Reetz v. Bozanich

Warren E. Burger:

Reetz against Bozanich.

Mr. Cranston you may proceed whenever you’re ready.

Charles K. Cranston:

May it please the Court.

This case involves the resolution of issues concerned with the regulation of a basic industry of the state of Alaska, its fishing resource, and in particular it relates to the manner in which applicants maybe awarded net gear licenses to fish for salmon in Alaska.

The statute which is here under attack was passed by the 1968 legislature of the State of Alaska and requires that a licensee in order to be awarded a salmon net gear fishing license must either have been licensed as a net gear licensee in the area in which he wishes to fish or that he was actively engaged in commercial fishing for three years in the area in which he desires to be licensed.

The appellees sought to have the statute declared unconstitutional in the light of certain provisions of the United States constitution and in the light of certain provisions of the state of Alaska constitution.

The State of Alaska constitutional provisions require that there shall be granted no exclusive right or privilege of fishery and that the fishery source is reserved to all of the people for their common use.

A three-judge district court in Anchorage Alaska held the statute unconstitutional as being in violation of the equal protection clause of the Fourteenth Amendment and the two Alaska constitutional provisions to which I have referred.

It is the position of the State of Alaska that summary judgment was improperly granted in this case and that the basic issue involved is whether or not the provision allowing new entrants into the salmon fishery by virtue of their right to fish commercially for three years is — the issue is whether this is illusory, whether it is meaningless or not.

The three-judge district court concluded that not withstanding the provision, entry into the fishery was controlled not by the state as intended by the statute but by the fisherman themselves.

It is the state’s position that this conclusion of the three-judge court is not supported by the record.

And for that reason, summary judgment should not have been granted on the record as it appeared before the Court at that time.

The allegations in the pleadings relative to this aspect of the case were denied and the pertinent affidavits and answers to interrogatories did not touch on the issue although the Court itself found that there is no right of new entry other than by the permission of those already in the fishery.

It is necessary —

William O. Douglas:

Would you state that again.

Charles K. Cranston:

The Court in the three-judge district court concluded that in fact, for a person to be illegible for a salmon net gear license in Alaska, he had to receive employment by those already engaged in the fishery and therefore the right to his license was not within his control but was with in the control of others.

And on this basis the Court concluded the fishery in effect was closed, there was and exclusive right and the right was not open to all who might wish to enter.

William O. Douglas:

Does the state contest that?

Charles K. Cranston:

The state contest its finding Mr. Justice, on the basis that it is not supported by any facts presently in the record or by any implications which could be drawn from those facts in the record and we feel that the provision of the statute which also was a license to be issued to one who fishes commercially for three years is sufficient in allowing new entry into the fishery.

Byron R. White:

What was the basis for the District Court’s conclusion in that respect?

It wasn’t just a construction of statute I think, the statute doesn’t say that does it?

Charles K. Cranston:

No Mr. Justice.

The statute says only that a license maybe issued to one who has fished actively as a commercial licensee for three years.

Byron R. White:

Or has had a salmon license the last year, in any year in the particular area?

Charles K. Cranston:

Or has had a salmon license in any year in the particular area.

Byron R. White:

Well then, what was the basis for the District Court’s conclusion that just as a matter of the way the statute operated, no one could get a license unless existing fisherman approved him, is that it?

Charles K. Cranston:

Yes Mr. Justice.

I would assume that is the basis on which the Court made its finding that, and determine that the application of the law resulted in this and this of course is the very point which I am arguing that if the Court is going to determine that this is how the law operates in application, then more facts are needed.

Byron R. White:

Let me ask you, in these salmon fishing areas, how would one be a commercial fisherman except by fishing for salmon, are there other fish, commercial fish on those same areas?

Charles K. Cranston:

Mr. —

Byron R. White:

That he can make a living catching?

Charles K. Cranston:

Mr. Justice, I would answer that question by stating yes, one can fish commercially in Alaska for fish other than salmon and this is done —

Byron R. White:

As a matter of fact, does anybody do it and make a living without fishing for salmon in those areas?

Charles K. Cranston:

Again, this is off the — this is not disclosed by the record but I would assume that there are people who make a living fishing for halibut, fishing for cramp.

Byron R. White:

In those same salmon areas?

Charles K. Cranston:

Yes, although this again gets to my basic point that in order to determine to answer your question sir, there would have to be hearings at the District Court level in order to answer this question.

I believe the state would agree that others may make a living at fishing commercially for fish other than salmon.

Appellees of course assert that maybe they can’t make a living and this is something that should be determined in plenary proceedings.

Byron R. White:

Well, lets assume that a man works as an employee for a salmon fishery for three years then applies for his own salmon license, has he satisfied the statute?

Charles K. Cranston:

Yes, if he has while working for the salmon, I suppose the boat owner or somebody who has the gear, if he has worked while licensed as a commercial fisherman which I believe —

Byron R. White:

Do you have to be licensed as a commercial fisherman to work as an employee for a salmon fisherman?

Charles K. Cranston:

Generally I would — I think you do Your Honor in order to engage in the activity of fishing.

