RDER ON MOTION TO RECONSIDER AND AMEND MEMORANDUM OPINION (DOCKET 33)

SCOTT A. ORAVEC, Magistrate Judge.

This court considered the United States' Motion to Reconsider and Amend Memorandum Opinion at Dkt. 35. On reconsideration, the language to which counsel objects is extraneous to the judgment, therefore the Motion to Reconsider and Amend the Memorandum Opinion is GRANTED.

This court orders the Memorandum Opinion at Dkt. 33 withdrawn and replaced with the Memorandum Opinion attached.

MEMORANDUM OPINION

INTRODUCTION

The United States charged Mr. Clarence Alexander ("Clarence Alexander") with one count of violating 50 Code of Federal Regulations (C.F.R.) 100.19(g) (1) for violating a closure order on or about July 14, 2013 within the Yukon River Slough near Fort Yukon, Alaska.1 Prior to trial, Clarence Alexander indicated his intent to challenge the validity of the underlying regulation.2 However, Clarence Alexander moved the court to hold a trial to determine whether he was guilty of the allegation first, but if found guilty, to provide him an opportunity to prove the underlying regulation is invalid.3 The court granted Clarence Alexander's request and conducted a bench trial, ordered arguments submitted in writing, and issues this memorandum opinion.

At trial, the following testified for the United States: Officer Mimi Thomas ("Officer Thomas"), a wildlife officer for Yukon Flats National Wildlife Refuge; Mr. Paul Williams, Sr. ("Williams"), the boat pilot; and Mr. Fred Bue ("Bue"), the Yukon Area In-Season Fisheries Manager. Clarence Alexander testified in his defense, along with witnesses Robert Alan Rosenfeld and Edward Clarence Alexander ("Edward Alexander"). The court admitted Government Exhibits 1-4 and Defense Exhibits A-C at trial.

Upon due consideration of the evidence and the arguments of the parties, the court finds reasonable doubt as to whether Clarence Alexander violated 50 C.F.R. § 100.19(g) (1) and therefore finds Clarence Alexander Not Guilty of violating 50 C.F.R. § 100.19(g) (1).

FINDINGS OF FACT

The U.S. Department of the Interior Fish and Wildlife Service Federal Subsistence Board ("Federal Subsistence Board" or "Board") is responsible for administering the subsistence taking and uses of fish and wildlife on public lands,4 including the Yukon Flats National Wildlife Refuge.5 Clarence Alexander is charged with violating 50 C.F.R. § 100.19(g), which bars the taking of fish and wildlife "in violation of any restriction, closure, or change authorized by the Board."

On July 12, 2013, the Federal Subsistence Board issued an announcement that divided Subdistrict 5-D of the Upper Yukon River into the Lower, Middle, and Upper areas.6 "The Announcement" or "Closure Order" included a closure of subsistence salmon fishing on portions of the Upper Yukon River and provided, in relevant part:

The Announcement also provided "[d]uring subsistence salmon fishing closures, fish wheels may not be operated and gillnets with a mesh size greater than four inches and a length greater than 60 feet must be removed from the water."8

The Announcement from July 12, 2013 was a joint State and Federal news release announcing a fisheries management action to be implemented, stating the fishing closure and areas covered.9 The announcement was issued under the authority of the Federal Subsistence Board even though the announcement was listed on joint letterhead. The state is the lead management agency, but the U.S. Fish and Wildlife service can supersede state authority if necessary.

Clarence Alexander is seventy-five years old and lived in Fort Yukon his whole life. Clarence Alexander is Chief Clarence Alexander, one of the co-founders of the Yukon River Intertribal Watershed Council and is currently chairman.10 The Watershed Council was formed to keep the Yukon River clean for future generations so that all life can thrive; it is comprised of 70 indigenous governments from one end of the Yukon River to the other.

