CONSTITUTIONAL ISSUES RELATING TO REGULATING THE RHODE
ISLAND FISHERIES
Subplot:
How
to convince the General Assembly to enact a Bill which will be signed by the
Governor and upheld by the Supreme Court on review.
DEFINITIONS:
CONSTITUTIONAL RIGHT. A right guaranteed to the citizens by the
Constitution and so guaranteed as to prevent legislative interference
therewith. Delaney v. Plunkett, 146
Ga. 547, 91 S.E. 561, 567; L.R.A. 1917D, 926, Ann.Cas.1917E, 685; Black's
Law Dictionary, 4th Ed.,
West Publishing Co., 1968, p. 385
RIGHT. Function: Noun; Etymology: Middle English, from Old ate: before
English Riht, adjective Date: before 12th
century.
Something to which one has a just
claim; as a: the power or privilege to which one is justly entitled; b (1) the
interest that one has in a piece of property--often used in plural (2)
plural: the property interest possessed
under law of custom and agreement in an intangible thing especially of a
literary and artistic nature. Merriam-Webster's Collegiate Dictionary.
LICENSE. Function: Noun; Etymology:
Middle English, from Middle French licens, from Latin licentia, from
licent-, licens, present participle of LicEre to be permitted; Date:
14th century.
2 a: A permission granted by competent authority to engage in a
business or occupation or in an activity otherwise unlawful; b: a document,
plate or tag evidencing a license granted.
Merriam-Webster's Collegiate Dictionary.
RHODE ISLAND CONSTITUTION
"ARTICLE I
"DECLARATION OF CERTAIN CONSTITUTIONAL
RIGHTS AND PRINCIPLES
"In order effectually to secure the
religious and political freedom established by our venerated ancestors, and to
preserve the same for our posterity, we do declare that the essential and
unquestionable rights and principles hereinafter mentioned shall be
established, maintained and preserved, and shall be of paramount obligation in
all legislative, judicial and executive proceedings.
"Section 16. Compensation for taking of private property
for public use -- Regulation of fishery
rights and shore privileges not public taking. Private
property shall not be taken for public uses, without just compensation. The powers of the state and of its
municipalities to regulate and control the use of land and waters in the furtherance
of the preservation, regeneration, and restoration of the natural environment,
and in furtherance of the protection of the rights of the people to enjoy and
freely exercise the rights of fishery and the privileges of the shore, as those
rights and duties are set forth in Section 17, shall be an exercise of the
police powers of the state, shall be liberally construed, and shall not be
deemed to be a public use of private property.
"Section 17. Fishery right -- Shore privileges -- Preservation of natural resources. The
people shall continue to enjoy and freely exercise all the rights of fishery,
and the privileges of the shore, to which they have been heretofore entitled
under the charter and usages of this state, including but not limited to
fishing from the shore, the gathering of seaweed, leaving the shore to swim in
the sea and passage along the shore, and they shall be secure in their rights
to the use and enjoyment of the natural resources of the state with due regard
for the preservation of their values; and it shall be the duty of the general
assembly to provide for the conservation for the air, land, water, plant,
animal, mineral and other natural resources of the state, and to adopt all
means necessary and proper by law to protect the natural environment of the
people of the state by providing adequate resource planning for the control and
regulation of the use of the natural resources of the state for the
preservation, regeneration and restoration of the natural environment of the
state."
The
inhabitants of the State of Rhode Island, whether they be native born or
naturalized citizens of the United States of America, green card holders, or
illegal aliens have a constitutional right "to enjoy and freely exercise
all the rights of the fishery" which have been clearly established by the
colonial charter granted by King Charles II on July 8, 1663 to Roger Williams,
the State Constitution and its amendments, and the decisions of the Rhode
Island Supreme Court, the later of
which has interpreted numerous acts of the Legislature relating to the
fisheries. The High Court in its
decisions has defined and delineated the rights of citizens and the obligations
of government.
It
is within this framework of Constitutional Law, legislative acts, and case law
decisions that any proposals for Legislative action must be measured. Indeed, any proposals to the Legislature, to
avoid being declared unconstitutional, must conform to the present
Constitutional framework, as it has been interpreted by our Supreme Court.
