State v. Norton

• Decision Date: 26 February 1975
• Parties: STATE of Maine v. Paul P. NORTON and David Mahonen.
• Court: Maine Supreme Court

Page 607

335 A.2d 607

STATE of Maine v. Paul P. NORTON and David Mahonen.

Supreme Judicial Court of Maine.

Feb. 26, 1975.

Galen P. LaGassey, County Atty., Rockland, Charles K. Leadbetter, Asst. Atty. Gen., Crim. Div., Augusta, for plaintiff.

Pine Tree Legal Assistance, Inc. by Alexander P. Humphrey, IV, Bangor, for defendants.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, ARCHIBALD and DELAHANTY, JJ.

WEATHERBEE, Justice.

These appeals by two defendants from their convictions in the Superior Court in Knox County challenge the validity of a municipal ordinance for regulation and licensing of shellfishing enacted by the town of North Haven. The State asserts that the ordinance was enacted under the authority granted to municipalities by 12 M.R.S.A. §§ 4251 and 4252. This law permits municipalities to enter into shellfish conservation programs, alone or with other municipalities, with the Commissioner of the Department of Marine Resources, and to appropriate money for these purposes. Upon its appropriation of such money, the municipality is authorized to

'enact a municipal ordinance fixing the time when clams, quahogs and mussels may be taken from any or all of the coastal waters and flats within the municipality, except for those areas closed by regulation of the commissioner under section 3503 or section 3504. The ordinance must have the written approval of the commissioner before adoption and that approval must be filed with the municipal clerk prior to adoption. The ordinance may provide limitations on the amount of clams, quahogs and mussels which may be taken within the municipality, and may provide that municipal licenses be required for the taking of any such species within the municipality, and may determine the qualifications for the license, including residence requirements, and may fix the license fees. The ordinance may provide for the size of soft-shell clams which may be taken from the flats within the municipality.' 12 M.R.S.A. § 4252.

An earlier attack upon the constitutionality of this statute was made before us in State v. Alley, Me., 274 A.2d 718 (1971). Then-as here-the Appellant questioned the authority of the statute to empower municipalities to discriminate between residents and nonresidents in the harvesting of shellfish. We then puheld the constitutionality of the statute.

These Defendants distinguish the factual issues here from those in Alley and urge upon us several reasons why they believe that the North Haven ordinance cannot stand.

The parties have reduced the procedural developments and the trial testimony to a Stipulated Narrative Statement of Facts. North Haven is an island Community in Penobscot Bay which is served year-round by a public ferry to the mainland. It contains several clam flats of which the most productive (perhaps the most productive in the general area) is that located in Southern Harbor. The general Penobscot Bay area is one in which many people earn their livelihoods digging clams. However, the number of nonresident diggers in Southern Harbor is limited by the practical considerations of its distance from the mainland, the inconvenience of ferry schedules and the cost of transportation.

On October , 1971, the town of North Haven made application to the Commissioner for approval of its shellfish conservation plan, which represented that the town would make assistance available for surveys and for testing certain flats as to productivity and production and which further provided that conservation and trial projects might be initiated. The plan was approved by the Department. However, at the time of the enactment of the ordinance and at the time of trial no such surveys or tests had been made.

The town then enacted the ordinance now in question which establishes a resident licence fee of $5.00 and a nonresident fee of $50.00 for shellfish digging on North Haven Island, except that both residents and nonresidents are permitted to take one peck of shellfish a day for their personal or family use with the further exception that nonresidents are prohibited entirely from shellfishing in Southern Harbor. ¹ At the time of trial the town had issued one nonresident and six resident licenses but only two of the residents held state licenses to dig commercially.

These two Defendants, nonresidents of North Haven, agree that they did dig clams in Southern Harbor on the day charged but insist that the town could not effectively enact an ordinance which would discriminate against residents of other communities of the state. Their argument is: first, that the statute, 12 M.R.S.A. § 4252, does not authorize a municipality to exclude nonresidents from specified clam flats which remain open to residents and that if it does purport to do so, it cannot do so constitutionally; second, that such authority, if it could be found in the statutes, cannot be exercised by the municipality of North Haven since the prior actions of that municipality have irrevocably dedicated Southern Harbor to the public; third, that the ordinance is unconstitutional, both on its face and as applied, in that it violates the Defendants' rights to travel, live, and work where they choose; and fourth, that the ordinance violates their constitutional rights to equal protection of the law.

