Hjelle v. Brooks

• Decision Date: 30 April 1974
• Docket Number: Civ. A. No. A-191-73.
• Citation: 377 F. Supp. 430
• Parties: Severin HJELLE et al., Plaintiffs, v. James W. BROOKS, Commissioner of Fish & Game for the State of Alaska, et al., Defendants.
• Court: U.S. District Court — District of Alaska

377 F. Supp. 430

Severin HJELLE et al., Plaintiffs, v. James W. BROOKS, Commissioner of Fish & Game for the State of Alaska, et al., Defendants.

Civ. A. No. A-191-73.

United States District Court, D. Alaska.

April 30, 1974.

COPYRIGHT MATERIAL OMITTED

Avrum Gross, Juneau, Alaska, Douglas M. Fryer, Seattle, Wash., for plaintiffs.

James N. Reeves, Asst. Atty. Gen. of Alaska, Dept. of Law, Juneau, Alaska, for defendants.

Before WRIGHT, Circuit Judge, and PLUMMER and VON DER HEYDT, District Judges.^*

OPINION

EUGENE A. WRIGHT, Circuit Judge:

Plaintiffs are crab fishermen from the State of Washington who seek injunctive and declaratory relief on the ground that certain regulations of the State of Alaska relating to the control of crab fishing in the Bering Sea are unconstitutional. At the request of plaintiffs this three-judge district court was convened to adjudicate these claims. The defendants are state officials charged with enforcement of fish and game regulations and have been represented here by the Alaska Attorney General. Since oral argument, the state also has made an appearance and, for practical purposes, is considered a party defendant.

We consider now only defendants' motion to dissolve this three-judge court and plaintiffs' motion for a preliminary injunction. We conclude that the three-judge court was properly convened, and we grant the motion for preliminary injunction.

The Alaska Board of Fish and Game has promulgated certain regulations aimed at controlling crab fishing in an area officially designated as the Bering Sea Shellfish Area. It is described as including "all waters of the Bering Sea . . . except Bechevin Bay and Isanotski Strait . . ., north of 54° 36' N. lat., . . . south of 60° N. lat., and east of the U. S. — Russian Convention Line of 1867." 1973 Commercial Fishing Regulations, 5 AAC 07.100. The area extends hundreds of miles west of Alaska's shoreline. The Board of Fish and Game established by regulation that the king crab fishing season in this area will be closed each year when 23,000,000 pounds of king crab have been taken during the period of June 15 through March 31. 5 AAC 07.760. The Board further established that it is unlawful to transport, possess, buy, or sell any king crab and certain other sealife "taken in violation of the rules and regulations promulgated by the board," if such crab is taken "in any waters seaward of that officially designated as the territorial waters of Alaska. . . ." 5 AAC 36.040.

Plaintiffs actively engage in crab fishing in the Bering Sea and transport their crab to Alaska where it is sold and transported for resale in other states or in foreign countries. On September 9, 1973, the quota of 23,000,000 pounds of king crab was reached and, pursuant to an emergency field order, the crab fishery in the Bering Sea Shellfish Area was closed until June 15, 1974. In December plaintiffs commenced this action and moved for a three-judge court and for a preliminary injunction enjoining the defendant state officials from enforcing the disputed regulations.

I THREE-JUDGE DISTRICT COURT JURISDICTION

Congress has provided that only a three-judge district court may enjoin the enforcement of a state statute or state administrative order made under a state statute upon the ground of the statute's unconstitutionality. 28 U.S.C. § 2281. Congress intended this procedure to benefit states by providing "procedural protection against an improvident state-wide doom by a federal court of a state's legislative policy." Phillips v. United States, 312 U.S. 246, 251, 61 S. Ct. 480, 483, 85 L.Ed. 800 (1941); see Swift & Co. v. Wickham, 382 U.S. 111, 116-119, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 3-9 (1964). It has long been settled that courts must strictly construe this statute, viewing it "as an enactment technical in the strict sense of the term and to be applied as such." Phillips v. United States, supra at 251; Board of Regents v. New Left Education Project, 404 U.S. 541, 545, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972); Swift & Co. v. Wickham, supra at 124.