Every
inhabitant of the State of Rhode Island has a Constitutional Right of the
fishery, as established in Sections 16 and 17 of Article One.
The
case law is clear that the Constitutional Rights to the fishery were first
established in the colonial charter and that any existing right cannot be
impaired. The Court has also clearly
established these rights in Payne and Butler v. Providence Gas Company,
295RI 31, p 313.
The
Court, in Payne and Butler, asked
the question at page 313, "What rights, then, had the people under the
charter and usages of this State? By
common law all persons have a common and general right of fishing in the sea,
and in all other navigable or tidal waters; and no one can maintain an
exclusive privilege to any part of such waters unless he has acquired it by
grant or prescription. "
The
High Court then pursues a discussion concerning rights which have been granted by the Magne Charta, (sic) and continues a very scholarly analysis of
those rights from the Charter of Charles II of July 8, 1663, the effect of the
American Revolution in 1776, and the acknowledgement by the Crown of America's
independence on May 29, 1790, which is the date of the adoption of the Federal
Constitution and followed by the
adoption of the State Constitution in May 1843.
An
analysis of this case, which is 63 pages in the Rhode Island Supreme Court
Reporter, was published in the May 2001 edition of the Rhode Island Bar Journal
by Professor Dennis Nixon of the Department of Marine Affairs at the University
of Rhode Island. A complete copy of
Professor Nixon's monograph appears on the Coastal Institute's web page.
Professor
Nixon's article is entitled The Legal
and Regulatory Environment of Fisheries Licensing in Rhode Island. His review includes a more recent Supreme
Court decision in an Opinion to the
Senate 87 RI 37 (1958). The
State Senate requested the Supreme Court to provide an advisory opinion
concerning the constitutional provisions of Section 17, Article 1.
Professor
Nixon writes: The Court spent little
time answering the question in an opinion of just two pages. They quoted the Payne and Butler language, cited above, and held that it was clear
that the "power of the legislature
to regulate fisheries in the state waters is plenary and was no longer open to
question. They also found that
commercial fishermen do not have any special rights to the fishery in excess of
those granted to the people of the state generally -- the constitution gives
the benefit of fishery to all the people in equal measure. (emphasis added)
Professor Nixon concludes that the High Court has determined
that the General Assembly "may
create whatever management system they deem to be in the best interests of the
citizens of Rhode Island; assuming that in doing so they do not violate any
provisions of the United States Constitution." (emphasis added).
Thus, it appears that the High Court's directions are that
the Constitutional Rights of the citizens of Rhode Island can be regulated by
the General Assembly within the confines of Sections 16 and 17 Article One.
From
this point forward, the remarks are either my personal opinions, projections or
proposals. The readers should be aware
that I have a pecuniary bias in favor of the commercial fishermen since I have
a personal financial interest in a Rhode Island commercial fishing venture.
Nonetheless,
my analysis of the Constitutional Right to the fisheries is the same as all
other Constitutional Rights.
In
Rhode Island, none of our sacrosanct Constitutional Rights is
"licensed", nor is there a license fee attached to the exercise of a
Constitutional Rights except for those established by the General Assembly for
the fisheries and never challenged in the High Court.
It
is my view that a Constitutional Right cannot be licensed. A Constitutional Right may be registered,
but not licensed. I make reference to
the Right to Vote. The "Poll
Tax" has long since been declared unconstitutional, yet there has never
been a challenge in Rhode Island to the statutes which established the fees and
"licenses" of the various fisheries.
It
is my considered opinion that the licensing of a Constitutional Right is a
fatal flaw as is the fees attached to said Constitutional Right. Further, my informed belief that to "buy
into" the continuation of the licensing of a Constitutional Right is to
"buy into" a statute which would be fatally flawed. If the Poll Tax is unconstitutional, the
licensing fee for access to "freely exercise all the rights of the
fishery, and the privileges of the shore" is also unconstitutional.
Additionally,
to grant any special rights to the fishery in excess of those granted to the
people of the state, generally as set
forth in Payne and Butler, in my
opinion invite disaster the first time anyone takes the issue to the Supreme
Court.