One would have to have a commercial fishing license and the issuance of such —

Byron R. White:

Even as an employee?

Charles K. Cranston:

If that employee is in fact fishing, he would have to have a commercial fishing license and the license — the issuance of that license is not restricted, he pays depending on whether he’s a resident or non resident at $10.00 fee or a $30.00 fee.

And upon payment of the fee can be issued the license.

Byron R. White:

Well, does the law require you to actually the fish three years as a commercial fisherman rather than just to hold the license as a commercial fisherman?

Charles K. Cranston:

The law does require that you fish.

It states that the licensee must have been actively engaged in the activity of commercial fishing and there are other statutory requirements which require that a perspective licensee furnish affidavits to this effect that he has actively engaged in the fishery for each of those years.

I believe that the very questions which have been asked indicate that in order to determine the application of the statute to the fishery involved that there are questions which have not been resolved and which should have been resolved prior to the lower court’s awarding summary judgment.

This case is a clear example of the proposition that important constitutional questions are usually not appropriate for summary judgment.

Appellees themselves have cited the case, England versus Louisiana Board of Medical Examiners which contains the “it is the typical, not the rare case in which constitutional claims turn upon the resolution of contested factual issues.”

And I would assert that this is the typical case involving an important constitutional question for the state of Alaska and that there are contested factual issues remaining and certainly the conclusion of the Court should not rest upon such an inadequate factual basis.

I would give some examples of the inadequate factual basis.

The appellees state that the new entry provisions are illusory and whether they are illusory depends upon facts which they have set forth in their statement of facts much of which did not appear as the record in the lower court.

For instance, it is possible for one to engage in salmon fishing as a commercial licensee and troll, trolling is an activity which does not require salmon net gear, it is commercial fishing, it is salmon fishing.

The relationship of this activity to the application of the statute has not been investigated by the lower court and is not on record at this time in order for this Court to investigate.

Also, appellees assert that the unique effect of 11 salmon registration areas in Alaska prohibits easy movement of commercial salmon fisherman from one area to another area with the statutory prohibition.

We will agree that there are 11 salmon fishing registration areas but we will not agree at this stage in the proceedings that the effect of those regulations on the statute prohibits free movement of fisherman from one area to the other to their economic detriment as appellees assert.

Hugo L. Black:

What do you mean by 11 areas?

Charles K. Cranston:

Mr. Justice, Alaska, the coastline in which the salmon fishery is engaged covers approximately 3000 or 3500 miles from southeast Alaska near Ketchikan up through near the Artic Ocean.

The coastline is segmented into 11 districts based generally upon geography, the coastline, the types of bays involved and perhaps based upon the species of fish which appear in those areas.

And when one acquires a license to fish for salmon in Alaska, he is licensed only for one of those 11 areas and if during one season he acquires a license for let’s say the southeast Alaskan area, he may not then fish in the Bristol Bay area, he is limited to a particular area during each season and appellees assert that the statute coupled with the area requirement in effect closes the class of those who may engage in the commercial salmon fishery.

We would assert that in order to reach this decision, this conclusion, the application of the statute in the light of the entire aspect of the areas involved bares further investigation.

They’re simply not enough at this point to reach the appellees conclusion.

Hugo L. Black:

I don’t quite understand it yet, what your point is?

Charles K. Cranston:

My point is that if a fisherman is licensed in southeast Alaska as a —

Hugo L. Black:

One of the 11 areas?

Charles K. Cranston:

One of the 11 areas, that the very fact that he has to acquire a license to fish in Bristol Bay in some other year and that fact —

Hugo L. Black:

Some other year?

Charles K. Cranston:

Right.

If he wishes to fish in Bristol Bay in a year other than the year in which he is licensed in Southeast Alaska, he must comply with the statute and fish commercially three years prior to acquiring a salmon net gear license in a new area or he must have been licensed in that area.

Hugo L. Black:

What’s your point then?

The requirement is a three year preparation?

Charles K. Cranston:

Yeah, my point is that the deprivation of his right to fish based upon the application of the area requirement is not necessarily clear from the state of the record as it appeared in the lower court.

The effect upon the area requirement, say upon his right to use his vessel upon the right to use his gear to his economic detriment is not necessarily pointed out in the lower court record and that if he in fact is deprived of the use of his fishing vessel or of the right to fish in any particular area because of the area requirement, that conclusion cannot be reached on the basis of the record as it appears in this Court.

I believe that the questions —

Byron R. White:

Does the court rest on this matter?

Charles K. Cranston:

The District Court did not discuss this ground too heavily Mr. Justice.

The appellees have argued this ground quite heavily in their brief and I would assert that in order to reach the conclusion that appellees may be deprived of the use of their vessels during any particular salmon fishing season because of the area requirement is not supported by the record at the present time.

The main point I am attempting to make is that the fishery regulation in Alaska is extremely complex involving areas of differing types of salmon, differing weather conditions, differing sea conditions and that at the stage in which the District Court reached its conclusion, none of this particular factors had been investigated by the Court.

The second point which the state of Alaska is urging is that the District Court should have abstained completely from reaching a conclusion in this case.

