State v. Bundrant

546 P.2d 530, 1976 Alas. LEXIS 371

• Court: Alaska Supreme Court
• Decided: January 19, 1976
• Docket: 2295, 2435, 2444
• Status: Published

Opinions

OPINION

ERWIN, Justice.

King crab occur in harvestable numbers in several areas of the Bering Sea off the coast of Alaska. Beginning in the late 1960’s, the number of fishermen taking crabs from the Bering Sea increased significantly. As a result, in 1969 the Alaska Board of Fish and Game began efforts to regulate crabbing in that area, with the promulgation of 5 AAC 07.100, which created the “Bering Sea Shellfish Area” (BSSA), described as:

. . . all waters of the Bering Sea including all tributary bays except Bechev-in Bay and Isanotski Strait north of 54° 36' N. lat., (the latitude of Cape Sarichef), south of 60° N. lat., and east of the U. S. — Russia convention line of 1867.

In 1973, in an effort to avoid the eventual depletion of this resource and to preserve the fishery at sustained yield levels, the Board established a maximum quota of 23 million pounds of crab for this area for the 1973-74 season (5 AAC 07.760).¹ It also prohibited possession or sale of crab taken “in violation of the rules and regulations promulgated by the board” if such crabs were taken in waters seaward of the state’s territorial waters (5 AAC 36.040).

The Bering Sea Shellfish Area quota of 23 million pounds was reached on September 9, 1973, whereupon by field order the area was closed to crabbing until June 15, 1974.

In December, 1973, several crab fishermen brought suit in Federal Court, asking for a preliminary injunction against enforcement of 5 AAC 07.760 and 5 AAC 36.040. A three-judge District Court heard the case, Hjelle v. Brooks, and on April 30, 1974, enjoined the state from enforcing those regulations.²

Following this decision, the Board repealed the enjoined regulations and took alternative steps to govern crabbing in the Bering Sea in the season due to begin July 1, 1974. On May 9, 1974, the Board issued a stopgap regulation prohibiting possession of red king crab in the state until June 30, 1974 (5 AAC 39.690). On June 15, the Board repealed all previous king crab regulations (except the definition and gear limitation sections, 5 AAC 39.105, and 5 AAC 39.975) and issued a comprehensive set of emergency regulations (5 AAC 34.-005-.940, 5 AAC 03.710, 5 AAC 06.710, 5 AAC 21.910). These regulations basically prohibited the taking- and possession of crabs in a closed area. A system of designation of closures was created by 5 AAC 34.005, whereby “statistical areas” were created, consisting of

(1) a registration area, comprised of all the waters within the statistical area which are waters subject to the jurisdiction of the state; and

(2) an adjacent seaward biological influence zone, comprised of all the waters within the statistical area which are not part of the registration area.

The acts giving rise to this appeal occurred in Statistical Area Q, defined in 5 AAC 34.900 as “the waters of the Bering Sea and Chuckchi Sea including all tributary bays except Bechein Bay and Isanotski Strait . •. . north of 54° 36' N. lat., (the latitude of Cape Sarichef).” 5 AAC 34.910, provided that the crabbing season for this area was to open on July 1, 1974.

Prior to July 1, an organization of Bering Sea crab fishermen (according to news accounts, based in Seattle), called the “Shellfish Conservation Institute,” promulgated their own rules for the upcoming Bering Sea season. This group’s rules called for the season to open on June 26.³ Even before that date surveillance flights showed a large number of vessels engaged in crab fishing in the Bering Sea.⁴ In response, on June 25 the board issued emergency regulations 5 AAC 07.710(b), 5 AAC 34.035(c)(5), 5 AAC 34.045, 5 AAC 34.095(c), and 5 AAC 34.910. These regulations basically put off the opening of the season and gave the Commissioner of Fish and Game discretion to open the season when “general order can be restored a. i the state can be assured that fishing will be conducted in a manner which will not jeopardize the rights of law abiding fishermen.” ⁵ The Commissioner also issued notices that the season would not open until all illegal crab pots were removed from the area. The fishermen who had been successful in the earlier Hjelle case asked the federal district court for a temporary restraining order against the new regulations, but it was denied.

All of the individual cases consolidated in this appeal arise from alleged violations of these closures or related regulations.

THE INDIVIDUAL CASES

A. In No. 2295, defendant Bundrant was charged in superior court with seven counts of possession of migratory shellfish near St. Paul Island (within the three-mile limit) on various dates in October, 1973, which shellfish were taken “upon the high seas and the Bering Sea shellfish area” during a closed period under fish and game board regulations. The statutory reference in the complaint is to AS 16.10.200, which reads:

It is unlawful for a person taking migratory fish and migratory shellfish in high sea areas designated by the board or in violation of the rules and regulations promulgated by the board 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 in the state, including the waters of the state, migratory fish or migratory shellfish.

Bundrant moved to dismiss for lack of jurisdiction, asserting the invalidity of the Board’s regulations. The motion was denied on March 27, 1974, but on September 10, after the federal court in Hjelle had enjoined enforcement of 5 AAC 36.040, the trial judge reconsidered and granted the motion to dismiss.

Bundrant is a legal resident of Washington state and is not a resident of Alaska.⁶ He held commercial fishing licenses in Alaska in 1965-70 and in 1973. His vessel, the F. V. Billikin, was registered in Alaska along with its gear. During the 1973 season he had fished within the three-mile limit (although during the period of the violations, October 6-20, 1973, he fished only-outside the three-mile zone). He had anchored and processed crabs within the zone every night during this period. He maintained in Dutch Harbor, Alaska, a warehouse for use in processing his catch. He received fuel, food, water, repairs, and emergency aid from Alaskans, and used fisheries data from the Alaska Department of Fish and Game.

B. In No. 2435, the defendants Uri, et ah, were charged with numerous counts of possession of king crab on several dates between June 30, 1974, and July 24, 1974, within a closed area; with possession of crab pots in a closed area; and with having taken crab in a closed area. These activities all took place from 16 to 60 miles from the Alaska coast. (Actually only one defendant, Perovich, is charged with fishing before July 1, the original opening date for the area.)

The statutory references in the complaints are to AS 16.05.920 (unlawful possession), AS 16.10.200 (unlawful taking), 5 AAC 34.900, 5 AAC 34.910, 5 AAC 34.098, and 5 AAC 34.090(c).

With the exception of Emil Vinberg, all of the defendants in this group are residents of states other than Alaska.

The conduct cited here as criminal all took place outside the three-mile limit (in distinction to Bundrant, who is charged with possession within territorial waters of shellfish illegally taken outside of it). The state offered proof that after setting their pots outside the three-mile limit, the defendants returned to territorial waters. Although the Uri record has no stipulations like those in Btmdrant regarding ongoing contacts with Alaska while operating in the Bering Sea, there was testimony in Uri to the effect that American crabbers in the Bering Sea always use processing facilities in Alaskan ports because the fragility of king crab rules out travel to more distant ports.

The Uri defendants moved to dismiss on a number of grounds, including lack of jurisdiction, the unconstitutional vagueness of the regulations, and the illegality of the search of defendants’ crab pots. The motion was granted by the trial judge, who adopted the defendants’ argument that these regulations had intruded upon and were in conflict with an area of exclusive federal jurisdiction established by the Outer Continental Shelf Lands Act and were consequently prohibited by Article VI of the Constitution of the United States.

C. In No. 2444, defendant Kaldestad was charged with four counts, the first three of which are identical to the charges against the Uri defendants. The fourth count, however, charged possession within the three-mile limit of shellfish taken illegally outside of it (this being basically the same charge as that made against Bun-drant, the distinction being that Bundrant was charged under the old regulations while Kaldestad was charged under the emergency regulations).

The statutory references in the fourth count of the complaint are to AS 16.10.-200,⁷ 5 AAC 34.910, 5 AAC 34.098, and 5 AAC 34.090(c).

Kaldestad’s case was handled below together with the Uri cases, and trial court’s dismissal applied to it as well. In his memorandum, the judge noted that “these cases do not involve the state’s jurisdiction to enact and enforce so-called ‘landing laws.’ The charges in these cases specifically relate to conduct wholly occurring outside of Alaska’s territorial waters.” Somehow, the fourth count against Kaldes-tad escaped the judge’s attention.

In summary, the Uri defendants are charged with wholly extra-territorial activity prohibited by the emergency regulations. Bundrant is charged with possession in the state’s waters of shellfish taken outside it in contravention of the old regulations. Kaldestad is charged with both prohibited extra-territorial activity and with possession in the state’s waters of shellfish taken outside of it in contravention of the emergency regulations.

Of all the defendants, only Emil Vin-berg, of the Uri group, appears on the record to be an Alaskan citizen.

GENERAL LEGAL SETTING

It has long been held that for most purposes, the nation’s territorial limits are set at a point three miles distant from the low water line on the coast.⁸ Although the United States and international law have historically recognized some limited exercise of sovereign authority beyond this point (e. g., for control of smuggling), the three-mile territorial boundary has enjoyed continued and general favor for a great many years.

For the United States, the first significant departure from this policy came in 1945, when President Truman issued a proclamation stating that

the United States regards the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control.⁹

This proclamation explicitly referred only to the mineral resources of the continental shelf. At the same time, the President issued a separate proclamation ¹⁰ expressing this nation’s concern with inadequate management of the fisheries resources near our coasts, and announcing that

the Government of the United States regards it as proper to establish conservation zones in those areas of the high seas contiguous to the coasts of the United States wherein fishing activities have been or in the future may be developed and maintained on a substantial scale.

