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United States v. Kaiyo Maru Number 53

ELR Citation: 11 ELR 20423
Nos. No. A79-160, 503 F. Supp. 1075/(D. Alaska, 12/08/1980)

The court upholds the constitutionality of provisions of the Fishery Conservation and Management Act (FCMA) permitting searches of vessels without a warrant and the assessment of penalties. A Japanese fishing vessel, holding a fishing permit issued by the National Oceanic and Atmospheric Administration, was searched without a warrant by the U.S. Coast Guard and seized for violations of the FCMA. The vessel's catch was sold, its permit was revoked, and evidentiary hearings on forfeiture of the vessel were instituted.The court rules that a permit sanction may be imposed only after a hearing has been held to determine whether the vessel was in fact used to commit an act prohibited by the FCMA.The court next finds that the Act permits the warrantless search of foreign vessels. In addition, although the Coast Guard had lacked probable cause to believe a violation had occurred and exigent circumstances were not apparent prior to boarding, a warrant prior to the search was not required by the Constitution. The FCMA establishes a comprehensive scheme for managing fishing resources, restricts searches to vessels engaged in fishing operations, and sets forth permit requirements which prevent a reasonable expectation of privacy when a vessel is in a regulated area. Consequently, searches conducted under the FMCA fall within the "pervasively regulated industry" exception to the warrant requirement of the Fourth Amendment. Further there is no merit to plaintiff's claim that the FCMA violates the Fifth Amendment's Equal Protection Clause because it discriminates against aliens as a class. Moreover, the Act's choice of sanctions provision does not render the statute vague in violation of the Fifth Amendment's Due Process Clause. In addition, the seizure of the vessel does not violate the Due Process Clause. Finally, the court rules that forfeiture of the vessel is not required by the Act but, since the vessel owners violated the Act, it imposes a $450,000 criminal penalty.

The full text of the opinion is available from ELR (16 pp. $2.50, ELR Order No. C-1241).

Counsel for Plaintiff
Dan E. Dennis, Ass't U.S. Attorney
U.S. Fed. Bldg. & Cthse., 701 C St., Anchorage AK 99513
(907) 271-5568

Counsel for Defendant
John H. Bradbury
Bradbury, Bliss & Riordon
Suite 201, 431 W. 7th Ave., Anchorage AK 99501
(901) 279-4571

Fitzgerald, J.