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THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT J. CLUCAS, )
)
Appellant, ) Court of
Appeals No. A-3692
) Trial
Court No. 3HO-S90-184CR
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1147 - July 19, 1991]
______________________________)
Appeal from the District Court of the State
of Alaska, Third Judicial District, Homer,
Natalie K. Finn, Judge.
Appearances: Arthur S. Robinson, Robinson,
Beiswenger & Ehrhardt, Soldotna, for
Appellant. Joseph N. Lavesque, Assistant
District Attorney, Nathan A. Callahan,
District Attorney, Kenai, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Mannheimer,
Judge, and Andrews, Superior Court Judge.*
[Coats, Judge, not participating.]
BRYNER, Chief Judge.
Robert J. Clucas was convicted of operating a set gill
net within 600 feet of another gill net. Clucas appeals, arguing
that the district court erred in rejecting his proposed
affirmative defense of "first in time, first in right." We
reverse.
Clucas was arrested at Squarehead Cove in Tuxedni Bay
on May 9, 1990. Fish and Wildlife Officers Mark Kruzick and
Curtis Bedingfield arrived at Squarehead Cove on May 8, 1990,
during an open season of the herring gill net fishery. The
officers saw approximately 100 to 150 gill nets in the cove, most
separated from each other by only 100 to 300 feet, in violation
of 5 AAC 27.435, which requires that nets be 600 feet apart. The
officers patrolled the area in a small boat, spreading the word
that citations would be issued the following day if the nets were
not moved farther apart.
The next day, Clucas contacted the officers and told
them that he would not move his gear, because he had set his nets
first. Clucas claimed that another person, Hank Kroll, had
subsequently placed his gear within 600 feet of Clucas'. Clucas
was told that if he did not move his net, both he and Kroll would
be issued citations. Later on that day, the officers issued
citations after measuring a distance of 250-270 feet between
Clucas' and Kroll's nets. Clucas was cited for violating 5 AAC
27.435 and AS 16.05.722. 5 AAC 27.435 provides:
MINIMUM DISTANCE BETWEEN UNITS OF GEAR. No
set gill net may be set or operated within
600 feet of another set gill net, except that
this provision does not apply in the Chinitna
Bay subdistrict.
Alaska Statute 16.05.722 provides, in relevant part:
Strict liability commercial fishing
penalties. (a) A person who without any
culpable mental state violates AS 16.05.440 -
16.05.690, or a regulation of the Board of
Fisheries or the department governing
commercial fishing, is guilty of a violation
. . . .
At trial, Clucas testified that he arrived in
Squarehead Cove on May 1 and set his gear on May 1 and 2, and
that Kroll set his gear on May 5. On May 6, Clucas asked Kroll
to move his gear because it was too close to Clucas'. Clucas
felt he had not been in violation of 5 AAC 27.435, because when
he set his gear, there was no other net within 600 feet.
The prosecutor argued that Clucas' defense of "first in
time, first in right" was irrelevant because 5 AAC 27.435 is a
strict liability offense.
The trial court found Clucas guilty, concluding that,
since Clucas was charged with a strict liability offense, he was
not entitled to defend on the basis that his gear was set first.
The court stated that the "first in time, first in right" defense
might have been applicable if the case had been charged as a
misdemeanor, and might even have been applicable to the strict
liability offense if the officers had not warned Clucas to move
his nets. Under the facts of this case, however, the court
ruled:
[I]t doesn't make any difference whether you
got there first or the other person got there
first, because you were specifically warned,
"Move your net or we'll cite you." And you
elected at that point not to move your net,
knowing full well that you were going to be
cited. Under that particular set of facts, I
guess I don't have any choice.
Two questions are raised on appeal: (1) is "first in
time, first in right" a defense to criminal charges for violating
the minimum distance between units of fishing gear?; and (2) if
so, is the defense available when the offense is prosecuted as a
strict liability violation?
The rule that the fisher first on a site has a right to
fish that site to the exclusion of others has long been
recognized in Alaska civil cases. See, e.g., Snug Harbor Packing
Co. v. Schmidt, 394 P.2d 397, 399 (Alaska 1964); Snug Harbor
Packing Co. v. Miller, 123 F. Supp. 150, 152 (D. Alaska 1954);
Lewis v. Libby, McNeil & Libby, 113 F. Supp. 272, 274 (D. Alaska
1953); General Fish Co. v. Markley, 105 F. Supp. 968, 972 (D.
Alaska 1952); Lind v. Markley, 105 F. Supp. 50, 53 (D. Alaska
1952); Fisher v. Everett, 66 F. Supp. 540, 548 (D. Alaska 1945).
The rule was reiterated by the Alaska Supreme Court as recently
as 1988. See CWC Fisheries, Inc. v. Bunker, 755 P.2d 115, 121
n.16 (Alaska 1988).
