Bozanich v. Reetz, Civ. No. J-5-68.

CourtUnited States District Courts. 9th Circuit. District of Alaska
Writing for the CourtELY, Circuit , and PLUMMER and VON DER HEYDT
Citation297 F. Supp. 300
PartiesJohn BOZANICH, Andy Ness, Rudolph Plancich, Alan Takalo and William White, Plaintiffs, v. Augie REETZ, Commissioner of Fish and Game for the State of Alaska; Robert Moss, Chairman; and Mike Uttecht, Harry A. Shawback, Frank Cook, Don Harris, Don Smith, Glenn DeSpain, J. Ellsworth Jensen and Gordon Jensen, Members of the Board of Fish and Game for the State of Alaska, Defendants.
Decision Date26 February 1969
Docket NumberCiv. No. J-5-68.

297 F. Supp. 300

John BOZANICH, Andy Ness, Rudolph Plancich, Alan Takalo and William White, Plaintiffs,
v.
Augie REETZ, Commissioner of Fish and Game for the State of Alaska; Robert Moss, Chairman; and Mike Uttecht, Harry A. Shawback, Frank Cook, Don Harris, Don Smith, Glenn DeSpain, J. Ellsworth Jensen and Gordon Jensen, Members of the Board of Fish and Game for the State of Alaska, Defendants.

Civ. No. J-5-68.

United States District Court D. Alaska.

February 26, 1969.


297 F. Supp. 301

Robert Boochever, of Faulkner, Banfield, Boochever & Doogan, Juneau, Alaska, Seth W. Morrison, of Allen, DeGarmo & Leedy, Seattle, Wash., for plaintiffs.

G. Ken Edwards, Atty. Gen. for State of Alaska, by Charles Cranston, Asst. Atty. Gen., Juneau, Alaska, for defendants.

Before ELY, Circuit Judge, and PLUMMER and VON DER HEYDT, District Judges.

OPINION

ELY, Circuit Judge:

Plaintiffs are nonresidents of Alaska. The defendants are those authorities of the State of Alaska charged with the enforcement of Alaska regulations pertaining to fishing rights. The plaintiffs

297 F. Supp. 302
are experienced salmon fishermen, and each has pursued his occupation in certain, although not all, of the coastal waters of Alaska. Those waters are generally divided into twelve fishing regions. In 1968, Alaska adopted a certain statute under which fishing rights in the different regions were thereafter to be regulated by gear licensing requirements.1 The word "gear," in its pertinent
297 F. Supp. 303
meaning here, refers to the operating nets employed in the commercial harvesting of salmon. The statute undertook to confer upon the Board of Fish and Game the right to adopt additional regulations pursuant to the statute. The most recent of the regulations, those which are pertinent here, became effective on February 12, 1969.2 From an examination of the germane provisions of the statute, quoted in the margin, it is apparent that none of the plaintiffs could qualify for a salmon net gear license to fish in some of the twelve regions. In fact, their applications for the 1968 fishing season were denied under regulations less restrictive than those most recently issued

The plaintiffs have argued that the licensing requirements are invalid as violative of both the Constitutions of the United States and the State of Alaska. There is no jurisdictional problem with the amount in controversy, and in light of the substantial federal question, our jurisdiction is initially founded on 28 U.S.C. § 1331(a). Since plaintiffs seek a declaration of the unconstitutionality of state laws and an injunction against their enforcement, our threejudge

297 F. Supp. 304
District Court was convened pursuant to 28 U.S.C. §§ 2281, 2284. On February 14, 1969, we conducted a hearing on the defendants' motion to dismiss and motion for summary judgment and the plaintiffs' motions for injunctive relief and for summary judgment. We took the cause under advisement, and our review of the authorities has convinced us that we must deny the defendants' motions and enter summary judgment in favor of the plaintiffs. Our reasons follow

In their motion to dismiss, the defendants suggested that there is no case or controversy because the issues are moot. This contention is valid in its application to the plaintiffs' original complaint, which challenged the now-expired 1968 regulations under which they were denied licenses for that season. The plaintiffs' amended complaint, however, deals squarely with the 1969 regulations and statute now in effect and under which they would clearly be prevented from obtaining the gear licenses necessary for utilizing their salmon-catching equipment in certain coastal regions that they desire. Another three-judge court of this District overruled a similar suggestion of mootness and explained its reasoning at length in Brown v. Anderson, 202 F. Supp. 96 (D. Alas.1962).

The defendants also urge that we abstain from consideration of the issues in light of the questions of state law involved in the case. It is perfectly clear to us that the plaintiffs should not be penalized by our adopting the position that we should abstain from meeting the important constitutional issues presented until the Alaska state courts may at some future time be called upon to analyze the questions. Our abstention would surely deprive the plaintiffs of substantial engagement in their occupation during this year's forthcoming fishing season. This prospective injury to their economic livelihood looms too grave and irreparable to permit delay in the adjudication of their constitutional rights. Moreover, the legal issues presented do not constitute a proper case for application of the doctrine of abstention. The proper disposition of the case on the merits is too clear, and we have absolutely no doubt that, if the question had been presented to an Alaska court, it would have shared our conviction that the challenged gear licensing scheme is not supportable. See the analysis of authorities in Zwickler v. Koota, 389 U.S. 241, 250-251, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). In Zwickler, the Supreme Court stated, "We have frequently emphasized that abstention is not to be ordered unless the state statute is of an uncertain nature, and is obviously susceptible of a limiting construction." Citations omitted. 389 U.S. at 251, n. 14, 88 S.Ct. at 397.