The basis for our argument that the District Court should have abstained is due to the fact that appellees asserted that the statute violated unique provisions of the Alaska constitution, those provisions are as I have stated that no exclusive right of fishery should be granted and that the fishery source is reserved to the people for their common use.

These provisions so far as I have been able to ascertain are unique among the state constitutions and no constitution contains language similar to that of Alaska and therefore, the interpretation of these provisions have not been resolved by any Court of any state including Alaska.

Generally, there are three grounds upon which abstention maybe granted and three grounds which support the requirement that a District Court abstain from deciding federal questions.

First, abstention should be granted to avoid a decision involving federal constitutional grounds where the state law may resolve the question.

This of course is applicable to this case and that the application of the exclusive right of fishery provision of the Alaska constitution could resolve this case without the necessity of deciding a federal constitutional question under the equal protection clause.

Also, abstention has been required to avoid needless conflict with the state’s administration of its own resource and its own affairs.

This is in recognition of the fact that the state’s police power should be the proper means to regulate a resource.

The appellees would assert that the constitutional provision is so clear on its face that it needs no further interpretation and certainly needs no interpretation in the light of the state’s police power.

Charles K. Cranston:

I would assert that this is not true and an example would make this point clear.

Hugo L. Black:

Why it is not quoted in your brief, the provisions of the constitution?

Charles K. Cranston:

Mr. Justice I believe it’s quoted at the very beginning under constitutional provisions on page 3.

I’ve set out the two provisions of the Alaska constitution which are involved.

Every constitution contains the requirement that no state shall impair the obligation of contract.

However, this Court has ruled that a state may in fact impair the obligation of contract pursuant to a valid exercise of its police power.

I would assert that in this case, the state of Alaska may create if necessary in the valid exercise of its police power and exclusive right of fishery, the extent to which it may do this should be determined by a Court of the State of Alaska and should not have been determined by the Federal District Court of Alaska.

These provisions as I have said have not been interpreted by any state court.

Appellees assert that the case of Hynes versus Grimes Packing Company which interpreted similar federal statutory provision during territorial days is determinative of this case.

However, in the Hynes case, the Secretary of Interior had granted an exclusive right of fishery over a particular area to a particular native village.

There is no attempt on the part of the Secretary of Interior to justify his granting of this right pursuant to any conservation purpose or other regulatory police power purpose.

In this case of course, the State of Alaska has recognized that the accumulation of excessive net gear has resulted in an over harvest of the fishery and has created severe management and enforcement problems.

This is quite different from the case of Hynes where there was no regulation of this type involved.

Lastly, the appellees have asserted that the industry of fishing is a common calling and as such is apparently immune, from state regulation of this sort.

The mere fact that industry is called the common calling does not remove it from state regulation if that regulation is necessary in order to preserve a resource to rectify management and enforcement problems with that resource.

This has been done in the past at common law at such economic pursuits as the sale of intoxicating beverages or the transportation of people for hire were considered common callings.

However, at the present stage, these activities are heavily regulated by the states and quite often certificates of public convenience a necessity are required.

There is no reason why salmon fishing especially with net gear should be removed from state regulation simply because it is connoted as being a common calling.

Byron R. White:

The answer to the District Court’s invalidation of the statute under the Alaska constitution, is your only answer that it shouldn’t have done so, it should have differed to the state courts, or are you asking us to disagree with Court, with the three-judge court on the construction of the Alaska constitution?

Charles K. Cranston:

Mr. Justice, I’m not asking you to disagree with the construction of the Alaska Court.

I’m asking that the Court should remand the case to the District Court to be held pending the determination of the unique Alaska constitutional provisions in the light of the Alaska law by an Alaska Court.

Byron R. White:

So your only answer is to differ to the state court?

Charles K. Cranston:

Mr. Justice, one other answer would be that at the present stage of the record, the application of the statute in the light of the Alaska constitutional provision is not necessarily — does not necessarily reach the result that that provision has violated.

I don’t believe there is enough in the present stage of the record to reach that conclusion.

William O. Douglas:

I understand that the three-judge court rested on two grounds, one was equal protection, Fourteenth Amendment and one was on the Alaska constitution, is that right?

Charles K. Cranston:

Mr. Justice Douglas, that is correct.

William O. Douglas:

Then if equal protection is valid, there’s no point in us even concerning the state ground?

Charles K. Cranston:

Depending on — depending upon the position that this Court takes in its application of the abstention doctrine.

First, the doctrine has been characteristically applied in order to avoid the reaching of a federal constitutional decision if the matter could be resolved by the application of a state constitutional provision.

Also, I would urge that the District Court was in error in finding the statute unconstitutional under federal constitutional provision.

William O. Douglas:

Well, that’s a different ground, yes.

Charles K. Cranston:

And that there was nothing before the Court sufficient to justify its conclusion at that time.

Potter Stewart:

Has there been any litigation at all in the state courts in Alaska about these claims or any similar claims with respect to this legislation?

Charles K. Cranston:

Mr. Justice, none.

This statute has not been interpreted by an Alaska Court so far as I know it at any level.

