STATE of Alaska, Appellant, v. Lori L. OSTROSKY, Julianne Ostrosky and Harold C. Ostrosky, Appellees. Lori OSTROSKY and Julianne Ostrosky, Cross-Appellants, v. STATE of Alaska, Cross-Appellee.
Nos. 6336, 6373
Supreme Court of Alaska
July 19, 1983
667 P.2d 1184
Frederick Paul, Paul, Johnson, Paul & Riley, Seattle, Wash., for Harold C. Ostrosky.
Robert H. Wagstaff, Wagstaff, Middleton & Pope, Anchorage, for Lori and Julianne Ostrosky.
Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
OPINION
MATTHEWS, Justice.
The issues presented in this case are:
1) whether the entry restrictions of the Limited Entry Act,
(a)
(b)
2) whether the transferability provisions of the Limited Entry Act, under which entry permits can be sold or inherited,
(a)
(b)
(c)
(d) the equal protection clause of the
The superior court answered the questions designated above as 2(a) and (c) in the
I. FACTS
When Harold Ostrosky and his two daughters, Lori and Julianne, operated salmon drift net gear in Bristol Bay without entry permits they were cited for illegal possession of commercially caught fish,1 and illegal commercial fishing.2
The three went to trial and were convicted. Mr. Ostrosky was fined $10,000, with $9,000 suspended, and Lori and Julianne were each fined $5,000, with $4,500 suspended. In addition, the boat on which they were fishing, the Lori K.O., was ordered forfeited to the state, with the forfeiture suspended for two years.
Lori and Julianne filed an application for post-conviction relief, claiming their convictions were invalid because the provisions of the Limited Entry Act regarding transfer of entry permits violated state and federal constitutional requirements. Mr. Ostrosky joined in this position. The superior court held that the transferability provisions of the Limited Entry Act violate
No exclusive right of fishery. No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the state. This section does not restrict the power of the state to limit entry into any fishery for purposes of resource conservation, to prevent economic distress among fishermen and those dependent upon them for a livelihood and to promote the efficient development of aquaculture in the state.
The Act was passed under the authority of this constitutional provision. The obvious tension between the ban on “exclusive rights or privilege of fishery” on the one hand and the grant of power to “limit entry into any fishery ... to prevent economic distress among fishermen and those dependent upon them for a livelihood ...” on the other hand is reflected in the Act which has as its purpose limitation of entry without “unjust discrimination.”
An analysis of the Act in terms of
Initially, we must look to the purpose of the statute, viewing the legislation as a whole, and the circumstances surrounding it. It must be determined that this purpose is legitimate, that it falls within the police pow
The nature of the right involved has been addressed by the court in Apokedak as an “... important right to engage in economic endeavor, which in some cases may involve the right to employment in the industry.” 606 P.2d 1255 at 1266 (footnote omitted).
The purposes of the Act identified by the Supreme Court in Apokedak are: (1) enhancing the economic benefit to fishermen since too many involved in the industry prevented those relying on fishing for a livelihood from securing adequate remuneration; (2) conserving the fishery; (3) avoiding unjust discrimination in the allocation of a limited number of entry permits; and (4) administrative convenience. 606 P.2d at 1255. Does allocation of entry permits by the market and inheritance bear a fair and substantial relation to these legislative purposes?
The particular means of allocating permits is irrelevant to conservation of the fishery. That purpose is accomplished by controlling the catch. The allocation system is, therefore, irrelevant to achievement of this purpose.
The inheritance and transferability provisions of the Act clearly serve the purpose of promoting administrative convenience. Allowing the market and rules of descent and distribution to allocate permits avoids the necessity of a case by case ranking which was required for the initial award of permits. However, the purpose of promoting administrative convenience cannot alone outweigh the important right impinged by the statutory classification. 606 P.2d at 1266, footnote 45.
Allocation of permits by the market does not serve the purpose of avoiding unjust discrimination among those seeking permits. On the contrary, this system of allocation results in an unjust discrimination. Assuming a willing seller, the availability of permits is based solely on ability to pay. As noted by Justice Dimond in his concurring opinion in Apokedak:
This situation has the effect of creating another classification: on the one hand, the person with abundant financial resources, and on the other, a person of considerably more modest means. It seems to me that the Act is having the effect of favoring the well-to-do over the poor. In my opinion, this discrimination is basically unfair or unjust, and does not conform to the principle in article I, section 1 of our Constitution which requires equality of treatment of persons in the state. 606 P.2d at 1268-69.
