Reply — Uri v. Alaska

IN THE SEP 20 1976

SUPREME COURT OF THE UNITED STAT

MICHAEL RODAK, JR.,CLERK

October Term, 1975

No. 75-1873

KONRAD S. URI, PER NYMARK, ARNCLD RASMUSSEN,

RONALD BEIRNES, BORGE H. MANNES, CARL PEROVICH,

BJORN NYMARK, SVERRE A. YRI, OLE HENDRICKS,

SIGMUND ANDREASSEN, CORY A. KALDESTAD, MICHAEL

LYNCH, JR., LARS MYHRE, THOMAS HAUGAN and

EMIL VINBERG,

Appellants,

’ V.

STATE OF ALASKA,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF

THE STATE OF ALASKA

BRIEF OF APPELLANTS IN OPPOSITION TO

MOTION TO DISMISS

DOUGLAS M. FRYER

HENRY HAUGEN of

MORIARTY, LONG,

MIKKELBORG & 5ROZ

Office and P.O. WILLIAM B. ROZELL of

Address’ FAULKNER, BANFIELD,

3300 Seattle-First DOOGAN & HOLMES

National Bank Bldg.

Seattle, WA 98154 Counsel for Apcellants

CAAFTSMAN PRESS = WORD PROCESSING. SEATTLE

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No. 75-1873

KONRAD S. URI, PER NYMARK, ARNOLD RASMUSSEN,

RONALD BEIRNES, BORGE H. MANNES, CARL PEROVICH,

BJORN NYMARK, SVERRE A. YRI, OLE HENDRICKS,

SIGMUND ANDREASSEN, CORY A. KALDESTAD, MICHAEL

LYNCH, JR., LARS MYHRE, THOMAS HAUGAN and

EMIL VINBERG,

Appellants,

Vv.

STATE OF ALASKA,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF

THE STATE OF ALASKA

BRIEF OF APPELLANTS IN OPPOSITION TO

MOTION TO DISMISS

DOUGLAS M. FRYER

HENRY HAUGEN of

MORIARTY, LONG,

MIKKELBORG & BROZ

Office and P.O. WILLIAM B. ROZELL of

Address: FAULKNER, BANFIELD,

3300 Seattle-First DOOGAN & HOLMES

National Bank Bldg.

Seattle, WA 98154 Counsel for Appellants

SUBJECT INDEX

Page

Be a a a a l

II. The Judgment Below Was Final In

Denying Appellants’ Supremacy Clause

Defenses and in Sustaining Extra-

territorial Jurisdiction. . ...-se-e-e«e-s 3

III. The Federal Questions Are Substantial ... 15

A. The Position of the United States

is in Conflict With the Opinion

a a a ae er a ae a a a 15

B. The Passage of HR 200 Does Not

Lessen the Importance of the

gg Pe ae ee ee 19

C. The Conflicts Between the Opinion

Below and Federal Decisional Law

Reuse eh eee eee eee 6 6 8 8 24

ae, ££: |). k- Bere ee ee 24

2. United States v. Ray .....e.s-s 27

a ee ee 30

Sarervvemen Gr SOPWUGR ec wo ee eee eee elt 32

TABLES OF AUTHORITY

Table of Cases

Alaska v. Arctic Maid, 366 U.S. 199

nn +h 66d 66 6 & be ee S Oe é ee SD 6

Bayside Fish Flour Co. v. Gentry, 297 U.S.

Tan 6 6 66 66 86 ee +e Oe ee 27

California v. Stewart, 384 U.S. 436

(1966) i ae ae on oe ee ee ee oe en ee ee ee . 13

ii

Page

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

ae + s+ 666 6 ee * & & Se $s

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

Felton v. Hodges, 374 F.2d 337

(Sth Cir. 1967). ..... see eee enon

Frach v. Schoettler, 46 Wn.2d 281,

cou P.26 WH we ee ee ee a

Harris v. Washington, 404 U.S. 55

» « « 3,9,12

14

. 21

fy ) Pree ee oe eee eo o e 8,12

Hjelle v. Brooks, 377 F. Supp.

430 (D. Alaska 1974) .......2..0.6-. - 6,8,24,

Hudson Distribs. v. Tracy & Co.,

U.S. +] 7 . . . . . . _ . -10 12

Local 438, AFL-CIO v. Curry, 371 U.S. 542

Co rere ere eer a ee 8,11,12

Mercantile Nat'l Bank v. Langdeau,

83 8) rere eee ;* és @

Miami Herald Publishing Co. v. Tornillo,

418 Bete 241 (1974) . 7 . . . . + ° + . . . .

Nathanson v. State (No. 2541), opinion

August 27, 1976, _ P.2d __—s(Alaska) .

Norfolk & Western Ry. v. Missouri Tax

Comm'n., 390 U.S. 317 (1968) ...... és

North Pacific Fishing Vessel Owners Ass'n

v. Norenberg, U.S. is Ct., Alaska,

No. J- g- 70. . 7 . *- *¢+ &# * & @& ©@ a . . . 7. .