The only litigation involving the statute has been this case which commenced in the Federal District Court in Anchorage and again, this points up my claim that since we are involved with a highly complex industry, unique constitutional provisions that it is appropriate for state court determination.

Hugo L. Black:

A decision could be made by the Alaska Court on the law — state law to which you refer that would leave the case in such situation that you did not have to still try the equal protection question.

Charles K. Cranston:

Mr. Justice Black, the Alaska Court could decide although the state would naturally fight the issue heavily in the state court but it is possible that it could reach a decision that the statute is in violation of the exclusive right and common privilege provisions of the Alaska constitution.

If that were so —

Hugo L. Black:

That was not the law out there —

Charles K. Cranston:

If that were so, that would knock the entire statute out since the provisions do not apply themselves piece meal across the statute if it is unconstitutional under state law, the entire statute is unconstitutional and there would be nothing left to determine in the light of the federal constitution.

Hugo L. Black:

Because there would be no advantage of us that this law and passing it back to the state law, they are going to hold that, would they?

Charles K. Cranston:

There’d certainly be no advantage to the state if that were the conclusion of the state court.

Hugo L. Black:

And knock it out?

Charles K. Cranston:

However —

Hugo L. Black:

That’s what the attack on it is about, isn’t it?

Charles K. Cranston:

This is one of the attacks.

However, Mr. Justice, the state at this point is asserting that if it were afforded a complete hearing at the state court level in the light of the Alaska provisions that it could prove that the statute is not unconstitutional to the satisfaction of the state court.

In other words, we feel that given a fair hearing in plenary proceedings in a state court, we could show that the statute is a valid application of the state’s police power under those constitutional provisions.

Hugo L. Black:

You’d still leave hanging far that this question of denial of the equal protection of the law.

Charles K. Cranston:

This under that result — this would be possible Mr. Justice.

Hugo L. Black:

Thought it would be not — it would be more impossible wouldn’t it?

Wouldn’t that be the case?

Charles K. Cranston:

That would be a fact that if the state court resolved that the statute was constitutional, the federal question would remain for decision.

However, there have been —

Hugo L. Black:

Then you have to go back to the Federal court, would you, or the by the state court?

What is your theory about it?

Charles K. Cranston:

My theory on this Mr. Justice, under the more recent decisions of this Court and particularly the England versus Louisiana Board of Medical Examiners, that the federal question should be reserved in the Federal court for its determination that the state court should not determine if there’s the abstention doctrine, should not determine the Alaska, should not determine the federal provisions.

Well, that’s only the plaintiffs on the federal suit.

What if that I want it that way, isn’t it under England?

They may submit it in the state court?

Charles K. Cranston:

They may.

Potter Stewart:

Have the federal issue come directly to the state courts?

Charles K. Cranston:

They may do this if they, they are not required to do so Mr. Justice as I read England correctly.

But they are required to do if they want to stay in the federal court as expressly do alert the state courts that they want to go back to the federal court, is that it?

Charles K. Cranston:

That’s my understanding.

As I understand your argument here though Mr. Cranston in the light of what’s been pointed out by Justices, Black and Douglas i.e. that the equal protection question is here, that was decided by the Federal District Court and that is before us now and as I understood your argument, it is simply on the merits of that issue that this does not violate the protection because this is economic regulation and the Court long sense is not an the area of economic regulation has discarded the practices of the Court of the 20’s and the 30’s to strike down economic legislation of the states under the due process or equal protection clause, and that on the merits therefore, the District Court should be reversed and if it’s reversed in that aspect of the case, then and only then, only if you win on equal protection then, with respect to the other horn of the case, i.e. the validity of this legislation under the Alaska constitution, that’s the matter in which there should be abstention, isn’t that your argument, or on the other hand are you telling us that we should not here decide the equal protection issue?

Charles K. Cranston:

Mr. Justice, I obtain the position that this Court should not decide the equal protection issue since there’s not enough before it to decide that issue.

I believe on that point that, the record should be supplemented by further hearings at the District Court level.

Potter Stewart:

Before we decide against you?

Charles K. Cranston:

Yes Mr. Justice.

Potter Stewart:

Right.

Charles K. Cranston:

And there might not be a decision against us if we are afforded a full hearing.

Thank you.

Warren E. Burger:

Thank you Mr. Cranston.

Mr. Boochever?

Robert Boochever:

Mr. Chief Justice, may it please the Court.

I believe that the issues in this case as in many cases maybe a little clearer if we look at it in their historical context.

Alaska, when it was a territory had its fisheries regulated by the Federal Government and back in 1926, the White Act was passed pertaining to the Alaska fisheries to a considerable degree.

Now, Section 1 of that Act provided that there be no exclusive right or a special right in the fisheries of the State of Alaska and that section was passed with -and the history of it shows that it was passed with the expressed purpose of doing away with some administrative orders that had existed prior to that time whereby the licensing for fishing in certain areas was restricted to the prior licensees which is basically what we’re confronted with in this subject litigation, a revival of this old outlawed provision that was outlawed by the White Act back in 1926.

