Steven Riley v. The Rhode Island Department of Environmental Management, et al.

Does the Rhode Island Constitution's guarantee of
right of fishery prohibit the Legislature from granting some commercial fishermen access to
some species of sea life while denying others the same rights? This is a constitutional challenge
to the Rhode Island General Assembly's 2002 enactment of a limited-entry fishing licensing
statutory scheme that empowered the Rhode Island Department of Environmental Management
(DEM) to adopt a flexible approach to issuing new licenses for restricted species on a yearly
basis.1 Steven Riley (Riley) appeals from a Superior Court judgment in favor of DEM after
Riley appealed a denial of a principal-effort license to commercially fish certain restricted
species, pursuant to the Administrative Procedures Act (APA), G.L. 1956 § 42-35-15.2 Riley
also moved in the Superior Court for declaratory relief,3 arguing that the General Assembly's
enactment of G.L. 1956 § 20-2.1-54 was unconstitutional because it limited the issuance of
"new" principal-effort and multipurpose fishing licenses while preserving the licenses of
fishermen who were issued those licenses prior to December 31, 2002.5 Riley brought forth a
barrage of constitutional challenges against the statute, as well as against Rule 7 of the Rules and
Regulations Governing the Management of Marine Fisheries, that was adopted by the DEM
pursuant to the General Assembly's statutory authority.6

The eye of this storm revolves around (1) whether the denial of a preferred license to
Riley, which would grant him access to the same restricted species as other, more highly licensed
fishermen, implicates a fundamental right of fishery or a fundamental right to pursue a common
occupation of life, and (2) whether § 20-2.1-5 comports with the requirements of due process and
equal protection under the Rhode Island and United States Constitutions. We affirm the
judgment of the Superior Court.

Facts and Procedural History

This fish story began when Riley applied to DEM for a principal-effort license, which
would grant him access to Rhode Island's most valuable sea fare. Riley claims he was a
commercial fisherman in Rhode Island in the 1970s. He left this profession to pursue a career in
engineering, and did not renew his license thereafter. Three decades later, in February 2003,
Riley, his engineering pursuits completed, decided to return to his original calling. Specifically,
Riley sought a principal-effort commercial fishing license with shellfish/quahog and restrictedfinfish
endorsements under § 20-2.1-5. This particular license would enable Riley to have access
to the restricted fisheries sectors, which included six species of finfish, one species in the
shellfish category (quahogs), and one species in the crustacean category (lobster).

Before the "Commercial Fishing Licenses Act of 2002" was enacted, the state alternated
between periods of "open access" in licensing and enacting moratoriums.7 After an intense,
collaborative effort among DEM, the Intergovernmental Working Group on Fisheries
Management, the Coastal Institute at the University of Rhode Island, and other affected
stakeholders, the Legislature enacted legislation that enabled DEM to place "[r]estrictions on the
number of license holders" and adjust the number of new licenses issued, on a yearly basis,
depending on the status of the species.8 Section 20-2.1-2(6)(ii)(E).

According to the statute, there are three types of fishing licenses available. The entrylevel
license is a "Commercial fishing license" that allows for "commercial fishing in the
fisheries sector, per endorsement at basic harvest and gear levels."9 Section 20-2.1-5(1)(i). The
second type is the principal-effort license, which was Riley's preference. However, he was not
eligible because:

"[d]uly licensed persons in a fishery as of December 31 of the immediately
preceding year, shall be eligible to obtain a principal effort license for the fishery
sector for which they were licensed on December 31 of the immediately
preceding year, which principal effort license shall allow its holder to fish in a
fishery sector at the full harvest and gear levels. * * * Principal effort license
holders, in addition to the fishery sector of their principal effort, shall be eligible
to obtain endorsements for the other fishery sectors at the full harvest and gear
levels * * *." Section 20-2.1-5(1)(ii).

Eligibility for the third type of license, the "Multi-purpose license," similarly is limited to:
"[a]ll multi-purpose license holders as of December 31 of the immediately
preceding year, * * * which shall allow the holder to engage in commercial
fishing in all fisheries sectors at the full harvest and gear levels." Section 20-2.1-
5(1)(iii).