Pampanga Sugar Mills v. Wenceslao

Trinidad, 279 U.S. 2l1l1....ee-. e808 @

aires -

iii

Page

Silz v. Hesterberg, 211 U.S. 31

DO caenece eS eee eR EO OO 88 8 27

Skiriotes v. Florida, 313 U.S. 69

a! . - 4“ « 6 6-6 68 6.8 8 6 es 6 @ 18,22

State v. Browder, 486 P.2d 925

Pe 8 sd et bee) ae: eC ODO 13

United States v. Alaska, 422 U.S. 184

(1975) owe ae oe ee eo es Ce eS Oe Se. US Ue Oe eS 17-18

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

(1947) > on) ae aa oe eee a a» oe Ss 8 8 ss 6,14-

15,16

United States v. Price, 361 U.S. 304 ...... 20

United States v. Ray, 423 F.2d 16

. £3 SS. . errrrreees 27-28

United States v. Texas, 339 U.S. 707

i < --« bs 6 6 6 8 6.6 6 8. 6's 8s ee 8 29

Younger v. Harris, 401 U.S. 37 (1971). .... - 25

Statutes

0 ee eee a ae a ae ee ee ee 20

ff fe See ee ae ae a ee ee 7

or eee 6 6 6 6 6 e & 6-6 66 6 6 Oe 21

ft ££ & Ga ewe a ee ee er a ae 2,19

Sf £% | ee ee a ee oe ee ee ee cee a

of |.) ) ne ae a ae ee ee ae oe oe 21

16 USC § 1812(3) . 2. 2 we we we we ee eee eevee

16 USC § 1856(a) . 2. 2. 2 we ee ee wee eevee

iv

Page

16 USC $$ 1066(B) .. ee eee ceeeses ococe ds

ee ee Se eee ocece 16

43 VSC $1312 ~ - ce vvevsseessseeeen 20

46 USCS 17 ~ oe eo ecevevcves oe e eens o « 2

15 UST 471, TIAS 5578 (1958) ...... o « eae

Constitutional Provisions

U.S. Const. amend. IV. . .. 2. 2 wee ococeceoe 9

U.S. Const. amend. V. . 2. 2. 2. 2 ew wo oe ee W

Other Authority

Alaska Appellate Rule 5 ..... ceoeeees 13

1953 Cong. Rec. 7232, 72H. eo eee esesen 29

Hearings Before Committee on Int. and Ins.

Affairs, Senate, 82nd Cong., lst Sess.

on S.J. Res. 20, Submerged Lands (1951). . .. 15

Senate Rep. No. 411, 83rd Cong., lst Sess.

(1963) we cc cevenseseen es eee 17

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

KONRAD S. URI, PER NYMARK, ARNOLD RASMUSSEN,

RONALD BEIRNES, BORGE H. MANNES, CARL PEROVICH,

BJORN NYMARK, SVERRE A. YRI, OLE HENDRICKS,

SIGMUND ANDREASSEN, CORY A. KALDESTAD, MICHAEL

LYNCH, JR., LARS MYHRE, THOMAS HAUGAN and

EMIL VINBERG,

Appellants,

V.

STATE OF ALASKA,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF

THE STATE OF ALASKA

BRIEF OF APPELLANTS IN OPPOSITION TO

MOTION TO DISMISS

Re

INTRODUCTION

In its effort to avoid review by this court,

Alaska has urged two points. First, that there

is a lack of finality in the Alaska Supreme Court

resolution of jurisdiction in favor of the State,

2

1 has

and, second, that the passage of HR 200

lessened the importance of the two principal

issues presented by this appeal. These are:

First, whether there is exclusive federal juris-

diction over living resources of the Continental

Shelf. Alaska concedes that this holding is

"final" in all respects (Motion to Dismiss, p.

8). The second issue relates to the assertion of

jurisdiction by Alaska outside its territory in

defiance of the position of the United States.

It is this very assertion which is a final action

which is so recognized by Oregon and California

and which requires review by this court.

Existing law does not support Alaska and,

while the passage of HR 200 is relevant, it does

not lead to a contrary conclusion, nor affect

the rights of appellants who face trial for

acts committed before passage of HR 200. While

it is understandable that the United States will

claim pre-emptive rights on the basis of the new

act, as it does under existing law, the new act

Be Now entitled The Fishery Conservation and

Management Act, 16 USC § 1801, et seq.

3

does not diminish the importance of the basic

jurisdictional question, particularly since

Alaska seeks to construe language in this act on

the basis of the opinion below to justify its

expanded jurisdiction.

Il.

THE JUDGMENT BELOW WAS FINAL IN DENYING

APPELLANTS’ SUPREMACY CLAUSE DEFENSES AND

IN SUSTAINING EXTRATERRITORIAL JURISDICTION

The Alaska Supreme Court has held that con-

trol of the living resources of the Shelf, includ-

ing crab, is not vested exclusively in the federal

government and, hence, that appellants’ attack

upon the Supremacy Clause must fail. Alaska

concedes--as it must--that this holding is final.

