HomeMy WebLinkAboutCOM 0271.991 2012-2014 Margaret Wille ��<vo�;,.�, Phone No. Hilo: (808)961-8027
Council Member cR �� i• . Phone No. Waimea: (808) 887-2043
District 9-North and South Kohala "" ������'�� Fax No.: (808)887-2072
.
•��� � �" E-Mail: mwille @co.hawaii.hi.us
•••,,''•r.,4.a;
HAWAII COUNTY COUNCIL
County of Hawai`i
Hawaii County Building Holomua Center West Hawaii Civic Center Bldg.A
25 Aupuni Street 64-1067 Mamalahoa Highway,Suite C-5 74-5044 Ane Keohokalole Hwy.
Hilo, Hawaii 96720 Waimea, Hawaii 96743 Kailua-Kona, Hawaii.96740
7
w 2n
c
TO: J Yoshimoto, Chair
and Members of the Hawai`i County Council cr. �
=r-
FROM: Margaret Wille, Council Member Qo ��
DATE: August 6, 2013
SUBJECT: Additional Information Regarding Bill 79
Please find attached a copy of the Maine versus Taylor Supreme Court Case.
Thank you.
MW/dh
att
Comm. NQa7i• gq �
Ref.To; F r M
Serving the Interests of the People of Our Island Ref. Date AUG 0 6 2013
Hawai`i County Is An Equal Opportunity Provider And Employer
MAINE v.TAYLOR ET AL.
No. 85-62
SUPREME COURT OF THE UNITED STATES
477 U.S. 131; 106 S.Ct.2440;91 L.Ed.2d 110; 1986 U.S.LEXIS 111;54 U.S.L.W.4724
March 24, 1986,Argued
June 23, 1986,Decided
PRIOR HISTORY: APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT.
DISPOSITION: 752 F.2d 757,reversed.
CASE SUMMARYPROCEDURAL POSTURE:The State sought review of a decision of the United States
Court of Appeals for the First Circuit,which reversed defendant's conviction under 16 U.S.C.S. §
3372(a)(2)(A)on the ground that the underlying state statute,Me.Rev. Stat.Ann.tit. 12, § 7613,
impermissibly restricted interstate trade.
OVERVIEW:Defendant operated a bait business.Despite the state statute,Me.Rev. Stat.Ann.tit. 12, §
7613,prohibiting the importation of live baitfish,defendant arranged to have live bait delivered to him
from outside the state.The shipment was intercepted and defendant was indicted under§ 3(a)(2)(A)of the
Lacey Act Amendments, 16 U.S.C.S. §3372(a)(2)(A).Defendant's subsequent conviction was overturned
on the ground that the underlying state statute impermissibly restricted interstate trade.Upon its
determination that it had jurisdiction,the Supreme Court held that defendant's conviction was not clearly
erroneous since evidence showed that no alternative means existed to promote the local purpose as well
without discriminating against interstate commerce.The abstract possibility of developing acceptable
testing procedures did not make those procedures an available nondiscriminatory alternative.As such,the
state statute permissibly served a legitimate local purpose and defendant's conviction was proper.
OUTCOME: The Court reversed,holding that the state retained broad regulatory authority to protect the
health and safety of its citizens and the integrity of its natural resources.The evidence amply supported the
district court's findings that the statute served a legitimate local purpose that could not adequately be served
by available nondiscriminatory alternatives.
CORE TERMS:baitfish,fish,importation,ban,parasite,species,inspection,shipment,bait,import,
interstate commerce,wildlife,interstate trade,out-of-state,state statute,local purpose,nonnative,sampling,
shiner,salmonid,fisheries,golden,discriminate,commerce,Lacey Act,criminal case,experts testified,
nondiscriminatory,protectionism,environmental
DECISION:
Maine statute prohibiting importation of live baitfish into state held not to violate commerce clause.
SUMMARY:
The operator of a bait business in Maine arranged to have a quantity of live baitfish delivered to him from
outside the state,violating a Maine statute which prohibited the importation of such fish.A federal grand
jury indicted the operator for importing and conspiring to import the fish in violation of 3(a)(2)(A)of the
Lacey Act Amendments of 1981 (16 USCS 3372(a)(2)(A)),which makes it a federal crime to import fish
or wildlife in violation of state law.The operator moved to dismiss the indictment on the ground that the
state statute violated the commerce clause of the Federal Constitution(Art I, 8,cl 3);but a federal
magistrate,after conducting an evidentiary hearing,recommended that the motion be denied,finding(1)
that the state statute had a legitimate and substantial purpose in preventing the accidental introduction of
baitfish parasites or of nonnative fish species,which would have unpredictable effects on native fish
populations,and(2)that there were no less discriminatory means of protecting against these threats,as
adequate inspection methods were not currently available.Agreeing with those findings,the United States
District Court for the District of Maine denied the motion to dismiss(585 F Supp 393).The operator then
entered a conditional guilty plea,reserving the right to appeal the District Court's constitutional holding.
The United States Court of Appeals for the First Circuit reversed and remanded with instructions to dismiss
the indictment,holding that the state had not carried its substantial burden of proving that there were no
less discriminatory means of achieving its purpose(752 F2d 757).
On appeal,the United States Supreme Court reversed the judgment of the Court of Appeals setting aside
the operator's conviction.In an opinion by Blackmun,J.,joined by Burger,Ch.J.,and Brennan,White,
Marshall,Powell,Rehnquist,and O'Connor,JJ.,it was held that the state ban on importation of live baitfish
did not violate the commerce clause,as the evidence amply supported the District Court's findings that the
statute served a legitimate local interest which could not adequately be served by available
nondiscriminatory alternatives.
Stevens,J.,dissented,expressing the view that since the state had engaged in obvious discrimination
against out-of-state commerce, it should bear the burden of proof,and uncertainties as to the extent of the
danger to state wildlife and the feasibility of adequate inspection procedures should defeat the statute.
