Opposition Brief — Raffield v. Florida

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Supreme Court, U.S,

TILED

Case No. 90-633

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IN THE

Supreme Court of the United States

October Term, 1990

EUGENE RAFFIELD,

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

RESPONDENT'S BRIEF IN OPPOSITION

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL FOR THE

STATE OF FLORIDA

JONATHAN A. GLOGAU

(COUNSEL OF RECORD)

CHARLES R. MCCOY

Assistant Attorneys General

for the State of Florida

Department of Legal Affairs

The Capitol

Taliahassee, FL 32399-1050

(904) 488-0600

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED FOR REVIEW

Respondent, the State of Florida (“Florida”) arrested Pe-

titioner Eugene Raffield (“Raffield”) on July 16, 1986, for

violating FLA.STAT. § 370.08(3) (1985). Raffield’s employees

or agents used his boat to catch over 80,000 pounds of red

drum (redfish), with a purse seine, in federal waters of the

Gulf of Mexico. Florida does not dispute that the fish were

caught pursuant to a federal permit.’

The fish were landed in Louisiana, and transported by

truck to Raffield’s processing plant in Port St. Joe, Florida.

At the processing plant, Raffield was arrested for violating

the possession component of 370.08(3) [hereinafter “posses-

sion/landing law”) which provides:

No person may take food fish within or without the

waters of this state with a purse seine ... or have

any food fish so taken in his possession for sale or

shipment. [e.s.]

The possession/landing | law has been codified in its contem-

porary form since 1953, 2 twenty-three years before passage

of the Magnuson Fishery Management and Conservation

Act (16 U.S.C. §§ 1801-82, hereinafter the “Magnuson Act”).

The same federal emergency regulations that permitted

catching the redfish expressly preserved state landing laws:

1 Federal emergency rules imposing a one-million pound quota on

commercial red drum harvest in the Gulf of Mexico took effect June 25,

1986. 51 Fed. Reg. 23551 (June 30, 1986). These rules provided for issu-

ance of permits to harvest redfish until the quota was reached. Id. The

fishery was closed on July 20, 1986. See 51 Fed.Reg. 26554 (July 24, 1986).

Subsequent federal rulemaking has not allowed direct harvest of redfish

since that time. Incidental commercial or recreational catch of red fish

from Federal Gulf waters still “must comply with the landing and posses-

sion laws of the State where landed.” See 50 CFR § 653.3(c) (Oct. 1, 1989).

2 See FLA.Stat. § 370.08(3) (1953).

§ 653.3 Relation to other laws.

(d) These regulations will not be construed to

supersede any State law which prohibits the land-

ing or possession within the jurisdiction of that

State of any red drum. [e.s.] [hereinafter the “sav-

ings clause”).

51 Fed.Reg., 23554 (June 30, 1986).

In this context, the questions presented for review are:

1.Whether FLA.STAT. § 370.08(3) (1985) was preempted

despite express preservation of possession/landing laws by

the savings clause in the emergency rules, and by the

Magnuson Act [16 U.S.C. § 1856(aX3)].

2.Whether Florida’s enforcement of § 370.08(3) violates

the Privileges and Immunities Clause of United States

Constitution when there is no discrimination against citi-

zens of other states.

3.Whether Florida’s enforcement of § 370.08(3) viclates

equal protection in light of this court’s specific holding to the

contrary in Skiriotis v. Florida. -

4.Whether Florida’s enforcement of § 370.08(3) consti-

tutes an impermissible burden on interstate commerce.

5.Whether Florida’s enforcement of § 370.08(3) violates

Raffield’s due process rights.

LIST OF PARTIES

There is one other defendant to the state proceedings not

shown in the caption: Raffield Fisheries, Inc.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................ i

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CT ER nt ey ce ee ee iv

CITATIONS TO OPINIONS AND JUDGMENTS

PENNE. 6 DD GANA WIS Oe Merk ee 1

JURISDICTIONAL STATEMENT ............ 1

STATEMENT OFTHECASE .............. 1

SUMMARY OF ARGUMENT .............. 2

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IEEE ths 5 <5 <0 oh ORES Oe te sd Ae LG 5

Privileges and Immunities............... 11

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i's os’ etaa ve Gretta OWLS 14

PS son atye cnet <6 1% Ore: ou: a aidsdndi * 00 15

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iii

TABLE OF AUTHORITIES

Cases Page

Bayside Fish Flour Co. v. Gentry, 297 U.S. 422

(MOG) sscezian. Wihin tie Fiche 46 14, 15

Berman v. United States, 302 U.S. 211, 212 (1937) ... 3

Brady v. Maryland, 373 U.S. 83 (1963) ......... 4

Cox Broadcasting v. Cohn, 420 U.S. 469(1975) ..... 3

Federal Compress and Warehouse Co. v. McLean,

Oe eh ne aan ne 15

Felton v. Hodges, 374 F.2d 337 (5th Cir. 1967). ..... 13

Fidelity Federal Savings and Loans Assn v.

