Glenovich v. Noerenberg
| Decision Date | 18 July 1972 |
| Docket Number | Civ. A. No. J-2-71. |
| Parties | Paul GLENOVICH and Johnnie D. Dontos, Plaintiffs, v. Wallace H. NOERENBERG, Commissioner of Fish and Game, State of Alaska, and Emery W. Chapple, Jr., Commissioner of Public Safety, State of Alaska, Defendants. |
| Court | U.S. District Court — District of Alaska |
Byron D. Coney, Seattle, Wash., Dodd, Hamlin & Coney, Seattle, Wash., Gordon E. Evans, Juneau, Alaska, Davidson, Engstrom & Evans, Juneau, Alaska, on brief; Robert L. Bergstrom, Juneau, Alaska, of counsel, for plaintiffs.
M. Gregory Papas, Asst. Atty. Gen., State of Alaska, Juneau, Alaska, for defendants.
Before KILKENNY, Circuit Judge, and EAST and von der HEYDT, District Judges.*
DECISION
This cause was submitted upon Federal Constitutional issues delineated in the pretrial order and the facts as set forth in the admitted facts, affidavits and depositions of witnesses for the parties on file herein following oral presentation of counsel for the parties.
This three-judge district court notes its jurisdiction under Title 28 U.S.C.A. Sections 1331, 1343(3) and 2281, 2283 and 2284 and Title 42 U.S.C.A. Section 1983.
It appears from the factual record herein and the Court finds that:
Parties:
The plaintiff, Paul Glenovich (Glenovich) and Johnnie D. Dontos (Dontos), each, have been for some years past and are now citizens of the State of Washington, and each owns and operates a documented fishing vessel commonly known as a "purse seiner" and has for some ten years and is now duly licensed to fish commercially for salmon in the State of Alaska waters.
The defendant, Wallace H. Noerenberg, is the Commissioner of the Department of Fish and Game of the State of Alaska (Department). The Department was established by Alaska's legislature during 1959 and is charged through the delegation to "manage, protect, maintain, improve and extend the fish and game resources of the State in the interest of the economy and general well-being of the State," all pursuant to the fishery laws and statutes of the State and specifically AS Section 16.10.120 under attack herein.
Defendant Emery W. Chapple, Jr., is the Commissioner of Public Safety of the State of Alaska and pursuant to Administrative Order No. 16, dated March 28, 1972, is responsible for the administration and enforcement of certain statutes and particularly the mentioned Section and the Department's regulations supplementing it and has been added as party defendant by agreement of counsel.
Importance of Alaska Salmon Resource:
For over 90 years commercial fishing has been a prime factor in the economic development of Alaska. In 1970 22,000 fishermen earned nearly $100 million in catching a product worth $214 million at first wholesale value.
The five identified species of eastern Pacific salmon occurring in Alaska's waters comprise a self-renewing resource through the natural phenomena of returning from the sea as adults to ascend the rivers of their heritage to breed and restock the fisheries. Generally speaking, the reoccurring abundance of salmon depends upon and is the function of the number of fish returning to and reaching the spawning grounds (termed escapement) thereby completing the natural cycle of replacement.
During the years 1940 through 1960 the salmon population of Alaska's waters was threatened with extinction through over harvest of the returning salmon by fishermen.
Among the objectives of the Department as managers of the fisheries is the promulgation and execution of measures to achieve maximum sustained yield of salmon stocks. The desired effect of fishing is to remove the surplus portion of the runs, those likely to reproduce least effectively or those which normally would be forced to spawn in poor or marginal areas through overcrowding. In the final analysis a commercial fishery may be looked upon essentially as the utilization of that part of a highly productive natural resource which is in excess of that required to maintain the resource. Thus, overfishing may be considered to be the level of harvest which exceeds the surplus and depletes the brood stock.