In the initial ranking an applicant was awarded points by demonstrating the economic hardship which would result from exclusion from the fishery.
The state analogizes the market allocation of permits to the sale of alcoholic beverage licenses and subsequent sales of homestead lands. I find neither analogy compelling. Of principal importance is the fact that the people enjoy access to the state‘s fisheries which does not pertain in the case of alcohol. See
It may be argued that the allocation of permits by the market is necessary to allow the permit holder to recoup his investment in vessels and gear. However, market allocation bears only a tenuous relation to this purpose. First, the market price of the permit is dependent on the type of permit and the location of the fishery, and is not directly dependent on the vessel and gear owned by the transferor. Second, investment in vessels and gear is, or should be, a factor in the permit holder‘s decision to leave the fishery. The capital investment can be amortized over
The Act has as a purpose prevention of economic distress among fishermen and their dependents. A sizable capital investment is required to engage in commercial fishing. This investment was recognized in the initial ranking of applicants for free entry permits.
The state appealed to the court of appeals which certified the appeal as appropriate for transfer to this court pursuant to
II. CONSTITUTIONALITY OF ENTRY RESTRICTIONS
Although the superior court struck down the Limited Entry Act on the grounds that its transferability provisions violate the Alaska Constitution, the Ostroskys have offered additional grounds for holding the Act unconstitutional. We consider these because a judgment may be affirmed on grounds different from those relied on by the trial court. Moore v. State, 553 P.2d 8, 21 (Alaska 1976); Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961).
We will first consider Harold Ostrosky‘s contentions concerning the validity of the entry restrictions of the Act. Those restrictions, in general, provide that no one can be the primary operator of commercial fishing gear without an entry permit. There are only a limited number of entry permits for each particular fishery. Following the implementation of the Act in 1973, entry permits were issued to those who had previously held gear licenses on a grandfather rights basis subject to detailed statutory and regulatory guidelines. See generally Commercial Fisheries Entry Commission v. Apokedak, 606 P.2d 1255 (Alaska 1980). Commercial fishermen who had been crew members but not gear license holders were not eligible to receive entry permits in the initial allocation.
A. Article VIII, Section 3.
Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use.
Until it was amended in 1972,
No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State.
In 1972 an additional sentence was added to
This section does not restrict the power of the State to limit entry into any fishery for purposes of resource conservation, to prevent economic distress among fishermen and those dependent upon them for a livelihood and to promote the efficient development of aquaculture in the State.
Harold Ostrosky argues (a) that
Applying the [State v.] Erickson [574 P.2d 1 (Alaska 1978)] test and considering the goal to be obtained, protection of the investment, and the means selected, allocation by the market, and in light of the important right impinged, I find the Act does not bear a fair and substantial relation to the statutory purposes. I further find that the inheritance and transferability provisions of the Act have the effect of causing, rather than avoiding, unjust discrimination among those seeking permits. I find the Act unconstitutional under
Art. I, sec. 1 of the Alaska Constitution , and hold that the defendants cannot be penalized for failure to possess the required permits, therefore necessitating a reversal of their convictions.
Ostrosky v. State, No. 3 AN-80-7652 Criminal (Alaska Super., August 14, 1981) (footnote omitted).
Like the courts in the Bozanich cases, we have difficulty squaring the
We proceed to an examination of the second part of Harold Ostrosky‘s argument, namely that the amendment to
Our conclusion is supported by the history of the 1972 amendment. As introduced by the Governor and as passed by the Senate, the language of the proposed amendment was stated in the affirmative: “The state may restrict entry to any fishery....” 5 As so written, there would be no question but that limited entry would be constitutional as a matter of state constitutional law, despite any contrary provisions of the state constitution. The House Resources Committee changed the language to its present negative form. The Committee report explaining this action makes it clear, however, that the Committee did not intend to constrict in any way the sweep of the amendment. Thus, the report states with approval the purpose of the amendment: to “give the state the power to restrict entry into a fishery for certain public purposes.” The report continues:
In his testimony to the committee the Attorney General, Mr. Havelock, suggested that an amendment of this nature is essential if Alaska is to ever have an economically healthy fishing industry. For more than a decade fisheries economists have been calling for such an institutional change, and over the past few years the fishermen themselves have come to recognize that this amendment, though no panacea, is an essential first step to revitalization of the fishing industry in Alaska.