As we interpret the licensing scheme, it violates the equal protection clause of the Fourteenth Amendment of the Constitution of the United States. The only persons that can presently qualify for net-gear licenses are those already vested with the local privilege. To receive a license for a particular fishery, one must have held a gear license in the same region in a year since 1965 or have held a commercial fishing license in that region for any three years since 1960.3 An aspiring commercial licensee wishing to participate in salmon fishing may work for a locally licensed employer for three years or may fish for himself but without the necessary net-gear to catch salmon. Thus, if an outsider wishes to fish for salmon in a given year, and in three years to qualify

297 F. Supp. 305
for his own gear license, his chances are wholly dependent upon obtaining employment under a member of that closed class of fishermen who, in the specified past years, possessed the right to fish in the area. Although a state may enact fishing regulations in the legitimate interests of conservation and safety, it may not, to achieve those ends, employ arbitrary and irrational means which create or protect local, monopolistic interests. Under the scheme, entry into the salmon fishing industry is controlled not by the state, but by local fishermen in each area who are eligible for gear licenses and can choose among the commercial fishermen, if any, that they might wish to hire. The power to permit competition cannot be vested in private interests whose own benefit would ordinarily not be served by assisting potential competitors to qualify

We are convinced that the Alaska scheme cannot meet the equal protection requirements set forth in Morey v. Doud,4 wherein the Supreme Court struck down another invidious classification in legislation concerning economic regulation. There, the Supreme Court announced:

"In determining the constitutionality of the Act's application * * * we start with the established proposition that the `prohibition of the Equal Protection Clause goes no further than the invidious discrimination.' Williamson v. Lee Optical Co. of Oklahoma, 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. The rules for testing a discrimination have been summarized as follows:
`1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable
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10 practice notes
  • Lynden Transport, Inc. v. State, Nos. 2100 and 2114-2117
    • United States
    • Alaska Supreme Court
    • February 24, 1975
    ...(1952). 23 202 F.Supp. 96 (D.Alaska 1962). 24 Id. at 102-03. 25 102 F.Supp. 698 (D.R.I.1952). 26 Id. at 702-03 (citations omitted). 27 297 F.Supp. 300, 305 (D.Alaska 1969), vacated 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970) (footnote 28 Appellees rely in part on Kirk v. Board of Regent......
  • Commercial Fisheries Entry Commission v. Apokedak, No. 4464
    • United States
    • Supreme Court of Alaska (US)
    • February 5, 1980
    ...fishing license for three years, who, while so licensed, actively engaged in commercial fishing in that area. In Bozanich v. Reetz, 297 F.Supp. 300 (1969), rev'd, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970), the law was held to be invalid by a three-judge federal court. With reference t......
  • Massey v. Apollonio, Civ. No. 74-7 SD.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • December 20, 1974
    ...at 631, 89 S.Ct. 1322; Cf. Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Bozanich v. Reetz, 297 F. Supp. 300 (D.Alas.1969), rev'd on other grounds, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 Apart from its conservation purposes, defendant advances t......
  • State v. Ostrosky, Nos. 6336
    • United States
    • Supreme Court of Alaska (US)
    • July 19, 1983
    ...affected by the 1972 amendment to section 15. The first part of this argument is supported by judicial authority. In Bozanich v. Reetz, 297 F.Supp. 300, 306 (D.Alaska 1969), a three judge federal court held that a precursor of the present limited entry system, chapter 186, SLA 1968, was unc......
  • Request a trial to view additional results
10 cases
  • Lynden Transport, Inc. v. State, Nos. 2100 and 2114-2117
    • United States
    • Alaska Supreme Court
    • February 24, 1975
    ...(1952). 23 202 F.Supp. 96 (D.Alaska 1962). 24 Id. at 102-03. 25 102 F.Supp. 698 (D.R.I.1952). 26 Id. at 702-03 (citations omitted). 27 297 F.Supp. 300, 305 (D.Alaska 1969), vacated 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970) (footnote 28 Appellees rely in part on Kirk v. Board of Regent......
  • Commercial Fisheries Entry Commission v. Apokedak, No. 4464
    • United States
    • Supreme Court of Alaska (US)
    • February 5, 1980
    ...fishing license for three years, who, while so licensed, actively engaged in commercial fishing in that area. In Bozanich v. Reetz, 297 F.Supp. 300 (1969), rev'd, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970), the law was held to be invalid by a three-judge federal court. With reference t......
  • Massey v. Apollonio, Civ. No. 74-7 SD.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • December 20, 1974
    ...at 631, 89 S.Ct. 1322; Cf. Takahashi v. Fish and Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948); Bozanich v. Reetz, 297 F. Supp. 300 (D.Alas.1969), rev'd on other grounds, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 Apart from its conservation purposes, defendant advances t......
  • State v. Ostrosky, Nos. 6336
    • United States
    • Supreme Court of Alaska (US)
    • July 19, 1983
    ...affected by the 1972 amendment to section 15. The first part of this argument is supported by judicial authority. In Bozanich v. Reetz, 297 F.Supp. 300, 306 (D.Alaska 1969), a three judge federal court held that a precursor of the present limited entry system, chapter 186, SLA 1968, was unc......
  • Request a trial to view additional results

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