Resolution of this issue alone in favor of ap-

pellants would dispose of the entire controversy

and hence an appeal is appropriate. Cox Broad-

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

As to the holding below on extraterritorial

jurisdiction, Alaska urges that this lacks

finality in that it merely holds that “some

4

state regulation beyond the so-called three-mile

limit is not forbidden per se." (Motion to Dis-

miss, p. 8). Alaska states that issues of "nexus"

and the extent of the burden on commerce or for-

eign commerce remain. However, the court below

did not rely on the “nexus" theory” and held

as a matter of law:

(1) We conclude that the commerce clause

does not render regulation of fish-

eries in the Bering Sea the exclusive

domain of the federal government.

(Jurisdictional Statement, p. A-23.)

(2) Having concluded that the doctrines

of federal exclusivity and pre-emption

are not applicable, and that these

regulations are not invalid under

Supremacy clause of the Constitution

of the United States, we turn now. . .

(Jurisdictional Statement, p. A-40.)

(3) We therefore conclude that a state may

reasonably extend its jurisdiction

to control fish and game resources

Outside the limited area of its

territorial sovereignty, if such

an exercise is based on the conser-

vation principles inherent in their

migratory charateristics and not

2. “. . . [W]e are not persuaded that the

state's creation of the concept of a ‘crab fishing

cftizen is particularly helpful--or even approp-

Seeee « « 8" Appendix A-57, Jurisdictional

Statement.

5

based on artificial boundaries or

political circumstances.

(Jurisdictional Statement, p. A-54.)

(4) In order that there is no confusion

with regard to our holding, we re-

iterate that the difference in status

between each offender does not affect

Alaska's jurisdiction over him.

We

(Jurisdictional Statement, p. A-58.)

As to these crucial issues presented by this

appeal, the decision of the Alaska Supreme Court

is indeed final and is so recognized by Oregon

and California.°

3. “Oregon also intends to enforce its regula-

tions against all persons holding Oregon commer-

cial fishing licensed [sic] or fishing out of

Oregon ports. Our authority to do this is speiled

out in the recent decision of the Alaska Supreme

Court in Alaska v. Bundrant, et al., and the

many cases cited therein." Jurisdictional State-

ment, Appendix H-l & 2.

"The official position of California

is that all coastal states have the right to

regulate fishing . . . in waters beyond the

territorial limits of the coastal states

The right of any such coastal states to regulate

such fishing is not limited to the citizens or

residents of that state, but extends to citizens

and residents of other states as well." Juris-

dictional Statement, Appendix G-1l.

When California requested leave to appear

as amicus curiae in the Alaska Supreme Court it

urged that the “litigation concerns the right of

any coastal state, not just Alaska, to regulate

fishing in waters beyond the territorial limits

of the state." (Emphasis supplied).

6

Thus, the decision below presents in sharp

focus the critical federal-state conflict as to

jurisdiction over living shelf resources and

extraterritorial enforcement by a state. It is

a fundamental issue that all concerned observers

recogi.ize must be resolved by this Court:

We moreover acknowledge that our decision

today may provide the most effective ve-

hicle for assuring that this matter wil]

at last receive the prompt and definitive

attention by the final arbiters of such

questions--the Congress or the Supreme

Court of the United States.

(Jurisdictional Statement, A-39.)

It is the very act of sustaining juris-

diction which is final action. Heretofore direct

action by a state outside its territory over a

non-citizen has been held to violate the Commerce

Clause and the Due Process Clause as a matter of

law. Hjelle v. Brooks, 377 F. Supp. 430 (0D.

Alaska 1974); United States v. California, 332

U.S. 19 (1947); Norfolk & Western Ry. v. Missouri

Tax Comm'n., 390 U.S. 317 (1968); Alaska v.

Arctic Maid, 366 U.S. 199 (1961). The Alaska

Supreme Court was not pursuaded that a resolu-

tion of factual issues was material to its

7

holding’ and the court was persuaded that

adequate facts were established for sustaining

the assertion of jurisdiction. It is not dis-

puted that the alleged criminal activity of 14 of

the 15 defendants took place at least 16 miles

from shore and outside Alaska territory; that

only one of the 15 defendants is an Alaska citi-

zen; that the king crab being regulated is

"sedentary species" which "are unable to move

except in constant contact with the seabed or

the subsoil of the Continental Shelf .. ." 16

USC § 1085; Geneva Convention on the Continental

Shelf, 15 UST 471, T1AS 5578 (1958); and that the

Alaska assertion extends to “an area hundreds of

4. Alaska urges that, while in the Bundrant

case there was a stipulation of fact, in the Uri

and Kaldestad cases there was none and that there-

fore there was no factual determination on which

jurisdiction could be based. In the opinion

below, the Alaska Supreme Court did not seek to

differentiate between Bundrant and Uri. In

their motion for reconsideration, appellants

sought to draw a distinction between the two

cases. In denying the motion, the Alaska Supreme

Court held that it had adequate facts on which

to base jurisdiction, including facts judicially

noticed and that other defenses could be con-

sidered by the trial court. (Jurisdictional

Statement, C 1-3.)

