Hotch

Steven V. Hotch, a registered commercial fisherman, is appealing from a conviction and sentence for taking salmon for food from Alaskan waters in violation of a regulatory extension of statutory closing hours and contrary to a Department of the Interior regulation. Appellant admitted in the United States District Court and here admits that he is a commercial fisherman and that he committed the acts alleged in the complaint and that his “ * * * defense is that the regulation is invalid because prohibited by statute.” That is, that the applicable statute reserves to appellant the right to take salmon for personal food requirements. The text of the regulation is as follows:

Sections 232 and 234 of Title 48 U.S.C.A., and all other code citations herein are codifications with amendments of the various Acts regulating fishing in Alaska.

Section 232 2 makes unlawful the taking of salmon from Alaskan streams and five hundred yards seaward of any stream’s mouth except by means which may be termed hand tackle, i. e., “hand rod, spear, or gaff”.

Section 234 3 permits the taking of salmon beyond five hundred yards seaward of a stream’s mouth by gear other than hand tackle (in this…

(concurring).

I reach the same conclusion as does the majority of the court, but I differ with them in the construction of the statutes and regulations under consideration.

The complaint filed in the commissioner’s court at Juneau, Alaska, charged appellant Hotch with the crime of fishing during the weekly closed period with all of his commercial gear in the water in violation of Regulation 102.51, as amended, of the commercial fishing regulations. After conviction in the commissioner’s court an appeal was taken to the district court and upon a trial de novo the appellant was again found guilty. At the time this alleged offense occurred the Department of the Interior was in the process of amending its original Regulation 102.51, 17 F.R. 1475 ; 50 C.F.R. § 102.51 , and the charge was made and the trial was had upon the theory that the amended regulation was in force and effect. Such was not the case. The time required by law for the promulgation of a regulation before it could become operative had not expired. 5 U.S.C.A. § 1003 (c). However, I agree that the language of the charge as stated in the complaint brings the ease within the prohibitory provisions of the original…

On Petition for Rehearing.

This case was tried in the district court upon stipulation of fact and one point of law. Appellant admitted catching two salmon with a gill net at about 6:30 P.M., Thursday, May 22, 1952, in violation of a regulation of the Secretary of the Interior closing the Taku Inlet to fishing from 6:00 P.M. Thursday to 6:00 A.M. Monday of each week, and he rested his defense upon the sole ground that “the regulation [prohibiting personal use fishing with gill net, seine or trap during a closed period 1 ] is invalid because prohibited by statute [in re ‘the taking of fish for local food requirements or for use as dog feed’, 2 ]” That was the only question presented to this court on appeal. And we gave that question our attention. Subsequent to the oral argument in which the limitation on the appeal was emphasized by appellant’s *250 counsel, and after we had reached our conclusion on the question presented, counsel for appellant filed a memorandum raising for the first time an additional point, i.e., that there was “no published regulation prohibiting fishing on Thursday evening, May 22, 1952,” 3 [italics ours] and therefore, the complaint did not charge an…

208 F.2d 244 HOTCH v. UNITED STATES. No. 13621. United States Court of Appeals Ninth Circuit. September 14, 1953. On Rehearing December 2, 1953. Further Rehearing Denied March 22, 1954. Frederick Paul, Seattle, Wash., William L. Paul, Jr., Juneau, Alaska, for appellant. Patrick J. Gilmore, Jr., U. S. Atty., and James M. Fitzgerald, Asst. U. S. Atty., Juneau, Alaska, for appellee. Before STEPHENS, BONE, and ORR, Circuit Judges. STEPHENS, Circuit Judge. 1 Steven V. Hotch, a registered commercial fisherman, is appealing from a conviction and sentence for taking salmon for food from Alaskan waters in violation of a regulatory extension of statutory closing hours and contrary to a Department of the Interior regulation. Appellant admitted in the United States District Court and here admits that he is a commercial fisherman and that he committed the acts alleged in the complaint and that his "* * * defense is that the regulation is invalid because prohibited by statute." That is, that the applicable statute reserves to appellant the right to take salmon for personal food requirements. The text of the regulation is as follows: 2 "102.51 Prohibited by commercial fishermen. 3 "No commercial…