Brown v. Anderson

• Decision Date: 12 February 1962
• Docket Number: No. J-6-61.,J-6-61.
• Citation: 202 F. Supp. 96
• Parties: Grant E. BROWN et al., Plaintiffs, v. Clarence L. ANDERSON, Commissioner of Fish & Game for Alaska; Roy S. Selfridge, Chairman; Dick Janson, Jr., Arnold Brower, Oscar Dyson, Eugene V. Miller, Robert I. Martin, Howard G. Romig and Gordon Jensen, Members of the Alaska Board of Fish and Game, Defendants.
• Court: U.S. District Court — District of Alaska

202 F. Supp. 96

Grant E. BROWN et al., Plaintiffs, v. Clarence L. ANDERSON, Commissioner of Fish & Game for Alaska; Roy S. Selfridge, Chairman; Dick Janson, Jr., Arnold Brower, Oscar Dyson, Eugene V. Miller, Robert I. Martin, Howard G. Romig and Gordon Jensen, Members of the Alaska Board of Fish and Game, Defendants.

No. J-6-61.

United States District Court D. Alaska, at Juneau.

February 12, 1962.

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

Ralph E. Moody, Atty. Gen. of Alaska, and Avrum M. Gross, Asst. Atty. Gen., for defendants.

Before BONE, Circuit Judge, and POWELL and HODGE, District Judges.

POWELL, District Judge.

This case involves the regulation of salmon fishing in Alaska. Plaintiffs bring this diversity action seeking a declaratory judgment and injunction under 28 U.S.C.A. § 2201. They challenge the constitutionality of Chapter 62 of the Alaska Session Laws of 1961. It is claimed to violate the privileges and immunities and the commerce clauses of the Federal Constitution and corresponding provisions of the Alaska Constitution. This Three-Judge District Court has been convened as provided in Secs. 2281 and 2284 to pass on the questions presented.

The defendants' Motion to Dismiss was first presented. This Court reserved decision on that motion. The parties then submitted the case on the merits. All questions of fact were resolved by stipulation.

Plaintiffs are all nonresidents of Alaska. Some are individual fishermen, some owners and operators of fishing vessels and others are cannery operators. The defendants are the Commissioner and all of the members of the Alaska Board of Fish and Game.

The 1961 Legislature of the State of Alaska enacted Chapter 62 of the Session Laws, entitled "Emergency Commercial Fishing Measures."¹ Defendants are vested by Alaska law with the duty to enforce all the fishing laws of the State of Alaska, including Chapter 62, and with the authority to make and enforce rules and regulations governing fish and game there.

Chapter 62 grants the Commissioner and the Board authority to close any registration area or district to commercial fishing by all nonresidents of Alaska, while granting that right to Alaska residents.

The Board and the Commissioner each has authority to promulgate rules and regulations governing the fishing operations which have the force and effect of law. Violations may be punished by criminal sanctions and forfeiture of vessels and gear.

Salmon are migrating, free-swimming fish which are caught in the marginal seas of Alaska. Both resident and nonresident commercial fishermen catch and transport them to Alaska canneries for packing. At the end of the season the pack is shipped in interstate commerce for sale throughout the United States. Only a negligible portion is retained in Alaska for sale or consumption.

The Alaska marginal waters are divided into ten general areas. Each has specified geographical boundaries. The areas are generally determined by the type of salmon found there and the time of arrival of the salmon schools in the summer for final spawning. Each area has a slightly different season and each area is divided into districts and sub-districts, which in turn may be subject to differing regulations.

As to any one area the entire season is usually not open for more than approximately a month. Fishing may be permitted for an entire week, for several days, or for as few as one or two days per week, and for a designated number of hours each day. Fishing is opened or closed on this basis by field announcements from Fish and Game Department officials in the area and depends on the size of the run which develops and the fishing effort involved. These regulations are issued to provide sufficient escapement of salmon up the streams to insure the continued existence of the salmon runs on a sustained yield basis.

Each fisherman must, prior to the season, elect the area in which he desires to fish. He may not thereafter transfer to another area unless he has permission of the Commissioner. This is granted only for good cause shown and if the transfer will not jeopardize proper conservation.

