Appendix — United States v. Alaska

Supreme Court brief1975

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Su the Supreme Court of the Hnited States

OCTOBER TERM, 1974

No. 73-1888

UNITED STATES OF AMERICA,

| Petitioner,

STATE OF ALASKA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

INDEX

Page

Volume I

Chronological list of relevant docket entries 0.00.00...

Complaint, March 20, 1967 22000000. .00..occccccccccccceteeeeeeeeeceeeeeeeeee 6

Answer, April 18, 1967 0.200000...

Stipulation portions of pre-trial order, January 6, 1972 ........ 11

Relevant Portions of Transcript of Trial - 16

ii INDEX

Page

Relevant Portions of Transcript of Trial—Continued

Plaintiff’s Witnesses

Baltzo, Charles Howard, January 18, 1972 ............ 16

Ichimura, Takami, January 19, 1972 ........................ 42

Defendant’s Witnesses

Roberts, Donald M., January 19, 1972 .................... 65

Headlee, Fred F., January 20, 1972 ........................... 78

Strohl, Mitchel P., January 21, 1972 ........................ 84

Hunt, William Raymond, January 21, 1972 ............ 93

De Armond, Robert N., January 21, 24, 1972 .......... 118 |

Stewart, Donald M., January 24, 1972 ........................ 134

Rogers, George William, January 24, 1972 ................. 143

Middleton, Kenneth Robert, January 24, 1972 ........ 159

De Rossitt, Frank M., January 25, 1972 .................. 164

Ask, Kjarton J., January 25, 1972 .................0.--...00-. 170

Swanson, Stanley D., January 25, 1972 ................. .. 174

Rickey, Roy A., January 25, 1972 179

Egan, William A., January 26, 1972 ....................... 182

Relevant Portions of Depositions Admitted in Evidence ....... 218

Adams, Harley, September 9, 1971 ................... 218

Branson, Jim H., March 20, 1971 o.......0s-scccccsseeeee-- 225

Carter, Jared, June 2, 1971 -00u...222......eeeeeeee eee 233

Chayes, Abram, June 5, 1971 -...2.........2.22.2..-.eeeeeeee-e- 247

Costello, Thomas J., April 18, 1971 -...........0.0.00002....... 253

Day, Albert M., June 4, 1971-22222... 266

Erickson, Donald W., September 7, 1971 .................... 282

Gharrett, John T., Septemibor 28, 1971 -...........0000...... 290

Hodgson, Robert D., December 9, 1971 ..._................. 295

Kirkness, Walter, September 28, 1971 _..................... | 343

December 9, 1971 ....... - 349

Larsen, Holger S., March 25, 1971 358

INDEX . iii

Page

Relevant Portions of Depositions Admitted \in Evidence—

Continued

Marchant, Court, August 19, 1971 3.000... 361

Mosher, George A., July 22, 1971 0.0.08. 370

Naab, Ronald C., February 25, 1971 ..2...0000000000000000... 375

Pe TR EO ice eas 392

Odale, Thomas M., September 8, 1971 |....................... 445

Omsund, Svrre, September 7, 1971 een sahtaveodhanatcse 457

Rietze, Harry L., August 20, 1971 «2.0.0... 462

Scudder, Henry Clay, July 23, 1971 .......... Rewesceesesseeeee 468

Shea, Claude William, September 7, 1971 .................. 480

Simon, Donald J., June 3, 1971 o...ccceoo.- ee 495

Skerry, John B., April 13, 1971 0000.00.00. 496

Smith, Theron A., March 20, 1971 ...........0....: a aenercaees 510

Solie, Earl, September 7, 1971.00.00... “Sessessee 525

Studdert, William T., March 23, 1971 .............. ieee 531

Swanson, C.D., April 18, 1972 0c — 552

Terry, William, September 28, 1971 ......................... 580

Wardleigh, Thomas H., April 14, 1971 _....0.000000000... 589

Wilson, R. Charies, July 21, 1971 —.....02..22-.22... 594

Yingling, Raymond Thomas, June 2. 1971 Soeeeeeesiere 603

Volume II

Plaintiff’s Exhibit Nos.

cn he ee ese 613

Ds eeepc nerreiere 631

BE cee tree ene nioe 665

} | een eee TENET EE wees eae ee 675

> | anne n nsec yee nan en ane ~ 676

TR oe eee | ee > 678

iv INDEX

Page

Plaintiff's Exhibit Nos.—Continued

eerie sbeeinceraeeceinesconccinmneleetenonettcsouaseraemeracsaisauiseasgsacuseenias 691

BE eeiiesieceseeiepestee noceinnnsdiensasaseiennirerenmebunaicnianennpeesandsadobiese 729

OD sccientnichectinainnsccicatenipteeeesbaiiniheecenscciocpaedenecinnbecnngeapacucbeseiwaionn 755

OO science cadactedn dade piecheedep ctisecpieniesesncunsateedonianenenseen 758

73 761

DE sietbetihieeieleeaacncinsicscigignanaaipaereiulamecpndansiucenbeantasstecsesteeiins 167

75 772

77 802

NR Sciacca ecedectenpetectentorcientsnseheraneenntenetasnnsedcamincnntantak 804

93 828

98 830

Bese eterna einentneanarnteenseaeeaninncidebuanmnconctencnees 834

ee ee ae 887

104 838

107 sssneennssnsenestesensesensnssuesnarsnsssssnssasesnnsnetessneesssenene 864

118 ... 874

BR panda spreneanvinsttarreastnaencininsnecieenimienccenneiensieeencamns 884

Defendant’s Exhibit Nos.

W (included in Plaintiff’s Ex. No. 4) ..................

x “

Y “ @

or (included in Plaintiff's Ex. Nos. 10 and

AB-2 =

AB-3 . |

AM 888

AN 892

AR 893

BD (Same as Plaintiff's Ex. No. 75) ...................

INDEX

Defendant’s Exhibit Nos.—Continued

BQ (same as Plaintiff’s Ex. No. 77)

OCC meem econ cresecccccccccscocccccceccccccccoce

Hoo em ew eewereweereseereees

Tete enw ewweerseeerreesene

TOO t Ree ew wne ewes weesassseeree

901

vi INDEX

Page

Defendant's Exhibit Nos.—Continued

FF . 1036

FF-A 1038

| fj Se eae ee ae : . 1041

FF-2 (included in Plaintiff's No. 107) ..............

FF-3 1043

FE wecaiiapieeieneacensencedpsrnircesevistestainequiasinnaiansiniesiatoners 1044

BE, ieksnncesnteiaesesncmienseniennnnnnitosaccaisitapinsiecnceseiitonesnsiaedinilowansins 1046

FO 1047

GH-1 to GH-12 .. following 1208

MAE. ‘snspitcisphenscnshsrstivancecd esessnnsocdestnsnitciueiaieabndnleceneiioneioadiims 1048

TEAR essen necieaisninceceeciestsbienenhoriebicascinssincinomedanacuetsonidinndiiciate 1059

HV .. following 1208

Hx pncieieeteanuceens 1060 .

TE eccre dese neiehbermeivarestnictinseaarasdnieisedeamandmincemmennsiia 1107

Fe wipetsicencicestecndestinieecicincentetenenensopeiaane 1109

IC-1 1111

IE-1 fesecssnensoestlactcnssosecesestassmsevecantesieestecesrssu ove 1113

IE-2 .... 1116

IE-3 . 1117

IE-4 (included in Plaintiff’s Ex. No. 107) ............

I satictieseseeseserseness tintin scieieaicnilannciaegaceonaniicnescetaaeiitteniaicts 1137

IE-6 1139

IE-7 ‘1140

IE-8 1141

IE-9 <, . 1142

IE-10 1144

II d ipsakorittecehabbteiinstdicsntions 1145

IJ 1160

10 1169

INDEX vii

Page

Defendant’s Exhibit Nos.—Continued

De pascaperenee cctetecaparnernineenstncndnpeutvatene nescence. 1170

IT soc ncncoesencenserassosasestesseaseclsoeecececices following 1208

| | Ean ee ee ee 1171

IV .... rani ceineceebenisieiellaienininetisiendsiidininlesnninpnishie nnibdtiaincssiasslesines 1186

BON ‘entice cseseresccinariuioues ivetesieetasecnaiermunassaetideaiéatsaneisecaecec 1189

JA a4 1190

JB oecccccesensensnnesesteevinestsestsessessseevipapssesseeeeee 1191

| JE ; 1196)

JF ; | lecseseeseceeeeecneee 1201

Ee lepesesishetiemtatessticspeanisecesesicnceapiinieantsdneapenieteasieetcocss ses 1202

JH : .. 1204 !

Order for Extension 6f Stay of Mandate

Order Granting Certiorari

CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES

Date

Proceedings

4/18/67

1/ 6/72

1/17/72

1/18/72

1/19/72

1/20/72

1/21/72

1/24/72

1/25/72

1/26/72

5/ 3/72

Deft’s original answer

Pre-trial Order ~

Court Minutes re trial by Court—l1st Day

Pitf’s offered depositions

Court Minutes re trial by Court—2nd Day

Court Minutes re trial by Court—3rd Day

Court Minutes re trial by Court—4th Day

Deft’s offer of depositions

Court Minutes re trial by Court—5th Day

Court Minutes re trial by Court—6th Day

Deft’s submission of deposition of Bernard Skud

by way of cross examination

Portions of deposition of Jim H. Branson sub-

mitted by deft by way of cross examination

Court Minutes re trial by Court—7th Day

Court Minutes re trial by Court—8th Day

Exhibit and witness list attached.

Offer of deposition of Abram Chayes by pitf

Deft’s objections to same & Court’s rulings

Pitf’s offer of deposition of Raymond T. Yingling,

deft’s objections & Court’s ruling on same

Pitf’s offer of deposition of Jared Carter, deft’s

objections & Court’s ruling on same

Ptif’s offer of deposition of William Terry, Deft’s

objections & Court’s ruling on same

Date

Proceedings

5/ 3/72

5/ 8/72

Deft’s offer of deposition of Ronald C. Naab (2nd

deposition), pltf’s offer by way of cross examina-

tion, Deft’s objections to cross examination, deft’s '

offer of redirect examination, and Court’s rulings

on same

Deft’s offer of deposition of John B. Skerry, Pitf’s

offer by way of cross examination, & deft’s re-

sponse to cross examination with no ruling by the

Court

Deft’s Offer of deposition of William T. Stud-

dery, pltf’s offer by way of cross examination,

deft’s offer of redirect with no ruling by the

Court

Pitf’s offer of deposition of Thomas Costello,

deft’s objection, pltf’s response to objections &

ruling by the Court.

Deft’s Offer of deposition of Harry L. Rietze,

pitf’s offer by: way of cross examination, deft’s

objections to cross examination & Courts rulings

Deft’s offer of deposition of H. C. Scudder, Pltf’s

offer by way of cross examination, deft’s offer by

way of direct examination, no ruling by the

Court required

Pitf’s offer of deposition of James Branson, deft’s

objections, Deft’s offer by way of cross examina-

tion, pltf’s response to cross examination, and

Court’s rulings

Pitf’s offer of deposition of Robert Hodgson, deft’s

objections, and Court’s rulings

Pitf’s offer of depo of Jack O’Connor, Deft’s ob-

jections, & Court rulings

Pitf’s offer of deposition of Bernard Skud, Deft’s

objections, Deft’s offer by way of cross examina-

tion, & pltf’s responses to cross examination

Date Proceedings

5/ 8/72 Pitf’s offer of deposition of C. D. Swanson, Deft’s

offer by way of cross examination, & pltf’s re-

sponse to cross examination

5/ 8/72 Pitf’s offer of deposition of Walter Kirkness ard

deft’s objections to same

5/ 8/72 Pitf’s offer of deposition of Theron Smith

5/ 8/72 Pltf’s offer of deposition of John Gharrett, &

Deft’s Objections

5/ 8/72 Pitf’s offer of deposition of Ronald C. Naab, Deft’s

objections to same

5/ 8/72. Pltf’s offer of deposition of Holger Larsen, Deft’s

objections to same, Deft’s offer by way of cross

examination '

5/22/72 Pitf’s offer of deposition of Bernard Skud, deft’s

objections, Deft’s offer by way of cross examina-

tion, Pitf’s responses to cross examination, &

Court’s rulings

5/22/72 Pitf’s offer of deposition of C. D. Swanson, Deft’s

offer of cross examination, PItf’s response to cross

examination, no Court’s ruling

5/22/72 Pitf’s offer of deposition of Walter Kirkness,

Deft’s objections, & Court’s ruling

5/22/72 Pitf’s offer of deposition of Theron Smith as date

of Court’s rulings

5/22/72 Plitf’s offer of Deposition of John Gharrett

Deft’s objections & Court’s ruling

5/22/72 Pitf’s offer of deposition of Ronald C. Naab,

Deft’s objections & ruling of Court

5/22/72 Pitf’s offer of deposition of Holger Larsen, Deft’s

objections, Deft’s offer by way of cross examina-

tion, Pltf’s response to cross examination, &

Court’s rulings

Date

Proceedings

6/ 8/72

6/30/72

7/26/72

12/14/72

1/29/73

2/ 8/73

3/28/73

4/ 9/73

5/ 1/73

5/ 9/73

Pitf’s post-trial brief

Deft’s post-trial brief

Pitf’s reply brief

Memorandum and order dismissing pltf U.S.A.’s

complaint to quiet title to designated areas of

lower Cook Inlet; judgment may be entered in

favor of deft State of Alaska; that counsel for

deft review proposed findings of fact & conclu-

sions of law and judgment in the light of this

memorandum & present appropriate findings, con-

clusions & judgment to the Court

Findings of fact and conclusions of law

Judgment that pltf’s complaint is dismissed

Pitf’s motion to clarify, amend and add to find-

ings of fact and conclusions of law

Deft’s response to pltf’s motion to clarify, amend

and add to findings of fact and conclusions of law

“Order denying motion of pltf to clarify, amend

and add to findings of fact and conclusions of

law

Pitf’s notice of appeal from the judgment entered

1/29/73 which became final 4/9/73

Pitf’s motion for stay upon appeal

PI memorandum in support of motion for

stay upon appeal

Deft’s response to pltf’s motion for stay upon

appeal

Order granting pltf’s motion for stay upon ap-

peal, and that stay affects only actions of pltf per-

taining to the disposition of natural resources of

the seabed and subsoil of Cook Inlet, and has no

affect on the right of deft. to regulate fishing by

U.S. Citizens & citi of other nations within

the area of lower Inlet

Date

Proceedings .

5/25/73

5/29/73

7/13/73

9/19/73

10/16/73

11/ 6/73

11/21/73

12/ 4/73

1/ 9/74

3/19/74

5/ 4/74

5/ 8/74

5/14/74

6/ 7/74

6/12/74

6/17/74

7/18/74

12/ 9/74

Stipulation and motion for amended stay

Amended stay order, that the motion of pltf for

Stay upon appeal is granted

Stipulation concerning omissions from record on

appeal

Appellant’s Brief on Appeal filed

Joint motion for expedited hearing filed

Appellee’s Brief on Appeal filed

Appellant’s Reply Brief filed

Order granting motion for expedited hearing

Appellee’s Supplen:ental Brief filed

Ct of Appeals Opinion

Judgment of Ct. of Appeals entered

Appellant’s Application for Recall & Stay of Man-

date filed

Order for recall and Stay of Mandate

Appellant’s motion for extension of stay of Man-

date

Order for extension of stay of mandate

Petition for Writ of Certiorari to U.S. Court of

Appeals for the Ninth Circuit

Respondent’s Brief in opposition to Petition for

Certiorari.

Petition for a Writ of Certiorari granted

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Civil Action No, A-45-67

[Filed March 20, 1967]

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

STATE OF ALASKA, DEFENDANT

COMPLAINT TO QUIET TITLE AND FOR

INJUNCTIVE RELIEF

The United States of America, by and through the un-

dersigned United States Attorney, acting at the direction

of the Attorney General of the United States and at the

request of the Department of the Interior, complains of

the defendant above named, and for cause of action

alleges:

The Court has jurisdiction over this action pursuant

to Title 28, United States Code, section 1345.

At all times herein material, as against the State of

Alaska the subsoil, seabed, and natural resources of

Cook Inlet, more than three geographical miles seaward

‘from the line of mean lower low water and from the

line marking the seaward limit of inland waters, have

appertained and now appertain to the United States, and

have been and now are subject to its exclusive jurisdic-

tion, control, and power of disposition.

The line marking the seaward limit of the inland

waters of Cook Inlet is a line from the easternmost

extremity of the mean lower low-water line on Harriet

Point, at latitude 60° 28’ 39” N., longitude 152° 12’ 52”

W., to the nearest point on the mean lower low-water

line on Kalgin Island, at latitude 60° 21’ 50” N., longitude

152° 04’ 45” W., and a line from a point on the mean

lower low-water line on Kalgin Island at latitude 60°

20’ 36” N., longitude 152° 00’ 14” W., to a point on the

mean lower low-water line on the eastern shore of Cook

Inlet at latitude 60° 04’ 15” N., longitude 151° 38’ 45”

The State of Alaska claims some right, title, or interest

in or to said subsoil, seabed, and natural resources

adverse to the United States, and by public notice has

invited competitive bids for an oil and gas lease of a

portion of said subsoil and seabed, and has announced

that said lease sale will be held on March 28, 1967.

By reason of the foregoing, the State of Alaska has

cast a cloud on the rights and title of the United States

and, unless restrained by this Court, will continue to

do so and will create lease claims adverse to the United

States and will interfere with the proper and orderly

development of the mineral resources by the United

States, for all of which the United States has no adequate

remedy except by this action.

