Hynes v. Grimes Packing Co. (185 F.2d 338, 1950)

ta-catajt a at m.- t t j DENMAN, Chief Judge.

This is -an appeal from a final decree enjoining appellant from seizing the boats and gear and otherwise interfering with the fishing of the appellees for salmon in the waters of-the Shelikof Strait,, within the boundaries, of the Karluk Indian Reservation, “by way of enforcing restrictive provisions of Section 208.23(r) of the 1946 Alaska Fisheries General Regulations or any other regulations of like or substantially like import which may be hereafter promulgated or attempted to be promulgated by the Department of Interior of the United States of America through its Fish and Wildlife Service or otherwise.” The decree was made on the purported requirement of the mandate of the Supreme Court in the case of Hynes v. Grimes Packing Co., -jo'y t t o o/- cr\ o /-«a. n/ro tl u í. 337 U.S. 86, 69 S.Ct. 968. It was substan- ^ • • 11 1 u *1. j* tially the same as originally made by the aisA trict court save that there was added the matter after the words “General Regula- „ 10nS’

. . . The decree is made m a suit m equity in which one of two issues tendered sought to have declared void Public Land Order 128 issued by the Secretary of Interior, hereafter called the Secretary, creating a reservation for the Karluk Indians, including an area in Shelikof Strait extending 3000 feet in the waters of the strait beyond the short line at mean low water. The reservation was made under the -authority of Section 2 of the Act of May 1, 1936, 49 Stat. 1250, 48 U.S.C.A. § 358a, -authorizing the Secretary to create an Indian Reservation out of the “public lands” in Alaska. The district court held the Public Land Order invalid because such waters below mean low water are not public lands. -67 F.Supp. 43. This court of appeals affirmed. Hynes v. Grimes Packing Co., 165 F.2d 323. The Supreme Court, 337 U.S. 86, 69 S.Ct. 968 reversed, Hynes v. Grimes Packing Co., supra, holding that such waters are public lands and the Secretary’s Public Land Order creating the reservation therein is valid.

The sole remaining issue tendered by the complaint for the consideration of the district court is the validity of the Secretary's Alaska Fisheries General Regulation § 208.23 (r). This, in effect, purports to give to the Karluk Indians a monoply of the fishing in the reservation waters, including the waters of Shelikof Strait, to be shared in by appellees and others only if granted permits by the Indians. Its provisions are :

“Sec. 208.23. Waters closed to salmon fishing. All commercial fishing for salmon is prohibited as follows:

“(r) All waters within 3,000 feet of the shores of Karluk Reservation (Public Land 0rder No. 128, May 22, 1943), beginning. at a point on the east shore of Sheli_ kof Strait. on Kodiak Island, latitude 57° 32, 3(r thence northeasterly along said s^ore t0 a p0jnt 57° 39' 49"

r „ ihe foregoing prohibition shall not - ,, t . , . apply to fishing by natives in possession of . / . „ . . „ said reservation, nor to fishing by other , * , ® ; pe™ns natives (49 Stat. 1250, 48 U.S.C. 358a [48 U.S.'C.A. § 358a]). Such authority shall be granted only by Qr pursuant to ordi. nance of ^ Native yillage of Karluk> ap_ proved by ^ Secretary of the Interior Qr bis duly authorized representative.” 11 -p. , -n qcoo ’

Tb* sole rflef sou^ht ^ the “mplaint 0n this sm§’le remaining issue is That “P0? suf heann? this court enter a final orfer afJ"dfand decreein& said subsection 208.23(r) of the Alaska Fishenes General Regulatmn null and void and of n0 leSaI effect" and that the dis' the aPPellees since Jul7 2S> 1949< have been the $2 or $S Permit fees wlthout even waltm§' for the Secretary’s approval of the ordinance on September 8> 1949‘ As appellant’s brief admits, “the appellees did not assert excessiveness of the fees and tke dlstn'ct court dld not en“ Jom enforcement of those either previously or Presently required. The ordinance, if existinS> affords no ground for the dismissad tbe complaint.

(C) Since there are no new proposals or 'timely steps taken within the sole re-maining issue tendered by the complaint,. the district court should have decreed an injunction substantially the same as the-permanent injunction it first decreed.

The decree here appealed from folkws mandate, that is, it is substantially tke same as the permanent decree the discourt originally issued save that it added after the words by way of enforcing restrictive provisions of Section 208.23 (r) the 1946 Alaska Fisheries General Regulations” the words “or any other reg-unions of like or substantially like import whidl ma7 hereafter be promulgated or attempted to be promulgated by the Department of the Interior of the United States of America through its Fish and Wildlife Service or otherwise.”

Such an addition was not sought by-either party. Appellees’ motion for judg-ment on the mandate sought only a decree-enjoining the defendant Hynes and all acting in concert with him in accordance with the terms of the permanent injunction entered herein on November 6, 1946. The-added matter was by the court sua sponte.

We agree with the statement of appellant’s brief that the injunction, purportedly-on the basis of the mandate, goes wholly ¡beyond the mandate or the relief sought at any time. The question of future regillations by the Fish and Wildlife Service was not in tlie record and was not reviewed by the Supreme Court. Control of future regulations was not asked for in the complaint. Even more remote to the scope of this case are future regulations through agencies other than the Fish and Wildlife Service covered by the words “or otherwise.”

The injunction decreed is ordered modified by the omission of the words after the words Alaska Fisheries General Regulation and as so modified the decree is affirmed.

14 F.R. 3283.