There are two principal methods of fishing. The first is gill netting and consists of two men fishing from a power driven gill net boat not over 32 feet long. The three nets used are 50 fathoms each and in them the fish are caught by their gills. The net is pulled aboard the boat, the fish extracted by hand and the net then returned to the water. The fish are sold to the cannery operators. A gill net boat and nets represents an investment of approximately $10,000.00.

The second method of fishing is by the use of a purse seine vessel. It runs from 35 to 50 feet in length and is handled by a crew of four to six men. This method involves making a circle in the water with the seine net in the location where the fish are expected. The bottom of the net is then closed (pursed) and the net lifted aboard the vessel like a bucket with the fish held within. A purse seine vessel with the usual power equipment and navigational aids represents an investment of from $50,000.00 to $75,000.00, with net and skiff of $10,000,00 to $14,000.00 additional.

Immediately at the close of one season preparations for the next one are commenced. This includes repair of nets and vessels, the arrangement for crews, the financing of the expected operation and purchase of new equipment. It requires substantial preparation for all plaintiffs to be prepared for the seasonal fishing and canning effort.

The fishermen licensed are about one-third nonresidents and two-thirds residents of Alaska. They fish side by side in the same manner without distinction as to method or technique.

The salmon migrate from the ocean into the streams of Alaska for the purpose of spawning. The salmon arrive from the ocean in large groups called "runs" during various periods of the summer. The time of arrival and the length of time during which the run is in the marginal seas where the fishing effort is conducted, varies from area to area and with the specie of salmon. The run may be as short as two or three days and last up to a week. Successive runs may extend the period during which salmon can be caught in commercial quantities for a longer period, but this is a highly variable factor.

Defendants move to dismiss the complaint on the ground that no justiciable controversy is shown under Sec. 2201 of 28 U.S.C.A.²

Defendants argue there is no controversy because, (1) no regulations have been promulgated under the Act; (2) there has been no attempt at enforcement and none has been threatened, and (3) the complaint does not intimate that the circumstances will ever be such that the Act will be enforced against plaintiffs, or at all.

The argument in support of the motion is made that the application of the Act is not general or unlimited. Before it is applied in a particular area the run of salmon must drop "substantially" below an established figure termed the "optimum" run. Further, it is argued the powers are discretionary and even if the contingencies occur, neither the Board nor the Commissioner must impose restrictions. Counsel argues that until the plaintiffs. or some of them, are directly affected by the enforcement or threatened enforcement, there is no justiciable controversy.

In passing on the Motion to Dismiss we must consider the effect of the Act and its passage on the plaintiffs under the facts as alleged. They must prepare well in advance for each season's operation. They must expend large sums, acquire new gear and repair old and make contracts for labor and material. To do all this, aid from financial agencies is necessary.

The controversy arises due to the existence of the Act itself. All plaintiffs, and others similarly situated, are faced with the possible suspension of their fishing rights. It is idle to say the Act may never be enforced, as its very existence curtails freedom of contract. Its summary application by the Commissioner, which is permitted by the Act, could prevent fishing in the area or district for which preparation was made and thus waste and damage the property of a nonresident fisherman.

If the plaintiffs were required to wait until actual application of the Act to maintain this action, they might never have the determination they seek here. Assume that a closure as to nonresidents in one area was ordered under Chapter 62. The action could be heard in court only after service of process and a reasonable time to answer. The run would be over. Under defendants' argument the action could then be subject to a motion to dismiss as it would be moot.

Under Pierce v. Society of Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), legislation of the State of Oregon was in question. A 1922 Act required that all children be sent to public schools. The effective date was postponed to 1926. In 1924 the plaintiff private school obtained an injunction restraining the officials from threatening or attempting to enforce the statute. The opinion states:

"The suits were not premature. The injury to appellees was present and very real, not a mere possibility in the remote future. If no relief had been possible prior to the effective date of the act, the injury would have become irreparable. Prevention of impending injury by unlawful action is a well recognized function of courts of equity." 268 U.S. 510, 536, 45 S.Ct. 571, 574.

To the same effect is the decision in Eastman Kodak Company v. Velveray Corporation, (S.D.N.Y.1959) 175 F. Supp. 646, 648:

"Defendant's motion for summary judgment is based on the contention that there is no actual controversy and that the court has no jurisdiction because there is no actual controversy. Defendant argues that, since the suit in the New York Supreme Court involved only defendant's

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