8

miles beyond Alaska's territory." Hjelle v.

Brooks, 377 F. Supp. at 441; 5 AAC 34.900.

This is a criminal proceeding against appel-

lants, not a declaratory judgment or injunctive

proceeding. The result could be penal. The

attempt by Alaska to assert jurisdiction and bring

appellants to trial is the act which violates the

United States Constitution and affords the finality

necessary for this court to undertake review.

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

438, AFL-CIO v. Curry, 371 U.S. 542 (1963).

Alaska urges that this court should not

intervene as it could delay the outcome of the

state court criminal trials. Alaska ignores that

the Alaska Supreme Court which has primary respon-

sibility for the administration of criminal

justice granted a stay of proceedings apparently

feeling that whatever jeopardy would occur to

the prosecution was outweighed by the importance

of this court resolving the issues presented by

this appeal. Alaska also ignores that resolution

of the issues in appellants’ favor will result

in final disposition of the controversy.

9

Defendants are charged and face criminal

prosecution for actions undertaken admittedly

outside Alaska territory and over which no author-

ity has heretofore authorized such prosecution.

Delay would mean that in the interim Alaska,

Oregon and California and perhaps other states

will pursue law enforcement on the high seas

outside their territory.

Alaska contends that both the third and

fourth categories of Cox are inapposite to estab-

lish the finality of the judgment below. The

third category of Cox allows review in those

cases where there is no “later review of the

federal issue" if the party seeking review loses

at trial. Alaska argues that Cox does not apply

if there are other federal issues left to be

decided and that here there is an "abundance" of

such other issues. Actually, there are two other

federal issues which have been raised beyond those

ruled upon below: (1) Whether the warrantless

search by Alaska law enforcement agents of appel-

lants' crab pots’was unreasonable under the Fourth

Amendment, and (2) whether the Alaska regulations

10

were impermissibly vague under the Fifth Amend-

ment. The first question, appellants concede,

would not be substantial enough to warrant this

court's consideration. In any event, the Alaska

Supreme Court has now resolved this issue in

another case.”

The second question should not

be of sufficient substance at this point to

delay review of the more important question of

jurisdiction.©

The issue of vagueness was

briefed and argued to the court below but appar-

ently the Alaska Supreme Court felt that the

issue was not significant enough even to warrant

comment.

Certainly there are cases where this court

has refused to review decisions where additional

federal questions must later be resolved. See

e.g. Hudson Distribs. v. Lilly & Co., 377 U.S.

386, 395 (1964), dissenting opinion of Mr. Justice

3 Nathanson v. State (No. 2541) opinion,

August 27, 1976, -P.2d _—sS CAilaska) holding

that there was no reasonable expectation of

privacy which would bring a crab pot within the

protection of the Fourth Amendment.

6. See Jurisdictional Statement, page 7, foot-

note 6.

11

Harlan. It is submitted, however, that the addi-

tional issues here do not relate at all to the

substantial questions of basic state power, juris-

diction and exclusive federal rights. Mercantile

Nat'l Bank v. Langdeau, 371 U.S. 555 (1963);

Local 438, AFL-CIO v. Curry, 371 U.S. 542 (1963).°

The issues sought to be raised before this court

go to the very heart of the right of Alaska to

7. The question of which court had jurisdic-

tion to try a lawsuit.

"This is a separate and independent matter,

antecedent to the merits, and not, emeshed in

the factual and legal issues comprising the i

plaintiff's cause of action." 371 U.S. 558.

8. The question of whether the NLRB had ex-

clusive jurisdiction over a labor dispute as

opposed to a state court.

The case is not whether a Georgia court

has erroneously decided a matter of federal

law in a case admittedly within its juris-

diction (compare Gibbons v. Ogden, (U.S.)

9 Wheat. 448) nor is it the question of

whether federal or state law governs a

case properly before the Georgia courts.

Compare Teamsters, C.W. & H. v. Lucas

Flour Co., 369 U.S. 95. What we do have

here is a judgment of the Georgia court

finally and erroneously asserting its

jurisdiction to deal with a controversy

which is beyond its power and instead

is within the exclusive domain of the

National Labor Relations Board.

371 U.S. 548.

12

bring appellants to trial at all. These questions

are “separate and apart" from the question of

whether appellants may be convicted. Harris v.

Washington, 404 U.S. at 56. Alaska has not dis-

tinguished Harris or Local 438 which are control-

)

ling.

The presence of other federal issues alone

should not delay review, Hudson Distribs. v.

Lilly, supra, particularly where those other

issues are not jurisdictional and where resolu-

tion of the issues posed by this appeal in appél-

lants' favor will not only be dispositive of the

entire litigation, but will govern the extra-

territorial law enforcement efforts of at least

three states.

Alaska states that the third category of

Cox likewise does not apply since if appellants

succeed on retrial, the State may still appeal

the “other federal issues" (Motion to Dismiss,

9. Compare Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974), where a state

supreme court order reversing a trial court's

judgment that a state statute was unconstitu-

tional and remanding for trial was held "final"

for § 1257 review.

