July 23: fishing with an anchored gill net in the drift netting zone, 25 CFR 258.9(a)(1).

July 24: fishing on a closed night, 25 CFR 258.11.

July 29: fishing with an anchored gill net in the drift netting zone, 25 CFR 258.9(a)(1); failing to produce an identification card while fishing, 25 CFR 258.16. August 6: fishing with an anchored gill net in the drift netting zone, 25 CFR 258.9(a)(1).

Trail.-The United States presented two witnesses, Special Agent Scott Pearson and Special Agent William Zimmerman, who testified that they had observed the defendant fishing in and around the mouth of the river with a gill net; that he was accompanied by his son, George, Jr., on at least two occasions; that he was using a net which was anchored; that they contacted him and informed him that he was in violation of the regulations and that he did not have a valid fisherman's identification card in his possession at any time.

The agents described the defendant's clothing, boat and equipment in detail but were unable to produce the net as evidence. At this early stage of the fishing run, it was not the policy of the United States Fish and Wildlife Service to seize nets and fish where a violation of the fishing regulations was observed.

The defendant produced numerous witnesses who testified that the government had not provided notice of the regulations to Indian fishermen. The defendant and his son testified that they had been using a drift net and not a set net on the occasions they were contacted by the federal agents. The defendant acknowledged that he did not have an identification card.

The United States presented rebuttal evidence that the regulations had been adequately posted and ample effort had, in fact, been made to apprise Indian fishermen of the substance of those regulations.

Verdict.-The jury found that the defendant had been fishing without a fisherman's identification card in violation of the federal fishing regulations. The jury found the defendant not guilty of all the remaining charges.

The trial encompassed 11 hours and the jury returned a verdict at 8:45 p.m. The judge suspended the defendant's fishing rights for one month and defense counsel stated that the defendant would appeal.

RAYMOND GENSAW-148

Facts. The defendant was contacted by agents of the United States Fish and Wildlife Service on the evening of October 4 in the area of Blake's Riffle, north of the 101 bridge. The defendant was in a small, wooden boat with a young girl. The boat contained a wet gill net and three salmon. Two of the salmon were still in the net.

Law.

Fishing without a fishermen's identification card, 25 CFR 258.7(a).

Fishing with an unmarked net, 25 CFR 258.8(b).

Failing to clip the fins of the salmon, 25 CFR 258.10(c).

Trial.-April 28.

The United States called Special Agent Scott Pearson and Special Agent Melvin Holt to the stand and the agents testified to the basic facts set forth above. They further indicated that the defendant admitted that he had been drift net fishing, had caught the salmon about 1⁄2 hour before they contacted him and did not have an identification card.

The defendant, represented by Henry Sockbeson of California Indian Legal Services, presented a number of witnesses who testified that the defendant had no notice of the regulations, had been fishing the river for over forty years and regularly gave the fish he caught to senior citizens and poor people.

There was considerable testimony that the defendant, a widower, was himself a needy person with a large family who needed the fish to feed his children. The value of this testimony was diluted considerably by the defendant's admission that he had worked for over ten years as a rigger for Simpson Lumber Company. One of the witnesses who testified for the defense was an elderly lady named Jessie Short, a renowned figure in the Indian community.

Verdict. The jury found that the defendant had been fishing without a fishermen's identification card in violation of the federal regulations. The jury found the defendant not guilty of the other two charges.

The trial encompassed 11 hours and the jury returned a verdict at 9:30 p.m. The judge suspended the defendant's fishing rights for one month and the defendant's counsel indicated that he would appeal the decision. The fish which had been seized were returned to the defendant but examination of the fish revealed that they had been frostbitten in storage and were unfit to eat. The defendant was

informed that he was entitled to make a claim for the value of the fish and counsel indicated that he would pursue this avenue.

MICHAEL M'COVEY-72-76

Facts. This is the companion case to the Alfred McCovey case detailed above. At the time of the first trial, Michael Golden of Redwood Legal Services indicated that he was not representing Michael McCovey and that there was a potential conflict of interests between the two cases. A Motion to Sever was, therefore, made and granted.

