United States v. Kaiyo Maru No. 53

Nos. 81-3273, -3293 (9th Cir. February 22, 1983, amended May 23, 1983)

ELR Digest

Affirming the district court, the Ninth Circuit rules that the Fishery Conservation and Management Act (FCMA) authorizes warrantless searches and seizures of foreign fishing vessels within the United States' 200-mile fishery conservation zone (FCZ) and that, as implemented, this authority does not violate the Fourth Amendment prohibition against unreasonable searches and seizures. The Coast Guard searched the Japanese fishing trawler Kaiyo Maru No. 53 within the FCZ, without a warrant or probable cause, and discovered evidence of serious violations of the FCMA, including underreporting of catches and catches of species prohibited to foreign fishermen. The district court concluded that the FCMA had been violated and assessed a civil penalty of $450,000.

The Ninth Circuit first rules that the FCMA authorizes warrantless searches and seizures even if a warrant is practical to obtain. The court finds that since the FCMA was enacted to combat a serious foreign overfishing problem, it is reasonable to conclude that Congress intended to create a very potent enforcement system. Moreover, Congress was aware of the difficulty of obtaining warrants while enforcement officers are far out to sea. Therefore, the court declines to limit the search and seizure provisions of the FCMA where Congress chose not to.

The court next rules that the Fourth Amendment does not bar warrantless searches of foreign fishing vessels to determine compliance with the FCMA. The amendment is more tolerant of warrantless administrative inspections of private commercial property than of private homes. The court finds that Congress prescribed warrantless searches in response to a threat to an important national interest and that such searches are reasonable due to the difficulty of obtaining search warrants at sea. The statute and the Coast Guard's implementing policies limit the discretion of enforcement officers. The court finds that foreign fishing in the FCZ has become a highly regulated enterprise that cannot be entered into without knowledge that periodic federal inspections are likely.

The court also rules that the warrantless seizure of the vessel did not violate the Fourth Amendment. Noting that warrantless seizures are per se unreasonable unless within one of the limited exceptions to the warrant requirement, the court finds that the "automobile" exception, allowing seizure of a vehicle where waiting for a warrant could result in removal of the object of the warrant, applied in the case of the fishing trawler.

The court rules that the arrest of the fishing vessel under FED. R. CIV. P. C without a prior hearing did not violate the Fifth Amendment's guarantee of due process because the property was already properly in the government's custody. Finally, the court rules that the district court did not err in imposing a monetary forfeiture less than the value of the offending vessel itself. The FCMA's enforcement provisions clearly differ from those of the earlier Bartlett Act, which made full forfeiture mandatory.

The full text of this opinion is available from ELR (14 pp. $2.25, ELR Order No. C-1302).

Counsel for Appellant
Dan E. Dennis, Ass't U.S. Attorney
701 C St., Box 9, Anchorage AK 99513
(907) 271-5071

Counsel for Cross-Appellant
Dianne Olsen
431 W. 7th Ave., Suite 201, Anchorage AK 99501
(907) 274-5579

Skopil, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]