SCUBA Shellfishing Ban Withstands Challenge

Cherenzia v. Lynch, 847 A.2d 818 (R.I. 2004).

Lance M. Young, 2nd Year Law Student at Roger Williams School of Law

Last year, commercial fishermen in Rhode Island challenged a legislative act that prohibited them from using a self-contained underwater breathing apparatus (SCUBA) to harvest shellfish in coastal saltwater ponds. A superior court judge declared the legislation unconstitutional because it unreasonably deprived the divers of their occupations. This spring, the Rhode Island Supreme Court reversed that decision, holding that the legislature has broad power to regulate fishing and the judiciary is limited in its ability to scrutinize those acts.

Background
Potter Pond, known for its abundant fish stock, is the deepest of several salt ponds in Rhode Island. It attracts both commercial and recreational fishermen, supports recreational boaters and is surrounded by residential and vacation homes. Some commercial fishermen used SCUBA diving equipment as a means to harvest shellfish from the pond. In 2000, residents started to complain that SCUBA diving fishermen failed to comply with quantity limits, neglected to use proper safety measures, and trespassed on private property. They claimed that the divers’ failure to comply with quantity limits damaged recreational fishing and that unsafe diving practices posed a safety hazard to boaters. Concerns increased when residents learned that the Division of Fish and Wildlife was considering the rescission of a ban on SCUBA harvesting in three other Rhode Island ponds.

In 2001, the Rhode Island General Assembly enacted a statute that prohibited the use of SCUBA diving equipment for harvesting shellfish in Green Hill Pond, Quonochontaug Pond, Charlestown Pond, and Potter Pond.!1 The state defended the legislation on the grounds that it had a duty to compromise between resident concerns and SCUBA diving fishermen. The effect of the legislation, however, seemed to benefit only the residents. Furthermore, the General Assembly defended the legislation on the basis that it retains the power to regulate fishing for environmental resource protection.

Before the trial court, the fishermen argued that the legislation was not related to a legitimate state interest. They provided expert witnesses and a Department of Environmental Management report to establish a healthy shellfish population in the ponds and the adequacy of catch limits as a regulatory tool. The fishermen argued that the state could not legitimately claim it was protecting shellfish populations with the new legislation, as existing laws already restricted catch and no other method of harvesting shellfish was restricted. The superior court judge granted summary judgment in favor of the SCUBA diving fishermen, ruling that the legislation unconstitutionally deprived the SCUBA diving fishermen of their occupations. The Rhode Island Attorney General appealed to the state Supreme Court.

Right to Fish, Equal Protection, and Due Process
On appeal the fishermen claimed the ban violated their constitutional right to fish. The Rhode Island Constitution protects citizens’ “rights of fishery, and privileges of the shore.”2 The fishermen argued that the legislative ban on SCUBA fishing served no legitimate state interest because the use of SCUBA equipment does not jeopardize shellfish populations or raise public health concerns. Therefore, they argued, the public gained nothing from the legislation and a single class of fishermen was illegally discriminated against. Because the enactment had the effect of discriminating against them, the fishermen also contended that it violated their constitutional guarantee of equal protection under the law and due process rights.

The Court’s Analysis
The Rhode Island Supreme Court unanimously upheld the legislation’s validity and reversed the superior court. First, it agreed with the Attorney General that the General Assembly has broad and full authority to regulate the state’s resources. The standard for reviewing legislation in Rhode Island requires that the plaintiff prove beyond a reasonable doubt that the legislative act violates either the State or United States Constitution before judicial intervention is appropriate.3

In its review, the court distinguished between strict scrutiny and minimal scrutiny of legislation. Strict scrutiny is appropriate when a statute infringes upon an “enumerated constitutional right” like the freedom of speech or a right “fundamental to our concept of ordered liberty,” like the right to privacy.4 Strict scrutiny would also be applied if there was suspicion of discrimination against a protected class, such as race, religious affiliation, or gender. Otherwise, the court claims, the legislature can enact laws that affect certain classes of individuals differently than others with only minimal judicial scrutiny.

The court held that the statute in question did not infringe on any enumerated or fundamental right and the fishermen did not fall into any suspect classification. The Rhode Island Constitution protects the fundamental right of all inhabitants of equal access to the State’s fisheries. The court reasoned that the statute does not deny the fishermen equal access because they are still entitled to harvest shellfish. Nor does the legislative act discriminate against one class of fishermen, such as commercial fishermen. It merely regulates a method of fishing that is applicable to all citizens.

The court also noted that the State Constitution imposed on the legislature the duty to protect fish resources by providing “adequate resource planning and control and regulation.”5 The constitutional responsibility is not limited to regulating catch and size limitations. The state can also regulate methods of fishing to plan for sustained future resources. Finally, for a plaintiff to claim violation of due process, he or she must show that a statute violates a protected interest like liberty or property. In the alternative, the statute must be proven “arbitrary and unreasonable” because it had no relation to public health, safety, morals, or general welfare.6 Because the statute was related to the conservation of shellfish and boating safety, the court found no viable due process claim.

Conclusion
Tension is bound to arise when different user groups utilize the same resource. The Rhode Island General Assembly responded to the tension that arose between property owners and commercial fishermen that utilized Potter Pond. The enacted legislation, which banned the practice of harvesting shellfish using SCUBA gear, was validated on the grounds that the act intended to protect future shellfish populations. This seems duplicative, as the shell fishermen suggest, because the SCUBA diving fishermen are already restricted by the same catch and size limits as other fishermen. State law also exists that regulates SCUBA diving safety7 and trespass. However, because the “right of fishery” is not an enumerated or fundamental right and fishermen are not a protected class of citizens, this group of plaintiffs was unable to challenge legislative motive in the Rhode Island Supreme Court.

Endnotes
1. R.I. Gen. Laws § 20-6-30 (2004).
2. R.I. Const. Art. I, § 17.
3. Gorham v. Robinson, 186 A. 832, 837 (R.I. 1936).
4. Cherenzia v. Lynch, 847 A.2d 818, 823 (R.I. 2004).
5. R.I. Const. Art. I, § 17.
6. Cherenzia, 847 A.2d at 826.
7. R.I. Gen. Laws § 46-22-24 (2004).