JUDGES:BLACKMUN,J.,delivered the opinion of the Court,in which BURGER,C.J.,and BRENNAN,
WHITE,MARSHALL,POWELL,REHNQUIST,and O'CONNOR,JJ.,joined. STEVENS,J.,filed a
dissenting opinion,post,p. 152.
OPINION BY: BLACKMUN
OPINION
[*I32] [***117] [**2444] JUSTICE BLACKMUN delivered the opinion of the Court.
Once again,a little fish has caused a commotion. See Hughes v.Oklahoma,441 U.S.322(1979);TVA v.
Hill,437 U.S. 153 (1978);Cappaert v.United States,426 U.S. 128(1976).The fish in this case is the
golden shiner,a species of minnow commonly used as live bait in sport fishing.
Appellee Robert J.Taylor(hereafter Taylor or appellee)operates a bait business in Maine.Despite a Maine
statute prohibiting the importation of live baitfish,nl he arranged to have 158,000 live golden shiners
delivered to him from outside the State.The shipment was intercepted,and a federal grand jury in the
District of Maine indicted Taylor for violating and conspiring to violate the Lacey Act Amendments of
1981,95 Stat. 1073, 16 U. S.C. §§3371-3378. Section 3(a)(2)(A)of those Amendments, 16 U. S.C. §
3372(a)(2)(A),HNlmakes it a federal crime"to import,export,transport,sell,receive,acquire,or purchase
in interstate or foreign commerce. . .any fish or wildlife taken,possessed,transported, [*133] or sold in
violation of any law or regulation of any State or in violation of any foreign law."
FOOTNOTES
nl HN2"A person is guilty of importing live bait if he imports into this State any live fish,including smelts,
which are commonly used for bait fishing in inland waters."Me.Rev. Stat.Ann.,Tit. 12,§ 7613(1981).
[***LEdHR1A] LEdHN[1A][1A]Taylor moved to dismiss the indictment on the ground that Maine's
import ban unconstitutionally burdens interstate commerce and therefore may not form the basis for a
federal prosecution under the Lacey Act.Maine,pursuant to 28 U.S.C. § 2403(b),intervened to defend the
validity of its statute,arguing that the ban legitimately protects the State's fisheries from parasites and
nonnative species that might be included in shipments of live baitfish.The District Court found the statute
constitutional and denied the motion to dismiss.United States v. Taylor,585 F.Supp.393 (Me.
1984).Taylor then entered a conditional plea of guilty pursuant to Federal Rule of Criminal Procedure
11(a)(2),reserving the right to appeal the District Court's ruling on the constitutional question.The Court of
Appeals for the First Circuit reversed,agreeing with Taylor that the underlying state statute impermissibly
restricts interstate trade.United States v.Taylor,752 F.2d 757(1985). Maine appealed.We set the case for
plenary review and postponed consideration of Taylor's challenges to our appellate jurisdiction.474 U.S.
943(1985).
Maine invokes our jurisdiction under [***118] 28 U. S.C. § 1254(2),which authorizes an appeal as of
right to this Court"by a party relying on a State statute held by a court of appeals to be invalid as repugnant
to the Constitution,treaties or laws of the United States."Appellee,however,contends that this provision
applies only to civil cases,and that, in any event,Maine lacks standing to appeal the reversal of a federal
conviction. These contentions both relate to the unusual procedural posture of the case:an appeal by a State
from the reversal of a federal conviction based on a violation of state law.We consider them in turn.
[**2445] [***LEdHR2] LEdHN[2][2] [***LEdHR3]LEdHN[3][3]First,despite its procedural
peculiarities,this case fits squarely within the plain terms of§ 1254(2):Maine relies on a state statute that
the Court of Appeals held to be unconstitutional. [*134] Although HN3statutes authorizing appeals as of
right to this Court are strictly construed,see,e.g.,Silkwood v.Kerr-McGee Corp.,464 U.S.238,247
(1984),nothing in the language or legislative history of§ 1254(2)suggests that its scope is limited to civil
litigation.In arguing for such a limitation,appellee relies principally on the fact that§§ 1254(1)and(3)--
which authorize discretionary review of cases from the Courts of Appeals by writ of certiorari and
certification,respectively--both apply explicitly to"any civil or criminal case."n2 Since this express
language is absent from§ 1254(2),appellee contends that Congress must have intended this Court's
appellate jurisdiction over cases from the courts of appeals to remain limited to civil cases,as indeed it was
limited prior to the 1925 enactment of§ 1254's predecessor.n3
FOOTNOTES
n2 Section 1254 reads in full:
HN4"Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:
"(1)By writ of certiorari granted upon the petition of any party to any civil or criminal case,before or after
rendition of judgment or decree;
"(2)By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to
the Constitution,treaties or laws of the United States,but such appeal shall preclude review by writ of
certiorari at the instance of such appellant,and the review on appeal shall be restricted to the Federal
questions presented;
"(3)By certification at any time by a court of appeals of any question of law in any civil or criminal case as
to which instructions are desired,and upon such certification the Supreme Court may give binding
instructions or require the entire record to be sent up for decision of the entire matter in controversy."
n3 Congress in 1925 amended§ 240(b)of the Judicial Code to read as follows:
HN5"Any case in a circuit court of appeals where is drawn in question the validity of a statute of any State,
on the ground of its being repugnant to the Constitution,treaties,or laws of the United States,and the
decision is against its validity,may,at the election of the party relying on such State statute,be taken to the
Supreme Court for review on writ of error or appeal;but in that event a review on certiorari shall not be
allowed at the instance of such party,and the review on such writ of error or appeal shall be restricted to an
examination and decision of the Federal questions presented in the case."Act of Feb. 13, 1925, § 1,43 Stat.
939.
Until then,appeals were allowed as of right from decisions of the courts of appeals only in civil cases
involving more than$ 1,000,and not arising under the diversity,admiralty,patent,or revenue jurisdiction
of the federal courts. See Act of Mar. 3, 1891, §6,26 Stat. 828.
The relevant portion of the 1925 Act was added on the floor of the Senate,and the debates surrounding the
amendment contain no suggestion that it was intended to apply only in civil cases. See 66 Cong.Rec.2753-
2754,2757,2919-2925 (1925).
