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State v. Estrada (12/27/2013) ap-2408

State v. Estrada (12/27/2013) ap-2408

                                                 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-10893  

                                  Appellant,                  Trial Court Nos. 1AG-09-030 CR,  

                                                              1AG-09-31 CR, & 1AG-09-33 CR  

                         v.  



ROCKY L. ESTRADA SR.,                                                     O P I N I O N 

STANLEY D. JOHNSON,  and  

ALBERT M. KOOKESH SR.,  

                                                              No. 2408  -  December 27, 2013  

                                  Appellees.  



                                                        

                 Appeal from the District Court, First Judicial District, Angoon,  

                 David V. George, Judge.  



                 Appearances:    Lance  B.  Nelson,  Senior  Assistant  Attorney  

                 General,  Anchorage,  and  John  J.  Burns,  Attorney  General  

                 (opening  brief)  and  Michael  C.  Geraghty,  Attorney  General  

                 (reply brief and supplemental brief), Juneau, for the Appellant.  

                 Tony Strong, Douglas, for the Appellees.   



                 Before:  Mannheimer, Chief Judge, Allard, Judge, and Coats,  

                                 * 

                 Senior Judge  .  



                 Judge MANNHEIMER.  



         *   Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  11   of  the  Alaska  



Constitution and Administrative Rule 23(a).  


----------------------- Page 2-----------------------

                    The Alaska Board of Fisheries often decides to prohibit fishing or restrict  

                                                                   



certain fisheries on a general basis - for example, by establishing open and closed  

                               



seasons, or by defining the geographic areas where fish may be taken, or by setting catch  



limits, or by restricting the gear that people can use when fishing.  To achieve these  

                                                  



purposes, the Board has enacted two types of administrative regulations.  



                    In the first type of administrative regulation, the Board of Fisheries directly  

                                                                                                     



specifies the applicable prohibitions or restrictions in the regulation itself.  But in the  

                                                                                                                        



second type of administrative regulation, the Board simply declares that all people who  

                                                                    



wish  to  participate  in  a  particular  fishery  must  obtain  the  proper  permit  from  the  

              



Department of Fish and Game, and then the regulation authorizes the Department to  



attach  various  conditions  to  these  permits  -  conditions  such  as  catch  limits,  gear  



restrictions, time or date limitations, and the like.  Thus, the permit specifies many of the  

                           



limitations  that  apply  to  that  fishery  -  and  these  limitations  are  formulated  by  the  



Department of Fish and Game, rather than the Board of Fisheries.  



                    In the case now before us, the district court ruled that this second type of  



administrative regulation is unlawful.  The court concluded that, under Alaska law, all  

                                                                                                                      



such restrictions and prohibitions on fishing must be enacted by the Board of Fisheries,  

                                                        



and   these   restrictions   must   be   expressly   codified   in   administrative   regulations  



promulgated by the Board under the provisions of Alaska's Administrative Procedure  



Act (AS 44.62).  Accordingly, the district court ruled that it was unlawful for the Board  

                                                                                         



of Fisheries to enact regulations that purport to delegate this decision-making power to  



the  Department  of  Fish  and  Game,  or  that  allow  the  Department  to  impose  these  



restrictions as conditions to fishing permits.   



                    For the reasons explained in this opinion, we disagree with the district  



court.  We conclude that Alaska law does allow the Board of Fisheries to enact this  

                                                   



second type of regulation - i.e., regulations that allow the Department of Fish and Game  

                                                                                                        



                                                             - 2 -                                                       2408
  


----------------------- Page 3-----------------------

to establish restrictions on fishing by making these restrictions a condition of fishing   



permits.   



           The legal and factual background of this case  



                 (a)    The  general  legal  authority  of  the  Board  of  Fisheries,  and  the  

                Board's enactment of the regulation at issue in this case, 5 AAC 01.015         



                      The Alaska Legislature has created the Board of Fisheries to conserve and  

develop the fishery resources of this state. 1  

                                                                           The Board's mission is to promote and  



protect the different types of fishing (subsistence, commercial, sport, and personal use),  



and the various types and species of fish.  