Plaintiffs challenge only the unconstitutionality of certain regulations issued by the Alaska Board of Fish and Game, and they mount no attack on the statutes under which those regulations were issued. See Alaska Stat. §§ 16.10.190-16.10.220. Mindful of our obligation to construe 28 U.S.C. §§ 2281 with narrow precision, we note that the section, given a literal interpretation, does not seem to require a three-judge court when only the unconstitutionality of an administrative order is at issue. Rather, it appears that the statute underlying the order must also be attacked as unconstitutional.¹ The Supreme Court has held, however, that the section is to be taken more broadly. The apparent differentiation between state statutes and state administrative orders seems to be the result of congressional oversight rather than design. Oklahoma Natural Gas Co. v. Russell, 261 U.S. 290, 292, 43 S.Ct. 353, 67 L.Ed. 659 (1923); see also Alabama Public Service Commission v. Southern Railway Co., 341 U.S. 341, 343-344 n. 3, 71 S.Ct. 762, 95 L.Ed. 1002 (1951); Dorado v. Kerr, 454 F.2d 892, 895 (9th Cir. 1972).

This case is one required to be heard and determined by a three-judge court if the challenged regulations have statewide application or effectuate a statewide policy, Board of Regents v. New Left Education Project, 404 U.S. 541, 542, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972), and if the attack on the regulations is not "constitutionally insubstantial." Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973).

A. The "Statewide" Requirement

Because the challenged regulations in this case pertain only to the king crab industry in the Bering Sea, there is some question whether they are regulations of statewide concern. The requirement that a three-judge court be convened only when the challenged statute is of a statewide character reflects both the purpose of § 2281 (to prevent a single judge from paralyzing an entire regulatory scheme on a statewide basis by issuing a broad injunctive order) and the dangers inherent in the three-judge court procedure. As Mr. Justice Frankfurter observed in Florida Lime & Avacado Growers, Inc. v. Jacobsen, 362 U.S. 73, 92-93, 80 S.Ct. 568, 579, 4 L.Ed.2d 568 (dissenting opinion):

The convening of a three-judge trial court makes for dislocation of the normal structure and functioning of the lower federal courts, particularly in the vast non-metropolitan regions; and direct review of District Court judgments by this Court not only expands this Court's obligatory jurisdiction but contradicts the dominant principle of having this Court review decisions only after they have gone through two judicial sieves. . . .

The State of Alaska contends that a three-judge court has no jurisdiction if the geographical application of the challenged regulations is less than statewide or if the effects of the law are of only local significance. See Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1, 32 n. 179 (1964). We do not agree that this is the proper test to be applied.

In Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967), the Supreme Court vacated the judgment of a three-judge court in a suit to enjoin enforcement of a state statute prescribing the method of election applicable only to a single county of the state. The Court stated that a three-judge court is authorized "only when a state statute of general and statewide application is sought to be enjoined . . . and not when an action is brought against state officers performing matters of purely local concern." Id. at 101-102. We agree with the First Circuit that this language suggests that a simple reference to the geographical application of a statute does not end the inquiry:

As the reference in Moody v. Flowers . . . to "purely local concern" suggests, single judge jurisdiction is premised not only upon local impact geographically but upon the absence from the challenged state statute of a significant expression of statewide policy.

Ortiz v. Colon, 475 F.2d 135, 136 (1st Cir. 1973).

More recently, in Board of Regents v. New Left Education Project, 404 U.S. 541, 92 S.Ct. 652, 30 L.Ed.2d 697 (1972), the Supreme Court seemed to draw further from a strict geographical test. It stated that a three-judge court is required when the challenged statute has "statewide application or effectuates a statewide policy . . . but . . . not . . . where the statute or regulation is of only local import." Id. at 542. Emphasis added. The Court confirmed the propriety of an earlier decision wherein it upheld a three-judge court's consideration of a state statute that had purely local impact but was "expressive of an official, statewide policy. . . ." Id. at 544 n. 2.

Therefore the test to be applied, as we perceive it, is whether the regulations challenged in this case are expressive of and effectuate a statewide concern and thus have more than merely local import. See Ortiz v. Colon, supra; Dubois v. Louisiana, 339 F.Supp. 685, 689 (E.D.La.1972).

Alaska's own arguments against plaintiffs' motion for a preliminary injunction compel our conclusion that this test is satisfied. The Alaska legislature has enacted legislation specifically aimed at controlling and developing Alaska's king crab industry. Sess.Law Alaska ch. 114, § 1 (1965); Alaska Stat. § 18.90.010; see Alaska Stat. §§ 16.10.180-16.10.250. Alaska contends that the challenged regulations are necessary to protect this industry, "a multi-million dollar resource which is one of the mainstays of the economy of Western Alaska . . . ." We can only conclude that the regulations are therefore of significant statewide concer. See Dubois v. Louisiana, supra at 689.

B. Is Plaintiffs' Challenge "constitutionally insubstantial"?

We next consider whether plaintiff...