[*135] [***LEdHR4] LEdHN[4][4]We find the argument unconvincing.While some statutes governing
this Court's jurisdiction,such as [***119] §§ 1254(1)and(3),expressly apply to both civil and criminal
cases,others are explicitly limited to civil actions.See,e.g.,28 U. S.C. §§ 1252 and 1253.The absence of
either sort of provision from § 1254(2)hardly demonstrates that Congress had only civil cases in mind,and
we see no reason to read such a limitation into the straightforward and unambiguous terms of the statute.
This is not a situation where "the sense of the statute and the literal language are at loggerheads,"or where
adherence to the plain terms of the statute"'would confer upon this Court a jurisdiction beyond what
"naturally and properly belongs to it.""'Heckler v.Edwards,465 U.S. 870,879(1984),quoting Florida
Lime&Avocado Growers,Inc.v.Jacobsen,362 U.S.73,94(1960)(Frankfurter,J.,dissenting), in turn
quoting American Security&Trust Co.v.District of Columbia,224 U.S.491,495 (1912). Section 1254(2)
serves to ensure that a state statute is struck down by the federal judiciary only when it is found invalid by
this Court,or when the parties acquiesce in the decision of a lower federal court.Federal nullification of a
state statute is a grave matter [**2446] whether it occurs in civil litigation or in the course of a criminal
prosecution,and review by this Court is particularly warranted in either event.n4
FOOTNOTES
n4 Even if this case fell outside the scope of 28 U. S.C. § 1254(2),we would still have discretion under 28
U. S.C. §2103 to grant review by writ of certiorari.See Doran v. Salem Inn,Inc.,422 U.S.922,927
(1975);El Paso v. Simmons,379 U.S.497,502-503 (1965).
[*136] [***LEdHR5] LEdHN[5][5] [***LEdHR6] LEdHN[6][6] [***LEdHR7]
LEdHN[7][7] [***LEdHR8] LEdHN[8][8]Appellee's second jurisdictional argument is based on the fact
that the only appellant before this Court is the State of Maine--only an intervenor in the District Court--
not the United States,which brought the original prosecution.n5 Since the United States and its attorneys
have the sole power to prosecute criminal cases in the federal courts,appellee contends that Maine may not
seek review of the Court of Appeals'reversal of his conviction.By statute,however,Maine intervened with
"all the rights of a party,"28 U. S.C. §2403(b),n6 and appeals may be taken to this Court under§ 1254(2)
by any"party relying on a State statute"held invalid under federal law by a Court of Appeals.We
previously have recognized that intervenors in lower federal courts may seek review in this [***120]
Court on their own,so long as they have"a sufficient stake in the outcome of the controversy"to satisfy the
constitutional requirement of genuine adversity.Bryant v.Yellen,447 U.S.352,368(1980); see [*137]
also,e.g.,Diamond v.Charles,476 U.S. 54,68(1986).Maine's stake in the outcome of this litigation is
substantial: if the judgment of the Court of Appeals is left undisturbed,the State will be bound by the
conclusive adjudication that its import ban is unconstitutional.See,e.g.,Stoll v.Gottlieb,305 U.S. 165
(1938).And although private parties,and perhaps even separate sovereigns,have no legally cognizable
interest in the prosecutorial decisions of the Federal Government,cf.,e.g.,Diamond v.Charles,supra,at
64-65;Linda R. S.v.Richard D.,410 U.S.614,619(1973),a State clearly has a legitimate interest in the
continued enforceability of its own statutes,see Diamond v.Charles,supra,at 65;Alfred L. Snapp& Son,
Inc.v.Puerto Rico ex rel.Barez,458 U.S. 592,601 (1982).Furthermore,because reversal of the judgment
of the Court of Appeals would result in the automatic reinstatement of appellee's guilty plea,the
controversy before us clearly remains live notwithstanding the Federal Government's decision to abandon
its own appeal.n7 We turn to the merits.
FOOTNOTES
n5 The United States filed a timely notice of appeal to this Court,App.311,but later moved in the Court of
Appeals to dismiss its appeal.Id.,at 313.This was"[b]ecause the Acting Solicitor General determined that
other cases were entitled to priority in selecting the limited number of cases the government would ask this
Court to review."Brief for United States 14-15.The Court of Appeals granted the Government's motion.
App.315.
n6 Title 28 U. S.C. §2403(b)provides:
HN6"In any action,suit,or proceeding in a court of the United States to which a State or any agency,
officer,or employee thereof is not a party,wherein the constitutionality of any statute of that State affecting
the public interest is drawn in question,the court shall certify such fact to the attorney general of the State,
and shall permit the State to intervene for presentation of evidence,if evidence is otherwise admissible in
the case,and for argument on the question of constitutionality.The State shall,subject to the applicable
provisions of law,have all the rights of a party and be subject to all liabilities of a party as to court costs to
the extent necessary for a proper presentation of the facts and law relating to the question of
constitutionality."
n7 The United States advises us that it does not intend to seek dismissal of the indictment if Maine prevails
in this Court.See Brief for United States 17,n. 17.
II
[***LEdHR9] LEdHN[9][9]HN7The Commerce Clause of the Constitution grants Congress the power
"[to]regulate Commerce with foreign Nations,and [**2447] among the several States,and with the
Indian Tribes."Art.I, § 8,cI.3.HN8"Although the Clause thus speaks in terms of powers bestowed upon
Congress,the Court long has recognized that it also limits the power of the States to erect barriers against
interstate trade."Lewis v.BT Investment Managers,Inc.,447 U.S.27,35 (1980).Maine's statute restricts
interstate trade in the most direct manner possible,blocking all inward shipments of live baitfish at the
State's border. Still,as both the District Court and the Court of [*138] Appeals recognized,this fact alone
does not render the law unconstitutional.HN9The limitation imposed by the Commerce Clause on state
regulatory power"is by no means absolute,"and"the States retain authority under their general police
powers to regulate matters of'legitimate local concern,'even though interstate commerce may be affected."