                      To enable the Board of Fisheries to carry out this mission, the Legislature  

                                                                                                 



has given the Board the authority to adopt "[any] regulations it considers advisable ... for  

                                                                                                   

the conservation, development, and utilization of fisheries". 2  

                                                                                                         More specifically, the  



                                                                                                                

Legislature has given the Board the authority to control or supervise all facets of fishing  



                                                                                                      3 

                                                          

- such things as establishing open and closed fishing seasons;   defining the geographic 



                                                    4 

areas where fish may be taken;   setting quotas, bag limits, harvest levels, and sex and  



           1    AS 16.05.221(a).  



           2    AS 16.05.251(a)(12).  



           3    AS 16.05.251(a)(2).  



           4    AS 16.05.251(a)(2).  



                                                                   - 3 -                                                              2408
  


----------------------- Page 4-----------------------

                                                           5  

size limitations on the taking of fish;                      and defining the means and the methods by which   



                                                                                             6  

people are allowed to pursue, capture, and transport fish.     



                      (Pursuant to this authority, the Board of Fisheries has enacted hundreds of  



regulations  found  in  Title  5  of  the  Alaska  Administrative  Code.    Some  of  these  



regulations apply statewide, while many apply to specified geographic areas.)  



                      As we explained in the introduction to this opinion, the Board of Fisheries  

                                                                                 



has enacted two types of regulations to govern and control the fisheries within Alaska.  

                                          



Many of the Board's regulations directly codify - i.e., directly specify - restrictions  

such as seasons, harvest limits, and gear requirements for a particular fishery. 7  

                                                                                                                                But the  



                                               

Board has also promulgated regulations that take another approach.  Regulations of this  



                                

second type do not directly specify all the rules that govern a particular fishery.  Rather,  



                                                                                                                 

these regulations require people who wish to participate in the fishery to obtain a permit  



                                                                     

from the Department of Fish and Game - and the regulations authorize the Department  



                                                                                    

to attach various conditions to these permits.  Under this system of regulation, the permit  



                                                                                               8  

specifies many of the limitations that apply to that fishery.    



           5    AS 16.05.251(a)(3).  



           6    AS 16.05.251(a)(4).  



           7    See, e.g., 5 AAC 01.010 (a statewide provision specifying the types of gear that  



may be used for subsistence fishing, and listing certain prohibited methods of fishing); 5  

                                                           

AAC 01.760(b) - (c) (specifying the bag and possession limits for the subsistence sockeye  

                                           

salmon fishery in Redoubt Bay and Lake); 5 AAC 71.010 (specifying bag, possession, and  

size limits for sport fishing in the Kuskokwim - Goodnews area).  



           8    See, e.g., 5 AAC 01.015(b) (a statewide provision listing various conditions that  



the  Department  may  attach  to  subsistence  permits  for  the  taking  of  salmon);  5  AAC  

01.230(c) (authorizing the Department to attach conditions to a subsistence fishing permit   

in the Yukon area if the permit is for fish other than salmon, but added restrictive measures           

are needed for the protection of salmon); 5 AAC 01.730(e) (listing various conditions that   

the Department may attach to subsistence fishing permits for the taking of salmon in the   



                                                                  - 4 -                                                             2408
  


----------------------- Page 5-----------------------

                    The regulation at issue in this case - 5 AAC 01.015 - is a statewide   



regulation of this second type.   



                    Subsection  (a)  of  5  AAC  01.015  declares  that  anyone  who  engages  in  



subsistence fishing for salmon must have the proper subsistence permit (unless another  



provision of law specifically exempts that geographic area from the permit requirement).  



Subsection  (b)  of  the  regulation  then  lists  the  conditions  or  restrictions  that  the  



Department can attach to these subsistence permits (again, unless another regulation  

                                        



specifically provides otherwise).   



                    Here  is  the  opening  language  of  5  AAC  01.015(b),  with  the  pertinent  



provisions italicized:  



                      

                              (b) If a subsistence fishing permit is required by this  

                    chapter,   the   following   permit   conditions   apply   unless  

                                         

                    otherwise specified by the subsistence fishing regulations in  

                                                                              

                    this chapter:   



                                        (1)  the  numbers  of  fish  taken  for  subsistence  

                              use may not exceed the limits set out in the permit;  



                                        (2)   permits   must   be   obtained   ...   prior   to  

                              subsistence fishing;  



                                        (3) permits must be retained in the possession of  

                                                                     

                              the permittee and be readily available for inspection  

                              while taking fish; ...  



