Corsa v. Tawes

• Decision Date: 27 March 1957
• Docket Number: Civ. A. No. 9077.
• Citation: 149 F. Supp. 771
• Parties: C. Boyd CORSA, Fish Products Company of New Jersey, A New Jersey Corporation, Atlantic Navigation Company, A New Jersey Corporation, Seacoast Products, Inc., A Delaware Corporation, and Fish Products Company, A Delaware Corp., et al., Plaintiffs, v. John P. TAWES, Fred P. Glose and John R. Jewell, constituting the Commission of Tidewater Fisheries of Maryland, and Daniel T. Prettyman, State's Attorney for Worcester County, Maryland, Defendants.
• Court: U.S. District Court — District of Maryland

149 F. Supp. 771

C. Boyd CORSA, Fish Products Company of New Jersey, A New Jersey Corporation, Atlantic Navigation Company, A New Jersey Corporation, Seacoast Products, Inc., A Delaware Corporation, and Fish Products Company, A Delaware Corp., et al., Plaintiffs, v. John P. TAWES, Fred P. Glose and John R. Jewell, constituting the Commission of Tidewater Fisheries of Maryland, and Daniel T. Prettyman, State's Attorney for Worcester County, Maryland, Defendants.

Civ. A. No. 9077.

United States District Court D. Maryland.

March 27, 1957.

William H. Price, Staton, Whaley & Price, Snow Hill, Md., for plaintiffs.

Ambler H. Moss, Baltimore, Md., Ammon G. Dunton, C. Jackson Simmons, Whitestone, Va., Semmes, Bowen & Semmes, Baltimore, Md., for intervenors.

C. Ferdinand Sybert, Elliott City, Md., Edward S. Digges, La Plata, Md., Alexander Harvey, II, Baltimore, Md., for defendants.

Before SOBELOFF, Circuit Judge, and CHESNUT and THOMSEN, District Judges.

SOBELOFF, Circuit Judge.

By this suit an individual Delaware plaintiff and corporate plaintiffs of New Jersey and Delaware challenge the constitutionality of certain provisions of Maryland's fishing laws. Two sections of the law are under attack: one, Section 259 of Article 66C of the Annotated Code of Maryland 1951, prohibits the use of purse nets in any of the tidal waters of the State; the other, Section 258, excludes non-residents from fishing privileges in Maryland's tidal waters. Pursuant to Title 28 U.S.C.A. §§ 2281, 2284, this three-judge Court was convened.

The plaintiffs are engaged in various aspects of the menhaden fishing industry —some are menhaden fishing boat owners, others are lessees of such boats and operate processing plants out of the State. The individual plaintiff, Corsa, is a menhaden boat captain. The menhaden is a migratory fin fish which travels in large schools and is found during the summer months off the coast of Maryland and neighboring states, both within and beyond the three-mile belt, and to some extent in the Chesapeake Bay. They are commercially valuable as a source of fish oil and meal and other useful by-products, and plaintiffs' plants, after processing the fish, ship substantial quantities of these products in interstate commerce.

The established practice of the industry is to catch the fish by means of a purse net, for they cannot be caught economically in commercial quantities in any other way. When a school is sighted, the mother boat sends out two smaller seine boats with the purse net. This device, which is often a quarter of a mile in length and eighty feet deep, is designed to capture entire schools of menhaden in one quick operation. Rings on the lower edge of the net rest upon the ocean floor, and the net reaches to within one or two feet above sea bottom. When the school is encircled, the seine boats draw the ends of the net together, closing the purse and entrapping the fish within. Plaintiffs' operations, so far as Maryland territorial waters are concerned, are limited to the ocean strip; they do not fish in the Maryland portion of the Chesapeake Bay or its tributaries.

On June 26, 1956 Corsa's vessel, by use of a purse net, caught a load of menhaden in the Atlantic Ocean within three miles of the Maryland coast. He was thereupon served with a summons by an agent of the defendant Commission of Tidewater Fisheries of Maryland, charging him with violating Article 66C, Section 259, Annotated Code of Maryland 1951, the pertinent provisions of which are not limited to menhaden but prohibit the catching of any fin fish in Maryland tidal waters by use of a purse net. Criminal proceedings thereafter were instituted against Corsa in the Circuit Court for Worcester County.

This suit was brought by the plaintiffs to enjoin the enforcement of Section 259 on the grounds that it violates the due process clause of the 14th Amendment and unduly burdens interstate commerce in contravention of Article I, Section 8 of the United States Constitution. Others similarly engaged in the menhaden industry and faced with prosecution under Section 259 have joined as intervening plaintiffs. The criminal prosecution against Corsa has been continued by the Circuit Court of Worcester County awaiting the outcome of this case. Pending the proceeding in this Court further enforcement of the statute against the plaintiffs has, with the consent of the State, been temporarily restrained by us.