Id.,at 36.
[***LEdHR10] LEdHN[10][10]HNIOIn determining whether a State has overstepped its role in
regulating interstate commerce,this Court has distinguished between state statutes that burden interstate
transactions only incidentally,and those that affirmatively discriminate against such transactions.While
statutes in the first group violate the Commerce Clause only if the burdens they impose on interstate trade
are"clearly excessive in relation to the putative local benefits,"Pike v.Bruce Church,Inc.,397 U.S. 137,
142(1970),statutes in the second group are subject [***121] to more demanding scrutiny.The Court
explained in Hughes v. Oklahoma,441 U.S.,at 336,that HNl lonce a state law is shown to discriminate
against interstate commerce"either on its face or in practical effect,"the burden falls on the State to
demonstrate both that the statute "serves a legitimate local purpose,"and that this purpose could not be
served as well by available nondiscriminatory means.See also,e.g.,Sporhase v.Nebraska ex rel.Douglas,
458 U.S.941,957(1982);Hunt v.Washington State Apple Advertising Comm'n,432 U.S.333,353
(1977);Dean Milk Co.v.Madison,340 U.S.349,354(1951).
[***LEdHR11A] LEdHN[11A][11A]The District Court and the Court of Appeals both reasoned correctly
that,since Maine's import ban discriminates on its face against interstate trade,it should be subject to the
strict requirements of Hughes v.Oklahoma,notwithstanding Maine's argument that those requirements
were waived by the Lacey Act Amendments of 1981.It is well established that HN12Congress may
authorize the States to engage in regulation that the Commerce Clause would otherwise forbid. See,e.g.,
Southern Pacific Co.v.Arizona ex rel.Sullivan,325 U.S.761,769(1945).But because of the important
role [*1391 the Commerce Clause plays in protecting the free flow of interstate trade,this Court has
exempted state statutes from the implied limitations of the Clause only when the congressional direction to
do so has been"unmistakably clear." South-Central Timber Development,Inc.v.Wunnicke,467 U.S. 82,
91 (1984). The 1981 Amendments of the Lacey Act clearly provide for federal enforcement of valid state
and foreign wildlife laws,but Maine identifies nothing in the text or legislative history of the Amendments
that suggests Congress wished to validate state laws that would be unconstitutional without federal
approval.
[***LEdHR11B] LEdHN[11B][11B] [***LEdHR12A] LEdHN[12A][12A]Before this Court,Maine
concedes that the Lacey Act Amendments do not exempt state wildlife legislation from scrutiny under the
Commerce Clause. See Reply Brief for Appellant 3,n.2.The State insists,however,that the Amendments
should lower the intensity of the scrutiny that would otherwise be applied.We do not agree.An
unambiguous indication of congressional intent is required before a federal statute will be read to authorize
otherwise invalid state legislation,regardless of whether the purported authorization takes [**2448] the
form of a flat exemption from Commerce Clause scrutiny or the less direct form of a reduction in the level
of scrutiny.Absent"a clear expression of approval by Congress,"any relaxation in the restrictions on state
power otherwise imposed by the Commerce Clause unacceptably increases "the risk that unrepresented
interests will be adversely affected by restraints on commerce."South-Central Timber,supra,at 92.
In this case,there simply is no unambiguous statement of any congressional intent whatsoever"to alter the
limits of state power otherwise imposed by the Commerce Clause,"United States v.Public Utilities
Comm'n of California,345 U.S.295,304(1953).In arguing to the contrary, [***122] Maine relies almost
exclusively on the following findings in the Senate Report on the Lacey Act Amendments:
[*140] "It is desirable to extend protection to species of wildlife not now covered by the Lacey Act,and to
plants which are presently not covered at all. States and foreign government are encouraged to protect a
broad variety of species.Legal mechanisms should be supportive of those governments." S.Rep.No.97-
123,pp.3-4(1981).
[***LEdHR12B] LEdHN[12B][12B]Maine reads this passage,particularly the last sentence,to direct
federal courts to treat state wildlife laws more leniently.We find this interpretation not only less than
obvious but positively strained;by far the more natural reading of the last sentence is that it refers only to
the availability of federal investigative and prosecutorial resources to enforce valid state wildlife laws.The
passage certainly does not make "unmistakably clear"that Congress intended in 1981 to alter in any way
the level of Commerce Clause scrutiny applied to those laws.Maine's ban on the importation of live
baitfish thus is constitutional only if it satisfies the requirements ordinarily applied under Hughes v.
Oklahoma to local regulation that discriminates against interstate trade:the statute must serve a legitimate
local purpose,and the purpose must be one that cannot be served as well by available nondiscriminatory
means.
III
The District Court found after an evidentiary hearing that both parts of the Hughes test were satisfied,but
the Court of Appeals disagreed.We conclude that the Court of Appeals erred in setting aside the findings of
the District Court.To explain why,we need to discuss the proceedings below in some detail.
A
The evidentiary hearing on which the District Court based its conclusions was one before a Magistrate.
Three scientific experts testified for the prosecution and one for the defense.The prosecution experts
testified that live baitfish imported [*141] into the State posed two significant threats to Maine's unique
and fragile fisheries.n8 First,Maine's population of wild fish--including its own indigenous golden
shiners--would be placed at risk by three types of parasites prevalent in out-of-state baitfish,but not
common to wild fish in Maine. See,e.g.,App. 39-55.n9 Second,nonnative species inadvertently included
in shipments of live baitfish could disturb Maine's aquatic ecology to an unpredictable extent by competing
with native fish for food or habitat,by preying on native species,or by disrupting the [***123]
environment in [**2449] more subtle ways. See,e.g.,id.,at 59-70, 141-149.n10
FOOTNOTES
n8 One prosecution witness testified that Maine's lakes contain unusually clean water and originally
supported"a rather delicate community of just a few species of fish."App.57.Another stressed that"no
other state . . .has any real landlocked salmon fishing.You come to Maine for that or you live in Maine for
that."Id.,at 137.
n9 Two of these types of parasites were found in appellee's confiscated shipment of golden shiners. See
United States v.Taylor,585 F.Supp.393,395-396(Me. 1984).
n10 Although appellee's shipment was not found to contain any fish other than golden shiners,it did
contain"some polliwogs and . . .some crustacean crawfish."App.69.There was testimony suggesting that
these could pose the same ecological risks as nonnative fish. See id.,at 70.