During much of his life, Clarence Alexander fished in the area, primarily for others in the community. Clarence Alexander frequently caught 30 to 40 fish a day with Ed Alexander, his son, and would distribute them to members of the community. Ed Alexander frequently helped Clarence Alexander fish, especially in 2013 because Clarence Alexander suffered from a heart condition and had stints placed in his heart in the spring of 2013. In July, 2013, Clarence Alexander was taking several medications and was not able to lift over five pounds because of his medical conditions. In previous years, Ed and Clarence Alexander shared the workload of fishing, but in 2013 most of the workload fell to Ed Alexander. Ed and Clarence Alexander harvested declining numbers of salmon each year since approximately 2008.11 Ed and Clarence Alexander caught very little or no salmon in 2013, with 2013 and 2014 being the worst two years for taking salmon. Closure orders were used steadily on that portion of the Yukon River from 2008 through 2013. Usually the closures were announced on a sign or on the radio.

The 2013 Yukon River Summer Salmon Fishery News Release *58 Summer Announcement *53, Subdistrict 5-D Subsistence Fishing Schedule was issued on Friday, July 12, 2013.12 The press release issued through the State of Alaska distribution system. The Tribal Council contacted Fred Bue through email and requested delaying the fishing closure. Several individuals usually knew of any closure or upcoming closure information in Fort Yukon in addition to the State of Alaska distribution system. James Kelly, in the Natural Resources Department of The Council of Athabascan Tribal Governments was usually aware of closures or upcoming closures and resided in the area. Andrew Firmin, Director of Natural Resources for the Native Village of Fort Yukon was also knowledgeable about closures or upcoming closures and resided in the area. A toll-free number listed on the Closure notice itself could have provided information about the closures; the toll-free number was attainable from either Mr. Kelly or Mr. Firmin or the Alaska Department of Fish and Game website.13

No one contacted Clarence Alexander personally regarding the closure notice prior to 6:00pm on July 14, 2013. Clarence Alexander did not see the closure notice, Government Ex. 2, prior to July 14, 2013 nor heard of the closure notice on the radio. Ed Alexander had difficulty identifying a posting of the July 12, 2013 closure. Ed Alexander knew a closure for July 14, 2013 existed however before 6:00pm he did not know the time of the closure.14 Ed Alexander tried to see a posting of the notice prior to 6:00pm on July 14, 2013, but could not find one posted in the usual places.15 When Ed Alexander asked other fishermen about the notice, Ed heard different times for the July 14, 2013 closure such as 6:00pm, 8:00pm, and even midnight. Ed and Clarence Alexander decided late in the day on July 14, 2013 they would try to take down the net before 6:00pm.

Ed Alexander served as second chief of the Gwichyaa Zhee Gwich'in Tribal Government in 2013. He was heavily involved in tribal government; he attended council meetings and provided guidance on various issues. The Tribal Government frequently discussed fishing closure issues and did so at their July 12, 2013 meeting. The Gwichyaa Zhee Gwich'in Tribal Government passed a resolution on July 12, 2013 requesting an extension for the subsistence fisheries for Fish Wheels and 7.5 Inch Fish nets in Subdistrict 5-D.16 Ed Alexander attended the July 12, 2013 meeting, but did not recall discussing the Announcement at any time between July 12, 2013 and July 14, 2013 at 6:00pm.

Officer Thomas did not see any other fishermen in violation of the 6:00pm closure on July 14, 2013 in Subdistrict 5-D Middle while she was traveling on the River.

Clarence and Ed Alexander placed two nets on the Yukon River and one at the mouth of the Porcupine River for the purpose of catching fish.17 Clarence and Ed Alexander checked their fishnets twice daily so the fish did not spoil or the net fill with silt. On the morning of July 14, 2013, Clarence and Ed Alexander checked their nets around 7:00am or 8:00am. The net on the Porcupine was located on Clarence Alexander's property on the opposite side of Joe Peter's Slough.18 Clarence and Ed Alexander added homemade weights to the bottom of the net including a big piece of steel at the end, which weighed over 100 pounds. These weights were on the line in the water when Clarence and Ed Alexander checked the net in the morning. However they saw the net "not sitting right" so they reset the net, which only took a few minutes.19 The Porcupine River at the time appeared clear and free of debris.