Southeastern Alaska area); 5 AAC 28.220(c) (listing various conditions that the Department  

may attach to fishing permits for groundfish in the Prince William Sound area); 5 AAC   

28.379(a)  (listing   various  conditions  that  the  Department  may  attach  to  permits  for  

miscellaneous  groundfish   in  the  Cook  Inlet  area);  5  AAC  38.110(a)  (listing  the  various  

conditions  that  the  Department  may  attach  to  permits  for  clam  fishing   in  Southeastern  

Alaska).   



                                                             - 5 -                                                       2408
  


----------------------- Page 6-----------------------

                                                  (4)  the permit may designate the species and   

                                      numbers  of  fish  to  be  harvested,  time  and  area  of  

                                     fishing,  the  type  and  amount  of  fishing  gear[,]  and  

                                      other        conditions             necessary              for      management                  or  

                                      conservation purposes [.]  



                   (b)  The Department of Fish and Game's efforts to preserve the viability       

                   of the Kanalku sockeye salmon subsistence fishery  



                         In 2001, the Alaska Department of Fish and Game conducted a study of the   



health of the sockeye salmon fishery in   the   Kanalku Lake area near Angoon.  This  



fishery is an important subsistence resource for the residents of Angoon.   



                         The Department's assessment revealed that the escapement of sockeye into  

                                                                                                   



Kanalku Lake had fallen to dangerously low levels - levels that put the fishery at risk  

                                                     



of collapse.  The Department met with members of the community, and it was agreed that  



community  members  would  adopt  voluntary  conservation  measures  to  protect  the  



fishery.    As  part  of  this  agreement,  the  Department  altered  the  conditions  of  its  

                                                   



subsistence permits to increase the authorized catch limits for sockeye salmon in nearby,  

                                                                                                            



less endangered fisheries.  



                         However,  the  Department  continued  to  monitor  the  Kanalku  sockeye  



fishery and, after a few years, the Department determined that the voluntary conservation  

                                                                                     



measures were inadequate to preserve the fishery.  So in 2006, the Department altered  



the  terms  and  conditions  of  its  Kanalku  subsistence  permits  to  reduce  the  annual  



catch limit from 25 salmon to 15 salmon.  (The Department maintained the higher catch  



limits at the less-endangered nearby fisheries.)  



                                                                             - 6 -                                                                        2408
  


----------------------- Page 7-----------------------

               (c) How  the  present  case  arose,  and  the  district  court's  ruling  that  

                                                                                          

               5  AAC  01.015  is  an  invalid  attempt  by  the  Board  of  Fisheries  to  

               circumvent the regulatory process  



                    The present case arose in the summer of 2009.  The three defendants were  

                                                                                                        



holders  of  subsistence  permits  authorizing  them  to  fish  for  sockeye  salmon  in  the  

                                                                                       



Kanalku fishery.  Each of the defendants' permits stated that they could take no more  



than 15 sockeye salmon per year.  



                    A state trooper observed the defendants seining on the beach at Kanalku  



Bay and discovered that the defendants had collectively harvested 148 sockeye salmon.  

                                                           



The defendants were therefore charged with violating 5 AAC 01.015(b) - i.e., violating  

                                                                  



the terms and conditions of their permits.   



                    The defendants asked the district court to dismiss the charges against them  

                                                                             



- arguing that it was illegal for  the  Department of Fish and Game to establish the  



15-fish annual catch limit (or any other catch limit) by attaching terms and conditions to  

                                                  



subsistence permits.  The defendants argued that, under Alaska law, the only lawful way  

                                                                                                    



to  establish  a  catch  limit  was  for  the  Board  of  Fisheries  to  enact  an  administrative  

                                                                                                      



regulation that directly codified the catch limit.   



                    The district court agreed with the defendants.  The court concluded that,  

                                               



under the Alaska statutes, only the Board of Fisheries has the authority to adopt catch  

                                                                                             



limits  -  and  that  those  catch  limits  must  be  codified  in  administrative  regulations  

                             



promulgated by the Board under the Administrative Procedure Act.  



