State v. Ostrosky
| Decision Date | 19 July 1983 |
| Docket Number | 6373,Nos. 6336,s. 6336 |
| Citation | 667 P.2d 1184 |
| Parties | STATE of Alaska, Appellant, v. Lori L. OSTROSKY, Julianne Ostrosky and Harold C. Ostrosky, Appellees. Lori OSTROSKY and Julianne Ostrosky, Cross-Appellants, v. STATE of Alaska, Cross-Appellee. |
| Court | Alaska Supreme Court |
John B. Gaguine, Asst. Atty. Gen., Jonathan K. Tillinghast, Asst. Atty. Gen., Wilson L. Condon, Atty. Gen., Juneau, for appellant/cross-appellee.
Frederick Paul, Paul, Johnson, Paul & Riley, Seattle, Wash., for Harold C. Ostrosky.
Robert H. Wagstaff, Wagstaff, Middleton & Pope, Anchorage, for Lori and Julianne Ostrosky.
Before BURKE, C.J., and RABINOWITZ, MATTHEWS and COMPTON, JJ.
The issues presented in this case are:
1) whether the entry restrictions of the Limited Entry Act, AS 16.43.010-.380, violate the following provisions of the Alaska Constitution:
(a) article VIII, section 3, which reserves naturally occurring fish to the people for common use;
(b) article I, section 1, which guarantees all persons equal rights and opportunities;
2) whether the transferability provisions of the Limited Entry Act, under which entry permits can be sold or inherited, AS 16.43.150(h), and .170, violate
(a) article VIII, section 15 of the Alaska Constitution, prohibiting exclusive rights or special privileges of fishery;
(b) article VIII, section 3 of the Alaska Constitution, preserving naturally occurring fish to the people for common use;
(c) article I, section 1 of the Alaska Constitution, guaranteeing all persons equal rights and opportunities;
(d) the equal protection clause of the fourteenth amendment to the United States Constitution.
The superior court answered the questions designated above as 2(a) and (c) in the affirmative. We answer all of them in the negative, and reverse.
When Harold Ostrosky and his two daughters, Lori and Julianne, operated salmon drift net gear in Bristol Bay without entry permits they were cited for illegal possession of commercially caught fish, 1 and illegal commercial fishing. 2
The three went to trial and were convicted. Mr. Ostrosky was fined $10,000, with $9,000 suspended, and Lori and Julianne were each fined $5,000, with $4,500 suspended. In addition, the boat on which they were fishing, the Lori K.O., was ordered forfeited to the state, with the forfeiture suspended for two years.
Lori and Julianne filed an application for post-conviction relief, claiming their convictions were invalid because the provisions of the Limited Entry Act regarding transfer of entry permits violated state and federal constitutional requirements. Mr. Ostrosky joined in this position. The superior court held that the transferability provisions of the Limited Entry Act violate article VIII, section 15 of the Alaska Constitution, prohibiting exclusive rights of fishery, and article I, section 1 of the Alaska Constitution, guaranteeing all persons equal rights and opportunities. 3 The court granted post-conviction relief to the Ostroskys.
The state appealed to the court of appeals which certified the appeal as appropriate for transfer to this court pursuant to AS 22.05.015(b) and Alaska R.App.P. 408(b). We accepted the certificate.
Although the superior court struck down the Limited Entry Act on the grounds that its transferability provisions violate the Alaska Constitution, the Ostroskys have offered additional grounds for holding the Act unconstitutional. We consider these because a judgment may be affirmed on grounds different from those relied on by the trial court. Moore v. State, 553 P.2d 8, 21 (Alaska 1976); Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961).
We will first consider Harold Ostrosky's contentions concerning the validity of the entry restrictions of the Act. Those restrictions, in general, provide that no one can be the primary operator of commercial fishing gear without an entry permit. There are only a limited number of entry permits for each particular fishery. Following the implementation of the Act in 1973, entry permits were issued to those who had previously held gear licenses on a grandfather rights basis subject to detailed statutory and regulatory guidelines. See generally Commercial Fisheries Entry Commission v. Apokedak, 606 P.2d 1255 (Alaska 1980). Commercial fishermen who had been crew members but not gear license holders were not eligible to receive entry permits in the initial allocation. AS 16.43.260(a). Under the Act, crew members need not have an entry permit as long as the holder of the entry permit is present when gear is operated. AS 16.43.140(b).
