State v. Bundrant

¶1(concurring).

¶2I concur in that portion of Justice Erwin’s opinion which deals with the issues of federal exclusivity and federal pre-emption. Justice Erwin persuasively demonstrates that Alaska’s regulation of crabbing both within and beyond its territorial seas is entirely compatible with the federal constitution and existing federal legislation. However, I deem it appropriate to express my views regarding the permissible reach of state police powers in the absence of paramount federal authority.

¶3I think it significant that the ap-pellees in this matter were prosecuted under different statutes and regulations which are deserving of individual analysis. Appellee Bundrant was prosecuted for possessing, within Alaska’s waters, crab taken in a high seas area that had been closed to fishing.1 Such conduct has been criminalized by AS 16.10.200, which provides :

It is unlawful for a person taking migratory fish and migratory shellfish in high sea areas designated by the Board of Fisheries or in violation of the regulations promulgated by the Board of Fisheries governing the taking of migratory fish and migratory shellfish in the designated areas to possess, sell, offer to sell, barter, offer to barter, give or transport *557in the state, including the waters of the state, migratory fish or migratory shellfish.

¶4Functionally this legislation is indistinguishable from the so-called “landing laws” which numerous courts have sustained as a valid exercise of state police powers.2 Although these laws unquestionably have an effect on conduct beyond the territorial confines of a state, their legitimacy derives from the fact that their objective is the preservation of an important state natural resource, the loss of which would impair the health, safety, and welfare of the particular state. Thus, AS 16.10.200 is equally legitimate as an exercise of police powers if it can be said that the State of Alaska has a valid interest in the migratory crab resources within its territorial waters. I think the record in the case at bar demonstrates that Alaska has such an interest. Here we have evidence that crab exists within Alaska’s waters throughout the year,3 and according to the evidence, this resource is subject to constant fishery harvest.4 Even when in the stages of molting and mating these crabs remain of value both to man and to the larger marine ecosystem. Walrus, sea otters, fur seals and a variety of other marine mammals which inhabit our territorial waters depend on king crab as a major source of food.5 Thus, the crab population in Alaskan waters is of inestimable importance to those whose lives and livelihood depend on our marine resources.

¶5Although the regulations promulgated in fulfillment of this legislation may not have been drafted as artfully as some would wish, I find no reason to doubt that the legislature’s objective in enacting AS 16.10.200 was the protection of marine resources within the state. Indeed, in AS 16.10.180 the legislature stated as much rather explicitly:

The legislature finds and recognizes these facts:

(1) Migratory fish and migratory shellfish are present in commercial quantities inside and outside the territorial waters of the state.

(2) Migratory fish and migratory shellfish taken from the waters of the state are indistinguishable, in most cases, from those taken from the adjacent high seas.

(3) Substantial quantities of migratory fish and migratory shellfish move inshore and offshore intermittently and at various times during a given year and in so doing often enter and leave territorial waters of the state.

(4) To conserve the migratory fish and migratory shellfish found inside the waters of the state it is necessary to strictly enforce local laws and regulations.

(5) By making certain laws and regulations passed or promulgated for the regulation of the coastal fishery applicable to the adjacent high sea areas, enforcement of these laws and regulations is facilitated.

(6) Conservation regulations should not be promulgated to impose economic sanctions.

¶6It follows that AS 16.10.200 is fully sustainable as a conventional landing law and under the authority of the landing law cases,6 appellee Bundrant may be validly prosecuted for possession of king crab within the state in violation of that provision.

¶7*558Appellee Kaldestad was also charged in count IV with possession of crab within state waters in violation of AS 16.10.200 and AS 16.05.920.7 Prosecution of this count also represents the legitimate enforcement of a valid landing law.8

¶8The 14 appellees in Uri et al. (no. 2435) and appellee Kaldestad in the first three counts (no. 2444) were charged with violating various provisions of the emergency regulations promulgated June 15, 1974. These measures prohibited the taking 9 and possession10 of king crab and the possession of crabbing equipment11 during a closed season in a registration area subject to state regulation. The criminal acts which form the basis of these charges allegedly occurred in the Bering Sea from 16 to 60 miles off the coast, in an area designated as registration area Q.

¶9The legislature has attached criminal sanctions to the violation of such regulations by the terms of AS 16.05.920 and AS 16.10.200. Thus, the legality of these prosecutions depends upon whether the state may validly apply its crabbing regulations to this conduct occurring beyond territorial waters.

¶10Among these appellees there is one, Emil Vinberg, who is a citizen of the state of Alaska. It is clear since Skiriotes v. Florida,, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941), that a state may regulate the extraterritorial fishing activities of one of its citizens where the state has a legitimate interest in the fishery involved. Alaska has such a concern in the Bering Sea crab fishery, and therefore the prosecution of appellee Vinberg under the emergency regulations is controlled by Skiriotesand its progeny.12 ' The prosecution of Vinberg is valid.