The sole Alaska criminal case dealing with the "first
in time, first in right" rule is Canoe Pass Packing Co. v. United
States, 270 F. 533 (9th Cir. 1921). The case is not directly on
point here, but it strongly suggests that being first at a
fishing cite is a defense to charges such as those brought
against Clucas. The Canoe Pass Packing Company was convicted of
four counts of fishing with a set net in Miles Lake, Alaska,
within 600 feet of another net. This was in violation of an
order of the Secretary of Commerce providing in part, "The
lateral distance interval between all nets in Miles Lake shall be
not less than 600 feet." Id. at 534.
The court rejected Canoe Pass' argument that it had
taken possession of its fishing site prior to the opening of the
fishing season by driving stakes and posting notices at the site.
The court stated, "[H]e who after [the start of the fishing
season] placed in the water a set net within the prohibited
distance from another set net which was lawfully there was guilty
of a violation of the law." Id. at 536. The court did not
decide whether a person who was first at a site could be
convicted, because there was sufficient evidence to support a
finding that the company had set its nets either after or
simultaneously with someone else. In commenting
on the sufficiency of the evidence, the Canoe Pass court said
about Count 3, "When the defendants and the Abercrombie Company
simultaneously placed nets 25 feet apart, both nets were placed
in violation of the law, and thereafter, when the defendants,
having lost their net, placed another within the prohibited
distance of the Abercrombie net, they committed the offense which
was charged." Id. at 537. The court remarked about the other
counts:
It is contended that there was no
evidence sufficient to convict under Counts
1, 2, and 4. As to Count 1, there was
testimony that, at the time when the
defendant's net was set out, another net had
been set out by the Abercrombie Packing
Company, a distance of 50 feet therefrom. As
to the second count, there was testimony that
the Abercrombie Company set out a net at
about 8:30 o'clock of June 5, and about half
an hour later, the defendants put out a set
net 200 feet therefrom. There was conflict
in the testimony as to which of these nets
was first set out, but the jury found the
facts adversely to the defendants. As to
Count 4, there was testimony that on June 5,
the defendants set out a net between two nets
of the Abercrombie Company, each about 400
feet away from the defendant's net, and that
the Abercrombie nets were set out about 10
minutes before that of the defendant's.
Id. While not directly addressing the issue, the court's
language suggests that if Canoe Pass' nets had been set prior to
those of the Abercrombie Company, the evidence would not have
been sufficient to support the convictions.
Several of the civil "first in time" cases also support
this conclusion. Typical of these cases is Snug Harbor v.
Schmidt, 394 P.2d 397 (Alaska 1964), in which the Alaska Supreme
Court upheld an award of compensatory damages to Schmidt.
Schmidt had been fishing for salmon with a set net on Kalifonski
Beach when the Snug Harbor Company installed a fish trap 550 feet
from his net. A fisheries regulation in effect at the time
provided:
Minimum Distance Between Units of Gear. The
distance by most direct water measurement
from any part of one gill net or seine to any
part of another gill net, seine, or trap
shall not be less than 600 feet.
Id. at 398 n.1. Both Schmidt and a Snug Harbor representative
were arrested and prohibited from further fishing on the site.
Schmidt brought an action for damages against Snug
Harbor for losses arising out of his arrest and the confiscation
of his gear, and for being prevented from fishing during the
remainder of the season. The supreme court rejected Snug
Harbor's argument that Schmidt's claim was barred because both
parties had been fishing in violation of the 600-foot regulation:
Being first in time, appellee [Schmidt] had
the right to fish the site in controversy to
the exclusion of appellant's [Snug Harbor's]
fish trap so long as he continued to occupy
the site and operate his gear. Appellee was
exercising that right and fishing legally
when appellant unlawfully trespassed upon the
site and commenced the operation of its trap.
Appellee continued to fish, despite
appellant's trespass, thus insisting on
exercising what was his legal right. If
appellee's fishing then became unlawful, it
was solely because of appellant's unwarranted
action in setting and operating its trap
within 600 feet of appellee's net.
Appellant's unjustifiable interference with
appellee's fishing rights was the direct
cause of the injury suffered by appellee when
he was arrested and his gear confiscated and
when he was prevented from taking fish during
the remainder of the season. In these circum-
stances the rule that a court will refuse to
aid a party whose claim is based upon his own
illegal acts has no application. That rule
may not be used as a defense by one, like
appellant who was directly responsible for
appellee's acts becoming illegal -- if indeed
they were ever illegal at all. What
appellant is attempting to do is take
advantage of its own wrongful act to prevent
appellee from recovering compensation for his
injuries. This we shall not permit.
Compensatory damages were properly awarded.
Id. at 399. While Schmidt is not a criminal case, it appears to
indicate that the supreme court would not have looked favorably
upon Schmidt's criminal conviction had the conviction been
appealed.