This proclamation merely announced this principle, however, and did not establish any such fisheries conservation zones. It was not until 1966 that any step of this sort was taken. In that year Congress passed the Contiguous Fisheries Zone Act, 16 U.S.C. §§ 1091-94, which established a 12-mile zone within which the United States exercises “the same exclusive rights in respect to fisheries in the zone as it has in its territorial sea . . . .”¹¹ Except as modified by treaty, the Urtited States’ jurisdiction over fisheries remains at this point today,¹² despite increasing calls for establishment of a 200-mile fisheries zone.

Meanwhile, before 1947, there had been a general assumption that the seaward boundaries of the coastal states extended to the outer edges of the three-mile limit. In 1947, the United States Supreme Court, in United States v. California (First California),13 reversed this assumption by ruling that the states’ authority ends at the low-water mark, and that from that point to the three-mile limit the “territorial sea” was an area of exclusive federal jurisdiction. (The dispute in that case centered upon the issue of the proprietary exploitation of undersea oil reserves, but the court’s opinion was essentially premised upon a recognition of th^need for a unified national authority in an area so inextricably subject to defense and international relations considerations} it was concluded that the United States’ paramount responsibilities thereto gave rise to its paramount authority in the area.)

The result of the First California case was reversed by Congress in 1953 when it passed the Submerged Lands Act (SLA), 43 U.S.C. §§ 1301-15.¹⁴ This act confirmed proprietary title in each state to the lands and resources, including fish, beneath and within the navigable waters of the state, and placed the outer boundaries of the coastal states at the seaward edge of the three-mile limit.

In the same session,.Congress also passed the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. §§ 1331-43, which began as an amendment to the Submerged Lands Act but was ultimately separated from it before its passage as a separate act. For purposes of this appeal, the heart of the OCSLA is § 1332, which reads:

(a) It is declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchap-ter.

(b) This subchapter shall be construed in such manner that the character as high seas of the waters above the outer Continental Shelf and the right to navigation and fishing therein shall not be affected.

Just exactly what the phrase “subsoil and seabed” includes is a major question in this case. The Submerged Lands Act uses the phrase “lands beneath navigable waters . . . and the natural resources within such lands and waters” (43 U.S.C. § 1311(a) ), and the term “natural resources” is defined to include fish and crabs (43 U. S.C. § 1301(e)). The Outer Continental Shelf Lands Act, however, does not refer to organic resources, nor does it define’ clearly its scope with respect to such resources.

Also of relevance in this case are the numerous treaties regarding North Pacific fisheries. We take note of the fact that there are now eleven such treaties, affecting species which account for 96 per cent of the value of the manufactured products of Alaska’s commercial fisheries.¹⁵ The two treaties which are most relevant here are the United States — U.S.S.R. King Crab Agreement and the United States Japan Coniguous Fishery Zone Agreement. Both of these regulate crabbing by Japan and the Soviet Union in that portion of the Bering Sea east of the United States — Russia Convention Line of 1867. Although the Russians are not now exercising their rights to a limited crab season under the agreement, the Japanese apparently do.

Although a number of bills have been introduced in Congress to create a comprehensive fisheries management scheme for the Outer Continental Shelf, none has passed to date.

FEDERAL EXCLUSIVITY AND FEDERAL PRE-EMPTION

The appellees’ first legal contention, broadly stated, is that fishery regulation in the sea beyond the three-mile limit is constitutionally an area of exclusive federal authority, thus Alaska is barred from legislating therein. This contention subsumes two quite distinct constitutional theories: federal exclusivity and federal preemption. According to former doctrine, certain provisions of the federal constitution which delegate powers to the central government implicitly restrict the police powers of the states and thereby carve out areas which can be regulated, if at all, only by the federal government. The concept is one of exclusive federal domains.

The doctrine of federal pre-emption also deals with the allocation of state and federal responsibilities, but it speaks to those situations where there is recognized concurrent state and federal authority. It holds that when Congress has exercised its regulatory authority over a particular subject in manner to indicate an intention to deal fully and exclusively therewith, all state regulation in that particular field must yield. The basic premise is the supremacy of federal law.

A. Federal Exclusivity

Appellees’ contention that fishery regulation beyond traditional territorial waters is an exclusive federal domain derives principally from the federal government’s authority to regulate interstate and foreign commerce¹⁶ and to manage foreign relations.¹⁷ It is quite well established that the commerce clause of the federal constitution serves two distinct functions : to confer on the national government authority concurrent with the states over matters of interstate and foreign commerce, and, even in the absence of federal legislation, to prohibit state regulation in certain areas of commerce that are “national” in nature. The prohibitory force of the commerce clause was established in the great “Cooley compromise” ¹⁸ and has been reaffirmed countless times since that historic decision.¹⁹ Of course, it is today evident that not all that Congress can reach under the sweeping authority of the commerce clause is forbidden to the states. In delineating the smaller arena of exclusive federal concern, the Supreme Court has built upon the touchstone suggested in Cooley :

Whatever subjects of this power are in their nature national, or admit only of one uniform system, or plan of regulations, may justly be said to be of such a nature as to require exclusive legislation by Congress.²⁰

The difficulty with the criterion has been in its application, for few aspects of commerce are inherently either wholly “national” or wholly “local” in character. Although it has used a variety of catchphrases and labels,²¹ the Supreme Court in modern times has recognized that the issue is essentially a reconciliation of conflicting claims of state and national power, which can be attained only by an appraisal of the competing state and national interests at stake.²²

f' Absent congressional action, the familiar test is that of uniformity versus locality : if a case falls within an area in / commerce thought to demand a uniform / national rule, State action is struck _^down. If the activity is one of predominantly local interest, State action is sustained. More accurately, the question is whether the State interest is outweighed by a national interest in the unhampered operation of interstate commerce.²³

The national interest has consistently been held to predominate in two instances: when a state regulates in an area where nationally uniform regulations are truly necessary,²⁴ and when state regulations discriminate against out-of-state goods or manufacturers, threatening to provoke retaliatory restrictions inimical to national commerce.²⁵ Under these circumstances, the commerce clause invalidates the purported state legislation.

The Supreme Court has expressly declined to distinguish between state regulations of interstate commerce and regulation dealing with foreign commerce.²⁶ In either case the prohibitory reach of the commerce clause is determined by the same analysis of competing state and federal claims.²⁷

Applying these principles, this court must decide whether the commerce clause renders the states powerless to regulate fisheries in waters beyond-the three-mile limit. The potential national interest at stake appears multi-faceted. As to the need for national uniformity of regulation, it would appear doubtful that crabbing in the Bering Sea is of such a nature as to jjequire such uniformity. In its brief as Amicus Curiae in this case, the United States government makes no claim for the exigency of federal regulation. Indeed, other federal documents indicate that local regulation might in fact be more efficacious. Specifically, a 1974 report commissioned and distributed by the Department of Commerce evaluates the prospect of federal regulation of fishing beyond state territorial waters. It concludes:

A basic assumption about fisheries regulation is that the substantial differences in both the kinds of fish caught and the fishing effort itself among the several states render a uniform approach to fisheries regulation throughout the United States inadvisable and self-defeating. .

[A] single regulatory body with jurisdiction over the [territorial and extraterritorial seas] would provide the most efficient and effective regulation and management of the fisheries resources of the area. It is submitted that either the states or regional commissions, with their substantial experience in regulating coastal fishing in virtually all its aspects and with their superior knowledge of the problems peculiar to fisheries resources off their own coasts should be that single regulatory body.²⁸

The continued abstention from federal regulation of fishing in territorial waters, despite constitutional power to do so,²⁹ confirms the wisdom of the traditional approach of local, non-uniform management of fisheries resources.

The Supreme Court has held that a problem may be national in scope if an attempted local solution will invite retaliation by sister states.³⁰ Moreover, a problem may be national if it directly and significantly affects more than one state.³¹ While it is clear that Alaska is the state most directly affected by the conduct of Bering Sea fishermen, there are large numbers of Washington crab fishermen and processors, for example — like most of the appellees here — who depend on the resources of this area. It may consequently be recognized that at least some other states have an interest in that fishery. However, the mere fact that crabbing in the Bering Sea represents commerce among and between several states does not preclude Alaska from acting. It is clear that “ . . . there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it. . . . ” ³² Moreover, there is absolutely nothing to suggest that these regulations are either by their terms or in their enforcement discriminatory against non-Alaskans. Assuming for the moment that the state does have jurisdiction over the entire crabbing field, there is no reason to think that exercise of this jurisdiction in a patently neutral fashion will provoke retaliatory restrictions by Alaska’s sister states.

Appellees also contend that the national interest in unfettered international commerce may be jeopardized by Alaska’s regulations. On their face, these regulations apply to all fishermen, not just Americans. Thus, there is a potential for conflict with United States agreements with foreign nations concerning fishing practices on the high seas, for example the Soviet Bilateral agreements with the United States. The federal government is also currently concerned with the unilateral extension to 200 miles of maritime boundaries by nations such as Peru, thus restricting access by United States fishermen to traditional anchovy and tuna grounds. Enforcement of the Alaskan regulations against foreign nationals could be taken as just such a unilateral step by the United States, inviting reciprocal moves by other nations.