The prosecution experts further testified that there was no satisfactory way to inspect shipments of live
baitfish for parasites or commingled species.nil According to their testimony,the small size of baitfish
and the large quantities in which they are shipped made inspection for commingled species "a physical
impossibility."Id.,at 81.n12 Parasite inspection posed a separate set of difficulties because the
examination procedure required destruction of the fish.Id.,at 81-82, 195. [*142] Although statistical
sampling and inspection techniques had been developed for salmonids(i.e.,salmon and trout),so that a
shipment could be certified parasite-free based on a standardized examination of only some of the fish,no
scientifically accepted procedures of this sort were available for baitfish. See,e.g., id.,at 71, 184, 193-194.
n13
FOOTNOTES
n 1l The expert who examined appellee's shipment testified that,although his inspection of the shipment
revealed only two of the three parasites he described as prevalent in baitfish outside Maine, "I certainly
could not put my signature on a certificate to say that[none of the third parasite]was present in that lot."
Id.,at 85.
n12 The shipment intercepted in this case contained approximately 158,000 fish,with about 70 specimens
to the pound.Id.,at 80.
n13 According to the prosecution testimony,the design of sampling and inspection techniques must take
into account the particular parasites of concern,and baitfish parasites differ from salmonid parasites. See,e.
g., id.,at 184, 193-194.Appellee's expert agreed.Id.,at 237,265-267.There was also testimony that the
physical layout of bait farms makes inspection at the source of shipment particularly difficult,and that
border inspections are not feasible because the fish would die in the time it takes to complete the tests.Id.,
at 75-79.
Appellee's expert denied that any scientific justification supported Maine's total ban on the importation of
baitfish.Id.,at 241.He testified that none of the three parasites discussed by the prosecution witnesses
posed any significant threat to fish in the wild,id.,at 206-212,228-232,and that sampling techniques had
not been developed for baitfish precisely because there was no need for them.Id.,at 265-266.He further
testified that professional baitfish farmers raise their fish in ponds that have been freshly drained to ensure
that no other species is inadvertently collected.Id.,at 239-240.
Weighing all the testimony,the Magistrate concluded that both prongs of the Hughes test were satisfied,
and accordingly that appellee's motion to dismiss the indictment should be denied.Appellee filed
objections,but the District Court,after an independent review of the evidence,reached the same
conclusions.First,the court found that Maine"clearly has a legitimate and substantial purpose in
prohibiting the importation of live bait fish,"because"substantial uncertainties" surrounded the effects that
baitfish parasites would have on the State's unique population of wild fish,and the consequences of
introducing nonnative species were similarly [*143] unpredictable.585 F.Supp.,at 397.n14 Second,
[***124] the court concluded that less discriminatory means of protecting against these threats were
currently unavailable,and that, in particular,testing procedures for baitfish parasites had not yet been
devised.Id.,at 398.Even if procedures of this sort [**2450] could be effective,the court found that their
development probably would take a considerable amount of time.Id.,at 398,n. 11.n15
FOOTNOTES
n14 For several reasons,the District Court discounted the testimony of appellee's expert that baitfish
parasites did not pose so serious a threat as disease organisms found in salmonids.The court noted that
"considerable scientific debate"surrounded even the threat posed by salmonid diseases,that appellee's
expert testified largely about the effects that baitfish parasites had in commercial hatcheries rather than in
the wild,and that he was unfamiliar with northeast fisheries.585 F.Supp.,at 397.
n15 While the District Court approved the Magistrate's general finding that"there are no obviously
workable alternatives to the outright prohibition of importation,"id.,at 398,neither the court nor the
Magistrate made any specific finding as to whether Maine could adequately protect against the inadvertent
introduction of nonnative species by allowing baitfish to be imported only from professional bait farmers
using freshly drained ponds.There was conflicting evidence on this point.Appellee's expert suggested that
such methods largely eliminated the problem of commingled species,App.239-240,but a prosecution
witness testified that complete success was "unlikely."Id.,at 170. See also id.,at 150(prosecution
testimony that shipments cannot be screened reliably for commingled species because"[this] is a business.
You have living material that you have to move;you can't hold them in tanks and this kind of thing for any
length of time").We are in no position to resolve this factual dispute,and we conclude in any event that the
District Court's findings regarding parasites adequately support the constitutionality of the challenged
statute.
Although the Court of Appeals did not expressly set aside the District Court's finding of a legitimate local
purpose, it noted that several factors "cast doubt"on that finding.752 F.2d,at 762.First,Maine was
apparently the only State to bar all importation of live baitfish. See id.,at 761. Second,Maine accepted
interstate shipments of other freshwater fish,subject to an inspection requirement.Third, "an aura [*144]
of economic protectionism"surrounded statements made in 1981 by the Maine Department of Inland
Fisheries and Wildlife in opposition to a proposal by appellee himself to repeal the ban.Ibid.Finally,the
court noted that parasites and nonnative species could be transported into Maine in shipments of
nonbaitfish,and that nothing prevented fish from simply swimming into the State from New Hampshire.
Id.,at 762,n. 12.
Despite these indications of protectionist intent,the Court of Appeals rested its invalidation of Maine's
import ban on a different basis,concluding that Maine had not demonstrated that any legitimate local
purpose served by the ban could not be promoted equally well without discriminating so heavily against
interstate commerce. Specifically,the court found it"difficult to reconcile"Maine's claim that it could not
rely on sampling and inspection with the State's reliance on similar procedures in the case of other
freshwater fish.Id.,at 762.n16
FOOTNOTES
n16 The court also noted that"a restriction on the number and size of importations would be less restrictive
than a total ban,"752 F.2d,at 762,but it identified no reason to believe that such a restriction would protect
against parasites and commingled species as effectively as a ban.