Because Riley did not have a valid principal-effort or multipurpose license before
December 31, 2002, his application was denied by the DEM. However, he was granted the less
lucrative commercial fishing license, and he later secured a lobster endorsement.
Dissatisfied, on March 9, 2003, Riley filed a request that the Commercial Fishing License
Review Board (CFLRB) reconsider his application for the principal-effort license. He was told
that the board had not yet been appointed; so, on May 21, 2003, Riley requested a hearing with
the Administration Adjudicative Division (AAD). In June, the AAD remanded the case to the
CFLRB for a hearing, which was held on July 21, 2003. After the hearing, Riley's appeal was
denied by the CFLRB and the DEM. On January 21, 2004, the parties presented oral arguments
before Chief Hearing Officer Kathleen Lanphear, who granted DEM's motion for summary
judgment on January 26, 2004. Riley timely appealed to the Superior Court pursuant to the
APA, §§ 42-35-15 and 42-35-7.

In his complaint, Riley raised thirteen issues, including his contention that § 20-2.1-5 was
unconstitutional, and the agency's denial of his desired license was in error. Among the myriad
allegations set forth in his complaint, he argued that his fundamental right to earn a livelihood in
a lawful calling and his fundamental right of fishery were violated, that grandfathering old
licenses while refusing to issue new licenses created two classes of people and denied members
of one of those classes equal protection and due process, that the administrator's grant of
summary judgment was arbitrary and capricious, and that the DEM regulations created a
monopoly in favor of a group of fishermen, in violation of antitrust law.

The Superior Court affirmed the DEM's decision, applying a rational-basis test to the
constitutional challenges because it determined that no fundamental right was implicated. The
Court found that the General Assembly had legitimate goals to "[p]reserve, enhance, and allow
for any necessary regeneration of the fisheries of the state, for the benefit of the people of the
state, as an ecological asset and as a source of food and recreation," and limited entry was a
rational way to achieve those goals. Section 20-2.1-2(1). Finally, the Court found that the
antitrust claims were meritless. Riley timely appealed.

On appeal to this Court, Riley narrows his arguments to constitutional claims, and he
attempts to trigger this Court's strict scrutiny of the statutory framework by arguing that denying
him a principal-effort license infringes on his fundamental right to pursue a lawful calling. Riley
also argues that § 20-2.1-5 implicates a fundamental right of fishery as found in the Rhode Island
Constitution, denying him equal access to fish the desired species with other commercial
fishermen, in violation of equal protection and due-process considerations. He argues that these
statutes cannot withstand a strict-scrutiny analysis, but that even under a rational-basis analysis,
they still fail because they are arbitrary and capricious and are not designed to achieve a
legitimate governmental goal.

The state counters that the licensing statute and implementing regulations do not infringe
upon any fundamental right and a limited-entry scheme is rationally related to the legitimate
purposes outlined in § 20-2.1-2.

Standard of Review

When the decision of a trial justice or of the agency is based upon questions of law, we
review those findings de novo. Johnston Ambulatory Surgical Associates, Ltd. v. Nolan, 755
A.2d 799, 805 (R.I. 2000).

In passing on the constitutionality of a statute, this Court will exercise "the greatest
possible caution." Cherenzia v. Lynch, 847 A.2d 818, 822 (R.I. 2004) (quoting Gorham v.
Robinson, 57 R.I. 1, 7, 186 A. 832, 837 (1936)). It is the petitioner's burden, to prove beyond a
reasonable doubt, that the act violates a specific provision of the Rhode Island or the United
States Constitutions. Cherenzia, 847 A.2d at 822 (citing City of Pawtucket v. Sundlun, 662 A.2d
40, 45 (R.I. 1995)). In fact, there is a presumption that the statute is "valid if good upon its face,
and it is presumed that the acts of the judicial body which granted it are all valid. ‘Omnia
praesumuntur rite et solemniter esse acta.' They are presumed to know the law and to have
followed it in case of each necessary step." Payne & Butler v. Providence Gas Co., 31 R.I. 295,
327-28, 77 A. 145, 158 (1910). It is the duty of the Legislature, however, to act within "the
textual limitations * * * that are specified in the Federal or State Constitutions." Cherenzia, 847
A.2d at 822 (quoting Sundlun, 662 A.2d at 44).