The state’s response is that these regulations, being aimed at United States fishermen, will not be enforced against foreign nationals. See Hjelle v. Brooks.33 Indeed, to the extent these regulations are inconsistent with fishing rights granted to foreign nations pursuant to the treaty power, the Supremacy Clause dictates that they must yield. The state does not dispute this, but urges that no conflict is apparent or even probable in view of the fact that these regulations were promulgated at the urging of federal agencies to implement their treaties.³⁴

The possible ramifications of these regulations on international commerce appear ^extremely speculative at this point. We feel that, absent some further showing of impact, this aspect of the national interest should be given minimal weight. The threat of conflict with international agreements or foreign rights is “ . . . so remote that it is hardly more than conceivable.” Bob-Lo Excursion Co. v. Michigan.35

The court turns next to a consideration of the state interest in regulating the harvesting of crab in the Bering Sea. Fishing now constitutes the largest single industry in Alaska and crabbing is a substantial portion of that activity.³⁶ Most of the services which support the crabbing fleet are provided in Alaskan harbors, and much of the processing and canning of the harvested resource is done in factories throughout the state/ Exhaustion of this marine resource would have a devastating impact on employment in this state which still has a relatively narrow industrial base. Particularly crippled would be those villages along our shores whose sole livelihood comes from the sea.

Moreover, Alaskan king crab is an important food source for the people of this state. The commerce clause has consistently been interpreted to permit state regulations which safeguard local food sources, for example, quarantine laws.³⁷ In sustaining a California regulation governing the harvesting of avocados, the Supreme Court said:

Specifically, the supervision of the readying of foodstuffs for market has always been deemed a matter of peculiarly local concern.³⁸

This court concludes that these regulations deal with a problem particularly local in import and in a way fully compatible with the commerce clause. We derive support for this conclusion from the Supreme Court decision in Alaska v. Arctic Maid,³⁹ in which the court considered the constitutionality of an Alaskan occupation tax on freezer ships stationed beyond territorial waters but receiving catches taken within the three-mile limit. The issue there was whether the state was attempting to tax an integral link of interstate commerce, in violation of the implicit restrictions of the commerce clause. In holding that the territorial tax did not contravene the constitution, Justice Douglas spoke with language of continuing force:

The process of gathering fish either through the catcher boats that are part of respondents’ fleet or through independent operators is a “local activity” . . in a vivid sense of the term. Here . . . the market for the product obtained locally is interstate, the taking being a step in a process leading to an interstate market. . . . [T]he local product is promptly loaded for interstate shipment. But . . . there is a preliminary local business being conducted . . . an occupation made up of a series of local activities which the State can constitutionally reach.⁴⁰

We conclude that the commerce clause does not render regulation of fishery ies in the Bering Sea the exclusive domain of the federal government.

We turn next to the contention that the challenged fishery regulations represent state intrusion into the field of foreign affairs, an exclusive federal domain. The Constitution does not in so many words entrust to the national government the power to conduct external relations. Instead, it parcels out certain aspects of the foreign affairs power among the political departments and imposed certain prohibitions on the states. From these constitutional references and from the fundamental premises of our system of federalism flows one of our most basic principles of government:

Governmental power over external affairs is not distributed, but is vested exclusively in the national government.⁴¹

A concomitant principle is that a state cannot enact legislation which constitutes “ . . .an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress,” and the Supreme Court has invalidated an Oregon statute on that ground.⁴² However, the states in the management of their affairs must necessarily impinge on foreign relations in a myriad of ways; ⁴³ the. precise delineation of this arena of exclusive federal domain remains largely unexplored.

In Zschernig v. Miller,⁴⁴ the Supreme Court gave great weight to the fact that the challenged statute had more than “ . . . some incidental or indirect effect in foreign countries. . . .,” it had “ . . . great potential for disruption or embarrassment” of our foreign policies. This suggests to us that an analysis not unlike that under the commerce clause is appropriate. Certain state infringements on foreign affairs are forbidden because national uniformity is required or because they discriminate against or unduly burden our foreign relations. /Generally, the inquiry will balance the state’s interest in the regulation against its impact on United States foreign relation's.⁴⁵ /

Under this analysis^the crabbing regulations at issue cannot be said to intrude upon the nation’s foreign relations?) Alaska does not seek to discriminate against foreign fishing fleets; indeed, if anything, it favors foreign nationals by refraining from enforcing the regulations against such parties. The potential conflict is at best only speculative and indirect at the present time. Our analysis of the state’s jurisdiction, infra, suggests that the state may never possess authority over foreign fleets in the crabbing area, hence the threat of international imbroglio appears quite attenuated. For' these reasons this court concludes that the crabbing regulations are not violative of the national government’s exclusive prerogatives in the field of foreign affairs.

Finally, in considering the issue of federal exclusivity, this court must consider the “submerged land cases,” ⁴⁶ relied on by appellees Uri, et al., and Kaldestad.⁴⁷ The Supreme Court in United States v. Calif or-nia (First California) ⁴⁸ held that the submerged lands within the three-mile belt were an area of paramount federal authority. The decision was in large part based upon the rationale that concerns of national defense, foreign affairs, and international commerce required that result. The court observed that

. . . insofar as the nation asserts its rights under international law, whatever of value may be discovered in the seas next to its shores and within its protective belt, will most naturally be appropriated for its use. But whatever any nation does in the open sea, which detracts from its common usefulness to nations, or which another nation may charge detracts from it, is a question for consideration among nations as such, and not their separate governmental units.⁴⁹

In 1950, in response to a claim by Louisiana of territorial jurisdiction as far as 27 miles from shore, the Court in United States v. Louisiana held that First California controlled and noted that

. . . If, as we held in California’s case, the three-mile belt is in the domain of the nation rather than that of the separate States, it follows a fortiori that the ocean beyond that limit also is. The ocean seaward of the marginal belt is perhaps even more directly related to the national defense, the conduct of foreign affairs, and world commerce than is the marginal sea. Certainly it is not less so.⁵⁰

As mentioned, the result in First California was negatived by the Submerged Lands Act, but that act did not purport to effect rights beyond the three-mile limit of the territorial sea. Consequently, the rationale of the First California and Louisiana cases is still valid as applied to areas seaward of the territorial belt. And while those decisions never explicitly refer to the living resources of the oceans (the motivation behind both cases lay in control of exploitation of mineral resources, particularly oil), appellees argue that the logic applies with equal force to the use of the surface and waters for fishing purposes as to use of the seabed and subsoil for mineral exploitation: in both instances, regulation by individual states could conflict with federal activities in the areas of national defense, foreign affairs, and international commerce.⁵¹

The First California and Louisiana decisions therefore stand among other things for the principle that the federal government has paramount authority over the seas and submerged lands on both sides of the traditional three-mile limit; with this the state does not contest. However, these decisions do not establish that the federal government has exclusive authority-in these seas. This much is made clear by Toomer v. Witsell,52 wherein the court said that state regulation of fishing within territorial waters in the absence of conflicting federal legislation was valid so long as it comported with the applicable constitutional provisions. In Skiriotes v. Florida;⁵³ certain Florida regulations governing the taking of sponges beyond territorial waters were also upheld.

Thus, it is clear that in the absence of an exercise of the federal government’s paramount powers over fishing, the states enjoy some regulatory prerogatives. It is the question whether the federal government has in fact exercised those powers to which we next turn.

B. Federal Pre-emption

Generally state laws must yield when they are in conflict with federal law or when Congress has indicated an intent to occupy a particular field exclusively. In the case of crabbing in the Bering Sea, we are persuaded that there is no direct conflict (other than the potential problems noted supra) with federal regulation, because there is simply no material federal regulation of this activity; there is no evidence of federal regulatory efforts indicative of federal intent to pre-empt.⁵⁴ We must consequently look to whether there is elsewhere any indication of congressional intent that only the federal government should regulate this activity.

The fact that federal law occupies only a part of a field ordinarily leaves the states free to cover the other aspects of it.⁵⁵ A partial occupation of the field by the federal government should not give rise to an inference of congressional intent to pre-empt; such an inference from a partial occupation is permissible only if the federal law is in actual conflict with the law of the state.⁵⁶ Absent actual direct conflict, there must be clear evidence of congressional intent to pre-empt the field.⁵⁷

In this case appellees primarily base their argument of federal pre-emption of crabbing regulation beyond the three-mile limit on the terms of the Outer Continental Shelf Lands Act,⁵⁸ as elucidated by its legislative, history and by several other federal acts and international agreements. OC-SLA extended federal jurisdiction over the “subsoil and seabed” of the continental shelf beyond the three-mile territorial zone.

In its relevant provision the Act provides :

It is declared to be the policy of the United States that the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition as provided in this subchap-ter. (Emphasis added)⁵⁹

In 43 U.S.C. § 1333(e)(2), the Act also provides for the adoption of state law as “surrogate federal law”⁶⁰ to govern the Outer Continental Shelf when not in conflict with other federal measures. However, an important qualification was appended to this provision-:

The provisions of this section for adoption of State law as the law of the United States shall never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the seabed and subsoil of the outer Continental Shelf, or the property and natural resources thereof or the revenues therefrom. (Emphasis added) ⁶¹

Appellee contends that in the OCSLA Congress intended to establish federal preemption of all the natural resources of the outer shelf, including crab. As noted earlier, while the Submerged Lands Act refers to and provides a definition of the “natural resources” which explicitly includes crabs, the OCSLA lacks any similar definitional identification of the natural resources of the subsoil and seabed. It is urged that we refer to the definition in the Submerged Lands Act as evidence that Congress intended to include crabs within the terms of the OCSLA.