Since the decision in Manchester v. Commonwealth of Massachusetts, 1890, 139 U.S. 240, 11 S.Ct. 559, 35 L.Ed. 159, it has been beyond dispute that in the absence of conflicting Congressional legislation under the commerce clause, regulation of the coastal fisheries is within the police power of the individual states under the doctrine of Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, 53 U.S. 299, 13 L.Ed. 996; Manchester v. Commonwealth of Massachusetts, supra, 139 U.S. at page 266, 11 S.Ct. at page 565; Skiriotes v. State of Florida, 313 U.S. 69, 75, 61 S.Ct. 924, 85 L.Ed. 1193; Toomer v. Witsell, 334 U.S. 385, 393, 68 S.Ct. 1156, 92 L.Ed. 1460. Congress has not sought to impose uniformity, but has been content to leave the matter to local authority and has recently made this intention explicit in the Submerged Lands Act of 1953, Title 43 U.S.C.A. §§ 1301(e) and 1311 (a).

While in the exercise of this power the State is not immune from recognized constitutional limitations, it is to be remembered that in the field of conservation, as in others, courts will not strike down legislative enactments as violative of due process unless the means chosen bear no reasonable relation to the objective sought to be accomplished. Lacoste v. Department of Conservation, 263 U.S. 545, 552, 44 S.Ct. 186, 68 L.Ed. 437; Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 427-428, 56 S.Ct. 513, 80 L.Ed. 772. Upon such concepts, prohibitions against the use and possession of purse nets and other particular kinds of fishing devices have been upheld. See Miller v. McLaughlin, 281 U.S. 261, 50 S. Ct. 296, 74 L.Ed. 840.

The objection to purse nets is said to be their excessive efficiency. In seeking to prove that the legislation in question bears no reasonable relation to conservation, it has been argued before us that restrictions upon the catching of some species of fish, including menhaden, have no effect upon conserving the supply. It is said that natural factors, beyond the control of man, such as weather, currents, and salinity, predominantly determine the abundance of fish, and it is the plaintiffs' insistence that the amount of menhaden withdrawn by fishing, regardless of the means employed, is infinitesimal in relation to the present menhaden population. Though there doubtless are differences of opinion among experts as to this and as to the need for and effectiveness of specific conservation measures, we cannot close our eyes to the manifold illustrations of experience, where man's over-exploitation has sharply diminished or even extinguished the supply of natural resources, wild game, and fish. As was said by the Supreme Court in Bayside Fish Flour Co. v. Gentry, supra, 297 U.S. at page 428, 56 S.Ct. at page 515, regarding such legislative enactments, "* * * we cannot invalidate them because we might think, as appellant in effect urges, that they will fail or have failed of their purpose." Moreover, plaintiffs' witnesses who expressed the opinion that such conservation measures in the case of menhaden are unavailing to achieve protection of the supply, admitted that man's activities are the only factor which may be controlled. While insisting that depletion of the supply of menhaden was a possibility too remote to merit serious consideration, they conceded that no resource is inexhaustible and that a point may be reached, due to man's fishing pressure or to natural causes, where further exploitation could bring serious results.

We think, however, that the protective hand of the State may be extended before the danger is unmistakably imminent. Conditions may go unnoticed so long that when the threat is demonstrated it is too late to avert the harm. One witness for the plaintiffs testified that no matter how much a supply may be reduced by over-fishing, provided that the stock is not completely annihilated, it may in time replenish itself. We need not quarrel with this statement of scientific opinion, but in the practical management of its resources, the State may conclude that the time for action is long before the destruction has gone that far. The State is interested not merely in the preservation of specimens for museums but in conserving and perpetuating a constant supply.

That a natural resource is subject to injury by causes beyond man's control is not a sufficient reason for us to require the State to refrain from such measures as may reasonably be taken to prevent unnecessary depredations by man. A similar aspect of human experience is in the field of medicine. While it is realized that human health and the life span are largely governed by factors beyond man's control, this realization is not deemed sufficient reason for excluding such efforts as the medical profession can make to protect man against disease and death.

If there is any fact so firmly fixed in the public consciousness as to justify judicial notice of it by judges residing in Maryland it is that the formulation and reformulation of policy, and the administration and enforcement of the State's fishing laws have been matters of perennial and spirited discussion and not infrequent legislation in the General Assembly.¹ Again and again elaborate studies have been made by public officers and commissions. Their recommendations have been debated by the commercial interests concerned, by sports fishermen, in the press and in the legislative chambers. The need for and the effectiveness of various measures regulating the practices, places, and instrumentalities of fishing, have...