Given the dependence upon escapement for levels of abundance in succeeding years, the concern is to perpetuate a brood stock sufficiently large to utilize fully the available spawning or nursery habitat, i.e., to achieve optimum escapement. For only in this way can there continue to exist a significant commercial harvest from year to year. This requires a flexible management scheme wherein the intensity of fishing effort can be controlled commensurate with the level of abundance of the resource.
The time honored brakes upon fishermen, namely: 1) time and area restrictions upon fishing, 2) restrictions aimed at standardization of gear and use thereof, prohibitions of types of gear and use thereof, and 3) catch or take restrictions have been the working tools of the legislature and the Department for management of the fisheries. Some of these tools are for use in static situations and some are used to meet emergencies. Time and area restrictions sometimes must be as mobile as the runs of fish at sea, and sometimes as permanent as natural fish holding areas and approaches to proven spawning grounds. The regulations for standardization of gear and use thereof and the prohibition of gear types and use thereof are static necessities in reaching an intelligent forecast and decision to utilized time and area restrictions and to outlaw known dangers to good fishing.
Area of Purse-Seiner Operation:
A method of fishing, common in the industry, is known as "purse-seining", the basic principle of which involves describing a wide arc through the fished waters with a long net, one end of which is carried out from the fishing boat in a small skiff, after which the arc is closed into a circle, the bottom of the net pulled together or "pursed" while the top of the net or "corkline" floats on the surface, and one end of the net is then hauled on board the boat until the captured fish can be retrieved, at which time the operation is repeated.
The Alaska waters purse-seiner operates mainly along the coast of southeastern Alaska. Salmon production in that fishery began a sharp decline in the 1940s that terminated in 1960 with one of the lowest catches since the inception of the fishery in the late 1880s. Although the average catch since 1960 has increased it does not equal 50% of the annual average of 39 million salmon taken between 1920 and 1949.
Development of the Power Drum:
Glenovich and Dontos are skillful and efficient purse-seiners fishing for many years past in Puget Sound in the State of Washington and British Columbia waters and for the last ten years or so in Alaska waters.
Following World War II, in conjunction with other purse-seiners, Glenovich developed and was one of the first commercial fishermen to use successfully a large power-operated drum or reel on the stern of his boat, which enabled him to retrieve the net, and thus close the circle much more rapidly and with much less effort, since the net and the lines wound up on the drum like an ordinary fishing line winds up on a reel. Previously, it has been necessary for the net to be hauled aboard either by hand (in the early days of purse-seining), or by the use of a "power block", a power-operated pulley which although it was a considerable improvement over hand retrieval, was still inefficient, since it did not store the net on the pulley and it was necessary for at least four men of an average seven-man crew to carefully pile the net and lines as they were retrieved so they would not become tangled. The "drum", as it came to be called, eliminated the necessity for piling the net and lines, greatly reduced labor costs, promoted a much safer operation, speeded up fishing, and made it dramatically more economically efficient and profitable, since the standard purse-seiner could be conveniently operated with four or five men instead of six or seven. All this was accomplished at only a modest cost, since virtually all existing purse-seine vessels could be modified to install a drum, and the net and attendant gear remained identical.
The increased efficiency of the power drum over the power block method of retrieving the seine is manifested in a faster retrieval. Accordingly, more sets of the seine (returning the seine to the fishing water for another catch) can be made in a given period of time. Theoretically the drum retrieval operation will take more fish under given unregulated times and areas than the block. The experts' opinions vary as to whether the drum operation will take more fish than the block over the period of the regulated time and area fishing season. The drum operation will take more fish during the scattered and light early and late runs.
Today the drum seine is generally regarded as standard equipment and the state of the art on purse-seine vessels in Washington State and British Columbia.
Section 1, Chapter 26 of the Session Laws of Alaska, 1959, as amended by Section 1, Chapter 107 of the Session Laws of Alaska, 1962, now codified as AS 16.10.120 reads as follows:
Here follows penalty and forfeiture provisions.
The Department has adopted regulations to supplement the statute.
Effect of Statut...
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