Thomas B. Rustad, Harvey R. Wyborny, Homer C. Skelley, Charles Diven and James Johnson v. United States

258 F.2d 563, 17 Alaska 679
CourtCourt of Appeals for the Ninth Circuit
DecidedNovember 24, 1958
Docket15720_1
StatusPublished
Cited by5 cases

This text of 258 F.2d 563 (Thomas B. Rustad, Harvey R. Wyborny, Homer C. Skelley, Charles Diven and James Johnson v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas B. Rustad, Harvey R. Wyborny, Homer C. Skelley, Charles Diven and James Johnson v. United States, 258 F.2d 563, 17 Alaska 679 (9th Cir. 1958).

Opinions

BARNES, Circuit Judge.

If a vessel sought to go south from the City of Wrangel situated on the northernmost tip of Wrangel Island- in southeast Alaska, it could proceed along the easterly side of the island through the Eastern Passage, Blake Channel, and Anan Creek area to a point immediately south of Wrangel Island and north of Deer Island in Ernest Sound, or, it could sail along the westerly side of Wrangel Island through Zimovia Strait to the same point in Ernest Sound north of Deer Island. All of these named bodies of water are in the Anan section of the “Sumner Strait Regulatory District,” as delineated on the Southeast Alaska Commercial Fisheries Maps, published by the United States Fish and Wildlife Service.

At about 12:30 p. m. on July 12, 1956, the defendants’ vessel was found fishing commercially at a point allegedly located within Zimovia Strait. The Captain and four members of the crew (appellants herein) were arrested, and charged with a violation of 48 U.S.C.A. § 222,1 which makes violations of regulations issued by the Secretary of Interior under the authority of 48 U.S.C.A. § 221, criminal offenses. 48 U.S.C.A. § 226 2 provides for fine and imprisonment for any such violation, i. e., fishing in a closed area. The regulations which defendants were charged in the information with violating were sections 121.3 and 121.4 of Alaska Commercial Fisheries Regulations, 1956.

The case was tried before a jury in the District Court of the First Judicial Dis[565]*565trict of Alaska where Zimovia Strait is located. (48 U.S.C.A. § 101.) The sole issue submitted to the jury was whether or not appellants’ boat was fishing in Zimovia Strait. All defendants were convicted. A motion for a judgment notwithstanding the verdict was denied. Captain Rustad was fined «$1,500, the crew $750 each; and the balance of their catch was forfeited. Appeal lies here. 28 U.S.C. § 1291.

Alaska Fisheries Regulations Section 121.4, in effect on July 12, 1956, and for .some time prior thereto, reads:

“With the exception of Ernest Sound and the vicinity of Anan Creek, fishing * * * is prohibited except from * * * July 20 * * » 3

Alaska Fisheries Regulations Section 121.3 read on July 10th and prior thereto .as follows:

“Fishing * * * in Ernest Sound and the open waters in the vicinity of Anan Creek (excluding Zi-movia Strait) is prohibited except from * * * July 15 * * 4

On July 11, 1956, Regulation § 121.3 was amended to strike the words “July 15” and to substitute therefor the words “July 12.” This amendment was published at Washington, D. C., on July 11, 1956. The early opening day information was conveyed to the Fish & Wildlife Service in Alaska by telegram which read as follows:

“Alaska Fishery Regulation 121.3 amended to open Anan and Ernest Sound section at six o’clock antemer-idian July twelve. This action taken because adequate early escapement of pink salmon assured in Anan Creek as revealed by ground survey of stream and aerial survey of approaches by FWS officials July seven. Advise interested parties.” [Defendants’ Exhibit A.]

It is noted this contained a specific reference by number to the regulation amended, and instructed the Wildlife Service to inform all interested parties. The Service sent telegrams to various fisheries asking that interested parties be advised of the earlier opening date, but these telegrams contained no reference to the regulation number. They read:

“The Ernest Sound and Anan section of the Sumner Strait District will open at 0600 am July 12 instead of July 15, Please advise interested parties.” [Defendants’ Exhibit B.] Appellants claim error because:

(1) Failure of the court to rule as a matter of law that the regulation was invalid because of indefiniteness.

(2) The two telegrams amended the regulation sought to be enforced so as to open Zimovia Strait for fishing on July 12, or estopped the government to deny it was open.

(3) The same telegrams rendered the regulations invalid because of indefiniteness.

(4) Failure to give defendants’ requested instruction No. 1.

(5) The giving of Government Instruction No. 10.

(6) In withholding government Exhibits A and B from the jury room.

The indefiniteness relied on in point one is the use of the term “Zimovia [566]*566Strait.” Appellants point to their Exhibit C, a United States Department of Agriculture Map delineating the boundaries of the “Tongass National Forest,” extending some eight hundred miles north and south. It is true that from that government map it would be difficult, though not impossible, to determine where Zi-movia Strait starts and ends. But we assume accomplished seamen would not rely on a Department of Agriculture Map any more than they would rely on an oil company’s road map, or a World Atlas showing the North Pacific Ocean on one page. On Appellee’s Exhibit 1, for example, the Zimovia Straits are clearly marked and can hardly be missed by anyone reading the navigational chart (which that Exhibit is) with the degree of intelligence to be expected of the licensed master of a vessel. These commercial fishermen were not Sunday sailors landlocked most of the week. They used a map with fathoms, shoalings and magnetic compass markings on it. Government’s Exhibit 1 was in fact on the fishing vessel at the time of arrest. As might be expected, it was a United States Coast and Geodetic Survey Map, No. 8161, covering “Ernest Sound, Eastern Passage, and Zimovia Strait,” a total area extending some forty to fifty miles north and south. The point of arrest and the point where the vessel was fishing was 1.4 miles northwest of Thorns Point and immediately opposite the letter “R” in the words Zimovia Strait, as they appear on this map then being used.

Of the many fishing boats out on the opening day, none but this captain and crew had any difficulty in determining the limits of Zimovia Strait and where they should not fish.

Appellants cite in support of their position that Zimovia Strait is an indefinite description of the boundaries of the proscribed territory those cases involving fishing at the mouth of rivers where the limits of the river’s mouth have not been designated by statute, such as Booth v. United States, 9 Cir., 1925, 6 F.2d 500. From this it is argued that either the exact longitude or latitude of the area must be stated, or that the area itself must be physically marked — that without such aids the regulation, of necessity, was so-uncertain and indefinite as to be unenforceable for lack of due process. Appellee does not dispute the validity of such a. rule of law, but urges that it is not here applicable, that the statutes employed’ words or phrases having a technical or other special meaning, well enough, known to enable those within their reach to correctly apply them, or having a well' settled common-law meaning. Connally v. General Construction Co., 1926, 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322.

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Bluebook (online)
258 F.2d 563, 17 Alaska 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-b-rustad-harvey-r-wyborny-homer-c-skelley-charles-diven-and-ca9-1958.