Martinet v. Department of Fish & Game
GARY STEVEN MARTINET, and v. DEPARTMENT OF FISH AND GAME, and
- Area
- civil
- Panel
- Don R. Work (author)
Analysis
The trial court denied Martinet's petition for a writ of mandate seeking a shark and swordfish drift gill net permit, finding he did not qualify as a prior permittee and that the statutory scheme did not violate equal protection. The Court of Appeal affirmed the denial, holding that the classification between prior permittees and new entrants had a reasonable basis and did not deny equal protection.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for writ of mandate to issue shark and swordfish drift gill net permit“We conclude Martinet has failed to show a denial of equal protection and that the trial court did not err in denying his petition for a writ of mandate.” | unclear | correct | agree with court The appellate court applied rational basis review to the economic regulation, finding the distinction between prior permittees and new entrants was reasonably related to the legitimate state interests of preventing overfishing and protecting the livelihoods of established fishermen. The court correctly noted that the challenger bears the burden of proving the classification is arbitrary, and Martinet failed to meet this burden despite his arguments regarding the '150 permit' threshold and his personal circumstances. |
Authorities
- relied: Ferrante v. Fish & Game Commission (1946) 29 Cal.2d 365 — Economic regulations creating classifications with some reasonable basis do not result in denial of equal protection simply because the classifications are mathematically imprecise or result in some inequality; the challenger has the burden of proving the classification is arbitrary.
- relied: Del Mar Canning Co. v. Payne (1946) 29 Cal.2d 380 — A law which favors existing businesses over new ones will be upheld if there is any reasonable and substantial justification for the distinction.
- relied: New Orleans v. Dukes (1976) 427 U.S. 297 — The Legislature may adopt economic regulations that only partially ameliorate a perceived evil.
The appellate opinion: sound — The opinion is sound because it correctly applies the well-established rational basis standard of review to an economic regulation, citing appropriate California and U.S. Supreme Court authorities to support the conclusion that the statutory classification is not arbitrary. The court adequately addresses the petitioner's equal protection argument by demonstrating the reasonable relationship between the classification and the state's interest in managing the fishery and protecting established livelihoods.
The superior court denied Martinet's petition for a writ of mandate directing the Department of Fish and Game to issue him a shark and swordfish drift gill net permit after the Department and Fish and Game Commission found he did not qualify as a prior permittee under Fish and Game Code section 8568 and that his failure to qualify was not due to circumstances beyond his control. The Court of Appeal affirmed, holding the Drift Gill Net Shark and Swordfish Fishery Law's preference for prior permittees over new entrants is an economic regulation with a rational basis and does not deny equal protection.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for writ of mandate; rejection of equal protection challenge to the Drift Gill Net Shark and Swordfish Fishery Law (Fish & G. Code, §§ 8560-8583) and its prior permittee / new entrant classification“We conclude Martinet has failed to show a denial of equal protection and that the trial court did not err in denying his petition for a writ of mandate.” | de novo | correct | agree with court The constitutional question is a pure question of law reviewed independently. The court correctly applied rational basis review to an economic regulation, placing the burden on the challenger (Ferrante) and upholding a statute favoring existing businesses where a reasonable justification exists (Del Mar Canning). It identified plausible legislative purposes—preventing overfishing while protecting those with investment and experience in the fishery—and correctly relied on New Orleans v. Dukes for the proposition that the Legislature may address a problem incrementally. The court did not separately analyze the Commission's 'circumstances beyond his control' finding or Martinet's allegations about permits issued to inexperienced San Diego residents, but Martinet's appellate argument as framed was the facial equal protection challenge, which the court answered. |
Authorities
- relied: Ferrante v. Fish & Game Commission (1946) 29 Cal.2d 365 — Economic regulations with reasonable classifications do not deny equal protection merely because imprecise or productive of some inequality; the challenger bears the burden of showing arbitrariness, and any conceivable state of facts sustaining the classification is presumed.
- relied: Del Mar Canning Co. v. Payne (1946) 29 Cal.2d 380 — A law favoring existing businesses over new ones is upheld if there is any reasonable and substantial justification for the distinction.
- relied: New Orleans v. Dukes (1976) 427 U.S. 297 — The Legislature may adopt economic regulations that only partially ameliorate a perceived evil; grandfather provisions favoring established businesses survive rational basis review.
The appellate opinion: sound — The opinion correctly selects rational basis scrutiny for an economic licensing regulation, cites controlling California Supreme Court fishing-regulation precedents and U.S. Supreme Court authority, and articulates a legitimate purpose rationally served by the prior permittee preference. It does not address Martinet's factual allegations about permits issued to inexperienced San Diego residents or the Commission's 'beyond his control' finding, but those points are not necessary to the facial equal protection ruling that was the basis of the appeal.
Opinion — Work
*793Opinion
WORK, J.Gary Steven Martinet appeals the denial of his petition for a writ of mandate ordering the California State Department of Fish and Game and the captain of its San Diego office, Rodney Shackelford,1 to issue him a shark and swordfish drift gill net permit. We affirm.
I
Martinet has been a commercial fisherman for more than 10 years and a shark and swordfish fisherman since 1977. The boat he purchased in 1982 is exclusively a shark drift gill net vessel.
Martinet fished off" the Oregon and Washington coasts from the 1983 season until the middle of the 1984 season. At that time he hired a fisherman who had a shark drift gill net permit enabling him to fish in California waters. When his employee quit, Martinet was out of business until he was able to hire another fisherman with a permit. He may be faced with this problem again.
