Isakson v. Rickey

CONNOR, Justice

(dissenting).

I respectfully dissent.

As I interpret the legislative purpose, it was to freeze or reduce the amount of gear used in overcrowded fisheries. 1 The statute as passed gives a free entry permit to a portion of those persons who had held a gear license previously, 2 that portion to be determined on the basis of hardship. 3 Those who have never held gear licenses, even if they have fished as crew members, will not receive free entry permits. This will not prevent them from continuing as crew members. See AS 16.43.140(b). It only prevents such individuals from advancing to the point of operating new units of gear, until and unless someone already operating gear ceases doing so and transfers his license, no doubt in return for a cash payment. See AS 16.43.170; AS 16.-43.180. Fishermen who have previously been issued a gear license but have since retired, and hence who do not represent an existing unit of gear, will presumably be excluded under the second-stage “hardship” screening of AS 16.43.250. 4 While *367 not perfect, this scheme appears to bear a fair and substantial relationship to the legislative purpose of freezing or reducing certain fisheries — that is, prohibiting advancement or new entry by fishermen who put more gear in the water and take more fish out.

Such an approach to distributing a scarce resource has been widely used in other contexts. For example, a state is not prohibited from implementing a change to “prior appropriation” doctrine in water law. Connecticut v. Massachusetts, 282 U.S. 660, 670 , 51 S.Ct. 286 , 75 L.Ed. 602 (1931); United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 702-03 , 19 S.Ct. 770 , 43 L.Ed.2d 1136 (1899). 5

This, then, is the content and purpose of the statute as it passed the legislature in 1973. During the course of passage, certain members of the public, upon receiving news that a limited entry bill was proposed, rushed to purchase gear licenses in the early months of 1973, apparently in an attempt to “grandfather” themselves into the new law. The increase in license applications was unprecedented, averaging as high as 75% in March, and soaring to 148% for trolling licenses for the period between January 1st and April 20th. 6 Thus it became apparent that many people who had never had gear licenses before were now attempting to move up in the world — a result antithetical to the freeze envisioned by the legislature.' 7 Thus it is not at all surprising that the legislature decided to increase the importance placed upon a potential applicant’s prior ownership of a gear license as a means of preventing advancement within the industry. This was in keeping with the general priority policies already inherent in the proposed statutory scheme.

The majority’s conclusion that “hardship” alone as a criterion can weed out unworthy newcomers misses the point. As noted above, a constitutionally permissible “prior use” principle is manifested in the bill as finally passed, apart from the concept of unmodified hardship. “Hardship” as defined in AS 16.43.250(a)(2) includes consideration of “past participation in the fishery.” That the legislature should, in the light of the 1973 gear rush, have decided to place a stronger emphasis upon this factor as it relates specifically to gear license holders, and not mere ambitious crewmen, offspring or unlicensed part-owners, is not unconstitutional in light of a legislative purpose to freeze these other individuals into their positions in order to protect the economics and ecology of the industry. For such individuals to acquire their own gear and licenses is either to allow more gear in the water, or to freeze out previous owners of gear and licenses. But freezing out previous owners violates the “prior use” concept; the legislature may well have considered it “unjust discrimination” under AS 16.43.010, in that it unfairly discrimi *368 nates against those who previously held licenses. The majority’s equation of a lack of “unjust discrimination” with only “hardship” determinations is totally unjustified. If that had been the case, then I fail to see why the legislature used two different terms for the same concept. I would find instead that a lack otf “unjust discrimination” encompasses both the “hardship” and “prior use” principles.

The legislature decided to cover the “gear rush” situation by painting with a broad brush. It made ineligible all would-be applicants who had not obtained their gear license before January 1, 1973, and widely publicized the fact that newly acquired gear licenses would be of no aid in obtaining entry permits thereafter. For initially “distressed fisheries” it also made hardship determinations depend solely on an applicant’s qualifications as of January 1, 1973. See AS 16.43.260(d), quoted in note 1 supra. Although appellants claim this change would have been sufficient, it is unclear as a matter of logic that it would have been. See note 7 supra. In addition to that problem, the legislature apparently wanted to be able to advertise that getting a gear license for the first time in 1973 would not count in any way toward getting an entry permit.

