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Daley v. Comm. of Marine Resources
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1997 ME 183
Docket:	Was-96-571
Submitted
on Briefs:	March 24, 1997
Decided:	August 8, 1997

Panel:  WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, DANA, and LIPEZ, JJ.

JOHN DALEY, et al. 

v.

COMMISSIONER, DEPARTMENT OF MARINE RESOURCES
STATE OF MAINE 

LIPEZ, J.

	[¶1] 	John Daley, et al.{1} (Daley) appeals from the judgment entered in
the Superior Court (Washington County, Alexander, J.) in favor of the State
in an action challenging the constitutionality of the 1995 Amendments to
the Maine Lobster Fisheries Act, 12 M.R.S.A. §§ 6301-6463 (1994 & Supp.
1996) (the 1995 Amendments).  Daley claims several errors in the ruling. 
We find none and affirm the judgment. 
 

I.

	[¶2]   In 1996 Daley filed a complaint making ten claims and seeking a
declaratory judgment, 14 M.R.S.A. §§ 5951-5963  (1980), that the 1995
Amendments aimed at conserving the lobster resource along the coast of
Maine, P.L. 1995, ch. 468 (effective March 1, 1996), were illegal and
unconstitutional.  The State responded with a motion to dismiss, and Daley
replied with both an opposition to the State's motion and a motion for a
summary judgment.  After a hearing, the court entered a summary judgment
in the State's favor.{2}   Daley's appeal concerns four of his original ten claims.  
 

II. 	

	[¶3]  When reviewing an appeal from the entry of a summary judgment
we view the evidence in the light most favorable to the party against whom
judgment was entered and review the trial court's decision for errors of law. 
Gonzales v. Commissioner, Dept. of Public Safety, 665 A.2d 681, 682 (Me.
1995).  When the record generates no issue of material fact and the moving
party is entitled to a judgment as a matter of law, we affirm.  Id. at 682-83. 

Family Member Exemption 

	[¶4]  The 1995 Amendments set a limit of 1,200 traps per boat, with a
phase-in period and exceptions for license-holders who are family members
fishing from the same boat.  12 M.R.S.A. § 6431-D(2)(B) (Supp. 1996).{3} 
Daley argues that the exemption draws an invidious distinction between
classes of Maine citizens and thereby violates the equal protection clauses of
the Maine and United States Constitutions.  
	[¶5]  The family member exemption to the boat trap limit implicates
neither a fundamental right nor an inherently suspect classification, and
therefore will survive an equal protection challenge if its different treatment
of similarly situated persons bears any conceivable rational relation to a
legitimate state interest.  Aseptic Packaging Council v. State, 637 A.2d 457,
459-60 (Me. 1994).  The family member exemption passes this test.  There
is no dispute that the 1995 Amendments advance legitimate state interests
in protecting the marine environment and the conservation of natural
resources.  See, e.g., Maine v. Taylor, 477 U.S. 131, 140 (1986) (upholding
statute prohibiting importation of out-of-state baitfish); State v. Richardson,
285 A.2d 842, 844-45 (Me. 1972) (state may legitimately prohibit
possession of lobsters on board any boat rigged for otter or beam trawling). 
Moreover, the provision does not draw an invidious distinction between
classes of Maine citizens.  The Legislature may have determined that the
tradition of family-related license-holders fishing from a single boat did not
pose a threat to the lobster resource, while allowing an unlimited number of
unrelated license-holders to do so would have placed too much pressure on
the fishing resource.{4}  See Aseptic Packaging, 637 A.2d at 460 (in
performing rational basis analysis, court may go beyond face of statute to
determine whether any conceivable state of facts exists to support it).