After so endorsing limited entry the report proceeded to explain the Committee‘s substituted language:
After carefully studying the new language proposed in the Senate Resolution, your committee has adopted a substitute which alters the wording of the amendment in three small but significant ways. Only the first change concerns the change from a positive to a negative form of expression. The report continues:
In the case of Reetz v. Bozanich, the U.S. Supreme Court held that a statute limiting entry into a fishery creates an exclusive right of fishery. As a consequence, the meaning of the new language, which the Senate proposes to add as a second sentence in Section 15, is not as clear as it could be. In order to eliminate any confusion or ambiguity we have altered this
new language to show that the state‘s power to limit entry is a specific exception to the ‘exclusive right’ prohibition.
2 House Journal 760-61 (1971).
Thus, the purpose of the House Committee in altering the affirmative language of the Senate Joint Resolution to the negative form which found its way into the amendment was to clarify perceived ambiguities, not to restrict the meaning of the Senate Joint Resolution.
We conclude that the purpose of the amendment to
B. Article I, Section 1.
III. CONSTITUTIONALITY OF TRANSFERABILITY PROVISIONS
[T]he holder of an entry permit may transfer his permit to another person or to the [Commercial Fisheries Entry Commission] upon 60 days notice of intent to transfer under regulations adopted by the commission. No sooner than 60 days nor later than 12 months from the date of notice to the commission, the holder of an entry permit may transfer his permit. If the proposed transferee, other than the commission, can establish present ability to participate actively in the fishery, the commission shall approve the transfer
and reissue the entry permit to the transferee.7
Upon the death of an entry permit holder, the permanent permit shall be transferred by the commission directly to the surviving spouse by right of survivorship unless a contrary intent is manifested. When no spouse survives, the rights of the decedent pass as part of his estate.
Lori and Julianne Ostrosky do not attack the entry restriction aspect of limited entry. Instead, they contend the above transferability provisions are unconstitutional. Their argument is that these provisions exclude those who do not have sufficient assets to purchase an entry permit and who have not inherited one. This, they contend, amounts to an unconstitutional classification based on wealth and lineage. They also argue that the transferability provisions themselves create an exclusive right or special privilege of fishery barred by the first sentence of
A. Article VIII, Sections 3 and 15 - The Least Exclusive Alternative Contention.
One interesting argument made by Lori and Julianne Ostrosky is based on the tension between
Since “[i]t is a well accepted principle of judicial construction that, whenever reasonably possible, every provision of the Constitution should be given meaning and effect, and related provisions should be harmonized,” Park v. State, 528 P.2d 785, 786-87 (Alaska 1974), the premise of this argument is logical. However, the conclusion that free transferability is more exclusive than a reversion-reissuance system has not been demonstrated.
Given a finite number of permits for each of the several fisheries subject to the Act, it is not evident that free transferability constitutes a greater impingement on the nonexclusive, common use goals of
B. Equal Protection.
Three standards of review are commonly utilized in cases involving the equal protection clause of the
The approach we have taken under the state equal protection clause is somewhat different. In contrast to the rigid tiers of federal equal protection analysis, we have postulated a single sliding scale of review ranging from relaxed scrutiny to strict scrutiny. The applicable standard of review for a given case is to be determined by the importance of the individual rights asserted and by the degree of suspicion with which we view the resulting classifica
In applying the Alaska Constitution, however, there is no reason why we cannot use a single test. Such a test will be flexible and dependent upon the importance of the rights involved. Based on the nature of the right, a greater or lesser burden will be placed on the state to show that the classification has a fair and substantial relation to a legitimate governmental objective. Where fundamental rights or suspect categories are involved, the results of this test will be essentially the same as requiring a “compelling state interest“; but, by avoiding outright categorization of fundamental and nonfundamental rights, a more flexible, less result-oriented analysis may be made.
(Footnote omitted).
