Commercial Fisheries Entry Commission v. Apokedak

DIMOND, Senior Justice,

with whom BURKE, Justice, joins, concurring.

I concur in the court’s opinion that under the facts of this case the Limited Entry Act is not shown to violate the equal protection clause of the fourteenth amendment to the Federal Constitution, nor the provision in article I, section I of the Alaska Constitution which is dedicated to the principle (among others) that all persons are equal and entitled to equal rights, opportunities, and protection under the law. Nevertheless, I wish to point out that present operation of the Act does raise a serious constitutional issue.

In the Act’s initial operation, I must agree that the circumstance of holding a gear license bore a fair and substantial relationship to a designated purpose of the Act — to avoid unjust discrimination in the issuance of entry permits. 1 But as the issuance of permits has progressed, and continues to progress, I believe I can detect a continuously developing classification of discrimination which, in my opinion, will result in injustice or unfairness, if this has not already occurred.

What I am referring to is the legislature’s action in permitting entry permits to be transferred, 2 which has resulted in the permits being sold for very high prices. The statistics of the Commercial Fisheries Entry Commission show that in 1978 the highest prices paid for entry permits range from $30,000 to $60,000, depending upon the particular fishing area involved and the type of gear used. 3 This situation has the effect of creating another classification: on the one hand, the person with abundant financial resources; and on the other, a person of considerably more modest means. It seems to me that the Act is having the ultimate effect of favoring the well-to-do over the poor. In my opinion, this discrimi *1269 nation is basically unfair or unjust, and does not conform to the principle in article I, section I of our Constitution which requires equality of treatment of persons in the state.

I am also disturbed about another facet of the sale of entry permits. There were bound to be far more applicants than the number of permits that could be issued. In attempting to solve this problem, the basic thrust of the legislation was to rank applicants according to the degree of economic hardship they would suffer by exclusion from the fishery. Thus, those who could demonstrate a greater hardship would be favored in the issuance of permits. 4 This was certainly a legitimate way of solving the dilemma the state was in when it found that it was obliged to reduce the amount of gear used in the fishery, which in turn would require a reduction in the number of fishermen allowed to participate in the commercial fishery of the state.

For a growing number of permit holders, however, hardship is not a factor being considered. From a study and report made by Dr. Steve Langdon of the University of Alaska at Anchorage, dated October 15, 1979, 5 it appears that of the total number of entry permits issued, approximately 42 percent of these have been sold or transferred to other persons. All that the buyer of the permit has to do is “establish present ability to participate actively in the fishery.” AS 16.43.170(b). There is no requirement that hardship be demonstrated. This results in another unjust classification: applicants for entry permits must demonstrate economic hardship in order to receive a permit; permit transferees need not make such a showing. I see no reason why transferees (close to one-half of the permit holders) should be favored over applicants in such a manner. The result is especially unfair because many persons in Alaska who could not afford the cost of a permit for sale might well be able to demonstrate a genuine hardship in being excluded from the fishery.

The means established by the legislature for distributing entry permits was certainly commendable when the Act first became operative. But with the passage of time, and the presence of AS 16.43.170 permitting the transfer of permits (for large sums of money), the original legislative purpose to regulate and control the entry into the commercial fishery of Alaska without unjust discrimination has become considerably weakened.

I concur in the court’s opinion because the provisions regarding transfer of permits were not challenged in this case.

. AS 16.43.010(a) provides:

It is the purpose of this chapter to promote the conservation and the sustained yield management of Alaska’s fishery resource and the economic health and stability of commercial fishing in Alaska by regulating and controlling entry into the commercial fisheries in the public interest and without unjust discrimination. [Emphasis added.]

. AS 16.43.170.

. Alaska Commercial Fisheries Entry Commission, 1978 Annual Report, Appendix A, Table 3 (April 1979).

. AS 16.43.250(a) provides:

Following the establishment of the maximum number of units of gear for a particular fishery under § 240 of this chapter, the commission shall adopt regulations establishing qualifications for ranking applicants for entry permits according to the degree of hardship which they would suffer by exclusion from the fishery. The regulations shall define priority classifications of similarly situated applicants based upon a reasonable balance of the following hardship standards:

(1) degree of economic dependence upon the fishery, including but not limited to percentage of income derived from the fishery, reliance on alternative occupations, availability of alternative occupations, investment in vessels and gear;

(2) extent of past participation in the fishery, including but not limited to the number of years participation in the fishery, and the consistency of participation during each year.

. S. Langdon, Preliminary Report on Transfer Patterns of Alaskan Limited Entry Fisheries Permit Holders (October 15, 1979) (for the Limited Entry Study Committee of the Alaska State Legislature).