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State v. Kalve (9/29/00) ap-1690
State v. Kalve (9/29/00) ap-1690
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-7394
Appellant, ) Trial Court No. 3SW-98-253 CR
)
v. )
) O P I N I O N
HAROLD KALVE, )
)
Appellee. ) [No. 1690 - September 29, 2000]
)
Appeal from the District Court, Third Judicial
District, Seward, George Peck, Magistrate.
Appearances: Deborah L. Greenberg and Lance
Nelson, Assistant Attorneys General, Anchorage, and Bruce Botelho,
Attorney General, Juneau, for Appellant. James T. Brennan,
Hedland, Brennan, Heideman & Cooke, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Harold Kalve is an Alaska commercial fisherman. He holds
an individual fish quota (IFQ) permit that was issued under a
federal IFQ management program for sablefish pursuant to the
Magnuson-Stevens Fishery Conservation Act (the Magnuson Act). [Fn.
1] In accordance with federal regulations implementing the IFQ
management program, Kalve's individual annual quota limit was set
by the amount of sablefish that he caught from the "IFQ regulatory
area," which by definition included federal waters and certain
state waters. [Fn. 2]
In April 1998, the State of Alaska, by emergency
regulation, closed its waters to sablefish fishing. Although Kalve
was aware that state waters had been closed to sablefish fishing,
he went fishing in state waters on June 23, 1998, and landed 120
pounds of sablefish. Kalve was issued a citation for illegal
retention of sablefish taken from closed state waters. Kalve moved
to dismiss the charges against him. The district court granted
Kalve's motion after concluding that the "paramountcy doctrine"
established federal supremacy in state waters. The State now
appeals. Because we conclude that the paramountcy doctrine is
inapplicable to this case and that the State's emergency regulation
was not preempted by federal law, we reverse.
Does the Paramountcy Doctrine Apply?
The paramountcy doctrine is essentially derived from four
U.S. Supreme Court cases, [Fn. 3] where "the federal government and
various coastal states disputed ownership and control of the
territorial sea and the adjacent portion of the [outer continental
shelf]." [Fn. 4] These cases established that the federal
government has paramount rights in lands and natural resources in
the offshore seabed as an incident of national sovereignty. The
district court relied on these cases, and on the decision in Native
Village of Eyak v. Trawler Diane Marie, Inc., [Fn. 5] in dismissing
the State's charges against Kalve.
But although the federal government might lawfully
exercise sole authority over the offshore seabed, Congress has
chosen to share that authority. In 1953, Congress passed the
Submerged Lands Act. [Fn. 6] This legislation gave coastal states
control over the submerged lands beneath the three-mile zone of
their territorial waters, and the authority to regulate the natural
resources within those waters. [Fn. 7] Thus, Kalve's case raises
no issue of federal paramountcy.
Kalve concedes this point. However, he now raises a
different argument based on the supremacy clause that the district
court did not rely on - the provision of the federal constitution
declaring that when federal law and state law are in conflict,
federal law shall govern. [Fn. 8] In particular, Kalve argues that
the State's emergency regulation closing the sablefish season is in
direct conflict with certain federal sablefish regulations enacted
pursuant to the Magnuson Act.
(Although Kalve raised this argument in the district
court, the district court did not rely on this theory when it
dismissed the charge against Kalve. Nevertheless, because Kalve is
the appellee, he may argue for affirmance of the district court's
decision on any legal theory revealed by the existing record. [Fn.
9])
Is the State's Sablefish Regulation Preempted
by Federal Law?
Federal law can preempt state law in three ways:
First, Congress may expressly declare that
state law is preempted. Second, state law is preempted if Congress
intends the federal government to occupy a field exclusively.
Third, federal law preempts state law if the two actually
conflict."[ [Fn. 10]]
Generally, federal regulations should not preempt state regulations
absent "persuasive reasons." [Fn. 11] As the Alaska Supreme Court
has recognized:
When considering preemption, "[courts] start
with the assumption that the historic police powers of the States
were not to be superseded by the Federal Act unless that was the
clear and manifest purpose of Congress."[ [Fn. 12]]
With these principles in mind, we next determine whether
any of the above three grounds for preemption exist in Kalve's
case. Kalve does not claim that he can satisfy the first prong of
the above test - that the Magnuson Act expressly preempts state
regulation of a fishery within its boundaries. Indeed, the
Magnuson Act does just the opposite - it expressly recognizes the
State's authority over its territorial waters:
Except as provided in subsection (b) of this
section, nothing in this chapter shall be construed as extending or
diminishing the jurisdiction or authority of any State within its
boundaries.[ [Fn. 13]]
Kalve also concedes that the second prong - that Congress intended
the federal government to occupy the field exclusively - does not
apply to his case. We agree that Congress's express recognition of
the State's jurisdiction over its territorial waters demonstrates
that Congress did not intend to occupy the fisheries field
exclusively.