Air surveillance revealed a net in the Trinity River on four dates prior to Sept. 4. The defendant was observed on Sept. 4 at the base of a trail leading from Highway 86 to the river bank. At the time of the contact, agents of the USFWS had already seized two family nets which had been tied together and strung across the entire river. The net had been affixed to 13 steel fence posts and anchored to the river bottom with rocks. A rotten salmon was discovered in the net. The defendant identified himself as Michael McCovey, stated that the nets were his and that his father had an interest in them. The defendant was armed with a loaded .22 caliber pistol which he unloaded at the request of Agent Weinrich. The defendant's mother was met on the trail leading from the river to the road and angrily demanded to be arrested. The defendant's father was encountered at the top of the trail where a large crowd ultimately gathered.

Law.-The defendant was charged with the identical violations charged against his father. See Alfred McCovey case detailed above.

Trial.-May 16, 17, 18, 24, and 25.

The defendant was represented by Paul Centolella who filed the following motions prior to trial: to dismiss on the grounds that publication in the Federal Register was insufficient notice of the regulations and, therefore, violative of the Due Process Clause; that the failure of the United States to respect the capacity of the Hoopa Valley Tribe to regulate fishing by its members violates tribal sovereignty; that the Secretary lacks statutory authority to promulgate the regulations; that the regulations and their enforcement constitute a breach of the Secretary's fiduciary duty; that the Secretary's actions violate the First Amendment and the Indian Civil Rights Act; that the regulations were published without an adequate comment period; that the government failed to adequately post In-Season Adjustment 3; that the proceedings must be conducted before a judge confirmed by the Hoopa Tribe and/or a nominee must be immediately submitted for confirmation by the tribe; that summary judgment be granted as to those charges stemming from the aerial observations; that charge of fishing with materials set to form a trap be dismissed on the grounds of vagueness; that the evidence gathered as a result of the aerial surveillance be suppressed on the ground that the action of the agents violated the defendant's First and Fourth Amendment Rights; that the evidence gathered on Sept. 4 be suppressed as violative of the defendant's Fifth Amendment Rights; that the court reconsider the challenge for cause to a specific juror who had been seated; that the plaintiff be compelled to comply with the defendant's discovery request. That the case be dismissed on the ground of discriminatory enforcement of the law. The defense set forth two affirmatives defenses: Freedom of Religion and Mistake of Law.

There was some question prior to trial as to the appearance of the jury. It was, therefore, determined that the trial should be postponed for one day so that additional jurors could be summoned and voir dire conducted before trial. It should be noted that this was the first case in which a “regional jury" was designated to sit. Defense counsel had moved repeatedly for all-Hoopa or all-Klamath juries on the ground that this was required by the 7th Amendment. The court acceded to the request in this case because the defendant had appeared at Klamath on three previous occasions for jury selection and on each occasion, the number of persons who appeared for empanelment was sufficiently small that it had been impossible to select a jury. The jury for this case was, thus, composed entirely of persons who live in Hoopa. The defendant and most his family are lifelong residents of Hoopa. The United States produced three witnesses who had participated in the seizure of the net on September 4. One of these witnesses, Alva Weinrich, conducted the air surveillancee on the dates prior to September 4.

The agents testified at length about the events which occurred on September 4. Their testimony included, but was not limited to the following: that they approached the bank of the Trinity River approximately one-quarter mile downstream from the area where the defendant's net was located. The agents stated that this tack had been adopted because precipitous cliffs in the area precluded them from observing the exact location of the net from the road above the river. They further

testified that they approached the net site with some difficulty due to poor footing in the river; that they observed a gill net affixed to steel fenceposts; that the net was strung across the entire river; that the net was anchored at its base by large numbers of rocks; that they removed the net from the fenceposts and discovered that there were, in fact, two nets which had been tied together; that the nets contained two fish which were badly decomposed; that one of these fish was a chinook salmon; that they brought the nets to the east bank of the river and placed them in a plastic garbage can; that they were met at that point by the defendant; that the defendant identified himself as Michael McCovey; that he was asked to and did unload a .22 caliber pistol which was in his belt; that the defendant claimed the nets in question.