de la Cuesta, 458 U.S. 141(1982).......... 10

Florida Avocado Growers v. Paul, 373 U.S. 132

I a ee le sg AR 8, 9, 10

Flynt v. Ohio, 451 U.S. 619(1981) ........... 3,5

Golden State Transit Co. v. Los Angeles, 110 S.Ct.

ee ss a ws ee eke KE wdc 12

Hillsborough County v. Automated Medical Labs,

Gru ere Se eee eee ee ee 8, 10

Hines v. Davidowitz, 312 U.S. 52(1940)......... 7

Jones v. Rath Packing Co., 430 U.S. 519(1977)..... 11

Louisiana Public Service Commission v. Federal

Communications Commission, 476 U.S. 355 .... 9

Maryland v. Louisiana, 451 U.S. 752(1981) ...... 7

iv

Cases Page

Mercantile National Bank v. Langdeau, 371

Ce a a de aug ce ae a a 4

Mills v. Alabama, 384 U.S. 214(1966).......... 3

North Pacific Fishing Vessels Owners’ Assoc. v.

Sheffield, 852 F.2d 572 (9th Cir. 1988) ....... 12

Pike v. Bruce Church, Inc., 397 U.S. 137(1970)..... 14

Raffield v. State, 565 So.2d 704 (Fla.1990) ....... 5

Shaw v. Delta Airlines, 463 U.S. 85(1983) ....... 7

Shelley v. Kraemer, 334 U.S.1(1947) .......... 15

Skiriotis v. Florida, 319 U.S.69(1940) ...... passim

State v. Sterling, 448 A.2d 785 (RI. 1982)........ 1

Toomer v. Witsell, 334 U.S. 385 (1947) ........ 11, 12

United States v. Alaska, 422 U.S. 184(1975) ... . 13,15

STATUTES

Federal

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SO ULBA BAO) BE SLE ZS. . 3

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WUBI GASH 5 ORES PON EO ee es 12

State

FLA.STAT. § 370.01(12K1985) ..........-. 1,6

FLA.STAT. § 370.08(3X1953) .... 2.2... 2 2 eee i

FLA.STAT. § 370.083 1985).......... passim

REGULATIONS

I ono nie tk kta ib etain h 4 Hane 4

50 CFR § 653.3(cX10-1-89).............4-. i

OTHER

Federal

PL. 94-265, Title III § 306(a) (1), as amended

i rs IE ab ate 8 an ee oe eae 3 7

PL. 94-265 Title III § 306(a) (3), as amended

bey da BOGS. 6-0. vo. 2 SIBLE Soe. 7,8

51 Fed.Reg. 23551 (6-30-86).............. i

51 Fed.Reg. 23553 (6-30-86). ............ 6

51 Fed.Reg. 23554 (6-30-86). ......... ii, 5,9

51 Fed.Reg. 26554 (7-24-86). ............. i

51 Fed.Reg. 34219 (9-26-86). ............ 4

Committee on Commerce and National

Ocean Policy Study, 94th Cong, 2d Sess.,

A Legislative History of the Fishery

Conservation and Management Act of 1976 ... 8

State

FLA.R.CRIM.P. 3.190(cX4) ..........22.. 3

CITATIONS TO OPINIONS AND JUDGMENTS

BELOW

Florida is satisfied with Raffield’s citations to the opinions

below.

JURISDICTIONAL STATEMENT

Raffield seeks review of the decision by the Florida Su-

preme Court entered July 19, 1990. The decision resolves

an interlocutory matter. Therefore the jurisdictional re-

quirement of a “final judgment or decree” under 28 U.S.C.

§ 1257 is not met. This case does not fit within any excep-

tions to that requirement.

CONSTITUTIONAL PROVISION, STATUTES AND

REGULATIONS INVOLVED

Florida is satisfied with Raffield’s statement as to this

item, except to add:

Federal Statutory Law

28 U.S.C. § 1257

Federal Regulations

51 Fed. Reg. 23551-6 (June 30, 1986)

Florida Statutes

FLA.STAT. § 370.01(12X 1985)

STATEMENT OF THE CASE

For clarity, Florida notes that Raffield has not been

brought to trial. There has been no conviction.

SUMMARY OF ARGUMENT

Raffield seeks review of a decision by the Florida Supreme

Court that is not a final judgment. He has not established

jurisdiction in this court.

If there is jurisdiction, the questions raised by Raffield do

not warrant this Court’s review. The Florida Supreme

Court’s decision is in accord with controlling decisions by

this Court and does not conflict with other State Supreme

Courts on any issues of Federal law.

Florida’s statute was not preempted by the Magnuson Act

and the emergency red drum rules that implemented it, but

was the subject of specific savings language in both. The

statute does not conflict with either. The Privileges and

Immunities Clause is not implicated because there is no

disability forced upon non-Florida residents. The Equal

Protection Clause is not violated by enforcement only in

Florida based on this court’s holding in Skiriotis. Florida’s

statute has at most an indirect effect on interstate com-

merce. Any burden is incidental to the legitimate state

interest in protecting fisheries resources. Raffield’s substan-

tive due process argument was not raised below. Neverthe-

less, the challenged statute is reasonably related to a

legitimate state objective and therefore not violative of due

process. Raffield’s petition for certiorari must be denied.