Legislative and Judicial History

It has long been understood that by virtue of the Colonial Ordinance of 1641 the title to land between the flux and reflux of the tide is held by the owner of the upland subject to 'the right of the public to use it for purposes of navigation and fishing.' Moulton v. Libbey, 37 Me. 472 (1854); Marshall v. Walker, 93 Me. 532, 45 A. 497 (1900); Blaney v. Rittall, Me., 312 A.2d 522 (1973). Our Court has consistently taken the position that the title to the shellfish in these tidal waters is in the State as representative of the people, exercising not only rights of sovereignty but also property. Moulton v. Libbey, supra; State v. Leavitt, 105 Me. 76, 72 A. 875 (1909); see also Comm. v. Hilton, 174 Mass. 29, 54 N.E. 362 (1889). In this capacity of trustee for the people, the State has the power to regulate and control its shellfisheries. State v. Peabody, 103 Me. 327, 69 A. 273 (1907); State v. Leavitt, supra. This was also the rationale as to a state's wildlife followed by the United States Supreme Court in McCready v. Virginia, 94 U.S. 391, 394, 24 L.Ed. 248 (1876) and reiterated in Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896).

From the time of the Colonial Ordinance of 1641 it was the policy of Massachusetts and, since our statehood, of Maine to consider the inhabitants of towns with clam flats as entitled to preferential treatment in their enjoyment and responsibility in their management. State v. Leavitt, supra; Commonwealth v. Hilton, supra. The Ordinance itself declared that

"every inhabitant that is a householder shall have free fishing and fowling in any great ponds, bays, coves and rivers, so far as the sea ebbs and flows within the precincts of the town where they dwell, unless the freemen of the same town or the general court have otherwise appropriated them." 105 Me. at 80, 72 A. at 877.

Our first Legislature placed the regulation of local clam harvesting in the respective municipal officers but included an assurance that inhabitants of the community may take shellfish at any times for their personal and family use.

P.L.1821, Vol. II, ch. 179, § 3 prohibited the taking of clams except

'(t)hat every inhabitant of each of the said towns without such permit shall have a right to take such other shell fish from their beds therein for the use of his or her family . . ..'

This pattern of legislative reliance upon a town's interest in a local resource to assure proper seasonal and quantitative harvesting combined with preferential right for a town's residents as against nonresidents was repeated, in slightly varying language throughout the state's history.

In 1903 the controlling statute read:

'Any town may at its annual meeting fix the times in which clams may be taken within its limits, and the prices for which its municipal officers shall grant permits therefor; and unless so regulated by vote, residents of the town may take clams without written permit. But without permit any inhabitant within his own town, or transient person therein, may take clams for the consumption of himself and family. This section does not apply to hotel keepers taking clams for the use of their hotels, . . ..' P.L.1901, ch. 284, § 37.

In 1906 the enabling statute (R.S.1903, ch. 41, § 34) was the same in all pertinent respects.

The town of Lamoine (purporting to act under the 1901 statute) and the town of Cushing (relying on the 1906 law) each enacted ordinances which effectively barred nonresidents from all digging on their respective flats. Each prosecuted a nonresident for violation of the ordinance and each nonresident defendant claimed the ordinance denied him equal protection. In each case this Court held that the enabling statutes were not broad enough to authorize a complete exclusion of nonresident diggers and did not reach the constitutional issue. State v. Bunker, 98 Me. 387, 57 A. 95 (1903); State v. Peabody, supra.

However, the equal protection issue rose again soon. The Legislature had accorded residents of the town of Scarboro unique statutory privileges by special legislation which closed the flats of Scarboro to all digging between April 1 and October 1 except by residents taking for their family use and local hotel keepers taking for hotel use. In State v. Leavitt, supra, a nonresident, non-hotel-keeping defendant who was convicted under the ordinance claimed on appeal that it denied him equal protection.

The Court reaffirmed the concept of the State's representation of its citizens in their ownership of the shellfish in the flats between high and low tides and the responsibility and power of the Legislature to regulate and control these...