13

p. 18). However, the State's right to appeal,

as distinct from requesting discretionary writs,

is distinctly limited to testing the sufficiency

of the indictment or information. Alaska Appel-

10

late Rule 5. State v. Browder, 486 P.2d 925

(Alaska 1971). Thus, any acquittal not based

upon a construction of the indictment or informa-

tion would deny the state a right to appeal.

Alaska does not even mention California v.

Stewart, 384 U.S. 436, 497 (1966), in which

this court granted review because an acquittal

on the merits would have precluded the state from

appealing nor does there appear to be any logic

to the State's assertion that if appellants do

win on the merits that Alaska must “abandon its

10. "Rule 5. Judgments From Which Appeal May

Be Taken. Any appeal may be taken to this court

from a final judgment entered by the superior

court or a judge thereof in any action or proceed-

ing, civil or criminal, except that the state

shall have a right to appeal in criminal cases

only to test the sufficiency of the indictment

Or on the ground that the sentence is too

lenient." To the same effect is Alaska Statute

22.05.010. ", . . An appeal to the supreme

court is a matter of right, except that the state

shall have no right of appeal in criminal cases,

except to test the sufficiency of the indict-

ment or information. . ."

14

fishing laws" (Motion to Dismiss, p. 18). Ob-

viously an acquittal by the jury or dismissal

of charges by the court for lack of sufficient

evidence will leave the fishing laws totally

unaffected.

Alaska also contends that the fourth category

of Cox!

does not apply because the holding

below does not seriously erode federal policy.

It states that the United States has not made

claim to the resource in spite of the position

taken by the Department of Justice in the court

below that federal jurisdiction was exclusive.

In this regard the Attorney General is the spokes-

man for the United States in the courts and it

is his duty to protect claims to government

property. United States v. California, 332

ll. This category allows review of decisions

which (1) would allow the party seeking to pre-

vail on the merits below, (2) where reversal on

the federal issue would preclude further liti-

gation rather than merely controlling its nature

and character, and (3) where a refusal immediately

to review would seriously erode federal policy.

15

U.S. 19, 27 (1947). 22 The Attorney General

speaks for the United States not the Alaska

Attorney General.

Ill.

THE FEDERAL ae

A. The Position of the United States is in

Conflict With the Opinion Below

The United States, in its brief as amicus

curiae, claimed exclusive jurisdiction over king

crab as a living resource of the Continental

Shelf and that Alaska could not constitutionally

regulate the activities of non-citizens of Alaska

on the high seas. The opinion below rejected

both contentions. In its motion to dismiss,

Alaska seeks to avoid this conflict by stating

*

12. During the tide land legislation debates

this was recognized by Senator Cordon. “Every

State . . . must forever face the fact that some

of these days . . . the Department of Justice

will conclude that it desires to assume some

additional jurisdiction and proceed to do so."

Hearings Before Committee on Int. and Ins.

Affairs, Senate, 82nd Congress, First Session,

on S.J. Res. 20, Submerged Lands (1951) (p. 406).

16

that the only real concern of the United States

is with respect to possible enforcement of Alaska

regulations over foreign nationals, and that this

case, according to the Alaska Supreme Court,

does not present such an issue. This does not

accurately reflect the position of the United

States.

A critical threshhold question is whether

the taking of living resources of the Shelf is

"fishing" at all. See dissenting opinion of

Mr. Justice Connor, Jurisdictional Statement,

A-71, 78.

Whether crabs are included in fishing

rights, or are a resource of the ocean

floor, for purposes of the act [OCSLA]

is precisely the question at issue here.

The whole area of regulation of ocean floor

resources is inextricably entwined with inter-

national law and affairs and with claims of the

United States. United States v. California,

332 U.S. 19 (1947). the OCSLA preserves the

rights of freedom of "fishing" on the high seas

while claiming exclusive federal jurisdiction

for taking of Shelf resources. 42 USC § 1332.

17

Senator Cordon's language indicated that the

freedom of fishing is restricted to "all marine

life above the land itself beneath the seas"--

fish in the water column. Senate Rep. No. 411,

83rd Congress, lst Session (1953).

But crabs, in both international law, as

related above, and municipal United States

law, Bartlett Act, 16 USC Section 1085

(1964), are creatures of the sea floor,

and not fish belonging to the water column

“above the land itself”.

Connor, Jurisdictional Statement, A-71.

Even if the taking of crab is "fishing"

as distinct from harvesting shelf resources,

unilateral action by any state of the union in

international waters in a crab fishery utilized

at present by three nations will have inter-

national complications. See dissenting opinion

of Mr. Justice Connor, Jurisdictional Statement,

A-78.

Thus, if states may regulate "fishing"

on the high seas generally, their regula-

tions, once notified to the proper author-

ities, create international obligations.