It is unquestioned that, although they were closely related in time and origin, the SLA and the OCSLA constitute separate acts of Congress. Thus, one cannot argue that the SLA definition of “natural resources” is directly applicable to the terms of the OCSLA. However, the general rule is that a statute in pari mater-ia with a subsequent, but approximately contemporaneous, measure is a proper source of evidence of legislative intent in that second measure.⁶² In the words of one authority,

. . . [I] f it is natural and reasonable to think that members of the legislature . . . would think about another statute and have their impressions derived from it influence their understanding of the act whose effect is in question, then a court called upon to construe the act in question should also allow its understanding of it to be influenced by impressions derived from the statute.⁶³

We are not convinced that the SLA would never be of assistance in construing the provisions of the OCSLA. In this case, however, the SLA definition of natural resource is of no help. We may assume, as the appellees claim, that crab and other fish are part of the natural resources which lie beyond the state’s territorial waters. The OCSLA does not by its terms preclude the state from asserting jurisdiction over all the natural resources which are beyond its boundaries. Rather, the act merely provides that no state shall have jurisdiction over the “subsoil” and “seabed” of the outer continental shelf, and the “natural resources thereof.” 43 U.S.C. § 1333(a)(3). (Emphasis added) The “thereof” reference limits the act’s scope to the natural resources which are part and parcel of the outer shelf.⁶⁴ Thus, the issue properly before us is whether crabs are a resource of the subsoil and seabed, as opposed to a resource of the superadjacent waters.

Appellees contend that federal legislation and international agreements subsequent to passage of the OCSLA evidence Congress’ intent that sedentary species of marine life, such as crabs, were among the resources of the seabed over which it was assuming exclusive jurisdiction. The 1958 Convention on the Continental Shelf, of which the United States is a signatory, considers “sedentary species” to be resources of the continental shelf, thus giving to the coastal nation “sovereign rights” for the exploitation of that natural resource. That crabs were intended to be in this category is confirmed by the 1973 Agreement between the United States and the USSR on king and tanner crabs, which explicitly lists crabs as “natural resources of the continental shelf” for purposes of the 1958 Convention’s placement of sovereign rights in the coastal nation. As evidence of Congressional intent, however, these documents are of little persuative force. The Convention was drafted by parties other than Congress and only establishes a claim of United States jurisdiction over sedentary species; it says nothing with respect to whether in our internal structure of government that jurisdiction is exercised at the federal or the state level. The 1973 Agreement was an executive agreement not reviewed by Congress.

Appellees also point to the Bartlett Act,⁶⁵ passed eleven years after the OC-SLA. This legislation was the means by which the United States brought into force against foreign nationals the rights it obtained pursuant to the 1958 Convention, particularly the right to control or prohibit the taking of fishery resources of the continental shelf. In 16 U.S.C. § 1081 (1970), Congress has forbidden foreign nationals from taking crabs and other sedentary shelf resources except pursuant to international agreement. This foreign policy measure is hardly indicative that a decade earlier Congress had intended to realign domestic responsibilities so to pre-empt further state regulation of sedentary marine life.

Our review of appellees’ arguments does not persuade us that the OC-SLA was intended as an exercise of federal pre-emption over both seabed mineral resources and sedentary marine species. Rather, this court is of the view that the actual distinction intended was between the inorganic resources of the subsoil and seabed (principally oil), which were thenceforth to be the exclusive domain of the federal government, and organic marine life resources, which were not affected by the act. We draw support for this conclusion from a variety of sources. First, though not totally unambiguous, the legislative history of OCSLA evidences Congress’ true concern:

The purposes of S. 1901, as amended, is to assert the exclusive jurisdiction and control of the Federal Government of the United States over the seabed and subsoil of the outer Continental Shelf, and to provide for the development of its vast mineral resources.' [Emphasis added]⁶⁶

Second, the Act expressly disclaims any effect on fishing and navigation rights.

This subchapter shall be construed in such manner that the character as high seas of the waters above the outer Continental Shelf and the right to navigation and fishing therein shall not be affected. [Emphasis added] ⁶⁷

The origins of this disclaimer reveal exactly what it was intended to encompass. Senator Cordon, the floor manager of the OCSLA, remarked with reference to this provision “. . . that we are excepting from the operation of this act all marine life above the land itself beneath the seas.”⁶⁸ [Emphasis added] “Fishing” in this context has traditionally been understood to include the taking of both free swimming and sedentary forms of marine life.⁶⁹

Third, we must recall that this legislation was passed only a decade after the Supreme Court decision on Skiriotes v. Florida,⁷⁰ If appellees are correct in asserting that the act precludes a state from regulating extra-territorial fishing for sedentary marine life, the act would then preclude a state from regulating fishing by its own citizens on the high seas. In that event, the act would have to be considered to have overruled the Skiriotes decision. However, nothing whatever in the act or its legislative history suggests such a Congressional design, and we are unwilling to infer that Congress would have acted to that end without making its intention known. A far more plausible interpretation is that Congress did not believe that the OCSLA in any manner affected the state’s rights to regulate the taking of sponges, crabs, and other forms of sedentary and nonsedentary marine life.

Fourth, the few authorities which have considered the reach of OCSLA in extraterritorial waters seem to confirm that the distinction between mineral and marine resources is central to the statutory scheme. In Guess v. Read,’71 for example, the court dealt with the question of whether a Louisiana statute could be applied in an action resulting from a death after a helicopter crashed in the sea beyond that state’s territorial limits. The court said the OCSLA did not apply because

[t]he Continental Shelf Act was enacted for the purpose, primarily, of asserting ownership of and jurisdiction over the minerals in and under the Continental Shelf. Jurisdiction was asserted over “the subsoil and seabed” of the outer Continental Shelf. 43 U.S.C.A. § 1332(a). It is only for “that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon” that the State law applies. 43 U.S.C.A. § 1333(a)(2). This does not include the sea above the subsoil and seabed and does not include the air above the sea.⁷²

Somewhat more troublesome is United States v. Ray,73 a case in which two private developers planned to build on coral reefs four and one-half miles off the coast of Florida and maintain their projects as separate nations. The United States sued for an injunction, claiming control over the reefs, and the Court of Appeals for the Fifth Circuit agreed. It affirmed the lower court’s finding that the skeletal coral remains constituted part of the “seabed,” as that term is used in the OCSLA. However, the court also relied on terms in the Geneva Convention on the Continental Shelf and the Submerged Lands Act to support its claims. As we have explained, those provisions are not germane to the question on whether Congress has exercised its constitutional power to exclude the states from management of sedentary marine life beyond the three-mile limit. While we are in agreement with the result in Ray, we do not subscribe to the method of legislative analysis employed therein.

There is a final indication that Congress did not by the OCSLA intend to pre-empt ocean fisheries regulations by the states. Currently pending in Congress are bills ⁷⁴ to enact the “High Seas Fisheries Conservation Act of 1973.” These measures explicitly authorize agencies of the federal government to regulate activities of American citizens in ocean fisheries. Proponents are of the view that this is the first occasion on which it has attempted to exercise federal control over the taking of fishery resources.⁷⁵ This strongly suggests to us that OCSLA did not have the preemptive intent which is ascribed to it by appellees.

In any event, we are ultimately persuaded that under the circumstances the absence of any clear indication the federal exclusivity or pre-emption in this area is significant. The issue as raised in this appeal is unquestionably of crucial import, for other states as well as our own, and in view of the closeness of the question — of the considerable, merit we find in the arguments presented on both sides — this is a case uniquely appropriate for honoring the presumption of constitutionality and validity which adheres to the acts of our legislature. This court acknowledges its duty not to declare statutes unconstitutional unless such repugnancy clearly appears.⁷⁶ We moreover acknowledge that our decision today may provide the most effective vehi'cle for assuring that this matter will at last receive the prompt and definitive attention by the final arbiters of such questions — the Congress -or the Supreme Court of the United States.

STATE FISHERIES JURISDICTION

Having concluded that the doctrines of federal exclusivity and pre-emption are not applicable, and that these regulations are not invalid under Supremacy clause of the Constitution of the United States, we turn now to the question of the extent to which Alaska may extend the reach of its laws and police power beyond the confines of its territorial borders.

The appellees and the United States (appearing as amicus curiae) argue that a state has no legal authority to extend its control over fisheries over any area outside the three-mile limit. They take the position that the cases of Manchester v. Massachusetts ⁷⁷ and Toomer v. Witsell⁷⁸ relied upon by appellants must be read restrictively to provide that a state may exercise power to regulate fisheries only to the limits of its territorial sovereignty.

The appellant and the State of California, as amicus, urge strongly on the other hand that such cases must be construed liberally in order to permit effective fishery management. They propose a theory that the state’s “imperium,” or “political” jurisdiction, can extend to activities beyond the boundaries of its territory, or “dominium,” when there is sufficient nexus between the activities and legitimate state interests— particularly in the area of the management of migratory fish and game. They argue that not only must the State be able to regulate fishing of all within the three-mile limit, it must be permitted to regulate the fishing of all outside the three-mile limit in those zones where there is a definite impact or an integral relationship between control of the fishery resource outside the three-mile limit and inside the three-mile limit. They argue that fishing management is meaningless if fishermen may wait until the particular fishery resource migrates outside the three-miles limit and then may fish without restraint.