Consequently,
how does one convince the General Assembly to enact a law which will be
approved by the Governor, and would withstand a Constitutional challenge in the
Supreme Court?
My
answer is KISS (keep it simple stupid
!!!). There is no reason to
reinvent the wheel. All we need do is
to look at the General Laws to see how Constitutionally to exercise the
"Police Powers" by "Registering the fisherman" without fee,
and by licensing his boat, gear, and other equipment.
The
simple example is the voting system. If
the proposal is to register commercial fisherman by endorsements, such as a
voter in a particular ward, senate, or house district, or in the fisherman's
vernacular by endorsement, the system could establish the various
"endorsements" which are under consideration as a
"restriction" or 'limitation" within the police powers of the
General Assembly to control and regulate the natural resource, and not a grant
of "any special right" which is barred by Supreme Court case law.
The
endorsements for the various fisheries could be established in a manner similar
to the statutory scheme for liquor licenses.
Certain liquor licenses, in accordance with the police power, are
limited by the population of a municipality.
An endorsement for any particular fishery could easily be determined by
the bio-mass of the fishery. Using the
Police Power, the numbers of endorsement can be capped in accordance with the
scientific evaluation of the bio-mass of the fishery.
Thus,
an endorsement would not be a special right granted in excess of those granted
to the people generally but rather an exercise of the police power limiting the
amount of individuals (not boats) into the specific individual fishery, and the
amount of catch which can be removed from the fishery.
Transferability of licenses does
present a unique problem. A license is
a grant by the licensing authority for a special purpose. The license is owned by the state and
usually is not transferable. In Rhode
Island, alcoholic beverage licenses are routinely bartered and sold, with the
inspection and approval of the local or municipal licensing authority. This is
a practice which was grown since the reversal of prohibition and is properly
controlled by the police power.
However, the grant of liquor licenses does not have to conform to the
constrains of the Constitution. The
sale and use of alcohol is not a Constitutionally protected right. A Rhode Islander cannot transfer a license
to drive, a license to practice law, medicine, nursing or as a plumber,
mortician, electrician and virtually every other occupational license.
My
view is that to allow the transferability of endorsements into any particular
fishery would be fatally flawed.
Transferability would be the grant of a special right to commercial
fishermen in excess of those granted to the people of the state generally.
If
I were to draft a bill for Legislative consideration, I would propose that any
endorsement assigned solely to the individual could be "transferred"
only to a member of the holder's immediate family but otherwise, would not be
considered a property right. Since a
property right would be a "special right" in an endorsement, that act
in my opinion is barred, and would be a perfect challenge to the
constitutionality of the proposed statute.
Control of Fishing Effort would be
relatively easy. A proper exercise of
the police power would be to control all of the boats, gear, equipment and bag
limits of commercial fisherman. There
could be a cap on boats, gear, crew members, pots, traps, and any other gear
that can be subjected to control. All
of these items, which are the property of the fisherman, can be freely
transferred.
Latent Effort is a topic which is
outside my realm of knowledge and experience at this time.
New Entrants as proposed would require a determination of the police power and
can be established in any number of ways.
Once a cap of endorsements is established, the legislature is free to
make whatever provisions it so desires for the entrance of new participants
into an "endorsed" commercial fishery. In my opinion, the safest way to protect the resource would be to
make a determination on a scientific basis using the bio-mass or any other
series of scientific criteria. There
can be no limitation of entrants into the recreational fisheries, except for a
limitation on the individual's harvest.
Fee Structure: The Department is not charged by the
Legislature with raising funds or charged with being self-supporting. Indeed, no department of state government,
except for the Division of Taxation, produces a profit. My view is that while the Department should
be concerned about fees, which can be garnered for "restrictive accounts",
it should not otherwise be concerned about raising money for the state
budget. Financing State Government is
the responsibility of the House of Representatives. The charge of the Department is to preserve the natural resource.
My
view is that everyone who enters a fishery should be registered
"freely" in the words of the Constitution. Recreationally, fishermen should have bag limits. Commercial fishermen should be subject to
"endorsement" limits, and any part of a fishery which is income
producing to the participant should have an appropriate fee attached to said
endorsement.