Now, after the White Act was passed, the Secretary of Interior who had a subsequent time had in his powers the regulations of the fisheries of the then territory of Alaska provided for an Indian reservation called the Carlock Indian reservation and he provided in that same regulation that the fishing in the waters abutting the Carlock Indian reservation would be restricted to the Carlock Indians and their licensees, in other words the Indians themselves could license third persons to fish with them in this particular area.

The matter was tried and it came to the Supreme Court of the United States in the case of Hynes against Grimes Packing Company in the 337 U.S. was decided in 1949.

The Supreme Court held that the provision limiting the right of fishery in these reservation waters even though the promulgating of the regulation as far as the establishment of the Indian was upheld that the secretary could not limit the fishing in those waters to the Carlock Indians and their licensees because it ran above of the White Act provision that I have just been referring to.

Now, this is the background, that decision was made in 1949.

In 1955, prior to statehood, Alaska held a constitutional convention and at that constitutional convention, one of the provisions that was enacted was Article 8 Section 15 and this provides for a regulation or restriction on the regulation of fisheries almost identical to the White.

The provision and I quote from the Alaska constitutional provision is that “no exclusive right or special privilege of fishery should be created or authorized in the natural waters of the state.”

And I would like with Your Honors indulgence to read the comment of the Natural Resources Committee of the constitutional convention as to why they enacted that particular constitutional provision into the constitution of the State of Alaska.

Warren E. Burger:

Is that in your brief?

Robert Boochever:

Yes Your Honor, it is at page 31.

Warren E. Burger:

Page 31?

Robert Boochever:

Yes sir.

In proposing Section 15 of Alaska constitution, the Natural Resources Committee of the Constitutional Convention made the following commentary, no exclusive right of fishery.

This section is intended to serve as a substitute for the provision prohibiting the several right of fisheries in the White Act.

Instead of using the terminology of that Act, the purposes sought by it are a given expression in a prohibition of exclusive right or special privileges of any person to the fisheries of the state, and that’s the commentary on the article on state lands and natural resources.

Now, Your Honor this subsequently was adopted as the constitution of the state of Alaska, this provision as a part of the constitution when the constitution — when Alaska was admitted to statehood in 1959.

And as I have explained initially, this was based on the White Act provision and the purpose of that White Act provision was to prevent the restriction of fishing rights to those who had had those rights in prior years.

Now, we have had unfortunately in Alaska quite a history of legislative attempts that created local favoritism, efforts to give the people in Alaska advantages over non residence particularly and even as to residence in certain areas over other areas.

I refer to the case of Smith against Freemen in 280 2d U.S. where it was attempted to impose a $250.00 license fee for non resident fisherman as opposed to a $1.00 resident fee.

Mullaney against Anderson in 342 U.S. where they attempted a $50.00 resident license fee as opposed to a — $50.00 non resident as oppose to a $5.00 resident fee.

Hugo L. Black:

Does that come into your case?

Robert Boochever:

Pardon me Your Honor?

Hugo L. Black:

The non-residency?

Robert Boochever:

Not as such, no.

This case does not depend on none residency because it would work a discrimination as to residence in the state as well as non residence and that it restricts it to specific areas in the state.

But it also — it is the same general plan to give an advantage to the local fishermen.

That is an unconstitutional advantage.

In Brown against Anderson, the attempt was made to, where under certain hardship conditions, only fisherman of a local area could fish and no non residents could come in to fish.

In the last year, the case of Alaska against International Union of Operating Engineers, 393 U.S. involved in attempt to give local laborers of the union favoritism over non-resident laborers.

And it is our position Your Honor that Chapter 186 of SLA 1968, which is the legislation with which we are here concerned comes right in this series of an effort to create a local monopoly in the fishing areas of Alaska to those who had prior licenses in those particular areas.

Now, to better understand the nature of this discrimination, I think some background of the fishing processes and the nature of the licenses required is needed.

In Alaska, any fisherman must have a commercial fishing license, every fisherman must have that.

In addition where fishing is done by vessels and far and away, the large amount of fishing is done by vessels, there must be a vessel license.

Now, there is no restriction on the issuance of the commercial fishing license or the vessel license but there is a third thing that is needed for the almost all the fishing that’s done in Alaska and that is a salmon net gear license, and it is by what we consider this attempt to setup a monopoly is by use of that salmon net gear license.

The law specifies that only those who are licensed in prior years in a specific area may secure a salmon net gear license unless he fishes commercially for three years in that specific area.

William O. Douglas:

That doesn’t apply to people who are commercial fisherman in the sense of — that they’re trollers, is that right?

Robert Boochever:

Your Honor, no it does not.

One can troll without a salmon net gear license.

William O. Douglas:

As a commercial fishing?

Robert Boochever:

Yes Your Honor and I might point out right here that trolling is an entirely different type of fishing, it uses a different type of vessel.

In trolling a line is hung out from the vessel, only four lines are permitted.

William O. Douglas:

I understand, to what percentage of the salmon caught in Alaska are caught by trollers and what by the net system?