Moreover, prior attempts by Alaska to assert

its fisheries laws on the high seas are docu-

mented. For example, in United States v. Alaska,

18

422 U.S. 184 (1975), an incident is discussed

wherein Alaska arrested three Japanese fishing

vessel captains more than three miles from shore

in Shelikof Strait and charged them with viola-

tion of Alaska regulations.

Alaska has failed totally to respond to the

claim by the United States of exclusive juris-

diction over king crab as a living resource of

the Continental Shelf. It is not even mentioned

in the motion to dismiss. The federal government

has, of course, acted as trustee for the citizens

of all states in claiming this resource. In

addition, the United States in the court below

has sought to restrain an extension of Skiriotes

v. Florida, 313 U.S. 69 (1941), whereas the

opinion below has expanded Skiriotes to allow

Alaska to regulate the citizens of other states

such as appellants./>

13. The action of the Alaska Legislature in

unanimously condemning appellants’ actions is

politically invulnerable, since appellants have

no vote in Alaska. This is one of the aspects

of the relationship between citizen and state

which would seem to allow extraterritorial rgu-

lation.

19

Alaska has also failed to discuss that Oregon

and California, in reliance upon the opinion

below, and in defiance of the position of the

United States, have asserted extraterritorial

jurisdiction over non-citizens (Jurisdictional

Statement, G-1, H-1).

B. The Passage of HR 200 Does Not Lessen the

Importance of the Questions Posed

Alaska incorrectly contends that the Fishery

Conservation and Management Act, 16 USC § 1801,

et seq., lessens the importance of the questions

14 The new statute does not resolve the

posed.

questions presented in this case such as includ-

ing the ownership and exclusive jurisdiction of

king crab as creatures of the Shelf, and control

by one state outside its territory over citizens

of other states.

The new statute which is effective on March

1, 1977 establishes a “conservation zone" extend-

ing from the boundary of the state (3 miles for

14. Because defendants face jail sentences

and fines if convicted there is no possibility

of these cases becoming moot.

20

Alaska)!° to a distance of 200 miles. 16 USC

§ 1811. The act then sets forth three distinct

concepts which are germane here: (1) control of

shelf resources, (2) federal management of fishing

within the zone, and (3) state regulation within

the zone.

In the new act exclusive federal regulation

over living Shelf resources such as crab is pro-

vided for only in the area beyond the conserva-

tion zone, i.e., 200 miles. 16 USC § 1812(3).2°

There is no resolution whether the federal govern-

ment has exclusive jurisdiction of Shelf resources

within the zone as is posed by this case. Appel-

lants urge that that is provided by the OSCLA.~/

15. 72 Stat. 339; 43 USC § 1312.

16. "The United States shall exercise exclu-

sive fishery management authority in the manner

provided in this chapter, over the following:

(3). All Continental Shelf fishery resources

beyond the fishery conservation zone."

17. Nor can Alaska argue that the failure of

Congress to assume exclusive federal jurisdiction

over shelf resources within the zone in 1976

indicates that Congress did not intend to do so

in earlier years. United States v. Price, 361

U.S. 304; Pampanga Sugar Mills v. Wenceslao

Trinidad, 279 U.S. 211.

21

With respect to the area within the zone the

new act is ambiguous as to jurisdiction. It

provides for federal management authority as

“provided for in this chapter" over fish within

the zone, 16 USC § 1812(1), but goes on to imply

that states may continue to regulate in the same

manner as is consistent with existing law.

16 USC § 1856(a). That proviso begins by stating

that nothing in the act shall extend or diminish

State authority within state boundaries. 16 USC

§ 1856(a)./° It then provides that state regu-

lation of fishing outside a state's boundaries

is not permitted unless the vessel in question

is registered under the laws of the state.

"Registration" thus will permit state regulation

18. This is similar to the Bartlett Act of

1966, 16 USC § 1094, which also states that

"Nothing in this chapter shall be construed as

extending the jurisdiction of the states to the

natural resources beneath and in the seas within

the fishery zone." (An area 9 miles outside

state territory.) The opinion below brushed

aside this statute as applying only to foreign

fishing. Jurisdictional Statement, A-34. Com-

pare Douglas v. Sea Coast Products, No. 75-1255,

which held that the Bartlett Act pre-empted all

state regulation of fisheries as to who is en-

titled to approve the entry of foreign fishing

vessels within the marginal sea.

22

within the zone but is nowhere defined. It may

well be a confirmation of Skiriotes v. Florida,

313 U.S. 69 (1941), that a state may regulate

its own citizens beyond its boundaries since

vessels are documented with the Coast Guard in

the state or residence of the owners. 46 USC

§ 17. Alaska here urges, however, on the basis

of the opinion below, that the state can require

"registration" as a condition of landing fish

and thus exercise extraterritorial jurisdiction

(Motion to Dismiss, p. 21). Obviously, the new

act does not provide an answer to the question of

basic state authority over non-citizens. That

issue is now presented to this court. The counsel

to the Senate Commerce Commitee, a principal

draftsman of the new act, has stressed the con-

tinued importance and necessity for review of

the opinion below. 7

19. Letterhead Stationary of

United States Senate

Committee on Commerce

Washington, D. C. 20510

July 9, 1976

23

Alaska's citation of 16 USC § 1856(b) is

also misplaced (Motion to Dismiss, p. 30).