                    The court declared that the Department of Fish and Game had no authority  

                                                                                                               



to establish catch limits through "internal decision" (i.e., through decisions regarding the  



terms or conditions of subsistence fishing permits) - and that the Board of Fisheries  



could  not  lawfully  enact  a  regulation  that  purported  to  confer  this  authority  on  the  



Department.  



                                                            - 7 -                                                       2408
  


----------------------- Page 8-----------------------

                   The district court acknowledged that the Board of Fisheries had complied  

                                                                          



with the Administrative Procedure Act when the Board enacted 5 AAC 01.015 - the  



administrative  regulation  that  requires  people  to  have  a  permit  if  they  engage  in  



subsistence fishing, and that ostensibly gives the Department of Fish and Game the  



authority to set catch limits (and to establish other restrictions on subsistence fishing)  



by specifying those restrictions as terms or conditions of the subsistence permits.  



                   But the district court concluded that, to the extent 5 AAC 01.015 purported  

                                                                                          



to give this authority to the Department of Fish and Game, the regulation was invalid -  

                                                                                         



that it was fatally inconsistent with the legislature's command that catch limits be set by  



the Board of Fisheries, and that these limits be codified in administrative regulations.  



The  court  declared  that  the  Board  of  Fisheries  had  no  power  to  "disregard  [this]  



legislative requirement ... by adopting a regulation  saying [that] it does not have to  

                                                                             



follow the Legislature's directive."  



         Identifying the question presented in this case  



                   Alaska's Administrative Procedure Act, AS 44.62, governs the law-making  



powers of the administrative agencies in the executive branch of government.  Generally  

                                                                              



speaking,  the  Administrative  Procedure  Act  requires  these  agencies  to  enact  an  



administrative regulation (adhering to the procedures specified in Article 4 of the Act,  



AS 44.62.180 - 290) whenever the agency proposes to take any action that effectively  



creates or amends a rule or standard of general application, or that otherwise implements  

                                                                                        



or interprets the law enforced or administered by that agency.  See AS 44.62.640(a)(3).  

                                                



                   But as the district court acknowledged in its written order, the regulation  

                                                                                     



at issue in this case - 5 AAC 01.015 - was undeniably enacted in conformity with the  

                                                                 



procedures specified in the Administrative Procedure Act.  The district court did not  

                                    



                                                           - 8 -                                                     2408
  


----------------------- Page 9-----------------------

strike down this regulation because of any perceived procedural  flaw in its enactment.  

                                                                                                           



Rather, the district court struck down the regulation because it concluded that the Board  

                                      



of Fisheries had no authority to enact any such regulation in the first place - i.e., no  

                                                                          



authority to enact any regulation that delegated decisions about harvest restrictions to the  

                                                                                      



Department of Fish and Game (through the permitting process).  



                    As we have explained, the district court concluded that, under the pertinent  

                                                                                                                  



statutes in AS 16.05, all decisions about harvest restrictions had to be made directly by  

                                                                          



the Board of Fisheries.  Thus, the district court concluded, the Board acted illegally when  

                                    



it promulgated a regulation that delegated these decisions to the Department - and the  

                           



resulting regulation was void.  



                    See  AS  44.62.020,  which  declares  that  a  regulation  adopted  by  an  



administrative agency is not effective unless it is "within the scope of authority conferred  

                                                                      



[by the legislature]."  And see AS 44.62.030, which declares that when an administrative  

                                                                                                  



agency  adopts  a  regulation  that  purports  to  implement  or  interpret  a  statute,  "[the]  



regulation ... is not valid or effective unless [it is] consistent with the statute [it purports  

                                                                                                                   



to implement or interpret]."   



                    In other words:  The present appeal does not require this Court to interpret  



the  Administrative  Procedure  Act.    Rather,  the  question  presented  in  this  appeal  is  



whether the Alaska Legislature (in Title 16 of the Alaska Statutes) has given the Board  



of  Fisheries  the  authority  to  enact  regulations  that  (1)  require  all  participants  in  a  

                                                                                                          



particular fishery to have a permit and that (2) authorize the Department to impose terms  

                                                                 



or conditions on these permits that restrict harvest levels, types of gear, and such -  

                                                                    



thus effectively allowing the Department of Fish and Game to make decisions about  



harvest levels and other harvesting restrictions.  



