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Commercial Fisheries News
Volume 35 Number 8
April 2008
RI Supreme Court upholds DEM license limits
PROVIDENCE, RI – The Rhode Island Supreme Court has upheld the legality of putting limits on the number of fishing licenses issued by the state Department of Environmental Management (DEM) and ruled that such limits do not violate the state constitution’s allowance for a “free” fishery.
In his Feb. 14 decision, Judge Francis Flaherty concluded that the objectives of the licensing regulations were legitimate and in keeping with the General Assembly’s constitutional duty to preserve the fisheries.
He also said that limiting the number of new licenses was a reasonable and rational way to accomplish those objectives.
This case was separate from one filed in state Superior Court by members of the Rhode Island Fishermen’s Alliance last June contesting DEM’s Lobster Conservation and Management Area 2 trap allocation program on similar grounds.
Background
Former Rhode Island fisherman Steven Riley has been sparring with DEM for five years. It all started in February 2003 when he learned that, after being out of the fishery for many years, he was ineligible for a principal-effort fishing license due to rules established under the Commercial Fishing Licensing Act of 2002.
He went through several review and appeal steps and in 2004 appealed to the state Superior Court, where his case was again deemed “meritless.”
Riley ultimately appealed to the Supreme Court of the state of Rhode Island claiming that his constitutional rights had been violated.
He said that the entry-level license, which he was eligible for, denied him the same rights to fish for desired species as other commercial fishermen. He further charged that the licensing act was discriminatory and did not achieve a legitimate government goal.
Burden of proof
According to the opinion written for the Supreme Court by Judge Flaherty, the law clearly states that the burden of proof for violation of state or federal constitutional rights lies on the petitioner, which was Riley. The court ruled that the decision of the Superior Court was justified because Riley did not prove beyond a reasonable doubt that his rights had been violated.
Flaherty further wrote that the statute in question served the legitimate purpose of preserving, protecting, and replenishing the natural environment and resources of the people of the state.
He referred to a conservation amendment to the state constitution that was written in 1970 as the basis for the decision.
Lawful occupation
Riley argued that granting him an entry-level commercial fishing license, instead of the principal-effort license he sought, violated his fundamental right to engage in a lawful occupation.
However, the court ruled that the statute does not prohibit Riley’s fundamental right to pursue a lawful calling. It also did not agree that Riley had a right to the specific license he sought, which would have allowed him to take more valuable species of fish.
Furthermore, the court did not find the regulation to be unreasonable because Riley’s ability to be a commercial fisherman was not denied. He was still allowed to harvest more than 100 species of fish, even though he was restricted from fishing for those that are the most profitable.
Preservation, protection
The court ruled that the state General Assembly has the right to regulate the licensing and restrict the amounts of each species that can be fished in the best interests of protection, preservation, and regeneration of the resource.
Flaherty further said that the requirement of possessing a license from the previous year in order to qualify for renewal achieves a legitimate goal to limit the number of licenses available to fish for restricted species.
Although the date in the statute, Dec. 31, 2002, may have seemed arbitrary, the court ruled that it was not unreasonable to give priority to fishermen who already depended on this limited resource for their livelihood.
“The court has, on a number of occasions, addressed the thorny area that lies between the public’s right of fishery and the duty of the General Assembly to preserve these rights,” Flaherty said.
He again referred to the 1970 amendment that imposes a duty on the General Assembly to preserve, regenerate, and conserve through resource planning (see box at left).
“Free fishery”
The judge went on to say that the statute is consistent with the court’s long-standing view that the right of fishery in Rhode Island belongs to the general public, and to no particular individual.
The constitutional guarantee of “free fishery” is for the benefit of all the people, not just those using the resource for commercial purposes.
Riley also argued that the statute only allows for some commercial fishermen to be eligible to take restricted species, and any law permitting one class of citizens to take fish while prohibiting another class of citizens the same right is discriminatory.
The judge noted that Riley believed the right of “equal access” meant that everyone was permitted to harvest the same species or no one is.
However, Flaherty said that taking “equal access” literally would be contrary to the position that no fundamental right is implied when the General Assembly enacts legislation for the “good of the whole,” even when it has been at the expense of a few. Since the statute does not compromise any fundamental right, the court saw no reason to depart from that precedent.
Under the equal protection clause, legislative classifications that do not affect a fundamental right or a suspect class such as race or national origin are examined under a “minimal-scrutiny” analysis. This gives the General Assembly a wide scope of discretion to enact laws, which will be upheld as long as they bear a reasonable relationship to public health, safety, or welfare.
Constitutional statute
Riley argued that even if the court rules that he has no fundamental right to the license he desires, the statute should be declared unconstitutional. He explained that various interstate regulations govern the poundage of each species that can be harvested, and that those regulations are sufficient to preserve the resources for the benefit of all the people of the state.
The court felt it was significant to note that the General Assembly had given DEM the authority to issue new licenses on a yearly basis, taking into account the health of the stocks, environmental conditions, and the number of licenses granted or surrendered in a given year.
Riley did not receive one of those licenses because priority went to others, according to regulation, and there were more applicants than available licenses.
The judge said that the right of fishery is a public right and the General Assembly has a constitutional duty to enact legislation necessary to preserve fisheries for the good of the whole. He went on to say that the statute Riley challenged upheld the greatest good for the greatest number of citizens.
“Riley is not eligible for the license he seeks, and although he may believe that all those ineligible for this license constitute a class, those who fall into this purported ‘class’ exist only as a consequence of their ineligibility and not because of any particular trait they share,” Flaherty wrote.
Robert Caron, Riley’s attorney, said that Riley plans to exercise his right to file for a review of the decision.
Sam Bari
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