ARGUMENT

JURISDICTION

Raffield invokes this court’s jurisdiction under 28 U.S.C.

§ 1257. This court, pursuant to 28 U.S.C. § 1257(3), has

jurisdiction to review “final judgments or decrees” of state

courts by writ of certiorari. There has been no trial, convic-

tion or sentence; and therefore no final judgment. Berman

uv. United States, 302 U.S. 211, 212 (1937) (“Final judgment

in a criminal case means sentence.”); Flynt v. Ohio, 451 U.S.

619 (1981) (no final judgment when no sentence has been

imposed). Raffield has not established jurisdiction in this

court.

Raffield admitted the facts of this case only for purposes

of his motion to dismiss under FLA.R.CRIM.P. 3.190(cX4).

Given such admission, the fact that two Florida appellate

courts have ruled he may be prosecuted under Florida’s

possession/landing law does not compel the conclusion that

his trial would amount to “no more than a few formal

gestures leading inexorably towards a conviction.” Mills v.

Alabama, 384 U.S. 214, 217 (1966). To convict Raffield,

Florida still must prove that Raffield possessed redfish

caught with a purse seine, a matter resting upon facts

involving significant time and distance. It is not at all

certain that Raffield’s defenses to date are his only defenses,

or that conviction would be an inexorable result of denying

certiorari.

Raffield claims the right to possess fish in violation of a

state possession/landing law that was designed to effectuate

restrictions on commercial fishing gear. However, there is

no federal constitutional right to fish with particular gear

at a particular place or time. The absence of a fundamental

constitutional right, such as freedom of speech, dis-

tinguishes this case from Cox Broadcasting v. Cohn, 420

U.S. 469 (1975) (reviewing state law that prohibited broad-

cast of rape victim’s name, and discussing four categories in

which highest state court judgment would be considered

final despite remaining state court proceedings).

Unique events of this case insure that no federal consti-

tutional issue will survive further ranted” p:<curfant

The savings clause within the long: emergency

rules was not carried forward in the permanent red drum

rules.* Absent changes to current federal redfish rules, the

factual circumstances giving rise to Raffield’s claim cannot

recur. Consequently this case is factually unlike Brady v.

Maryland, 373 U.S. 83 (1963). In Brady, this Court recog-

nized that the federal constitutional issue raised by pro-

secutorial withholding of exculpatory evidence would

survive state proceedings. Jd. at 217, note 1. Therefore

review in absence of final judgment was deemed

appropriate.

This case does not present the specter of long and complex

litigation that might otherwise be avoided through a deci-

sion by this Court. See Mercantile National Bank v.

Langdeau, 371 U.S. 555 (1963) (involving liquidation of

national banks and over 143 parties). This is a straightfor-

ward criminal case against one individual and his

corporation.

In sum, Raffield seeks review of a non-final order that does

not meet the exceptions to the finality requirement of 28

U.S.C. § 1257. If he is acquitted, the issues are moot; if not,

he can seek review by this Court from the highest state court

from which relief can be had. The facts of his case are

unique, involving temporary (emergency) federal rules with

3 The emergency rules were extended only through December 22,

1986. See 51 Fed. Reg., 34219 (Sept. 26, 1986) (“Drum Fishery of the Gulf

of Mexico; Extension of Effective Date of Interim Rule”).

+ See 50 CFR § 653.3 (“Relation to Other Laws”) (October 1, 1989 ed.).

4

a savings clause since abandoned. Factually, there is no

lingering federal question that will survive outcome of the

state proceedings. In the interim, Raffield is not restrained

from exercising any constitutional rights, fundamental or

not, by the presence of the challenged statute. Since both

the challenged statute and the federal emergency rules seek

to protect redfish, there will be no erosion of federal policy

if this court declines review at this time. See Flynt v. Ohio,

supra at 622 (no erosion of federal policy by allowing Ohio

to prosecute under its obscenity statute). Raffield seeks

federal intervention in a misdemeanor prosecution against

a single individual (himself) and his corporation. This Court

should not exercise jurisdiction.

PREEMPTION

Assuming this court has jurisdiction, the central fact is

that the possession component of § 370.08(3) is a “possession

or landing law” under the savings clause and preamble in

the emergency rules. The Florida Supreme Court expressly

found such. See Raffield v. State, 565 So.2d 704, 705 (Fla.

1990). (“The statute at issue today manifestly is a ‘State law

which prohibits the landing or possession’ of red drum

caught with a purse seine.”)

The savings clause of the emergency rules, in effect when

Raffield was arrested, declares:

These regulations will not be construed to super-

sede any State law which prohibits the landing or

possession within the jurisdiction of that State of

any red drum. [e.s.]

See 51 Fed. Reg., 23554 (June 30, 1986). The preamble to

the emergency rules defines what would be considered a

non-superseded landing law:

Relation to State Laws

The Secretary [of Commerce] recognizes the con-

servation and management efforts of the coastal

states in the Gulf of Mexico with regard to the red

drum fishery. The Secretary desires to support

those efforts through this emergency action to the

maximum extent permitted under the Magnuson

Act. It is the intent of the Secretary to supplement

the States’ efforts to conserve red drum. Therefore,

the emergency rule does not supersede any State

landing laws which apply to red drum. For pur-

poses of the emergency rule, a State landing law

is a statute, regulation or ordinance which makes

it unlawful to land or possess within the jurisdic-

tion of a State any red drum. {e.s.]