Robert Boochever:

Less than 5% are caught be trollers, 95% are caught by the net fisherman; this appears in the statistical reports of the State of Alaska.

Potter Stewart:

As I understood, there’s a different variety of salmon that was caught mainly by trolley?

Robert Boochever:

Yes Your Honor, that is also true.

Primarily, the fish that are caught by troll are the large king salmon and the silver pap salmon and they are not as a rule used in the canneries which can the other salmons, they are sent to the eastern market.

William O. Douglas:

Which are they, the suck eye in the market?

Robert Boochever:

Yes Your Honor, the principle, there is suck eye and pinks and shanks, the other three varieties.

Potter Stewart:

And they are caught by gill nets or what do you call?

Robert Boochever:

They are caught by gill nets and by sane nets.

Potter Stewart:

Those kinds?

Robert Boochever:

Yes Your Honor.

And for instance, in Bristol Bay which is the, one of the most valuable of the areas and one of the, one of the most valuable ot ther which the largest runs of fish are anticipated, in fact they anticipate this coming year that there will be 37,000,000 fish caught in Bristol Bay alone, the largest run they anticipated in record.

And in that area, it is impossible to troll.

There is no troll, the statistical report show no troll caught fish and it is well known and the District Judges below had perfect cognizance of this that you could drag a troll line through there day in and day out and you’d never catch a fish because of the salty waters and the fact that the suck eye salmon do not strike in those waters, they will hit a fly up in the stream further up when the water gets fresh but they wont hit the troll lures and there’s no trolling so there’s no way of getting entry into this valuable fishery unless you’re in the favorite class, those who had a license before or unless one can secure the permission of one of those licensees to fish with you.

In other words, it is exactly the thing that was prohibited in the Hynes case where the licenses were limited to the Carlock Indians and their licensees.

In the Hynes case, the Carlock Indians had authority to let other people get into the field and issue licenses.

In the subject case for instance in Bristol Bay, there are two gear net fishermen usually to a vessel and one owns the gear and if you can’t his permission to fish with you and you can’t a gear license, you’re frozen out of the field, you can’t fish at all and this of course is the exact provision that was involved in the Alaska constitutional provision of article 8 Section 15 which prohibited the use of, the exclusive right or special privilege in the fisheries and which was interpreted prior to the adoption of Alaska constitution by the Supreme Court in Hynes against Grimes Packing.

And I might add that at the time that that was passed by Hynes against Grimes Packing, we not have only had a decision by the highest Court of the land, the Supreme Court, but at that time, it was the highest Court of the state, that is the territory because their territory had a District Court which was a District Court for the territory of Alaska and it had a joint function as a territorial court and in effect federal court.

There was no territorial appellant court, the appeals went to the United States Court of Appeals for the Ninth Circuit and then to the Supreme Court.

So we have a clear decision on a constitutional provision not only by the Supreme Court of the United States but the highest court of what was then the state and we might — I might add that Alaska, the Alaska Supreme Court has held that when a statute is adopted from another jurisdiction, it takes with it the construction placed on that statute by the highest court of that jurisdiction, I refer to the case of (Inaudible) against Lathrop Company in that regard.

Now, we feel that not only is this violative as I have shown and clearly so with a Supreme Court decision on it already of the federal constitutional issues, of the state constitutional issues but it also is a discrimination based purely on past fishing efforts and violates the equal protection clause of the Fourteenth Amendment.

In that regard, we feel that the case of Takahashi against Fishing Gain Commission in 340 34 U.S. is very much in point.

As Your Honors, will recall in that case, the state of California prohibited fishing by certain aliens and in expressing their reason, they gave very much the same reason as my learned colleague here has given today that this was a conservation method.

That there was too much gear in the waters of California and then it was necessary in order to conserve fishing to reduce the amount of gear and therefore to eliminate certain aliens from the fishery.

And this learned Court of course held that that was violative of the Equal Protection clause even though the purpose was a justifiable purpose assuming it was a justifiable purpose that of conservation.

Potter Stewart:

You have an additional element however, don’t you in this case the — that of experience.

That of experience and that makes this case a little more akin to the Cache (ph) case doesn’t it?

Robert Boochever:

Well, I think the Cache (ph) case Your Honor as stated in the opinion.

There is a unique case and in fact they stated there that one shouldn’t hypothesize about any other facts from it.

In that case, the river boat pilots where officers of the state itself and there were only a very limited number of those positions available and so under that rather — that unique situation, it was upheld in a divided decision.

Robert Boochever:

So that I don’t think the Cache case is applicable at all to the situation which —

Potter Stewart:

At least to do, I have asserted here the interest of Alaska in having people, only people fish who were familiar with the waters and with the notices and with the weather and with the bottom, with the safety and experience —

Robert Boochever:

Your Honor —

Potter Stewart:

That you did desire and remember, having the California case.

Robert Boochever:

Yes, that is so Your Honor.

However, in this subject case, what there is, is in the recitation of the statute.

There is a statement that experience plays a part in management, in safety and in law enforcement.

And we served interrogatories on the state requesting any examples they could give where this was a factor.

Experience, I might add in the particular area because the plaintiffs in this case are all experienced fishermen who have fished to great deal.