While the position of appellant is appealing from a standpoint of effective resource management, the question becomes whether this factor has been recognized by the United States Supreme Court as permitting the extension of state political control.

Each party cites the same cases and draws differing conclusions from the language thereof.⁷⁹ We find, however, the language of several to be particularly helpful.

Skiriotes v. Florida⁸⁰ is the touchstone for much of the dispute in this area. In Skiriotes, a sponge fisherman, a citizen of Florida, was charged with taking sponges with diving equipment, as prohibited by state law. There was controversy over whether the incident occurred within or without Florida’s territorial waters, however; but the United States Supreme Court said that that question was of no concern, because the state had power to proscribe defendant’s activity inside or outside the territorial waters. Specifically, it found that Florida had a legitimate interest in this exercise of the police power, at least as far as it was applied to the territorial waters in the absence of conflicting federal legislation. Then, reasoning by analogy to the principle that a nation may control the activities of its own citizens on the high seas,⁸¹ the court said:

If the United States may control the conduct of its citizens upon the high seas, we see no reason why the State of Florida may not likewise govern the conduct of its citizens upon the high seas with respect to matters in which the State has a legitimate interest and where there is no conflict with acts of Congress. (313 U.S. at 77, 61 S.Ct. at 929).

A recent development in the Skiriotes line of cases came after Florida passed a statute permitting regulation of fishing activities both within and without the state boundaries.⁸² In Felton v. Hodges,⁸³ Florida conservation officials arrested the appellant for operating crawfish traps outside the state’s territorial limits during the closed season for crawfishing in that state. Felton brought a federal civil rights action, claiming the state had no authority to regulate crawfishing beyond its territorial waters and so was denying him due process. The appeals court affirmed a dismissal of his federal court action on the basis of Skiriotes. It said:

Following the approach dictated by Skiriotes. we must inquire whether Florida has a legitimate interest in controlling the activities which it sought to regulate here. It appears . . . that appellant’s crawfish traps were located in a group of reefs adjacent to the Florida Keys, and that the crawfish in this area move freely in and out of Florida’s territorial waters, so that any taking of them would clearly have an effect upon the State’s conservation efforts. Under these circumstances, we think it apparent that the State has an interest sufficient to enable it to subject appellant, one of its own citizens, to the conservation regulations which it sought to enforce here.⁸⁴

The Court also found valid the arrest of Felton beyond the three-mile limit, concluding that this' was solely a matter between the state and one of its own citizens: “The arrests to which appellant alleges he was subjected were an integral part of the efforts of the State of Florida to regulate the conduct of one of its own citizens in a manner in which the State clearly had a legitimate interest.” The fact that some arrests may have occurred just beyond the three-mile limit did not transmute these enforcement efforts into constitutional violations.

In People v. Foretich85 the court dealt with a charge of taking fish with illegal gear. Defendants, who were California citizens, claimed to be outside the territorial waters; the State of California said they were within state waters. The court made a ruling on the boundary dispute such that defendants were within the line, but also noted that the statute clearly intended the law to operate in the area of dispute, and held that by Skiriotes it was fully capable of prosecuting its own citizens beyond the territorial limits. There was held to be no conflict with 16 U.S.C. § 1094, because that section was part of the 12-mile Contiguous Fisheries Zone Act, 16 U.S.C. §§ 1091-94, which was not itself a regulation of the fisheries in that zone.

Another case discussing this issue is Gherra v. California Fish and Game Dep’t.86 Certain shrimp fishermen, citizens of California, fished in California shrimp beds until the regular yearly closure, then fished in a shrimp bed beyond the three-mile limit, partly beyond the 12-mile contiguous fisheries zone. During this latter period they operated with Oregon fishing permits, and without reentering California waters. California’s closing laws specifically apply to this bed beyond the three-mile limit, and some fishermen were prosecuted for violating the closure (it was enforced only against California citizens). The three-judge fedéral court upheld the statute under Skiriotes. It stated:

California does have a legitimate interest in regulating the taking of shrimp from the ocean off its coast. The shrimp bed in question was discovered and developed by California officials. It is- adjacent to California territorial waters and, shrimp being migrating fish, some of them undoubtedly enter California during their migration. The ability of California to control the shrimp within its territorial waters is dependent, to some extent, upon its ability to limit the extraction of shrimp from the bed beyond.

The court also found no federal preemption, since no federal law actually conflicted with the state regulations. The law applies only to Californians, the court noted, and this was the basis of the state’s jurisdiction, not the situs of the regulated activities.

We must confess at this point that the various interpretations of the case law in this area as urged by able counsel are clearly within the language of the opinions, and we would have an extremely difficult time favoring one approach over the other were it not for a recent decision of the Supreme Court of the United States which appears generally to tip the balance in favor of the appellants herein.

In United States v. Alaska;⁸⁷ the United States Supreme Court noted a distinction between regulation for the purpose of fish and wildlife and the exercise of historic dominion for the purpose of establishing sovereignty by the United States or a state:

Our conclusion that the fact of enforcement of game and fish regulations in Cook Inlet is inadequate, as a matter of law, to establish historic title to the inlet as inland waters is not based on mere technicality. The assertion of national jurisdiction over coastal waters for purposes of fisheries management frequently differs in geographic extent from the boundaries claimed as inland or even territorial waters. See, e. g., Presidential Proclamation No. 2668, 59 Stat. 885 (1945). This limited circumscription or the traditional freedom of fishing on the high seas is based, in part, on a recognition of the special interest that a coastal state has in the preservation of the living resotirces in the high seas adjacent to its territorial sea. Convention on Fishing and Conservation of the Living Resources of the High Seas, Art. 6, If 1, 17 U.S.T. 138, 141, TIAS 5969 (1966). [Emphasis added]

This distinction constitutes a basic premise in this opinion and is important herein because it recognizes the simple but inescapable argument of appellant that in the absence of some effective regulatory power, the coastal state is totally unable to protect and preserve what are functionally its fisheries resources. In the instant case, the migratory habit of crab are demonstrated in the record. Most of the developmental stages in a crab’s life occurs in territorial waters of the state and little fishing for crab is done in such waters because of the condition of the crab during this period. However, the crab then move into deeper waters for feeding, etc. and the fishing begins. In the absence of any control over these areas, the entire stock of the fishery can be depleted to the point where no crab fishery exists. The detriment to all persons is obvious.

We will now turn to analysis of the particular aspects of the problem of extending the state’s police power jurisdiction extra-territorially.

The state has bolstered its argument by reference to cases from other states in which a “landing law”⁸⁸ has been upheld as being within the constitutional power of a state to regulate activity outside the area of its sovereignty. It cites a number of cases which will be discussed in turn.

In Silz v. Hesterberg,⁸⁹ the Supreme Court upheld New York laws prohibiting the possession of game in New York during a closed season, including game brought in from outside the state. The Court stated that the laws were aimed not at affecting the legality of taking game outside the state, but rather at protecting game located in the state. It concluded on this basis that the laws did not violate the due process clause of the Fourteenth Amendment. The Court also concluded that the laws did not unlawfully regulate interstate commerce because the effect on commerce was only incidental and remote.⁹⁰

In Bayside Fish Co. v. Gentry,91 the Court upheld certain California fish and game laws that regulated the processing of sardines in California, whether the sardines were taken within the waters of the state or outside them. The purpose of the regulation, the Court found, was to conserve for food the fish found in state waters. The provisions regulated only manufacture within the state, and their direct operation, intended and actual, was wholly local. The Court found any effect on interstate and foreign commerce to be “purely incidental, indirect, and beyond the purposes of legislation.” ⁹² To the extent the laws dealt with the use or treatment of fish brought into the state from outside, the Court stated, their legal justification rested on the ground that they operated “as a shield against the covert depletion of the local supply, and thus tend[ed] to effectuate the policy of the law by rendering evasion of it less easy.” ⁹³

Other courts have upheld similar laws on similar bases.⁹⁴ In each, the courts found that it was a valid exercise of police power for states to attempt to conserve fish located in state waters. The courts found further that this power includes the right to prohibit possession of fish taken outside the state or, in the case of Santa Crus Oil, supra, to require a permit for any fishing boat operating in state waters, even if the boat caught all of its fish outside the state. Courts have found the effects of these laws on interstate commerce to be incidental and necessary to prevent possible deception by the fishermen: fishermen might otherwise subvert the conservation efforts of the states by fishing in state waters but claiming that they took their catch beyond those waters. The inability to distinguish fish taken within the state from those taken outside would render enforcement of the state laws difficult at best.

Appellees counter by asserting, as was posited in Hjelle v. Brooks,⁹⁵ that a state may regulate extra-territorial conduct only if the regulations facilitate conservation of a resource clearly within the state. They then take the position that since the majority of all fishing for king crab occurs outside the three-mile limit, and that crab only come inside the limit to mate or molt, there is simply no state fishery to be protected by the regulations.

However, the key question is whether Alaska’s interest qualifies as one recognized for a legitimate exercise of police power. The answer is clearly yes— there is an established fishery with clear economic impact in the Bering Sea fishery area. The migratory habits of the crab are predictable and fishing outside the three-mile limit depends on growth and development within the limit. If the fishery outside the three-mile limit destroys the resource outside, it will similarly destroy the resource inside the three-mile limit. If the State of Alaska cannot protect this resource under its police power, then such power is far more limited than any recorded case reveals.

