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Douglas W. Chaney v State of Alaska (11/13/2020) ap-2684

Douglas W. Chaney v State of Alaska (11/13/2020) ap-2684

                                                                       NOTICE
  

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                      IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



DOUGLAS W. CHANEY,  

                                                                                           Court of Appeals No. A-13120  

                                                Appellant,                              Trial Court No. 1JU-17-00900 CR  



                                    v.  

                                                                                                         O P I N I O N  

STATE OF ALASKA,  



                                                Appellee.                                No. 2684 - November 13, 2020  



                        App                     

                                eal from the District Court, First Judicial District, Juneau,  

                        Kirsten L. Swanson, Judge.  



                        Appearances:   Bruce B. Weyhrauch, Law Office of Bruce B.  

                                                                                                                     

                        Weyhrauch, LLC, Juneau, for the Appellant. Aaron C. Peterson,  

                                                                                                     

                        Assistant  Attorney  General,  Office  of  Special  Prosecutions,  

                                                                                              

                        Anchorage, and Kevin G. Clarkson, Attorney General, Juneau,  

                                                                                                        

                        for the Appellee.  



                        Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                                 

                        Judges.  



                        Judge HARBISON.  



                        Douglas   W.   Chaney   was   convicted   of   fishing   with   an   overlength  



commercial salmon seine vessel in violation of AS 16.05.835 and AS 16.05.920(a).                                                                             



Chaney   appeals,   contending   that   there   was   insufficient   evidence   to   support   his  



conviction.   


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

                                      He also contends that the regulation defining the term "anchor roller,"                                                                                                                  



 5 Alaska Administrative Code (AAC) 39.975(b), is invalid because it is: (1) inconsistent                                                                                                                         



 with AS 16.05.835, the statute establishing the maximum allowable length of a vessel                                                                                                                                           



 participating   in   the   salmon   seine   fishery;   (2)   an   unnecessary   regulation;   and   (3)  



 unconstitutionally vague.                                                   For the reasons explained in                                                           this opinion, we affirm the                                           



judgment of the district court.                                     



                   Statutes and regulations relevant to this appeal                                                                   



                                      Alaska Statute 16.05.835 limits the maximum overall length of a vessel                                                                                                                    



 participating in the salmon seine fishery to fifty-eight feet.                                                                                                               This statute defines the             



 "overall length" of a vessel as "the straight line length between the extremities of the                                                                                                                                                  



                                                                                             1  

                                                                                                                                                                                                                                             

 vessel  excluding anchor rollers                                                        ."       An anchor roller is a device that raises and lowers an  



                                                                                                                                                                                                                                        

 anchor.  Anchor rollers are excluded from a vessel's length measurement because they  



                                                                                                                                                                                                                                        

 must extend beyond the bow far enough to ensure that the anchor does not strike the bow  



                                                                       

 when raised or lowered.  



                                                                                                                                                                                                                             

                                      The  term  "anchor  roller"  is  not  defined  by  statute.                                                                                                   Because  various  



                                                                                                                                                                                                                             

 structures that extend the overall length of a vessel could be labeled as "anchor rollers,"  



                                                                                                                                                                                                                                                      

 leaving the term undefined made it difficult to regulate the overall length of vessels.  



                                                                                                                                                                                                                           

 Accordingly,  in March  2015,  the Board  of Fisheries adopted  a  regulation  defining  



                                             2  

                                                 

 "anchor roller." 



                                                                                                                                                                                                                             

                                      Under this regulation, which took effect on April 15, 2017, an "anchor  



                                                                                                                                                                                                                                        

 roller" is defined as "a device used solely in aid of deploying and retrieving anchor gear  



                                                                                                                                                                                                                               

 and does not provide any additional flotation,  planing  surface,  sea keeping  ability,  



          1        AS 16.05.835(c) (emphasis added).  



          2         5 AAC 39.975(b).  