See the preamble to the emergency rules, at 51 Fed. Reg.

23553 (June 30, 1986).

FLA.STAT. § 370.08(3) (1985) clearly bans possession, in

Florida, of saltwater food fish caught with purse seines.

Redfish (i.e., red drum) are specifically declared to be [salt-

water] “food fish” by FLA.STAT. § 370.01(12) (1985):

(12) “Food fish” shall include... redfish, ... and all

other fish generally used for human consumption.

[e.s.}

No reasonable reading of § 370.01(12) and § 370.08(3) to-

gether can avoid the conclusion that Raffield was arrested

- under a non-superseded “State landing law.”

Nevertheless, Raffield contends that § 370.08(3) is pre-

empted by federal laws and regulations. Aclose examination

of the law of pre-emption shows that the statute is not

preempted. As set forth above, the emergency regulations

had a specific savings clause preserving the State’s landing

laws and, furthermore, the state statute would not affect the

taking of the federally-imposed quota.

The Supremacy Clause prohibits states from interfering

with or obstructing federal law. Hines v. Davidowitz, 312

U.S. 52, 57 (1940). There is, however, a presumption against

preemption. Maryland v. Louisiana, 451 U.S. 752, 746

(1981) (“Consideration under the Supremacy Clause starts

with the basic assumption that Congress did not intend to

displace state law.”)

Three species of pre-emption occur. First, a federal statute

may explicitly express an intent to pre-empt state regula-

tion. Shaw v. Delta Airlines, 463 U.S. 85, 95-96 (1983). A

statute may also explicitly disavow that intent. The Magnu-

son Act explicitly addresses the matter of pre-emption of

state laws in § 306 [16 U.S.C. § 1856], entitled “State

Jurisdiction.” Section 306(a\1) explicitly confirms state ju-

risdiction over activities by any person in its territorial

waters. Although states are barred from regulating “directly

or indirectly” vessels operating outside their territorial wa-

ters, that bar does not apply to “fishing vessel(s) registered

under the law of that state.” § 306(a)(3). The power of states

to regulate within their territorial waters and to regulate

their state-registered vessels in federal waters is not pre-

_ empted by the Magnuson Act.

Even if the Act on its face did not bar pre-emption of state

fishing laws that are within its powers to enact, judicial

precedents explaining the pre-emption doctrine confirm the

validity of the state statute sub judice. If the federal statute

does not confirm or disavow an intent to pre-empt state law,

courts may infer the second type of pre-emption; that is, an

intent to pre-empt when the federal government has

regulated so comprehensively as to “occupy the field.” E.g.,

Hillsborough County v. Automated Medical Labs, 471 U.S.

707, 713-14 (1984); Florida Avocado Growers v. Paul, 373

U.S. 132, 135 (1963).

Tiupasaadinm ollatheanadadeedeaaeneienliaaiciaass

regulations “occupy the field”: section 306(a\3) of the Act

explicitly disavows this suggestion. It confirms the right of

states to regulate the activities of state-registered fishing

vessels, even when they operate outside the states’ territo-

rial waters.° By express language of the Magnuson Act,

Congress has determined not to “occupy the field” of fisher-

ies regulation. Since the Department of Commerce, when

5 __ Raffield’s assertion that Congress intended to vest exclusive regula-

tion of the fisheries resources in the United States is not borne out by the

language of the Act or the legislative history. The Act preserves states’

Skiriotis jurisdiction over state registered vessels [306(a\3)]. The report

of the Senate Committee on Commerce states:

Within the Fishery conservation zone, the United States

would exercise exclusive fishery management authority. This

authority is exclusive in the sense that no other nation may

regulate fishing within the zone[.]

see *

(I]t preserves the domestic breakdown of management author-

ity between the states and federal Government which has

prevailed since the founding of the republic.

See Committee on Commerce and National Ocean Policy Study, 94th

Cong., 2d Sess., A Legislative History of the Fishery Conservation and

Management Act of 1976, at pages 677-78.

6 _ Raffield asserts that this exception allows regulation by the states

only as to “matters touching on the health, safety or welfare of the persons

participating in the commercial fishing industry.” [pet. at 14) This asser-

tion has no support in the language of the Act or its history. There is no

need for an exception for that type of state regulation in the Magnuson

Act, because under no conceivable interpretation of the Act could it be

construed to preempt such regulation. This is exclusively a fishery man-

agement law. All of its parts must be construed as related to that subject,

including the state registered vessel exception.

8

implementing the Magnuson Act, has only the powers dele-

gated by the Congress, it may not adopt regulations that

“occupy the field” of fisheries regulation. See Louisiana

Public Service Commission v. Federal Communications

Commission, 476 U.S. 355, 369-75 (statutory limits on juris-

diction barred federal preemption, through rulemaking, of

state law, since a “federal agency may pre-empt state law

only when and if it is acting within the scope of its congres-

sionally delegated authority” [id. at 374]). To do so would be

to exceed the Department’s delegated authority by overrul-

ing a statvtory confirmation of state regulatory powers.

