It’s Time for the Lobster Monopoly to End: Maine Needs to Grow Up Like Its Lobsters

Article By: Leslie M. MacRae, JNREL Vol. 18, No. 2

Abstract By: Brandon Wells, Staff Member

Want to go to Maine and catch your own lobster? Well you may find yourself in a lot of trouble. Along with other types of regulation such as limiting quotas, equipment regulation, and seasonal restrictions, Maine has a system of regulation based on state citizenship. In effect, this means that unless you have been a resident of Maine for at least a couple years or so, and in some cases have participated in a type of lobster apprenticeship, you can forget about commercially fishing for lobster legally. While many of the types of regulations used by Maine on its lobster industry are legal and in many cases promote economic well being, regulations based on durational residency requirements are arguably unconstitutional.

Some earlier cases with facts very similar to the issue in Maine have been decided based on the Privileges and Immunities Clause of the United States Constitution. In the earlier case, Hicklin v. Orbeck, 437 U.S. 518 (1978), the court fashioned a two-part test to determine unconstitutionality. The first part of the test was that the state had to demonstrate that non-residents constituted a particular "source of evil." The second part of the test stated that the discrimination had to have a "substantial relationship" to the problem. Being able to prove that non-residents are sources of evil will be hard for Maine, or any other state to do, although it has happened in some cases. See State v. Kemp, 44 N.W. 2d 214 (S.D. 1950).

Over thirty years ago, Maine had implemented a durational residency requirement much like the one they have today. In 1974, the case of Massey v. Appolonio held that the residency requirement violated the Equal Protection Clause. Massey v. Appolonio, 387 F. Supp. 373, (D. Me. 1974). The only problem with the court's decision was that it made clear that it was only discussing the constitutionality of the residency requirement (which was three years at the time) and not whether Maine was able to limit fishing to Maine residents only. In a future suit based on these unresolved matters, it seems likely that Maine will be in a very precarious position, and may very well lose again.

It is anticipated that Maine will argue that nonresidents are a "source of evil" when it comes to protecting their local commercial lobster industry. Maine may say that they are protecting their culture, but it is extremely hard to see how the residency requirements would solve this problem. Even so, there are many other ways to protect this perceived harm, such as regulations based on the type and size of boat.

Maine may additionally argue that non- residential lobstermen will destroy the state's conservation efforts. However, non-residents will be subject to the same regulations and laws as Maine lobstermen. Another potential argument is that lobster is the state's own unique resource. Nevertheless, there are a number of facts to rebut Maine's argument, as lobsters are mobile and are found in many spots far south of Maine on the east coast. Also, the Court has all but out right rejected the idea of ownership over living natural resources.

Along with this shift in thinking by the Court, along with the rigid tests of the Privileges and Immunities Clause and the case law that follows it, Maine will have a very difficult time holding its durational residency requirement up to constitutional muster. Maine has the ability and the knowledge to maintain its beautiful industry and resources without resorting to such illegal statutes and manners. Putting to work its legal and constitutional controls over lobster fishing will see to it that Maine's foothold in the commercial lobster industry continues for many years to come.

“The Conflict Between Local Fishing Industry and the Protection of Marine Fishery Resources in Recreational Fishing Alliance v. Evans”

Appearing in JNREL Vol. 21 No. 2 this comment was written by former staff member Michael Russell. The following abstract was written by staff member Cara Houlehan.

Local fishing communities and federal wildlife conservation authorities share a mutual goal - to maintain a productive and healthy fishing environment. However, these groups have widely disparate views of how to accomplish this objective. Recreational Fishing Alliance v. Evans, 172 F. Supp. 2d 35 (D.D.C. 2001) illustrates the perspectives of each of these parties with regard to federally mandated fishing retention limits. Specifically, members of a local recreational fishing industry challenged the 1999 Highly Migratory Species Fishery Management Plan for Atlanta Tunas, Swordfish, and Sharks (HMS FMP), regulations which were implemented by the U.S. Secretary of Commerce and promulgated by the National Marine Fisheries Service (NMFS). Plaintiffs contended that the HMS FMP set shark and tuna retention limits in violation of the Magnuson-Stevens Act and the Regulatory Flexibility Act (RFA). The United States District Court for the District of Columbia granted defendants' motion for summary judgment, however, holding that plaintiffs had failed to show that the HMS FMP violated either Act.

