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United States v. Ertsgaard



In this case, the Ninth Circuit reversed the district court’s pre-trial dismissal of an indictment against a commercial fisherman for two violations of the Lacey Act.[1] Because the regulations the fisherman was charged with violating were promulgated under authority of the Northern Pacific Halibut Act of 1982 (Halibut Act),[2] and not the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act),[3] the court concluded the regulations did not fall within the Lacey Act’s exceptions and the government properly charged the fisherman.

Ertsgaard, a commercial halibut fisherman, allegedly violated the Lacey Act by knowingly submitting a false Individual Fishing Quota (IFQ) Landing Report[4] and by trafficking halibut obtained in violation of federal law.[5] The Lacey Act imposes civil and criminal penalties for trafficking in fish, wildlife, or plants in violation of some other provision of federal, state, foreign, or Indian tribal law.[6] In addition, the Lacey Act makes it unlawful to submit false records relating to the transportation or intended transportation of “any fish, wildlife, or plant in . . . interstate or foreign commerce.”[7] However, the Lacey Act exempts actions “regulated by a fishery management plan in effect under the [Magnuson-Stevens Act].”[8]

Ertsgaard argued that the IFQ regulations under which he was charged were promulgated under the Magnuson-Stevens Act, therefore exempting him from prosecution under the Lacey Act. According to Ertsgaard, the North Pacific Fishery Management Council (Council)[9] developed the IFQ regulations at issue, and because the Magnuson-Stevens Act created the Council, regulations developed by the Council are “fishery management plans.” The government contended that the IFQ regulations did not constitute a “fishery management plan” and that the regulations were promulgated under the Halibut Act, rather than the Magnuson-Stevens Act. If this were the case, the Lacey Act’s exemptions would not apply to Ertsgaard’s alleged violations.

The Ninth Circuit held that the IFQ regulations for halibut were promulgated under the authority of the Halibut Act rather than the Magnuson-Stevens Act. Although the Magnuson-Stevens Act created the Council, the Halibut Act granted the Council authority to promulgate regulations concerning the harvest of halibut. The Halibut Act states that the “[Council] may develop regulations governing the United States portion of Convention waters . . . which are in addition to, and not in conflict with regulations adopted by the [International Pacific Halibut Commission].”[10] The court based its holding on the fact that when the IFQ regulations were first published in 1993, the explanatory notes in the Federal Register clearly stated that the rules were enacted under the authority of the Halibut Act. Furthermore, the explanatory notes stated that the Council did not have a fishery management plan for halibut. Therefore, the IFQ regulations Ertsgaard allegedly violated were not part of a fishery management plan and were not promulgated under the Magnuson-Stevens Act. As a result, Ertsgaard was properly indicted under the Lacey Act.

[1] Lacey Act Amendments of 1981, 16 U.S.C. §§ 3371-3378 (1994 & Supp. IV 1998).

[2] 16 U.S.C. §§ 773-773k (1994 & Supp. IV 1998).

[3] Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1883 (1994 & Supp. IV 1998).

[4] 16 U.S.C. § 3372(d) (1994).

[5] Id. § 3372(a).

[6] Id. §§ 3372(a), 3373 (penalty provisions).

[7] Id. § 3372(d).

[8] Id. § 3377(a).

[9] The Magnuson-Stevens Act established the North Pacific Fishery Management Council, which is one of eight regional fishery management councils. 16 U.S.C. § 1852(a)(1)(G) (1994 & Supp. IV 1998).

[10] 16 U.S.C. § 773c(c) (1994).

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