Of a similar persuasion is Fisher v. Everett, 66
F.Supp. 540 (D. Alaska 1945). In that case each party had set
three nets, all too close to each other. Following the "first in
time, first in right" rule, the court granted injunctive relief
to both parties, stating:
For the 1945 fishing season the ruling is:
(1) that the plaintiff had paramount right to
the site of his No. 1 net; (2) that the
defendants had paramount right to the sites
of their Nos. 2 and 3 nets; (3) that the
plaintiff's Nos. 2 and 3 nets were unlawfully
set and fished; and (4) that the defendants'
No. 1 net was unlawfully set and fished.
Id. at 550.
These decisions establish that the "first in time,
first in right" defense has consistently been applied in Alaska
civil cases. Although the issue has never been squarely
addressed in the criminal context, the courts of Alaska have long
assumed that the defense also applies to criminal charges of
violating minimum distance fishing regulations. We conclude that
the defense applies in criminal cases.
We turn next to the question of whether the defense
should apply to strict liability violations under AS 16.05.722.
The state argues that all defenses should generally be
inapplicable in strict liability cases. This issue is one of
first impression in Alaska. The question has arisen in other
jurisdictions in the context of strict liability traffic
offenses. We believe the better-reasoned cases are those that
accept defenses in strict liability cases when the defenses are
unrelated to culpable mental state.
Alaska Statute 16.05.722 authorizes the prosecution of
persons who violate Alaska's Fish and Game statutes or fisheries
regulations "without any culpable mental state." While the
statute plainly establishes strict liability by eliminating the
requirement of culpable mental state, it does not purport to
establish absolute liability by eliminating other defenses that
are unrelated to culpable mental state.
The distinction between "strict" and "absolute"
liability has been recognized by courts in other jurisdictions.
In State v. Brown, 318 N.W.2d 370 (Wis. 1982), the court ruled
that in a prosecution for the strict liability offense of
speeding, "the actor may claim the defense of legal justification
if the conduct of a law enforcement officer causes the actor
reasonably to believe that violating the law is the only means of
preventing bodily harm to the actor or another and causes the
actor to violate the law." Id. at 376. Brown claimed that he
was speeding to avoid erratic and threatening driving of an
officer in an unmarked patrol car. The court rejected the
state's argument that speeding was "not only a strict liability
offense in the sense that the statute eliminates proof of
defendant's state of mind but also creates an absolute liability
offense in the sense that every violation of the literal terms of
the statutes renders the offender guilty without exception." Id.
at 375. The court held:
We conclude that recognizing a defense of
legal justification does not necessarily
conflict with the concept that violation of a
traffic law is a strict liability offense.
The basic concept of strict liability is that
culpability is not an element of the offense
and that the state is relieved of the
burdensome task of proving the offender's
culpable state of mind. When the defendant
in the case at bar claims legal
justification, he is not seeking to disprove
a statutorily required state of mind.
Instead he is claiming that even though he
knowingly violated the law, his violation was
privileged under the circumstances.
Id.
The Supreme Court of South Dakota also distinguishes
between strict liability and absolute liability offenses. In
State v. Willers, 64 N.W.2d 810 (S.D. 1954), the court held that
a person charged with the strict liability offense of permitting
or causing a motor truck to be operated on a public highway
without an adequate horn had a defense of excuse in "conditions
in which the person involved could not reasonably be expected to
know that he was omitting or committing an act contrary to the
statute or . . . be expected to act otherwise." Id. at 811.
Although the court recognized that it was not necessary for the
state to prove specific criminal intent or guilty knowledge it
held, "[t]his does not mean however that the statute is absolute
in the sense that every violation of its express terms renders
one guilty under the law." Id. The court recognized an
affirmative defense which put the burden of proof on the
defendant.
In contrast to the approach taken by the Wisconsin and
South Dakota courts, the Kansas Supreme Court has ruled that a
defense of legal excuse does not apply to strict liability
offenses. State v. Merrifield, 303 P.2d 155 (Kan. 1956).
Merrifield was charged with the strict liability offense of
driving while his license was revoked. He claimed that driving
from his home to the county jail was excused, because the sheriff
had told him to come to the jail to talk. The court rejected
this argument in broad terms:
It is clear that the statute makes it
unlawful to drive a vehicle on the highways
when the license to so drive has been
suspended. The legislature made no
exceptions, and the question of intent is not
involved, and the motive or the circumstances
under which the driving took place are
immaterial. The legislature may forbid the
doing of an act and make its commission
criminal without regard to the intent or
knowledge of the doer, and where the
legislative intention appears, it is
incumbent upon the court to give it effect,
although the intent of the doer may have been
innocent. The doing of an inhibited act
constitutes the crime, and the moral
turpitude or purity of motive by which it is
prompted, and knowledge or ignorance of its
criminal character, are immaterial
circumstances on the question of guilt.
