# Opposition Brief — Raffield v. Florida > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2985%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 - **Citation:** 498 U.S. 1025 ## Text Soe gp Boe DN aia eid eae 4: 4°." ..°-. Lae _ Ce ae Se PO Ce ee ee ae De ee Supreme Court, U.S, TILED Case No. 90-633 —- wn aioe —- 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 sos, nee ae 8 0 ole ii MMS gk wt tc te tt os iii 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 a,c gta ee ig ag a 3 Ie a v0 Sik. tein shee ans Metaney Spaamneay oe apa 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2985%3A2. Public record. Not legal advice.