¶11The other appellees in Uri et al. maintain residences outside the state of Alaska, as does appellee Kaldestad. Although their seasonal occupation allows them to maintain a formal citizenship elsewhere, these fishermen participate extensively in the economy of Alaska’s seacoast communities. They depend on Alaskan industry and hospitality for a vast range of support services, including shelter, food, fuel, repair services and medical care.13 I join in Justice Erwin’s view that Skiriotesprovides an adequate foundation for the validity of the action against these appellees. That case is one manifestation of the larger principle that a state may apply sanctions to activity outside its borders which has a substantial, direct and foreseeable deleterious effect within the jurisdiction when it is undertaken by a citizen of a sister state who has significant contacts with the jurisdiction. Thus, in my opinion, the prosecution of the remaining appellees under the emergency regulations is also a valid exercise of the state’s police powers.

¶12In summary, therefore, the landing law cases emanating from Site v. Hesterberg, 211 U.S. 31, 29 S.Ct. 10, 53 L.Ed. 75 (1908), authorize the State’s prosecution of appellees Bundrant and Kaldestad under count IV. The prosecution of appellee Vinberg is unquestionably authorized by Skiriotes v. Florida, supra.Under the broader principle. governing the extraterri*559torial application of criminal laws, manifested in part in Skiriotes, the remaining appellees in Uri et al. and appellee Kaldes-tad may also be prosecuted for their conduct. Justice Erwin and I break new ground, if at all, only in expressly recognizing that broader principle.

¶26(dissenting).

¶27Like the crabs about whom the dispute exists, many of the questions presented in this appeal can be discerned only by peering through murky waters. The arguments are close. However, my examination of the problems presented leads me respectfully to dissent. It is on the question of federal preemption that I depart from my colleagues.

¶28The majority finds that the regulation of crabbing outside the marginal sea is not preempted by the federal government. I am willing to concede at the outset that United States v. California (First California), 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947), does not, alone, establish federal preemption of state regulation. That case only established federal ownership of the land beneath the marginal sea in the sense that the federal government has the “paramount” right and power in the area. 332 U.S. at 33, 39, 40, 67 S.Ct. 1658. While establishing federal dominium, a subordinate right of state imperium was apparently not precluded.1 The court in First California distinguished one prior case, The Abby Dodge, 223 U.S. 166, 32 S.Ct. 310, 56 L.Ed. 390, (1912), on the grounds that First California was not prohibiting state regulation. The next year saw the court’s decision in Toomer v. Wit-sell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948), which supports the legitimacy of a state’s jurisdiction over its own citizens for regulatory purposes on the high seas, i. e., imperium, rather than dominium, over shrimp.

¶29The rationale for the First California decision is important. The court reasoned that control of the sea and its resources is so bound up with international affairs and national defense that it “is a question for consideration among nations as such, and not their separate governmental units.” 332 U.S. at 35, 67 S.Ct. at 1666, 91 L.Ed. 1889. This rationale, read expansively, might suggest a reason for preemption of all state regulation, at least of citizens other than its own, in the high seas outside its own borders.

¶30Congress, as noted by the majority, reversed the First California case with respect to the marginal sea via the Submerged Lands Act (SLA), 43 U.S.C. §§ 1301-1315 (1953). Later in the same year, it claimed at least federal ownership of the continental shelf beyond the marginal sea through the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. §§ 1331-1343 (1953). This second act began life as an amendment to the SLA, but became separated in the course of passage.

¶31The net effect of these two acts was to establish state ownership of the traditional marginal sea, while at the same time asserting ownership of and jurisdiction over the continental shelf as against foreign governments, and vesting that ownership and jurisdiction in the federal government That federal control was to encompass both ownership and regulatory authority was indicated by Senator Cordon (the manager of OCSLA) at 99 Cong.Rec. 6963 (1953), where he appears to show.approval for certain language contained in a Justice Department report:

“On the other hand, as pointed out in the report made by the Department of *560Justice on S. 1901, the area is one in which national problems intermingle. The outer Continental Shelf is not and never has been within the boundary of any State or Territory, and it is, therefore, uniquely an area of exclusive Federal jurisdiction and control.

The report of the Department states in part:

‘This — that is, the outer Continental Shelf — is a Federal area, outside State boundaries, and to give the states a sort of extra territorial jurisdiction over it is unnecessary and undesirable. The situation is not comparable to that of federally owned areas within a State, as to which State law has some measure of applicability. Particularly in view of the intermingling of national and international rights in the area, it is important that the Federal Government, which has the responsibility for handling foreign relations, have the exclusive control of lawmaking and law enforcement there.’ ”

¶32An amendment by certain senators which would have extended state jurisdiction to the Continental Shelf, including the “conservation laws” of the states, was defeated. 99 Cong.Rec. 7228, 7230, 7232 (1953). Most importantly, the language of the statute itself (43 U.S.C. § 1332 (1953)) provides for federal “jurisdiction, control, and power of disposition.” This would appear to encompass considerably more than mere “ownership”.

