleading should be.

Compare Cherry v. Morgan, 267 F.2d 305, 305-06 (5th Cir.

1959). (But this does not preclude us from entertaining the

supplemental pleading in the same lawsuit. Cf. Rowe v. United

States Fidelity and Guaranty Co., 421 F.2d 937, 942-44 (4th

Cir. 1970). The need to avoid multiplicity of lawsuits, evi-

denced by ancillary and pendent jurisdiction doctrine, and by

rules allowing liberal pleading and joinder of claims, supports

a policy of freely admitting supplemental claims. See Case-

Swayne Co. v. Sunkist Growers, Inc., 369 F.2d 449, 462 (9th

Cir. 1966), rev’d on other grounds, 389 U.S. 384 (1967). See

generally 6 C. Wright & A. Miller, Federal Practice and Pro-

cedure § 1506 (1971); 3 J. Moore, Federal Practice § 15.16[3}

(2d ed. 1975).)

Plaintiffs argue, however, that the new state regulatory scheme,

adopted June 15, 1974, is “simply a subterfuge and a flagrant

violation of the outstanding injunction.” Compare Griffin, 377

U.S. at 276-77. This suggests that the third amended complaint

is not a new “cause of action” at all.

Such a suggestion, if accepted, would support the conclusion

that “proceedings of substance on the merits [had] taken place

in the federal court” prior to the July 15, 1974 filing by the

state of its criminal complaint. Hicks v. Miranda, 422 U.S. 332,

ce ll ee ny ats a bene

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Oe ee, ees TR

xvll

The Alaska court in Bundrant ruled in favor of the

state with respect to the same constitutional claims

as those presented in this federal action. Thus, there

apparently remains no “adequate remedy at law” in

the state system with respect to those constitutional

claims. Huffman v. Pursue, Ltd., 420 U.S. 592, 601

(1975). In the absence of an adequate legal remedy,

an equity court normally need not stay its hand.

However, the Younger doctrine is based not merely

upon general equitable principles, but also upon

. an even more vital consideration, the notion

of “comity,” that is, a proper respect for state

functions, a recognition of the fact that the entire

country is made up of a Union of separate state

governments, and a continuance of the belief that

the National Government will fare best if the

States and their institutions are left free to per-

form their separate functions in their separate

ways. ... [T]he National Government, anxious

though it may be to vindicate and protect federal

349 (1975). In that event, Younger principles would not pre-

vent this court from entertaining the third amended complaint.

However, I cannot agree with plaintiffs’ premise. Scrutiny of

the new regulations demonstrates that Alaska has sought to

follow the suggestions in our prior opinion, 377 F. Supp. at 441.

See 5 Alaska Admin. Code §§ 34.005, -.030, -.035, -.085, -.098.

While this new regulatory scheme implements the same purpose

as that underlying the regulations whose enforcement we pre-

viously enjoined, the means employed here are different. Compare

ITjelle, 377 F. Supp. at 432-33, with Bundrant, 546 P.2d at 533-

34; id. at 558 (Rabinowitz, J., concurring). Where, as here, the

state has made a conscientious effort to tailor its regulations to

the language of the prior opinion of this court, there is no

“subterfuge” or “flagrant violation” of our prior ruling. Rather,

Alaska is engaged here in legitimate legislative experimentation.

The situation in Griffin, supra, is in stark contrast.

Thus, I would treat the third amended complaint, actually

a supplemental pleading, as the equivalent of a new claim

challenging the regulations of June 15, 1974.

xvlll

rights and federal interests, always endeavors to

do so in ways that will not unduly interfere with

the legitimate activities of the States.

Younger v. Harris, 401 U.S. 37, 44 (1971), quoted in

Huffman, supra, 420 U.S. at 601.

The Alaska court remanded the cause in Bundrant

so that “the State may proceed to enforce its crab

regulations” against the defendants. 546 P.2d at 556.

The criminal trial on the merits is pending.

Federal plaintiffs mount a facial constitutional at-

tack on Alaska’s crab regulations and authorizing

statutes. Were we to grant either declaratory or in-

junctive relief, our judgment would necessarily pre-

vent any and all enforcement of those statutes and

regulations, Thus, a judgment in favor of any of the

federal plaintiffs would preclude the state from pros-

ecuting the parties-defendant in Bundrant. Such a

result would “unduly interfere with the legitimate ac-

tivities” of the State of Alaska, and thereby violate

the principles announced in Younger and its progeny.

For these reasons, I agree that the third amended

complaint should be dismissed as to all federal plain-

tiffs.*

‘Unlike the majority, I would not rely on an “abstention by

stipulation” rationale to dispose of this action. It is not clear to

me that by requesting a stay pending decision in Bundrant those

federal plaintiffs who are not state defendants have “unreservedly

litigated their federal claims in state court. . . .” (Majority

opinion at 7.)