 Federal Preemption

	[¶6]  Daley contends that the 1995 Amendments' per-licensee and
boat trap limits, 12 M.R.S.A. §§ 6431-A(1), 6431-D(1), are preempted by
the Magnuson Fishery Conservation and Management Act, 16 U.S.C.A.
§§ 801-1883 (1985 & West Supp. 1997), in which Congress assumed
exclusive authority of fishery management within the federal "exclusive
economic zone" (EEZ), an area extending 197 miles beyond Maine's three-
mile maritime boundary.  16 U.S.C.A. § 1802(11).  We have already decided
that enactments such as the 1995 Amendments are not unconstitutional by
virtue of preemption,  State v. Hayes, 603 A.2d 869, 870-71 (Me. 1992), due
primarily to the Magnuson Act's preservation of the states' authority to
regulate state-registered vessels within the EEZ.  16 U.S.C.A. § 1856(a)(3).{5} 
Moreover, the federal lobster management plan contains no limit on the
number of traps that may be fished, authorizes concurrent state jurisdiction,
and expressly allows the enforcement of more restrictive state law
requirements.{6}   
	

Regulatory Taking 

	[¶7]  The 1995 Amendments set limits of 1,200 traps per license-
holder, 12 M.R.S.A. § 6431-A(1), and 1,200 traps per boat, id. § 6431-D(1),
with seven-year phase-in periods for both.  Id. §§ 6431-A(2), 6431-
D(2)(A)(1).  Daley argues that these provisions constitute regulatory takings
of property in violation of both the Maine and United States Constitutions
because many of the plaintiffs entered the lobstering industry long before
any limitations on traps had been contemplated, and the limitations
therefore interfere with their legitimate investment-backed expectations as
to the continued and profitable use of their boats and other equipment.  We
disagree because of the application of the three factors identified by the
United States Supreme Court as particularly significant to the regulatory
taking analysis.{7} See Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211,
224-25 (1986) (court must inquire as to economic impact of the regulation
on the claimant, extent to which the regulation has interfered with distinct
investment-backed expectations, and character of the governmental action).  
	[¶8]  First, there is nothing in the record which precludes the
conclusion that the governmental action at issue here is permissible
regulation that "adjusts the benefits and burdens of economic life to
promote the common good."  Id. at 225.  Second, the record on this
challenge presents no evidence that the Amendments will impose a severe
economic burden on the industry.  Maine Beer & Wine Wholesalers v. State,
619 A.2d 94, 99 & n.7 (Me. 1993).{8}  Third, Daley has not demonstrated a
legitimate investment expectation in a regulatory status quo.  See id. at 99;
see also Connolly, 475 U.S. at 227 ("Those who do business in the regulated
field cannot object if the legislative scheme is buttressed by subsequent
amendments to achieve the legislative end." (quotation omitted)).{9}  

	     Unconstitutional Vagueness and Delegation of Power 

	[¶9]  The 1995 Amendments authorize the Commissioner of the
Department of Marine Resources (DMR) to impose per-tag fees to cover the
costs of a tag system to identify and track traps, 12 M.R.S.A. §§ 6431-B,
6431-C, as well as the costs of establishing lobster management zones and 
lobster management policy councils.  12 M.R.S.A. §§ 6446, 6447.  Daley
contends that these provisions are void for vagueness and constitute an
improper delegation of the taxation power.  See Me. Const. art. IX, § 9 ("The
Legislature shall never, in any manner, suspend or surrender the power of
taxation.").  These arguments are unpersuasive.  There is nothing
unconstitutionally vague about the provision that empowers DMR to impose a
fee to defray the costs of administering its regulatory program.   Moreover,
because the fee is designed to pay for administrative costs and not to raise
general revenue, the Legislature did not improperly delegate its power to
tax to the DMR.  Board of Bar Overseers v. Lee, 422 A.2d 998, 1004 (Me.
1980), appeal dismissed, 450 U.S. 1036 (1981) (distinguishing between a
tax designed to raise revenue and license fees imposed to cover costs of
program administration pursuant to the government's police power to
regulate); Strater v. Town of York, 541 A.2d 938, 938 (Me. 1988) (same
principle in context of harbor usage fee). 	
	The entry is:
				Judgment affirmed.
                                                               
Attorney for plainitffs:

C. Clifton Fuller, III, Esq.
The Attorneys Office, P.A.
171 High Street, Suite 2
Belfast, ME 04915

Attorneys for defendant:

Andrew Ketterer, Attorney General
Thomas A. Harnett, Asst. Atty. Gen.
6 State House Station
Augusta, ME 04333-0006