Wherefore, the United States prays for relief as

follows:

1. That this Court issue a temporary restraining

order, directing the defendant not to issue any mineral

lease affecting or purporting to affect any of the sub-

merged lands of Cook Inlet, more than three geographical

miles seaward from the line of mean lower low water and

from the line described in paragraph III hereof;

2. That after hearing, this Court issue a preliminary

injunction restraining the defendant from issuing any

mineral lease affecting or purporting to affect any of

the submerged lands of Cook Inlet, more than three

geographical miles seaward from the line of mean lower

low water and from the line described by paragraph III

hereof, pending entry of final judgment herein;

3. That this Court enter judgment declaring that as

against the State of Alaska the subsoil, seabed and

natural resources of Cook Inlet, more than three geo-

graphical miles seaward from the line of mean lower

low water and from the line described in paragraph III

hereof, appertain to the United States and are subject

to its exclusive jurisdiction, control, and power of dis-

position, and that the State of Alaska has no title thereto

or interest therein, and permanently enjoining the de-

fendant from interfering with said subsoil, seabed, and

natural resources; and

4. For such other and further relief as the Court

may deem proper.

/s/ Richard L. McVeigh

RICHARD L. MCVEIGH

United States Attorney

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF ALASKA

Civil Action No. A-45-67

[Filed April 18, 1967]

UNITED STATES OF AMERICA, PLAINTIFF

v8.

STATE OF ALASKA, DEFENDANT

DEFENDANT'S ORIGINAL ANSWER

Now comes the State of Alaska by and through its

Attorney General and files this, its original answer to

plaintiff United States of America’s Complaint.

Defendant admits the allegations in Paragraph I of

plaintiff’s Complaint.

II.

Defendant denies the allegations in Paragraph II of

plaintiff’s Complaint.

ITI.

Defendant denies the allegations contained in Para-

graph III of plaintiff’s Complaint.

IV.

Defendant admits the allegations contained in Para-

graph IV of plaintiff’s Complaint.

Defendant denies the allegations contained in Paragraph

V of plaintiff's Complaint.

FIRST DEFENSE

That the area in contention lies within what is known

as the Cook Inlet. Cook Inlet is historic inland water

with a line of closure extending from Cape Douglas to

Point Bede, Alaska. That, being historic water, the

Cook Inlet, its waters, subsoil, seabed, and natural re-

sources are owned by the sovereign State of Alaska.

SECOND DEFENSE

The Complaint fails to state a cause of action against

WHEREFORE defendant State of Alaska prays as

follows:

(1) That this Court enter judgment declaring that as

against the United States of America the waters, subsoil,

seabed and natural resources of Cook Inlet as described

in the First Defense of this Answer are owned by the

sovereign State of Alaska and that the United States of

America has no title therein; and

(2) That the Complaint be dismissed and the plain-

tiff be granted no relief and costs be awarded to the de-

fendant; and

(83) For such other and further relief as the Court

may deem proper.

D. A. BURR

Attorney General

/s/ Ralph G. Crews

Ralph G. Crews

Assistant Attorney General

* * e «

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

Civil No. A-45-67

[Filed January 6, 1972]

UNITED STATES OF AMERICA, PLAINTIFF

v8.

STATE OF ALASKA, DEFENDANT

PRE-TRIAL ORDER

Stipulations

The parties have agreed to certain facts. They are

listed below. The agreement to these facts as uncon-

tested is not a concession by either party that such

facts are relevant.

1, The breadth of the territorial sea of the United

Sta

tes is three nautical miles except in the case of his-

toric territorial sea bays.

2. The distance between Cape Douglas and either Point

Bed, Cape Elizabeth, or Point Gore exceeds 40 nautical

miles.

3. The only court actions brought by the State of

Alaska as a result of law enforcement actions against

Japanese fishing boats in April of 1962 for fishing in

Shelikof Strait were: ~

a. State of Alaska v. Mine Sutoshi, No. 62-141 Cr.

b. State of Alaska v. Mongo Hanasaki, No. 62-142 Cr.

ce.

State of Alaska v. Higashima Tadao, No. 62-144

Cr. that were brought in the Superior Court of the

State of Alaska.

4.—All-three-of the cases referred to in paragraph 3

above were dismissed on motion.

5. During but not limited to the years through to the

present, the United States had been a party to interna-

tional treaties and conventions established for the purpose

of regulation and conserving the fisheries on the high

seas.

6. Japanese fishermen fish on the high seas off the

Coast of Alaska in the general vicinity of Kodiak Island

and the Kenai Peninsula.

7. Canadian fishermen fish on the high seas in the

general vicinity of Kodiak Island and the Kenai Penin-

sula.

8. Russian fishermen fish on the high seas in the

general vicinity of Kodiak Island and the Kenai Penin-

sula.

9. The memorandum dated April 28, 1953 contained

in United States Exhibit No. 77 was written by Albert

M. Day who, at the time, was Director of the. United

States Fish and Wildlife Service and responsible for the

enforcement of the fisheries laws in Alaska. That memo-

randum was written to the Regional Director of the Fish

and Wildlife Service in Juneau, Alaska.

10. The memorandum dated May 8, 1953, contained

in United States Exhibit No. 77 was written by Dan H.

Ralston, Law Enforcement Supervisor of the U.S. Fish

and Wildlife Service in Juneau, Alaska, to the law en-

forcement agents in Alaska listed on the memorandum.

11. The documents identified in paragraphs 11 and 12

were transmitted to and ‘received by the a Office

of the Fish and Wildlife Service.

12. The sum of the line segments drawn on United

States Exhibit No. 73 from a point north of Ninilchik

to Kalgin Island and from Kalgin Island to Harriet

Point equals 24 nautical miles.

18. The entrance to the following bays is generally

the line drawn between points on the shores of those bays

as shown on United States Exhibit No. 73:

a. Kachemak Bay

b. Oil Bay

13 \

¢. Illiamna Bay

d. Urus Cove

e. Port Graham and English Bay

f. Koyuktolik Bay.

14. A nautical or geographical mile is equal to

6,076.11549 international feet approximately. |

15. Except in the case of historic bays, the position

of the United States as to the appropriate length of a

baseline at the mouth of a bay from which the three

mile limit is measured has been:

a. Before 1912, 6 miles

b. 1912-1962, 10 miles

_¢c. After 1962, 24 miles,

16. Cook Inlet is a land-locked body of water.

17. Cook Inlet is clearly defined.

18. Cook Inlet is doubly flanked by territory of the

United States.

19. Cook Inlet is well marked by prominent head-

lands. |

20. Cook Inlet’s tributaries and streams originate in

_ and proceed only through Alaska.

21. Cook Inlet is not a watercourse between nations.

. 22. Cook Inlet has been mapped innumerable ‘times

since the Fifteenth Century.

23. American fishermen who have fished in Cook Inlet

believed and continue to believe that foreign nationals

are not permitted to fish in Cook Inlet; that they con-

sidered and continue to consider Cook Inlet is included

‘within the territory of the United States; and that they

considered and continue to consider Cook Inlet to be

inland waters for the application of the Coast Guard

inland rules of the road. .

24. Tidelands are lands between mean low water and

mean high water. .

| 25. United States Exhibit No. 73 is on sale to the

general public by the National Ocean Survey in Rock-

ville, Maryland. These documents went on sale subsequent

to the filing of this lawsuit.

26. The steamer ZAPORA referred to in the telegrams

between O’Malley and Studdert, Alaska Exhibit No. B-E

at pages 960 and 961 of the Appendix to the State of

Alaska’s Trial Brief, was an American vessel owned by

the Booth Fisheries Company, Chicago, Illinois, at the

time of the incident referred to in those telegrams.

27. The steamer NEW ENGLAND referred to in the

telegrams between O’Malley and Studdert, Alaska Exhibit

No. B-E at pages 960 to 961 of the Appendix to the

State of Alaska’s Trial Brief, was an American vessel

owned by the American company, the New England Fish

Company, at the _ of the incident referred to in those

telegrams.

28. The State of Alaska offered certain tracts for

competitive oil and gas leasing prior to this litigation.

Said tracts are within the disputed area of Cook Inlet.

29. Ships from Canada, Panama, Korea and Japan

frequently enter Cook Inlet to pick up and discharge

cargo at Cook Inlet ports.

30. The 1906 Act for protection and regulation of the

fisheries of Alaska gave the Secretary-of Commerce au-

thority to regulate salmon fishing within 500 yards of

the mouths of Alaskan streams and rivers.

31. Cook Inlet is not a river. However, a map dated

1867 published by’ the Coast and Geodetic Survey identi-

fies Cook Inlet as a “Cook’s River.”

32. Exhibit A to this Draft’ Order is identical to

United States Exhibit No. 73.

DATED at Anchorage, Alaska, this 6th day of Jan-

uary, 1972.

/8/ James A. von der Heydt

James A. von der Heydt

District Judge

Approved as to Form:

For the Plaintiff

Jon Charney

By /s/ Peter Y. Page

Attorney, Department of Justice

Washington, D.C.

For the Defendant

JOHN E. HAVELOCK

Attorney General

By /s/ Charles K. Cranston

Charles K. Cranston

Assistant Attorney General

RELEVANT PORTIONS OF

TRANSCRIPT OF TRIAL

PLAINTIFF’S WITNESSES

[152] CHARLES HOWARD BALTZO

being first duly sworn upon oath, testified as follows:

* * * *

DIRECT EXAMINATION

BY MR. CHARNEY:

* * * *

[159] Q What was the report as to the location of

that vessel?

A The report was that it was definitely far over three

miles. There was no question that it was a marginal

case. It was much more than three miles from shore, and

nitely up inside of Cook Inlet.

my recollection is that it was on the east side of Cook

Inlet somewhere off the Kenai Peninsula. It was defi-

Q Okay, go on.

A And so the only question was, should we take

action against this vessel that was fishing in U.S. waters,

or should we not? And because we had been talking

about the matter before, why, after discussing the par-

ticular circumstances in this case it was our consensus,

and I decided that we should take no action against the

Canadian vessel because it was a vessel of a foreign na-

tional, namely Canada, and that we did not feel that our

jurisdiction extended beyond the so-called three-mile limit

or more than three miles from shore, and this boat clearly

was beyond that distance.

Q What was your position at that time?

A At that time I was acting regional director be-

cause the regional director, Rhode, was not in the office.

That is why they came to my office with it first.

Q What happened after that?

[160] A One of these two men, I am not sure which,

went into the radio room next to my office and got Agent

Bronson on the radio again, let’s see, we had two-way

communications with all our aircraft, and told him to

take no action against the halibut boat.

Q Do you know if any action was taken against the

halibut boat?

A No, it was not.

* 2 5 *

[172] CROSS EXAMINATION

BY MR. PHILLIPS:

Q Just to go back for just a moment, you served as

the assistant [173] regional director of the Fish and

Wildlife Service in Alaska from 1950 to 1958; is that

correct, sir?

A I believe it was through 1959.

Q_ All right, sir, a period of about nine years, then?

THE COURT: You must answer aloud.

THE WITNESS: Yes.

BY MR. PHILLIPS:

Q During that time, Mr. Baltzo, you, in effect, were

the number two man insofar as the Fish and Wildlife

Service was concerned, in the whole of Alaska?

A Yes.

Q And I believe among your responsibilities, if I

understood you correctly, was the responsibility for ad-

ministering the fishery laws—fishing laws?

A Yes.

Q And I suppose as a man with that responsibility

and with that position, you had some discretion and lati-

tude, did you not?

A Yes.

Q As a matter of fact, you had what might be de-

scribed as wide latitude and a high degree of autonomy

with reference to what you referred to, at least on your

deposition, as field program implementation decisions and

enforcement; is that correct?

A Yes.

[174] Q Now, of course, having that responsibility, Mr.

Baltzo, it was necessary that you know the fishing laws

_ and the fishing regulations; is that correct, sir?

* A Yes.

Q And as a matter of fact, you had to know them in

some detail?

A Yes.

Q And you had to interpret them in order to know

how to enforce them; is that correct, sir?

A To the best of my ability, I was supposed to do

that, yes. They were very complex.

Q And of course, without asking you to be immodest,

you had an expertise about these laws that an ordinary

person like myself perhaps would not nave: isn’t that

correct, sir?

A Yes.

Q Now, I noted in your testimony that you also have

had some experience in enforcement work, first, as I

recall, in the State of Washington where you had actual

training, and subsequently experience here in Alaska; is

that correct, sir?

A Yes.

Q Now, in doing enforcement work, is it occasionally

necessary for an enforcement officer, say a U.S. enforce-

ment officer, to board a fishing vessel?

A If a vessel is sighted or caught, or however you

want to express it, in the act of violating a fishing regu-

lation, it may be necessary to board it if it’s necessary

to gain [175] enough evidence for a conviction.

Q Yes, sir, and would you tell me generally, sir, how

this boarding operation is carried out, just generally?

A Well, the patrol boat or airplane that makes the

apprehension would draw within speaking distance of

the vessel in violation or suspected violation, and to the

extent possible there would be a dialogue between the

two, the arresting officer and the suspected fisherman.

And if the results of this dialogue were not sufficient to

produce the evidence that the arresting officer needed,

he would then ask permission to go aboard.

Q Yes, sir. And how is this actual boarding done?

Does one vessel draw near or is tied to the other, or just

how is that done, sir?

A That is right. Two vessels draw together. The

arresting officer would normally step over onto the other

one.

[176] BY MR. PHILLIPS:

Q Just one or two more questions, and I don’t make

a great point about this, the boarding of another vessel

is an act done by an agent who has credentials, does

he not?

A Yes.

Q And he shows those credentials to the boat captain?

A If the boat captain asks to see them.

Q And normally, the enforcement officer is armed, is

he not?

A No, he is not, not in our case. I don’t know what

may be the general case.

Q That is a pretty—that boarding operation is not

done socially, is it, but is done in the course of the busi-

ness of the enforcing agents?

A That is right.

Q And it is a pretty serious occasion, particularly

when you are boarding a foreign vessel, is it not, sir?

A Yes.

* * * *

(177] BY MR. PHILLIPS:

Q May I restate my question, Mr. Baltzo, so it is this:

Back in 1950 to 1959, when you were in your position,

your prime interest in Alaskan fisheries was salmon

fishing, was it not, sir?

A Yes, it was.

Q And as a matter of fact, if anyone had used the

term “Alaskan fisheries” to you, you would have immedi-

ately thought of salmon fishing, would you not, sir?

A Well, it all depended on the context in which the

reference was made.

Q Well, you thought of salmon as of far greater im-

portance than other types of fish such as halibut and

shrimp and trawl fish; isn’t that correct, sir?

A That is correct.

Q And you realized, undoubtedly, the importance of

the salmon fisheries of Cook Inlet to the people of Amer-

ica, the United States, and particularly the people of

Alaska, did you not, sir?

A Yes.

Q And your prime job and your prime objective, then,

in enforcing these fishing regulations was to conserve and

manage the salmon fishing, was it not, sir?

{178] A That was our primary job, right, insofar as

fisheries were concerned.

And as a matter of fact, sir, you realize that if

these salmon fisheries here in Alaska were depleted that

that would result in a great and irretrievable loss to

the economy of this country and to the people of Alaska,

isn’t that so?

A Yes —

Q And of course, I would assume that as a govern-

ment employee, your prime loyalty was to the people of

the United States and the people of Canada, isn’t that

correct, sir?

A The people of the United States and who?

Q And the people of Alaska. They were people of

the United States, were they not, Alaskans?

A Yes. I don’t think we felt any particular loyalty

to the citizens of Alaska as such, but as citizens of the

United States, yes.

Q But, certainly, you weren’t holding any greater

loyalty to foreigners than you were to the people of

Alaska, were you?

A Oh, of course not.

Q As I understand your testimony, up until the

early 1950’s you had known of no foreign fishing activity

of any kind in Cook Inlet, had you?

A I can’t recall that I did.

Q Yes, sir. And the only fishing by foreigners that

you knew about was fishing for halibut, and that started

in the early [179] 1950’s, as I understand your testimony.

A No, it is probably in the early 1950’s that I became

aware that Canadians were fishing in Alaskan, or if you

might say off the coast of Alaska, but I certainly wouldn’t

say that that is when the fishery started. It may have

been going on. I believe it was going on for some time

prior to that.

Q You didn’t know of it, though, sir?

A_ I didn’t know of it.

Q And that which you did know of, which occurred

in the ’50’s, was a very rare thing, was it not, sir?

A Well, I couldn’t say that we knew whether it was

rare or not, that the incidents that we did know of were

rather rare. This was not a time of intensive patrol. The

salmon fisheries occurred at a much later date than the

halibut fisheries.

*Q Now, this incident that you spoke about, let me

make quite sure that we all understand you. It was a

Canadian boat incident, right?

A Yes.

Q It was fishing, as best you recall, outside three

miles from shore—

A Yes.

Q —<in Cook Inlet, and it was fishing for halibut—

A Yes. | ;

Q —and not for salmon?

A Yes.

[180] Q Now, you have referred to your deposition.

Mr. Charney, you remember, arranged it back in early

1971, March, as I recall.

A Yes, March 20, I believe.

Q And at that time, as you have done here today, Mr.

Baltzo, you took an oath to tell the truth and the whole

truth, did you not, sir?

A (Nodding.)

* * * *

Q Mr. Baltzo, you realized when you took that oath

to tell the truth that that was a serious obligation on your

part, did you not, sir?

A I certainly do.

Q And you realize that this was a serious matter

insofar as the State of Alaska was concerned. Don’t you

remember in the [181] course of the questioning, Mr.

Cranston told you how important this case was to the

State of Alaska?

A Yes.

Q And you knew that what you were saying there

under oath was being written down, didn’t you?

A Yes.

Q And you knew that later, we, as lawyers, and per-

haps the Court, would be called upon to examine that

testimony and rely upon it as being the truth?

A Yes. ¢

Q And I believe that you have told Mr. Charney here

that with the exception of a few dates and names of

people that you didn’t remember just where they had

gone or when they had gone, that you had read your

deposition and you had found that you had told the

truth; is that correct, sir?

