While I am sure Mainers for Fair Bear Hunting (MFBH) was hoping the presentation of their lawsuit against Maine’s Department of Inland Fisheries and Wildlife would sizzle yesterday at Maine’s Supreme Court, it actually fizzled. The group has been grumbling about DIF&W’s defense of bear hunting and trapping since before the voters defeated their proposal to ban bear baiting, hounding, and trapping.
MFBH tee’d up their case yesterday in front of the seven Justices of the Maine Supreme Court, and promptly hit the ball out of bounds. Way out of bounds.
Sitting in the back row, I thought our side probably could have walked out right after Rachel Wertheimer, MFBH’s attorney, sat down. Wertheimer, who works for the Portland law firm of Verrill Dana, got grilled by the Justices and had a hard time answering their questions.
I attended this hearing with James Cote, who managed the sportsmen’s winning campaign against the referendum, and Don Kleiner, Executive Director of the Maine Professional Guides Association and President of the Maine Wildlife Conservation Council, the group that led the campaign to defend bear hunting and trapping and hopes to continue to work together in the future.
Emily Green, from the office of Maine’s Attorney General, represented DIF&W and made a strong case against the lawsuit. Paul McDonald and Dan Murphy were there, from the law firm of Berstein Shur, to speak for the Maine Wildlife Conservation Council.
I asked Kleiner why he felt the Council needed its own attorneys, and he made a good case, emphasizing that the importance of this decision reaches far beyond DIF&W. “It was the right thing to do,” Don told me. “I’ve got no doubt about that.”
The groups that continue to work together as the Council, and who contributed money to the defense, are:
Maine Professional Guides Association
Maine Trappers Association
Maine Sporting Dog Association
Grand Lake Stream Guides Association
(US) Sportsman’s Alliance
National Hound and Tree Dog Association Inc.
North Maine Woods
Hundreds of individuals and donors also support the Council and its work. You may notice that the Sportsman’s Alliance of Maine is absent from the list. SAM pulled out of the Maine Wildlife Council shortly after the 2014 referendum vote, and did not contribute to the defense in this lawsuit.
Wertheimer told the Justices that, “this case is about whether a state agency can spend money on a ballot measure.” Mainers for Fair Bear Hunting brought suit against DIF&W a few weeks before the referendum, and lost in Superior Court. The Court’s decision was given without a hearing, so MFBH appealed the decision, asking for a hearing. But by the time they did that, the referendum was over and the Superior Court Judge ruled the lawsuit “moot.”
So MFBH filed an appeal of that decision to the Supreme Court. Yesterday’s hearing was focused on whether or not the case was moot, although Wertheimer tried to explore other aspects of the case. Each time the Justices brought her back to the issue.
The Chief Justice asked the first and one of the best questions: “Should state agencies be required to remain silent” in the case of citizen initiatives? Wertheimer’s response was unconvincing: “They can speak, but not use their money to tell voters how to vote,” she contended.
Other Justices jumped all over that, sharply questioning Wertheimer to specify what a state agency could do or say in response to a ballot measure. Wertheimer’s only response was this: “We are challenging their use of taxpayer money to campaign against the initiative, not their right to speak on the issue.”
At that point I wanted to jump up and shout, DIF&W did not spend taxpayer dollars. They get no taxpayer dollars! Sportsmen pay all the bills at that state agency, although we have tried, for decades, to win General Fund tax dollars for DIF&W, without success.
When the Justices were able to get Wertheimer to focus on the only issue before the court, whether or not the issue is moot because the referendum is over, she really had nothing to say. As the Chief Justice noted, MFBH was, “looking for an advisory opinion because the factual situation is over.”
Attorney Green noted that the Superior Court decision denying MFBH’s demand that DIF&W’s ads be stopped can’t be challenged, because the referendum is over and no relief, should MFBH’s case be won, is available now. The Justices seemed to agree that it would be in appropriate for the Supreme Court to issue an advisory opinion on the issue, emphasizing that MFBH could have, and should have, objected much sooner than they did, so the court system would have had time to fully consider their case before the vote. Too little, too late.
At the legislature
I took great interest in a part of the discussion that focused on whether or not DIF&W and other state agencies should be able to testify at the legislature for or against bills. That is a great analogy really. One Justice noted that, “The citizen initiative process is exactly like the legislative process, it just puts the issue in front of the people.” That Justice asked Wertheimer, “Isn’t the proper place for your argument the legislature?
Indeed. It would be fun to see them make this argument against agency participation to the legislature!
There is no timetable for the Supreme Court’s decision, even though I thought they could have issued it right then and there. MFBH really made no case for their challenge of DIF&W’s ability to speak and participate in a ballot measure campaign.