                                                                                                                    - 2 -                                                                                                              2684
  


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

                                                                                                             3  

buoyancy, deck space, or structural support to the vessel."                                                     The regulation ensures that                  



attachments to fishing vessels are included in a vessel's overall length measurement if                     



the attachment provides, among other things, additional deck space or structural support                                                              



                         4  

                                                                                                                                                          

to the vessel.               This is true even if the attachment also supports the actual anchor roller  



                                                                                                                                          

- i.e. the "device used solely in aid of deploying and retrieving anchor gear."  



                                                                                                                                                                  

                         Devices used to deploy and retrieve anchor gear are also excluded from a  



                                                                                                                                                     

vessel's "overall length" under federal law.  But federal law excludes a much broader  



                                                                                                                                                       

array of structures fromthe definition of "overall length" than does Alaska law.  Federal  



                                                                                                                                                             

regulations exclude from the overall length measurement many types of "fittings and  



                                                                                                       5  

                                                                                                                                                

attachments" that extend beyond the hull of the vessel.                                                    Accordingly, if an attachment  



                                                                                                                                                           

provides  "additional flotation, planing surface, sea keeping ability, buoyancy, deck  



                                                                                                                                                       

space, or structural support," it would be included when measuring the "overall length"  



                                                                                                                                                     

of a vessel under Alaska law but may not be included when measuring the vessel's  



                                        

length under federal law.  



                                                                                                            

             Factual and procedural background of Chaney's case  



                                                                                                                                                     

                         The  evidence  presented  to  the  trial  court  showed  that  when  Chaney  



                                                                                                                                       

purchased his fishing vessel, the F/V Pacific Rose, in 2010, the vessel was fifty-seven  



                                                                                                                                           

and one half feet long when measured under federal regulations.  This measurement  



                                                                                                                                                               

excluded an attachment to the bow of the F/V Pacific Rose that Chaney described as the  



                                                                   

vessel's "anchor roller assembly."  



      3      Id.  



      4      See id.  



      5      See 46 C.F.R.  69.203 (excluding rudders, outboard motor brackets, and other  similar  



fittings and attachments from  the overall length).  



                                                                             -  3 -                                                                         2684
  


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

                    On July 9, 2017, three months after the effective date of the state regulation  

                                                                                                                     



defining "anchor roller," a state trooper advised Chaney that his vessel was overlength  

                                                                                                                    



for the salmon seine fishery and would need to be in compliance before Chaney could  

                                 



continue salmon seining. Because the state regulation had recently changed, the trooper  

                                                                                                                         



did not measure the vessel or cite Chaney for the overlength violation.  

                                                                                             



                    On July 25, troopers measured the F/V Pacific Rose in Chaney's presence  

                                                                                                                       



as it was "laying alongside" a breakwater in harbor.  According to their measurement,  

                                                                     



the vessel's overall length was sixty-two and one-half feet.   The troopers informed  

                                                                                                                      



Chaney of this measurement and again told him it was overlength for the salmon seine  

                                                                                                                            



fishery. Despite this second warning, Chaney was observed on July 31 seine fishing and  

                                                                                                                               



taking salmon with the F/V Pacific Rose.  

                                                       



                    For his conduct on July 31, the State later filed an information charging  

                                                                                                                       



Chaney with fishing with an overlength commercial salmon seine vessel in violation of  

                                                                                                                                 



AS 16.05.835.  Chaney filed a motion to dismiss the charge, which was denied by the  

                                                                                                                                



trial court, and a jury subsequently convicted him of the charged offense.  

                                                                                                    



          There was sufficient evidence to support Chaney's conviction  

                                                                                                         



                    Chaney contends that the evidence presented at his trial was insufficient to  

                                                                                                                                 



establish that the "overall length" of the F/V Pacific Rose exceeded fifty-eight feet, or to  

                                                                                                                                 



prove that he acted with the culpable mental state - i.e., that he knew or should have  

                                                                                                                             



known that the F/V Pacific Rose was longer than fifty-eight feet.  