In construing provisions of the Rhode Island Constitution, our "chief purpose is to give
effect to the intent of the framers." In re Advisory Opinion to Governor (Ethics Commission),
612 A.2d 1, 7 (R.I. 1992) (citing State ex. rel. Webb v. Cianci, 591 A.2d 1193, 1201 (R.I. 1991));
Bailey v. Baronian, 120 R.I. 389, 391, 394 A.2d 1338, 1339 (1978); Opinion of the Court to the
House of Representatives, 45 R.I. 289, 293, 120 A. 868, 870 (1923). The historical context is
important in determining the scope of constitutional limitations because "‘a page of history is
worth a volume of logic.'" In re Advisory Opinion to the Governor, 688 A.2d 288, 291 (R.I.
1997) (quoting Kass v. Retirement Board of Employees' Retirement System, 567 A.2d 358, 360
(R.I. 1989) and Justice Oliver Wendell Holmes in New York Trust Co. v. Eisner, 256 U.S. 345,
349 (1921)). Therefore, this Court properly consults extrinsic sources, including "the history of
the times and examine[s] the state of affairs as they existed when the constitution was framed
and adopted." Sundlun, 662 A.2d at 45 (citing In re Advisory Opinion to the Governor, 612
A.2d at 7).

We "employ the well-established rule of construction that when words in the constitution
are free of ambiguity, they must be given their plain, ordinary, and usually accepted meaning."
Sundlun, 662 A.2d at 45 (citing In re Advisory Opinion to the Governor, 612 A.2d at 7).
Moreover, "every clause must be given its due force, meaning and effect and that no word or
section must be assumed to have been unnecessarily used or needlessly added," and we must
"presume the language was carefully weighed and its terms imply a definite meaning." In re
Advisory Opinion to the Governor, 612 A.2d at 7 (quoting Kennedy v. Cumberland Engineering
Co., 471 A.2d 195, 198 (R.I. 1984) and Bailey, 120 R.I. at 391, 394 A.2d at 1339).

Equal Protection and Due Process

Riley argues that denying him the principal-effort license violates his right to earn a
livelihood in a lawful calling and engage in a common occupation of life, as protected by the
liberty provision of the due process clause. See U.S. Const. Amend. XIV, sec. 1; R.I. Const. art.
1, sec. 2; see also Berberian v. Lussier, 87 R.I. 226, 231, 139 A.2d 869, 872 (1958) (citing State
v. Dalton, 22 R.I. 77, 86, 46 A. 234, 237 (1900)). Furthermore, Riley argues that limiting the
issuance of new licenses implicates his rights of fishery because it denies a class of citizens equal
access to fishery, offending our constitutional guarantee of "equal protection of the laws." See
U.S. Const. Amend. XIV, sec. 1; R.I. Const. art. 1, sec. 2.

The threshold question that must be addressed before we can determine the
constitutionality of the statute is whether a fundamental right is in play. If so, in that case the
statute will be subject to strict scrutiny; however, where neither a suspect class nor a fundamental
right is implicated, then the legislation properly is analyzed under a minimal-scrutiny test.

Under those circumstances, this Court will review the statute to insure that "a rational
relationship exists between the provisions of [the statute] and a legitimate state interest. Under
this analysis, if we can conceive of any reasonable basis to justify the classification, we will
uphold the statute as constitutional." Cherenzia, 847 A.2d at 825 (citing Kennedy v. State, 654
A.2d 708, 712-13 (R.I. 1995)).

Because Riley does not argue that a suspect classification exists, we focus on determining
whether his fundamental right to engage in a lawful calling or his right of fishery under the
Rhode Island Constitution are implicated, thereby mandating the rejection of minimal scrutiny,
as outlined above, in favor of a stricter standard.

