2002 No Action
2001 No Action
2000 No Action
1998 No Action
1995 No Action
July 18, 2000
TO THE HONORABLE, THE SENATE:
In accordance with the provisions of R.I. Gen. Laws § 43-1-4, I am transmitting herewith, with my disapproval, OO-S-2122, Substitute A, As Amended, ^'An Act Relating to Commercial Fisheries."
This bill would prohibit non-resident commercial fishermen from off-loading and/or selling any summer flounder against Rhode Island's quota without a previously-issued summer flounder exemption certificate. The bill would also prohibit non-resident commercial fishermen from off-loading and/or selling scup against Rhode Island's quota without an exemption certificate issued pursuant to criteria established by the Director of the Department of Environmental Management. Finally, the bill would require the Director to issue summer flounder certificates to any floating trap fishery that would have qualified for such a certificate before January 1, 1998.
I must veto this bill on the ground that its prohibition on offloading and/or selling summer flounder by non-residents is clearly unconstitutional under established case law.
The current regime governing the commercial summer flounder catch treats resident and non-resident fishermen equally. Neither can catch, possess or offload for sale more than 200 pounds in any calendar day without a valid Rhode Island commercial fishing license and an existing summer flounder exemption certificate. Due to a moratorium on the landing of summer flounder, the Department has issued no exemption certificates to residents or non-residents since January 1, 1997. Commercial operations yielding a daily catch of 200 pounds or less do not require a summer flounder exemption certificate for either residents or non-residents.
Article IV, Section 2 of the Constitution of the United States provides as follows:
"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The "Privileges and Immunities" clause provides important protections for non-residents who enter a state to obtain any number of benefits, including commercial fishing. Toomer v. WuselI, 334 U.S. 385 (1948) cited with approval by Saenz v. Roe, 526 U.S. 489 (1999). In Toomer, the United States Supreme Court struck down a South Carolina law which required non-residents to pay a commercial fishing license fee one hundred times greater than the license fee for residents. The Court found that the practical effect of such a disparity was the virtual exclusion of non-resident commercial fishermen from South Carolina's fisheries. Id. at 396-97. Similarly, the United States Court of Appeals for the First Circuit struck down a Rhode Island law prohibiting non-residents from catching menhaden in Rhode Island's waters. Edwards v. Leaver, l02F. Supp. 698 (D.R.I. 1952). In striking down the disparate treatment visited upon non-resident fishermen, the First Circuit noted that the Constitution guarantees to the citizens of each state the right to do business in any other state on terms of "substantial equality" with the citizens of that state. Id. at 702.
This bill suffers from the same constitutional defect identified in Toomer and Edwards. Because non-residents who catch less than 200 pounds of summer flounder were historically never required to and did not obtain exemption permits and because the Department is issuing no new exemption permits, non-residents whose daily catch is less than 200 pounds would be completely prohibited from offloading and/or selling summer flounder in Rhode Island by this bill. The bill imposes no such prohibition on residents with the same sized catch. The complete exclusion of a class of non-resident fishermen from landing their catch is a clear violation of the "Privileges and Immunities" clause of the United States Constitution.
Although it does not form the basis for my veto, I would note that even if this bill could survive constitutional muster, it would likely harm, rather than help, Rhode Island fishermen. On an average annual basis, approximately 40 non-resident fishermen offload and sell summer flounder in Rhode Island. During the same time frame, approximately 80 Rhode Island fishermen offload and sell their small catches in other states. If this bill became law, other states might follow suit - a trend which could inflict greater harm on Rhode Island fishermen offloading in other states than any benefit they might receive from this prohibition.
For the foregoing reasons, I disapprove of this legislation and respectfully urge your support of this veto.