Commercial and Constitutional law Conflict

Have the Commercial fishermen been given illegal privileges that are not allowed or illegal in our State Constitution laws?

Commercial fishermen are issued State fishing licenses to harvest state fish and are done on a limited number of licenses that are not available to others. We are told by the attorneys on this board that fishing is not a right, but is only a "Privilege" and the State considers all fishing as a "Privilege" and is the only one who has the rights to grant us this Privilege". WE have been told that the State can not "take back" any Commercial fishing License unless the Commercial fishermen either sell them back to the State or they fail to renew them.

They never let them go back, or turn them into the State because they are allowed to transfer their license to another member of their family. This has always been an unfair policy because the citizens were never allowed to purchase "new" commercial licenses. Since ALL forms of fishing in Washington State is consider to be issued as a "privilege" how can they be the only fishers that are allowed to pass down a license under the States Constitution under Section 12, and 28?

You can read what the "legal" definition of Privilege" is, and you can read what is stated in the Constitution under Section 12 and 28, and tell me what am I missing!

SECTION 12 SPECIAL PRIVILEGES AND IMMUNITIES PROHIBITED.
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.

SECTION 28 HEREDITARY PRIVILEGES ABOLISHED.
No hereditary emoluments, privileges, or powers, shall be granted or conferred in this
State

PRIVILEGE, PRIVLEGE - civil law. A right which the nature of a debt gives to a creditor, and which entitles him to be preferred before other creditors.

Creditors of the same rank of privileges, are paid in concurrence, that is, on an equal footing. Privileges may exist either in movables, or immovables, or both at once. They are general or special, on certain movables. The debts which are privileged on all the movables in general, are the following, which are paid in this order. 1. Funeral charges. 2. Law charges, which are such as are occasioned by the prosecution of a suit before the courts. But this name applies more particularly to costs, which the party cast has to pay to the party gaining the cause. It is in favor of these only that the law grants the privilege. 3. Charges, of whatever nature, occasioned by the last sickness, concurrently among those to whom they are due; see Last sickness. 4. The wages of servants for the year past, and so much as is due for the current year. 5. Supplies of provisions made to the debtor or his family during the last six months, by retail dealers, such as bakers, butchers, grocers; and during the last year by keepers of boarding houses and taverns. 6. The salaries of clerks, secretaries, and other persons of that kind. 7. Dotal rights, due to wives by their hushands.

The debts which are privileged on particular movables, are, 1. The debt of a workman or artizan for the price of his labor, on the movable which he has repaired, or made, if the thing continues still in his possession. 2. That debt on the pledge which is in the creditor's possession. 3. The carrier's charges and accessory expenses on the thing carried. 4. The price due on movable effects, if they are yet in the possession of the purchaser; and the like.

Creditors have a privilege on immovables, or real estate in some, cases, of which the following are instances: 1. The vendor on the estate by him sold, for the payment of the price, or so much of it as is due whether it be sold on or without a credit. 2. Architects and undertakers, bricklayers and other workmen employed in constructing, rebuilding or repairing houses, buildings, or making other works on such houses, buildings, or works by them constructed, rebuilt or repaired. 3. Those who have supplied the owner with materials for the construction or repair of an edifice or other work, which he has erected or repaired out of these materials, on the edifice or other work constructed or repaired.

mar. law. An allowance to the master of a ship of the general nature with primage, being compensation or rather a gratuity customary in certain trades, and which the law assumes to be a fair and equitable allowance, because the contract on both sides is made under the knowledge such usage by the parties.

Rights. This word, taken its active sense, is a particular law, or a particular disposition of the law, which grants certain special prerogatives to some persons, contrary to common right. In its passive sense, it is the same prerogative granted by the same particular law.

Examples of privilege may be found in all systems of law; members of congress and of the several legislatures, during a certain time, parties and witnesses while attending court; and coming to and returning from the same; electors, while going to the election, remaining on the ground, or returning from the same, are all privileged from arrest, except for treason, felony or breach of the peace.

Privileges from arrest for civil cases are either general and absolute, or limited and qualified as to time or place.

In the first class may be mentioned ambassadors, and their servants, when the debt or duty has been contracted by the latter since they entered into the service of such ambassador; insolvent debtors duly discharged under the insolvent laws; in some places, as in Pennsylvania, women for any debt by them contracted; and in general, executors and administrators, when sued in their representative character, though they have been held to bail.

In the latter class may be placed, 1st. Members of congress this privilege is strictly personal, and is not only his own, or that of his constituent, but also that of the house of which he is a member, which every man is bound to know, and must take notice of. The time during which the privilege extends includes all the period of the session of congress, and a reasonable time for going to, and returning from the seat of government. The same privilege is extended to the members of the different state legislatures.

- 2d. Electors under the constitution and laws of the United States, or of any state, are protected from arrest for any civil cause, or for any crime except treason, felony, or a breach of the peace, eundo, morando, et redeundo, that is, going to, staying at, or returning from the election.

- 3d. Militia men, while engaged in the performance of military duty, under the laws, and eundo, morando et redeundo. - 4th. All persons who, either necessarily or of right are attending any court or forum of justice, whether as judge, juror, party interested or witness, and eundo, morando et redeundo.

Ambassadors are wholly exempt from arrest for civil or criminal cases.

PRIVLEGE - Obs. A private LAW applicable to one person, or a group of persons, or a social body

What do you think Todd?

Cowlitzfisherman

Any bets on how long before Todd starts charging CFM a retainer fee?



CFM,
I think you missed you calling in life... I'm not sure what it was but I'm sure you missed it...

Keep them wheels turning!