A Yes.

* * * *

[182] Q Mr. Baltzo, by way of leading up to what I

am going to ask you, would you mind turning to page 41

on your deposition, and I refer you to line five on that

deposition and ask you if you did not testify as follows,

and I quote: “We, on our part, felt the need for conser-

vation of the Alaska salmon fisheries was so great that

we would have to lead in the direction of enforcing these

regulations in order to protect the salmon runs. Unless

we did, we’d have been powerless. I mean the fisheries

would have been destroyed in short order by the fishing

industry.”

Did you not say that, sir?

A Yes, that is stated here.

Q And is that correct, sir?

A Well, let me see what the rest of this is here.

[183] MR. PHILLIPS: Just this statement here, is

that a correct statement on your part, or do you want it

qualified in any way?

THE WITNESS: No, that is exactly the way we fe't,

that was the situation.

BY MR. PHILLIPS:

Q That was true then, and it is true now, sir, as far

as you are concerned?

A Well, I don’t know about what the situation may

be today. This has been 12 years since I have been—

Q I said so far as you. are concerned, it is true?

A So far as I am concerned, it is, yes.

Q Now, don’t you remember that thereafter, Mr.

Cranston asked you some questions after Mr. Charney

got through, and don’t you recall that he asked you what

the policy of your department would have been with

regard to foreign vessels that you had found fishing for

salmon in Cook Inlet in the waters more than three miles

from the shoreline? Don’t you remember questions of

that type?

A Yes.

Q And don’t you remember, sir—I will come back to

them in a moment—don’t you remember, sir, that you

testified in substance that if you had found a Canadian

boat or any other kind of foreign boat fishing in Cook

Inlet more than three miles from the shore you would

have done two things, sir? First, you would [184] have

boarded the boat or had your enforcement officers do it,

and you would have gotten immediately in touch with

Washington by wire?

* * * *

Q Don’t you remember testifying to that effect, Mr.

Baltzo?

A I said if we had found the foreign fishing vessel

fishing for salmon within the described waters of Cook

Inlet, that we would have asked permission to board.

MR. CHARNEY: Wait a minute. More than three

miles from Cook Inlet you’d have gotten immediately in

touch with Washington, wouldn’t you?

THE WITNESS: More than three miles from Cook

Inlet.

BY MR. PHILLIPS:

Q More than three miles from the shore in Cook Inlet,

you’d [185] have gotten immediately in touch with

Washington and you testified, did you not, that you would

have even boarded the boat?

A I said we’d have asked permission to board.

Q All right, sir, you’d have asked permission to

board it, and you’d have gotten in touch with Washing-

ton; isn’t that true?

A Yes.

Q Now, Mr. Baltzo, so there is no misunderstanding

between us at all, and I don’t want to misquote you, let

me turn to the deposition itself, or ask you to do so.

I want you to look at page 57 and read your—I want to

read to you your testimony beginning on line 21 of that

page, and you read along with me to yourself as I read it

out loud so to make sure I have read it correctly and not

misquoted you, and I am now reading, “No, the fact

that it was halibut would have given it somewhat lesser

priority in our eyes than if it had been salmon. Our big

concern in those days was the salmon fishery. When

you said Alaska fisheries, well, I immediately assumed

you meant salmon. Things like shrimp and halibut and

trawl fish were of far less importance than they are

today. Now, if a Canadian boat had been up there fish-

ing salmon, I can’t say just what we would have done,

but it would have helped a little bit to have it a more

obscure fishery of less importance than if it had been the

number one fishery [186] with which we were more

concerned. If a Canadian had gone way up inside Cook

Inlet to fish for salmon, then I am sure we would have

to reach Washington.”

Didn’t you say that, sir?

A Yes.

Q Now, turn on over, and Mr. Cranston asked you

some more questions about this. Now, turn on over to

page 61, sir, and he was continuing to ask you about

foreign boats fishing for salmon in Cook Inlet, and I

want you—I want you to look again at line 21 on page

61. Do you find it there, sir?

A Line 21 on page 61, yes.

Q All right, and did you not say there, and I am

quoting, “I would say, based on all of that, that we

would not have taken any action against it, but we would

have gathered all of the information possible on the sub-

ject and referred it to Washington.”

And then Mr. Cranston said, “I see,” and you contin-

ued, and notice this language. “We would have identified

it and may have even boarded it. In fact, I am sure we

would have.”

Didn’t you say that, sir?

A Ican say that I said that,. but I believe you should

read the next answer.

Q Yes, sir. I don’t want to cut you off from reading

anything. I will read the rest of it. “You would have

boarded it,” Mr. Cranston asked you. “I believe we would

have, or at [187] least asked permission to board.” That

is what you said, was it not, sir?

A Yes.

Q And that is this type of enforcement activity that

you described a moment ago when I asked you about

how you enforced fishing regulations, isn’t that true, sir?

A Yes. .

Q Now, Mr. Baltzo, let me stop and ask you to think

for a moment, if you will, sir. Now, you wouldn’t have

boarded that vessel or asked permission to board it just

to do so to chit-chat with the boat captain, would you?

A Certainly not.

Q And let’s talk about your getting in touch with

Washington. You wouldn’t have gotten in touch with

Washington to ask Washington where the boat was,

whether it was within three miles or outside of three

miles, if you had your own enforcement agents already

aboard the boat, would you?

A As I say, we would have gotten in touch with

Washington. I didn’t mean we’d do it that very moment.

I mean we would have done it before the case could have

been pursued further.

Q Yes, sir. I am asking you, and what would be the

reason? You wouldn’t be calling Washington, whatever

you did, to ask Washington where that salmon boat was,

would you, because you knew where it was?

A Right.

[188] Q And if it had been within three miles, you

have already told this court you would have arrested the

boat captain and preferred charges against him, wouldn’t

you?

A Well, not exactly. What we would have done is

gathered all the evidence we could, but would have turned

the evidence over to the country having jurisdiction over

this fishing boat.

Q And they would have prosecuted him?

A Helping them prosecute him.

Q Helping them every way you could prosecute him,

wouldn’t you? .

A Yes. ;

Q Now, I want to talk to you, if you will permit me to

do so, about these fishing regulations. I believe you told

us on direct examination that your responsibility went

so far as to from time to time include the responsibility

for rewriting the regulations or recommending rewriting

them; is that correct, sir?

A Yes.

Q Now, first, did I understand you to say, and it is

my understanding that when you refer to territorial

waters or waters over which the United States has juris-

diction, you mean by that waters within’ three miles of

the coastline; is that correct, sir?

A No, in some—that is the case—I mean the truth in

most cases, but in the case of our own American fisher-

men, we had [189] jurisdiction in the areas that were

described in the fishing regulations, and these did not

necessarily follow the three-mile limit.

Q That is what I am going to come to, Mr. Baltzo,

in just a minute, but I want to first understand that

generally you understand territorial waters or waters

over which the U.S. had jurisdiction to mean waters

within three miles of the coastline; is that right, sir? Or,

if that is not what you understood, tell me what you did

understand. ;

A No, I understood that our jurisdiction applied

within the written description of the various fishing

areas as they were contained in the fishing régulations

and published in the Federal Register. .

Q Iam going to come to that, Mr. Baltzo, but let me

get at it this way. Now, if our fishing—back up just a :

27 ON

minute. You say that you think we did have jurisdiction

over Americans on the high seas, right?

A I thought we did.

Q Yes, sir, but that didn’t mean just because you had

jurisdiction .over them that a fishing regulation applied

to them. For example, you wouldn’t go out 20 miles off

the coast of Kodiak and ‘arrest an American just be-

cause he was an American, would you?

A No, because we had no regulations or fishing areas

that took in waters 20 miles off Kodiak. ,

[190] Q That’s right, and so since you didn’t have any

regulations that pertained to fishing, say, 20, miles off

Kodiak, you wouldn’t have arrested that fisherman

whether he be an American or a Japanese or what-

ever, would you?

Not prior to 1956, we wouldn’t have.

Q All right. Now, let’s go—I want you to look—do

you have Exhibit 75 still there before you?

A Yes, I do.

Q Mr. Baltzo—incidentally, that exhibit perhaps for

‘the Court’s benefit, I will describe, and see if it is cor-

rect that consists of some three memorandums that issued

from the Alaska office and a couple of responses from

Washington; is that not correct, sir?

A Well, I haven’t counted them, but that sounds

like it.

Q I am just getting this in general to, get you and

I thinking together and make it clear what you are

talking about.

In the first dated memorandum there is one that is

dated on March 31, 1952; isn’t that correct, sir?

A Yes.

‘Q And that is to the Director, FWS. I assume that is

Fish and Wildlife Service in ‘Washington—

_ A Yes. “

' Q —from the regional director in Juneau, that i is Mr.

Rhode.

A Yes.

Q I notice while this memorandum consists of a whole

page and [191] about a quarter of a page on the second

page, and in order to get the sense of this and the con-

tinuity of it, you wil] notice that,Mr. Rhode is writing

to Washington, and he says here, “My question here

‘relates only to United States fishermen on vessels regis-

tered under the United States flag.” You see where I am

reading?

_ A. Yes.

Q And this is what Mr.—obviously what Mr. Rhode is

writing about.. His. question here relates only to United

States fishermen on vessels registered under the United

States flag, right?

A Yes. '

“There is a possibility now of development of a

plan by drift gill net boats to attempt to fish lower Cook

Inlet without regard to our regulations for that-area on

the theory that the regulations do not apply beyond the

three-mile limit.” You see that, sir? ,

A Yes.

Q Now, you will notice, Mr. Rhode conchides, if you

will turn over to the next page, he concludes this memo-

randum with what at least we, on behalf of the State,

feel to be a rather significant statement, and I quote it to

you. “While it may be a separate matter, I suggest terms

_ of a proposed Japanese treaty be kept in mind while doing

research on above to see what steps we might take to

. establish historic rights [192] in off-shore ss carat Do

you see that, sir? '

A Yes. :

Q “What steps we might take to establish historic

waters.” Now, I want you to turn to the answer that

Mr. Rhode got. That is a memorandum back from

‘ Washington dated May 1, 1952, is it not, sir?

A Yes.

Q I want you’ to follow and hear me closely, Mr.

. Baltzo, again to get the continuity of this and to see how

you people in the Fish and Wildlife Service were constru-

ing ag regulations. Let me read the first two para-

graphs. '

“Reference is made to your memorandum of March 31,

requesting information concerning the applicability of the

Alaska fishery laws and regulations to waters beyond

the three-mile limit. You suggest that in view of certain

court decisions, these laws and regulations might apply

to our nationals wherever they are on the high seas and

would not necessarily be restricted to territorial waters.”

Do you see that, sir?

A Yes.

Q Now, I want you to notice particularly, Mr. Baltzo,

the next paragraph. “The Alaska fishery laws refer to

‘waters of Alaska over which the United States has juris-

diction,’ and the regulatory areas described and set apart

by the regulations and to which the regulations apply are

described in [193] every instance as including ‘all terri-

torial coastal and tributary waters of Alaska.’” You

follow me there, sir?

A, Yes.

Q Now, notice next what Mr. Seaton Thompson, this

‘man from Washington, writes, “It is the opinion that

these laws and regulations apply to fishing in the de-

scribed areas only and do not apply to fishermen operat-

ing elsewhere, even though they may be American citi-

zens on vessels registered under the American flag.”

You see that, sir?

A Yes.

Q Now, to go back just a moment and to get this

clear, you have told us that you wouldn’t arrest an

American fishing 20 miles off the coast of Kodiak simply

because the regulations didn’t apply to that, right?

A Yes.

Q But, you would have arrested an American if he

were fishing more than three miles off the coast of

Alaska, three miles off the coastline of Cook Inlet,

wouldn’t you?

A We would, because that area was described as

under our jurisdiction.

Q And you had arrested American citizens and had

tried them and had prosecuted them for years for fishing

in described areas in Cook Inlet even though they were

. fishing more than three miles from shore; isn’t that so?

As a matter of fact, you testified on your deposition you

had never lost a case; isn’t [194] that so?

A I don’t remember making that positive a state-

ment, but maybe you can find it. ‘

Q Well, let me refresh your memory. Look at page 17

of your deposition. I refer you to line 17, and let me read

it to you and you read along with me. “The Cook Inlet

fishery is normally prosecuted heavily, well outside the

three-mile limit from the standpoint of this beachline,

although fishermen would sometimes contend that we had

no authority out in the middle of Cook Inlet, but we

always contended we did, and I don’t believe we ever lost

a case on that basis.” Isn’t that what you testified to?

A That is what I said, yes, which I don’t think is

what you first asserted that I said.

Q Iam sorry. At least now we are straight. I have

quoted you exactly. ,

A Yes.

Q Now, you are aware of the fact, are you not, that

the regulations describing Cook Inlet are materially dif-

ferent from the regulations that described other areas of

Alaska. You do remember that, sir, do you not?

[195] Q Mr. Baltzo, you have in your hands, do you

not, a pamphlet that includes the laws and regulations

for the protection of commercial fisheries of Alaska?

A. Yes.

Q Now, I have—by a yellow slip there I have marked

the regulations’for the year 1956. Did you find it there,

sir?

MR. PHILLIPS: May I approach the witness, Your

Honor? :

THE COURT: Yes, you may.

BY MR. PHILLIPS:

Q Let me help you a moment. Yes. You have got

them. I might [196] say to you, Mr. Baltzo, the reason

I have selected the 1956 regulations is because those, I

understand, are exhibits here, and also because I happen

to have a copy of them so that I can read along with

you.

MR. CHARNEY: Your Honor, I noted that we may

be able to refer to this in the future, could we have this

book marked for identification?

* * * *

[197] THE COURT: IU? It may be marked IU for

identification. It may be marked. You may proceed, Mr.

Phillips.

MR. PHILLIPS: Thank you, your Honor.

BY MR. PHILLIPS:

Q Let me ask you, Mr. Baltzo, to pick out some of

these definitions of other areas. Before we get to Cook

Inlet, let’s look at page 33 of the 1956 fishing regulations.

Do you find there now the 33 I am referring to? Do

you have that, sir, page 33?

A Yes.

Q There you find the definition of the Bristol Bay

area, do you not, sir?

A Yes.

Q And it reads, definition, “The Bristol Bay is hereby

defined to include all territorial coastal and tributary

waters of Alaska from Cape Newenham to a point off

the coast three statute miles south of Cape Menshikof.

Do you see that, sir?

A Yes. :

Q And you note the inclusion of the word “terri-

torial” there, do you not, sir?

A Yes.

Q Now, turn to page 36. There you find, do you not,

the definition of the Alaska Peninsula area; is that

correct, sir?

‘ee

[198] Q And the definition there is, and I quote, “The

Alaska Peninsula area is hereby defined to include all

territorial, coastal and tributary waters from a point

three statute miles south of Cape Menshikof to Unimak

Pass, thence easterly to the western point to the entrance

to”—you are going to have to help me there, sir—

A Kayakliut.

Q —<including all adjacent islands.” There, again, you

will note the iniclusion of that word “territorial waters,”

do you not, sir?

A Yes.

Q And look at page 39. There you have the definition

of the Aleutian Islands area, do you not?

A Yes.

Q Read that definition, please, sir.

A “The Aleutian Islands area is hereby defined to

all territorial coastal and tributary waters of the Aleutian

Islands westward of and including Unimak Pass.”

Q Now, all of these regulations, as you in answers

you have testified were authorized by what you called

the White Act?

A Yes.

Q And if you will turn to the first page up toward

the front, you will find a section, “General authority for

the regulations,” do you not?

A Yes.

[199} Q And there you have the law set out that is the

White Act, is it not, sir? Well, whether it is the White

Act or not, whatever it is, notice what that law says

that authorizes these regulations. “For the purpose of

protecting and. conserving the fisheries of the United

- States and all waters of Alaska, the Secretary of the

Interior from time to time may set apart and reserve

fishery areas,” now, notice this next language, Mr.

Baltzo, “in any of the waters of Alaska over which the

United States has jurisdiction.” Is that correct, sir?

A Yes.

Q Now, you would agree with me as a man who was

engaged in enforcing these regulations, that whatever

regulations that have described these districts would de-

scribe those waters in whatever the district was as

waters over which the United States had jurisdiction,

would you not, sir?

* * * *

THE WITNESS: Well, I guess I can’t very well

answer the [200] question because it’s over my head,

this White Act.

BY MR. PHILLIPS:

Q All right, sir, I don’t want to get you over your

head. It is a legal question. We have got enough lawyers

here, Mr. Baltzo, and I don’t want you to be a lawyer,

so I withdraw the question, but now I want you to turn

and look at the definition of Cook Inlet, and that is found,

as I recall, on page 45. That definition, does it not,

reads as follows: “The Cook Inlet area is hereby defined

to include Cook Inlet, its tributary waters and all ad-

joining waters north of Cape Douglas and west of Point

Gore. The Barren Islands are included within this area.”

Now, you notice, do you ‘not, as you understood even

back in the 1950’s, that Cook Inlet was described differ-

ently from these others areas, and the difference is,

Mr. Baltzo, that there is no reference in this definition

to limiting it to territorial waters.

A Yes.

Q Right?

A Yes.

Q Now, let me ask you to do this, sir, and I don’t

want to embarrass you. Let me hand you, if I may, or

ask the Clerk to do so, a blank sheet of paper and a

pencil. Now, if you were going to engage in what you

told me was your responsibility to redefine or recommend

redefining or recommend changes in the regulations, can

you write me a regulation [201] that included more water

within the jurisdiction of the United “States than the

definition right before you, of Cook Inlet?

A Well, I am not sure.

* * * *

[202] Q Can you give me a broader definition of

Cook Inlet than the one contained in those 1956 regula-

tions?

A Just sitting here, I can’t.