Clarence and Ed Alexander returned to the same net later in the day to check it.20 Under normal circumstances, they thought 15 minutes would be sufficient time for them to remove the net from the water. However, the channel had changed and it forced a great amount of drift debris into the net.21 Once Clarence saw his net with all the wood in it, he knew he would not have it out of the water in fifteen minutes and that it would take much longer.22 Clarence Alexander drove the boat, while Ed Alexander rode as a passenger to the side of their net. When they approached the net they saw the net was so full of debris, they were surprised the net was still there.23 Ed Alexander had never seen that much debris in a net before; their net contained whole willow branches and trees, some with the bark still on them.24

Ed and Clarence Alexander pulled up portions of the net into their boat and tried to get some of the debris loose. They dislodged some pieces of debris, but not most of it. They tried to untie one side so the debris could fall out downstream, but the net was so heavy they could not untie it and swing the end around to let the debris fall out.25 With Clarence Alexander driving the boat, Ed Alexander tried a couple different methods to empty the net so they could retrieve it and remove it from the water, but they were unsuccessful.26

Ed Alexander and Clarence Alexander were trying to get the net out of the water because they were aware of a pending closure. Ed and Clarence Alexander tried to remove the debris as fast as they could. They started by removing most of the big pieces so they could put the net into the boat and then clean out the debris later. Ropes tied the net to an anchor near the shore and an anchor in the river.27 Clarence Alexander sat in the boat while Ed Alexander stood up and removed debris from the net, starting on the side closest to the shore. He removed sticks and debris from the net by pulling the net up briefly to remove the debris then setting that portion of the net back down into the river.28

When a net was in this condition it was incapable of catching fish, despite the fact it was in the water because it was so laden with debris and pulled against the shore. Even during the process of removing debris, it is highly unlikely a fish would swim into a net in the process of being vigorously removed from the water while attempting to remove the debris contained in the net, as Ed Alexander was doing. It would be unheard of for a fish to swim into the net while it was against the bank, but remained in the water. Once Ed and Clarence Alexander reached the net they continuously tried to retrieve it and were not trying to catch fish with the net.

Ed Alexander had worked his way up to about one third to one half of the way up the net, when Williams and Officer Mimi Thomas, of the United States Fish and Wildlife Service, pulled up to the Alexander's boat and asked what they were doing.29 Officer Thomas believed nets larger than four inches had to be pulled out of the water, partly because a gillnet can usually still catch fish if it is in the water. Officer Thomas believed that even when a gillnet is choked full of driftwood or washed up to the bank it may still be capable of catching fish.

Around approximately 6:30pm, Williams and Officer Thomas drove into an area of the river where the main channel of the Porcupine River goes into the Yukon River. The rivers were high and contained a lot of debris. Williams drove Officer Thomas into the lower mouth of the Porcupine River. Williams then landed the boat below the site near where they saw Clarence and Ed Alexander cleaning debris from a fishnet set in the water.30 Officer Thomas exited the boat to contact the Alexanders to ascertain whether their net was in compliance with the 6:00pm closure.31

Ed Alexander responded that he was trying to get the net out of the water, but it was filled with debris. Officer Thomas approached the Alexanders from the nearest point on the beach and stood on the beach and asked them questions. Officer Thomas first said "Hello, how are you?" or words to that effect and then told them she was there to check net sizes. Officer Thomas asked what size their net was, and Ed Alexander answered "I don't know" and "Why did you [Officer Thomas] want to know?" so she explained about the 6:00pm closure. It was approximately 7:30pm at this time.32

Ed Alexander continued cleaning the net, while Clarence was sitting in the boat. Officer Thomas asked them again "what size was the net?" or words to that effect. Ed Alexander became irritated and responded to Officer Thomas that the net was completely filled with debris and they had not caught anything because there was no way the net could have caught anything since it was pressed against the bank full of debris. Ed Alexander also started complaining about commercial fishing in the lower river. Officer Thomas asked Ed Alexander to measure the net for her and he refused.33 Officer Thomas waited until they completed cleaning the net, were untying it, and then she asked the Alexanders to talk with her about the net size. However, they refused to answer her questions about the net size.

Officer Thomas measured the net and found it was a six-inch gillnet. Officer Thomas found the net violated the closure and told them so and told them she would be contacting them the next day. Officer Thomas found a sign attached to a Willow tree, growing in the ground, near where the net was tied to it; the sign stated "Clarence Alexander's Fish Net."34 At no time did Officer Thomas see any fish in Clarence Alexander's net.

It took Clarence and Ed Alexander over an hour and a half to clear their net of debris and fully retrieve it.

