State v. Bundrant

ORDER DENYING PETITION FOR REHEARING ERWIN, Justice. Appellees in cases # 2435 and 2444 have petitioned for rehearing, alleging there was no factual basis for the assertions made in the opinion herein. Appellees assert they did not join in the agreed statement of facts presented in case # 2295 and that there was no hearing in the trial court, so that most factual allegations in the opinion are disputed and without foundation. Appellees apparently overlook those portions of the depositions of James Brooks,1 Burdett Lechner,2 Guy Powell,3 Peter Jackson4 and John McMullen,5 which they attached to their motion to dismiss. Additionally, the affidavits of John McMullen 6 and Larry Edfelt7 were filed in the case #2295, along with the stipulation of facts. Court opinions in Hjelle v. Brooks8 and State v. Wakefield Fisheries, Inc.,9 which have been cited by all parties to this law suit, provide a historical factual background of undisputed facts to this long-running controversy. Additionally, the 1970 Annual Report of the North Pacific Fisheries Commission on Crab Fisheries in the Eastern Bering Sea10 and publications by the Alaska Department of Fish and Game provide published 11 information which the court can rely on in reaching its decision.12 [839] In any event, appellees have not been precluded from raising specific defenses based on matters not previously determined by the trial court.13 By Direction of the Court, It Is ORDERED : The petition for rehearing is denied. BOOCHEVER, C. J., and BURKE, J., did not participate in consideration of the petition for rehearing. Footnotes [1] R. 122-138 (Case #2444). [2] R. 161-172 (Case #2444). [3] R. 173-177 (Case #2444). [4] R. 178-180 (Case #2444). [5] R. 181-183 (Case #2444). [6] R. 33-47. [7] R. 48-52. [8] 377 F.Supp. 430 (D.C.Alaska 1974). [9] 495 P.2d 166 (Alaska 1973). [10] See McMullen and Yoshihara, “King and Tanner Crab Fisheries of the United States in the Eastern Bering Sea, 1966-1970.” Int. No.Pac.Fish.Comm., 1970 Annual Report, p. 104-110. [11] McMullen and Yoshihara, “The King and Tanner Crab Fishery of the Alaska Peninsula • — -Aleutian Islands Management Area, 1969-70,” Alaska Department of Fish and Game, Info. Leaf. No. 148; McMullen, Yoshihara and Geiger, “The King Crab Fisheries of the Alaska Peninsula and Aleutian Islands, 1970-1971,” Alaska Department of Fish and Game Info. Leaf. No. 157. [12] See also Reardon, “Alaska’s King Crab Fishery,” Alaska Magazine (March, 1976). [13] See footnote 108, 646 P.2d page 556, Opinion #1232.