                                                                                             



                    When a defendant challenges the sufficiency of the evidence to support a  

                                                                                                                                  



criminal  conviction,  an  appellate  court  is  required  to  view  the  evidence,  and  all  

                                                                                                                               



reasonable inferences that can be drawn from that evidence, in the light most favorable  

                                                                                                                      



                                                              - 4 -                                                          2684
  


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

                                                         6  

to upholding the jury's verdict.                            Viewing the evidence in this light, the reviewing court                                    



then asks whether a reasonable juror could find that the State had proved the defendant's                                                  



                                                               7  

guilt beyond              a reasonable doubt.                                                                                                             

                                                                    When  this Court reviews the sufficiency  of the  



                                                                                                                                       

evidence to support a conviction, it does not weigh the credibility of witnesses, as  



                                                                                                        8  

                                                                                                

witness credibility is exclusively a question for the jury. 



                                                                                                                           

             The evidence was sufficient to establish that the vessel was overlength  



                                                                                                                                                       

                         Chaney claims the evidence that the F/V Pacific Rose was longer than fifty- 



                                                                       

eight feet was insufficient because an expert witness testified at trial that the troopers'  



                                                                                                                                                       

measurement, taken while the vessel was still in the water, could have had a six- to nine- 



          

inch variance.  He also contends that the entire assembly attached to the vessel should  



                                                                                                                                              

have been excluded from the measurement because it was an anchor roller.  



                                                                                                                                                     

                         Regarding  any  variance  in  the  vessel's  measurement,  the  jury  heard  



                                                                                                                                                         

testimony that the troopers measured the F/V Pacific Rose 's length at sixty-two and one- 



                                                                                                                                                              

half feet.  Even if the jury accepted the expert's testimony that there could have been a  



                                                                                             

variance, the jury could still reasonably conclude that Chaney's vessel was overlength  



                                                                                                                                                         

- i.e., that it was longer than the maximum permissible length of fifty-eight feet.  



                                                                                                                                                         

                         Regarding the assembly attached to the F/V Pacific Rose, the jury was  



presented with evidence that the vessel's "anchor roller assembly" also provided deck  



                                                                                                                      

space.  In fact, one of the state troopers who measured the F/V Pacific Rose explained  



                                                                                                                                                          

that the tip of the bow of the vessel had been removed and sealed as a flat surface, and  



      6     See Iyapana v. State                 , 284 P.3d 841, 848-49 (Alaska App. 2012) (citing Morrell v.  



State, 216 P.3d 574, 576 (Alaska App. 2009)).  



      7     Id. at 849.  



      8     Morrell , 216 P.3d at 576 (citing Ratlift v. State, 798 P.2d 1288, 1291 (Alaska App.  

                                                                                                                                         

 1990)); Daniels v. State, 767 P.2d 1163, 1167 (Alaska App. 1989).  



                                                                            -  5 -                                                                      2684
  


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

                                                                                                                                                                                                                                                                                                               9  

then the bow had been bolted back on to the vessel.                                                                                                                                                                                                                                                                  The photographic exhibits admitted                                                                                                                                  



 at trial clearly confirm the trooper's testimony and show the tabs attaching the tip of the                                                                                                                                                                                                                                                                                                                                                                                                                               



bow - which included several feet of deck space - to the rest of the vessel.                                                                                                                                                                                                                                                                                                                                                                                                       Based on   



this evidence, the jury could reasonably conclude that under 5 AAC 39.975(c), the                                                                                                                                                                                                                                                                                                                                                                                                                                        



 assembly was not an "anchor roller," and should have been included in the overall length                                                                                                                                                                                                                                                                                                                                                                                                               



measurement.    



                                                                                  It is true that the jury heard testimony that, when measured under federal                                                                                                                                                                                                                                  



regulations, the                                                                               F/V Pacific Rose                                                                                            's length was less than fifty-eight feet.                                                                                                                                                                                                But according   



to the testimony, this difference arose because federal law, unlike Alaska law, excludes                                                                                                                                                                                                                                                                                                                                                                                                



vessel hull attachments such as Chaney's "anchor roller assembly" when the vessel's                                                                                                                                                                                                                                                                                                                                                                                                         



 length is measured. Chaney was charged under Alaska law, and reasonable jurors could                                                                                                                                                                                                                                                                                                                                                                                                                       



 find that the assembly was the type of attachment that was required to be included when                                                                                                                                                                                                                                                                                                                                                                                                                     



 determining the                                                                                 F/V Pacific Rose                                                                                            's overall length.                                        