But they have been denied the right to fish in the particular area.

In answer to those interrogatories, the state was able to furnish no example of any one of those areas where experience had played a part.

And of course this has come before the court below on a motion for summary judgment.

Warren E. Burger:

Well in the Cache case, wasn’t the experience factor related directly to the safety of the harbors?

Robert Boochever:

Yes, Your Honor it was and as I stated, they were — there was a very — there were very few people, they could be in any event employed as river boat pilots and they were officers of the state itself and it was a unique situation in that instance.

Warren E. Burger:

Is there any safety factor here except as — or any factor in which the experience relates to safety here as distinguished from relating to conservation methods and practices?

Robert Boochever:

Not as such as related to fishing in a particular area.

There is the — certainly as I would say a certain degree that experience in any field helps and certainly experiences a boat man would give some experience to tort safety and navigating a boat.

I couldn’t deny that.

But as far as a fisherman who has fished for instance in southeastern Alaska, where that one area is as large as all the New England states and it has a tremendous shoreline.

Well, the fisherman there, each fish in their own little favorite harbors and their experience there would give them as far as fishing in the rest of the area is just the same as their experience fishing in Bristol Bay or somewhere else would be.

So I do not feel that it is a valid criteria.

However, I’m not arguing that point assuming that it is.

In this particular case, they should not exclude based on the past right and then leave it in the hands of those who have that exclusive right to decide who will come in because no one can fish without fishing with the gear licensees.

Incidentally Your Honors asked as to what the —

William O. Douglas:

They won’t fish?

Robert Boochever:

Pardon me Your Honor.

William O. Douglas:

You mean they won’t fish.

Robert Boochever:

No Your Honor.

What I mean is that in order to fish, they have to get the consent of one of the —

Byron R. White:

I know you keep saying that but you don’t have to have their consent to go out and fish.

Robert Boochever:

To fish commercially with a net, one does.

Byron R. White:

Why?

Robert Boochever:

Well, here let me give the example again in Bristol Bay.

Byron R. White:

I know but the — fish with the net should be troll.

Robert Boochever:

You can’t troll in Bristol Bay.

There is no —

Byron R. White:

Well you can troll, you just won’t catch anything.

Robert Boochever:

Yes I guess one could do that.

But of course —

Byron R. White:

You keep saying you can’t fish except with the consent of somebody to fish all you want to.

Robert Boochever:

Well, you can fish without catching fish if that’s Your Honor but that to me is —

Byron R. White:

Is this only true in Bristol Bay?

Robert Boochever:

No.

There are number of other areas —

Byron R. White:

Well there are a lot of areas which is isn’t true?

Robert Boochever:

Yes Your Honor but this would eliminate one from fishing in the Bristol Bay area which is in itself at times as much as half the fish from the whole state.

Byron R. White:

Would you think that’s enough to invalidate the entire statute?

Robert Boochever:

I think Your Honor that the — this applies also to each of the areas independently.

In other words, there is no relationship between trolling which is the one example that’s been given.

There is no relationship between trolling and same fishing or net fishing.

Byron R. White:

Well that’s a different point.

You’re just challenging the state judgment that there is a relationship and that’s certainly a different point from saying that you can’t fish at all.

And of course, you can fish and how about catching of the fish besides Salmon?

Robert Boochever:

Your Honor, in some of the areas, one can fish for other fish besides salmon.

For instance in southeast there is —

Byron R. White:

What about Bristol Bay?

Robert Boochever:

In Bristol Bay to my knowledge, the salmon fishery would be the only fishery but I could not say that categorically.

That is my —

Byron R. White:

Well, if we can’t say it categorically, the state is saying, go ahead and fish commercially.

Learn about the area, learn about the water and the — other characteristics and how to handle a boat.

Byron R. White:

Maybe you won’t learn a lot about salmon fishing but at least you will be satisfied that you can maintain yourself on the ocean safely and obey the law.

Robert Boochever:

Well Your Honor the —

Byron R. White:

Isn’t that enough for the state?

Robert Boochever:

No, in my opinion, it is not Your Honor because —

Byron R. White:

I know it is in your opinion, but it’s only you because you disagree with the substantive judgment of the state.

Robert Boochever:

No, my feeling would be that if you have a man who has fished commercially in one area and he has shown his knowledge and he’s fished there.

There is no reason why he should be discriminated against in fishing in another area whereby his only means of entering that field is by the grace of the licensee or else he is subjected to leaving his vessel, his gear and try to gain employment there or else to do as in the case of the Salmon fishery in Bristol bay, a feudal act for three years.

Byron R. White:

You would say then that — I suppose you would concede the state has the right to limit the number of people fishing in the area.

Robert Boochever:

No I do not Your Honor.

Not under the state constitutional provision.

The state constitutional provision is expressed on —

Byron R. White:

You mean that —

Robert Boochever:

No exclusive right of fishing.

Byron R. White:

It has no power to limit the number of fisherman in the area.

Robert Boochever:

No I do not believe it does Your Honor.

Now, this is a more difficult question.