The Right to Earn a Livelihood in a Lawful Calling

Riley argues that granting him a commercial fishing license, instead of the principaleffort
license that he sought, violates his fundamental right to engage in a lawful occupation.
The due process clause says "nor shall any state deprive any [citizen] of life, liberty, or property,
without due process of law." U.S. Const. Amend. XIV, sec. 1; see R.I. Const. art. 1, sec. 2. The
Rhode Island Supreme Court has recognized that,

"Liberty, as meant by the clause, is a broad concept including not only freedom
from bodily restraint but also the right of the individual to contract, the right of
the individual to engage in the common occupations of life, to acquire useful
knowledge, to marry, and generally to enjoy privileges long recognized as
essential to the orderly pursuit of happiness by a free people." In re Advisory
Opinion to the House of Representatives Bill 85-H-7748, 519 A.2d 578, 581 (R.I.
1987) (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 572
(1972)); see also Berberian, 87 R.I. at 231, 139 A.2d at 872 (the liberty which is
guaranteed to every person by both our state and federal constitutions includes the
right to be free from unreasonable interference in the pursuit of a livelihood).

However, in our opinion, this statute does not frustrate Riley's fundamental right to
pursue a lawful calling because Riley concedes that he has a license to fish commercially. This
Court cannot agree that Riley has a fundamental right to have the specific license he seeks,
which would allow him to take more valuable species of fish. We do not believe that this is an
unreasonable regulation on Riley's ability to be a commercial fisherman because he still is able
to harvest more than a hundred species of sea creatures, even though he is unable to pursue those
that are the most profitable, except in a recreational manner. Riley may still fish commercially
within the licensing scheme and applicable restrictions that the statute requires. See Cherenzia,
847 A.2d at 824.

Furthermore, we think it is instructive that this Court has held that the General
Assembly's power to regulate marine fisheries is broad and plenary. See Cherenzia, 847 A.2d at
822. To uphold its constitutional duty to protect and maintain the fisheries in Rhode Island, we
have said that the General Assembly "may even prohibit free fishing for a time and for such
times as in their judgment it is for the best interest of the State so to do." Opinion to the Senate,
87 R.I. 37, 39, 137 A.2d 525, 526 (1958) (quoting Payne & Butler, 31 R.I. at 327, 77 A. at 158).
Therefore, we hold that no fundamental right to engage in a lawful calling is implicated when a
licensing scheme merely limits the type of species commercial fishermen may pluck from the
sea.

When no fundamental right is at issue, substantive due process "guards against arbitrary
and capricious government action." Kaveny v. Town of Cumberland Zoning Board of Review,
875 A.2d 1, 10 (R.I. 2005) (quoting Brunelle v. Town of South Kingstown, 700 A.2d 1075, 1084
(R.I. 1997)). To prove a violation of substantive due process, Riley must show that the
provisions of the law are "‘clearly arbitrary and unreasonable, having no substantial relation to
the public health, safety, morals, or general welfare.'" Id.; see also Baffoni v. State, 118 R.I. 226,
233, 373 A.2d 184, 188 (1977) (citing State v. Lombardi, 104 R.I. 28, 31, 241 A.2d 625, 627
(1968)).

To overcome this difficult burden, Riley argues that the qualifying criteria for a principaleffort
license, namely, possessing a license prior to December 31 of the preceding year, utterly is
unconnected to the public's health, safety, morals, and general welfare.10 Riley relies upon
Baffoni, to argue that these prerequisites are arbitrary and unreasonable. In Baffoni, the plaintiff
was trained as an electrologist at an out-of-state school, but she was ineligible to take the
licensing exam enabling her to practice in Rhode Island. Baffoni, 118 R.I. at 230, 373 A.2d at
186. The plaintiff's application to practice electrology was denied because she had not fulfilled
a statutory requirement of 650 hours of training with a Rhode Island electrologist. Id. This
Court held that the prerequisite violated her right to due process because it was arbitrary and
unreasonable, and bereft of any substantial relation to the stated goals of safety. Id. at 235-36,
373 A.2d at 189. However, unlike Baffoni, in which the plaintiff was denied a license to
practice at all, here Riley does have a commercial fishing license. Furthermore, we think that
the requirement of possessing a license from the previous year has a real and substantial
relationship to a legitimate governmental goal of limiting the number of licenses available to
take restricted species. Although the date set forth in the statute, December 31, 2002, may seem
like an arbitrary line in the sand, it is not unreasonable to give priority to fishermen, according to
who already depended on this limited resource for their livelihood.

