Bid to protect lobstering by extending Maine's maritime jurisdiction could be unconstitutional
Cliff House Beach in Cape Elizabeth, Maine. (AnnMarie Hilton/Maine Morning Star)
Previous attempts to extend Maine's jurisdiction over coastal waters faced legal hurdles, but one lawmaker is trying again.
Two bills from Sen. Joseph Martin (R-Oxford) that seek to assert state sovereignty and ownership up to 12 and 24 nautical miles off the state's coast are scheduled to have a public hearing Thursday before the Legislature's Marine Resources Committee.
Just two years ago, similar legislation was brought forward and failed. At the time, both the Maine Department of Marine Resources and the Maine Lobstermen's Association raised concern that such a change is legally fraught and wouldn't result in the desired outcome of protecting lobster fisheries, leading both entities to oppose the bill.
The new proposal to extend state sovereignty to 12 nautical miles off the coast, LD 553, includes an emergency preamble that would allow the legislation to take effect immediately upon passage, rather than waiting the typical 90 days after adjournment.
The emergency language in the bill cites recent decisions from the National Marine Fisheries Service and New England Fishery Management Council to restrict herring fishing in the Gulf of Maine. Herring are commonly used as bait for commercial lobster fishing, so those decisions could have devastating consequences for Maine's lobster industry, the bill states.
The 2025 herring fishing quota for the region is a fraction of what it was expected to be in an effort to reduce the risk of overfishing and help rebuild the population, explained Jamie Cournane, a senior fishery analyst with the New England Fishery Management Council. The decision to lower the limit was motivated by a stock assessment conducted last year that showed the herring population was not doing as well as a 2022 assessment predicted.
However, Cournane said the council is continuing to assess new information about the herring population and could update its recommendations to the federal government.
Prior legislation made similar arguments that state authority should be extended to protect Maine's lobster industry.
The proposal to go as far as 24 miles, LD 687, was submitted as a concept draft and the complete language was not available as of Wednesday afternoon.
As with the 2023 legislation, neither proposal seems to 'have legs' because federal laws and previous court decisions don't permit state authority that far off the coast, said Charles Norchi, director of the Center for Oceans and Coastal Law at the University of Maine School of Law.
A 1975 U.S. Supreme Court case found that states on the Atlantic Coast only have jurisdiction up to three nautical miles from the low-water mark. Therefore, it would be unconstitutional for a state to assert jurisdiction beyond that, Norchi said.
That decision was based on two 1953 federal laws, namely the Submerged Lands Act and the Outer Continental Shelf Land Act, that establish the three-mile boundary.
In his testimony against the 2023 bill, Maine Department of Marine Resources Commissioner Patrick Keliher said a 1997 analysis from the Marine Law Institute of the University of Maine found that the state could not assert its sovereignty beyond the three-mile boundary because of the Submerged Lands Act.
Nothing in the current proposals makes Norchi believe this attempt would garner different results than the previous attempt.
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