Not sure how to respond. There is a lot of stuff there.

My short answer to your question, "Have the Commercial fishermen been given illegal privileges that are not allowed or illegal in our State Constitution laws?" Short answer, probably NO.

Long answer. The license commercials have is considered a property right. Under the U.S. Constitution such a right cannot be taken without due process and fair compensation.

The commercial fishing license is a valuable item that someone in the fisherman's family probably paid a nominal fee for at some point long ago, and which the fisherman now owns. Since they own it, it is a right. If the state took it without compensating them, it would sort of be like the state taking your land without paying. Fishermen now "own" the license or right to harvest whatever is allowed. It is the same thing with mining claims, coal leases and natural gas leases. Once the state grants one, it is a right and they have to pay the owner and give due process before it can be taken.

It probably is technically not a privilege because when they first sold/gave the licenses out, anyone could bargain and try to buy one. Everyone had a "right" to try and get a license.

State can take land for public safety without paying, i.e. I own a leaky dam that might burst and kill people. But the fishing license probably doesnt rise to this level to allow the state to take it without paying.

I wish the state would either buy them out and not allow the remaining license holders to catch the share of the bought out holder. Or, I wish the state would drastically limit the cathes allowed to reflect the reality of scarce fish and it would become unprofitable to fish, making the holder of the license stop. Seems like they could do this second option without paying to protect the resource owned by all. We need better government for this.

Hope this helps answer a bit.

Perhaps in the abstract your argument may be valid, but in the political milieu in which we have to operate, this seems like it would be expensive to pursue.

There are many areas where the apparent consitutional law seems to contradict the law of the land. This seems like another one. My favorite is drug law, which is wildly out of synch with the base of constitutional law. Get used to it.

Not to sound too flaming here, but I have to say BS to your quote above.... First of all, you cannot compare a fishing license with property. That is just plain wrong. Do the fish belong to the license holder such as the tree's on someones "property" do? I think not. The fish belong to the people of the state, and are a resource owned by the people of the state and managed by employees of the state. Therefore the priviledge to fish commercially is just that, a priviledge.... Not a right!
Same as driving a car. A person may drive as a prviledge and even own a commercial vehicle and be licensed to drive that commercial vehicle (aka CDL) yet tne state maintains the ability to revoke that commercial driving license.
Your bantor is the general belief but it is nothing more than special priviledge that the commercials have paid for through PAC's but is legally baseless and nothing but political wrangling and BS.....
And to add to this you are also wrong about the mining/grazing leases.... When they expire (most on a yearly basis) they can (the state) make the decision to raise the fee, lower the fee, or refuse to renew the lease as they see fit...
Thank you for your time.....

MC

I just wanted to add that local legislators are only immune from misdemeanor crimes while in legislative session...and not from felonies.. They can also be prosecuted for the misdemeanors after the session is over...Would the commercials be exempt from a net ban if one went into effect due to the "grandfather clause?" I would think not..but I'm no expert.

One more thing...I have seen a lot of guys that are part of the "Posse Comitattis"(unsure of the spelling) have the mistaken belief that constitutional law supercedes the state law so they quit paying taxes and issue their own driver's licenses..It would be laughable if they didn't take themselves so seriously..

Ok...after reading the esteemed opinions of Brant and CFM, I reached the conclusion that the state has the right to change the conditions under which the license is used,(harvest availability), but allow the license to be transfered by the holder.

I imagine that the system was set up originally to limit the number of commercials operating? Brant, I thought that the state condiders driving to be a priviledge, not a "right." In the case of driver's licenses, you can't transfer that type of license anyway, so that would not be a good analogy.

The state would be under no obligation to pay that type of license holder back if supended. On the other hand, the state could not just take it without some kind of due process.

So, I think the state can probably regulate the use of the license, but not it's exsistence. If they did, they would probably "suspend" them from usage rather than eliminate them. If they needed to take the license, I'm sure some kind of buy out would be in order if they just eliminated commercial fishing altogether. Just like the logging industry. Non treaty commercial fishing should go the same way, just eliminate it. It's time they learned new way of life anyway. Just my opinion.

Here is something to think about:

Commercial fishermen harvest millions of pounds of fish each year and pay no fee for the fish other than their licenses. You can look up what the catches are worth but it is in the hundreds of millions of dollars. Fishing is controlled by a fish and wildlife department while other harvesting of the people's natural resources is handle by other agencies. A case in point is the Geoduck harvest overseen and regulated by the Dept of Natural Resources. Non-indian fishers have to bid on the privelage to harvest these valuable aquatic creatures. Of course, the indians get to harvest atleast half and probably more of this natural resource for free. The white guys pay upowards of $6.00 a pound to the state for that privelage. Hundreds of millions of dollars worth of geoduck were handed over to the tribes by the Rafeedie decision handed down in recent years. So the natural resources dept. collects millions from non-indian geoduckers. The privelage to log is also auctioned off to non-indians who pay for the trees. The indians cut their millions of board feet of timber for free. Case in point is the Quinault reservation..Stop by some day and marvel at the miles and miles of clear cut forest. Don't get me wrong, the white guys cut down too many trees too but atleast they contribute to the state coffers when they do for schools.

So it looks to me like a bunch of fools over the past 150 years or so have handed over special "rights" to the tribes and are charging the rest of us for the privelage.

Grandpa: I agree with you on this about 99.4% The commercials do not pay anywhere near enough for the rape of our public resources.

The loggers also get off too easy. They pay a good deal for the trees but nothing for the roads the Forest Service builds for them, and nothing for the tremendous environmental damage they have done and still do.

*******s!!!

Good thinking!

You got possibilities!