Hoh Indian Tribe v. Hudson
No. HOH-CrF-1/93-007 (March 25, 1994)

Before: Chief Justice Elbridge Coochise, Associate Justice Charles Hostnik, and Associate Justice John L. Roe.
Appearances: Yvonne Hudson, spokesperson for Appellant, Howard Hudson; Deborah Wagner, prosecutor, representing Respondent, Hoh Indian Tribe.


Plaintiff, Hoh Indian Tribe, filed a criminal complaint pursuant to Hoh Fishing Ordinance section 7.6, against Defendant, Hudson. Plaintiff alleged that defendant physically interfered with Steven Penn's ability to fish while Penn was actively engaged in fishing in the usual and accustomed fishing areas. Defendant was convicted and sentenced in Hoh Tribal Court. Defendant appeals the order.
COOCHISE, Chief Justice:
Howard Hudson appeals the Judgment and Sentencing Order, contending that the Hoh Tribe failed to prove beyond a reasonable doubt that the alleged incident interfered with Steven Penn's ability to fish, that Steven Penn was actively engaged in fishing and that the alleged incident occurred on the waters within the usual and accustomed fishing areas.


The Tribe alleged that on January 18, 1993, Mr. Hudson physically interfered with Steven E. Penn, Jr., who was actively engaged in legal fishing activity when he was hit by Mr. Hudson.
On March 30, 1993, the Hoh Tribe filed a criminal complaint which cited Howard D. Hudson with Interference With Fishermen as proscribed under section 7.6 of the Hoh Indian Tribe Fishing Ordinance, which states:
It is unlawful to physically interfer [sic] disturb, or harass a fishermen actively engaged in legal fishing activity on waters within the usual and accustomed fishing areas of the Tribe.
On September 21, 1993, the Defendant was found guilty of Interference With Fishermen in a bench trial. Sentencing occurred on November 23, 1993, and this appeal followed.


Interference With Fishermen requires the Hoh Tribe to prove beyond a reasonable doubt that (1) the Defendant physically interfered, disturbed, or harassed a fisherman, (2) who was actively engaged in legal fishing activity and, (3) was on waters within the usual and accustomed fishing areas of the Hoh Tribe. Fishing Ordinance, Section 7.6.
It is a general principle in non-tribal systems of justice that in reviewing the sufficiency of the evidence, "the question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Hansen, 122 Wn.2d 712, 729 (1993) (see cases cited).
The trial court is best suited to determine factual issues. The trial court has the opportunity to hear and observe all of the testimony and determine the credibility and reliability of the witnesses. The Appellate Court, in reviewing the trial court's decision, will not overturn such decision unless there is nothing in the record which supports that decision.Duenas v. Puyallup Tribe, 1981-1992 Appellate Ct. Opinions, 71, 72 (1990).
There is no doubt that the Defendant assaulted Steven Penn. Steven Penn's testimony, as well as other circumstantial evidence, all pointed to the fact that an assault occurred. However, an essential element of Interference with Fishermen is whether Penn was actively engaged in fishing activity at the time the unlawful interference occurred.
This Court did not find a definition of the phrase "actively engaged" in the Hoh Fishing Ordinance. No evidence was introduced regarding the Hoh Business Committee's enactment of this section of the ordinance that would explain the intended meaning or goal of the ordinance or what activity would fall within the active engagement of fishing.
A general principle of statutory construction is that effect is to be given to every word. In construing the word "actively" against the background of the facts in this case, the Hoh Tribe argued that Steven and Essau Penn (the other person at the scene of the assault) were at the river and Steven Penn was holding an anchor when he was assaulted. The Hoh Tribe also argued that Penn did not need to be engaged in fishing at the moment he was assaulted. However, this would not give any effect to the word "actively" as an element of the offense charged.
The language of the ordinance indicates that actual fishing activity must be taking place in order to interfere, disturb or harass a fisherman. The Hoh Tribe argued that the ordinance intended to address fights occurring at the river while people were traveling to and from the fishing areas. That intent is not clearly expressed in the language used in the ordinance. Instead, the ordinance contains definite language of "actively engaged in legal fishing activity."
The trial court's findings of fact that Steven Penn had a net set in the river, capable of catching fish at the time of the alleged incident was not supported by the evidence. There was no testimony that Steven Penn had a net set in the river or where the net was located. The drawing submitted into evidence was not introduced to determine Steven Penn's fishing location but rather the general area where the assault took place. There was no evidence concerning what type of "fishing activity" Penn was actively engaged in at the time of the assault or that he was even engaged in fishing activity.
According to testimony, Mr. Penn was picking up his anchor. His boat was not in the water at the time, but was on the beach. In response to the question "were you fishing on the river . . . when this incident happened?," the victim responded, "Yes." This is the only evidence that the victim was fishing at the time of the assault. There is no corroborating evidence of the type of fishing activity that Penn was engaged in other than Mr. Penn's conclusory statement that he was "fishing."
Moreover, the Hoh Tribe failed to introduce evidence that proved the time element. The testimony is that Penn was engaged in fishing on the water prior to the assault and that the assault occurred on the beach. However, there is no testimony regarding how much time transpired between the fishing activity on the water and the assault on the beach. The time element is crucial in determining whether or not a fishing activity was still being engaged in by Penn, when he was assaulted.
In addition to proving the fisherman was actively engaged in fishing activity, the Defendant argued that it must also be proven that the fisherman was actively engaged in legal fishing activity at the time of the alleged violation. The Defendant argued that Mr. Penn was with Essau Penn, a non-member, and therefore could not have been legally fishing. Non-tribal members are not authorized fishermen under Section 4.2 of the Hoh Indian Tribe's General Fishing Ordinance No. 78-9-01.
The Court finds it is unnecessary to address the other elements of Interference with Fisherman. The Hoh Tribe has failed to meet the burden of proving beyond a reasonable doubt that the appellant interfered with Steven Penn while actively engaged in fishing, which is an essential element of the offense charged; therefore, based upon the foregoing discussion,


IT IS HEREBY ORDERED that the trial court is reversed.
HOSTNIK and ROE, Associate Justices, concur.