We do not find that the state’s interest in regulation is as limited as the position asserted by appellees and adopted by the three-judge federal court in Hjelle. The Hjelle court based its decision on the conclusion that the purpose of the landing laws was to regulate the crabs beyond the limit, not within it. The court said:

This line of cases leads us to conclude that Alaska’s proffered nexus between its legitimate state interests and its regulation of certain extraterritorial conduct would pass constitutional muster if its regulations were directed at conserving the crab fishery within Alaska’s waters by regulating crabbing in that area, and, in order to facilitate enforcement, by prohibiting the possession of crab in the state during the closed season, even if that crab were caught outside the state. Despite the state’s claim that the regulations are on “all fours” with these “landing law” cases, we find, after considering the language of the regulations and the affidavits presented . . . “reasonably certain” to establish that the regulations do not fall within the purview of these cases.⁹⁶

We conclude that an analysis of those cases cited demonstrates that in fact these decisions were justified primarily on conservation of the resource. The Silz decision, for example, may well have relied solely on the difficulty of enforcement, but that case is distinguishable on its facts, involving game which clearly did not migrate in and out of the state but with respect to which a difficulty of enforcement did exist due to the identity of the species.

In all of the “landing law” cases cited by the Hjelle decision and this court, not one required that an enforcement problem be necessary. While in most of the cases an enforcement problem did exist, it is unquestionable that those courts were apprised of the simple conservation principle which exists in the case at bar. Like the fish in all of the cases in question, crab exist both within and without the territorial waters of the State. It is impossible to quantify the amount of crab within Alaska waters in the BSSA (due in part to the lack of precise boundaries in the Bering Sea),⁹⁷ but it is clear from the facts that it is not “very small” as the Hjelle court preliminarily concluded; in fact it is rather significant at some times of the year, and fishable quantities exist during all times of the year.

Of those cases cited in Hjelle, the Frach case, supra, is perhaps the most directly analogous. There, a Washington statute requiring a permit for bringing certain fish taken on the high seas into the state was upheld as constitutional. The court found no conflict with the interstate commerce clause, since any burden on interstate commerce was the indirect result of a measure needed to facilitate regulation of instate fishing, because of the impossibility of distinguishing among fish caught different places. That case involved salmon which, like crab, spend the substantial portion of their lives on the high seas and return to state waters for only short periods of time to spawn. In several respects, however, salmon as a migratory resource present a more extreme case than crab in that they spend the majority of their lives in high seas areas far beyond territorial waters, while Alaskan crab do not. Also, there are periods when salmon are totally absent from state waters, whereas crab exist year round in fishable quantities in the territorial waters of the Bering Sea.

Since the regulation in question was enacted pursuant to the State’s “police power,” we also note an Alaska decision on this subject. In Kingery v. Chappie ⁹⁸ we noted that when a regulation is challenged as a violation of the police power of the state, the issue is whether the regulations bear a reasonable relationship to the purpose sought to be achieved. While this Court in Kingery held that under these circumstances the state is required to come forward with at least prima facie evidence that a reasonable relationship exists, the Hjelle court seemed to be requiring that the state prove conclusively that its system provide the most effective system with the least possible infringement on “extra-terrtiorial conduct.” ⁹⁹

Nor did the Hjelle court give the state the benefit of all doubts in deciding the nature of the purpose behind the state’s regulations.¹⁰⁰ Rather, the court in Hjelle assumed that the state sought to directly regulate extra-territorial conduct because the quota was based on fishing in the entire area, because one regulation prohibits the possession in Alaska only of that crab and sea life “taken seaward” of Alaska territorial waters, and because the percentage of king crab taken commercially within Alaska waters is very ■ small. These conclusions run contrary to all authority on the subject regarding the intent to be given state laws.

The intent of the state’s laws and regulations is clearly not to effect extraterritorial activity to any greater extent than is necessary to preserve the king crab fishery within state waters. If it is not clear from the legislative findings in AS 16.10.180, it is certainly clear from the facts developed in this case — crab are migratory creatures which move offshore, beyond the state’s territorial boundary at various times during a given year. If the state is to conserve the crab existing within the state, it must regulate the taking of crab outside the state. If fishermen were allowed to fish the crab beyond the state’s border unregulated, the maximum sustained yield of crab both inside and outside the state would decrease.

Unlike the situation in Silz, where the extra-territorial taking would not in the least affect the in-state resources stocks, the interdependency of the in-state and extraterritorial resources is determinative. AS 16.10.180(4) (5) makes it clear that the purpose of the application of fisheries laws to the high seas is to conserve shellfish found “inside the waters of the state.” The method of accomplishing this purpose is reasonably related to the purpose; it is, therefore, permissible. Kingery v. Chappie, supra.

Nor can defendant 'argue that the effect on extra-territorial conduct somehow requires a higher standard of review. Such a requirement is nowhere to be found in any of the extra-territorial conduct cases. Hjelle, while seemingly applying a higher standard, failed to consider either Skiriotes or Toomer v. Witsell, supra. Those cases clearly found sufficient nexus on only minimal proof of “nexus” while extra-territorial regulation was clearly necessary to preserve a migratory resource.

Finally, the Hjelle court in fact specifically recognized that other “nexus” might well sustain the regulations in question if developed by competent evidence. In the case in question, such competent evidence exists before this court in the stipulations of the parties, and we conclude that on balance a sufficiently close connection to legitimate state interests has been -’established to validate the state’s limited efforts to regulate this resource.

We are cognizant of the unfortunate situation created by a restrictive reading of the “landing law” cases. The state which is the fishery breeding ground has no ability to regulate unless it can demonstrate a local fishery resource. Consequently, in undeveloped areas of Alaska such as the northern portions of the Bering Sea and the Arctic Ocean there could simply be no regulation. The subsistence nature of the fishery and the lack of economic development by the aboriginal inhabitants prior to the Alaska Native Settlement Act of 1972 would be the fortuitous circumstance which prevented regulation. We’ find such a view to be, in short, unrealistic and unacceptable. We therefore conclude that a state may reasonably extend its jurisdiction to control fish and game resources outside the limited area of its territorial sovereignity, if such an exercise is based on the conservation principles inherent in their migratory characteristics and not based on artificial boundaries or political circumstances.

B. People to be Controlled.

Almost indistinguishable from the question of the area of control is the extent of control over fishermen, both local and foreign; this is so mainly because the reasoning applied to one area is equally applicable to the other.

Appellees urge a restrictive reading of Skiriotes¹⁰¹ to limit the extra-territorial control over fisheries solely to residents of the State of Alaska. The effect of such a result is obvious from both a conservation and a practical standpoint.

If the state has no authority to regulate non-resident fishermen of a migratory fishery species it has no effective authority to regulate the fishery. As noted in the dissenting opinion in Hjelle v. Brooks:102

The Bering Sea king crab population data obtained by the National Marine Fisheries Service establishes that the present capacity of commercial fishermen to take king crab far exceeds the estimated maximum sustained yield of the Bering Sea Shellfish Area. Biologists generally agree that productivity of this fishery cannot be sustained absent a regulatory scheme such as that which plaintiffs presently attack. . . .

Further, if a state is forced to distinguish between its own citizens and citizens of other states in giving extra-territorial effect to its laws, the state’s own citizens can easily frustrate the legitimate objectives of these laws by simply tranferring their citizenship to another state. An Alaskan citizen, for example, could easily avoid the effect of Alaska’s laws by transferring his citizenship to Washington. This reality is hardly the same as that apparent in international issues since it is considerably more difficult, and less advantageous, for a citizen of one nation to change his citizenship to another nation in order to avoid the effect of his nation’s extra-territorial fishing laws. Hence, a narrow reading of the citizenship limitation suggested in Skiriotes could lead to the deliberate frustration of a state’s extra-territorial fishing laws. The state suggests, instead, an important and acceptable widening of the usefulness of Skiriotes by its reading of the concept “citizen.” If only Alaskan citizens may be restricted in their Bering Sea crabbing, the regulation will not be very efficacious in managing the stock.¹⁰³ But the state’s theory would broaden the Skiriotes concept of “citizen” to encompass all American nationals, and hence most if not all of the Bering Sea crabbers, because of their numerous nexi with Alaska.

The state’s theory is based mainly on one case, but it draws on certain general principles of domestic and international law as well. The one case is Jacobson v. Maryland Racing Commission.104 Jacobson, an owner and trainer of race horses, was licensed as such by the Maryland Racing Commission. A rule of the Commission prohibited resale of a horse claimed in a claiming race for 60 days after that race. Jacobson claimed three horses in a Maryland race and within 60 days sold them in New York. The Commission thereupon suspended his licenses, and Jacobson filed a petition asserting, among other things, that the Maryland rules could not be applied against his out-of-state activities. The court, after pointing out that only by means of a license from the Commission could one engage in racing in Maryland, held Jacobson bound by the Commission’s rules. It invoked the very general proposition that acts done outside a jurisdiction which produce detrimental effects inside it justify a state in punishing he who caused the harm as if he had been present at .the place of its effect.¹⁰⁵ It also cited Skiriotes and declared:

We think that Jacobson had become a racing citizen of Maryland as far as the purposes and effects of the Rules are concerned and that this State acquired sufficient personal jurisdiction over him in matters of licensed racing to permit it to enjoin him by Rule 80 . . . and to punish him if he disobeyed that rule.

As applied to the crab cases, the state points to the Alaska licenses and numerous nexi of the defendants with Alaska,¹⁰⁶ and posits that the defendants have thereby-become “crab fishing citizens” of Alaska.