In addition, the emergency rules specifically state:

these regulations will not be construed to super-

sede any state law which prohibits the landing or

possession within the jurisdiction of that state of

any red drum. [e.s.]

51 Fed.Reg., 23554 (June 30, 1986). The challenged statute

was applied on land and in Florida. It was not preempted.

The third species of pre-emption bars state regulation that

is repugnant to federal regulations. Florida Avocado

Growers, 373 U.S. at 142-43. If it is physically impossible to

comply with both the state and federal regulations, the state

scheme must yield. This Court, in Florida Avocado Growers,

offered the following example of physical impossibility:

if the federal orders forbade the picking and mar-

keting of any avocado testing more than 7% oil,

while the California test excluded from the State

any avocado measuring less than 8% oil content.

Id. at 143.’ Raffield misconstrues this principle to argue

that when a vessel has caught redfish with a purse seine

under a federal permit, compliance with the state possession

restriction is physically impossible. It is possible to comply

with both the federal quota and Florida’s possession/landing

law by using other gear or landing and selling the fish in

another state.

The pre-emption analysis does not end with the determi-

nation that compliance with both regulations is physically

possible. State regulations may be preempted if they frus-

trate the purposes of the federal regulations. Fidelity

Federal Savings and Loan Assn. v. de la Cuesta, 458 U.S.

141, 153 (1982). The purpose of the federal quota is to

preserve the breeding stock of the fishery by preventing

overfishing. Obviously, landing and possession limits do not

obstruct or frustrate that purpose. Indeed, the federal reg-

ulations specifically preserve state landing and possession

laws.

The essence of Raffield’s argument is that the federal

regulation confers a federal right to catch redfish using

purse seines and that the state landing rules are an impedi-

ment to the free exercise of that right. However, this Court

has continuously indicated that unless the state regulation

is preempted under the principles described above, states

are free to impose more stringent regulations. Hillsborough

County v. Automated Medical Laboratories, Inc., 471 U.S.

707, 719 (1985).

7 The actual situation in Florida Avocado Growers arose because the

federal rules governing avocado harvest in Florida were based on size and

dates of harvest. Avocados certified under the federal rule were prevented

from entering California where the code required avocados to contain at

least 8% oil. The Supreme Court held that the Florida growers could leave

their crops on the trees a little longer to achieve the required 8% for

shipment to California and therefore it was not physically impossible to

comply with both regulations. 373 US. at 143.

10

———__—_—_—_—

The holding of the Florida Supreme Court on preemption

is correct on its facts and does not conflict with this Court’s

decision in Jones v. Rath Packing Co., 430 U.S. 519 (1977),

or the Rhode Island Supreme Court’s decision in State v.

Sterling, 448 A.2d 785 (R.I. 1982). Applying the Jones test

for preemption, the challenged statute does not conflict with

the federal regulation, especially in light of the savings

clause. Similarly, there is no conflict with Sterling. There,

the Rhode Island Supreme Court held there was a conflict

between the federal rule and the state regulation, thereby

requiring preemption. That court did not require preemp-

tion of state regulations by the mere existence of a fishery

management plan. The Florida court properly found no

conflict and no preemption.

PRIVILEGES AND IMMUNITIES

Raffield asserts his “right to fish” has been abridged by

the state in violation of the Privileges and Immunities

Clause. That clause was:

designed to insure to a citizen of State A who

ventures into State B the same privileges which

the citizens of State B enjoy.

{and to] removie] from the citizens of each State

the disabilities of alienage in the other States, and

[to] giv[e] them equality of privilege with the citi-

zens of those States[.]

Toomer v. Witsell, 334 U.S. 385, 395-96 (1947). In Toomer, a

South Carolina statute was declared in violation of this

11

provision because it operated “to exclude non-residents and

thereby create a commercial monopoly for South Carolina

residents.” Id. at 395.°

The statute at issue here creates no such disability. There

is no discrimination against non-residents in favor of resi-

dents. Florida and non-Florida residents are subject to the

law, when in possession of saltwater food fish caught with a

purse seine. Conversely, any fisherman could have landed

and possessed redfish, if not caught in a purse seine, in

Florida.

This case presents no conflict with any precedents of this

Court. It is consistent with the analysis of the privileges and

immunities clause in Toomer. This case is also consistent

with the holding in Golden State Transit Co. v. Los Angeles,

110 S.Ct. 444 (1989), where this Court outlined the test for

determining whether an enforceable right is created by a

federal statute.

8 Reaffield asserts that this Court in Toomer found a right to fish,

which assertion forms the basis for most of the arguments set forth in his

petition. The right recognized in Toomer was not a general right to fish

free from government intrusion, but rather to do business free from the

discrimination which the privileges and immunities clause was designed

to prevent. Petitioner’s argument that there is an unbridled right to fish

would prevent regulation by the Magnuson Act or any state laws. No such

right existed at common law. The Magnuson Act creates no such right. See

North Pacific Fishing Vessels Owners’ Assoc. v. Sheffield, 852 F.2d 572 (9th

Cir. 1988\table) [Note: This affirmance is followed by an unpublished

opinion, which held, in an attorney's fee claim under 42 U.S.C. § 1988,

that the Magnuson Act creates no right under 42 U.S.C. § 1983. See App.