Historical Background to the Right of Fishery in Rhode Island

The second issue to be determined by this Court is whether a fundamental constitutional
right of fishery is involved. The right of fishery in Rhode Island has deep historical roots and
can be traced back to approximately 1639, when a scarcity of provisions threatened our small
population with imminent famine. Samuel Greene Arnold, 1 History of the State of Rhode
Island and Providence Plantations 142-43 (1859). After all the existing food stuffs were divided
among the hundred or so inhabitants, "‘a general assembly of the freemen' at Newport voted that
‘all the sea banks were declared free for fishing.'" 2 State of Rhode Island and Providence
Plantations at the End of the Century: A History, The Sea Trade and its Development 389, 393
(Edward Field ed. 1902) (quoting Arnold's History of Rhode Island, at 143). Open fishery has
been credited by many scholars as the means that avoided impending disaster at that time.

"Equal freedom was thus granted to all inhabitants of the colony to fish in the waters of
the bay, and this right was perpetuated, and extended to include the shores likewise, by the King
Charles II charter of 1663." Id. at 393. Indeed, the Royal Charter is noteworthy for its
establishment of a variety of freedoms, and it included the following specification critical to our
present analysis:

"Provided also, and our express will and pleasure is, and we do, by those presents,
for us, our heirs and successors, ordain and appoint that these presents, shall not,
in any manner, hinder any of our loving subjects, whatsoever, from using and
exercising the trade of fishing upon the coast of New England, in America; but
that they, and every or any of them, shall have full and free power and liberty to
continue and use the trade of fishing upon the said coast, in any of the seas
thereunto adjoining, or any arms of the seas, or salt water, rivers and creeks,
where they have been accustomed to fish * * *." The Royal Charter (granted by
King Charles II, July 8, 1663, and in force until the Constitution, adopted in
November, 1842, became operative on the first Tuesday of May, 1843).

In 1842, the Rhode Island Constitution was ratified, and significantly, it incorporated the
rights of fishery from the Royal Charter. However, it is noteworthy that this right was
augmented in 1970, with an amendment entitled "Conservation," in which the previous
provisions with respect to the right of fishery were annulled and replaced. See R.I. Const.
amend. 37, secs. 1, 2.

The complexity and precarious balance of the values sought to be preserved by article 1,
section 17 of the Rhode Island Constitution is demonstrated by the following 175 word sentence.

It provides, in relevant part:

"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, * * * 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 of 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 for the use of the natural
resources of the state and for the preservation, regeneration and restoration of the
natural environment of the state." R.I. Const. art. 1, sec. 17.

Our canons of constitutional interpretation require that we look at the plain language of
section 17, and it is clear to us that the "right of fishery" is qualified by the concomitant language
of the 1970 amendment, which imposes a duty on the General Assembly to preserve, regenerate,
and conserve through resource planning. This is consistent with this Court's long-standing view
that the right of fishery in Rhode Island belongs to the general public, and to no particular
individual. See, e.g., Cherenzia, 847 A.2d at 823-24; Opinion to the Senate, 87 R.I. at 38, 137
A.2d at 525-26 (the constitutional guarantee of free fishery is for the benefit of all people and
gives no peculiar rights to those resorting to it for commercial purposes); State v. Kofines, 33
R.I. 211, 224, 80 A. 432, 437 (1911); In re Incurring of State Debts, 19 R.I. 610, 613, 37 A. 14,
15 (1896) (defining the term "people," as used in article 1, section 17 of the Rhode Island
Constitution as broad and comprehensive, comprising all the inhabitants of the state); State v.
Cozzens, 2 R.I. 561, 563 (1850).