Although we are not persuaded that the state’s creation of the concept of a “crab fishing citizen” is particularly helpful — or even appropriate — we do find Jacobson to afford sufficient rational precedent to conclude that Alaska’s regulations in this case do not amount to more than a proper and logical extention of the state’s police power.¹⁰⁷ Therefore, we find that all of the persons herein were properly charged.

In order that there is no confusion with regard to our holding, we reiterate that the difference in status between each offender does not affect Alaska’s jurisdiction over him. Whether the appellee was an Alaska resident (as is Vinberg), was arrested within the three-mile limit (as was Bundrant), or was arrested on the high seas in the Bering Sea crab area (as was Uri), the State may proceed to enforce its crab regulations herein against said appellee.

These cases are reversed and remanded for further consideration in confomity with this opinion.¹⁰⁸

BOOCHEVER and BURKE, JJ., not participating.

1 . According to a fish and game department biologist, this regulation was promulgated at the request of the National Marine Fisheries Service and “other interested parties.”

2 . 377 F.Supp. 430 (D.Alaska 1974).

3 . See “Board of Fish and Game Finding of Emergency” (issued June 25, 1974), Appellant’s Brief No. 2435, at 36-37.

4 . Id.

⁵

6 . This information is from stipulations entered in the record.

7 . AS 16.10.200 is the state’s “landing law,” barring illegal taking on the high seas and subsequent possession in the state.

8 . There are ongoing disputes as to the method of calculating this line, but they are not generally relevant here. In general, see A. Gross, The Maritime Boundaries of the States, 64 Mich.L.Rev. 639 (1966).

9 . Proclamation No. 2667, U.S.Code Cong. Serv. at 1199-1200 (1945).

10 . Proclamation No. 2668, U.S.Code Cong. Serv. at 1200-01 (1945).

11 . Thus by the Bartlett Act, 16 U.S.C. §§ 1081-86, the exclusion of foreign vessels from our territorial sea was extended to the 12-mile zone as well.

12 . See discussion at p. 537, infra, on the extent to which the Outer Continental Shelf --Lands Act applies to organic resources.

13 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1946).

14 . This act was made applicable to Alaska by the Statehood Act, 72 Stat. 339.

15 . E. Wunnieke, “The Legal Framework Governing Alaska Fisheries”, Alaska Fisheries Policy (1972) p. 237.

16 . U.S.Const., art. I, § 8.

17 . U.S.Const., art. I § 8, art. II § 1, art. 6.

18 . Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 13 L.Ed. 996 (1852).

19 . Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959) ; H. P. Hood & Sons v. DuMond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949) ; Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945) ; Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119 (1941).

20 . 53 U.S. (12 How.) 299, 319, 13 L.Ed. 996, 1005 (1852).

21 . E. g., “direct” burdens on interstate commerce are forbidden, while “indirect” burdens are permissible. Hall v. DeCuir, 95 U.S. 485, 24 L.Ed. 547 (1878) ; “undue” burdens are prohibited, Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951) ; “material” burdens are violative of the commerce clause, Real Silk Hosiery Mills v. Portland, 268 U.S. 325, 45 S.Ct. 525, 69 L.Ed. 982 (1925) ; “unreasonable” burdens are forbidden, International Milling Co. v. Columbia Tramp. Co., 292 U.S. 511, 54 S.Ct. 797, 78 L.Ed. 1396 (1934).

22 . Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945).

23 . California v. Zook, 836 U.S. 725, 728, 69 S.Ct. 841, 848, 93 L.Ed. 1005, 1008 (1949).

24 . M. g., Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed. 1003 (1959) ; Southern Pacific Co. v. Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945).

25 . E. g., Baldwin v. G. A. F. Seelig, Inc., 29.4 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1934).

26 . Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 3&40, 68 S.Ct. 358, 363-64, 92 L.Ed. 455, 464 (1948).

27 . Hale v. Bimco Trading, Inc., 306 U.S. 375, 59 S.Ct. 526, 83 L.Ed. 771 (1939) ; Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed. 3 (1937) ; Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772 (1936) ; New York ex rel. Silz v. Eesterberg, 211 U.S. 31, 29 S.Ct. 10, 53 L. Ed. 75 (1908).

28 . North Carolina University, State and Federal Jurisdictional Conflicts in the Regulation of United States Coastal Waters, at 12-13 (1974).

29 . Browning, Some Aspects of State and Federal Jurisdiction in the Marine Environment, at 139-40 (1968).

30 . Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317 (1946) ; Edwards v. California, 314 U.S. 160, 32 S.Ct. 164, 86 L.Ed. 119 (1941) ; Hall v. DeCuir, 95 U.S. 485, 24 L.Ed. 547 (1878).

31 . Buck v. Kuykendall, 267 U.S. 307, 45 S. Ct. 324, 69 L.Ed. 623 (1925) ; Hall v. DeCuir, 95 U.S. 485, 24 L.Ed. 547 (1878).

32 . Southern Pacific Co. v. Arizona, 325 U.S. 761, 767, 65 S.Ct. 1515, 1519, 89 L.Ed. 1915, 1923 (1945).

33 . 377 F.Supp. 430, 438 (D.Alaska 1974).

34 . Reply Brief of Appellant, No. 2435, at 15.

35 . 333 U.S. 28, 37, 68 S.Ct. 358, 363, 92 L. Ed. 455, 463 (1948). See also Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 447, 80 S.Ct. 813, 818, 4 L.Ed.2d 852, 858 (1960) ; Ghera v. Department of Fish and Game, No. 47823 SAW at 8 n. 1 (N.D.Cal.1973) [unpublished opinion reprinted in Appendix to Appellant’s Brief in No. 2435].

36 . See Hjelle v. Brooks, 377 F.Supp. 430, 443 (D.Alaska 1974) [concurring opinion].

37 . Rasmussen, v. Idaho, 181 U.S. 198, 21 S. Ct. 594, 45 L.Ed. 820 (1901) ; Morgan’s R. R. and Steamship Co. v. Louisiana, 118 U.S. 455, 6 S.Ct. 1114, 30 L.Ed. 237 (1886).

38 . Florida Avocado Growers v. Paul, 373 U.S. 132, 144, 83 S.Ct. 1210, 1218, 10 L.Ed.2d 248, 258 (1963).

39 . 366 U.S. 199, 81 S.Ct. 929, 6 L.Ed.2d 227 (1961).

40 . 366 U.S. 199, 203-04, 81 S.Ct. 929, 931-32, 6 L.Ed.2d 227, 230-31 (1961). See also Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948) ; Oliver Iron Min. Co. v. Lord, 262 U.S. 172, 43 S.Ct. 526, 67 L.Ed. 929 (1923).

41 . United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937). See also Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941) ; United States v. Gurtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). One commentator has explained:

As a sovereign power possessed by the nation, the ’ power over foreign affairs is inherent, exclusive, and plenary. It is inherent, since ... it does not depend for its existence upon the affirmative grants of the Constitution. It is exclusive in the Federal Government, both because of express prohibition on the states in this field and because only the Union is vested with the attributes of external sovereignty. For national purposes, embracing our relation with foreign nations, we are but one people, one nation, one power.

2 B. Schwartz, A Commentary on the Constitution of the United States, § 206, at 97-98 (1963).

42 . Zschernig v. Miller, 389 U.S. 429, 432, 88 S.Ct. 664, 666, 19 L.Ed.2d 683, 687 (1968). But see Gorun v. Fall, 393 U.S. 398, 89 S.Ct. 678, 21 L.Ed.2d 628 (1968). See generally, Marer, The Bases and Range of Federal Common Law on Private International Matters, 5 Vand.J.Transnational L. 133 (1971).

43 . E. g., Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947). See generally L. Henken, Foreign Affairs and the Constitution, 238 (1972).

44 . 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968). See also Henderson v. New York, 29 U.S. 259, 23 L.Ed. 543 (1876) ; The Federalist Papers, Nos. 3, 4, 5, 42, and 80; Bethlehem Steel Corp. v. Board of Commissioners, 276 Cal.App.2d 221, 80 Cal.Rptr. 800 (Cal.App.1969).

45 . See L. Henken, supra note 26, at 241.

46 . United States v. Maine, 420 U.S. 515, 95 S.Ct. 1155, 43 L.Ed.2d 363 (1975) ; United States v. California (Second California), 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed.2d 296 (1965) ; United States v. Florida, 363 U.S. 121, 80 S.Ct. 461, 4 L.Ed.2d 1096 (1960) ; United States v. Louisiana, 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960) ; United States v. Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 221 (1950) ; United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216 (1950) ; United States v. California (First California), 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1947).

47 . Brief of appellees Uri et al. and Kaldestad, Nos. 2435, 2444, at 8-10.

48 . 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889 (1897).

49 . Id. 332 U.S. at 35, 67 S.Ct. at 1666-67, 91 L.Ed. at 1897.

50 . 339 U.S. 699, 705, 70 S.Ct. 914, 917, 94 L.Ed. 1216, 1220 (1950).