Aherein.]

12

EQUAL PROTECTION

Raffield complains that the Florida statute denies him

equal protection of the laws under the Fourteenth Amend-

ment of the United States Constitution. This argument

ignores the holding in Skiriotis v. Florida, 319 U.S. 69

(1940). There, this Court addressed the equal protection

question raised by a Florida statute restricting the types of

gear which Florida sponge fishermen could use in Florida

waters or on the high seas:

Nor is there any repugnance in the provisions of

the statute to the equal protection clause of the

Fourteenth Amendment. The statute applies

equally to all persons within the jurisdiction of the

state.

Id. at 75.2

Florida has a rational basis for enforcing its statute. The

Skiriotis Court, and many afterwards, have recognized that

a state’s interest in preserving nearby fisheries is suffi-

ciently strong to permit extraterritorial enforcement of its

laws enacted for that purpose. E.g. Felton v. Hodges, 374

F.2d 337, 339 (5th Cir. 1967). See United States v. Alaska,

422 U.S. 184, 198-99 (1975) (recognizing “the special inter-

est that a coastal state has in the preservation of the living

resources in the high seas adjacent to its territorial sea”).

Landing and possession limits are a rational way for the

state to advance those interests. The Florida Supreme

Court’s holding as to equal protection does not present a

conflict or a substantial question of federal law. It is squarely

in line with this Court’s decision in Skiriotis.

9 In Skiriotis, this Court also recognized the power of the States to

regulate the activities of their citizens on the high seas as long as there

is no conflict with acts of Congress. 313 U:S. at 77.

13

a ae) ee ml i Pee a

COMMERCE CLAUSE

Raffield asserts that FLA. STAT. § 370.083), is an im-

permissible burden on interstate commerce. The proper

analysis of this question is found in Pike v. Bruce Church,

Inc., 397 U.S. 137, 142 (1970), where this Court held:

Where the statute regulates evenhandedly to ef-

fectuate a legitimate local public interest, and its

effects on interstate commerce are only incidental,

it will be upheld unless the burden imposed on

such commerce is clearly excessive in relation to

the putative local benefits.

The first question then is whether there is a legitimate local

interest advanced by the local regulations. Preservation of

nearby fisheries has long been recognized as a legitimate

local interest. See Bayside Fish Flour Co. v. Gentry, 297 U.S.

422, 426 (1935) (fish taken from within and without the

jurisdiction of a state are indistinguishable, therefore a

state law restricting manufacture of fish flour from sardines

brought into the state properly effectuates the policy of the

law by rendering evasion more difficult).

Having established that there is a legitimate local inter-

est, the next question is whether the law creates a direct or

indirect burden on interstate commerce. If there is any such

burden resulting from this statute, it is clear that it is

indirect. Preservation of the redfish breeding population is

the main purpose of the law; it is not directed at impairing

interstate commerce. The only burden imposed by the law

is a possibility that a Florida fisherman may have to land

and sell his catch in another state. In fact, Raffield did land

his fish in Louisiana. Rather than selling them there, he

chose to transport them to Florida in knowing violation of

the challenged statute.

14

The burden placed on interstate commerce by FLA.STAT.

§ 370.08(3) is not “excessive.” It is insufficient to outweigh

the benefits and legitimate state objectives so as to render

the statute unconstitutional. Bayside Fish, 297 US. at

425-26 (effect of statute purely incidental, indirect, and not

beyond purposes of legislation).

Finally, when fish are caught and landed, th-v “come to

rest” in the state of Florida and are subject ti ‘egitimate

state regulation. As did the cotton in Federal Compress and

Warehouse Co. v. McLean, 291 U.S. 17 (1933), the redfish

here came to rest in Florida. Also, the redfish had no ascer-

tainable destination outside Florida before shipping orders

were given. As in McLean:

Property thus withdrawn from transportation,

whether intrastate or interstate, until restored to a

transportation movement interstate, has often been

held subject to local [regulation]. [e.s.] Jd. at 21.

Florida’s enforcement of § 370.08(3) against Raffield was

valid because the redfish came to rest, and were thereby

removed from interstate commerce.

DUE PROCESS

Raffield’s substantive due process claim was not raised

below and should not be considered at this time by this

Court. See Shelley v. Kraemer, 334 U.S. 1, 8-9 (1947) (noting

that in the predecessor action the court correctly declined to

reach a constitutional issue not raised below). As set forth

above, the Florida statute works no unconstitutional dis-

crimination and is not arbitrary. Also as set forth above, the

law is a reasonable way for the State to effectuate the

legitimate goal of preserving fisheries resources. See

Bayside Fish and U.S. v. Alaska, supra. This claim presents

no substantial federal question and is without merit.

15

CONCLUSION

This Court is without jurisdiction for want of a final

judgment under 28 U.S.C. § 1257. Raffield fails to raise a

substantial federal question requiring review by this Court.