The Plenary Power of the General Assembly in Fisheries

This 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. This
Court has affirmed and reaffirmed that:

"Therefore the whole subject of fisheries, floating and shell-fish, and all kinds of
shell-fish, whether oysters, clams, quahaugs, mussels, scallops, lobsters, crabs, or
fiddlers, or however they may be known and designated and wherever situate
within the public domain of the state of Rhode Island, are under the fostering care
of the General Assembly. It is for the Legislature to make such laws, regulating
and governing the subject of lobster-culture, oyster-culture, clam culture or any
other kind of pisciculture, as they may deem expedient. They may regulate the
public or private fisheries. They may even prohibit free fishing for a time and for
such times as in their judgment it is for the best interest of the state so to do. They
may withhold from the public use such natural oyster beds, clam beds, scallop
beds or other fish beds as they may deem desirable. They may make a close time
within which no person may take shell-fish or other fish, and generally they have
complete dominion over fisheries and fish as well as all kinds of game. We find
no limitation, in the Constitution, of the power of the General Assembly to
legislate in this regard, and they may delegate the administration of their
regulations to such officers or boards as they may see fit." Opinion to the Senate,
87 R.I. at 39-40, 137 A.2d at 526 (quoting Payne & Butler, 31 R.I. at 327-28, 77
A. at 158).

Indeed, we have said that the General Assembly's power "is plenary * * * and is no
longer open to question." Opinion to the Senate, 87 R.I. at 40, 137 A. at 526 (citing State v.
Nelson, 31 R.I. 264, 270, 77 A. 170, 172 (1910) and Windsor v. Coggeshall, 54 R.I. 38, 169 A.
326, 327 (1933)). However, we are mindful that the power granted by the Constitution also is
limited textually by the Constitution, and it is to this question we now turn.

The Public's Right of Fishery

In 1850, only eight years after ratification of the state constitution (and long before the
passage of the Conservation Amendment), this Court declared in Cozzens, 2 R.I. at 563:

"We are of opinion that the Declaration of Rights and Privileges,
contained in the seventeenth section of the first article of the Constitution, was
intended to be carried into effect by legislative regulation, such regulation having
for its object to secure to the whole people the benefit of the constitutional
declaration, and being necessary for that purpose."

In Cozzens, the defendant was indicted for stealing oysters from an oyster bed that the
state leased to private parties. Cozzens, 2 R.I. at 563. The defendant argued that the General
Assembly's lease to private individuals, but not to him, violated his constitutional right of
fishery. Id. at 564. We held "that the General Assembly has power to lease portions of the tidewaters
of the State for private oyster fisheries to the complete exclusion, * * * of all but the
lessees, even though the leases include portions of natural oyster and quahog grounds,
notwithstanding said section 17." Payne & Butler, 31 R.I. at 322, 77 A. at 156 (citing Cozzens, 2
R.I. at 564) (emphases added). This Court reasoned that the object of the General Assembly was
"not the benefit of the lessees of the private bed, but * * * to secure to the public a more
abundant supply. In other words, the constitutional right is so regulated as to reserve to the
public the greatest benefit." Cozzens, 2 R.I. at 564.

We continued to uphold, against constitutional attack, the private leasing of public
grounds. See Nelson, 31 R.I. at 264-65, 77 A. at 170. Although the result of these holdings
essentially was to exclude all others, save the lessees, from the use and enjoyment of the leased
grounds, we have determined that it is within the General Assembly's power to determine that
doing so is in the best interest of the whole of the public. Id. In Opinion to the Senate, 87 R.I. at
38-39, 137 A.2d at 526 (quoting Kofines, 33 R.I. at 224, 80 A. at 437 and citing Cozzens, 2 R.I.
at 563), we reaffirmed that "fishing must be carried on for the ultimate benefit of the people of
the state and not merely for the profit and emolument of the fishermen engaged in the business,"
and that those who fish for commercial purposes have no rights in excess of those granted to the
people of the state generally.

Riley argues that this statute only allows for some commercial fishermen to be eligible to
take these restricted species, and a statute that "permit[s] one class of citizens to take these fish
while prohibiting entirely the taking thereof by another class of citizens * * * [is] invalid as
discriminatory." Opinion to the Senate, 87 R.I. at 39, 137 A.2d at 526. Riley further contends
that because the scope of the right of fishery is "equal access to the state's fishery resources,"
any regulation that creates inequality among commercial fishermen must be analyzed with strict
scrutiny. See Cherenzia, 847 A.2d at 824 (stating that "[i]f a statute or regulation contained
restrictions that infringed upon the fundamental right of the inhabitants of the state to have equal
access to the ‘rights of fishery,' then such a regulation or law would be subject to strict-scrutiny
analysis").