Making those who held no gear licenses before 1973 ineligible to even apply is an obvious way of putting teeth into this program. The restrictions of subsection (d) only applied to initially “distressed fisheries”, and not to those fisheries designated by the commission after January 1, 1975. It is interesting to note that once the 1973 gear rush crisis had passed, the legislature relaxed, but did not remove, some of the harshness of the application restrictions concerned in this appeal. See note 1 supra. This might indicate that the legislature was attempting to avoid any major increase in licenses granted for the 1973 season itself, in the interests of conservation. That these measures succeeded in cutting the rate of increase from 75% to 23% must be strong evidence that they bear a close and substantial relationship to their purpose. 8 That they were not overly harsh is attested by' the fact that a 23% increase was still exceptional. See note 6 supra.

The legislature’s measures do not include all hardship cases and exclude all non-hardship cases. This does not negate the obvious rational basis for the provision. It is not and cannot be required that a legislative measure carve out distinctions with “mathematical nicety.” See Morey v. Doud, 354 U.S. 457, 463 , 77 S.Ct. 1344 , 1 L.Ed.2d 1485 (1957). Since at least West Coast Hotel Company v. Parrish, 300 U.S. 379 , 57 S.Ct. 578 , 81 L.Ed. 703 (1937), it has been established that great deference will be paid to economic regulation by a legislature in the face of constitutional attack. We are not confronted with a “suspect” or near-suspect classification, see Reed v. Reed, 404 U.S. 71 , 92 S.Ct. 251 , 30 L.Ed.2d 225 (1971), which might invoke the rigors of a strict over-breadth and underinclusiveness analysis. Moreover, “hardship” is not alone a purpose of the act; 9 “unjust discrimination” also in part comprised a constitutionally permissible “prior use” component fundamental to the state’s policy to freeze or reduce these fisheries. 10

*369 Finally, the specific date of January 1, 1973, is rationally related to the purposes of the act. The 1972 licensing season was the last one unaffected by a “gear rush” brought on by the limited entry bill. The dramatic increase in gear license applications occurred during the 1973 season. Thus it is rational to take the unaffected 1972 season as the measure of the “prior use” component of the limited entry program. January 1, 1973, as the first day of the 1973 season, is the appropriate day to use in effectuating this purpose.

I would affirm the judgment of the superior court. 11

. Governor Egan’s Study Group on the limited entry program actually indicated that the purpose was to cut down on the amount of gear used, not merely freeze it at current levels. Bee Governor’s Study Group on Limited Entry, A Limited Entry Program for Alaska’s Fisheries 1 (1973).

. AS 16.43.260(a) as amended in Ch. 126, S.L.A.1974, provides:

“(a) The commission shall accept applications for entry permits only from applicants who have harvested fishery resources commercially while participating in the fishery as holders of gear licenses under AS 16.05.-536-16.05.670 before the qualification date established in (d) or (e) of this section.”

Subsections (d) and (e) as enacted provide:

“(d) Except as provided in (e) of this section, an applicant shall be assigned to a priority classification based solely upon his qualifications as of January 1, 1973.”

“(e) When the commission establishes the maximum number of entry permits for a particular fishery under § 240 of this chapter after January 1, 1975, an applicant shall be assigned to a priority classification based solely upon his qualifications as of January 1 of the year during which the commission establishes the maximum number of entry permits for the fishery for which application is made.”

Subsection (d) was itself part of the amendment package passed in response to the gear rush. Subsection (a) as originally passed provided that in order for an applicant to be eligible to apply he must have held his gear license before January 1, 1973.

. See AS 16.43.250.