The nets were introduced into evidence over the objection of defense counsel. Counsel's objection was based upon a gap in the chain of custody. A gap does, in fact, exist as the two agents who served as custodians of the records and evidence during the enforcement effort last sumer have, respectively, retired and returned to their duty station. In an effort to ocvercome this obstacle, the prosecutor presented the court with caselaw to support the proposition that, in a civil case, it is not necessary to present a perfect chain of custody. Rather, it is only necessary to present reasonable assurance that the object in question is the same object which was seized and that its condition is substantially unchanged.

The defense cross examined the United States' witnesses in great detail. The cross-examination of agent Weinrich alone took three hours. The prosecutor objected to many of the questions on the grounds of relevancy and inflammatory prejudice. He was constrained to object to numerous other questions on a variety of grounds, including but not limited to, the following: misquotation of the witness, repetition, speculation, argumentativeness, compound form and ambiguity.

The defense moved for and was granted summary judgment on those charges stemming from the aerial observations.

The defense presented a number of witnesses who testified that the defendant had been at a dance the evening of September 3, and had been at home and in bed through the morning of September 4. The defendant testified that the nets in question belonged to his mother. He further testified that he had no contact with these nets during the summer run of fish on the Trinity River in spite of the existence a large number of facts which indicated that the McCovey family relationships were very close and the family had, in fact, established a camp near the net site to facilitate their fishing efforts.

The defendant's mother, a well known and popular member of the Hoopa community testified that the nets which had been seized were hers in spite of the fact that she had not indicated ownership on the day the nets were seized.

Verdict. The jury found the defendant not guilty of all charges. They informed the clerk that the United States had failed to show that the defendant owned the net.

The trial was completed in five days and encompassed approximately 32 hours of actual court time.

NONJURY TRIALS.-DEVEROUS FRANK 57, LARRY HENDRIX 56

Facts. On August 29, 1978, agents of the United States Fish and Wildlife Service and the California State Fish and Game Department seized a large number of fish from the defendants at a campsite below the 101 bridge. The defendants were charged with fishing during a closed period.

Trial. The defendants did not request a jury trial and were unrepresented by

counsel.

The United States presented three witnesses. Agents Pearson and Farrington of the United States Fish and Wildlife Service and Captain Duncan Snell of the California State Department of Fish and Game who testified as to the facts supporting the seizure.

The court found that the evidence supported a finding of guilt against the defendant Frank but did not warrant a finding of guilt against the defendant Hendrix. The court suspended the defendants fishing rights for four months and imposed a fine of $300. The defendant immediately filed a notice of appeal.

STEPHEN LUIS 49, LOUIS WARD 50

Facts.-Agents of the United States Fish and Wildlife Service found the defendants hiding in a boat at the mouth of the Klamath River on the evening of September 4, 1978. The defendants had a wet gill net and three large, fresh salmon in the boat. The defendants were informed that they were fishing on a closed night and the salmon were seized.

Trial.-The defendants appeared for trial on February 14, without counsel. They had not requested a jury trial. The United States called agents Riley, Holt and Talkin to the stand and they testified as to the events surrounding the seizure. The defendants presented their own defense and called various witnesses to the stand.

The court found that the evidence did, in fact, sustain the charge of fishing on a closed night.

The court imposed a 30 day suspension of fishing rights on the defendants. Mr. MCCLOSKEY. As to the question of offshore fishing, I take it you have made a request to the Commerce Department and to the Fishery Management Council to oppose ocean fishing?

Mr. GERARD. That request has been made by Secretary Andrus to the Secretary of Commerce and to the Chairman of the Pacific Council.

Mr. MCCLOSKEY. But that request has been made in writing by the Secretary to the Secretary of Commerce?

Mr. GERARD. That is correct, sir.

Mr. MCCLOSKEY. I wonder if you could furnish this committee a copy of that request?

Mr. GERARD. We will provide that for the record, sir.

[The information follows:]

U.S. DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SECRETARY, Washington, D.C., March 23, 1979.

Hon. JUANITA M. KREPS,

U.S. Department of Commerce,

Washington, D.C.