                                          The evidence was sufficient to prove that Chaney acted with the culpable                                                                                                                                                                                                                                                                                                        

                                         mental state   



                                                                                  Chaney also argues the evidence was insufficient to establish that he knew                                                                                                                                                                                                                                                                                                                                                 



 or   should   have   known  that his vessel was                                                                                                                                                                                                                                 overlength.     In   particular,   he notes that                                                                                                                                                                                    



 evidence presented at trial established that marine surveyors applying only federal law                                                                                                                                                                                                                                                                                                                                                                                                                               



 determined that the                                                                                                 F/V Pacific Rose                                                                                        was under fifty-eight feet. But Chaney's argument                                                                                                                                                                                                       



views the evidence in the light                                                                                                                                                                              most  favorable to himself.                                                                                                                                                We have reviewed                                                                                                                 the  



 evidence, and conclude that, when viewed in the light most favorable to the verdict, the                                                                                                                                                                                                                                                                                                                                                                                                                                  



                     9                   The trooper testified that he was familiar with the practice of bows being removed                                                                                                                                                                                                                                                                                        



 from vessels for the purpose of complying with length limitations. According to the trooper,                                                                                                                                                                                                                                                                                                  

the resulting atypical "blunted off' design allowed waves to come over the top of the vessel,   

which "could be dangerous."  



                                                                                                                                                                                                                                                          -  6 -                                                                                                                                                                                                                                                     2684
  


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

evidence  established  that  Chaney  knew  or  should  have  known  that  the  vessel  was  

                                                                                                                              



overlength.  



                    First, the jury heard that when the Board of Fisheries was considering  

                                                                                                                  



adopting the "anchor roller" definition, Chaney wrote a letter asking that the Board not  

                                                                                                                               



do so because the proposed definition of "anchor roller" would make his vessel "illegal."  

                                                                                                                                     



That is, Chaney was aware that if the proposed definition was adopted, then under  

                                                                                                                           



Alaska law, the assembly attached to the F/V Pacific Rose would be included in the  

                                                                                                                               



vessel's overall length.  

                                     



                    The jury also heard that on July 9, 2017, a trooper warned Chaney that the  

                                                                                                                                



assembly attached to the F/V Pacific Rose 's bow made the vessel too long for salmon  

                                                                                                                         



seining use.  At that time, Chaney told the trooper that he was aware of the then-new  

                                                                                                                      



regulation defining "anchor roller."  And on July 25, the troopers measured the F/V  

                                                                                                                              



Pacific Rose in Chaney's presence and informed himthat its overall length was sixty-two  

                                                                                                                      



and one-half feet. Despite this information, Chaney still used this vessel to seine salmon  

                                                                                                                         



on July 31.  

                   



                    AlthoughChaneyintroducedevidencethat marinesurveyors had calculated  

                                                                                                                     



the length of the F/V Pacific Rose at fifty-seven and one-half feet, the evidence showed  

                                                                                                                         



that those surveyors reached that measurement based on federal regulations.  One of  

                                                                                                                                 



Chaney's expert witnesses conceded that federal regulations regarding how to measure  

                                                                                                                        



a vessel's length differ from Alaska regulations on this point. Under federal regulations,  

                                                                                                                  



marine surveyors would have excluded the assembly attached to the F/V Pacific Rose  

                                                                                                                             



because  federal  regulations  broadly  exclude  "fittings  and  attachments"  that  extend  

                                                                                                                         



beyond the hull of the vessel.  

                                                



                    Based on this evidence, the jury could reasonably conclude that Chaney  

                                                                                                                        



knew or should have known that the F/V Pacific Rose exceeded fifty-eight feet.  

