Reetz v. Bozanich

PETITIONER: Reetz
RESPONDENT: Bozanich
LOCATION: Dodge County Juvenile Court

DOCKET NO.: 185
DECIDED BY: Burger Court (1969-1970)
LOWER COURT:

CITATION: 397 US 82 (1970)
ARGUED: Jan 13, 1970
DECIDED: Feb 25, 1970

Facts of the case

Question

Media for Reetz v. Bozanich

Audio Transcription for Oral Argument - January 13, 1970 in 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. --