Enforcement Dissonance: Lobsters, the Legislature, and Federal Waters in State v. Thomas

Consider the following: You, a Maine resident, and your friend, a Massachusetts resident, have gone for a weekend trout fishing trip to Acadia National Park in Downeast Maine. The two of you are happily catching trout, and then each of you hook a bass and reel it in. Keeping the bass is illegal under Maine law but not banned by the National Park. Along comes a Maine game warden, who spies the two of you and cites only you with a fine for catching and keeping the bass. The warden says nothing to the Massachusetts resident who continues to fish, catching and keeping trout and bass, unmolested and without having his pockets lightened. A humorous scenario. Yet, an analogous enforcement dissonance is the norm in federal waters off of the coast of Maine with much larger consequences. The United States has the largest Exclusive Economic Zone (EEZ) in the world with 3.4 million square miles of ocean. This vast swath of ocean helps support a $24 billion dollar domestic fisheries industry. The American lobster, Homarus americanus, is a crustacean found in the Western North Atlantic. This species of lobster ranges along the coast from Labrador, Canada to Virginia, and within the EEZ, out along the outer continental shelf and slope, the lobster ranges from Georges Bank to North Carolina. The lobster has very valuable and delicious meat contained in its tail and claws and is the focus of an economically important fishery in the Northeast United States, including in the EEZ off of Maine. Yet, in the EEZ, there are some seemingly unfair fishing practices occurring. In the same waters, non-Maine fishermen are allowed to keep and sell lobsters caught as a result of dragging bycatch whereas Maine fishermen are not. This creates an inequitable economic advantage for out of state fishermen, pushes valuable fishery dollars out of Maine, and results in a lack of uniformity in fisheries conservation enforcement. In 2010, in State v. Thomas, the Maine Supreme Judicial Court, sitting as the Law Court, correctly adjudged that this issue is one for the legislature and not for the courts. Defendant Thomas was caught in the net of this patchwork fisheries law. This Note will examine the relevant law, discuss the Law Court’s decision in State v. Thomas, and suggest possible approaches the Maine legislature could take to resolve the issue