Solis v. Miles

• Decision Date: 15 October 1981
• Docket Number: Civ. A. No. B-81-198.
• Citation: 524 F. Supp. 1069
• Parties: Joe SOLIS, d/b/a Gulf Queen Seafoods, Charles C. Cobb, Pace Fish Co., Inc., a Texas Corporation, and Dan W. Coley, and Gulf Breeze, Inc., a Texas Corporation v. Robert MILES, as District Supervisor of the Texas Parks and Wildlife Department, and Texas Parks and Wildlife Department.
• Court: U.S. District Court — Southern District of Texas

524 F. Supp. 1069

Joe SOLIS, d/b/a Gulf Queen Seafoods, Charles C. Cobb, Pace Fish Co., Inc., a Texas Corporation, and Dan W. Coley, and Gulf Breeze, Inc., a Texas Corporation v. Robert MILES, as District Supervisor of the Texas Parks and Wildlife Department, and Texas Parks and Wildlife Department.

Civ. A. No. B-81-198.

United States District Court, S. D. Texas, Brownsville Division.

October 15, 1981.

McGinnis, Lockridge & Kilgore, Shannon H. Ratliff, Austin, Tex., and Arnall, Golden & Gregory, Marc L. Peterzell, Atlanta, Ga., for plaintiffs.

Mark White, Atty. Gen. of Texas, Richard E. Gray, III, Executive Asst. Atty. Gen., and Brian E. Berwick, Asst. Atty. Gen., Environmental Protection Division, Austin, Tex., for defendants.

Baker & Botts, Larry F. York, Houston, Tex., for Gulf Coast Conservation Ass'n, amicus curiae.

MEMORANDUM OPINION

DeANDA, District Judge.

This is an action for injunctive and declaratory relief attacking the constitutionality of an act of the Texas Legislature, House Bill 1000, Chapter 153, 1981 Tex. Sess. Law Serv. 374 (Vernon). House Bill 1000 amends or repeals various sections of the Texas Parks and Wildlife Code. Those sections under attack here deal with the banning of commercial fishing for redfish (sciaenops ocellata) and speckled sea trout (synoscion nebulosus) in Texas waters and the regulation of imports of redfish (also called red drum) and speckled sea trout from outside of Texas.

Section 1 of House Bill 1000 bans the sale, transportation and possession for sale of redfish and speckled sea trout except for those raised on licensed fish farms and those legally taken outside the state if tagged, packaged or labelled under regulations of the Texas Parks and Wildlife Commission.¹ Section 14 of House Bill 1000 repeals earlier Sections 47.019, 47.020, 47.0531, 61.902 and 61.061-.068 of the Parks and Wildlife Code regulating commercial red drum fishing. Section 13 of House Bill 1000 empowers the Texas Parks and Wildlife Commission to regulate commercial fishing for redfish and speckled sea trout. Sections 1 and 14 became effective September 1, 1981. Section 13 becomes effective September 1, 1983.

There are five Plaintiffs. Two were, at the time this suit was filed, commercial fishermen. Three are fish dealers. The two fishermen (Plaintiffs Coley and Cobb) and two fish dealers (Plaintiffs Pace and Solis) challenge the ban on commercial fishing for and sale of redfish and speckled sea trout. Plaintiff Pace and Plaintiff Gulf Breeze, Inc., challenge the import regulations issued by the Commission.

Plaintiffs contend that House Bill 1000 is unconstitutional because it contravenes both the Fourteenth Amendment's guarantee of equal protection of laws and also contravenes the Commerce Clause, U.S. Const. Art. I, § 8, cl. 3.

This suit was filed on August 17, 1981. A temporary restraining order enjoining enforcement of the challenged laws was denied by this Court. A hearing on Plaintiffs' application for temporary injunction was held on September 14 and September 15, 1981. Additional deposition evidence was allowed to be filed after the hearing.

Since failure to meet any one of the four requirements for issuance of a temporary injunction established by Canal Authority of State of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974) will result in its denial, this opinion shall center on the requirement that Plaintiffs have failed to meet—that of a substantial chance of success on the merits. Plaintiffs have demonstrated no chance of success on the merits in their equal protection claims. They have demonstrated a substantial probability of success on only one of their Commerce Clause claims. Except as to that claim, Plaintiffs' application for a Temporary Injunction must therefore be denied. Furthermore, based on the conclusions reached herein, the Court is convinced that insofar as Plaintiffs' claims are based on a denial of equal protection of laws, no further evidence need be presented, and pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure, judgment can be entered.