That section allows the Secretary of Commerce to

assert exclusive fisheries jurisdiction "within

the boundaries of such State" after notice and

hearing. It has nothing to do with asserting

jurisdiction outside a state's territory let

alone with the question of federal ownership

and control of living Shelf resources.

Mr. Douglas M. Fryer

Moriarty, Long, Mikkelborg & Broz

3300 Seattle-First National Bank Bldg.

Seattle, Washington 98154

Dear Mr. Fryer:

Thank you very much for a copy of your juris-

dictional statement in the Uri case. I certainly

hope the Court grants review, as I firmly believe

this is a very important national issue which

should be resolved at this time. I would cer-

tainly appreciate any further: information you

have about the case, particularly any other

briefs that may easily be made available to me.

Best personal regards.

Sincerely yours,

s/ Bud Walsh

James P. Walsh

Staff Counsel

JPW: bwa

24

C. The Conflicts Between the Opinion Below and

Federal Decisional Law Remain

1. The Hjelle case

Alaska makes a number of statements about

Hjelle v. Brooks, supra, which are inaccurate and

20

misleading and which require clarification.

Hjelle is a civil case involving issues to some

extent broader than as posed here.

(a) Exclusive federal jurisdiction

Alaska states that the Hjelle court dis-

counted the Supremacy Clause argument. However,

the reason that the original Hjelle opinion

*20. Alaska commences the series of misleading

statements by stating

"These regulations were originally chal-

lenged by a group composed of the same class, if

not the same persons, as appellants .. . in the

United States District Court for the District

of Alaska. The action was dismissed in June

1970." (Motion to Dismiss, p. 3).

The regulations here challenged were not

even promulgated until June 1974. (Motion to

Dismiss, p. 4). The 1970 case never proceeded to

any disposition let alone a reported one. It did

involve Alaska°s attempt to reduce the federally

established minimum crab size and it was dis-

missed by agreement when Alaska agreed to conform

to federal standards. It is not relevant to

these proceedings except to show that the litiga-

tion over Alaska's extraterritorial assertion has

existed for more than six years. North Pacific

Fishing Vessel Owners Association v. Norenberg,

US. District Court, Alaska, No. J-9-70.

25

determined that at that “incipient stage" (motion

for preliminary injunction) it did not appear that

plaintiffs were reasonably certain to succeed on

the supremacy argument was because:

The complexity of the issues involved,

magnified by the necessity to probe deeply

into legislative history to determine

the intent of congress in enacting the

Outer Continental Shelf Lands Act, does

not lend itself to resolution at this

stage of the litigation.”

377 F. Supp. 438.

This can hardly support Alaska's contention.

(b) Extraterritorial jurisdiction

Alaska contends that the Hjelle court "fol-

lowing an August 1975 trial," refused to enjoin

enforcement of the new regulations because of

their “apparent validity" (Motion to Dismiss,

pp. 4, 5, 24). This is a serious misstatement.

The Hjelle court in June 1976 abstained from any

decision on grounds of Younger v. Harris, 401

U.S. 37 (1971). The ‘court did indicate that in

June 1974 it had declined a preliminary injunction

against the new emergency regulations because of

“their possible validity." (Motion to Dismiss, Ap-

pendix A, ii). Then in 1976, the court abstained

26

and declined to consider the evidence presented

in any manner.

The Hjelle court did decide in its earlier

opinion that a direct assertion of extraterri-

torial power by Alaska violated the Due Process

Clause of the 14th Amendment and the Commerce

Clause as a matter of law. 377 F. Supp. 430.

The Alaska Supreme Court expressly refused to

follow this holding. -!

(c) Landing laws

Nor did the Hjelle opinion suggest, as

Alaska asserts, that direct regulation could be

accomplished outside Alaska through a landing

law, “If carefully writen to serve local goals."

(Motion to Dismiss, p. 4, 377 F. Supp. 441).

What the Hjelle opinion was talking about there

was the possibility that enforcement inside

Alaska might be accomplished through a carefully

worded landing law even though such enforcement

21. “We do not find the state’s interest in

regulation is as limited as the position asserted

by appellees and adopted by the three judge

federal court in Hjelle." Jurisdictional State-

ment, A 49-54.)

j

)

:

i

27

might indirectly affect crab taken outside of

the state. °* Similarly, Alaska's argument that

the landing law cases support its direct enforce-

ment on the high seas is without merit. Every

landing law case involves enforcement within the

confines of the state and, hence indirect off-

shore enforcement. Bayside Fish Flour Co. v.

Gentry, 297 U.S. 422 (1936); Silz v. Hesterberg,

211 U.S. 31 (1908); Felton v. Hodges, 374 F.2d

337 (Sth Cir. 1967); Frach v. Schoettler, 46 Wn.2d

281, 280 P.2d 1038. While some of the issues in

Hjelle did involve the legitimacy of the landing

laws, these cases do not. Defendant Kaldestad's

case is the only one involving a land law and his

defense is based solely on the Supremacy Clause.