                                                              - 9 -                                                         2408
  


----------------------- Page 10-----------------------

          Why we conclude that the legislature has authorized the Board of Fisheries  

         to  enact  regulations  like  5  AAC  01.015  -  regulations  that  allow  the  

         Department  of  Fish  and  Game  to  establish  harvest  limits  through  the  

         permitting process  



                   As we explained early in this opinion, AS 16.05.251(a) gives the Board of  



Fisheries the authority to control or supervise all facets of fishing -  such things as  

                                                                                                      



                                                               9  

establishing open and closed fishing seasons;  

                                                                               

                                                                 defining the geographic areas where fish  



                    10 

may be taken;                                                                   

                       setting quotas, bag limits, harvest levels, and sex and size limitations on  

the  taking  of  fish; 11  and  defining  the  means  and  the  methods  by  which  people  are  



                                                                 12  

allowed to pursue, capture, and transport fish.                       



                                                                                                         

                   Moreover, in situations like the one presented in the Kanalku Lake area -  



situations where a fish population is an important subsistence resource, but where the  



                                             

subsistence harvest is too great to maintain a sustained yield from the population - the  



Board is required to enact regulations that (1) prohibit all non-subsistence use of the fish  



                                                                                 

population  and  that (2)  impose  tailored  restrictions  on  the  subsistence  harvest.    See  



AS 16.05.258(b)(4).  



                   These statutes clearly allow (or, in some instances, require) the Board of  



Fisheries to exercise its authority over these matters by enacting regulations.  But the  



question raised in this appeal involves the permissible content of these regulations.  Can  



the  Board  enact  regulations  that  control  fishing,  and  fisheries,  through  a  permitting  



         9    AS 16.05.251(a)(2).  



          10  AS 16.05.251(a)(2).  



          11  AS 16.05.251(a)(3).  



          12  AS 16.05.251(a)(4).  



                                                        - 10 -                                                     2408
  


----------------------- Page 11-----------------------

process - a process that allows the Department of Fish and Game to set harvest limits  



and other harvesting restrictions as conditions of the permit?   



                    As we explained toward the beginning of this opinion, the regulation at  



issue in this case (5 AAC 01.015) is not the only instance where the Board has enacted  

                                                            



this type of regulation. Title 5 of the Alaska Administrative Code contains many fishing  

                                                 



regulations which envision that the primary restrictions on fishing will be contained in  

                                                                                        

the terms and conditions of the applicable fishing permit. 13  

                                                                                          



                    This type of regulation appears to be explicitly authorized by statute, at  



                                              

least for subsistence fisheries.  In AS 16.05.330(c), the Legislature has given the Board  



                                                                                    

of Fisheries the authority to enact regulations providing for the issuance of subsistence  



                                                                       

permits "as needed for authorizing, regulating, and monitoring the subsistence harvest  



of fish".   



                    (This same statute requires the Board to enact regulations of this type -  



i.e., regulations that control a subsistence fishery through permitting - whenever the  

                                           



statutory preference for subsistence fishing requires restriction or prohibition of non- 



subsistence fishing in order to maintain a sustained yield of the fish population.)  



                    The district court (in its written order) and the three defendants (in their  



briefs to this Court) argue that the permitting process authorized by AS 16.05.330(c) was  



not intended to supplant, or even to supplement, the Board of Fisheries' authority to  

       



enact regulations that directly codify harvest limits and other harvesting restrictions for  

                                                                                           



the various subsistence fisheries.  Thus, they argue, the Board has no authority to issue  

                                                                             



regulations that delegate the decision-making in these matters to the Department.   



          13   See,  e.g.,  5  AAC  01.230(c),  5  AAC  01.730(e),  5  AAC  28.220(c),   5  AAC  



28.379(a), 5 AAC 38.110(a), 5 AAC 38.133(a), 5 AAC 38.165, and 5 AAC 77.015(c).  



                                                           - 11 -                                                          2408  


----------------------- Page 12-----------------------

                    But,   at   best,   the   defendants'   arguments   leave   this   issue   no   more  than  



debatable.  And that being the case, there are two legal considerations that counsel us to               



uphold the challenged regulation.   