Having selected a standard of review on the Erickson sliding scale, we then apply it to the challenged legislation. This is done by scrutinizing the importance of the governmental interests which it is asserted that the legislation is designed to serve and the closeness of the means-to-ends fit between the legislation and those interests. As the level of scrutiny selected is higher on the Erickson scale, we require that the asserted governmental interests be relatively more compelling and that the legislation‘s means-to-ends fit be correspondingly closer. On the other hand, if relaxed scrutiny is indicated, less important governmental objectives will suffice and a greater degree of over/or underinclusiveness in the means-to-ends fit will be tolerated.14 Compare Vogler v. Miller, 660 P.2d 1192 (Alaska 1983) with Rose v. Commercial Fisheries Entry Commission, 647 P.2d 154 (Alaska 1982). As a minimum, we require that the legislation be based on a legitimate public purpose and that the classification “be reasonable, not arbitrary, and ... rest upon some ground of difference having a fair and substantial relation to the object of the legislation....” Isakson v. Rickey, 550 P.2d at 362 (quoting State v. Wylie, 516 P.2d 142, 145 (Alaska 1973)).
The individual interest asserted in Ostroskys’ challenge to the transferability provisions of the Act is not of a high order. The interest is that of obtaining the right to fish as a gear license holder by lottery or apprenticeship rather than by purchase or inheritance. The system advocated by the Ostroskys would exclude on the basis of one‘s ability to be hired as a crewman, a matter on which age and strength are often determinative factors, or on the basis of
While the current system may thus discriminate on the basis of wealth, it does so only in the manner that any price does. As Professor Tribe has observed: “Judicial intervention to redress poverty on the basis of equal protection is therefore in constant danger of becoming either wholesale or unprincipled....” 15 This may be the reason why cases striking down fees for government supplied services or privileges as discriminating against the poor have been limited to instances where fundamental rights such as access to the courts,16 and ballots 17 have been burdened.
An entry permit is a government license having value issued to a limited number of people. As such it resembles a liquor license, or a permit to operate a trucking firm over a given route, or a utility franchise, or a broadcast license. While these privileges are both purchasable and inheritable, the fact that the poor cannot buy them is wealth discrimination only in the general sense that all prices discriminate in a society where wealth is distributed unequally. Further, the fact that the poor seldom inherit such privileges is lineage discrimination only in the sense that laws permitting inheritance of anything of value are discriminatory. Since the wealth and lineage classifications presented here are not different from those which pervade our system of private property, we do not place the interest asserted by the Ostroskys - redistribution of entry permits based on a system free of these classifications - in an elevated position on the Erickson sliding scale. It follows, of course, that the rational basis test is the appropriate standard for this federal constitutional claim.
The state argues that free transferability serves the following objectives:
- By making permits inheritable and transferable among family members, the Act ensures that a fishing family will be able to continue to fish if the permit holder dies or is disabled, thus protecting the family‘s source of income and its investment in vessel and gear. This prevents economic distress among fishermen and those dependent upon them for a livelihood.
- By making it possible for a person who has fished one permit to purchase a different one, the Act allows fishermen to move to more profitable gear types (from hand troll to purse seine, for instance) and to fish a different area when their usual area has had bad runs. This prevents economic distress among fishermen, and retains the traditional mobility....
- By making permits salable, the Act creates a market for them. Price depends largely on the state of the fishery.... Thus, in order to keep the fisheries healthy, fishermen will obey conservation laws, assist in the apprehension of violators of those laws, and willingly contribute to aquaculture programs.
- By giving permit holders an incentive - money - to transfer their permits, the Act prevents the creation of a closed class of fishermen.... [T]he number of transfers to date has been very large.
- By making the acquisition of a permit certain by payment of the purchase price, the Act allows fishermen to plan where they will fish, what type of gear they will use and what investments in vessels and gear they can prudently make.
- By not setting up any complex eligibility formulas for new entrants, the Act makes the transfer system readily understandable to those it will affect.
- By not requiring the Commission to get involved in transfers to an extent beyond the simple processing of transfer applications and the certification that the proposed transferee has the present ability
to fish, the Act eases the Commission‘s administrative burden, and allows it to focus its attention on other necessary duties, such as the setting of optimum numbers for limited fisheries and the decision whether presently open fisheries should be limited.
Free transferability, in other words, is meant to prevent hardship when a permit holder dies or becomes disabled; allow gear license holders to move from one fishery or type of gear to another; advance the causes of conservation, aquaculture, and adherence to fish and game laws by giving gear license holders a stake in the resource; increase the number of permits that are transferred; and ease administrative burdens on the state.
The opinion of the superior court, and the arguments of the Ostroskys, focus not on the foregoing purposes but on those identified in Commercial Fisheries Entry Commission v. Apokedak, 606 P.2d 1255, 1265 (Alaska 1980), namely, (1) enhancing the economic benefit to fishermen; (2) conserving the fishery; (3) avoiding unjust discrimination in the allocation of a limited number of entry permits; and (4) administrative convenience. While the objectives identified by the state are by no means unrelated to those expressed in Apokedak, the latter should be understood to be the overall objectives of a limited entry system.