                                                                                                                   



                                                              -  7 -                                                         2684
  


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

                 The regulation is not inconsistent with the statute                                                          



                                  Chaney next argues that the definition of the term "anchor roller" in 5 AAC                                                                                                



39.975(b)   is   inconsistent   with   the   intent   of   AS   16.05.835(a)   and   (c),   the   statutory  



provisions that exclude the anchor roller from the overall measurement of a vessel.  In                                                                                                         



Chaney's   view,   the   regulation   is   inconsistent  with   the   statute   because,   under   the  



regulation, "anchor rollers" are no longer excluded from the overall measurement.                                                                                             



                                  Under AS 16.05.251, the Board of Fisheries has a broad grant of authority                                                                                         



to adopt regulations to manage fisheries.                                                                     And under AS 16.05.835, the Board has                                                               

specific authority to manage the length of vessels used in the salmon seine fishery.                                                                                                                              10  



                                                                                                                                                                                                    

                                  When an agency has adopted regulations under a delegation of authority  



                                                                                                                                                                                                                 

from the legislature using the process prescribed by the Administrative Procedures Act,  



                                                                                                                                                                                                                     

we presume that the regulations are valid and place the burden of proving otherwise on  



                                                       11  

                                                                                                                                                                                                                

the challenging party.                                      We limit our inquiry to whether the regulation is consistent with  



                                                                                                                                                                                                                 

and reasonably necessary to carry out the purposes of the statutory provisions and  



                                                                                                                                          12  

                                                                                                                  

whether the regulation is reasonable and not arbitrary. 



                                                                                                                                                                                            

                                  When the issue involves agency expertise or determination of fundamental  



                                                                                                                                                                                                       

policy questions on subjects committed to an agency's discretion, we employ a rational  



                                                                                                                                                                                                                          13  

                                                                                                                                                                                                                              

basis standard and defer to the agency's determination so long as it is reasonable. 



                                                                                                                                                                                                            

Whether theregulationis necessary to implementthestatuteinvolves fundamentalpolicy  



         10      AS 16.05.835(a), (c).  



         11      Chalovich v. State, Dep't. of Nat. Res.                                                        , 104 P.3d 125, 128 (Alaska 2004); see also  



O'Callaghan v. Rue, 996 P.2d 88, 94-95 (Alaska 2000).  



         12      Chalovich, 104 P.3d at 128.  



         13      Id.  



                                                                                                        -  8 -                                                                                                  2684
  


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

determinations which we also review under a rational basis standard.                                                      14  We may defer  



                                                                                                                                              15  

to an agency's interpretation of a statute if undefined terms appear in the statute.                                                              



                                                                                                                                                 

                       The record  in  the present case shows  that the Board of Fisheries was  



                                                                                                                                                  

concerned that the absence of a statutory or regulatory definition of "anchor roller" was  



                                                                                                                                             

causing inconsistent enforcement of AS 16.05.835, the maximum length statute. During  



                                                                                                                                                 

the Board's hearing on theproposed definition, theChair explained that "[t]here has been  



                                                                                                                                                          

a long history of varying levels of liberty taken with what constitutes an anchor roller."  



                                                                                                                                                    

Another Board member pointed out that the ambiguity had allowed people to exceed the  



                                                                                                                                                     

length limitation of vessels used in the salmon seine fishery.  Ultimately, a majority of  



                                                                                                                                                    

the of the Board passed a regulation that clarified the definition of "anchor roller" -  



                                                                                                                                                     

narrowing the scope of gear that could be excluded from the overall measurement of  



                                                                

vessels in the salmon seine fishery.  



                                                                                                                                                     

                        Contrary to Chaney's position, the definition adopted by the Board in  



                                                                                                                                                     

5 AAC 39.975(b) still excludes "anchor rollers" from a vessel's overall measurement as  



                                                                                                                                             

required by the statute.  Devices "used solely in aid of deploying and retrieving anchor  



                                                                                                                                 

gear" are still considered "anchor rollers" and are still excluded from the measurement  



                                                         16  

                                                              

of the overall length of a vessel. 



                                                                                                                                                 

                       We accordingly conclude that 5 AAC 39.975(b) is not inconsistent with  



                                                                                                                                        

AS 16.05.835(a) and (c).  We also conclude that the regulation is reasonably necessary  



                                                                                             

to implement that statute and is neither arbitrary nor irrational.  