In other words, if they were say a lottery as to whether this would be permissible.

I would say that’s a more difficult question under the state constitution that we have here.

William O. Douglas:

Isn’t this the regulation indirectly doing that?

Robert Boochever:

Of limiting the number of fishermen?

Yes Your Honor.

It did limit the number of fishermen but by an unconstitutional way.

Now —

William O. Douglas:

Well that’s our question.

Robert Boochever:

In answer to Mr. — excuse me, I’d like to answer Mr. Justice White further if I may.

With reference to the regulation under the state constitutional provision, there are number of means that are permissible.

They may reduce the number of hours that fishing is permitted.

They may reduce the number of areas where it’s permitted.

They may reduce the size of the gear that’s permitted but they can’t create an exclusive or special right in certain people to fish in the areas.

And this is what they have attempted to do here.

Robert Boochever:

That’s in our opinion, a clear violation.

Now, I would like to —

Potter Stewart:

Well if you — it’s the way you put the issue — certainly they can’t do it — they can’t establish the exclusive right in certain people — if those certain people are chosen irrationally such as only white people or only negroes or only people with over 6 feet tall or only people between the ages of 25, 26.

But if those people are chosen rationally then the question under the equal protection clause at least is one of seeing whether there is a rationale state purpose for this sort of classification.

Isn’t it?

Robert Boochever:

I would agree with that under the equal protection clause although not under the state exclusive right of fishery clause.

I would agree that that is the test under the equal protection clause.

Byron R. White:

Can you get me now to the state constitution, if the state wants to limit lake conservation, a step to preserve its fish, the only way it can do this is by limiting the hours of fishing or the number of fish that can be caught or something like that.

Robert Boochever:

Yes Your Honor.

Byron R. White:

Which means that if enough the people came in, there just wouldn’t be any commercial fishing.

Robert Boochever:

No.

Byron R. White:

But they could never make a living.

Robert Boochever:

Excuse me Your Honor.

The laws of supply and demand would effect it.

In other words, if you had more fisherman and they reduced the hours to such a few hours that it was uneconomical to fish, then they’re going to have to drop out of the field.

Byron R. White:

Only the strong could survive, I suppose.

Robert Boochever:

It would be more or less on that basis.

I would say Your Honor but this is what was passed as part of the Alaska constitution and knowingly passed with the idea of preventing, giving any exclusive right to any group in the fishery.

Warren E. Burger:

Excuse me.

William O. Douglas:

Are salmon a dwindling resource in Alaska?

Robert Boochever:

No, I don’t believe they are at this time Your Honor.

The forecast as I mentioned for this coming year is for the largest run in the history since the 19th century.

They anticipate over 14 million fish in Bristol Bay alone.

I’m referring to the Bristol Bay fishery, it varies a great deal.

And one year, you’ll have a good run in southeastern Alaska.

Another year, it will be a good run in Bristol Bay and the forecast this year is for the greatest in history, so that I don’t think we can say it’s a dwindling resource and it appears that it is on the upgrade under the state management at the present time.

Warren E. Burger:

Now don’t these questions which are — that they’ve been bringing out a lot of factual matter suggest this is subject which are to be explored in a full scale evidentiary process?

Robert Boochever:

No Your Honor because the — most of the facts, which I have stated are matters that are so well known in Alaska that they are a matter of judicial knowledge.

Warren E. Burger:

The first well known to us.

Robert Boochever:

Well, it is difficult.

Robert Boochever:

I must admit to talk to someone who is not been in the particular area.

But our district judges, two of the district judges are long time Alaska residents who are thoroughly familiar with the Alaska fishery and were able to take notice of what the actual facts are in the fishery.

Secondly, there was no statement of issues made by my learned colleague raising any issues of fact.

We brought up our position initially in this case in our briefs and in our complaint and they never as required by the District Court rules for the United States District Court of the District of Alaska set forth a factual issue challenging our position until our oral argument in the Court — in the court below and in their briefs before this Court.

Now, I would like in the few remaining minutes to address myself to the abstention problem.

In this case, as I have stated, we have a Supreme Court decision on the Alaska constitutional issue.

We have a clear history of that Alaska constitutional issue.

There is therefore no reason why the lower court should abstain, should have abstained because of that issue.

We had every right to be in the Federal court under diversity of citizenship and because of the admittedly substantial federal question that’s involved.

And so —

Potter Stewart:

Did your complaint rest jurisdiction on both of those grounds?

Robert Boochever:

Yes Your Honor it does.

Potter Stewart:

Diversity as well as federal questions.

Robert Boochever:

Yes Your Honor.

Potter Stewart:

Thank you.

Robert Boochever:

So, we are there on both reasons, the statute is perfectly clear, there is no question of interpretation of the statute, no question but that these plaintiffs were denied the fishing right under the statute.

There is no question but that the Alaska constitution has been construed by the higher state court and the Supreme Court of the land and therefore there is no reason for application of the unusual doctrine of abstention.

Thank you Your Honor.

Warren E. Burger:

Thank you Mr. Boochever, your time is expired.

Thank you for your submission.

The case is submitted.