¶33Notwithstanding all this, the majority believes that crabs were not intended to be covered by the OCSLA. 43 U.S.C. § 1332(b) (1953) expressly provides that the OCSLA does not affect “the character as high seas of the waters above the outer Continental Shelf and the right to . fishing therein . . . .” It is true that the principal concern of Congress was with mineral deposits, not living resources. See H.R.Rep. No. 413, 83rd Cong., 1st Sess. (1953). But it should be recognized that the language of the OC-SLA was at the same time an attempt to establish the policy of the United States to appropriate the resources of the continental shelf with respect to . foreign governments. Therefore the interpretation of OCSLA in the context of international law is relevant, if not conclusive, as to its meaning. It does not seem likely that the same language, indeed the same sections, could have a different meaning in international law from its meaning for preemption purposes. Cf. United, States v. California (Second California), 381 U.S. 139, 165, 85 S.Ct. 1401, 14 L.Ed.2d 296 (1965); United States v. Ray, 423 F.2d 16, 21 (5th Cir. 1970).

¶34The rights of nations to the resources of the continental shelf were more clearly defined in international law by the Geneva Convention on the Continental Shelf, 15 U.S.T. 471, T.I.A.S. 5578 (1958). Article 2.4 of that convention provides that the natural resources appertaining to nations shall include,

“living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.”

¶35That crabs are included in that classification is past dispute in this country. See Agreement Between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics Relating to Fishing for King Crab, [1965] 16 U.S.T. 24, T.I.A.S. No. 5752, art. 1; Agreement Between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics Relating to Fishing for King and Tanner Crab, [1973] 24 U. S.T. 603, T.I.A.S. No. 7571, art. 1 (extension: December 31, 1974).

¶36In order to vest the greatest rights in the United States as against foreign governments, the terms of the OCSLA must be interpreted broadly in light of later developments. One court has even held that “[t]o the extent that any of the terms of the [OCSLA] are inconsistent with the later adopted Geneva Convention on the *561Continental Shelf, they should be considered superseded.” United States v. Ray, 423 F.2d 16, 21 (5th Cir.1970).2 I see nothing in the OCSLA, however, inconsistent with the interpretation that crabs are a resource of the continental shelf, and hence appertain to the United States as against foreign and state governments, rather than of the water column above. United States v. Ray, supra,found this to be the case with coral, also a “sedentary species”. Of course, Guess v. Read, 290 F.2d 622, 625 (5th Cir.1961), cert. denied, 368 U.S. 957, 82 S.Ct. 394, 7 L.Ed.2d 388 (1962), cited by the majority, is totally inapplicable here. All would agree that the OCSLA and the treaties pertaining to the continental shelf do not affect rights to the air above the sea, or the water column above the shelf.

¶37Reliance upon various portions of legislative history dealing with the relationship of the OCSLA to “fishing rights” begs the question. Whether crabs are included in fishing rights or are a resource of the ocean floor, for purposes of the act is precisely the question at issue here. Senator Cordon’s language indicates only that the Senator believed fishing rights for “all marine life above the land itself beneath the seas” (emphasis added) were not included in the OCSLA. See Sen.Rep.No. 411, 83rd Cong., 1st Sess. (1953). But crabs, in both international law, as related above, and municipal United States law, Bartlett Act, 16 U.S.C. § 1085 (1964), are creatures of the sea floor, and not fish belonging to the water column “above the land itself.”

¶38I conclude that crabs, as a resource of the continental shelf, may be regulated only by the federal government when they are taken outside the three mile marginal sea under the provisions of SLA, 43 U.S.C. § 1301(a) and (b) (1953).

¶39The validity of this conclusion can be tested by an inverse approach. Let us assume, arguendo, that OCSLA cannot be construed to include crabs as a resource of the subsoil and seabed of the outer continental shelf. It still does not follow that there is no preemption. The SLA, 43 U. S.C. § 1302 (1953) provides:

“Nothing in this chapter shall be deemed to affect in any wise the rights of the United States to the natural resources of that portion of the subsoil and seabed of the Continental Shelf lying seaward and outside of the area of lands beneath navigable waters, as defined in section 1301 of this title, all of which natural resources appertain to the United States, and the jurisdiction and control of which by the United States is confirmed.” (Emphasis added)

¶40I would find that the language above from the SLA preempts state regulation beyond the three-mile marginal sea. The section cannot be read as only limiting the effect of the SLA. While that is the import of the first part of the section, the language emphasized above goes further in specifically “confirming”3 exclusive federal “jurisdiction and control” as against the states. Under this section, it makes no difference whether crabs are conceived of as creatures of the continental shelf or of the water column above it; the section reserves to the United States jurisdiction and control over “all . . . natural resources” outside the marginal sea, and 43 U.S.C. § *5621301(e) (1953) specifically includes “fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine animal and plant life” (emphasis added) within the definition of “natural resources”.