      14    Id.  



      15    Bradshaw v. State, Dep't of Admin, Div. of Motor Vehicles, 224 P.3d 118, 122 (Alaska  



                                                                           

2010) (citing Flisock v. State, Div. of Ret. & Benefits, 818 P.2d 640, 643 n.4 (Alaska 1991)).  



      16    AS 16.05.835(a), (c) & 5 AAC 39.975(b).  



                                                                        -  9 -                                                                  2684
  


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

                   5 AAC 39.975(b) is not unconstitutionally vague                                                                       



                                     Chaney also contends that the definition                                                                                of "anchor roller" in 5 AAC                                         



39.975(b) is so vague that it deprives him of due process because "no reasonable person                                                                                                                                       



could know what an anchor roller is or whether their boat has an anchor roller that is                                                                                                                                                      



legal or not."   He asserts that the terms "flotation, planing surface, sea keeping ability,                                                



buoyancy, deck space, or structural support" are technical terms not in the vocabulary                                                                                                                            



or comprehension of a reasonable person.                                                                              



                                     A criminal statute or ordinance is unconstitutional when it is "so vague that                                                                                                                     



 [people] of common intelligence must necessarily guess at its meaning and differ as to                                                                                                                                                    



                                            17  

                                                                                                                                                                                                                                  

its application."                                  Alaska recognizes that "the possibility of difficult or borderline cases  



                                                                                                                                                                                                                         

will not invalidate a statute where there is a hard core of cases to which the ordinary  



                                                                                                                                                                                              18  

                                                                                                                                                                                                                                              

                                                                                                                                                                                                     In such cases, a  

person would doubtlessly know the statute unquestionably applies." 



                                                                                                                                                                                          

defendant may not "complain of lack of adequate notice, and [a] void-for-vagueness  



                                                                                                                                                                                                                                         

contention will succeed only if the statute is otherwise so nebulous that it must be  



                                                          19 

stricken on its face."                                                                                                              

                                                                Chaney has the burden of proving his claim that the regulation  



                                                             20  

                               

is void for vagueness.                                             



                                                                                                                                                                                                                                   

                                     Here, the regulation provides that an anchor roller may not provide deck  



                                                                                                                                                                                                             

space or structural support to the vessel.   In Chaney's case, numerous photographs  



                                                                                                                                                                                                                              

submitted at trial showed the assembly - to which the anchor roller is bolted - clearly  



                                                                                                                                                                                                                       

provided deck space and structural support for that deck.   The deck space provided  



          17       State v. Lawler, 919 P.2d 1364, 1365-66 (Alaska App.1996) (quoting F/V Am. Eagle  



v. State, 620 P.2d 657, 665 (Alaska 1980)).  



          18       Stock v. State, 526 P.2d 3, 9 (Alaska 1974).  



          19      Id. at 10.  



         20       Lawler , 919 P.2d at 1367 (citation omitted).  



                                                                                                                -  10 -                                                                                                              2684
  


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

access to the anchor, and state troopers were able to stand on it while measuring the                                                                                                                                                                                                                                                              



vessel.   Also, as we mentioned earlier, Chaney objected to the Board's adoption of the                                                                                                                                                                                                                                                             



current regulation                                                        because  he was aware that his assembly included more than "devices                                                                                                                                                                                 



used solely [to] deploy[] and retrieve[] anchor gear."                                                                                                                                                                     



                                                       In short, an ordinary person would doubtlessly know that the regulation's                                                                                                                                                                                



definition of "anchor roller" excludes the additional deck space and structural support                                                                                                                                                                                                                                          



attached to the bow of the                                                                               F/V Pacific Rose                                                      .   The "technical terms" of the regulation are                                                                                                                      



                                                                                                                                                                                                                                                                                             21  

well within the vocabulary and comprehension of a reasonable mariner.                                                                                                                                                                                                                                Consequently,  



                                                                                                                                                                                                                                        

we conclude that the regulation is not unconstitutionally vague.  



                            Conclusion  



                                                                                                                                                                                                           

                                                       The judgment of the district court is AFFIRMED.  



              21            Cf. id. at 1366; State v. Martushev, 846 P.2d 144, 150 (Alaska App. 1993).  



                                                                                                                                                                     -  11 -                                                                                                                                                                   2684
  

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