                    First, the question of whether the Legislature has authorized the Board of  

                                                                                                                     



Fisheries to enact this type of regulation is ultimately a question of legislative intent.  The  

                                                                                                                  



Board of Fisheries obviously has concluded that it does have the authority to enact this  

                                                                                                                



type of regulation, and we are now being asked to review the Board's interpretation of  

                                                                                             



its authorizing statutes.   



                    The Alaska Supreme Court has repeatedly ruled that when an appellate  



court is asked to review an administrative agency's interpretation of a statute, and when  



the administrative agency, in interpreting the statue,  relied on its expertise within its  



field or on fundamental policies within its field, the appellate court should employ a  



deferential standard of review - what the Alaska Supreme Court has called "reasonable  

                                                                                        

basis" review. 14  

                           In such instances, the appellate court should defer to the agency's  



                                                                                                        

interpretation  of  the  statute  if  the  agency's  decision  appears  to  be  a  reasonable  



                                                                                                       

interpretation of the disputed law - even though the statute might be ambiguous and the  



                                                                                                                       

appellate court might have reached a different conclusion if it were writing on a clean  



slate.   



                                                                                       

                    Second, because the question in this case is ultimately one of legislative  



intent,  it  is  instructive  that  the  Board  of  Fisheries  has  been  enacting  this  type  of  



regulation for decades (i.e., regulations that allow the Department of Fish and Game to  

                                                                                                                     



          14   See  Alaska Fish & Wildlife Conservation Fund v. Alaska Board of Fisheries , 289  



P.3d  903,  911-12  n.  31  (Alaska  2012);  Alaska  Exchange  Carriers  Ass'n  v.  Regulatory  

Commission  of  Alaska,  262  P.3d  204,  208-09  (Alaska  2011)  ("When   a  matter  involves  

agency  expertise[,]  we   apply  a  'reasonable  basis'  test,  giving  deference  to  the  agency's  

specialized knowledge and expertise.").  



                                                            - 12 -                                                           2408  


----------------------- Page 13-----------------------

set harvest limits and other harvesting restrictions through the permitting process), and  

                                                                             



the  Legislature  has  never  taken  action  to  prohibit  or  restrict  the  Board's  practice.  



(For instance, the regulation at issue in this case, 5 AAC 01.015, was enacted twenty  

                             



years ago.  See Register 126, part 1, issued May 15, 1993.)  



                    Under Alaska law, administrative regulations are not enacted in secret.  The  

                                                                                                   



Administrative Procedure Act requires that any proposed regulation be disseminated and  

                                                                 



subjected to public comment before the agency takes action.  See AS 44.62.190 - 215.  

                                                                                  



If the agency approves the regulation, the agency must submit the regulation to the  



governor for review.  See AS 44.62.040(c).  If the governor also approves the regulation,  

                                                                                                              



it must then be codified in the Alaska Administrative Code, and the lieutenant governor  

                                                         



must periodically publish a register of all newly enacted regulations.  See AS 44.62.130.  

                                                                                                              



                    In short, the Alaska Legislature has had ample opportunity to learn that the  



Board of Fisheries is enacting regulations of this type.  If the Legislature believed that  



the Board of Fisheries had misinterpreted or overstepped its authority, the Legislature  



could have intervened by amending the pertinent authorizing statutes. The Legislature's  

                                                                                                          



failure to do so indicates that the Legislature does not perceive these regulations to be  

                                                    



ultra vires - that is, beyond the Board's lawful authority.  



                    We accordingly hold that the Board of Fisheries has the authority to enact  

                                                                                              



regulations of this type, and we reverse the district court's decision to the contrary.   



                    The regulation at issue in this case, 5 AAC 01.015, was a valid exercise of  

                                                                                                           



the Board's authority, and therefore the three defendants in this case were required to  

                                                         



adhere to the terms and conditions of their subsistence fishing permits, even though those  



terms and conditions were set by the Department of Fish and Game rather than the Board  



of Fisheries itself.  



                                                             - 13 -                                                        2408
  


----------------------- Page 14-----------------------

         Conclusion  



                 The judgement of the district court is REVERSED, the charges against the        



defendants are reinstated, and this matter is remanded to the district court for further  



proceedings on those charges.   



                                                   - 14 -                                              2408
  

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