¶41The reason for federal preemption must be drawn from the rationale of the First California case, supra. The whole area of regulation of ocean-floor resources is inextricably entwined with international law and affairs. As we have seen, any rights to regulate at all in the area of the continental shelf derive from recent developments in the unsettled field of the international law of the sea. Congressional proposals to establish a 200-mile federal fishing zone4 have generated much publicity and dissension; it would appear that Alaska’s own federal Senators hold widely divergent views on the propriety of such legislation at this time. The whole topical area, with special reference to ownership and regulatory authority over resources of the continental shelf and deep-sea bed, is currently being negotiated in the International Conference on the Law of the Sea. One of the principal concerns of the United States is attempts by possibly a majority of the world’s nations to extend national control farther and farther into the sea. One reason for this concern is the thrust by other nations, as evidenced both at the Conference and by individual action, to extend unilaterally their territorial seas to 200 miles. The right asserted is the “special interest of coastal States in maintaining the productivity of the living resources of the sea areas adjacent to their coasts . ” 5 This is essentially the same basis used by the majority to justify the extension of Alaskan jurisdiction into the Bering Sea. As such, it could cause definite embarrassment to our international negotiators. It is merely one more example —a very current and real example, and not in the slightest “speculative” and “indirect” —of the pervasive involvement of foreign affairs in this area.

¶42In terms of international complications, Alaska’s assertion of imperium cannot be distinguished from the assertion of domin-ium by certain Latin American states. It is not clear that all Latin American nations recognize a functionally practical distinction between the two;6 it is even more unclear that those of the world’s nations whose legal consciousness is less firmly rooted in Roman Law than is Latin America’s, will necessarily and clearly understand the difference intended by Western*563ers between the terms imperium and domin-ium. But perhaps more importantly, it is not at all clear that the United States State Department itself accepts the distinction in all cases. The United States has certainly opposed Canadian legislation purporting to establish that government’s imperium to regulate pollution in the Canadian arctic, as it relates to the high seas.7 The Canadians rely upon similar arguments of necessity as do my colleagues in the case at bar.8

¶43Even if one assumes that the taking of crabs is “fishing”, and does not under OC-SLA fall under federal jurisdiction on the continental shelf, it must be noted that the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas (20 April 1958) 9 provides that when a state properly10 adopts for its own nationals,

“measures . . . for the purpose of the conservation of the living resources affected”

¶44by fishing (Article 3), and,

“subsequent to the adoption of the measures referred to in articles 3 and 4, nationals of other States engage in fishing the same stock or stocks of fish or other living marine resources in any area or areas of the high seas, the other States shall apply the measures, which shall not be discriminatory in form or in fact, to their own nationals not later than seven months after the date on which the measures shall have been notified to the Director-General of the Food and Agriculture Organization of the United Nations.” (Article 5).

¶45Thus, if states may regulate “fishing” on the high seas generally, their regulations, once notified to the proper authorities, create international obligations. Signatory foreign nations whose nationals subsequently fish the area must pass similar laws for their nationals. While this would not immediately affect Bering Sea crab, in particular,11 it would be applicable in general were the principle established that states may regulate fishing outside the marginal sea. Thus the rationale of the First California case, that regulation on the high seas is inextricably entwined with foreign affairs, leads me to the opinion *564that high seas fisheries regulation is reserved to the federal government.12

¶46The majority opinion notes that Alaska regulation in this area was promulgated at the request of a federal agency. I note, however, that the United States has filed an amicus brief which supports appellees against the State of Alaska. This brief was prepared by the Department of Justice, “in consultation with other concerned federal agencies,” and especially in consultation with the Legal Adviser for the Department of State.13 Thus I cannot infer, as the majority appears to do, that the Alaska regulations have the implicit approval of the federal government, especially as they affect foreign policy.

¶47In conclusion, I would find that:

(1) State legislation is preempted by OCSLA, 43 U.S.C. § 1332(a), as crabs are legally a resource of the ocean floor rather than of the water column above that floor.

(2) State legislation is preempted by SLA, 43 U.S.C. § 1302, regardless of the characterization of the crab resource.

(3) Notwithstanding any of the above, foreign and military affairs are so inextricably entwined with the regulation of high seas resources that, absent explicit Congressional delegation to the states, the area is excluded from state regulation.

¶48Since I would find federal preemption of the field, the subject of state jurisdiction is, in my opinion, irrelevant. Therefore, I express no opinion on that subject. I would affirm the judgment of the superior court.