(dissenting).
I dissent. If the conviction could be held to be valid, I would agree with the majority that the case must be remanded to the district court for resentencing; but it is my opinion that the judgment of conviction was invalid.
The appellant, Duffy, was found guilty of engaging in commercial fishing under 36 C.F.R. § 5.3 which is a general prohibition against engaging in any business within the national parks without a permit. Although he and his four companions were not operating a large scale fishing operation and the magis*1040trate who tried the case expressed some concern over whether or not Duffy was involved in a business venture, he might conceivably have been convicted of violating this regulation, except for the existence of operative statutes and regulations which deal specifically with fishing at the Fire Island National Seashore, which the majority completely ignore. These statutes and regulations actually allow the activities in which Duffy was engaged. It is an accepted maxim that “specific terms prevail over the general in the same or another statute which otherwise might be controlling,” D. Ginsberg & Sons v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 323, 76 L.Ed. 704 (1932). The application of this long recognized rule of construction requires that the information in this case be dismissed.
The statute providing for the creation of this national park reads that “[t]he Secretary shall permit hunting, fishing, and shell-fishing . . . within the Fire Island National Seashore in accordance with the laws of New York . . .,” 16 U.S.C. § 459e-4. (Emphasis added.) See also, 36 C.F.R. § 2.-13(a).
On the date of the alleged offense New York law, N.Y. Conservation Law § 320(1) (b) (McKinney’s Consol.Laws, c. 65, 1967) provided that:
“A citizen resident of the state for not less than six months immediately preceding such taking may without license take food fish in the Marine District [which includes the waters of the Atlantic Ocean] .' . . with nets other than beam trawls and otter trawls, [except in certain, waters not applicable here].”
The Government admits that Duffy did not violate New York state law, therefore, I do not see how it can be said that he transgressed federal law.
Moreover, the general limiting regulation, 36 C.F.R. § 2.13(j) (3), provides that “[i]n natural and historical areas: Fishing in fresh waters for merchandise or profit is prohibited except as provided under special regulations.” Fire Island is a recreational area, not a natural or historical one, 36 C.F.R. § 1.-2(g), (h), (i); and it should be noted that § 2.13(j)(3) prohibits commercial fishing only in fresh water, not the salt water of the Atlantic Ocean with which this case is concerned. All of this mosaic of provisions dovetails in support of the conclusion that commercial fishing in the ocean surf from the shore of Fire Island National Park is permitted.
Furthermore, permitting commercial fishing in the waters of this national seashore would not destroy the recreational value of the park, because protection is afforded by other regulations which ban fishing within “designated mooring areas, swimming beaches or surfing areas,” 36 C.F.R. § 2.13(g), and commercial vehicles are prohibited from park areas, 36 C.F.R. § 5.6.
In view of the well established principle that any ambiguity in criminal statutes must be resolved in favor of the accused to insure that no one will be subject to penalty for a particular act unless he has first been given fair warning, Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973); United States v. Bass, 404 U.S. 336, 347-349, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), it at least must be conceded that these statutes and regulations make the applicability of the regulation against “engaging in or soliciting any business in park areas” to commercial fishing in the surf, very dubious indeed. It is my opinion that such fishing is not prohibited and the information should be dismissed.