[203] Q We were starting, as I recall, Mr. Baltzo,

before the recess, with—I call your attention to an in-

strument which is contained in Exhibit 75. You have

that before you, sir?

A Yes. :

Q That is a memorandum dated December 16, 1952,

is it not, sir?

A The memorandum dated December 16, 1952. Did

I say ’62, ’52?

~ 34

Q I thought you were still looking for it.

A I have it now.

Q You will recall that on deposition, Mr. Cranston

asked you about that memorandum, do you not?

A Yes.

Q And you recall, do you not, that while it purports

to be written by Mr. Clarence J. Rhode to the director

in Washington, [204] you recall that you testified that

you believed that you were actually the author of that

memorandum?

A Yes, that is what my deposition said.

Q Well, is it true?

A On reading it over subsequent to that time, I be-

lieve we collaborated on it because there is, oh, points

here that probably Mr. Rhode put in.

Q My point is whether you wrote it, or whether you

collaborated in it?

A Collaborated would be a better word.

Q You were there when it was written; is that

correct?

A Yes.

Q And I call your attention to this language in that

memorandum that you and Mr. Rhode were writing to

Washington. I refer to the second paragraph, or third

paragraph, where after mentioning Cook Inlet you go

ahead and say, “We must control drift gill net salmon

operation—salmon operations or lose control completely.”

You said that, did you not, sir? Third paragraph.

A In the memo of December 16?

Q Yes, sir, right down in the third paragraph. It

is the fourth line in the third paragraph, “We must

govern drift gill net salmon operations or lose control

completely.”

A Yes, I read that now.

And that was an expression of your policy and

Mr. Rhode’s [205] policy back there in 1952, was it

not, sir?

A Yes, that is correct as stated.

Q And this, again—excuse me, I don’t mean to cut

you off. Did you want to say something else?

A I say, that statement, that clause, is true. That

is the way we felt.

Q Yes, sir. So, coming back now, I am trying and

looking back and I know this is a long time ago, Mr.

Baltzo, to the reason why you would have boarded or

asked permission to board that salmon boat and gotten

in touch with Washington.’ The reason was your policy

was that you had to govern drift gill net salmon opera-

tions or lose control completely. That was the reason

that you would have gotten in touch with Washington,

was it not, sir?

You mean in case we had apprehended a fishing—

Fleet.

—a foreign fishing vessel fishing for salmon?

Yes, sir,

In the waters of Cook Inlet, yes.

That would have been the reason?

And the reason would have been that.

Now, I want you to look down to the last paragraph

of that memorandum that you and Mr. Rhode collabo-

rated on. I want to read the first sentence to you. “I

would like to see some official declarations made on a

number of areas, including [206] Bristol Bay and so

state in our regulations the jurisdiction as claimed.

Canada and other countries have taken a stronger stand.”

You see that?

A Yes.

’ Q Now, the reason a moment ago that I was asking

you if you could write a broader definition for Cook

Inlet was because you were talking about official declara-

tions about Bristol Bay in particular, but the definition

in Cook Inlet, by reason of leaving out territorial waters

and including all the water between Point Douglas and

Gore, was because that was as broad a definition as you

could give to Cook Inlet, was it not, sir? That is the

reason I was asking you that question a moment ago,

because you were advocating stronger declarations about

Bristol Bay. You understand why I was asking you

to write us another definition to include more waters

if you could? You understand that now, sir?

OPO PO PO p

A I believe it was just your way of making a point

that that was written as broadly as it could be.

Q. Well, I don’t know whether it is a good point,

but let’s go on now. Grandfather rights may be at

stake, you said. Now, what do you mean by grandfather

rights? |

_A. Well, grandfather rights are those rights that

are claimed by virtue ef prior practice or occupancy.

That is in lieu of any regulation or provision to the

contrary. A certain practice may have sprung up and

then -years later an attempt [207] is made to stop or

prohibit this practice, why, the claim is made that they

have grandfather rights.

Q That is exactly the way I look at it. That would

be a way’ to establish as what you have heard referred

to here as historic bays, isn’t it?

A Historical presence or whatever.

-Q_ I want you to come back and I want you to look

now to that memorandum that Mr. Charney read out

loud. Now, that is in Exhibit 77. That one of April,

1953. I.want you to look at what that memorandum

says, or the extract there says in the last sentence. Are

you with me, Mr. Baltzo? I am looking at April 28,

1953. ,

A Yes.

Q One cf the means by which a historic bay status

may~be established is to claim jurisdiction at least over

the citizens of this country to such waters. That is what

it says?

A Yes.

Q. And that is exactly what you had been doing,

both before and after you got this letter? That is, claim

the jurisdiction over the nationals of this country, the

United States?

A That is what we had been claiming for fishery

regulation purposes.

Q With your wishing to establish some grandfather

rights, isn’t that true?

A We said one of the means by which a historic bay

status may [208] be established is to claim jurisdiction.

Q Yes, sir, and that would be this historical business

that gives rise to grandfather rights, that in turn give

rise to historic bays. It is just that simple.

A Of course, this is signed by the director to us.

This is his statement, not ours. .

Q Now, you say you were greatly—you received this

memorandum here with great relief, that was your words

this morning; is that correct?

A Yes.

Q Now, you weren’t greatly relieved to learn, I

wouldn’t think, that you’d let foreigners fish in these

waters when if the American citizen fished there you

would haul him in and arrest him? That didn’t give

you a great deal of relief, did it?

A Our relief was because we finally had a statement

on the part of the national director as to what we should

do, and also it confirmed the policy we had been following

up to that time.

Q_ Yes, sir.

A It didn’t pull the rug out from under us.

Q You didn’t find any relief, let me put it to you

this way, or maybe you did, in a policy that required

you to arrest American citizens at the same place where

you would let foreigners deplete the salmon fisheries of

Cook Inlet. You wouldn’t have found any satisfaction

in that, would you?

[209] A Well, that is a hypothetical case. It never

occurred. That wasn’t the reason we felt any relief,

and I don’t believe we gave much thought to that part.

Q The relief you got—you advocating that some of-

ficial declarations be made and that grandfather rights

were at stake, the way you would have been relieved,

it seems to me, and if I am wrong, you tell me, was to

have taken these steps so on American nationals so as

to require a historic bay status for Cook Inlet. That

would have been to your liking, would it not, sir?

A I am not sure I understood your question, really.

I’m sorry.

Q I am not sure I understood what you meant this

morning when you said you received this memorandum

from Mr. Day with a great deal of relief. You say it

clarified policy?

A Uh-huh.

Q And I understood that you were relieved to have

it clarified, but you shouldn’t—you couldn’t have been

relieved to know that hereinafter you are going to have

to arrest Americans and let foreigners go free, could

you?

A We had no problem at that time with foreigners

threatening salmon fisheries. That is why we wouldn’t

have felt anything in regard to it.

Q All right, and this is my point. The only people

you could enforce the fishing regulations on on salmon

were American citizens, because they were the only

people fishing in Cook [210] Inlet; isn’t that true?

A For salmon, yes.

BY MR. PHILLIPS:

Q Mr. Baltzo, turning to page 63 and 64 of your

deposition—

A You say 64?

Q Sixty-three, sir.

A Sixty three.

Q Look at line 12. Let me read it to you to get it in

context. “What type of data, memorandum, consultation

or otherwise did you conclude that a six-mile limit applied

at the time you were in office rather than, say, for

instance, a 10-mile limit for closing bays?” Read out

your answer.

A “Because—well, because the three-mile limit ap-

plied, and doubling it comes to six instead of 10.”

[211] Q The question was, “Were you ever made

aware of, or did you ever consider the possibility that

perhaps a 10-mile limit might apply in certain bays,

also?” Read your answer.

A “I can’t recall there was any such concept con-

sidered, no.”

_—

Q All right, now, go ahead and read it all. In other

words, the question was, “In other words, no one in

your office, or no one with whom you conferred in the

Juneau office, was aware of the possibility that there

might have existed a 10-mile limit for closing base in

the 1950’s in the United States?” Read your answer,

sir.

A “I sure don’t remember anything like that.”

Q Now, turn to Exhibit 75 again, sir. Look at the

March 31, 1952, memorandum. Now, in your deposition

—before we get to that, exactly, turn to page 37 of your

deposition.

[212] A I have it.

It’s 36, the page just before that.

Page 36?

Yes. Look at the last question.

* * . *

The last line, 20, you see it, Mr. Baltzo?

Yes.

All right, getting to the one of March 31, 1952,

that is referring to this memorandum of March 31,

1952, is it not?

A Yes. a.

Q “Did Mr. Rhode discuss this memorandum with you

at all? Were you made aware of any of the contents

of this memorandum?” And your answer was, “Well,

yes, I was aware of the overall situation and I am sure

OPO

‘that in one way or another I participated~in it, but I

didn’t write this.” That is indicating, so the deposition

Says.

A Yes.

Q You ‘vere indicating to the March 31—

A Yes, I said I did not write this.

Q New, look at that March 31 memorandum a little

more closely, this very memorandum that you say you

participated in. Doesn’t it refer to a 10-mile limitation?

What I refer to, Mr. Baltzo, [213] is the third paragraph

of that March 31 memo, the third sentence, “The maxi-

mum,” or fifth sentence, “The maximum distance, shore

to shore, for inclusion of bays,” well let’s go back—

as you are aware, the inlet is several times 10 miles

wide, the maximum distance shore to shore, inclusion

of bays, as territorial waters?

A Yes. ;

Q Now, how could you tell us on deposition, or why

would you tell us on deposition, that you had never heard

of a 10-mile line when you participated, so you say,

in writing a memorandum that referred to the’ 10-mile

line? ,

A Because at the time of the deposition I couldn’t

recall what the 10—-what 10—what concept this 10-mile

thing was.

[214] Q I want to refer you again to this memorandum

of December 16 where, you will recall, that you were in

favor, you and Mr. Rhode, who collaborated with you,

in favor of some rather strong declarations of policy.

A Yes.

Q You pointed out there that Canada had taken

some strong positions, right? |

A That was pointed out in here, and probably was

based somewhat or based entirely on Mr. Rhode’s knowl-

edge. I am not sure at [215] all what he meant by that.

Q Now, if you were going to make strong represen-

tations, there would be a number of ways to do it, would

there not?

A Oh, I suppose. :

Q Well, let us suppose that Canada had asked the

United States to tell them where they drew the line

that separated the high seas from the internal waters

of the United States. If you wanted to make a strong

representation, one way to do it would be to respond

to that request by Canada, would it not? ;

A Yes. :

Q Now, and one way to show the exclusivity of

United States waters would be to send a line—send a

_map showing a line; is that not correct, sir? os

[216] Q Now, did you know that after you left, or

about the latter part of your stay, that the Canadian

—

Government asked our government for a chart showing

a line that we would draw?

MR. CHARNEY: Objection; hearsay.

THE COURT: I believe you covered this on direct,

counsel.

MR. CHARNEY: The, Clay-Scudder Line, your

Honor. ; '

THE COURT: The Gharett-Scudder Line.

‘' MR. CHARNEY: I beg your pardon, the Gharett-

Scudder Line. ' r

THE COURT: I believe the witness testified earlier

in regard to the Gharett-Scudder line.

MR. CHARNEY: Not to what the counsel for the

Defendant is asking.

‘MR. PHILLIPS: Let me rephrase the question.

THE COURT: I will consider the question withdrawn.

[217] BY MR. PHILLIPS:

Q Don’t you know that the Gharett-Scudder Line

was drawn on a chart and that that chart was furnished

to the Canadian Government in respond to a request

made by the Canadian Government?

THE WITNESS: I know today based. on something

I have read that Canada was given a set, but at the

time of the deposition, and at the time I worked in

Juneau, I did not know. I had no way of knowing why

the Gharett-Scudder Line was requested or what its

purpose was. - pcp UL =.

MR. PHILLIPS: I see.

THE COURT: All right, the answer may stand. -

MR. PHILLIPS: I believe that is all, your Honor.

Thank you.

THE COURT: Redirect examination?

[218] + +REDIRECT EXAMINATION

BY MR, CHARNEY:

Q Mr. Baltzo, do you know whether or not your en-

forcement agents, or you, acting as an enforcement agent,

42 —K.

ever went on board private vessels ‘not for the purpose

of law enforcement?

A Oh, yes.

* * * .

Q, Did you ever act as an enforcement agent in the

field? ‘

A Well, yes, I have acted as an enforcement agent

‘- quite a few times.

Q Did you ever go on board private vessels while you

were with such an agent?

[219] A Oh, yes, frequently.

, [236] | TAKAMI ICHIMURA

being first nee sworn upon oath, testified as follows:

[238] DIRECT EXAMINATION

, BY MR. BRADLEY: —

([239] Q Mr. Ichimura, will you please describe your

past education?

A In 1955, graduated from the Tokyo University, area

of specialty, fisheries, Immediately. enrolled myself in

——* the same university pursuing the same subject

In two years, conferred master’s degree on

fisheries. Immediately afterward, enrolled myself doc-

-torate program. Spent three years, completed all the re-

parang and pomany ‘preparing a thesis for pre-

Q Would you please describe your past employment?

* * * .

THE WITNESS: In 1959 as a temporary research

employee of the Foreigh Office of the Japanese Govern-

ment, served International North Pacific Fisheries Com-

mission, research committee, biological studies of cultures.

In 1960, assumed a position of the director of the re-

search institute, Japanese Research Institute of Shrimp

Cultures. In September of the same year, the said re-

search institute was reorganized into a profit-making

corporation of which I became the director. Terminated

this employment in February 1962. Became employed

by the Eastern Pacific Fisheries Company, [240] Limited,

in March 1962, the same. year. From March on, began

participating in the experimental test operations of the

Kodiak herring. During the summer of 1963, engaged

in the processing of herring roe and salmon in Alaska,

working under contract for Western Alaska Enterprises,

but remained in the employ of the Eastern Pacific

Fisheries.

In 1964, transferred to the culture department within

the Eastern Pacific Fisheries. In 1968, this culture

department activity became independent of the Eastern

Pacific and the new corporation thus formed became to be

named South Sea Fisheries Company, Limited, of which

I became the director.

In 1969, the South Sea Fisheries Company, Limited,

absorbed another corporation called Japan Shrimp Cul-

tures, which was my first independent organization, and

thus new corporation after absorption came to be called

Shrimp and Yellow Fin Cultures Company, Limited, of

which I became the director, and this employment re

mains until the present day.

BY MR. BRADLEY:

Q. Mr. Ichimura, you testified that in 1962 you

participated in an experimental herring fishery off Kodiak

Island. At that time, did you come to Kodiak?

A Yes, I did.

Q How did you come to Kodiak?

A I came on board the Banshu Maru 31, which was

a mother boat, [241] and there was a fleet of other vessels

surrounding this mother boat. As the fleet came to

Kodiak, I came to the waters near Kodiak.

Q Would you describe the purpose of the trip to

Kodiak?

A The purpose was to come to the waters near Kodiak

Island and catch the herring; should I say spawn herrings,

and process kosnoko which is herring roe cavear.

Q ._How many vessels came with the Banshu Maru

31?

A In additioh to the mother boat Banshu Maru 31, we

had five other boats.

Q Who employed these vessels?

A Eastern Pacific Fisheries Company.

Q What was the headquarters location of the Eastern

Pacific Fisheries Company?

A Inside building located at 1-1 Marunouchi Chiyod-

ku, Tokyo, Japan.

Q Would you please describe the composition of the

fleet that accompanied the Banshu Maru 31?

A There were two sets of herring fishing boats con-

sisting of one purse sein boat and one tender. There-

fore, there were two purse seiners and two tenders.

Assigned to these was another boat which you might

call a bonfire boat, therefore comprising together five

boats in addition to the mother boat.

Q Mr. Ichimura, will you please describe the func-

tions of the vessels you have described?

[242] A The processing, of course, of the boat which

engaged in direct fishing as soon as fish schools are

found. Therefore, they will make certain that the con-

dition of the bottom of the sea are not interfering

with the fishing boat, and also checking on weather

conditions. They will set the net and catch the herring.

The tender boats assist the catcher boats or the purse

seiners in arranging the net to catch the fish, and after

capture, tender boats perform the function of transport-

ing the catch from the purse seiners to the mother-boat

for processing. The bonfire boat has that particular

function of making fire on board for the purpose of

luring the herring schools if the concentration of fish

are not enough to justify fishing efforts, particularly

in the dark hours of the night. The bonfire boat plays

the role of collecting and keeping the fish school where

they can be caught.

Mr. Ichimura, how large is the Banshu Maru 31?

Approximately 1770 tons.

How large is the crew?

Approximately 125.

How large were the purse sein boats?

One was 180 tons. The other was 150.

How large were the crews of these vessels?

Twenty-five for the larger one, and 22 for the

smaller one. ,

Q Mr. Ichimura, do you remember the sizes of the

tender vessels?

[243] A One was 100 ton capacity. The other was 70.

Q Do you remember the size of the bonfire boat?

A About 30 tons.

Q Would you describe the methods employed by these

vessels to catch fish?

A First of all, five boats other than the mother boat

were equipped with a fish school detection equipment by

the use of which they will continue from the time they

arrive on the fishing ground, continue searching for fish

schools. In our operation, to find the fish schools comes

first. And then, once you detect a school of herring, since

the method of catching fish is purse seine, it becomes im-

portant. that you ascertain the bottom conditions are

right and also weather conditions are favorable. Con-

cerning these points, the two purse seiners and two

tenders encircle the fishing—fish school. Thus, purse

seiners circle the school with the purse seine nets, you

naturally tighten the purse and bring the fish out into

the hold, and tender boats from that point carry the catch

back to the motherboat. Such was the method of

operation.

Q Mr. Ichimura, can you tell me what a fish group is?

A It means the school of herring fish. _

Q Is there any distinction between fish group and

fish school?