In Cherenzia, 847 A.2d at 819-20, a number of commercial shellfishermen brought a
constitutional challenge against fishing regulations prohibiting the use of Self-Contained
Underwater Breathing Apparatus (SCUBA) for harvesting shellfish. Id. The fishermen argued
that they were a class of citizens who were denied equal access to fishery in violation of their
constitutional rights. Id. However, this Court held that "no fundamental constitutional right
exists for inhabitants of this state to harvest shellfish from specific bodies of water by using a
specific method of fishing." Id. at 824.

Riley argues that, unlike Cherenzia, this is a situation in which a class of individuals,
those without licenses, has been denied equal access to fishery, and strict scrutiny should apply.
For Riley, the right of "equal access" requires that either everyone is permitted to harvest the
same species, or no one is.

Reading "equal access" literally would run counter to our holdings that no fundamental
right is implicated when the General Assembly enacts legislation for the "good of the whole,"
even when it has been at the expense of a few.11 See, e.g., Cherenzia, 847 A.2d at 825; Nelson,
31 R.I. at 270, 77 A. at 172; Cozzens, 2 R.I. at 563. This Court never has held that a
fundamental right of fishery has been implicated and applied strict scrutiny to such regulations.
As a result, this Court has applied a rational-basis analysis when testing the constitutionality of
fishing regulations and statutes. See Cherenzia, 847 A.2d at 824, 825 (holding that no
fundamental right was implicated by statute and applying a rational-basis test). We see no
reason to depart from that precedent now.

Is there a Rational Basis?

It is well settled that under the equal protection clause, legislative classifications that do
not affect a fundamental right or a suspect class such as race, alienage, or national origin, are
examined under a "minimal-scrutiny" analysis. Under minimal scrutiny, the Legislature has a
wide scope of discretion to enact laws, which will be upheld so long as they bear a reasonable
relationship to public health, safety, or welfare. Kaveny, 875 A.2d at 11.

Riley argues that even if we hold that he has no fundamental right to the license he
desires, we nonetheless should declare the statute constitutionally infirm. He points out, among
other things, that there are various interstate compacts that regulate the poundage of each species
of sea creature that can be harvested, and that those regulations are sufficient to preserve the
resources for the benefit of all the people of the state, in accordance with the mandate of article
1, section 17 of the Rhode Island Constitution.

Regulating the fisheries is an immense and complex process. The General Assembly is
tasked with a difficult burden as it endeavors (even with the collaboration of numerous parties)
to regulate an environment constantly in flux. Viewed through this prism, we must determine
whether the means of restricting commercial licenses, undertaken by the General Assembly and
DEM, are rationally based to achieve a legitimate goal.12

It is significant that the General Assembly has given DEM the authority to issue new
licenses on a yearly basis, taking into account the stocks and environmental conditions, and the
number of licenses granted or surrendered in a given year. For example, in 2005, thirteen new
licenses in restrictive finfish, and also some quahogging licenses, were issued. Riley did not
receive one of these licenses because priority went to others, according to regulation, and there
were more applicants than available licenses.

It is beyond peradventure 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. "In these circumstances we are unable to perceive that the rights of any
person have been infringed. On the contrary, it seems to us that the greatest good of the greatest
number will be advanced by the legislation complained of." Kofines, 33 R.I. at 241, 80 A. at
444.

Although there are boundaries to such legislation, we see nothing discriminatory or
invidious in limiting the number of licenses in relation to the condition of the species itself, and
then allocating those limited licenses on the basis of who was there first. There is no "class of
citizens" that is being discriminated against, and Riley does not argue that he is a member of a
"‘discrete and insular minority'" entitling him to such a classification. Kaveny, 875 A.2d at 11
(quoting Trembley v. City of Central Falls, 480 A.2d 1359, 1366 (R.I. 1984)).

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. The
complex scheme of varying access to restricted species on a yearly basis is "a far cry from the
sweeping prohibition aimed at just one ‘class of citizens' that the justices opined would be
unlawful in Opinion to the Senate." Cherenzia, 847 A.2d at 825.