The Magnuson-Stevens Act was enacted in response to increased fishing of highly migratory species of fish, and includes both conservation and management measures to protect them. In part, the Act states that the Secretary of Commerce must assess the potential effects of conservation efforts on participants in affected fisheries and, if possible, lessen disadvantages to U.S. fishermen as compared to foreign competitors. Further, the Act promulgates National Standards to direct future conservation plans and subjects the actions taken by the Secretary of Commerce to judicial review. The RFA requires agencies to assess the effects of regulations on small business entities.

Plaintiffs in Evans argued that the HMS FMP violated the Magnuson-Stevens Act by falling short of several of the National Standards and the requirement to minimize foreign competition. Furthermore, they claimed that the retention limits violated the RFA because the NMFS failed to consider small business concerns or the economic impact of retention limits on the industry.

In granting defendants' motion for summary judgment, the court stated that plaintiffs had provided insufficient evidence and did not offer adequate justifications for any of their claims. The court showed deference to the Secretary of Commerce due to the strong governmental interest in conservation and regulation of marine resources. They acknowledged the reasonableness of the regulations and the broad discretion of the NMFS in setting the retention limits.

The result in Evans reveals not only the weight of governmental interests in the fishing industry, but the difficulty local fisheries face in collecting sufficient evidence to substantiate their claims with very limited resources. While the government must be receptive to the plight of the industry, local fisheries may ultimately benefit from stringent regulation through the protection of the species on which their livelihood depends. Though fisheries' primary concern is their economic welfare, Evans
suggests that perhaps the only way to reconcile the conflict is to employ a forward-looking approach and recognize the long-term benefits of conservation. Meanwhile, in order to best serve the fishing environment, Congress must aim to protect local businesses as well as the fish on which they depend.

Washington Court backs Department of Fish and Wildlife

This post was written by staff member Andrew S. Leung.

Down by the docks in the state of Washington, the natives grow restless. In the perpetual war between environmental interests and the interests of commercial fishermen, Mother Nature has won the latest battle. Thurston County Superior Court recently denied the petition of a group of commercial fishermen seeking a restraining order against the enforcement of Washington Department of Fish and Wildlife ("WDFW") regulations limiting the amount of Dungeness crab harvested per week. Jeremy Pawloski, Court upholds state's limits on crab catch, THE OLMPIAN, available at http://www.thenewstribune.com/news/local/story/869631.html.

At first glance, the WDFW restrictions do not seem unreasonable, as the current allotment of 4500 pounds per week is nearly double the initial allotment of 2500 pounds per week. Id. Nonetheless, Washington's commercial crab fishermen are disgruntled, claiming that their property rights were violated. Id. Plaintiffs' attorney alluded to an upcoming civil suit in which he planned to sue for economic compensation. Id.

Any suit based on the private citizen's right to the fisheries of a state seems doomed from the onset. Following the time tested doctrine of ratione soli, the Thurston County Superior Court based its decision on the premise that the Dungeness crabs belonged to the state, thus foreclosing the possibility of any property rights to said crabs vested in the private citizen. Washington courts have long held that "...fishermen do not have a 'vested' or 'natural' property [r]ight to fish [or] to take fish...." Puget Sound Gillnetters Ass'n v. Moos, 92 Wash.2d 939 at 947, 603 P.2d 819 at 824 (Wash. 1979). The court also warned that "...we must remember that the state, in its sovereign capacity, owns the fish in the waters of the state... [and] [f]ishermen have no private property rights in taking [fish]." Washington Kelpers Ass'n v. State, 81 Wash.2d 410 at 415, 502 P.2d 1170 at 1172 (Wash. 1972).

Furthermore the Washington Kelpers court found that "...the state owns the fish in its sovereign capacity as the representative of and for the benefit of all people in common." Id.,at416. In the present case, WDFW based the new restrictions on the finding that more than 50% of the crab catch was soft-shelled. See supra Pawloski. A Dungeness crab is soft only period immediate following its molt, but before it spawns for the season.

Despite the probable adverse economic effect upon the class of commercial crab fishermen, the court has reached an appropriate conclusion. The WDFW's finding essentially suggests that approximately half of the adult crabs harvested annually in the state of Washington have not yet had the opportunity to add progeny to state waters. The Washington Kelpers decision provides, "...if you don't regulate to reduce the total catch along the line, then your spawning escapement will suffer and your subsequent production will go down." Id., at 419. For now, Washington's commercial crab fishermen will have to tighten their belts so that future generations of crab fishermen will have something to wrap theirs around.