A You see, the way English words are used, in Japan

if you say “fish school,” it sounds as if they’re enrolled

in elementary [244] school, so they use the word “group”

instead of school in Japan.

rO>O>rO Po

Q What kind of detection gear was used by these

vessels when they were searching for fish groups?

A The equipment was based on the principle of sonar

detection.

Q Was this equipment used while these vessels were

in transit?

A Yes. Of course, they were not used until the fleet

arrived in the fishing ground area near Kodiak Island,

- but from that point on at all times during navigation all

of the five boats were using the detection equipment.

Q According to the fishing methods that you have just

described, was it necessary while in the course of these

operations to utilize the entire fleet?

A Yes, they were necessary.

Q Normally, would the purse seine boats set their

nets before they detected schools of fish?

A Not under normal conditions.

Q Under what conditions would they set their nets

before—excuse me—before they detected a fish group?

A Well, around Kodiak Island, in Shelikof Strait

when we arrived—shortly after arrival, we were not

finding any herring schools, but dropped the nets in the

water a couple of times for one to check the mechanism

of the purse seine, and also practice methods of handling

the net.

What officer was responsible for the navigation

of the [245] Banshu Maru from Japan to the Kodiak

group? ;

A Captain Mongo Hanasaki was responsible.

Q Did the captain make all the navigational decisions

during the voyage to the fishing grounds?

A Of course he did.

Q Did his responsibility for navigational decisions

change at any time?

A : Yes, it did.

Q On this trip? When did it change?

A From after the fleet’s arrival on the fishing ground.

Q How did it change?

A First of all, the purpose of the sending of the

fleet is—the primary purpose is to implement the herring

operation plan and therefore after arrival on the fishing

ground, not only the movement of the vessels, but also

the planning thereof, and also those other matters directly

relating to the movement of the vessels comes under the

supervision of a group of five individuals who are charged

with the responsibility of conducting the operations plan.

Of course, even if the group takes over the operating

responsibilities and movements related to it, the captain

of the vessel continued to exercise—maintained or exer-

cised authority in two areas. One, the safety of naviga-

tion, the other—

Q What is the operations group?

A Policy work. These are five individuals sent by

the company [246] to execute the project.

Who were the members of that group?

A The group was headed by Mr. Yamaki, and fish-

ing efforts were supervised by Mr. Kominato, processes

by Mr. Toyoda, and general affairs by Mr. Kominato, and

I, myself, took the responsibility of planning.

Q Can you describe in some more detail the functions

of this operation?

A First of all, the manager of the group is in charge

of the overall supervision of the function of these men.

And then Mr. Kominato, who is in charge of fishing

efforts, he will determine such matters as the density of a

given school of fish, the size of it, and also a suggested

method of catching the fish. He being the expert on these

subjects, he naturally makes studies and recommendations

to the group which will be discussed and reviewed within

the group for final decision by the manager.

Mr. Toyoda, in charge of processing, of course, is in

charge of the~production, all phases of production, and

his primary responsibility is to see to it that the quality

of the product is the best attainable. :

Mr. Kominato, in charge of general affairs, his role is

to take care of the payroll of the crew and keep elemen-

try check on the various provisions apd other general

a of the conduct of the internal affairs on board the

ats.

[247] If you remember, myself in charge of planning,

my responsibility was to detect a migration route of

ee a a ge es

A No, it did not.

Q On what basis was the decision to change areas

made? \ .

A After going around the island of Kodiak once in

which time no fish \schools were found, we came to the

conclusion that the main herring schools were still migrat-

ing from outside into the spawning ground, and realized

the necessity of continuing our cruise around the island

in order to study the pattern of migration.

Q Did your job, Mr. Ichimura, your function on the

Banshu Maru, require\ you to be familiar with the log of

the Banshu Maru? |.

A Yes.

Q Why did you to be familiar with that log?

[248] A You see, t of all, we have to look for the

fish, the schools of fish.\In our efforts to detect the fish

schools, it naturally follows that we have to keep our-

selves abreast on the ment of the vessel itself and _

methods and direction of future movements. These are

quite important as a is of the discussion for the group

in order to make critical operating decisions. And in

order to determine the p t and future points of the

Where on the vessel is this log kept?

In the chart room on the bridge of the motherboat.

Did you have access to that room?

Of course, I did. :

What reasons would you go into that room for?

The primary reason is the fact that the conferences

of this operations group was frequently held in this

chart room.

Q How often would these conferences be held?

A Well, sometimes there might be as many as three

to four meetings a day. Other days, there might only

be one meeting.

Q How often would you check the log of the Banshu?

A You see, whenever there is a change of course, this

is preceded by a conference amongst the members of the

operations group [249] for good rasons that you under-

stand, and therefore, at such times we all check the log to

make sure that we are doing it correctly.

Q So, you saw it at least every time the boat changed

direction?

A Yes, most of the time.

Q Why did the Banshu Maru keep the log?

A First of all, it is required by the law of navigation

of Japan that the captain keeps the vessel—keeps the log.

It is a legal requirement. And secondly, the employer

organization requires a certain record keeping during the

navigation period, and for these two reasons, the log

was kept aboard the motherboat.

Q What were the legal requirements imposéd by

Japan on the vessels to keep a log?

A As to the particular specifics of the requirement,

I don’t have knowledge.

Q What was the nature of the entries that were

made in the log?

A The information contained in the log consists of

the following, such as position of the vessel at noon,

1200 hours, the various conditions of the weather, time

of the change of the position, whether or not the catchers

are detecting the fish schools, the consumption and entries

of oil, water and other supplies.

Q Were these entries made in the log of the Banshu

Maru during [250] the Kodiak operation?

A Yes, they were.

Q Who were these entries made by?

A They were entered by the chief officers of ‘the

vessel.

Q Generally, can you describe at what intervals they

were made?

A It is impossible to say how often, because it de-

pends on the conditions and the nature, such as type of

weather, and also change of the course of the vessel

which might occur very often one day and not at all

another day.

Q What language was the log of the Banshu Maru

kept?

English language.

Mr. Ichimura, can you speak English?

Only a little.

Can you understand spoken English?

If you don’t complicate what you are saying.

Can you read English?

Yes.

Can you write English?

Simple sentences, yes.

MR. BRADLEY: At this time, your Honor, I would

ask the Clerk to hand to Mr. Ichimura Plaintiff's Exhibit

Number 104.

BY MR. BRADLEY:.

Q Mr. Ichimura, will you please review that docu-

ment? Do you recognize that document?

[251] A Yes, I do.

Q Would you tell the Court what it is?

A It is a copy of the log book of the Banshu Maru 31

of that time period the operation—herring operation con-

tinued at that time.

MR. BRADLEY: Your Honor, at this time, the Plain-

tiff would like to re-offer Plaintiff’s Exhibit Number 104

as the authentic copy of the Banshu Maru.

THE COURT: Is there any objection?

POP PO PO

MR. CRANSTON: There is no objection, your Honor.

THE COURT: It may then be marked and received

into evidence as 104.

(Plaintiff’s Exhibit No. 104 received in evidence.)

BY MR. BRADLEY:

Q Mr. Ichimura, during what period of time does this

log cover? What period of time does it cover?

A From the time the fleet left the Japanese port in

the latter half of March 1962 through the month of June

until the time of our arrival back in Japan.

Q Mr. Ichimura, what was the operational plan of

the vessel Banshu Maru and the fleet when it reached

the Kodiak fishing ground?

A First of all, we had had previous biological knowl-

edge that there was a principle spawning ground in the

Shelikof Strait, [252] particularly in the waters adjacent

to Uyak and Uganik. Therefore, our preliminary plan

called for placing the center of our operation in that

vicinity. However, we had no biological knowledge what-

soever of the general pattern of migration of the

schools. Therefore, we also had in mind a plan to move

around the island of Kodiak in order to determine scien-

tifically the condition of migration of different schools

of herring, and at the same time, in so doing discover

mature spawning herring schools, capture them and

process them. Such was the purpose of the plan at the

time of arrival.

Q Did you search for fish in the area you originally

arrived?

A Of course, we did.

Q Did you find fish.

A No, we could not.

Q What did you do?

A Well, we went around the island and moving

northward we passed waters south of the Barren Islands

and came back to the Shelikof Strait approximately

where we had started, and I remember in the beginning

of the month of April, finally we for the first time found

a school of herring. It was near Uyak.

Q After leaving Shelikof Strait the first time and

passing south of Kodiak Island, did you fish on the

Paeifie side of Kodiak Island?

[258] A Yes, we looked for fish.

Q Did you find fish?

A No.

Q Did you set your nets there?

A No, we did not.

Q Continuing on the route you described, did you

fish north of Kediak Island?

A We looked for fish, but did not find them; therefore,

did not use the fishing gear.

Q You testified that you finally found fish when you

reached the Shelikof Strait area; is that correct?

A Yes, we did find—we did find them and we caught

them.

Q What did you do with these fish?

A Well, we conducted a series of biological tests

starting from the measurement of the body of the fish,

and particularly as it was important for the purpose of

the operations, the rate of sex maturity, having to do

with the maturity of the eggs, but most of the fifteen

ton of fish were found in the stage of prematurity.

They were immature and therefore, as a result of these

tests, we arrived at the conclusion that the season was

as yet too early and the main part of immigration was

still to come.

Q What did you do as a result of these findings?

THE INTERPRETER: Excuse me. Since you spoke,

I missed him. I had asked him to repeat.

[254] BY MR. BRADLEY:

Q What did you do as a result of these findings, Mr.

Ichimura? : 1

A AsI said, we came to the conclusion that the main

- body of the mature incoming schools are not yet around,

and therefore from that conclusion we came to the decision

of going once again around the island of Kodiak in

search of them?

Q Did you search for fish on this route?

THE INTERPRETER: Which—on this route, you

mean the second route?

MR. BRADLEY: The second route.

THE WITNESS: Of course, as I said, we were

searching whenever in navigation.

BY MR. BRADLEY:

Q Did you find fish?

A No.

Q Then what did you do?

A Well, we only made one further trip which was

unsuccessful. This time in going around the island

again we decided to go north of Barren Islands be-

cause the last time when we made that turn south of the

islands there was no finding reported. We had the final

view in mind of coming back to Shelikof Strait.

Q At this time, you testified that you went north

of the Barren Islands?

A Yes, if north is not appropriate, above the islands.

[255] MR. BRADLEY: At this time, your Honor, I

. Would like to ask permission for the witness, the in-

terpreter and myself, to approach the easel to which is

attached Plaintiff Hodgson’s Deposition Exhibit Num-

ber 7.

Q Mr. Ichimura, have you ever seen this map before?

A -Yes, I have.

Q When have you seen it?

A Yesterday afternoon in the basement of this build-

ing.

Q Who showed you the map?

A_ The person standing in front of me.

[256] Q Do the lines which are drawn on this map

and which are lettered A and B have any significance

to you?

A I think it is the reproduction of the course taken

by the fleet headed by the Banshu Maru 31 around the

6th of April 1962. |

Q And to the best of your memory, these lines rep-

resent the general course of the Banshu Maru?

\ 54

A Yes, it must be the course of the fleet.

Q \Were you searching for fish groups on this day?

A \Yes. As I said, boats were instructed to do s0

while in cruise.

-— Q If groups of fish had been located on this day,

would you have set your nets to capture them?

A ie

this

most likely, they would have.

le on this route which have described on

as represented by Lines A and B, was the .

Banshu Maru interferred with by any authority?

A No, not at all.

Q Did you take this route north of the Barren Islands

“that you have described in order to on a port?

A (Nodded to the interpreter: )

Q A port?

AA all right. No.

Q en you enter a port north of the Barren Islands?

A No. \. ;

[257] ee you take this route north of the Barren

Islands 5 on this chart in order to find shelter ,

from the weather? an

A No, it wasn’t. \\

Q Did enter on this route north of the Barren

Islands to find shelter to repair damage to\your vessels?

A No, there wasn’t.

Q Mr. Ichimura, as you took this route which you

have descri and which is delineated on this ,map

and you here between Cape Elizabeth and the

Barren Isl did you think you were entering the

territorial waters of the United States? :

Poet ee

\ * o em & I

[258] THE WITNESS: No, I had no knowledge of

that.

his cross examination, there is a matter about\the iden-

tification and admission of the map that I used in the

direct examination of Mr. Ichimura. It is an exhibit to

Plaintiff iar deposition. It is Exhibit Number

7. We wonder t procedure we should use ys sas it

;

[260] MR. BRADLEY: Before Mr. Cranston begins

identified here so it won’t be confused with the Hodgson

deposition as an exhibit to it as well as this..

‘THE’ COURT: Perhaps the record could reflect that

ee eee ee tam from

the Hodgson deposi

MR. BRADLEY: "Dr. Hodgson, the geographer of the

[261] Department of State.

MR. PHILLIPS: Is it presently marked? Why

' eouldn’t we use the same number?

MR. BRADLEY: No, it is not. It is subject to all

of the qualifications and restrictions on ps censemnea ex-

hibits that you ? ge yesterday. !

THE COURT: Well, it, could be offered as a casien

exhibit. The only trouble with that is to separate it from

the deposition or, of course, it could receive, beth. I don’t

know as it would be particularly confusing. Why don’t

’ we give it the next number and aie tiny ‘be veborned

~ th TUE teens ee Me NS aCe F Be Sa

i hy

to the, deposition.

MR. BRADLEY: Thank aig I believe it is 116.

THE COURT: Is there any objection to ‘receiving

it as illustrative of this aithes's testimony?

MR. CRANSTON: There is no objection to that,

your Honor.

HE COURT: You mark it next in order, then,

Mr. Clerk, and directly into evidence, and then it may

be—after the witness has completed his testimony, it may

be returned to the deposition.

THE CLERK: . One hundred sixteen, your Honor.

THE COURT: One hundred’sixteen. - Eee

(Plaintiff's Exhibit No. 116 received into evidence. )

. . . Res

- “,

[262] - CROSS EXAMINATION

BY MR. CRANSTON:

Q Mr. ea en ee t the voyage

you commenced on or about the 6th day of April around

the Barren Islands, which is rliodek ia the exhibit. I

would like to pursue that a little bit fur urther, with you.

eae

Mr. Ichimura, after you left the area which on this

chart is this area here (indicating), could you tell us

where you went?

A We went to the waters close to Ban Bay.

Q And that, Mr. Ichimura, I believe is off the west

coast of Kodiak Island; is that correct?

* * * *

[264] THE WITNESS: If you mean the west coast

means the side [265] « the Shelikof Strait of the Kodiak

Island, yes.

MR. CRANSTON: A Clerk, does Mr. Ichimura have

before him Exhibit 1047 If not, I wonder if it could

be handed to him?

THE CLERK: Yes, Mr. Cranston.

* * * a

Q Mr. Ichimura, I would refer you to page 41 of the

exhibit to the entry in the last portion between the two

heavy lines commencing 2110, and, I would ask you to

have—I would ask (266] that you read that through

the use of the interpreter if necessary.

_ A “2110, got alongside Teal, T-e-a-l, U.S.A.F.D.O.,

fishing, inspect boat and eame on board, fishery depart-

_ment officer.”

* * _ *

' [267] MR. CRANSTON: At this point, I would read

into the record ‘the entries which have been explained to

Mr. Ichimura.

“2110, got alongside Teal, U.S.A.F.D.O., fishing inspec-

tion boat, and came on board, fishery department officer.”

“2300, cast off Teal. ‘Captain went together by reason

of breaching territorial waters. Otori Maru, Dairyo

Maru Number 61, were suspected of breaching territorial

waters. Soon arrested.” |

BY ‘MR. CRANSTON:

Qi would ‘ask Mr. Ichimura if he recalls these

events.

So Yee, do recall.

Q Is it true that the captain of the Banshu Maru

Number 31 was arrested by the officials of the Alaska

Department of Fish and Game as indicated in the log?

MR. BRADLEY: Excuse me, your Honor. At this

time we have an objection. That calls for a legal con-

clusion which [268] the witness is not qualified to give.

THE COURT: No, he may answer if he knows. He

may not speculate, so if he knows the answer, he may

answer, but he must not guess at it.

THE WITNESS: Yes, what you said is correct.

THE INTERPRETER: Mr. Ichimura’s amplification,

in answering to your question, after saying, “Yes, what

you said is correct,” Mr. Ichimura further states that

he has no knowledge or recollection of whether it was

an official from Alaska State Fish and Game or possibly

United States Coast Guard or some other agency, be-

cause he recollects at the time of the boarding of the

officer the request by the crew for presentation of a

warrant was not heard, and as a result, no warrant was

seen by anybody, thus making it difficult for Mr. Ichimura

to recognize who it was, but it was most likely that it

must have been some kind of government officer.

THE COURT: All right, go ahead.

[269] BY MR. CRANSTON:

Q Then, I can take it, Mr. Ichimura, that the cap-

tain of your vessel was taken into custody by someone

and had to leave the vessel?

A It is a fact.

Q Do you know, Mr. Ichimura, if any other persons

from either the Banshu Maru 31 or any of the other five

vessels in your fishing fleet were taken into custody by

anyone at that time?

A Yes, there were others.

Q How many?

A The captain and crew of all three, Otori Maru, and

also captain and crew of Dairyo Maru.

Now, Mr. Ichimura, I would refer you to page 44

of the Exhibit 104, and I will read into the record the

entry appearing after the figure 1950, and ask the trans-

lator to read it to Mr. Ichimura.

“Got alongside Teal (U. S. Fishery Department and

Game Inspection Boat). 1000, Cast off Teal. Captain

been arrested. Again owing to take territorial waters

into court, Alaska State.”

Could you look that over, Mr. Ichimura, please? Mr.

Ichimura, are you familiar with that incident?

A Yes, I am.

Q And was the captain referred to in the log entry

once again Captain Mongo Hanasaki?