Id. at 157. The Merrifield court's failure to distinguish
between intent and motive in strict liability cases is contrary
to the Wisconsin court's recognition in Brown that a defendant
who claims legal justification is not seeking to disprove a
"state of mind" or culpable mental state but rather is claiming
that the alleged violation should be excused regardless of the
culpable mental state.
The Merrifield court's failure to recognize this
distinction is particularly significant in light of the wording
of Alaska's strict liability statute. Alaska Statute 16.05.722
establishes strict liability for those who violate fisheries
statutes and regulations "without any culpable mental state,"
that is, without the element of intent, knowledge, recklessness,
or negligence. The wording of the provision affects only
defenses based on lack of culpable mental state. Culpable mental
state, however, is not implicated by the "first in time, first in
right" defense. There is no question that Clucas acted
intentionally by continuing to fish, even though his nets were
less than 600 feet from Kroll's nets. It is not Clucas' intent,
but his priority in time that establishes his defense.
Professor Paul M. Robinson provides a helpful
distinction in his treatise, Criminal Law Defenses 23(a)
(1984). Robinson distinguishes between defenses based on the
prosecution's inability to establish the elements of an offense
and defenses that excuse or justify conduct that would otherwise
be criminal. As to the latter category, excuse or justification
defenses, Robinson observes:
[They] are real defenses in the sense that
they do more than simply negate an element of
an offense. They apply even where all
elements of the offense are satisfied. They
are distinguishable from general defenses
(like self-defense or insanity), however,
because they introduce criminalization
decisions similar to those used in defining
offenses, rather than give effect to general
principles of exculpation.
Id. at 77.
As Robinson points out, the distinction between these
two types of defenses is particularly significant in strict
liability cases: "[A] defense that operates independently of its
ability to negate a culpability element . . . will provide a
defense even if no culpability element is required by the offense
definition." Id. at 107.
The defense of "first in time, first in right" is
unrelated to the state's ability to prove the elements of an
offense and is thus a defense involving excuse or justification.
For this reason, statutory changes in or outright elimination of
culpable mental states for a given offense would have no direct
bearing on the defense. Clucas does not dispute that the state
proved all elements of his violation: that he operated a set
gill net within 600 feet of another set gill net. Nor does he
argue that his conduct was unintentional. Rather, he argues that
he had a good reason for doing what he did -- a reason that the
law accepts as a justification for his conduct.
Robinson perceives a single principle behind all
defenses involving excuse or justification of conduct that would
otherwise be criminal: "[W]hile the actor has apparently
satisfied all elements of the offense charged, he has not in fact
caused the harm or evil sought to be prevented by the statute."
Id. at 77. The harm sought to be prevented by minimum distance
regulations such as the one involved here is the depletion of
Alaska's fishery resources. This harm is caused not by the first
person who begins fishing, but by subsequent arrivals who fish
within 600 feet of the person already at the site.
One other potential harm deserves mention. The state
has a crucial interest in assuring that its regulations can be
effectively enforced. This interest raises legitimate concerns
in cases such as Clucas', because, as a realistic matter, an
officer arriving at an area where numerous persons are fishing
within 600 feet of each other will seldom if ever be capable of
distinguishing those who came first from those who subsequently
encroached. As a practical matter, enforcement would be
virtually impossible if the officer were precluded from taking
any action without determining who came to the site first and who
encroached later.
This concern, though certainly valid, is fully answered
by the manner in which the "first in time, first in right"
defense operates. As with other defenses involving excuse or
justification,1 the "first in time, first in right" defense must,
in our view, operate as an affirmative defense -- a defense that
the accused bears the burden of raising and of establishing by a
preponderance of the evidence. See AS 11.81.900(b)(1). Thus,
officers who encounter two or more persons fishing in violation
of minimum distance regulations, but are unable to determine with
reasonable certainty who had priority, will be fully justified in
taking appropriate action against all potential violators. All
persons ordered to move their nets would be obligated to do so,
and those cited could escape sanctions only if they managed to
make an affirmative showing, to the satisfaction of the court,
that they were first in time.
In conclusion, we do not read AS 16.05.722 to establish
absolute liability; the statute simply eliminates culpable mental
state as an element of specified fish and game violations.
Because the "first in time, first in right" defense does not
implicate the culpable mental state involved in a case,
prosecution of a fish and game case under the strict liability
statute does not preclude this defense from being raised. In the
present case, we conclude that the trial court erred in declining
to consider whether the defense of "first in time, first in
right" was established.
The judgment is REVERSED.
_______________________________
*Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1. See, e.g., AS 11.81.320 (necessity); AS 11.81.440
(duress); AS 11.81.450 (entrapment).
