Mad as Hell

by Nicholas Walsh, PA

A few weeks ago I had a letter from a guy mad as hell about Maine’s lobster apprenticeship program. I get emails and letters like that fairly often: Angry, grammatically suspect, and asking exactly the right questions. So I thought I’d respond here.

Skip ahead if you already know this part. Maine limits entry to its lobster fishery. Dozens of hard-working sternmen and sternwomen, many with decades in the fishery, are on waiting lists for a license so they can fish their own boats. In many zones several licenses have to be retired before one new license will be issued! At the current rate of license turnover, some on the waiting list will literally die of old age before reaching the head of the license line.

At the same time, Maine has a student apprenticeship program which gives preference to young people starting out in the fishery. To qualify for a license under the student program, a young person must log 1,000 fishing hours before reaching age 20, if he or she has received a high school or equivalency diploma and has met additional apprentice program rules, some of which are special to the declared fishing zone. Alternatively, the apprentice lobsterman must have begun fishing before the age of 18 and have completed the program before the age of 23; other details apply, including school enrollment.

So, on to the guy’s question: “Is it legally right for the State of Maine to put non-taxpaying students before taxpaying adults who have paid their dues and been on the list longer than the student has been alive?”

The program is legal. Remember the concept of separation of powers? On both the state and the national level we have three separate branches of government: the executive (president or governor), the legislature (the House and Senate), and the judiciary (courts), and they don’t lightly tread on the others’ turf. The executive branch includes agencies like the Maine Department of Marine Resources: DMR works for the governor, you could accurately say.

A court won’t second-guess the legislature that made the law, and it won’t second-guess the executive agency that made the regulation which puts the law into effect, so long as the law or regulation is a rational attempt to address a legitimate governmental interest. That’s an incredibly easy standard for a law to meet. For a court to strike down a law or regulation it’s not nearly enough that a judge thinks a law or regulation is a foolish way to go about addressing a problem.

But that’s assuming the law doesn’t violate a higher law. Laws and rules that violate a higher law are illegal and a court will overturn them. At the state level there are two sources of higher law. The first is the United States Constitution: every law in the United States, local, state and federal, must comply with the Constitution. For example, the Commerce Clause prevents a state from enacting a law which has the effect of favoring its citizens over the citizens of other states, unless there’s some solid reason. The Fourteenth Amendment says a state law cannot discriminate against individuals on the basis of race, ethnicity or religion (these are “suspect classifications”), unless the law is narrowly tailored to address a compelling governmental interest, a very hard standard for a law to meet. There are of course many other rights in the U.S. Constitution, such as the First Amendment right to free speech, and if a state law or state regulation falls afoul of such a right the Constitution wins.

A state law also has to comply with any federal statutes regulating the same activity: the federal law is higher. Often there is a legal issue as to whether the federal laws are sufficiently extensive or encompassing to pre-empt the state laws also regulating a given activity.

Finally, a state agency regulation must comply with state statutory law (and the state constitution). A DMR rule created by the agency must comply with Title 12, which is where we find the statutes passed by the Legislature to regulate DMR.

So let’s do the analysis. Does Maine have a legitimate interest in regulating the lobster fishery? Of course. Is the student apprentice program a rational approach toward that regulation? Yes: it is a legitimate goal of government to encourage young people to enter the lobster fishery, and one rational way to do that is by giving young folks preferential treatment when it comes to licenses. Are older persons who want a lobster license a suspect class in the Constitutional sense, triggering strict scrutiny of the student apprenticeship law, as would be the case if the program denied lobster licenses to Muslims? Nope. Do other Constitutional prohibitions apply. I don’t think so. So the program is almost certainly constitutional.

But maybe the student apprenticeship program conflicts with higher federal statutory law. One possible vulnerability of the program is the federal Age Discrimination Act of 1975. This act addresses discrimination “on the basis of age in programs or activities receiving Federal financial assistance.”

Let’s assume Maine directly or indirectly receives federal money to manage lobsters, which I suppose it does. The student apprenticeship program discriminates on the basis of age, because it’s available only to young people. Sounds promising, but the Age Discrimination Act allows discrimination on the basis of age if the law “reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of such program or activity.” The student apprentice program seeks to bring young people into the fishery, and to do that the program has to treat people of different ages differently – the program has to discriminate on the basis of age.

The body of laws which limits the ability of courts to overrule the legislative and executive branches reflects the fact that ours is a representative democracy. Sure, if a citizen doesn’t like a law he or she can go to court and seek an order overturning the law, and as we’ve seen that’s an uphill battle. Or the citizen can organize with others to elect new office holders, lobby for passage of new or amended laws, and otherwise join the political fray. That’s exactly what the drafters of our Constitution intended.

Postscript: One little addition to my article last month about statutes of limitation (“Time-Barred”): A mariner’s claim for maritime personal injury, commonly known as a Jones Act claim, is barred just three years after the injury occurred.

Stay out of trouble.

Nicholas Walsh is an admiralty attorney with an office in Portland, Maine. He may be reached at 207-772-2191, or nwalsh@gwi.net.