{270} A Yes, it is.

Q After the arrests, or after the iniahdant which we

have just referred to, Mr. Ichimura, was an agreement

entered into between the Eastern Pacific Fisheries Com-

pany and the State of Alaska?

A Yes, I am aware of it.

Q@ Mr. Ichimura, one further question. Was the

agreement of which you are aware reduced to writing?

A Yes, it has been.

MR. CRANSTON: ‘I would like to hand the Clerk a

copy of an agreement dated at Kodiak, Alaska, April 19,

1962, executed by the State of Alaska and the EaStern

Pacific Fisheries Company, that agreement being a record

in Criminal 62-141, 62-142, 62-1A, in the Superior Court

for the State of Alaska, Third Judicial District, entitled,

“State of Alaska, Plaintiff; versus Mongo Hanasaki, Mine

Sotashi and Higashima Tadao,” and I would like that—

I will hand a copy to counsel. I would like that marked

next in order.

THE COURT: It may be given the next in order

for the State for identification.

THE CLERK: I-V, your, Honor. °

(Defendant’s Exhibit I-V marked for identification. )

THE COURT: It may be handed to the witness.

[271] BY MR. CRANSTON:

Q Mr. Ichimura, you have been handed what has

been ‘marked for identification as State of Alaska Exhibit

I-V. I would ask you to turn to the last page of that .

document, and I would ask you if on that document you

recognize the signature of Captain Mongo Hanasaki?

A Yes, there is such a signature, and I can personally

recotnize it.

Q And do you recognize personally the signatures of

the other Japanese individuals on that document under

the heading, “Approved and consented to”?

A Yes.

MR. CRANSTON: At this time, your Honor, I would

move the admission into evidence of State’s Exhibit I-V,

which is a certified copy of a document by A. M.

Vokachek, Clerk of the Superior. Court, Third Judicial

District of the State of Alaska, and which I described

earlier.

THE COURT: Is there any objection?

MR. BRADLEY: No objection, your Honor.

THE COURT: It may then be marked.

(Defendant’s Exhibit I-V received in evidence.)

= = = =

[272] Q Mr. Ichimura, I notice the agreement which

has now been admitted as Exhibit I-V was signed on the

_-19th day of April 1962. Will you tell. me what the fishing

fleet of which you were involved did after the signing

of the agreement?

A After the date of signing of this agreement, as a

result of the terms and conditions agreed upon, the cap-

tains and crews of both the Otori Maru and Dairyo Maru, -

together with the captain of the Banshu Maru 31 were

released from detention and therefore the three immedi-

ately proceeded to reorganize group operations and went

southward through Shelikof Strait, going around the

southern end of the island, again sailed northward on the

Pacific Side of the island.

_ Q And did the group then engage in further fishing

activity thereafter? Pn

A Yes.

Q Where was that?

[273] A It would be much easier if I were next to the

chart to point to the course, but short of that, let me

say that the fleet went further north and turned east-

ward, the general direction of Juneau, and kept conduct-

ing detection and other surveys in the waters within the

limits prescribed on the permit issued by the fisheries

agent of the Japanese Government.

Q I take it, then, the fleet did not again enter the

area of Shelikof Strait or Cook Inket?

A No, you are right.

Q Mr. Ichimura, you were then aware, were you not,

that the Japamese Government was consulted by your

company about this agreement, Exhibit 1-V?

A Of course, yes, but let me describe how we did it.

It was evident at the time that there would be a very

substantial financial loss incurred already as a result of

the incident, and therefore, in proper discharge of our

responsibility, we tried and did contact our government

through our lawyers in Tokyo, checking on the impor-

tant points of the problems we were faced with.

Q Mr. Ichimura, you also knew, did-you not, at that

time} that the agreement could not be signed without the

consent of your government?

A I -was—i had no knowledge of that.

Q Did you not know, however, that if there had been

opposition from your government, the agreement would

not have been signed?

[274] THE INTERPRETER: Excuse me. Opposition

to the effect that they should not sign it, is that what

you are saying?

BY MR. CRANSTON: >

Q Did you not know, however, that in the event of

opposition from your government, the agreement would

not have been signed?

* * * *

THE WITNESS: Of course, we were waiting patiently

for the instructions to come through from our Tokyo law-

yers as to what to do about it. However, the actual con-

dition that prevailed at that time, you might describe it

as a chaotic situation, and there were conflicting news

and information. Therefore, in the final analysis the deci-

sion to sign it was arrived at through a joint conference

amongst ourselves.

BY MR: CRANSTON:

+, in rephrasing my question, Mr. Ichimura,

a eee eompany have signed this agreement, and

up have agreed to the signature of this

i teen el if there would have been opposition from

the Japanese Government?

[275] THE WITNESS: [f cannot answer that question. .

BY MR: CRANSTON: —

Q Mr. Ichimura, at the time when we spoke about

this matter aPProximately two nights ago, did you not

tell me in. res te a question, the question being—

MR. CRANSTON: Do you want to interpret at that

point?

BY MR CRANSTON:

Q Would your company have signed the agreement if

your government had opposed the signing of the agree-

ment, that bei™ my question. Did you not answer, “The

agreement would not have been ‘signed in the event of

opposition from my government”?

A Yes, I did, but then I was expressing my personal

opinion, and of course, in the final analysis and the final

decision that was made through our lawyers in any event,

and based on their decision, I would have discussed the

matter and ovr operations group head would have made

the final nominal decision as to what to do.

_Q_ FI take it, then, no opposition—that you were aware

of no [276] opposition from your government concern-

ing the signing of this agreement?

A I have no personal knowledge whether the Japanese

Government made opposition to the act; however, I was

aware at the time of it of a directive from the head-

quarters of my company telling us not to sign it.

* a a *

Q Let me ask this, Mr. Ichimura. Has the Eastern

Pacifie Fisheries Company since the time of the signing

of this agreement conducted fishing operations in Cook

Inlet or Shelikof Strait?

A No.

Q Do you know of any other Japanese company

whose fishing vessels have engaged in fishing in Cook

Inlet or Shelikof Strait since the date of the signing of

this agreement? |

* * * *

[277] THE INTERPRETER: Yes, he did. \His answer

was, “I don’t know.”

BY MR: CRANSTON:

Q Mr. Ichimura, going to your testimony which you

referred to this exhibit which has been marked as

Exhibit 116 in this case, can you give me an approxima-

tion of the amount of time which elapsed between the

time you were at what has been indicated as Point A

or Point B and until you reached the location which is

indicated as 1200. hours, 4/6/62?

A You see, as I remember, the 1200 hour position

record on the preceding day is somewhere below the

middle of the Kodiak Island on the Pacific side. There-

fore, judging from that, the number of hours spent in

between these two points you mentioned, namely from A

and B to that day’s 1200 hour point, it must have been, I

think, something like 10 to 12 or perhaps more

12—10 hours.

Q Now, Mr. Ichimura, during that period

which is represented by the lines drawn on Exhibit 116,

~~ ~~ of the vessels involved have any fi-’:ing nets out?

Q Or were any other type of fishing gear such

lines or purse seines being used or out of the boats

A You see, I was, as you know, on

within visual distance from the catchers most of the

Therefore, [278] when I say that they were not

the gear in the water, my statement is based on

assumption that they should not have been

gear in the water because they normally

the gear in the water unless fish schools have been f

through the detector, and I also happen to know tha

2 F

cE SS TEE

eGcebls «

t=)

this time period there was no reporting by any one of

the catchers of finding of any fish schools.

Q So, then, the reasonable conclusion is, is it not, Mr.

Ichimura, that there were no nets, fishing gear, lines or

other type of fishing gear in the water?

A Yes, it is quite reasonable.

Q A few more questions, Mr. Ichimura. First, did

you observe the presence of any vessels from the Alaska

Department of Fish and Game during the period of time

that you were cruising between Points A, B, and the

1200 hour location on Exhibit 116?

A No sighting of Fish and Game boats around Bar-

ren Islands, nor in the subsequent cruise time until 1200

hours point. However, I have recollection of sighting a

vessel before we came into the waters shown on that

chart, and the position was somewhere northeast of

Kodiak Island below Barren Island, [279] facing the

Pacific Ocean we sighted a boat which might have been

an Alaska State Fish and Game vessel, or can equally

have been United States Coast Guard boat. We weren’t _

certain, but both our boat and this vessel exchanged sig-

nals by the use of flags, mutually wishing safety on

the sea.

Q And this was, Mr. Ichimura, prior to the time you

arrived at the Point A-B on that exhibit; is that correct?

A Yes, it is.

Q Mr. Ichimura, have you ever had any training in

er subject known as international law of the sea?

No.

Q And have you ever, apart from any training you

have had, ever studied the legal*regime of historic bays?

A No.

Q_ I take it, then, your testimony in response to Mr.

Bradley’s question to which I objected while you were

standing up here at Exhibit 116, it was not based on

any teaching or opinions on your part relative to the legal

status of the waters in which you may have been?

A Of course, I was—I was not with any such trained

knowledge at the time of the cruise. However, as I have

told you before, throughout the time we spent together

on the ground we were in eontinuous conferences amongst

our group including the captain of the boat, and since

captains never make any mention: of such legal problems,

regimes, restrictions, I was [280] of the impression that—

no, I was unable to obtain any expert knowledge on the

subject. ~-

MR. CRANSTON: I have no further questions, Mr.

Ichimura.

THE COURT: Any redirect examination, Mr.

- Bradley.

MR. "BRADLEY: Yes, sir. May I have a second?

THE COURT: Yes, you may.

MR. BRADLEY: Your Honor, Mr. Cranston, on cross

examination, opened the subject of the collaboration and

the knowledge of the Japanese Government and their rela-

tion to the fishing vessels signing this agreemnt. At this

time, we would like to read into the record: the Japanese

response to this agreement.

“Ambassador of Japan presents his compliments to the

Honorable Secretary of State, and with reference to the

recent incident involving Japanese: fishing boats off the

coast of Alaska, has the honor, under instructions of his

government, to make the following representation. One,

a fishing fleet consisting of the.mother ship HIKK, East

Pacific Fisheries Company, was engaged in herring fish-

ing.”

[281] THE COURT: Are you reading from an exhibit?

MR. BRADLEY: Yes, your Honor, United States’

Exhibit Number 57, which is a diplomatic note from the

Government of Japan to the United States.

[282} MR. BRADLEY: [If the State will stipulate that

the vessels mentioned in this exhibit that is in the diplo-

matic note is the same vessels upon which Mr. Ichimura

served as a member of the operations committee—

MR. CRANSTON: Does it refer to the: Banshu Maru

Number 31, may I ask?

MR. BRADLEY: A. fishing fleet consisting of the

mother ship Banshu Maru Number 31 KK, East Pacific

Fisheries.

MR. CRANSTON: We fully agree, your Honor,

they’re the same vessels.

THE COURT: The stipulation may stand of record.

Now, you may direct a question to the witness.

* a Sd 2

DEFENDANT’S WITNESSES

[300] | DONALD M. ROBERTS

being first duly sworn upon oath, testified as follows:

THE CLERK: Please state your full name for the

record; and spell your last name.

A Donald M. Roberts, R-o-b-e-r-t-s.

The COURT: Counsel?

DIRECT EXAMINATION

BY MR. CRANSTON:

Mr. Roberts, what is your present address?

217 Bentley Drive East, Fairbanks. ~

What is your occupation?

Regional supervisor for the Division of Protection,

Alaska Department of Fish and Game.

Q How [sic] long have you had that occupation?

A I have been with the department for 12 years. I

have been in Fairbanks six .years.

I take it, then, you have been with the Alaska

Department of Fish and Game since Alaska became a

state?

A Well, since they took control of their resources as

of January 1 of ’60.

Q Prior to that time, by whom were you employed?

A Well, prior to that I was in the wholesale business

in [301] Anchorage for a while.

PO PO

Q And before then did you ever have any employment

with the United States Government?

A Yes. I was employed as an enforcement agent for

the United States Fish and Wildlife Service.

Q And while you were an enforcement agent were you

ever employed by the Fish and Wildlife Service in the

Cook Inlet area?

A Yes, I was.

Q All right. What was the first year you were in the

Cook Inlet area?

A 1951:

Q All right. What were your duties there in 1951?

A In 1951 I had a title of biological aide. During

the summer I worked for the Commercial Fisheries

Section of the Fish and Wildlife Service.

Q All right. And generally what were your duties?

A Well, general duties for that summer for stream

surveys, stream counts, and assisting with the enforce-

ment on Cook Inlet at the peak of the red salmon run.

Q All right. Were you — on any patrol vessel

during that period?

A Yes. I was aboard the ood ‘Steelhead.

Q Now, could you describe briefly the area which you

patrolled in Gook Inlet while you w board the

Steelhead? K 3

[802] A Weil, I was—the red run was dy started,

and the area, of course, was new to me, as you under-

stand, having been new to Alaska that year, but itis my

recollection we started patrolling south of—picked up the

fleet south of Kalgin Island and moved with them as the

fish moved, checking boats for proper registration and

seeing that they didn’t fish closer than the legal dis-

stance between gear. And we boarded—would board

vessels every day checking their registration against their

vessel plate numbers and also we would measure lengths

of the drift gill nets. They were restricted to certain

lengths, and some fishermen once in a while would have

a tendency to put on another shackle or two, and also they

were not allowed to carry more than the legal limit of

gear

We checked the vessels to see if they had extra hung

gear aboard.

Q Now, is this generally the type of activity you

were concerned with during these patrols?

A During my stay on the Steelhead that summer,

yes, that was our primary concern.

Q While you were on ‘the Steelhead, did you patrol

the area which would be south of a line drawn from

Herring Point to the southern end of the Kalgin Island,

and thence over to Ninilchik?

A Yes.

Q And did you concern yourself or pay any attention

to whether [303] you were more than three miles from

any shoreline in that area?

A Our only concern was being with the fleet and

checking them, which is out in the middle of the inlet.

Q Can you describe the area in Cook Inlet in 1960—

1951 where you did patrol south of that line which I just

described?

A You mean 1952?

Q Right. Is this the year you are testifying to?

A 1952, I am speaking of,*yes.

Q Oh, I believe earlier you may have said 1951.

A Oh, I am sorry. I am in error. I wasn’t even in

Alaska in 1951.

Q Oh, all right, 1952.

A You want me to describe—would you repeat the

’ question?

Q The area over Cook Inlet over which you patrolled

in 1952 while on the Steelhead.

A Well, there was—I can’t be real precisely exact,

the degrees and latitude then, but it was—I was put

aboard, I know we were south of Kalgin Island because

there was another fellow aboard a Grummin Goose that

set us off and we dropped him off at Kalgin Island to

assist in the stream guardgthere, and then we flew south

and I don’t know how long we flew or how many minutes,

but we fiew south and they dropped—and put me aboard

the Steelhead, and then that is where I spent my time for

the next—it might have been 10 days or two [304] weeks.

I just really don’t recall exactly now. Following the—

working with the fleet, following them north as the fish

moved on up from that point, mostly up along the’ east

side of Kalgin Island and the fish moved around the

island, and then. om north, and then they go—they go

moving back around the north side of the island.

Q Did you patrol as far south as the latitude of

Anchor Point that year?

A It would be possible, but I couldn’t say for sure

that year.

Q Now, did you return to Cook Inlet, the Cook Iniet

area in any later years?

A Y¥es, I did. I was there—well, the fall of ’52 I took

a permanent position then with enforcement, protection,

06 Fish and Wildlife Service as enforeement. agent. The

following summer I went down—well, left Anchorage on

the patroli vessel Chum, weil, probably a little bit after

the middie of May, because the—fishing season used to

from: about Anchor point, because there was no: drifting

cross this line; then, of course, they were allowed to

= I

up around the island, and the same pattern up to the

north end and the ‘ish weuld break off and go into the

various rivers.

Q Could you describe where this closed area was

located?

A The closed area I mentioned to the drift fishing?

Q Yes. | Se

A There was no drift netting south of a line from

Anchor Point south. ;

Q Now, did that line extend across Cook Inlet? |

od ° * *

[306] Q You testified, I believe, that there was a line

at Anchor point. I am just wondering, did that line

extend to a point on the opposite shore of Cook Inlet

for purposes of the regulations?

A Well, as I recall, that was correct. There was no

drifting’ from a line north of Anchor Point. Anything

south of this line was closed to drift netting, gill netting.

Q And did you determine whether the closure to

drift netting south of Anchor Point included an area

more than three miles from the shoreline of Cook Inlet

south of Arichor : Point?

A There was nothing in the regulations that stated .

this.

Q Did you— ,

A’ The three miles didn’t enter into it.

Q Well, let’s put it this way: Did you determine

that your patrol responsibility was to prevent. drift

netting more than three miles off shore south of Anchor

Point?

A No, just to prohibit drift netting in that whole

general area south of this line, and—

Q What I am trying to get at, what do’ you mean

by “the whole [807] general area”?

A Well, there was an area, I think we used to call

it the Southern District, from Point Gere and Cape

Douglas north, and then there was another line that—

this Anchor Point line, so there is a space in between.

I Bee you have got a map over there. There is a space

in there we refer to as the Southern District. It was

i eae |

open to seining, but not open to gill or drift netting in this

area, in this—I think it was called the Southern Dis-

trict. It was open to fishing, but not that type of gear.

Q So, did you determine that you would enforce this

ation throughout 2 that water area that you have

just described?

'. & Oh, yes. This area takes in Kamishak Bay on the

west and Kachemak on the east, or not the—not Kache-

mak, but Point Gore. Kamishak and Kachemak, excuse

me, both of them. There was that whole area cross

there that if there had been any fishing in this area,

drift netting, we’d have apprehended them.

Q Now, did the drift fishery in 1953 exist in an

area north of Anchor Point more than three miles from

the shore?

A Yes.’