The decision of the Florida Supreme Court does not conflict

with any decision by this Court or any other State Supreme

Court on an issue of federal law. Raffield’s petition for

certiorari must be denied.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL FOR THE

STATE OF FLORIDA

JONATHAN A. GLOGAU*

Assistant Attorney General

for the State of Florida

CHARLES R. MCCOY

Assistant Attorney General

for the State of Florida

Department of Legal Affairs

The Capitol

Tallahassee, FL 32399-1050

(904)488-0600

COUNSEL FOR RESPONDENTS

*Counsel of Record

16

Case No. 90-633

IN THE

Supreme Court of the United States

October Term, 1990

EUGENE RAFFIELD,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

APPENDIX

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

FOR THE STATE OF FLORIDA

JONATHAN A. GLOGAU

(COUNSEL OF RECORD)

CHARLES R. McCoy

Assistant Attorneys General

for the State of Florida

Department of Legal Affairs

The Capitol

Tallahassee, FL 32399-1050

(904) 488-0600

COUNSEL FOR RESPONDENT

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Nae a A Te ENR a,

North Pacific Fishing Vessel Owners’ Association, et al.,

Plaintiffs-Appellants,

Vv.

Bill Sheffield, Governor, State of Alaska, et al.,

3 Defendants-Appellees.

No. 87-3646

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 8, 1988.

Decided July 7, 1988.

D. Alaska

AFFIRMED.

[Respondent’s Note: The following is excerpted from the un-

published part of the opinion.]

Appeal from the United States District Court for the

District of Alaska; James M. Fitzgerald, District Judge,

Before EUGENE A WRIGHT, FERGUSON and

BRUNETTI, Circuit Judges.

The North Pacific Fishing Vessel Owners’ Association

(NPFVOA) and two individual named plaintiffs (collectively

hereinafter “appellants”) appeal the district court’s denial

of their motion for attorney’s fees under 42 U.S.C. § 1988.

Appellants claim that the district court erred in ruling that

they were not entitled to attorney’s fees because they had

not made a cognizable claim under 42 U.S.C. § 1983. Appel-

lants argue that they made a valid statutory claim under

A-1

the Magnuson Fishery Conservation and Management Act

(Magnuson Act), as well as valid constitutional claims under

the Supremacy Clause, the Commerce Clause, the Due

Process and Equal Protection clauses of the Fourteenth

Amendment, and under the Privileges and Immunities

Clause of Article IV, section 2, and that any one of these

provided a basis for a section 1983 claim.

I.

In 1978, the Secretary of Commerce, acting under the

authority of the Magnuson Act (16 U.S.C. §§ 1801-1882),

promulgated regulations which restricted vessels operating

in Alaska’s various geographic fishing areas delineated in

the Act. These areas, or “Fishing Control Zones” (“FCZs”),

encompassed the oceanic expanse from the Alaska’s territo-

rial boundary of three miles to a line 200 miles offshore. The

relevant regulations defined certain areas to be non-exclu-

sive. See 50 C.F.R. §§ 671.23, 671.24 (suspended 51 Fed.Reg.

40,027, 40,029 (1986), repealed 52 Fed.Reg. 17,577, 17,579

(1987)).

In March of 1983, the state of Alaska’s Board of Fisheries

adopted regulations for the 1984 Tanner crab season which

designated as “super-exclusive” the same FCZS referenced

in the federal regulations. Under these state regulations,

anyone registered to take Tanner crab in the super-exclusive

areas would not be permitted to fish or take crab in any other

area. Violation of these regulations could result in potential

seizure of the vessel and arrest. In addition, the state

regulations placed restrictions on the number of crab pots

that each vessel could use while operating in a separate area

defined as the Kodiak District.

A-2

Shortly after the state adopted these regulations, the

North Pacific Fishery Management Council, an advisory

council to the Secretary of Commerce, considered whether

the federal government should adopt the state restrictions

at issue. The Council ultimately rejected the idea in Septem-

ber of 1983 in part because the Council found that, while

unable to make a “quantitative estimate,” they believed that

the proposed regulations could have a disparate impact

between “local” and “non-local” vessels.’

Just prior to the scheduled February 10 opening of the

Tanner crab season, the governor’s office issued a press

release which stated that these new reculations would be

specifically enforced. Shortly thereafter, appellants filed a

complaint seeking declaratory and injunctive relief against

enforcement of the state regulations. On February 9, the

district court granted a temporary restraining order. That

same day, the Alaska Board of Fisheries repealed the chal-

lenged regulations.

Appellants subsequently filed for attorney's fees. At a

hearing on the motion, counsel for the state raised the

possibility that the state might try to reenact the challenged

regulations. Since such action would require appellants to

go to trial on the merits of their claims—and thus possibly

increase their attorney's fees—the court reserved its deci-

sion on appellants’ motion for fees.

The parties later stipulated to a dismissal of the action,

conditioned upon the state’s agreement not to implement

similar regulations in the future. Appellants then filed a

supplemental motion for attorney's fees. On June 21, 1985

the district court issued an order dismissing the case,

1 The Council defined local vessels to be “all boats whose home port

was Chignik, Sand Point or King Cove, owned by a local resident who

fishes predominantly in this area.”

