Academic

Maine's "Resident Only" Lobstering Proposal: Constitutional?

By Calvin Massey

      The remote islands off the Maine coast are tough places to make a living.  Indeed, Maine is a tough place to make a living.  As a part-time resident of Maine I am sympathetic to the pressures afflicting hard-working Mainers.  As a constitutional law teacher I am sympathetic to preservation of constitutional values.  So here's the rub:  The New York Times has a story  about the conflict between island lobstermen and lobstermen from the mainland who set their traps in island waters.  That conflict led to one lobsterman shooting another earlier this summer on the island of Matinicus.  Under Maine law anyone with a commercial lobster license is allowed to set his traps wherever he pleases, but local customs are not so tolerant.  Unless a lobsterman is an accepted member of a local fishery, lines to traps are often cut (with the loss of the expensive trap and lines), and other illegal but effective suasions are applied.  To stem this discord, Maine has permitted Monhegan lobsterman to close their waters to off-islanders, but at the price of reducing their traps to 300 apiece (instead of the otherwise permissible 800 traps).  Now Matinicus lobsterman wish to close their waters to off-islanders.  Let's suppose Maine does so.  This effectively closes Matinicus waters to out-of-staters who may possess a Maine lobster license.  (Given the local nature of lobstering, there may well not be any such people, but you must remember I am a Con Law teacher, so I claim the right to deal in hypothetical facts.)   This would appear to trigger strict scrutiny under existing dormant commerce clause doctrine, requiring Maine to justify the closure by proof that no less discriminatory means are available to achieve its objective.  If that objective is to secure peace in the lobster waters, perhaps better law enforcement (albeit expensive and uncertain) might be an alternative.  Or, if line cutting is impossible to detect (it happens in the fog at 5am out at sea) perhaps a total closure of the fishery for some period is a less discriminatory alternative.  At any rate, I am skeptical that this islanders-only proposal can pass constitutional muster.

    As to a plaintiff (we're now back to the real world of litigation) a Maine off-islander may be able to bring suit.  The Court is clear that discrimination against some segments of a state population is effective discrimination against out-of-staters as well.  The Maine off-islander has the requisite personal injury in fact that is caused by the ban, and the ban is redressable by the courts.  The fact that the plaintiff is not an out-of-stater should not matter, given that the measure affects interstate commerce and banned in-staters equally.  But this is the ivory tower; in the harsh real world of lobstering litigation is unlikely to produce results.  It's a Hobbesian world out there in the fog in the Gulf of Maine.  

Full post as published by The Faculty Lounge on August 23, 2009 (boomark / email).