DISCUSSION

The July 12, 2013 the Announcement, Government Ex. 2, was a fisheries management action issued under the delegated authority of the Federal Subsistence Board and the closure of Subdistrict 5-D Middle was effective July 14, 2013 at 6:00 P.M.35 On July 14, 2013, Clarence Alexander's net was located in the Yukon Flats National Wildlife Refuge in the mouth of the Porcupine River, on federal public lands. The location of Clarence Alexander's net fell under the jurisdiction of the Federal Subsistence Board and as a result was subject to any restrictions, closures, or changes authorized by the Federal Subsistence Board.

Clarence Alexander is alleged to have violated the Announcement, Government Ex. 2, issued on July 12, 2013 in two ways. First, that Clarence Alexander fished after 6:00 P.M. in an area closed to subsistence fishing.36 Second, that Clarence Alexander operated a gillnet in the water with a mesh size greater than four inches and a length greater than 60 feet after 6:00 P.M. on July 14, 2013.37

As to the first alleged violation, the United States charges Clarence Alexander violated 50 C.F.R. § 100.19(g) barring the taking of fish and wildlife in violation of any Board-authorized closure. Clarence Alexander argues that he was not fishing and not trying to "take" fish as described in 50 C.F.R. § 100.25(a), which provides in relevant part "Take or Taking means to fish, pursue, hunt, shoot, trap, net, capture, collect, kill, harm, or attempt to engage in any such conduct."38

The United States argues violating a closure is a "strict liability" criminal offense.39 Quoting Staples v. United States, 511 U.S. 600, 607 (1994), the United States argues "the defendant has the burden to ascertain at his peril whether [his conduct] comes within the inhibition of the [law]." The United States concludes it had no duty to put the defendant on notice that the defendant's conduct violated the law.40 Also citing Staples, Clarence Alexander argues there must be proof of Clarence Alexander's mens rea to find him guilty of the offense.

In the Staples case, the defendant was charged with possession of a machine gun. The court addressed whether the National Firearms Act, 26 U.S.C. § 5861(d), required proof that a defendant knew the characteristics of his weapon such that it qualified as a "firearm" regulated under the Act.41 The United States argued that no mens rea element was required because the type of offense fit in the category of "public welfare" or "regulatory" offenses for which Congress imposed a form of strict criminal liability.42 The Staples court founds mens rea was a required element to prove a violation of the National Firearms Act, however noting that the holding was a "narrow one."43 The court noted "the small penalties attached to such offenses logically complemented the absence of a mens rea requirement," and contrasted such typical penalties with the maximum possible penalty of ten years imprisonment.44

Here, Clarence Alexander faces a much less severe maximum possible penalty, as he is charged with one count of a petty offense. Because the Staples holding was a narrow one, it is inapplicable here and the court concludes mens rea is not a required element of proof whether Clarence Alexander was taking fish.45 However, because the regulations also bar an attempt to take fish, and attempt is a specific intent crime, the United States would need to prove intent to take fish to prove an attempt to do so.46

At trial, there was no evidence offered that Clarence Alexander in fact took any fish. Accordingly, although no mens rea is required to prove violation of the closure order, there was not proof beyond a reasonable doubt that Clarence Alexander took fish in violation of the closure order.

The United States also contends that Clarence Alexander, who had a net in the water after 6:00 P.M. on July 14, 2013, was attempting to take fish. To prove this claim, the United States was required to prove beyond a reasonable doubt that Clarence Alexander (1) knew of the terms and conditions of the closure order; and (2) intended to take fish after 6:00 P.M. on July 14, 2013. It is a close question as to whether Clarence Alexander knew of the terms and conditions of the closure order. The evidence reflected that the closure order was not posted in the usual places, and Ed Alexander had conflicting information from other fishermen about the times to which the closure order would apply. However, the evidence also reflected that Clarence Alexander understood that there was a closure order, that it would apply some time that evening, and that he intended to have his net out of the water by 6:00 PM. Based on these facts, the court concludes that Clarence Alexander had sufficient notice that the closure order would apply as of 6:00 PM.47

The court finds reasonable doubt as to whether Clarence Alexander intended to take fish after 6:00 P.M. in violation of the closure order. The court relies on the testimony of Clarence Alexander, Ed Alexander, and Williams, all experienced fishermen, and finds that the river had a high level of debris such that the net was full of branches and incapable of holding fish. Clarence Alexander had checked the net earlier in the day and it appeared to be working with no issues. Subsequently, a vast amount of debris filled the net, and it was full as of 6:00 P.M. and incapable of taking fish. It required longer than an hour and a half for Clarence Alexander to remove debris and the net from the water. Ed and Clarence Alexander were actively trying to retrieve their net during this time period.

