Stavis Ipswich Clam Co. v. Green
| Decision Date | 28 March 1968 |
| Docket Number | Civ. A. No. 8-125. |
| Citation | 283 F. Supp. 586 |
| Parties | STAVIS IPSWICH CLAM CO., a Massachusetts Corporation, of Boston in the County of Suffolk, and Commonwealth of Massachusetts, Plaintiff, v. Ronald W. GREEN, Commissioner of Maine Department of Sea and Shore Fisheries, Defendant. |
| Court | U.S. District Court — District of Maine |
Sumner T. Bernstein, Portland, Me., for plaintiff.
Leon V. Walker, Jr., Asst. Atty. Gen., Augusta, Me., for defendant.
Before ALDRICH and COFFIN, Circuit Judges, and GIGNOUX, District Judge.
This action was brought under 28 U.S.C. § 2201 et seq. (1964) for a declaratory judgment that certain statutes of the State of Maine regulating the transportation, possession and sale of lobster meat within the state are unconstitutional and void insofar as they apply to the plaintiff, and for an order enjoining the defendant from enforcing these statutes against the plaintiff. As required by 28 U.S.C. § 2281 (1964), a three-judge District Court has been convened to hear the case.
The statutory provisions involved are Sections 4402, 4454 and 4456 of the Maine Sea and Shore Fisheries Laws. 12 M.R.S.A. §§ 4402, 4454 and 4456 (1964). Section 4402 provides for the licensing of persons, firms and corporations to remove lobster meat from the shell for sale, and forbids the shipment, transportation or possession of lobster meat removed from the shell for sale unless the meat was removed from the shell by a permit holder.1 Section 4454 requires that containers of lobster meat removed from the shell for sale must be labelled with the name and number of the permittee licensed under Section 4402, and prohibits, with limited exceptions, the possession, shipment or transportation of lobster meat removed from the shell for sale in containers which are not so labelled.2 Section 4456 provides that holders of wholesale seafood dealers' and processors' licenses may possess foreign lobster meat (defined as lobster meat which came from any other state or country) for the purpose of processing the meat into stews, newburgs, chowders or pies for the retail trade.3
The plaintiff, Stavis Ipswich Clam Co., is a Massachusetts corporation engaged in the packing and distribution of fresh seafood, notably lobster meat, at its business location in Massachusetts. The defendant, Ronald W. Green, is Commissioner of the Department of Sea and Shore Fisheries of the State of Maine, and is charged with enforcement of the statutory provisions in question. The plaintiff obtains large quantities of lobsters from Canada, removes the meat from the shells at its place of business in Massachusetts, and ships the lobster meat to customers in various other states for use or resale. It wishes to sell lobster meat to customers within Maine, and has applied to the defendant for a permit under Section 4402 to remove lobster meat from the shell at its place of business in Massachusetts. A permit has been denied on the sole ground that the plaintiff's meat removal operation is not carried on at a fixed location within the State of Maine.
In the present action plaintiff contends that if a non-resident processor cannot obtain a permit under Section 4402, the effect of that statute and of Sections 4454 and 4456 is to exclude foreign lobster meat from the Maine market for all purposes other than for processing into stews, newburgs, chowders or pies, in violation of the Commerce Clause (Art. 1, Sec. 8) and the Equal Protection and Privileges and Immunities Clauses of the Fourteenth Amendment to the United States Constitution. Plaintiff also urges that the Federal Government has pre-empted the field of regulation of traffic in Canadian lobster meat (see Reciprocal Trade Agreement with Canada, Nov. 15, 1935, Article VII, 49 Stat. 3963; Tariff Act of 1930, as amended 19 U.S.C. § 1351 (1964)), so that Maine is precluded from restricting the importation of lobster meat originating in Canada by the Supremacy Clause (Art. 6, Sec. 2) of the Constitution. Defendant contends that the provisions in question are conservation measures and are legitimate exercises of the police power for the general health, safety and welfare.