2. United States v. Ray

The State is also unsuccessful in attempting

to explain United States v. Ray, 423 F.2d 16

22. ™“. . . [I)£ [Alaska's] regulations were

directed at conserving crab within Alaska 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 outside

the State." 377 F. Supp. 441.

28

(Sth Cir. 1970), as not being in conflict with

the opinion below. The Ray case expressly held

that any doubt as to whether living resources of

the Shelf were included within the meaning of

the Outer Continental Shelf Lands Act was dis-

pelled by the Geneva Convention of 1958.

To the extent that any of the terms of

the Act (OCSLA) are inconsistent with the

later adopted Geneva Convention on the

Continental Shelf, they should be con-

sidered superseded. See Cook v. United

States, 288 U.S. 102, 118-119. (423 F.2d

Thus, the holding of the Ray case is that

living resources of the Shelf are included within

the meaning of natural resources under the OCSLA

whereas the opinion below holds they are not.

Alaska's characterization of the Ray case as a

trespass case is not accurate.

Although the complaint is inaccurately

framed in terms of trespass in count one,

the Government repeatedly stresses it is

not claiming ownership of the reefs.

423 F.2d at 22. The injunction was there granted

because “under national and international law"

(423 F.2d 22), the resources were subject not only

to United States jurisdiction but its control

29

as well.-? The legislative history of the OCSLA

will demonstrate that exclusive, sole jurisdiction

of all Shelf resources was intended and that the

attempts by states rights advocates for concur-

rent state jurisdiction were decisively defeated

on two occasions. 1953 Cong. Rec. 7232, 7236.

As aptly stated in United States v. Texas, 339

U.S. 707, 719 (1950), prior to the passage of

the OCSLA or Submerged Lands Act:

If the property, whatever that may be,

lies seaward of low water mark, its use,

disposition, management and control involve

national interests and national respon-

sibilities.

(Emphasis supplied).

The holding of the Ray case, that living

resources, such as sedentary spec‘ are included

within such definition either because of the

legislative history of the OCSLA, the SLA or the

23. Ome other case proffered by Alaska in sup-

port of its position is the unreported decision

of United States v. Thompson (Motion to Dismiss,

p- 32), which involved a federal prosecution

under state regulations of United States citizens

for poaching of polar bears outside Alaska terri-

tory.

30

Geneva Convention is in direct conflict with the

Alaska Supreme Court.

IV.

CONCLUSION

The Alaska Supreme Court has shown great care

in its opinion to establish the finality of its

judgment on the substantial federal issues pre-

sented by this appeal. The opinion is so regarded

by two other states, Oregon and California.

Alaska is irresponsible in arguing now that,

after the uncertainty of 6 years of litigation,

appellants must return to the trial court for a

determination of whether the regulations are

vague. Alaska ignores the invitation for review

by the Alaska Supreme Court itself in both the

Opinion below and stay pending this appeal.

Alaska argues that HR 200 has lessened the

importance of the questions presented by this

appeal and at the same time uses the opinion

below as a basis for extended jurisdiction under

the new act as well as under existing law. A

31

decision by this court as to the basic state

power is essential to an understanding of this

act.

In view of the uncertainty facing all parties

about the extraterritorial jurisdiction of coastal

states, the conflicts posed, and the effect on

the international fisheries, this court should

hear this appeal.

There is no legal authority to sustain the

extraterritorial action of Alaska and Alaska's

reference to these cases as “stop gap" pending

passage of HR 200 (Motion to Dismiss, p. 20)

does not validate the assertion. In the event

this court chooses not to delineate the juris-

diction of coastal states prior to HR 200, the

cases should be summarily reversed.

Respectfully submitted,

DOUGLAS M. FRYER

HENRY HAUGEN of

MORIARTY, LONG,

MIKKELBORG & BROZ

WILLIAM B. ROZELL of

FAULKNER, BANFIELD,

DOOGAN & HOLMES

Counsel for Appellants

32 33

CERTIFICATE OF SERVICE All persons required to be served have been

I, DOUGLAS M. FRYER, a member of the Bar of served.

the Supreme Court of the United States and one DOUGLAS M. FRYER

counsel for Appellants in the above-captioned

matter, hereby certify that three (3) copies of

this Brief of Appellants in Opposition to Motion

to Dismiss have been served upon each counsel of

record for the parties herein by depositing the

same in the United States Post Office with postage

prepaid (airmail designation no longer required

by post office), this 17th day of September, 1976,

as follows:

GERALD W. MARKHAM, ESQ.

Assistant Attorney General

Office of the Attorney General

Anchorage Civil Section for the

State of Alaska

360 "K" Street, Suite 105

Anchorage, Alaska 99501

Solicitor General

Department of Justice

Washington, D.C.

Office of the At orney General

State of California

6000 State Building

San Francisco, California 94102

Attention: EVELLE J. YOUNGER, CARL BORONKAY

and RODERICK WALSTON