Following the reversal of appellee's conviction,Maine and the United States petitioned for rehearing on the
ground that the Court of Appeals had improperly disregarded the District Court's findings of fact.The court
denied the petitions,concluding that,since the unavailability of a less discriminatory alternative"was a
mixed finding of law and [***125] fact," a reviewing court"was free to examine carefully the factual
record and to draw its own conclusions." Id.,at 765.
B
[***LEdHR13] LEdHN[13][13] [***LEdHR14]LEdHN[14][14]HN13Although the proffered
justification for any local discrimination against interstate commerce must be subjected to"the strictest
scrutiny,"Hughes v.Oklahoma,441 U.S.,at 337,the empirical component of that scrutiny,like any other
form of factfinding, "'is the basic responsibility of district courts, [*145] rather than appellate courts,'"
Pullman-Standard v. Swint,456 U.S.273,291 (1982),quoting DeMarco v.United States,415 U.S.449,
450,n.(1974).As this Court frequently has emphasized,HN14appellate courts are not to decide factual
questions de novo,reversing any findings they would have [**2451] made differently. See,e.g.,
Anderson v.Bessemer City,470 U.S. 564,573(1985);Zenith Radio Corp.v.Hazeltine Research,Inc.,395
U.S. 100, 123 (1969).HN15The Federal Rules of Criminal Procedure contain no counterpart to Federal
Rule of Civil Procedure 52(a),which expressly provides that findings of fact made by the trial judge "shall
not be set aside unless clearly erroneous."But the considerations underlying Rule 52(a)--the demands of
judicial efficiency,the expertise developed by trial judges,and the importance of first-hand observation,
see Anderson,supra,at 574-575 --all apply with full force in the criminal context,at least with respect to
factual questions having nothing to do with guilt.Accordingly,I-IN16the "clearly erroneous" standard of
review long has been applied to nonguilt findings of fact by district courts in criminal cases. See Campbell
v.United States, 373 U.S.487,493 (1963);2 C.Wright,Federal Practice and Procedure §374(2d ed.
1982). We need not decide now whether all such findings should be reviewed under the"clearly erroneous"
standard,because appellee concedes that the standard applies to the factual findings made by the District
Court in this case. See Tr.of Oral Arg.27.We note,however,that no broader review is authorized here
simply because this is a constitutional case,or because the factual findings at issue may determine the
outcome of the case. See Bose Corp.v.Consumers Union of United States,Inc.,466 U.S.485,501 (1984);
Pullman-Standard v. Swint,456 U.S.,at 287.n17
FOOTNOTES
n17 In support of its conclusion that it"was free to examine carefully the factual record and to draw its own
conclusions," id.,at 765,the Court of Appeals cited Bacchus Imports,Ltd.v.Dias,468 U.S.263(1984),
and Boston Stock Exchange v. State Tax Comm'n,429 U.S.318(1977).The question in each of these cases
was whether a given set of facts amounted to discrimination forbidden by the Commerce Clause; in neither
case did this Court reject underlying factual findings made by the trial court. Indeed,there were no such
findings to reject--the facts were stipulated in Bacchus,see 468 U.S.,at 269,and Boston Stock Exchange
was decided on a motion to dismiss,see 429 U.S.,at 320.
[*146] No matter how one describes the abstract issue whether"alternative means could promote this
local purpose [***126] as well without discriminating against interstate commerce,"Hughes v.
Oklahoma,441 U.S.,at 336,the more specific question whether scientifically accepted techniques exist for
the sampling and inspection of live baitfish is one of fact,and the District Court's finding that such
techniques have not been devised cannot be characterized as clearly erroneous.Indeed,the record probably
could not support a contrary finding.Two prosecution witnesses testified to the lack of such procedures,
and appellee's expert conceded the point,although he disagreed about the need for such tests. See App. 74-
75, 184,265-266.That Maine has allowed the importation of other freshwater fish after inspection hardly
demonstrates that the District Court clearly erred in crediting the corroborated and uncontradicted expert
testimony that standardized inspection techniques had not yet been developed for baitfish.This is
particularly so because the text of the permit statute suggests that it was designed specifically to regulate
importation of salmonids,for which,the experts testified,testing procedures had been developed.n18
FOOTNOTES
n18 The statute provides: "The commissioner may grant permits"for the importation of freshwater fish
upon an application that describes the fish and their source and includes"[a] statement from a recognized
fish pathologist,from a college or university,from a state conservation department or from the United
States Fish and Wildlife Service,certifying that the fish. . .are from sources which show no evidence of
viral hemorrhagic septicemia,infectious pancreatic necrosis,infectious hematopoietic necrosis,Myxosomo
cerebralis or other diseases which may threaten fish stocks within the State."Me.Rev. Stat.Ann.,Tit. 12,§
7202(1981)(emphasis added).The listed diseases all were identified at the hearing before the Magistrate
as salmonid disorders. See App. 193.
[*147] [**2452] Before this Court,appellee does not argue that sampling and inspection procedures
already exist for baitfish;he contends only that such procedures "could be easily developed."Brief for
Appellee 25.Perhaps this is also what the Court of Appeals meant to suggest.Unlike the proposition that
the techniques already exist,the contention that they could readily be devised enjoys some support in the
record. Appellee's expert testified that developing the techniques "would just require that those experts in
the field . . .get together and do it."App.271.He gave no estimate of the time and expense that would be
involved,however,and one of the prosecution experts testified that development of the testing procedures
for salmonids had required years of heavily financed research.See id.,at 74.In light of this testimony,we
cannot say that the District Court clearly erred in concluding,585 F.Supp.,at 398,n. 11,that the
development of sampling and inspection techniques for baitfish could be expected to take a significant
amount of time.