DEAR SECRETARY KREPS: I am seriously concerned about the upcoming Pacific salmon fishery in light of a recent action by the Pacific Regional Fishery Management Council.

In February, prior to the Council's action to adopt this year's salmon plan, I wrote the Council and recommended significant reductions in the offshore harvest to provide: (1) a greater escapement for conservation purposes, (2) protection of the diminishing wild stocks, (3) a more equitable allocation of fish between the inside and outside fisheries, and (4) a realistic fishery for treaty Indians.

While the Council took an important step toward meeting these goals, their action falls short to such a degree that in some river systems and parts of Puget Sound, not only will there not be an inside fishery, but wild runs will be threatened and escapement for conservation will not be met.

Further reductions in the ocean catch will be required this year. I respectfully request that you seek the necessary changes in the salmon plan to protect the fishery and the rights of the inside fishers.

Sincerely,

Mr. BONKER. Would the gentleman yield?

CECIL D. ANDRUS,

Secretary.

I apologize for arriving late, but your colloquy raises some concern in my area if the Interior Department is taking an official position to call for a moratorium on ocean fishing. Is this just a personal view from BIA or is this an official Department of Interior view?

Mr. BUTERBAUGH. The Department of Interior did not take a position asking for a moratorium on ocean fishing. We asked for a reduction to allow escapement. There is no request for a moratorium.

Mr. BONKER. We are going to be hearing from Mr. Leitzell in a few minutes. Just running through his statement, he has referred to the Pacific Management Council's recent management plan which calls for even more severe reductions than outside fishermen have experienced in the past several years. I think in our area if

we are going to have even greater restriction on outside fishermen, then we are going to effectively destroy that industry, both the trollers and the charter boat fishing fleets.

So I would hope that the Government would come up with something of a balanced view because our opinion is, at least as it relates to the Pacific Management Council area, that the outside fishermen are experiencing rather traumatic reductions and if we go even further we are just going to destroy those industries. We also should recognize the various segments of the industry. We know if we place a moratorium on outside fishermen it is going to help the resources but it will also greatly benefit the inside fishermen. We should be very careful not to pit one segment against the other.

Mr. MCCLOSKEY. I agree with what the gentleman from Washington said last. Our problem has been with the drought conditions in the summer of 1976-77 on the 3-year cycle. If those fish cannot get up the river there isn't going to be any river or inside fishing. To protect the Klamath, the Secretary of the Interior did impose a moratorium on all commercial fishing. We do not have the sport limit now, two fish per person. The question is, what is the balanced commercial prohibition in the offshore fishing that should be imposed to both protect the resource and be balanced?

The problem is we have three different agencies involved: the State of California, the Bureau of Indian Affairs, and the Bureau of Sports Fisheries.

Mr. BONKER. We also have the Department of Commerce with the management councils. At least as it relates to outside fishing, it seems to me that these are proper entities to deal with the resource problem because they do take into account the inside problems and attempt to come up with a balanced fishery management plan. However, that plan is criticized by the various segments of the industry. It still is a serious attempt to come up with a balanced plan that will help preserve the resource without making one segment a victim over the other.

Mr. MCCLOSKEY. Let me make sure that the record is clear on Secretary Andrus' request to Secretary Kreps. The request was not for a moratorium, but for a reduction by an additional 15 percent of the take by offshore trollers. Am I accurate in that respect? Mr. BUTERBAUGH. OK; our position was for a 25-percent cutback, whatever was necessary to attain that 25-percent reduction. The estimate we have now is that the steps we are taking probably result in about a 15-percent reduction. What we are talking about is roughly another 10 percent.

Mr. MCCLOSKEY. Let me see if I can verify the figures from last year. Last year you predicated your regulations on the fact that there would be, as I recall, something like 12,000 fish taken for subsistence, 8,000 for sport, and you were prepared to permit an additional 35,000 for commercial taking.

Am I correct?

Mr. BUTERBAUGH. I believe those numbers are roughly accurate. I don't have them in front of me now.

Mr. MCCLOSKEY. 12,000 for subsistence, 8,000 for sport, and that would have meant 15,000, as I recall, for the commercial fishery. I want to have these figures accurate.