State v. Bundrant

RABINOWITZ, Chief Justice

(concurring).

I 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.

I 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.

Functionally 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.

Although 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.

It 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.

*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

The 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.

The 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.

Among 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 Skiriotes and its progeny.12 ' The prosecution of Vinberg is valid.

The 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 Skiriotes provides 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.

In 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.

. The relevant regulations applicable at the time of Bundrant’s alleged criminal conduct were 5 AAC 07.100, which defined the regulatory area in question, and 5 AAC 07.760, which authorized closure of the area when a quota of 23 million pounds of king crab was met. The quota was reached and the area closed effective September 9, 1973, and Bun-drant’s actions occurred shortly thereafter.

. Compare, for example, the challenged statutes in Fraeh v. Sehoettler, 46 Wash.2d 281, 280 P.2d 1088 (1955), and Johnson v. Gentry, 220 Cal. 231, 30 P.2d 400 (1934).

. Stipulation 28 in no. 2295.

. Statements of Emergency by the Fish and Game Board, May 9, 1974, and June 25, 1974.

. Stipulation 20 in no. 2295.

. E. g., Bayside Fish Co. v. Gentry, 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772 (1936) ; Silz v. Eesterlerg, 211 U.S. 31, 29 S.Ct. 10, 53 L.Ed. 75 (1908) ; Frach v. Sehoettler, 46 Wash.2d 281, 280 P.2d 1038 (1955) ; Johnson v. Gentry, 220 Cal. 231, 30 P.2d 400 (1936) ; Santa Cruz Oil Corp. v. Milnor, 55 Cal.App.2d 56, 130 P.2d 256 (1942).

. AS 16.05.920(a) provides:

Unless permitted by this chapter or by regulation made under this chapter, it is unlawful for a person to take, possess, transport, sell, offer to sell, purchase, or offer to purchase fish, game or marine aquatic plants, or any part of fish, game or aquatic plants, or a nest or egg of fish or game.

. The validity of the other three counts lodged against appellee Kaldestad are considered in conjunction with the charges filed against appellees Uri et al., infra.

. 5 AAC 34.910.

. 5 AAC 34.090(c).

. 5 AAC 34.095.

. E. g., Belton v. Hodges, 374 F.2d 337 (5th Cir. 1967) ; People v. Foretich, 14 Cal. App.3d Supp. 6, 92 Cal.Rptr. 481 (1970) ; Gherra v. California Fish and Game Dep’t, No. 47823 SAW (N.D.Cal., 1975).

. Stipulations 9-19 in no. 2295.