A-3

“subject to plaintiffs’ motion and supplemental motion for

an award of attorney’s fees, costs, and expenses, both parties

having reserved the right to appeal said disposition.”

The district court’s original dismissal order was premised

exclusively on appellants’ preemption claim. None of the

other constitutional claims were mentioned. On January 21,

1987, after supplemental responses had been made by both

parties, the district court issued an order denying the

appellants’ motion for attorney's fees. The court stated that,

while appellants had “prevailed on the merits,” they had

failed to state any cognizable section 1983 claim. The court

also stated that it had relied primarily on the Supremacy

Clause challenge in granting the temporary restraining

order, and neither that claim nor any of appellants’ other

claims sufficiently supported a request for attorney's fees

under section 1988.

**x**%

{IT} A.

Appellants claim that they have a cause of action to

enforce the Magnuson Act under section 1933 which entitles

them to collect attorney’s fees under section 1988. We

disagree.

In Maine v. Thiboutot, 448 U.S.'1 (1980), the Supreme

Court held that individuals may have a section 1983 cause

of action against state officials for violations of federal

statutes. However, two exceptions to this presumption that

a section 1983 remedy exists were recently summarized by

the Court as follows:

where Congress has foreclosed such enforcement

of the statute in the enactment itself and where the

statute did not create enforceable rights, privi-

leges, or immunities within the meaning of § 1983.

A-4

Wright v. City of Roanoke Redevelopment & Housing

Authority, [479 U.S. 418, 423] 107 S.Ct. 766, 770 (1987).

where a statute’s enforcement scheme is sufficiently com-

prehensive, an intent to foreclose private enforcement can

be inferred. Almond Hill School v. United States Depart-

ment of Agriculture, 768 F.2d 1030, 1035 (9th Cir. 1985).

The Magnuson Act provides various enforcement mecha-

nisms, and remedies including civil fines, civil forfeiture,

and criminal penalties. 16 U.S.C. §§ 1858-1860. Enforce-

ment responsibility for the Act has been entrusted to the

Secretary of Commerce and “the Secretary of the depart-

ment in which the Coast Guard is operating,” and their

delegatees. 16 U.S.C. § 1861(a). Section 1856(b) is especially

relevant to the instant case in that it addresses circum-

stances in which state regulation lies in direct conflict with

the federal regulatory scheme. The section provides that the

Secretary of Commerce may exercise preemptive powers

over a state fishing regulation, inter alia, where the state

action “will substantially and adversely affect the carrying

out of [the federal] fishery management plan....” 16 U.S.C.

§ 1856(bX1XB).

We hold that by enacting this comprehensive remedial

scheme, Congress intended to foreclose private enforcement

of the Act through section 1983.

Even if we did not find that appellants’ cause of action was

barred by the Act’s comprehensive remedial scheme, how-

ever, appellants would still be barred by the second excep-

tion to the presumption of section 1983 availability because

the Magnuson Act does not create enforceable rights in favor

of appellants. Appellants contend that the Magnuson Act

gives them a “right to fish.” To have a federal right cogniza-

ble under section 1983, appellants must be members of the

class for whose particular benefit the Magnuson Act was

A-5

enacted. See Boatowners and Tenants Association v. Port of

Seattle, 716 F.2d 669, 672 (9th Cir. 1983) (reiterating the

Cort v. Ash, 422 U.S. 66 (1975), analysis for implying private

rights of action from statutes). “The question is not simply

who would benefit from the Act, but whether Congress

intended to confer federal rights upon those beneficiaries.”

California v. Sierra Club, 451 U.S. 287, 294 (1981). While

appellants are beneficiaries of the Act because of the Act’s

restrictions on foreign fleets, we find nothing in the statute

which demonstrates that Congress intended to confer fed-

eral rights on them. Cf. Boatowner, 716 F.2d at 673 (“There

is no indication that the statute was intended to benefit

specially the pleasure craft owners ... nor that Congress

intended to confer federal rights on [them].”). Rather, the

Act was passed to protect the domestic fisheries from deple-

tion. See Washington State Charterboat Association v.

Baldridge, 702 F.2d 820, 823-4 (9th Cir. 1983), cert. denied,

464 U.S. 1053 (1984), and therefore does not confer rights

upon appellants.”

Having concluded that the statutory enforcement provis-

ions are exhaustive and that the Magnuson Act does not

confer “enforceable rights” upon appellants, it is clear that

the district court did not err in concluding that appellants

do not have a section 1983 claim under this theory.

**X **

2 Appellants claim that Congress’ intent to create a privately enforce-

able right through the Magnuson Act is demonstrated in the Act’s require-

ment that federal regulations “not discriminate between residents of

different states,” 16 U.S.C. 1851(aX4), and through the Act’s introduction,

articulating the Congressional policy that implementation of the Act be

responsive to the needs of U.S. citizens and not unnecessarily impede

legitimate uses of the high seas. 16 U.S.C. 1801(cX2){3). Viewed in

context, those sections confer neither substantive rights, nor an enforce-

ment right.

A-6