Their activity included attempting different methods of removing the debris such as dislodging the largest pieces of debris then attempting to retrieve the net. When that failed they tried to untie and swing the net to let the debris fall out downstream. When that failed they started removing the individual pieces of debris working from one side to the other. The evidence showed that Clarence Alexander and Ed Alexander were in the process of cleaning the net and removing it from the water during this time. It appears even if Officer Thomas made contact with Ed and Clarence Alexander as late as 7:30pm, there is certainly reasonable doubt as to whether Clarence intended to take fish after 6:00pm.

In light of Clarence Alexander's efforts to arrive at and retrieve the net before 6:00 P.M., and demonstrated efforts to remove the net thereafter, the court finds illogical the United States' argument that Clarence Alexander was intentionally protesting the closure. For these reasons, this court finds the United States did not prove that Clarence Alexander attempted to take fish after 6:00 P.M. on July 14, 2013, in violation of the closure order.

The United States also asserts a violation of the Closure Order in Government's Ex. 2, specifically, the provision providing that "during subsistence salmon fishing closures, fish wheels may not be operated and gillnets with a mesh size greater than four inches and a length greater than 60 feet must be removed from the water."48 The United States argues Clarence Alexander violated this section by having his gillnet in the water after 6:00 P.M. regardless of his intent or purpose for having his net in the water.49

To prove this theory, the United States must prove beyond a reasonable doubt (1) the area was closed to subsistence salmon fishing; (2) Clarence Alexander had a gillnet in the water with a mesh size greater than four inches and longer than 60 feet. The court has found that the area was closed to subsistence salmon fishing. The remaining issue is whether Clarence Alexander had a gillnet in the water with a mesh size greater than four inches and longer than 60 feet.

Officer Thomas measured the net on-site and determined the mesh was six inches. The court finds the United States has proven the mesh size. However, there was no clear evidence offered at trial as to the length of the net. Clarence Alexander and Ed Alexander testified they had pulled their boat alongside the net and were pulling up a portion of the net and cleaning it as they went, and they were about one third to one half complete on the task, when Officer Thomas arrived in the area.50 Officer Thomas testified that they were eight to nine feet from one end of the net when she arrived in the area.51 Even considered in the light most favorable to the United States, that they were one third complete, which would leave 16 to 18 feet remaining on the net, for a total length of 24 or 27 feet. This is far less than 60 feet.

The United States argues that page three of the Announcement barred the use of nets with a mesh size in excess of four inches or a length in excess of 60 feet. Changing the use of the word "and" to "or" would, in the United States's argument, require proof only of the mesh size. This is not supported by the plain and unambiguous language used.52 The conjunction "and" immediately follows one qualifier (mesh size) and precedes another qualifier (length) without break, punctuation, or intervening noun. It is conjunctive, and both qualifiers are required under the plain language of the Announcement.

The evidence reflects that Clarence Alexander had a six-inch mesh net. However, the length of the net was not established at trial. Because the Announcement barred the use of nets with a mesh size in excess of four inches and a length of 60 feet, the United States has failed to prove beyond a reasonable doubt that the net used by Clarence Alexander was in violation of this provision on page 3 of the Closure Order.

CONCLUSION

The court finds reasonable doubt whether Clarence Alexander took any fish or attempted to take fish in violation of the Closure order. The United States did not prove beyond a reasonable doubt that Clarence Alexander had a net with a mesh in excess of four inches and length of 60 feet in the water after 6:00 P.M. in violation of the closure order. For these reasons, the Court finds Clarence Alexander not guilty of violating 50 C.F.R. § 100.19(g) (1) on July 14, 2013.

The court finds because of the disposition of this case, it does not need to reach the procedural adequacy of the notice provided when the Government issued the Announcement.