. The Governor’s Study Group on Limited Entry, in proposing this legislation, listed three criteria to be used in selecting which fishermen “will remain in the fishery”.

“ — Those people who most depend upon the fishery for all or a major part of their livelihood;

—Those people who have fished the most in the past; and

—Those people who are ready, willing and able to fish actively now.”

Governor’s Study Group on Limited Entry, A Limited Entry Program for Alaska’s Fisheries 1 (1973).

The second of these indicates that a “prior appropriation” type criterion was clearly adopted by the Study Group. At that time —before the gear rush — the Study Group already indicated that “anyone who has not held a gear license for some period may have difficulty qualifying under this Standard” but then provided .that one who had held a gear license for a limited amount of time while working as a full-time professional crewman for many years might qualify ahead of a “casual weekender” who had held a gear license for a longer priod of time. Id., at 7. The other two factors to be considered would not, in the Study Group’s opinion, make up for any lack of “past participation”.

“For fairness to everyone involved, these three standards are all necessary to provide the basis for adopting specific rules deciding who will remain in the fishery. The absence of any one would be like taking a leg from a milking stool.” Id., at 17.

*367 It must be emphasized that the Study Group’s concept does not appear to have been to “grandfather in” those who were in the fishery, since the purpose was to cut down on that number. Instead, the apparent intent was to “grandfather out” newcomers from consideration for the limited places available. That is, of course, exactly the result of .the application time bar found objectionable by the majority opinion.

.The state in the case at bar has not “taken” any vested rights in fish for which compensation must be paid. See generally Annot., 56 A.L.R. 277 , 279-80 (1927), and cases cited therein. The ownership of fish not re-reduced to possession lies in the state as trustee for all its citizens. Geer v. Oonneetieiit, 161 U.S. 519 , 16 S.Ct. 600 , 40 L.Ed. 793 (1869); see Alaska Const. art. VIII, § 3.

. This should be compared with an overall decrease of 2% between 1971 and 1972, and a 0.9% increase between 1970 and 1971.

. It is even possible that, for those fisheries to be later designated by the commission, a large present influx of gear licenses might make it politically and practically impossible to reduce the number of license holders to an economically and ecologically sound level, regardless of the theoretical powers of the commission in this regard under AS 16.43.240 (b). It must be within the power of the legislature, and not the courts, to balance the practical politics involved and make such a determination.

. It is admitted by appellees that some of those involved in the gear rush were individuals who would have eventually sought gear licenses in any case; they were led to apply early because of the pending limited entry bill. Even these represent premature current increases in the number of would-be gear licensees.

. It is for the legislature, and not the court, to determine whether as a matter of policy hardship should be given more weight in the granting of entry permits. I notice that in 1975, House Bill No. 351 would have allowed “undue hardship” eases to acquire permits, “[n]otwithstanding any other provision of law . . . .” See 1975 House Journal 732.

.In this regard I must reject the reasoning of State ex rel. Bacich v. Huse, 187 Wash. 75 , 59 P.2d 1101 (1936). I note that *369 this case was decided at the height of the turmoil in the 1930’s over judicial deference to economic regulation. I must similarly reject the reasoning of Bozanich v. Reetz, 297 E.Supp. 300 (D.Alaska 1969), rev’d on other ground, 397 U.S. 82 , 90 S.Ct. 788 , 25 L.Ed.2d 68 (1970). Bozanich relied on Baeieh, and in addition was concerned with Alaska Const. art. VIII, § 15. This section has since been specifically amended so as not to restrict limited entry programs in fisheries.

. In analyzing the case as I do, I do not reach the issue of whether “administrative convenience” is a proper state purpose should the cut-off date be merely intended to aid in administrative determinations of hardship. The classification involved is not “suspect” or nearly so, see Reed v. Reed, 404 U.S. 71, 76-77 , 92 S.Ct. 251 , 30 L.Ed.2d 225 (1971), and there is even a rational relationship, however imperfect, between the use of a cut-off date and the determination of “hardship” itself.