Once the decision to institute a limited entry system is made, the question of how entry permits are to be transferred necessarily must be answered. The purposes of the transfer method will not necessarily be identical to the general purposes of limited entry. As we noted in Apokedak, 606 P.2d at 1264 & n. 39:
Seldom, if ever, will a statutory scheme, especially one as complicated as the Limited Entry Act, have a single monolithic purpose. The legislature usually acts with a variety of purposes in mind and each of these purposes deserves judicial recognition.39
Each of the objectives identified by the state as purposes of free transferability was discussed in the extensive legislative hearings preceding passage of the Act. Thus, they may not be regarded as after the fact hypotheses. Further, the objectives are legitimate and they are fairly and substantially furthered by free transferability. We hold, therefore, that the equal protection clause of the state constitution is not violated by the transfer provisions of the Act.
The same analysis is applicable, and yields the same conclusion as to federal equal protection.
The judgment of the superior court is REVERSED.
RABINOWITZ, Justice, dissenting.
I.
I agree with the majority‘s suggestion that the conflict in constitutional provisions in this case is properly resolved by allowing the legislature to adopt a system of limited entry, but only through the means which are least restrictive upon other rights guaranteed in the constitution. Beyond the statement of this principle, however, I cannot agree with the application given the less restrictive alternative test to the “free transferability” system implemented by
Free transferability impairs rights guaranteed by three separate clauses of the Alaska Constitution. The “common use” clause in
Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use.
The first sentence of
No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State.
In the absence of legislation pursuant to the second sentence of
The enabling language of
Examined in these terms, free transferability makes the Limited Entry Act the most restrictive scheme possible under the common use clause. The ability to use and derive value from the gear fishery resource is dependent upon possession of a gear license, and these licenses are designed to operate as private property. The initial “grantees” enjoy the ability to sell, assign, or pass on to their heirs their share of the gear fishery resource. Most importantly, the holder‘s right to the license never expires; the holder‘s heirs may hold it forever. Alternatively, they may sell it and realize a return based upon its value as an asset held in perpetuity. Under the free transferability system, none of the value of the resource is retained or ever returns to the state and the people.
In addition, I conclude that
Given the infringements upon the constitutional interests which I have described, free transferability would still be permissible under
The Ostroskys’ principal objection to free transferability is that licenses never expire.
Under the proposed alternative, the length of the license term would be a matter for the discretion of the legislature, within constitutional limits.
Similarly, the method of redistribution following expiration is also a matter of legislative choice, to be exercised within constitutional bounds. One proposal made by the Ostroskys is that reissuance should be made by lottery. This would prevent any danger of the licenses remaining in the hands of a closed class. Any plan which effectively guaranteed renewal would be subject to the same criticisms leveled at the current free transferability plan.
The Ostroskys’ suggestion does not actually require any change in the existing transferability scheme. Licenses may still be sold and inherited. The crucial difference is in the nature of the thing transferred. Licenses would resemble a lease interest in the resource as opposed to an outright ownership interest. They would still have value - possibly considerable value - and that value would be privately held. The distinguishing feature of free transferability with expiration is that something of the people‘s common use rights are still held by the state. Privatization of the common use interest is not effected to a degree well beyond what is necessary to implement an economically feasible limited entry system.
Because the Ostroskys have proposed an alternative for a feasible entry system which is less restrictive of the public‘s rights in the gear fishery resource, I would hold that the present statute is invalid under Alaska‘s Constitution.5
II.
I further disagree with the majority‘s discussion of the state‘s interest in the goals furthered by
Under
In evaluating the strength of the state‘s interest in the goals behind the system of free transferability, it is incumbent upon this court to weigh the Ostroskys’ argument that the legislatively-created “free market” for gear licenses discriminates on the basis of wealth.6 I would hold that the broad statutory anti-discrimination purpose of the Limited Entry Act militates against any system of transferability which makes gear licenses available only to the extremely wealthy. Certainly the state‘s interest in the current transferability provisions is diminished by the provisions’ tendency to create such a classification.