Q . And what did you determine your patrol responsi-

bility to be in that area concerning the drift net fishery?

A igh are speaking north of Anchor Point, correct?

ight.

[308] A Well, my area of responsibility, as I under-

stood it by regulations, for the fisheries of Alaska, that

it was from bank to bank of the inlet, the whole body

of water, and people were expected to comply with the

regulations, and if they didn’t, regardless of where they

were, a mile from shore or 10 miles from shore, they

would be apprehended, if ean were in violation of the

regulations.

_ Q All right. en: passing up 1953, did you have any

er 6 in the Cook ~_. area in any ‘subsequent years?

1954.

Q All right, what were your duties in the Cook |

Inlet ‘area in 1954?

A Well, enforcement. I was agent in charge of the

Cook Inlet fisheries for enforcement purposes in 1954.

Q All right. Now, generally during 1954—how long

were you in this position, then?

A Well, it was for the entire summer when the

fisheries were active.

' Q You stated you were agent in charge of enforce-

ment; is that correct?

‘

A Agent in charge of enforcement for the commercial

fisheries.

Q Did you ever engage in patrols that year?

A Continuously, yes.

Q And what type of equipment did you use for your

patrol activities?

[309] A _ I had at my disposal a Grumman Goose. It’s

a twin-engine amphibious aircraft, and a pilot. I am

not a pilot.

,@ So, I take it you conducted your patrol activity

with aircraft; is that correct?

A That is correct. ‘Iran my patrol activities from

aircraft, then I had two patrol vessels in the inlet, and

I had both officers and agents aboard those patrol vessels

patrolling, also.

Q All right, when you were engaging in these aerial

patrols, where would you fly?

A Well, I covered my entire area of responsibility,

which was from—well, the Cook Inlet area as described

by the regulations, which is actually all—as I recall it

now, it is all the waters of Cook Inlet from Point, Gore

and Cape Douglas north, and all the waters as tributary

in this enclosure. Then I had—then I had also included

under my jurisdiction for enforcement was the Resurrec-

tion Bay area and that went—took the outer—called the

outer district, the outside of the Kenai Peninsula which

runs from—it was Point Gore over to Cape Fairfield.

Q Now, did you engage in aerial patrols in Cook

Inlet over all-of the area which you have described?

A The entire area I described on practically a seven-

day-a-week basis, yes.

And this was while you were on an aircraft?

{310] A That is correct.

Did you engage in any vessel patrols this year;

that is, 19547

A I was not personally aboard vessels on patrol, no,

but I directed their activities, but I was not personally

aboard.

’ Q All right. Now, we have talked a lot about patrols

in the three years. Could you describe perhaps in some

more detail what was the purpose of what you have

described as a patrol? What was Ge function of the

patrol?

A_ Now we are speaking of this 154, or in general?

Q We are speaking iin general.

A Well, the purpose of—our whole purpose in life

as enforcement agents in working this fishery, of course,

was to enforce federal fishery regulations for the

protection of the fisheries in the Territory of Alaska.

And in our prescribed areas, of course, in the area I

was assigned was Cook Inlet, and I patrolled the area,

and people that later worked for me patrolled it to en-

force and prohibit violators—apprehend violators of these

regulations anywhere within this prescribed area of Cook

Inlet and the Resurrection Bay area.

. * . .

[312] Q Would you describe for the Court the type

of regulations which you were enforcing in these patrols

relative to the drift net fishing?

A Well, if I follew you correctly, regulations, as I

recall them, limited the length of gear and area in

which you may fish; hours, days that you may fish, such

as this as no—I mentioned earlier, you’re not allowed to

carry more than the legal limit of gear aboard. There

were—used to measure sizes, this sort of thing, in rela-

tion to the drift fishery.

Q And was it in these same regulations you are

deseribing that the prohibition of drift netting south of

the Anchor Point line, was that among these regulations?

A Yes, that is correct, that is part of it.

Q Now, you have described your enforcement, your

duties as agent in charge of enforcement pertaining to

two areas, one the Cook Inlet area, and the second one,

the Resurrection Bay area. Now, we have been talking

about regulations. Generally, what was the source of

these regulations? Was it a book that you received?

A Yes, they were. It was published—the published

regulations, and of course, there were copies given (0

me by my superiors which they received from Washing-

ton, D.C.

Q All right. Now, with respect to the Cook Inlet

area, did [313] you determine—this was again in 1954

while you were agent in charge of enforcement in the

Cook Inlet, you did determine the geographic area over

which you had authority to enforce these regulations?

A Yes, from these published regulations.

Q All right. In other words, you did determine the

area, and in making that determination you relied on these

published regulations?

A That is right.

MR. CRANSTON: I wonder, Mr. Clerk, could I

have State’s Exhibit IU. It’s been marked for identifica-

tion.

BY MR. CRANSTON:

Q Now, Mr. Roberts, I am going to ask the Clerk

to hand you Exhibit IU, and I have a white piece of

paper at page 34 of the portion of that exhibit entitled,

“Laws-and_Regulations for the Protection of the Com-

mercial Fisheries of Alaska, 1954.” When the Clerk

hands you that exhibit, I wish you’d turn to the—

MR. CHARNEY: May I please see that? What was

marked here?

THE COURT: 1954 regulations, Mr. Charney, page

34.

BY MR. CRANSTON:

Q You have that in front of you, Mr. Roberts?

A Yes.

Q_ All right. Now, you stated you had determined the |

[314] “geographical area over which you had authority

to enforce the regulations in that you had relied on the

regulations. When you referred to the regulations, was

it those 1954 regulations which you have before you?

A Yes, this would be correct.

Q Now, is the regulation upon which you relied set

forth at page 34?

A Yes.

Q And what regulation is that?

A Cook Inlet Area, Part 109.

Q All right. Now, would you read the number, and

read the regulations, please?

A You want which? You want the particular sec-

tion, or—

Q That one you read, the Cook Inlet Area.

A Well, Cook Inlet Area, Section 109.1. “Definition

of Cook Inlet Area is hereby defined to include Cook

Inlet and its tributary waters and all adjoining waters

north. of Cape Douglas and west of Point Gofe. The

Barren Islands are included within this area. —

Q All right. Now, that is the regulation you relied

on; is that correct?

A Yes, that is correct.

Q Now then, based on that regulation, what area of

Cook Inlet did you determine you had enforcement au-

thority within and over?

[315] A Based on this?

Q In order to-carry out your duties in Cook Inlet

as the agent in charge of enforcement, was it necessary

for you to determine the area over which you had en-

forcement responsibility?

A Well, it wasn’t up to me. It was up to my super-

visors as to what I was instructed to do, the type of

program to conduct [316] in the area I was responsible

for in enforcing the regulations. The area I was re-

sponsible in enforcing the regulations were confined in

this as described here by the definition, this being what

I wouldn’t go beyond, because that is another fishery

agent’s and another agent in Kodiak is in charge of it,

so I am just concerned just in this area as described

in the definition. :

Q All right, and then you have testified that you

patrolled throughout the entire area, water area, as de-

scribed?

A That is correct, the entire area, in addition, as

I mentioned earlier, the Resurrection Bay area.

Q Now, in order to carry out your duties as agent

in charge of enforcement in the Resurrection Bay area,

did you d ; ‘ :

you had enj’rmine the geographical area over which

orcement authority?

ry oe > Resurrection Bay area?

Thon yes, it was the area, to mention the general

_” aries that’e Gore to Cape Fairfield, and all the tribu-

two points,°nter into the Gulf of Alaska between these

primarily ’ and bays and inlets in this area. This is

prohibited ? seine fishery down there. Drifting was

shout threend we patrolled from—now, you are talking

confused b Miles here. A little while ago I was a little

way we ercause it didn’t apply to us in our—in the

—* Jets but deorced regulations up [817] there in the in-

- eoncerned WN here it was a different matter. We were

our patrolWith the three-mile limit there and we ran

approxima? differently.» Sometimes we would fly out

can see frely three miles, maybe two miles, and you

fly in the ’™ the air, of course, a long ways, and then

illegal actibays and inlets and so forth, patrol for any

All jities.

same Exhiight, I wonder if you would turn to—in that

is a pagedit IU which is in front of you there, there

see on thamarked with a yellow marker, and do you

area? ; page the definition of the Resurrection Bay

A Part

All 110, Resurrection Bay Area, Section 110.1.

had enforcight, is this the area over which you also

A Yeszment responsibility?

Q Andthat is correct.

definition does that definition set forth the—is that the

A Yesf that area?

rection B: Would you like me to read it? “The Resur-

ritorial cy Area is hereby defined to include all ter-

Alaska beastal and tributary waters in the Gulf of

field on thween Point Gore on the west and Cape Fair-

Q Ane east.”

you were- it is within this area that you determined

is that cotthat there was a three-mile limit applicable,

A Yesrect?

that is correct.

[318] Q Now, let’s suppose, going back to Cook Inlet,

and your patrols—what procedure would you follow in

your patrols on the inlet, no matter what year, whether

it was ’52, 53 or ’54, had you perceived a violation in

the drift gill net fishery more than three miles from

shore?

A Same way we'd handle any violation. We would

have apprehended the individual.

Q Could you describe exactly the procedures you

would go about in doing this?

A Well, you would detect what the violation is, and

then, weather permitting, whether in aircraft or vessel,

come alongside and board them, inform them of the

violation that they were—section of the law they’re in

violation of, and advise them to proceed to Seldovia,

Kenai area, where there was a United States magistrate

or commissioner, and we would arraign them and charge

them with the violation of these regulations.

Q Did you ever make any boardings of vessels more

than three miles from the shore in Cook Inlet in the

area south of a line connecting Harriet Point, Kalgin

Island and Ninilchik?

A Probably 95 per cent of our boardings were in this

area, were out in the center of the inlet, because that

is primarily where the—where the drift net fishing took

place, where the schools of fish were.

Q And would these boardings take place down as far.

south as [319] a line in the inlet equal to the latitude

of Anchor Point?

A Oh, yes.

Q During the period of time you were in Cook Inlet,

did you ever observe any Canadian halibut vessels fishing -

in Cook Inlet?

-A No, I did not.

Q Were you aware that there was a Canadizn halibut

fishery carried on in the Cook Inlet? :

A Not to my knowledge, not during those years.

Q Were you aware of any determination that had

been made relative to allowing Canadian halibut boats

to remain unmolested in Cook Inlet from a federal en-

forcement standpoint?

A No, I don’t recall it; anything like that. There

was—I just don’t recall, because the regulations would

prohibit it. I just don’t recall anything like that.

Q When you say “the regulations would prohibit it,”

what do you rely on in making that statement?

A Well, back in there you are talking about 18, 19

or 20 years ago here, but somewhere in here, I don’t

think it would be too hard to find, there is an alien—a

prohibition against foreign vessels or alien vessels fishing

in Alaskan waters, and if they had been in Cook Inlet

as described in the regulations—

[820] Q Would you continue? Were you going to con-

tinue to answer?

A I guess I was. I was just—I guess I was thinking

of if there had been any vessels in Cook Inlet as de-

scribed by the regulations, we would have apprehended

them because it prohibited the taking of fish from this

area by foreign vessels.

MR. CRANSTON: I have no further questions.

THE COURT: You may cross examine.

CROSS EXAMINATION

BY MR. CHARNEY:

Mr. Roberts, I am going to ask you—

MR. CRANSTON: One matter, your Honor. I wonder

at this point, we have had Exhibit IU marked for iden-

tification. It is the regulations which formed the basis

of Mr. Roberts’ [321] testimony and are federal Fish

and Wildlife Service regulations, the Court could un-

doubtedly take judicial notice of them, but we would

request they be admitted as an exhibit.

[8322] THE COURT: You may then release it to Mr.

Cranston at the time of recess, Mr. Clerk. ;

With that understanding, it may then be received and

marked as IU directly into evidence.

(Defendant’s Exhibit IU received in evidence.)

[335] FRED F. HEADLEE

being first duly sworn upon oath, testified as follows:

THE CLERK: Please state your full name for the

record, and spell your last name.

A Fred F. Headlee, H-e-a-d-l-e-e.

DIRECT EXAMINATION

BY MR. CRANSTON:

Mr. Headlee, what is your address?

Box 806, Ketchikan, Alaska.

And what is your present occupation?

I am retired federal employee.

Mr. Headlee, were you ever employed by the United

States Fish and Wildlife Service in the region of Cook

Inlet, Alaska?

A Yes, I was.

Q@ And what were the years that you were employed

in the Cook Inlet area?

[836] A 1944, 1945.

Q And during those years, what were your duties?

A I was the fishery management agent in charge of

the Cook Inlet District.

Q When you were in the Cook Inlet District in 1944

and ’45, were federal regulations in existence?

A You say were they in existence?

Q Yes.

A Yes, they were.

Q And did you look to these regulations and rely

upon them to determine the geographical area of your

responsibilities?

OPO PO

* * a *

Q Mr. Headlee, what did you look to to determine

your area of responsibility in Cook Inlet?

A It was defined in our book of regulations.

MR. CRANSTON: All right, I would ask the Clerk to

hand the witness Exhibit IU.

THE COURT: The witness has the exhibit.

BY MR. CRANSTON:

Q Mr. Headlee, do the 1944 regulations appear in that

exhibit?

{[337] A _ Yes, sir.

Q All right, would you turn to that booklet of 1944

regulations? Have you found the 1944 regulations?

A Yes. It is not—

Q Then, let me ask you another question. Does the

regulation upon which you relied to determine the geo-

graphical area of your responsibility appear within

those regulations?

A Yes, they do.

Q And would you refer to them and tell me what

regulations you relied upon?

* * * *

Q Would you refer to, them and tell me—

A It is Section 209.1; Definition, Cook Inlet Area.

“The Cook Inlet Area is hereby defined to include Cook

Inlet, its tributary waters, and all adjoining waters north

of Cape Douglas and west of Point Gore. The Barren

Islands are included within this area.”

Q And what you just read was the regulation; is that .

correct? You have just read the regulation?

A Yes.

[338] Q Now, would you turn to the 1945 regulations

as they appear in that bound volume? Are they in that

volume, the 1945 regulations?

A Yes, they’re right here.

Q All right, would you refer to the regulation upon

which you relied to determine the geographical area he

your responsibility in 1945?

A It’s exactly the same section, 209.1. es

Q All right, and would you read that, please? —

A “Definition of Cook Inlet Area. The Cook Inlet

Area is hereby defined to include Cook Inlet, its tributary

and all adjoining waters north of Cape Douglas and west

of Point Gore. The Barren Islands are included within

this area.”

Q Thank you, Mr. Headlee. You may close the book

of regulations if you wish. Now, generally, what were

your responsibilities in the Cook Inlet area in 1944 and

945? What exactly did you do?

A Enforcement of the regulations, gather statistics

~ and make any recommendations for the following year.

{889} Q What did you do in order to enforce the regu-

lations? What type of activities did you engage in?

A I was aboard the vessel Teal with an outboard

motor, a fast one, and Wwe patrolled the entire inlet as

. much as possible with the time we had.

How far south of the inlet did you patrol?

A Well, mainly the lower—the Kenai Peninsula and

occasionally out to the Barren Islands.

Q What 'was the purpose of these patrols?

A To enforce these regulations.

Q And by “these regulations,” to what are you

referring?

_A The regulations in the Cook Inlet District as re-

ferred to in this book I just read out of.

‘Q All right, were you furnished a copy of these

regulations?

A We were furnished hundreds of copies, and we kept

them and distributed them to the fishermen.

Q Do you know why you were furnished a copy

of these regulations?

A So we would know exactly what we were doing.

* . * +

[840] THE WITNESS: That is really what we relied

on all the way through for area and our duties.

BY MR. CRANSTON:

Q Did you rely on any other acts or laws which may

have appeared in that booklet- you were furnished?

This same booklet refers to the Alien Fishing Act.

And did_you rely on that act?

Absolutely. ~~

For what purpose?

For enforcing the regulations for any aliens..

MR. CRANSTON: I have no further questions of this

witness, your Honor.

THE COURT: You may cross examine.

CROSS EXAMINATION

BY MR. BRADLEY:

Q Mr. Headlee, while you were in charge of the Cook

Inlet Fisheries Management Area, how much equipment—

fishery patrol equipment was in the inlet at that time?

A During 1944 we had the vessel Teal and a fast

outboard motor, with a plane if we chartered it, if we

needed it.

Q Is that all the equipment that was there to cover

the entire inlet?

A That’s right.

Q How long was it there during each season?

A During every season probably from early May

until September.

[841] Q The Teal was there that entire time?

A Right.

Q And your primary concern was the salmon fishery;

is that correct?

A Yes, it was.

Q Did you patrol other fisheries?

A Well, anything that was called upon in the regula-

tions.

Q Now, you said that part of your duty as a fishery

management agent were to make recommendations for

the next season. This was done in a meeting, wasn’t it,

between fisheries agents and fishermen?

A We wrote in our recommendations and then, if

there were any questions, they were all taken under

advisement.

PO PO p>

Q So, there were conferences between the fishermen

and the fishery management agents at the completion of

each season as a matter of procedure?

A Actually, not as there were in later years, at that

time.

Q But, you did know where the fishery—the concen-

trated area of fishing in each season would be. You

didn’t patrol where there wouldn’t be fisheries; is that

correct?

A Wherever there was an open season, and of course,

in others we patrolled mainly and then we kept the rest

of the inlet occasionally in case there was somebody out-

side of the open areas.

Q But, the prime focus of your patrol was in the areas

where you [342] knew there was fishing; is that correct?

A. That’s right.

Q And even then, you didn’t have enough equipment

to do this sufficiently; isn’t that correct?

A We figured we covered it pretty well.

Q You did. Would you describe the area that one

boat covered each season in the inlet?

A The entire inlet.

Q And that is the entire shoreline for beach seines

and for traps?

A All over the inlet.