As noted above, we are mindful that the statute already carries a presumption of
constitutionality and it is Riley's burden to show that it is unconstitutional beyond a reasonable
doubt. Therefore "[i]f under any reasonable state of known or assumed facts, the challenged
provision can be said to protect the public health, safety, or welfare, then the statute must be
upheld." Baffoni, 118 R.I. at 233, 373 A.2d at 188 (quoting State ex. rel. Colvin v. Lombardi,
104 R.I. 28, 31, 241 A.2d 625, 627 (1968)). "The legislative power is plenary, and as long as its
chosen method bears a rational relationship to the legitimate end to be achieved, neither
municipalities nor individuals may challenge the legislative choice solely on the ground that they
could devise a better or more accurate method." Newport Court Club Associates v. Town
Council of Middletown, 800 A.2d 405, 415 (R.I. 2002) (citing Town of Lincoln v. City of
Pawtucket, 745 A.2d 139, 144 (R.I. 2000)).

Section 20-2.1-2 outlines the purposes of the licensing scheme to include:
"(1) Preserve, enhance, and allow for any necessary regeneration of the
fisheries of the state, for the benefit of the people of the state, as an ecological
asset and as a source of food and recreation;

"(2) Provide Rhode Islanders who wish to fish commercially the
opportunity to do so and end the moratorium on issuance of new commercial
fishing licenses so that new licenses may be issued for the year beginning January
1, 2003, and each year thereafter;

"(3) Allow residents who have fished commercially to sell their vessels
and gear in a manner that first, facilitates up-grading license levels among
residents already in the fishery; that second, provides lateral movement among
residents who are holders of commercial fishing licenses to other types of fishing;
and that third, enables new entrants into new commercial fishing;

"(4) Respect the interests of residents who fish under licenses issued by
the state and wish to continue to fish commercially in a manner that is
economically viable: provided, it is specifically not a purpose of this chapter to
establish licensing procedures that eliminate the ability to fish commercially of
any resident as of the date of enactment who validly holds [a] [sic] commercial
fishing license and who meets the application renewal requirements set forth
herein;

"* * *

"(6) Establish principles, for a system of adaptive management, * * *;

"(7) Provide a licensure system that facilitates data collection and
management so that marine fisheries can be managed more efficiently and
effectively."

In our opinion, these goals of conservation and concern for the viability of the fishing
industry are legitimate. They also are part of the General Assembly's constitutional duty as the
guardian of Rhode Island's natural resources. Riley argues that by considering the effects on the
present industry and the economic viability of fishermen who already possess licenses, the
General Assembly has overstepped its bounds. We disagree. The Assembly has proper concern
for the economic viability of the industry as a whole, and in particular, for those individuals who
have the most at stake within it. In Kofines, we said,

"Without protection from the rapacity of man, lobsters must become scarcer, and
consequently dearer. This has been the costly experience of all countries where
the experiment has been tried. The natural tendency to kill the goose that lays the
golden egg is always exhibited when the opportunity is afforded. * * * [M]an
should be saved from the consequences of his own selfishness, thoughtlessness,
and wastefulness in the matter of fisheries. And for this purpose an ounce of
prevention is worth a pound of cure." Kofines, 33 R.I. at 225-26, 80 A. at 438.

The General Assembly regulates fisheries in trust for the public, and it is precisely
because "the rapacity of man" remains a legitimate concern to the economic viability of this
important industry that there is a need for conservation and preservation for future generations.
Furthermore, limiting access to different species via limited licensing is related directly to
the goals of maintaining the viability of those stocks and the fishing trade that depends upon
them. This not only benefits the trade, but also it is for the well-being of all the people of the
state. It is certainly natural that the most desirable species face the greatest threat from
overfishing and depletion. Therefore, we hold that the objectives of this scheme are legitimate
and in accordance with the General Assembly's constitutional duty of preserving marine
fisheries, and that limiting the entry of new licenses is a rational way to achieve those goals.

* * *

http://www.courts.state.ri.us/supreme/pdf-files/06-175.pdf

We affirm the judgment of the Superior Court and return the papers in this case thereto.

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