Ketchikan Packing Company et al., Appellants v. Fred A. Seaton, Secretary of the Interior, et al., Appellees, 267 F.2d 660 (D.C. Cir. 1959)

Appellants attack¹  the validity of an order of the Secretary of the Interior dated March 7, 1959, 24 Fed.Reg. 2053-71, which has the effect of prohibiting the use of fish traps in Alaskan waters effective April 18, 1959.²  The order recites its authority as being Section 1 of the White Act,³  and before this court the Secretary argued that the White Act has been so amended by Section 6(e) of the Alaska Statehood Act⁴  as to compel him to order the prohibition. In promulgating the order, the Secretary says he merely complied with a statutory duty imposed by Congress.

The so-called Westland proviso contained in Section 6(e) of the Statehood Act reads:

" [T]he administration and management of the fish and wildlife resources of Alaska shall be retained by the Federal Government under existing laws until the first day of the first calendar year following the expiration of ninety legislative days after the Secretary of the Interior certifies to the Congress that the Alaska State Legislature has made adequate provision for the administration, management, and conservation of said resources in the broad national interest * * *."⁵  (Emphasis added.)

On January 3, 1959, simultaneously with the effective date of the Statehood Act, the Constitution of the State of Alaska became effective and with it three ordinances adopted by the people of Alaska along with the Constitution. Ordinance No. 3 provides:

"As a matter of immediate public necessity, to relieve economic distress among individual fishermen and those dependent upon them for a livelihood, to conserve the rapidly dwindling supply of salmon in Alaska, to insure fair competition among those engaged in commercial fishing, and to make manifest the will of the people of Alaska, the use of fish traps for the taking of salmon for commercial purposes is hereby prohibited in all the coastal waters of the State." H.R.Rep. No. 624, 85th Cong., 2d Sess., app. A, 83 (1957).

The Secretary read the words "under existing laws" in the Westland proviso as including Ordinance No. 3 of Alaska, and concluded that the Statehood Act which "accepted, ratified and confirmed" the Alaska Constitution, amended the White Act by prohibiting the use of such traps in Alaskan waters as set forth in the ordinance. In other words, the Secretary argues that the Congress did not intend that he should suspend the Alaskan ordinance, adopted by popular vote along with the Constitution, in the interim period while he administered the state's wildlife resources.

One key consideration in the problem is that we are dealing with a transition measure — a temporary, not a permanent, provision. What was the intention of Congress concerning the interim transition period between federal territorial control and full statehood? In effect the Westland proviso makes the Secretary a "trustee" for both the federal government and the new state "in the broad national interest" during the transition of administration from the federal to the state authorities. The Secretary, in that unique capacity, could not reasonably disregard a valid law of Alaska which was "existing"⁶  on January 3, 1959, the effective date of the Alaska Statehood Act which defined his powers over wildlife resources for the interim period commencing on that date.

We would ignore the obvious were we to fail to state that the question posed to us is close; no reading of the words of the statute, no part of the legislative history, no contemplation of a possible objective leads with absolute certainty to a clear answer. In such a situation, while the Secretary's interpretation of the powers conferred upon him by Congress is not binding on the courts⁷  nevertheless it is entitled to considerable weight. In this instance his interpretation is reasonable, and it is consistent with the congressional plan for interim administration of natural resources described in the Westland proviso.⁸  We think his view should be sustained.

Of necessity, in this unique interim situation, the Secretary must apply a federal sanction to effect the enforcement of a state law. See footnote 3 supra. This apparent anomaly can be explained only by reference to the fact that in this transition of authority the Secretary is operating in a dual capacity.

We have considered appellants' other contentions, including the argument that procedural errors occurred in the notice and hearings on the Secretary's action prohibiting fish traps, and we find no error which affects the validity of the Secretary's action.

The stay granted by this Court April 14, 1959, is therefore dissolved and the judgment of the District Court is

Affirmed.