Q I see. Can you tell me what your title was again,

please?

A At that time I was a deputy fishery management

agent.

Q And who was your superior in the inlet at that

time?

A I was in charge.

Q You had no superior?

A Notintheinlet. .

Who was your immediate superior?

A I believe his name was Culvertson. He was the

supervisor for Alaska fisheries. He was stationed in.

Juneau.

Q And who was his superior?

A The regional director.

Q During the course of your patrols, did you ever

arrest or cite or board—well, arrest or cite American_.

fishermen in the middle of the inlet more than three

miles from a line [348] along the shoreline?

A Well, we didn’t pay any attention to any three

miles, because it was all our area and we actually didn’t

see anybody fishing out in the middle of the inlet.

Q So, there was no fishing in the middle of the inlet

at that time?

A No, sir.

Q So, your primary patrol was not in the middle of

the inlet because, as you testified earlier—

A Only when we crossed from one side to the other.

Q Did you ever see foreign fishing vessels in the

inlet? :

A Never.

Q Then, you never cited a foreign fishirig vessel in

the inlet?

A Never.

Q You never had any occasion to enforce the alien

fishing regulations that you mentioned?

A No, I didn’t.

MR. BRADLEY: No further questions, your Honor.

THE COURT: Any redirect?

MR. CRANSTON: I would just like one or two, your

Honor.

REDIRECT EXAMINATION

BY MR. CRANSTON:

Q Mr. Headlee, you testified you never cited any

foreign vessels in Cook Inlet. Was there a Canadian

halibut fishery carried on of which you were aware dur-

ing 1944 and ’45 in [844] Cook Inlet?

A Not to my knowledge.

Q Did you ever see any Candian vessels in the inlet?

A I couldn’t say that I had. There was one that

pulled into Port Dick in the middle of the night one night

to get out of a storm. I am not sure whether it was

Canadian or American.

Q What did you do on this vessel?

' A I boarded it and checked to see whether his license

was validated, and carried on the time of day and every-

thing was sem so I went back to my ship.

RECROSS EXAMINATION

BY MR. BRADLEY:

Q Mr. Headlee, you have just spoken about a vague

incident where you boarded a vessel which you weren’t

clear whether it was American or Candian.

A I said that I wasn’t sure just to this day whether

it was American or Candian. He had a validated halibut

license and he was_in during a storm only. Otherwise,

he’d have been out. ,

Q Could you describe the halibut license he had, the

nature of [345] it?

A The halibut fisherman is required to have a valid—

-a@ validated license which is validated by the-U.S. Cus-

toms after every trip, and at that time they had 90 hours,

I think.

Where was the vessel located? ~

A In Port Dick, in a safe harbor for the night.

[456] MITCHEL P. STROHL

bejng first duly sworn upon oath, testified as follows:

(457) DIRECT EXAMINATION

BY MR. CRANSTON:

Q What is your address, Mr. Strohl?

A 96 Rue Thiers, 92 Boulogne-Billancourt, France.

THE COURT: Just a moment. Can you spell that

for the court reporter?

THE WITNESS: B-o-u-l-o-g-n-e—B-i-l-l-a-n-c-o-u-r-t.

BY MR. CRANSTON:

Q What is your occupation?

A I am registrar and lecturer in political science at

the American College in Paris, in France.

Q And I take it, then, that you are a professor; is

that correct?

A Currently at that college I do not hold that title.

I have in the past, yes, and I am called that.

Q All right, Professor, would you tell us what your

educational background has been?

A Iam a graduate of the United States Naval Acad-

emy. Also a graduate of the United States Naval War

College, Boston University and the Fletcher School of

Law and Diplomacy.

Q Now, tell us a little bit about the courses which

you took in the United States Naval Academy.

A Well, the course at the Naval Academy, and espe-

cially in my time, there is primarily a professional] course

with a view toward the graduate becoming an active line

naval officer, and [458] especially devoted to navigation,

seamanship, ordinance and gunnery, a good bit of mathe-

matics, engineering with a certain sprinkling of the

liberal arts and history and English, plus quite a good

bit of language study, too.

Q All right, and what sort of courses did you take

at the Naval War College?

A The Naval War College is a highly professional

institution primarily devoted to staff management, but

with peripheral courses in such things as national strat- ~

egy, international relations, international law, and also,

strangely enough, public speaking and various peripheral

activities.

Q All right, would you tell us what your past em-

ployment has been?

A Yes. I am a retired naval officer with 22 years

of active service as an officer over and above the Naval

Academy. During that time, I performed about 15 years

at sea, including six specifically as a navigator, in most

of the waters of the world. After that time, I was an

associate professor and head of the department of gov-

ernment at Lycoming College in Williamsport, Pennsyl-

vania. ,

Following that, I was executive secretary of the League

of Americans residing abroad, which is a political lobby,

and after that, I took my present job which I hold at the

present time.

Q Now, you have Btated that you did spend 15 years

at sea and [459] that you -rere a navigator. Would you

tell or describe the voyages, generally, where you have

been at sea?

A In the early part of my career, I spent it nearly all

in the Pacific in World War II, about one ‘year, inci-

dentally, in the Aleutian Chain of Alaska. At other times

in various places in the South Pacific, in Japan, and fol-

lowing the war it was nearly all in the Atlantic with a

very great deal in Europe and the Middle East, occa-

sionally in the north of Africa.

Q Now, could you describe generally what your duties

were on these voyages as a navigator?

A The navigator is, on an American naval vessel, by

law and regulation, is totally responsible for the naviga-

tion of the ship and advising the commanding officer. In

that connection, one had to do all of the celestial naviga-

tion on the high seas and do what in the generic term is

called piloting, which is navigating the ship in sight of

land, in bays, estuaries, inlets, harbors and closely along

the coast. I have done this in most of the waters of the

world, I think.

Q Now, when you were not serving during these years

as a navigator, what were some of your inticee while

aboard ship? .

A At a very early time, I was chief engineer of a

destroyer. By the way, all my sea duty was.on destroyers

and small ships. In addition to that, and then somewhat

- later, I was a radar officer or combat information center

officer, which, incidentally [460] has a very large respon-

sibility for navigation, also.

Following that, I was gunnery officer, and then, as I

said, for six years I was navigator. And following that

I was a commanding officer. Then, I did one period which

was more or less sea duty a good part ofthe time in

87 .

educating others which I was head of a mission in Saudi

Arabia.

Q During your capacities on board ship while you

were not serving in the function of the navigator, was it

necessary that you familiarize yourself or be aware of

navigation?

A Absclutely. I might qualify that by saying on a

small ship this is necessary because the duties are not

categorized or departmentalized to the same extent that

they are on a large one, and I was never on a large ship.

Q Now, Professor Strohl, getting up a little further,

have you made any studies concerning the navigational

and marine characteristics of Cook Inlet in order to pre-

pare yourself for your testimony in this case?

A Yes.

Q All right, what research have you done with regard

to this? :

A As a preliminary, of course, I studied a good bit

about Alaska in general, including history of Alaska.

Following that, and more specifically, I studied the charts,

the sailing directions, all of the normal qualifications, all

of the normal publications that would have to do with

navigating Cook Inlet. In addition, for comparative pur-

poses, I went [461] into the sailing directions of France,

Britain. I had a translation made of the Japanese sail-

ing directions, and then I did some comparative study

with—concerning other bays in the world, I guess about

30 of them, and I did most of this work at the Interna-

tional Hydrographic Bureau in Monaco, which was the

closest access to me. _

Q All right, you have indicated, Professor, that you

read or researched other publications concerning Cook

Inlet. What would those have been?

A In addition to the sailing directions were the light

lists, the tide tables, the current tables, some weather

reports including air navigation charts. I went thoroughly

into the Coast and Geodetic Survey report that was writ-

ten after the 1964 earthquake to see what light that might

shed upon it. I think that is about it.

Q And within this research were there materials on

the subject of navigation?

A In one form or another, yes. Also, some, for exam-

ple, the Coast and Geodetic Survey report of the earth-

quake had quite a bit to do with surveys taken in the

Cook Inlet.

Q All right, in addition to your research, have you

familiarized yourself in any other way with the marine

and geographical characteristics of Cook Inlet?

A Yes.

Q And when did you do this?

[462] A Last..summer in early July I came up here

for that pu , among others, and as part of an experi-

ence at that time I boarded the ferryboat Tustamina to

travel from here to Kodiak and return, which is about a

48-hour trip, as I recall. Perhaps I had better explain a

little bit how I went about that.

Q Yes, please do so.

A You see, in the normal life of a naval officer, in

becoming acquainted with a particular body of water one

reads all the books and if one has to know the place

thoroughly, such as Norfolk or Newport, Naples, in my

case, you make so many trips in and out that if you don’t

see something one time you see it the next time, but in

this case, of course, I did not have a chance and I had

to familiarize myself with it as absolutely and completely

as possible within the time available, so that from the

time I was on the Tustamina, I spent the—nearly all of

it on the bridge and talked to the ship’s officers, saw

precisely what they were doing from one end to the other,

made continuous observations with them, followed it all

on the chart from one end to the other twice, made all

the—what I thought were necessary observations of the

waters and had the fathometer on all the time in order

to learn as much as I could in the shortest possible time,

which was all the time I had available to me. Then, fol-

lowing that, just in order to refresh my memory and get

another look [463] two days ago in a Fish and Game

Department airplane, a rather slow flying airplane, alti-

tude about 500 feet, I made a flight all the way down

Cook Inlet on one side, down to the Barrens, Cape

Douglas, Cape Elizabeth, out the Barrens, up the other

side, took about three and a half hours, I think. This

familiarized me reasonably well.

Q All right, I take it, then—let me ask you this: Was

this sufficient, in your mind, for your preparation for

your testimony in this case in order to familiarize your-

self with Cook Inlet?

A Yes, I think so. To try to do it as thoroughly as

possible and at the risk of appearing immodest, I think

I am quite prepared to take a ship right up Cook Inlet

without a pilot and put it alongside the pier out here.

* a * *

xY ' ,

[464] Q Professor Strohl, based upon your preparation

described above, have you formed an opinion as to

whether or not Cook Inlet from the standpoint of a

mariner, a navigator, is a body of water which is neces-

sarily inland?

A Yes.

Q What is your opinion?

[465] A My opinion, sir, is that Cook Inlet—as a

body of water, Cook Inlet rates as a body of water neces-

sarily inland.

Q From the standpoint—

A From the standpoint of navigating and navigating

experience, yes.

Q All right, Professor, would you state what the

reasons are for your opinion?

A I think, sir, that these fall into about six cate-

gories: The configuration of the shore; secondly, the con-

cept of a landlocked body; third, the matter of entry,

then the category of tides; fifth, this would be the weather,

0 finally, the navigation aids, I think about in that

order.

Q All right, Professor, let’s take them one at a time,

then. State the reasons for your opinion based upon

the shore configuration of Cook Inlet.

A Well, the shore configuration dictates all in that

it’s a rather elongated body, some 140 miles long, with

varying widths, quite a good bit longer than it is wide,

rather regular, and a good bit of the eastern shore

indented with one bay, Kachemak Bay and several smaller

ones like Turnagain Arm. Well, Turnagain Arm is not

so small. And then on the western shore the shoreline

_ is rather more indented, somewhat more irregular. And

they open out into two entries, primarily [466] two

entries for navigation purposes, and the distinct sort

of barrier at the bottom. That is the general picture of

the shore.

Q What are the two entries to which you refer?

A One entry is—comes up through Shelikof Strait,

and the other is really divided in—subdivided into two

other entries, or possibly three. The third one from a

navigation standpoint is pretty risky. That is Chugach

Passage. The other is a pair of passages to the north

and to the south of the Barrens. Perhaps it is relevant

to point out in this connection that from a navigator’s

standpoint, the picture is quite a good bit different from

simply looking at lines on a chart, .because actually, the

amount of navigating clear water in any of these pas-

sages is substantially less than one would look at when

one looks at blue water on a map. ‘In other words, it is

about—there is about 38 miles of clear water and this is

divided down pretty rapidly, 18 through Shelikof Strait

and eight to the north of the Barrens, and about 12

to the south of the Barrens. We will rule out Chugach.

That is all right for small boats.

Q All right, Professor, getting to the point of—you

mentioned the concept of being landlocked. State the basis

for your opinion in that area.

A Well, here again, I think I’d like to refer to this

in a mariner’s conceptual terms. First is the matter of

entry. [467] You go into it. You have the conception

that you must navigate by aids around you rather than

by celestial navigation. You look out on all sides and

you see land there.

Then, secondly, there is the matter of shelter which

rises rather promptly in ones mind for navigating pur-

poses, and then thirdly, which is often forgotten, except

those who do navigating, and that is that the landlock

imposes the problem of getting out, especially if suffi-

ciently bad weather arises. You have doubt about holding

ground. You have to get out in a hurry. This landlocked

matter arises and plays quite considerable importance.

Q How do you apply this concept, specifically to

Cook Inlet?

A In the case of Cook Inlet there is no doubt in

my mind that first there is the matter of entry, how

do you get into it? There is the anticipation of some

shelter. It gets to be rather more important if one is

with naval ships, I think, and decidedly the problem

of making up your mind in light of the weather how you

are going to get out of that place if you have to get out.

Q All right. Now, discussing specifically the entrance

of Cook Inlet, you indicated that there may have been a

problem, or a problem arises. Could you describe that

as in the way it formed the basis for your opinion?

A Yes. Actually, the principle navigation entrance,

as I see it occurs on either side of the Barrens, and

there is a somewhat [468] lengthy process that—almost

a check-off process one goes through in formulating what

he is going to do at that kind of entrance. The sailing

directions will immediately tell you that certain risks

are involved because of tidal currents. In anticipation

of weather changes and shelter, and in anticipation of

the tidal currents which occur right there, and es-

pecially tide rips and eddies, and then looking again

at the chart and seeing it, where the depth of water

changes, I might add that the fifty fathom curve is right

in a curved line going just about from Cape Douglas

to Cape Elizabeth, one formulates—as a navigator, one

formulates a mental picture of crossing a barrier, and

that is especially what seems to happen, and in—I might

add, in connection with the matter of weather and

shelter, I was—had the good fortune—nobody else looked

at it as good fortune—in going on the Tustamina on a

rather bad day going and coming, and there was a de-

cidedly marked difference in the water conditions and

the weather as one came nearer and crossed over this

_parrier. You can even tell this as a navigator because

‘the ships work in a different way. The swells are longer

outside; they’re shorter inside. In fact, there is very

little sea inside. There is a decided barrier down there.

Q You mentioned the tide, Professor. What attributes

do you find about the tides that support your opinion?

[469] A Well, tides, in themselves, are important in

connection with coming alongside a pier and in connec-

tion with where one would like to, anchor, and there is

quite a substantial diurnal change here over a 24-hour

rise and fall. In the vicinity of Anchorage it appears

to be about 29 feet. Down at Port Graham near the

entrance it is about 14 feet. Now, that is all right, but

what is of quite considerable importance as respects

navigating inside Cook Inlet is not so much the tide,

per se, but the tidal current, and in certain parts of

Cook Inlet when there is an ebb or a flood, this can be

rather spectacular.

For example, out here alongside this pier, the Port of

Anchorage, when we came in on the Tustamina there

was about three knots of tide going out at the oil derrick.

This is really something to catch the eye. There can

be about four or five knots out there in the middle of the

channel. There is about four knots down in the vicinity

of the Barrens. The book says that there is about two

knots, and I think, judging from the number of course

changes that they had to make on the Tustamina to com-

~ pensate for tidal current, two knots was pretty con-

. servative. I think it was more like three.

The tidal current, for purposes of interior navigation,

are really probably—well, they’re much more important

than the tide itself. That is, the rise and fall of the

- tides.

Were these tidal currents apparent to you outside

“of the [470] Barren Island area?

A No, because the whole matter dissipates outside.

“You see, there is a funnel effect inside Cook Inlet. It

channels the tide. -

Q All right, you discussed the concept of aids to

apa What, in that respect, supported your opin-

ion

~A Well, first, if one hypothesizes that he is entering

Cook Inlet, he is looking for initial aids to navigation

to~channel his way in. These occur on either side of the

entrance of the Barrens and on the Barrens, themselves.

Then, in addition, about 15 miles eastward of the Barrens

is the first sort of navigational aid pick-up point, and

that is a lighted buoy. Then, of course, these get to be

quite important for fixing the ship’s position when that

is related to the currents inside. There are a number

of navigation aids inside Cook Inlet. My feeling is that

they’re just about adequate for the amount of traffic.

Now, these, again, are for purposes of fixing the ship’s

position. They’re quite necessary, I might add, in Cook

Inlet.

Q Who has placed the navigation aids in Cook Inlet?

A Currently, that is the ‘responsibility of the United

States Coast Guard.

Q You mentioned, Professor, the weather. Did you

have any reasons for your opinion based on the weather

other than what you have described now?

[471] A Yes. There are—actually, when I talk about

the weather, I am talking primarily about winds.

THE COURT: Excuse me. About what?

THE WITNESS: Winds. .

THE COURT: Winds, okay.

THE WITNESS: From my reading of Cook Inlet,

and I found this by experience, the winds inside are

relatively mild with two funnel-like exceptions, and that

is a sort of venturi effect coming out of Turnagain Arm

and another one coming out of Kachemak, but they dis-

sipate into the inlet. But, as soon as one passes this

barrier that I was talking about before, and fortunately,

again I was out there when the winds became very, very

strong, indeed, and it can be—I think we were experienc-

ing about 30 knots of wind outside, which we weren’t

experiencing inside.

[474] WILLIAM RAYMOND HUNT

‘being first duly sworn upon oath, testified as follows:

* * * *

DIRECT EXAMINATION

BY MR. PHILLIPS:

Where do you live, sir?

Fairbanks, Alaska.

By whom are you presently employed?

The Unive

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