Opinion
No. 82-285-C-2, CA A24871 No. 82-295-C-1 No. 82-303-C-2 No. 82-292-C-2 No. 82-296-C-2 No. 82-300-C-2 No. 82-279-C-3 No. 82-282-C-2 No. 82-283-C-2 No. 82-290-C-1, and 82-291-C-1 No. 82-307-C-3 No. 82-280-C-2
Argued and submitted October 29, 1982
Reversed and remanded December 22, 1982, Reconsideration denied March 11, petition for review denied March 29, 1983 ( 294 Or. 682)
Appeal from Circuit Court, Jackson County.
L. L. Sawyer, Judge.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Attorney General, and William F. Gary, Solicitor General, Salem.
G. Philip Arnold, Jackson County Legal Services, Inc., Medford, argued the cause and filed the brief for respondents.
Before Richardson, Presiding Judge, and Thornton and Van Hoomissen, Judges.
VAN HOOMISSEN, J.
Reversed and remanded for trial.
Defendants were charged with possession of food fish unlawfully transported under the laws of another state. ORS 509.105. The state appeals a pre-trial order allowing defendants' motions to dismiss for lack of jurisdiction.
ORS 509.105 provides:
"It is unlawful to possess, import into this state or transport within this state any food fish which have been unlawfully taken or transported under the laws of another state."
The state contends that the illegal "other state" transportations were violations of California Fish and Game Code § 8685.6. Defendants contend that California law does not apply to them or to any fish caught by them on the Hoopa Valley Indian Reservation, no matter where the fish are subsequently possessed or transported by them, because their fishing activities are subject to the federal Supremacy Clause and pre-emptive regulations of the federal government; specifically, regulations promulgated by the Secretary of the Interior. The trial court accepted defendants' contention. Its order of dismissal provides, in material part:
It was stipulated in the trial court that all defendants were Indians meeting the requirements of 25 C.F.R. § 258.5.
"Based on the stipulations of counsel, the pleadings, the memoranda filed herein, and the arguments of counsel, the Court finds that actions of the defendants in catching fish on the Hoopa Valley Indian Reservation and the transportation of said fish after being caught are matters subject to exclusive federal jurisdiction pursuant to 25 C.F.R. Part 258. California law does not apply to said persons or actions and thus, without California ('another state') jurisdiction, there is no jurisdiction of this Court pursuant to ORS 509.105.
"It is thereby ordered that these cases are hereby dismissed for lack of jurisdiction."
The trial court confused matters of jurisdiction with matters of defense. See State v. Smith, 51 Or. App. 223, 227, 625 P.2d 1321, rev den 291 Or. 118 (1981).
Reversed and remanded for trial.