[***LEdHR15] LEdHN[15][15]More importantly,we agree with the District Court that the"abstract
possibility,"id.,at 398,of developing acceptable testing procedures,particularly when there is no
assurance as to their effectiveness,does not make those procedures an"[available] . . .nondiscriminatory
[alternative],"Hunt,432 U.S.,at 353,for purposes of the Commerce Clause.HN17A State must make
reasonable efforts to avoid restraining the free flow of commerce across its borders,but it is not required to
develop new and unproven means of protection at an [***127] uncertain cost.Appellee,of course,is free
to work on his own or in conjunction with other bait dealers to develop scientifically acceptable sampling
and inspection procedures for golden shiners; if and when such procedures are developed,Maine no longer
may be able to justify its import ban.The State need not join in those efforts,however,and it need not
pretend they already have succeeded.
[*148] C
[***LEdHR16A] LEdHN[16A][16A]Although the Court of Appeals did not expressly overturn the
District Court's finding that Maine's import ban serves a legitimate local purpose,appellee argues as an
alternative ground for affirmance that this finding should be rejected.After reviewing the expert testimony
presented to the Magistrate,however,we cannot say that the District Court clearly erred in finding that
substantial scientific uncertainty surrounds the effect that baitfish parasites and nonnative species could
have on Maine's fisheries.Moreover,we agree with the District Court that Maine has a legitimate interest
in guarding against imperfectly understood environmental risks,despite the possibility that they may
ultimately prove to be negligible. "[The]constitutional principles underlying the commerce clause cannot
be read as requiring the State of Maine to sit idly by and wait until potentially irreversible environmental
damage has occurred or until the scientific community agrees on what disease organisms are or are not
dangerous before it acts to avoid such consequences."585 F.Supp.,at 397.
[***LEdHR17A] LEdHN[17A][17A] [***LEdHR18A]LEdHN[18A][18A]Nor do we think that much
doubt is cast on the legitimacy of Maine's purposes by what the Court of Appeals took to be signs of
protectionist intent. Shielding in-state industries from out-of-state competition is almost never a legitimate
local purpose,and state laws that amount to"simple economic protectionism[**2453] "consequently have
been subject to a"virtually per se rule of invalidity."Philadelphia v.New Jersey,437 U.S.617,624(1978);
accord,e.g.,Minnesota v.Clover Leaf Creamery Co.,449 U.S.456,471 (1981).n19 But [*149]
[***128] there is little reason in this case to believe that the legitimate justifications the State has put
forward for its statute are merely a sham or a"post hoc rationalization."Hughes,441 U.S.,at 338,n.20.In
suggesting to the contrary,the Court of Appeals relied heavily on a 3-sentence passage near the end of a
2,000-word statement submitted in 1981 by the Maine Department of Inland Fisheries and Wildlife in
opposition to appellee's proposed repeal of the State's ban on the importation of live baitfish:
"[We]can't help asking why we should spend our money in Arkansas when it is far better spent at home?It
is very clear that much more can be done here in Maine to provide our sportsmen with safe,home-grown
bait.There is also the possibility that such an industry could develop a lucrative export market in
neighboring states."'752 F.2d,at 760,quoting Baitfish Importation:The Position of the Maine Department
of Inland Fisheries and Wildlife,App.294,309-310.
We fully agree with the Magistrate that"[these]three sentences do not convert the Maine statute into an
economic protectionism [*150] measure."App.to Juris.Statement E-6,n.4.n20 As the Magistrate
pointed out,the context of the statements cited by appellee"reveals[they]are advanced not in direct
support of the statute,but to counter the argument that inadequate bait supplies in Maine require acceptance
of the environmental [**2454] risks of imports.Instead,the Department argues,Maine's own bait supplies
can be increased."Ibid.Furthermore,the comments were made by a state administrative agency long after
the statute's enactment,and thus constitute weak evidence of legislative intent in any event. See ibid.n21
[***LEdHR17B] LEdHN[17B][17B] [***LEdHR18B] LEdHN[18B][18B]
FOOTNOTES
n19 This rule has been applied not only to laws motivated solely by a desire to protect local industries from
out-of-state competition,but also to laws that respond to legitimate local concerns by discriminating
arbitrarily against interstate trade,for"the evil of protectionism can reside in legislative means as well as
legislative ends."Philadelphia v.New Jersey,437 U.S.,at 626.The Court has held,for example,that New
Jersey may not conserve the disposal capacity of its landfill sites by banning importation of wastes,see
ibid.,and that Oklahoma may not fight depletion of its population of natural minnows by prohibiting their
commercial exportation,see Hughes v.Oklahoma,441 U.S.322(1979).In each case,out-of-state residents
were forced to bear the brunt of the conservation program for no apparent reason other than that they lived
and voted in other States. See Philadelphia v.New Jersey,437 U.S.,at 629;Hughes,441 U.S.,at 337-338,
and n.20.Not all intentional barriers to interstate trade are protectionist,however,and HN18the Commerce
Clause"is not a guaranty of the right to import into a state whatever one may please,absent a prohibition
by Congress,regardless of the effects of the importation upon the local community."Robertson v.
California,328 U.S.440,458(1946).Even overt discrimination against interstate trade may be justified
where,as in this case,out-of-state goods or services are particularly likely for some reason to threaten the
health and safety of a State's citizens or the integrity of its natural resources,and where"outright
prohibition of entry,rather than some intermediate form of regulation,is the only effective method of
[protection]."Lewis v.BT Investment Managers,Inc.,447 U.S.27,43 (1980).
n20 The District Court did not address appellee's argument that the import ban was protectionist,because it
did not believe that appellee had objected to the Magistrate's rejection of that argument. See 585 F.Supp.,at
395,n.5.The Court of Appeals disagreed,concluding that appellee's objections to the Magistrate's
recommended decision incorporated all the arguments included in his motion to dismiss. See 752 F.2d,at
760,n.7.In the objections he filed with the District Court,appellee did not specifically contend that the
statute was protectionist,but he concluded by asking that the indictment be dismissed"[for]the reasons
stated herein and also for those reasons stated in Defendant's Memorandum of Law in Support of Motion to
Dismiss."Defendant's Objection to the Magistrate's Recommended Decision on Defendant's Motion to
Dismiss Indictment 4(Mar. 12, 1984)(emphasis added).Because we think the Magistrate was clearly right
to reject the argument that Maine's bait statute constitutes economic protectionism,we need not decide
whether this catchall language sufficed to preserve the argument for later review.Cf.Thomas v.Arn,474
U.S. 140, 148-149(1985).
n21 The import ban was originally enacted in 1959. See 1959 Me.Acts,ch. 112.