51 . That the logic of these cases is still alive is apparent from the United States Supreme Court’s recent decision in United States v. Maine, 420 U.S. 515, 95 S.Ct. 1155, 43 L.Ed. 2d 363 (1975). Maine and the other Atlantic coast states claimed sovereignty rights over the seabed and subsoil to the outer edge of the continental shelf, based on certain colonial grants. The court rejected these claims and affirmed a Master’s Report that as a matter of “purely legal principle . . . the Constitution . . . allotted to the federal Government jurisdiction over foreign commerce, foreign affairs and national defense,” and that “it necessarily follows, as a matter of constitutional law, that as attributes of these external sovereign powers of the federal government has paramount rights in the marginal sea.” 420 U.S. at 522, 95 S.Ct. at 1159, 43 L.Ed.2d at 369. Although this decision specifically related to claims to the “seabed,” and the underlying concern was again mineral resources, the court at one point reinterprets First California as establishing “that in our constitutional system paramount rights over the ocean waters and their seabed were vested in the Federal Government.” 420 U.S. at 520, 95 S.Ct. at 1158, 43 L.Ed.2d at 368 (emphasis added). While it may be error to assume from this that the court consciously considered the problem of waterborne resources and so applied this logic to them, it may however be taken to indicate that the court did not consciously draw a distinction between seabed and seawaters and apply their logic only to the former.

52 . 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948).

53 . 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941).

54 . Cf., Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973).

55 . Skiriotes v. Florida, 313 U.S. 69, 75, 61 S.Ct. 924, 928, 85 L.Ed. 1193, 1199 (1941) ; Savage v. Jones, 225 U.S. 501, 32 S.Ct. 715, 56 L.Ed. 1182; In Re Squires, 114 Vt. 285, 44 A.2d 133 (1945).

56 . Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960).

57 . Head v. New Mexico Bd. of Examiners, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963) ; Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231 (1952) ; Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963). See Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87, 82 L.Ed.2d 3 (1937) ; Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 149 Neb. 507, 31 N.W.2d 477 (1948) ; California v. Zook, 336 U.S. 725, 69 S.Ct. 841, 93 L.Ed. 1005 (1948) ; Allen-Bradley Local v. Wisconsin Employment Relations Bd., 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942).

58 . 43 U.S.C. §§ 1331-43 (1953).

59 . 43 U.S.C. § 1332(a) (1953).

60 . Rodrigue v. Aetna Gas. Co., 395 U.S. 353, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969) ; Chevron Oil Co. v. Huson, 404 U.S. 97, 30 L.Ed. 2d 296, 92 S.Ct. 349 (1971).

61 . 43 U.S.C. § 1333(a)(3) (1953).

62 . D. Sands, Sutherland Statutory Construction, § 51.01 (4th Ed. 1972).

63 . Id. at § 51.03.

64 .See also 43 U.S.C. § 1333(a)(1) (1953), which provides in part:

The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures which may be erected thereon for the purpose of exploring for, developing, removing, and transport-,a ing resources therefrom . . . . [Emphasis added]

65 . 16 U.S.C. §§ 1081-86 (1970).

66 . Sen.Rep.No.411, 83rd Cong., 1st Sess. (1953). See also remarks of Senator Douglas, 99 Cong.Ree. at 2868 (1953) :

We are not particularly interested in kelp, or shrimp or oysters, those are sideshows. The question is as to oil and gas.

67 . 43 U.S.C. § 1332(b) (1953).

68 . Sen.Rep.No.411, 83rd Cong., 1st Sess. (1953).

69 .See e. g., the treatment of taking sponges as “fishing” in Skiriotes. That Congress also used the term in the broader sense is evident from the legislative history. See Hearings on H.R. 5991 and 5992 Before a Subcomm. of the House Comm, on the Judiciary, 81st Cong., 1st Sess. at 190 (1949) ; Hearings on S.J.Res. 20 Before the Senate Comm, on Int. and Ins. Affairs, 82d Cong., 1st Sess. at 50-54 (1951) ; Hearings on S. 155 Before the Senate Comm, on Int. and Ins. Affairs, 81st Cong., 1st Sess. at 245, 391, 414 (1949).

70 . 211 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941).

71 . 290 F.2d 622 (5th Cir. 1961), cert. denied 368 U.S. 957, 82 S.Ct. 394, 7 L.Ed.2d 388.

72 . 290 F.2d at 625. See also Employers Mut. Cas. Co. v. Samuels, 407 S.W.2d 839 (Tex.Ct.Civ.App.1966) ; cf. Hjelle v. Brooks, 377 'F.Supp. 430, 439-40 n. 4 (D.Alaska 1974).

73 . 423 F.2d 16 (5th Cir. 1970).

74 . H.R. 4760, H.R. 4756, 93rd Cong., 1st Sess. (1973).

75 . See, e. g., Statement of Dr. Robert M. White, Administrator, National Oceanic and Atmospheric Administration, in Hearings Before the U. S. House Committee on Merchant Marine and Fisheries, Subcommittee on Fisheries and Wildlife Conservation and the Environment, 93rd Cong., 1st Sess. (1973).

76 . E. g., United States v. R. & J. Enterprises, 178 F.Supp. 1 (D.C.Alaska 1959) ; Leege v. Martin, 379 P.2d 447 (Alaska 1963) ; In Re Paul, 17 Alaska 360 (1957).

77 . 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159 (1890).

⁷⁸

79 . Manchester v. Massachusetts, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159 (1890) ; Site v. Hesterhurg, 211 U.S. 31, 39 S.Ct. 10, 53 L.Ed. 75. (1908) ; Bay side Fish Co. v. Gentry, 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772 (1936) ; United States v. First California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889-(1947) ; Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1198 (1941) ; Toomer v. Witsell, 324 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948) ; United States v. Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216 (1950) ; United. States v. Second California, 381 U.S. 139, 85 S.Ct. 1401, 14 L.Ed. 296 (1965).

80 . 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed.2d 1193, (1941).

81 . On Florida’s attempts at regulation, and fishing jurisdiction problems in general, see D. Cowan, Fra of Militant Fishing Jurisdiction — A Study of the Florida Territorial Waters Act of 1963, 23 Univ. of Miami L. Rev. 160 (1966).

82 . 72 Mich.L.Rev. 1087 (1974) ; Restatement of Foreign Relations § 30 (1965).

83 . 374 F.2d 337 (5th Cir. 1967).

84 . Id. at 339.

85 . 92 Cal.Rptr. 481, 14 Cal.App.3d Supp. 6 (Cal.App.19T0).

86 . No. 47823 SAW (N.D.Cal.1973) [unpublished opinion reprinted in Appendix to appellant’s brief in No. 2435],

87 . 422 U.S. 184, 95 S.Ct. 2240, 45 L.Ed. 2d 109 (1975).

88 . As mentioned earlier in this opinion, “landing laws” are laws which prohibit the possession, sales or transportation of fish or game in a state which are taken in violation of state laws or regulations.

89 . 211 U.S. 31, 29 S.Ot. 10, 53 L.Ed. 75 (1908).

90 . Id. at 40-41, 29 S.Ot. at 12, 53 L.Ed. at 79-80.

91 . 297 U.S. 422, 56 S.Ct. 513, 80 L.Ed. 772 (1936).

92 . Id. at 426, 56 S.Ct. at 515, 80 L.Ed. at 775.

⁹³

94 . See Frach v. Schoetler, 46 Wash.2d 281, 280 P.2d 1038 (1955) ; Johnson v. Gentry, 220 Cal. 231, 30 P.2d 400 (1934) ; Santa Orne Oil Corp. v. Milnor, 55 Cal.App.2d 56, 130 P.2d 256 (1942).

95 . Hjelle v. Brooks, 377 F.Supp. 430 (D.C.Alaska 1974).

96 . 377 F.Supp. at.441.

97 . Id., at 445.

98 . 504 P.2d 831, 835-36 (Alaska 1972).

99 . Hjelle v. Brooks, 377 F.Supp. 430, 441 (D.C.Alaska 1974).

100 .Id. at 431.

101 . Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1942).

102 . 377 F.Supp. 430, 444 (D.C.Alaska 1974) (dissenting opinion).

103 . The record does not show a firm breakdown of Alaskan v. non-Alaskan crab taken in the Bering Sea. We are simply assuming that out-of-staters account for at least a substantial amount of the take.

104 . 261 Md. 180, 274 A.2d 102 (1971).

105 . See Strassheim v. Daily, 221 U.S. 280, 31 S.Ot. 558, 55 L.Ed. 735 (1911) ; United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945) ; United States v. Pizzarusso, 388 F.2d 8 (2d Cir. 1968) ; Restatement (Second) of Conflict of Laws § 65 (1971) ; Restatement of Foreign Relations § 18 (1965).

106 . The stipulation in Bundrant, No. 2295, and similar facts which the state offers to' prove in the other cases, effectively establish that Bering Sea crabbers daily make use of Alaskan territorial waters and facilities, and probably could not continue to crab in the area without using Alaskan shore-based facilities.

107 . We consequently find ourselves in complete agreement with analysis suggested in United States v. Thompson, an unreported decision by the United States District Court for the District of Alaska (No. A-87-72 Or., Dec. 15, 1972) [see appendix, Ant Br, 2295], where the court concluded that the constitutional propriety of an effort by the State of Alaska to regulate the polar bear hunting “activities of American citizens [who were non-residents of Alaska] • on the high seas adjacent to Alaska is not subject to censure in light of Johnson v. Gentry, 220 Cal. 231, 30 P.2d 400 (1934), and Skiriotes v. Florida, 313 U.S. 69, 61 S.Ct. 924, 85 E.Ed. 1193 (1940).”

108 . By virtue of our decision herein, we did not pass on other legal arguments advanced by appellees. The decision of the trial court was based on the doctrine of federal pre-emption, and he did not consider other grounds for dismissal. Clearly these arguments may be renewed in the trial court.