Kalve relies on the third prong of the test in support
of his argument that we should affirm the district court's
dismissal of the charges against him. Specifically, Kalve argues
that the State's sablefish regulation is preempted by federal law
because it directly conflicts with the federal regulations
implementing the federal IFQ sablefish program. In support of his
argument, Kalve relies on the federal definition of IFQ regulatory
area:
IFQ regulatory area means: . . . (2) with
respect to IFQ sablefish, any of the three regulatory areas in the
[Gulf of Alaska] . . . and all waters of the State of Alaska
between the shore and the inshore boundary of such regulatory areas
and sub-areas, except waters of Prince William Sound and areas in
which sablefish fishing is managed under a State of Alaska limited
entry program.[ [Fn. 14]]
Kalve also relies on two other federal regulations. The first
authorizes an IFQ permit holder to harvest IFQ sablefish from a
specified IFQ regulatory area at any time during an open fishing
season. [Fn. 15] The second provides that fishing for sablefish in
any IFQ regulatory area may be conducted in any fishing year during
the period specified by the Regional Administrator of the National
Marine Fisheries Service. [Fn. 16]
The parties agree that actual conflict between state and
federal law arises when compliance with both federal and state law
is physically impossible or where state law "stands as an obstacle
to the accomplishment and execution of the full purposes and
objectives of federal law." [Fn. 17] We now examine whether there
is actual conflict between the state and federal regulatory
schemes.
Kalve argues that the State's closure of the sablefish
fishery stood as an obstacle to the accomplishment and purpose of
the federal IFQ management program and made it physically
impossible for him to comply with the federal regulations that
authorized him (as an IFQ holder) to fish for sablefish within the
IFQ regulatory area - a 200-mile zone that included the three-mile
zone of state waters. But the federal regulations did not require
Kalve to fish in state waters; rather, those regulations authorized
him to fish there. Thus, the true question is the intended scope
of that federally granted authority. Did the United States
Department of Commerce intend to authorize IFQ holders to harvest
sablefish in these waters, despite any contrary state law? Or did
the department intend to authorize IFQ holders to fish for
sablefish so long as their fishing did not conflict with applicable
state law?
We conclude that the federal regulations are not intended
to supplant applicable state regulations. We reach this conclusion
based on another section of the Magnuson Act regulations, entitled
"Relation to Other Laws." One provision of that section declares
that "conservation and management of groundfish in waters of the
territorial sea ... of the State of Alaska" are governed by 5 AAC
28 and by Title 16 of the Alaska Statutes. [Fn. 18] In other
words, the federal law is intended to be a concurrent regulation of
the sablefish fishery in Alaska waters, not an exercise of
exclusive control. Kalve was obligated to conform his conduct to
both the federal and the state sablefish regulations.
The judgment of the district court is REVERSED; the
charge filed against Kalve is reinstated.
FOOTNOTES
Footnote 1:
16 U.S.C. sec.sec. 1801-1883 (1994 & West Supp. 2000).
Footnote 2:
See 50 C.F.R. sec.sec. 679.2, 679.4(d)(4)(i).
Footnote 3:
See United States v. Maine, 420 U.S. 515 (1975); United States
v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339 U.S.
707 (1950); United States v. California, 332 U.S. 19 (1947).
Footnote 4:
Native Village of Eyak v. Trawler Diane Marie, Inc., 154 F.3d
1090, 1092 (9th Cir. 1998), cert. denied, 527 U.S. 1003 (1999).
Footnote 5:
Id.
Footnote 6:
43 U.S.C. sec. 1301 et seq.
Footnote 7:
See 43 U.S.C. sec. 1311(a).
Footnote 8:
See U. S. Const. art. VI: "This Constitution, and the laws of
the United States which shall be made in pursuance thereof ...
shall be the supreme law of the land; and the judges in every state
shall be bound thereby, anything in the Constitution or laws of any
state to the contrary notwithstanding."
Footnote 9:
See International Investors v. Business Park Fund, 991 P.2d
219, 226 (Alaska 1999).
Footnote 10:
Totemoff v. State, 905 P.2d 954, 958 (Alaska 1995).
Footnote 11:
Webster v. Bechtel, Inc., 621 P.2d 890, 898 (Alaska 1980)
(quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S.
132, 142 (1963)).
Footnote 12:
Totemoff, 905 P.2d at 958 (quoting Wisconsin Pub. Intervenor
v. Mortier, 501 U.S. 597, 605 (1991)).
Footnote 13:
16 U.S.C. sec. 1856(a).
Footnote 14:
50 C.F.R. sec. 679.2.
Footnote 15:
See 50 C.F.R. sec. 679.4(d)(4)(i).
Footnote 16:
See 50 C.F.R. sec. 679.23(g)(1).
Footnote 17:
Quinn v. Alaska State Employees Ass'n, 944 P.2d 468, 471
(Alaska 1997).
Footnote 18:
50 C.F.R. sec. 679.3(b). Federal law generally prohibits IFQ
permit holders from discarding the sablefish they catch before they
have satisfied their quota. See 50 C.F.R. sec. 679.7(f)(11). But
the regulation suspends this prohibition "in waters within the
State of Alaska [when] discard of sablefish is required under [the]
laws of the State of Alaska." Id. 679.7(f)(11)(ii).
