## Facts

- Alaska’s Limited Entry Act required a permit for certain commercial fishing, including the Bristol Bay fishery.
- In 1981, a superior court ruled certain permit-transfer provisions unconstitutional; the State appealed.
- In 1983, before the appeal was decided, Harold C. Ostrosky fished commercially without the required permit and was charged and convicted.
- Ostrosky claimed he believed fishing without a permit was lawful because of the 1981 superior-court decision and what he understood about related litigation.
- After a remand hearing, Ostrosky’s attorney testified he did not tell Ostrosky he was “free to fish,” but instead warned that fishing during the appeal was risky and the decision could be reversed.
- The superior court found Ostrosky knew the 1981 ruling was on appeal, credited counsel’s testimony over Ostrosky’s, and concluded Ostrosky failed to prove a reasonable mistake-of-law defense.

## Issues

1. Whether Ostrosky proved, by a preponderance of the evidence, an affirmative defense of reasonable mistake of law based on an “official misstatement.”
2. Whether reliance on a trial-court ruling declaring a statute unconstitutional, when the ruling is known to be on appeal, can be objectively reasonable.
3. Whether the superior court properly applied the burden of proof and made findings reviewable only for clear error.

## Decision

- The Court of Appeals affirmed the conviction and sentence.
- The court held the superior court did not clearly err in finding Ostrosky’s reliance on the 1981 decision unreasonable because it was pending appeal and subject to reversal.
- The court upheld the superior court’s credibility determinations, including crediting the attorney’s testimony and rejecting Ostrosky’s conflicting account.
- The court concluded Ostrosky failed to establish the mistake-of-law defense by a preponderance of the evidence.

## Legal Principles

- Alaska recognizes a narrow affirmative defense of reasonable mistake of law based on an official misstatement, which the defendant must prove to the court by a preponderance of the evidence.
- The defense requires objectively reasonable reliance on the asserted legal authority, not merely a sincere belief.
- Appellate review of the trial court’s factfinding and credibility determinations is for clear error.
- Reliance on a nonfinal trial-court decision known to be on appeal may be found unreasonable, particularly where the defendant is aware of the risk of reversal.

## Conclusion

The court affirmed Ostrosky’s conviction for fishing without a limited-entry permit because the trial court permissibly found that reliance on a superior-court decision pending appeal was not objectively reasonable and that Ostrosky did not carry his burden to prove the mistake-of-law defense by a preponderance of the evidence.


Ostrosky v. State, 725 P.2d 1087 (Alaska Ct. App. 1986)