Notes
20 AAC 05.110 provides:
PERMIT REQUIRED TO POSSESS FISH OR SHELLFISH. (a) It is unlawful for any person to possess, within water subject to the jurisdiction of the state, any fish or shellfish, taken for a commercial purpose, aboard a fishing vessel commonly used for taking that species of fish or shellfish unless the person has in his possession a valid interim-use or entry permit card allowing him to take the fish or shellfish in his possession with the gear with which the vessel is equipped unless waived by the commission for good cause.
(b) As used in this section, a “commercial purpose” includes any sale, purchase, trade, gift, or any portion of a commercial transaction.
See also the “natural resources equal protection clause” in
20 AAC 05.100 provides:
PERMIT REQUIRED TO OPERATE GEAR. (a) It is unlawful for any person to operate gear, within water subject to the jurisdiction of the state, for the commercial taking of any fishery resource without a valid interim-use or entry permit card issued by the commission authorizing that person to operate that type of gear in that fishery unless waived by the commission for good cause. To be valid, an interim-use permit or entry permit card issued by the commission must be signed in the space provided by the person named as the card holders [sic].
This section does not restrict the power of the State to limit entry into any fishery for purposes of resource conservation, to prevent economic distress among fishermen and those dependent upon them for a livelihood and to promote the efficient development of aquaculture in the State.
As noted by the majority, without this enabling language the entire limited entry statute would likely be unconstitutional.
The court‘s decision relating to these issues states as follows:
The defendants’ state constitutional challenge involves two related arguments: first, that the Act‘s inheritance and transfer provisions create in permit holders an “exclusive right ... of fishery” in violation of Art. VIII, sec. 15, and second, that these provisions create a wealth and familial classification in violation of the Art. I, sec. 1 guarantee of equal treatment.
I would hold that the state bears a high burden of showing the substantiality of its interests throughout our equal protection examination. Thus, I specifically disagree with the majority‘s conclusion that “[t]he individual interest asserted in appellants’ challenge to the transferability provisions of the Act is not of a high order.” In addition to the common use clause, see Commercial Fisheries Entry Comm‘n v. Apokedak, 606 P.2d 1255, 1266 (Alaska 1980) (“important right to engage in economic endeavor“); see also Hilbers v. Municipality of Anchorage, 611 P.2d 31, 40 (Alaska 1980).
Bozanich v. Norenberg, No. 70-389 Civil (Alaska Super., 1st Dist., Juneau, March 8, 1971) per Judge Carlson.
The Ostroskys’ “free transferability plus expiration” alternative serves all of the purposes advanced in support of the existing scheme. The alternative “prevents economic distress among fishermen and those dependent upon them” by protecting the family‘s source of income during the life of the permit even if the original holder dies or is disabled. It retains the “traditional mobility” of fishermen by allowing for the sale of limited-term permits. It encourages conservation of the fisheries by license-holders, who still have a direct economic stake in the health of their fishery. It discourages the creation of a closed class of fishermen by making this impossible; transfers of permits are still encouraged by the possibility of sale for money. It allows for planning and prudent investment by making the acquisition of a permit certain by the payment of the purchase price. It does not unduly complicate the transfer scheme. It retains the feature of limited involvement in transfers on the part of the CFEC. The commission‘s burden is increased only in that it must periodically reissue the licenses. In my opinion, free transferability plus expiration advances all of the above state goals equally as well as does the existing scheme of free transferability minus expiration.
1971 Senate Joint Resolution No. 10.
Alternatively, I would order supplemental briefing in the case to allow the state to address the alternative of free transferability plus expiration.
Harold Ostrosky raises two other points. (1) He argues that even if a limited entry program is constitutionally permissible, the current act does not further the purposes expressed in the amendment to article VIII, section 15 and is therefore invalid. However, the role of the judiciary is not to invalidate acts of the legislature because in retrospect the acts have arguably failed to achieve the purposes for which they were enacted. Rather, our role is to examine whether the legislature could reasonably have expected that the Limited Entry Act would advance the purposes of article VIII, section 15. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 723, 66 L.Ed.2d 659, 668-69 (1981); Vance v. Bradley, 440 U.S. 93, 111-12, 99 S.Ct. 939, 949, 59 L.Ed.2d 171, 184-85 (1979). No argument has been made that this test is not satisfied, nor do we believe that any such argument would be reasonable. As we stated in Commercial Fisheries Entry Comm‘n v. Apokedak, 606 P.2d 1255, 1263 (Alaska 1980):
The overall economic and conservation goals of the Act [which are the same as the constitutional goals] are met by limiting the numbers of permits.