Thus,
my view is that Rhode Island residents who wish to be involved in a
recreational fishery, need only register without a fee, and be subject to daily
bag limits.
Rhode
Island commercial fishermen need to register without a fee, but would be
subject to endorsement fees for the various fisheries and such limits as may be
established by the appropriate authority.
Non-residents
shall be subject to whatever fees and restrictions common sense dictates, since
neighboring states will exact the same retribution from Rhode Island residents
who wish to enter "foreign fisheries", that is, of other states.
Landing permits: It is my view that the sole purpose of the
state in controlling landing permits is for data collection and enforcement of
catch limits. My suggestion is that
landing permits be granted freely, with the appropriate information gathered
from the boats, and the appropriate allocation of bag limits to the area of the
harvest.
The
requirement of landing permits from non-residents appears to be a violation of
the Commerce Clause of the United States Constitution, but I have not as yet
completed the necessary research on that issue to be completely
definitive. But caution is the best
watch word on any restraint of interstate commerce.
In consideration of the dealers, who have
a significant economic impact on the industry, and the state's employment
statistics, it makes sense to make Rhode Island a convenient, comfortable, and
profitable place for a boat to off-load or sell its catch. Out-of-state-boats contribute to the
economic security of the state and Rhode Island should make it easier, not more
difficult, to do business in the state.
This is not an enforcement issue, this is a data collection issue for
the department, and a money making issue for the dealers, and the employees,
and ancillary businesses.
There
are numerous ancillary businesses, which have a pecuniary interest in the
landing of product from the sea at Rhode Island ports.
A
recent survey of states which are "business friendly" by Microsoft
business, a web site which addresses issues of small business solutions, stated
that Rhode Island is the least friendly to small business of all the states in
the union. In other words, Rhode Island
finished 50th in a survey of the states which identified seventeen
different ways in which government imposes costs on business and then measures
the performance of the 50 states and the District of Columbia. It is noted that the District of Columbia,
which does not have access to the sea, was ranked the worst after Rhode Island.
The
survey was conducted by the Small Business Survival Committee, a Washington
based advocacy group with a definite bent toward less taxes and less
government.
Thus,
it appears we should all keep in mind the remarks of Henry David Thoreau when
he said: "That government is best,
which governs least."
ECONOMIC
CONSIDERATIONS: Making the
assumption that One Hundred Thousand (100,000) lobster pots will be removed
from the gear inventory of Rhode Island
lobsterman, what other assumptions can be made.
I make the following assumptions: That a lobsterman will pull his pots a
minimum of twice in a seven day
period. That amounts to a reduction of
Two Hundred (200,000) pots in a given seven day period.
Making an assumption that a
lobsterman makes a minimum net profit on each pot of Five ($5.00) Dollars on
each pull of a pot that would result in a loss of weekly income to the Rhode
Island lobster industry of One Million ($1,000,000.00) Dollars During the
course of one year the loss of income to lobstermen would amount to Fifty Two
Million ($52,000,000.00) Dollars. This
model does not measure a loss of income to ancillary business such as wholesale and retail dealers, truckers, box
makers, air shippers, airlines and other modes of transportation.
How should the lobsterman be compensated
for his loss of income. Should be
consider a subsidy which is prevalent in the agricultural business for the
removal of acreage from production. The
removal of lobster pots from production is an easy substitution in the subsidy
analogy.
Is there a better method to compensate
the lobstermen? In today's financial
environment, when the Governor indicates that the current budget will have a
shortfall of One Hundred Million ($100,000,000.00) Dollars in the present
fiscal year, I doubt the General Assembly consider a subsidy to the lobster
industry, although it should.
My suggestion is that any
legislation to reduce the number of pots in the fishery should be
accompanied with a tax credit of Twenty
Seven (27%) to every lobsterman from the base year of the implementation of the
pot reduction.
How
to convince the General Assembly to enact a Bill which will be signed by the
Governor, and upheld by the Supreme Court on review?
In
other words, to make good law KISS!!!!!
George
F. McDonald, A.B., J.D.
Attorney
At Law
1441
Park Avenue,
Cranston,
RI 02920
401
943 1800
401
944 1500----fax