It appearing that the challenged statutory provisions had not been construed by the courts of the State of Maine and were capable of a construction which would avoid the federal constitutional issues raised by plaintiff,4 this Court initially abstained from decision in order that the parties might secure an authoritative construction of the statutes in the Maine courts. See Railroad Comm. of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Plaintiff thereupon instituted an action against the defendant in the Superior Court of Maine for the purpose of obtaining such a construction, expressly reserving the constitutional questions for determination by this Court in the event that the construction given the statutes by the Maine court should still require their decision. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). On report to the Supreme Judicial Court of Maine (See M.R.C.P. 72), that court accepted the case, subject to the reservation of the constitutional questions, and on January 9, 1968 filed its opinion, in which it held that: (1) the defendant's refusal to grant permits for the removal of lobster meat from the shell at places of business outside the State of Maine is permitted, but not required, by Section 4402; and (2) Sections 4402, 4454 and 4456 permit the transportation, possession or sale of foreign lobster meat in the State of Maine only for the purpose of processing into stews, newburgs, chowders or pies in the retail trade. Stavis Ipswich Clam Co. v. Green, 236 A.2d 708 (Me.1968). In so ruling, two of the Justices of the Maine court expressed the view that, as so construed, portions of the statutes were "clearly invalid and unenforceable for constitutional reasons." Id. at 712. (Concurring opinion of Webber, J.). However, a majority of the court felt that the limited submission precluded consideration of the federal constitutional issues. Id. at 711.
We agree with plaintiff that these statutes as construed by the Maine court place an unreasonable burden on interstate commerce in violation of the Commerce Clause. We, therefore, find it unnecessary to determine the issues raised under the Equal Protection, Privileges and Immunities and Supremacy Clauses.
It is now clear that the combined effect of Sections 4402, 4454 and 4456 is to exclude from the Maine market, except for the limited purposes permitted by Section 4456, lobster meat which has been removed from the shell without the state. Out-of-state processors are not entitled to permits under Section 4402. Without such permits, they cannot possibly comply with the provisions of Sections 4402 and 4454, which prohibit the possession, shipment or transportation of lobster meat removed from the shell, unless it was removed by a permit holder. As the concurring Justices of the Maine court observed, "the effect, whether intended or not is to create a monopoly of the market for Maine residents." Stavis Ipswich Clam Co. v. Green, supra at 712 (Concurring opinion of Webber, J.).
Such an insulation of the local market from interstate competition is an unreasonable burden on interstate commerce and a violation of the Commerce Clause of the United States Constitution unless the prohibition can be justified as a measure necessary to protect the local health, safety or welfare, and there do not exist reasonable, non-discriminatory alternatives adequate to protect these legitimate local interests. Dean Milk Co. v. Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951); State of Minnesota v. Barber, 136 U.S. 313, 10 S.Ct. 862, 34 L.Ed. 455 (1890); Miller v. Williams, 12 F.Supp. 236 (D.Md.1935). See Polar Ice Cream & Creamery Co. v. Andrews, 375 U.S. 361, 84 S.Ct. 378, 11 L. Ed.2d 389 (1964); H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949); Baldwin v. G. A. F. Seelig, 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935).5 In the present case defendant does not claim that the statutory provisions involved do not insulate the local market from the competition of lobster meat removed from the shell outside of Maine, but he does contend that these prohibitions are necessary to the enforcement of the strict Maine lobster conservation laws, enacted for the protection of the lobstery fishery, one of Maine's major food products industries. But this contention is not borne out by the record before the Court. Defendant's argument is that it is impossible to tell by an examination of the lobster meat whether or not it came from lobsters of legal size under Maine law;6 that inspection of the meat removal operation itself is the only means by which the size of the lobsters from which the meat has been removed can be determined with certainty;7 and that it is not practical or economically feasible to conduct such inspections of out-of-state concerns, even if it were within the defendant's jurisdiction to do so. Defendant recognizes that Maine has no legitimate concern with the exploitation of the lobster fishery of any other state or country. But he suggests that without the protection of these statutory provisions lobsters illegal in Maine could be caught in Maine waters and bootlegged to New Hampshire or Massachusetts,8 there to be converted into meat and shipped back into Maine for sale. Defendant also expresses concern that if foreign lobster meat is permitted in Maine, Maine lobstermen would be tempted to remove meat from lobsters of illegal size in violation of Maine law and sell this illegal meat within Maine. However, he was unable to show that the introduction of foreign lobster meat into the state would substantially encourage Maine fishermen to engage in these illicit operations or that they could not be effectively dealt with by other...
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...92 S.Ct. 1749, 32 L.Ed.2d 257 (1972) and Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973).In Stavis Ipswich Clam Co. v. Green, 283 F.Supp. 586 (1968) the United States District Court, District of Maine, convened as a three-Judge tribunal, abstained on such ground. In a s......
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