EQUAL PROTECTION

The threshold question is whether the two-year ban on commercial fishing unconstitutionally denies Plaintiffs the equal protection of the law. The purpose of the regulations governing the importation of redfish and speckled sea trout caught outside of Texas' waters is to aid in the enforcement of the ban on commercial fishing. Those regulations can only withstand an attack based on the Commerce Clause if the ban itself is constitutional. If it is not, then Texas has no legitimate purpose in regulating the importation of redfish and speckled sea trout. Without a legitimate state purpose, any burden on interstate commerce imposed by the regulations violates the Commerce Clause. However, if the ban does not violate the Constitution then aiding its enforcement is a legitimate purpose, and it can be upheld if the burden is not excessive in relation to the local benefits. See, Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).

All parties agree that the classification involved here, commercial and noncommercial fishing, must be judged by the "rational basis" standard. Sisk v. Texas Parks and Wildlife Dept., 644 F.2d 1056 (5th Cir. 1981). To invalidate a legislative classification that does not involve a suspect distinction or infringe a fundamental interest, Plaintiffs must show that the challenged classification bears no rational relationship to a legitimate state interest. See, e. g., Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976).

The burden of persuasion Plaintiffs must overcome to invalidate House Bill 1000 is a heavy one. The state's legislation is presumed to be constitutional, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and this presumption can be overcome only by negating "every conceivable basis which might support it." Madden v. Kentucky, 309 U.S. 83 (1940). "Statutory classifications will be set aside only if no grounds can be conceived to justify them." McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). "The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the state's purpose." McGowan, supra, 366 U.S. at 430, 81 S.Ct. at 1107.

There was no formal legislative history for House Bill 1000 nor any statement of legislative purpose incorporated therein. In the absence of legislative articulation of purposes, any legitimate purpose to which the legislation is rationally related will serve to uphold it. See, Delaware River Basin Commission v. Bucks County Water & Sewer Authority, 641 F.2d 1087 (3rd Cir. 1981); accord, Alabama State Federation of Teachers v. James, 656 F.2d 193 (5th Cir. 1981). See also, Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960).²

Plaintiffs have launched a two-fold attack on the rationality of House Bill 1000. First, they have attacked the legislative assumption that redfish and speckled sea trout populations are in decline by presenting evidence which questions the reliability of that evidence which was presented to the legislature and by also presenting evidence which affirmatively seeks to demonstrate that the fish populations in question are not in decline. Alternatively, they have argued and presented evidence seeking to demonstrate that the ban on commercial fishing cannot be said to be rationally related to the goal of protecting the fish populations in question.

Plaintiffs' attack on the empirical rather than theoretical connection between House Bill 1000 and protecting redfish and speckled sea trout populations is similar to that brought by the plaintiffs in Minnesota v. Cloverleaf Creamery, 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981). There, plaintiffs presented evidence challenging the consequences of a Minnesota law banning plastic non-returnable milk containers. Plaintiffs sought to show that the law could only exacerbate the problems it sought to correct. The evidence was apparently in "sharp conflict," and the lower court resolved the conflict in favor of the challenge to the statute. This was, the Supreme Court said, "a patent violation of the principles governing rationality analysis under the Equal Protection Clause." Id. 449 U.S. at 464, 101 S.Ct. at 724.

Here, Plaintiffs have attacked not the consequences, but the underlying factual basis for the legislative assumption that redfish and speckled sea trout populations are in need of protection. Here, too, the evidence is in conflict. However, it is not for this court to determine whether redfish or speckled sea trout populations are declining, increasing or stable. Nor is it for this Court to decide whether the fish need more, less, or no protection. These are decisions for the legislature. This Court's role is greatly limited:

In ordinary civil litigation, the question frequently is which party has shown that a disputed historical fact is more likely than not to be true. In an equal protection case of this type, however, those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision maker.

Vance v. Bradley, 440 U.S. at 110, 111, 99 S.Ct. at 949. See also, U. S. v. Carolene Products, 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1937). (Legislative determination that filled milk is not a wholesome food product.)

The evidence at the hearing revealed a strong scientific dispute over both the affected fish populations (Compare testimony of Dr. Hildebrand with that of Dr. Hubbs and Mr. Kemp.) and over the methodologies used by the Texas Parks and...