Article VIII, section 3 of the Alaska Constitution provides:
Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use.
Until it was amended in 1972, article VIII, section 15 provided:
No exclusive right or special privilege of fishery shall be created or authorized in the natural waters of the State.
In 1972 an additional sentence was added to section 15:
This section does not restrict the power of the State to limit entry into any fishery for purposes of resource conservation, to prevent economic distress among fishermen and those dependent upon them for a livelihood and to promote the efficient development of aquaculture in the State.
Harold Ostrosky argues (a) that section 3 of article VIII prohibits entry limitations and (b) that the prohibition of section 3 has not been affected by the 1972 amendment to section 15. The first part of this argument is supported by judicial authority. In Bozanich v. Reetz, 297 F.Supp. 300, 306 (D.Alaska 1969), a three judge federal court held that a precursor of the present limited entry system, chapter 186, SLA 1968, was unconstitutional under both section 3 and section 15 of article VIII. This decision was vacated by the United States Supreme Court on abstention grounds, Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). The parties then litigated the same question in state superior court, which held that section 3 and section 15 of article VIII, as well as section 1 of article I, prohibit limited entry. 4
Like the courts in the Bozanich cases, we have difficulty squaring the section 3 reservation of fish to the people for common use with a system which grants an exclusive right to fish to a select few who may continue to exercise that right season after season. We accept, therefore, at least for the purposes of this case, the proposition that limited entry is inconsistent with the command of article VIII, section 3.
We proceed to an examination of the second part of Harold Ostrosky's argument, namely that the amendment to article VIII, section 15 did not eliminate the prohibition on limited entry implicit in article VIII, section 3. This argument is textually correct, for the language of the amendment only refers to section 15. However, the conclusion is inescapable that the purpose of the amendment was to authorize, so far as the state constitution is concerned, a limited entry system. No other purpose seems reasonably possible.
Our conclusion is supported by the history of the 1972 amendment. As introduced by the Governor and as passed by the Senate, the language of the proposed amendment was stated in the affirmative: "The state may restrict entry to any fishery...." 5 As so written, there would be no question but that limited entry would be constitutional as a matter of state constitutional law, despite any contrary provisions of the state constitution. The House Resources Committee changed the language to its present negative form. The Committee report explaining this action makes it clear, however, that the Committee did not intend to constrict in any way the sweep of the amendment. Thus, the report states with approval the purpose of the amendment: to "give the state the power to restrict entry into a fishery for certain public purposes." The report continues:
In his testimony to the committee the Attorney General, Mr. Havelock, suggested that an amendment of this nature is essential if Alaska is to ever have an economically healthy fishing industry. For more than a decade fisheries economists have been calling for such an institutional change, and over the past few years the fishermen themselves have come to recognize that this amendment, though no panacea, is an essential first step to revitalization of the fishing industry in Alaska.
After so endorsing limited entry the report proceeded to explain the Committee's substituted language:
After carefully studying the new language proposed in the Senate Resolution, your committee has adopted a substitute which alters the wording of the amendment in three small but significant ways.
Only the first change concerns the change from a positive to a negative form of expression. The report continues:
In the case of Reetz v. Bozanich, the U.S. Supreme Court held that a statute limiting entry into a fishery creates an exclusive right of fishery. As a consequence, the meaning of the new language, which the Senate proposes to add as a second sentence in Section 15, is not as clear as it could be. In order to eliminate any confusion or ambiguity we have altered this new language to show that the state's power to limit entry is a specific exception to the "exclusive right" prohibition.
2 House Journal 760-61 (1971).
Thus, the purpose of the House Committee in altering the affirmative language of the Senate Joint Resolution to the negative form which found its way into the amendment was to clarify perceived ambiguities, not to restrict the meaning of the Senate Joint Resolution.
We conclude that the purpose of the amendment to article VIII, section 15 was to grant the state the power to impose a limited entry system in any fishery, notwithstanding any state constitutional provisions otherwise prohibiting such a system. Therefore, Harold Ostrosky's argument...
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