On March 4, 1985, Martinet obtained a general gill net permit. In April, he applied for a shark drift gill net permit. The Department denied his application because he did not qualify as a prior permittee (Fish & G. Code,2 § 8568, subd. (a)) but forwarded Martinet’s application to the Long Beach office, which was to hold a lottery for the persons applying as new entrants if the number of permits issued to prior permittees was fewer than 150 (§§ 8568, subd. (b), 8570). However, the Department notified Martinet that more than 230 permits had been issued the previous season (1984-1985), making it unlikely the number of prior permittees would be fewer than 150. Martinet appealed to the Fish and Game Commission (§ 8569) asserting factors beyond his control, i.e., his vessel was destroyed by fire in August 1980 and his insurance company was bankrupt, preventing him from qualifying as a prior permittee. On October 3, 1986, the commission denied his appeal, finding he had failed to meet the requirements for the permit and this was not due to circumstances beyond his control. The commission considered Martinet’s petition, the Department’s answer, as well as an affidavit by Eugene Fleming, the Department’s marine resources supervisor. According to Martinet, after he applied for the permit, the Department issued permits to at least three San Diego residents, two of whom did not own vessels or the necessary equipment and one of whom had a vessel but no equipment and no experience as a shark and swordfish *794drift gill net fisherman. Martinet hired another fisherman who had a permit, enabling him to engage once more in shark drift gill net fishery.
II
In 1980 and 1982, the Legislature enacted the Drift Gill Net Shark and Swordfish Fishery Law (§§ 8560-8583), creating a limited entry fishery for shark and swordfish with drift gill nets in waters south of Point Arguello (§§ 8570, 8561, subd. (b)). Section 8568 provides for the issuance of permits to two categories of applicants: prior permittees and new entrants. If the number of prior permittees is 150 or more, no permits are issued to new entrants. (§ 8570, subd. (a).) Otherwise, new entrants are chosen in a lottery. (§ 8570, subd. (b).)
Martinet contends the Drift Gill Net Shark and Swordfish Fishery Law denies him equal protection. He asserts the limit on the number of permits merely prevents him from obtaining one, rather than serving the statutory scheme’s ostensible purpose of keeping thresher shark and swordfish from being overfished.
An economic regulation creating classifications with some reasonable basis does not result in denial of equal protection simply because the classifications are mathematically imprecise or because their application results in some inequality. (Ferrante v. Fish & Game Commission (1946) 29 Cal.2d 365, 372 [175 P.2d 222].) A law which favors existing businesses over new ones will be upheld if there is any reasonable and substantial justification for the distinction. (Del Mar Canning Co. v. Payne (1946) 29 Cal.2d 380, 382 [175 P.2d 231].) The person challenging such a classification has the burden of proving it is arbitrary and without reasonable foundation. (Ferrante v. Fish & Game Commission, supra, 29 Cal.2d at p. 372.) “[I]f any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed.” (Ibid.)
Here, section 8568, subdivision (a) defines a prior permittee as one who possesses a valid gill net permit (§ 8681), possessed a valid drift gill net shark and swordfish permit during the preceding season and did not have that permit revoked, and landed a minimum amount of swordfish or shark during one of the two immediately preceding permit years. Section 8568, subdivision (b) defines a new entrant as a person who fails to qualify as a prior permittee and possesses a valid gill net permit (§ 8681). The number of permits available to new entrants is limited, while the number available to prior permittees is not. (§ 8570.)
*795In certain situations, permits may be granted to persons not meeting the above criteria. For example, any commercial fisherman who had been licensed over 20 years and had participated during one of those years in the drift gill net shark and swordfish fishery was eligible for inclusion during the initial year of the limited fishery created by sections 8560-8583. (§ 8101, subd. (a).) Additionally, section 8568.5, enacted in 1986, allows the issuance of drift gill net shark and swordfish permits to certain California fishermen who formerly were allowed to fish for tuna in Mexican waters.
Thus, the Drift Gill Net Shark and Swordfish Fishery Law distinguishes persons who have successfully engaged in shark and swordfish fishery with drift gill nets in the recent past from persons who merely have valid gill net permits. Also, some persons who fail to meet the requirements of section 8568, subdivision (a) but meet other criteria related to experience are placed in the preferred class. (§§ 8101, subd. (a), 8568.5.) The members of this class of prior permittees and exempt persons may reasonably be assumed to rely on the limited fishery for their livelihood. The possibility this differentiation may not be exact does not render the statutes unconstitutional. Nor may Martinet successfully claim the statutes are invalid because they protect shark and swordfish from overfishing by new entrants but not prior permittees. The Legislature may adopt economic regulations “that only partially ameliorate a perceived evil.” (New Orleans v. Dukes (1976) 427 U.S. 297, 303 [49 L.Ed.2d 511, 517, 96 S.Ct. 2513].) The statutes are reasonably drawn to protect against overfishing, while also protecting the fishing industry and those persons who have invested in and practiced drift gill net fishing of shark and swordfish in the past and others with experience in certain fisheries.
We conclude Martinet has failed to show a denial of equal protection and that the trial court did not err in denying his petition for a writ of mandate.
Disposition
The order is affirmed.
Wiener, Acting P. J., and Todd, J., concurred.
We refer to respondents collectively and the Department of Fish and Game individually as “Department.”
All statutory references are to the Fish and Game Code.
Cites, in this corpus
- Del Mar Canning Co. v. Payne S. F. 17373 · 1946-12-06
- Ferrante v. Fish & Game Commission S. F. 17331; S. F. 17332; S. F. 17333; S. F. 17334; S. F. 17335; S. F. 17356 · 1946-12-06
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