[***LEdHR16B] LEdHN[16B][16B]The other evidence of protectionism identified by the Court of
Appeals is no more persuasive.The fact that Maine allows importation of salmonids,for which
standardized sampling and inspection procedures are available,hardly demonstrates that Maine has no
legitimate interest in prohibiting the importation of baitfish,for which such procedures have not yet been
devised.Nor is this demonstrated by the fact that [***129] other States may not have enacted similar
bans,especially [*151] given the testimony that Maine's fisheries are unique and unusually fragile.n22
Finally, it is of little relevance that fish can swim directly into Maine from New Hampshire.As the
Magistrate explained: "The impediments to complete success . . .cannot be a ground for preventing a state
from using its best efforts to limit[an environmental]risk."Id.,at E-10,n. 8.
FOOTNOTES
n22 Although Maine's flat statutory ban on the importation of all live baitfish is apparently unique,
Minnesota prohibits the use of imported minnows for bait purposes "[except]as otherwise specifically
permitted,"Minn. Stat. § 101.42,subd.6(1984),and several other States require administrative approval
for the importation and introduction of any live fish,see,e.g.,Utah Code Ann. §23-15-12(1984);Va.
Code§28.1-183.2(1985);Wis. Stat. §29.535 (Supp. 1985);cf. S.D.Codified Laws§41-14-30(1977)
(minnows may be transported"into or through South Dakota"only pursuant to a 12-hour permit).Other
States have granted authority to their wildlife agencies to prohibit the importation of particular species.See,
e.g.,Ala. Code§9-2-13 (1980);N.C.Gen. Stat. § 113-160(1983);cf.Nev.Rev. Stat. § 503.310(1)(1985)
("The [state wildlife] commission is empowered to regulate or prohibit the use of live bait in fishing to the
end that no undesirable species of fish intentionally or unintentionally may be introduced into the public
waters of this state").
IV
[***LEdHR1B] LEdHN[IB][1B]The Commerce Clause significantly limits the ability of States and
localities to regulate or otherwise burden the flow of interstate commerce,but it does not elevate free trade
above all other values.HN19As long as a State does not needlessly obstruct interstate trade or attempt to
"place itself in a position of economic isolation,"Baldwin v.G.A.F. Seelig,Inc.,294 U.S.511,527(1935),
it retains broad regulatory authority to protect the health and safety of its citizens and the integrity of its
natural resources.The evidence in this case amply supports the District Court's findings that Maine's ban on
the importation of live baitfish serves legitimate local purposes that could not adequately be served by
available nondiscriminatory alternatives.This is not a case of arbitrary discrimination against interstate
commerce;the [*152] record suggests that Maine has legitimate reasons, "apart from their origin,to treat
[out-of-state baitfish]differently,"Philadelphia v.New Jersey,437 U.S.,at 627.The judgment of the Court
of Appeals setting aside appellee's conviction is therefore reversed.
It is so ordered.
DISSENT BY: STEVENS
DISSENT
JUSTICE STEVENS,dissenting.
There is something fishy about this case.Maine is the only State in the Union that blatantly discriminates
against out-of-state baitfish by flatly prohibiting their importation.Although golden shiners are already
present and thriving in Maine(and,perhaps not coincidentally,the subject of a flourishing domestic
industry),Maine excludes golden shiners grown and harvested(and,perhaps not coincidentally,sold)in
other States.This kind of stark discrimination [**2455] against out-of-state articles of commerce requires
rigorous justification by the discriminating State. "When discrimination against commerce of the type we
have found is demonstrated,the burden falls on [***130] the State to justify it both in terms of the local
benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to
preserve the local interests at stake."Hunt v.Washington State Apple Advertising Comm'n,432 U.S.333,
353(1977).
Like the District Court,the Court concludes that uncertainty about possible ecological effects from the
possible presence of parasites and nonnative species in shipments of out-of-state shiners suffices to carry
the State's burden of proving a legitimate public purpose.Ante,at 142-143, 148.The Court similarly
concludes that the State has no obligation to develop feasible inspection procedures that would make a total
ban unnecessary.Ante,at 147.It seems clear,however,that the presumption should run the other way.
Since the State engages in obvious discrimination against out-of-state commerce,it should be put to its
proof.Ambiguity about dangers and alternatives should actually defeat,rather than sustain,the
discriminatory measure.
[*153] This is not to derogate the State's interest in ecological purity.But the invocation of environmental
protection or public health has never been thought to confer some kind of special dispensation from the
general principle of nondiscrimination in interstate commerce. "A different view,that the ordinance is valid
simply because it professes to be a health measure,would mean that the Commerce Clause of itself
imposes no restraints on state action other than those laid down by the Due Process Clause,save for the
rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods."
Dean Milk Co.v.Madison,340 U.S. 340,354(1951).If Maine wishes to rely on its interest in ecological
preservation,it must show that interest,and the infeasibility of other alternatives,with far greater
specificity.Otherwise,it must further that asserted interest in a manner far less offensive to the notions of
comity and cooperation that underlie the Commerce Clause.
Significantly,the Court of Appeals,which is more familiar with Maine's natural resources and with its
legislation than we are,was concerned by the uniqueness of Maine's ban.That court felt,as I do,that
Maine's unquestionable natural splendor notwithstanding,the State has not carried its substantial burden of
proving why it cannot meet its environmental concerns in the same manner as other States with the same
interest in the health of their fish and ecology.Cf.ante,at 151,n.22(describing less restrictive procedures
in other States).
Maine v.Taylor,477 U.S. 131, 132-153 (U.S. 1986)