(2) He argues that the Limited Entry Act is a burden on interstate commerce in violation of the commerce clause of the United States Constitution. The argument is so cursory that it is incomprehensible to us. Accordingly, we do not consider it. See State v. O‘Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980); Lewis v. State, 469 P.2d 689, 691 n. 2 (Alaska 1970); Pedersen v. State, 420 P.2d 327, 330 nn. 4-5 (Alaska 1966).
I am also in disagreement with the court‘s observations that the Limited Entry Act discriminates on the basis of wealth only in the manner that any price does, and I further disagree that liquor licenses and utility franchises furnish appropriate analogues. These assumptions overlook the constitutional status of the right allocated by the Limited Entry Act and the fact that here the relevant “free market” is one which was created legislatively and one which perpetuates and aggravates economic disparities.
The present ability requirement is not a stringent one. It requires only that “the person is physically able to harvest fish in the fishery and has reasonable access to commercial fishing gear of the type utilized in that fishery.” 20 AAC 05.770(5).
For the last quarter of 1981 the average price for a permit was approximately $50,000. For some fisheries average prices were much higher, ranging upwards to $100,000. Commercial Fisheries Entry Comm‘n, 1981 Quarterly Permit Price Information (1982). Permits are, however, often transferred. In each of the years 1980 and 1981 about 1,000, or 10% of the existing permits, were transferred, primarily by sale. Commercial Fisheries Entry Comm‘n, Commercial Fisheries Entry Permit Transfers, 1980 and 1981 (1982).
The system of termination of permits after a specified term of years during which the holder “may be expected to recoup his investment in gear and vessel and realize a reasonable return,” suggested by the dissent entails permit reissuance, probably on the basis of a lottery. The reissuance aspect of such a system, if based on a lottery, would be subject to the comments which we have made above. Likewise, if reissuance were based on a type of apprenticeship system, our comments above would also be applicable. Additionally, such a system would be of questionable feasibility. For most fishermen commercial fishing is a career choice. It would work an obvious hardship on a gear license holder whose permit expired after, for example, ten years, to then force him out of his chosen career. This would be similar to restricting a license to practice law or medicine to a limited period after which the practitioner would have to make way for others and embark upon a second career. Further, the system suggested by the dissent would tend to lock a fisherman into owning only one vessel during his fishing career. It would be difficult for a fisherman having only three or four years left on his license to finance the acquisition of a new vessel. Moreover, the fixed termination aspect of such a system would tend to foster exploitation, rather than conservation, of the fisheries.
L. Tribe, American Constitutional Law § 16.7 (1978).
The flexible scale we use resembles the “spectrum of standards” of which Justices Marshall and White have written with respect to federal equal protection. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 98-99, 93 S.Ct. 1278, 1329-30, 36 L.Ed.2d 16, 81 (1973) (Marshall, J., dissenting), reh‘g denied, 411 U.S. 959, 93 S.Ct. 1919, 36 L.Ed.2d 418 (1973); Vlandis v. Kline, 412 U.S. 441, 458-59, 93 S.Ct. 2230, 2239-40, 37 L.Ed.2d 63, 75 (1973) (White, J., concurring). As Justice White has put it: “[I]t must now be obvious, or has been all along, that, as the Court‘s assessment of the weight and value of the individual interest escalates, the less likely it is that mere administrative convenience and avoidance of hearings or investigations will be sufficient to justify what otherwise would appear to be irrational discriminations.” Id.
Other language in Erickson suggests that a balancing of the individual rights asserted against the state‘s objective is to take place as a process separate from the identification and application of the appropriate standard of review. Id. at 12. Such a process is neither useful nor necessary because the selection of the standard of review on the sliding scale reflects an assessment of the importance of the individual rights, and the standard when selected posits the degree of importance which the government objective must have and the required closeness of fit between the means used to achieve that objective and its achievement. Thus, balancing is inherent in the process of selection and application of the standard of review and is not itself a separate step.
L. Tribe, American Constitutional Law § 16-42 (1978).
This is not to say that the judiciary is required to hypothesize or invent purposes, something Isakson‘s intensified scrutiny test specifically rejects. Close examination of the statutory scheme will usually yield several concrete legislative purposes having a substantial basis in reality, even if these purposes are not specifically identified in a statutory purpose clause.