SandBar 8:2, July, 2009
Recommended citation: Yarbrough, Mariel , Maine Court Affirms Criminal Conviction of Lobsterman , 8:2 SandBar 18 (2009).

Maine Court Affirms Criminal Conviction of Lobsterman

Maine v. Weeks, 967 A.2d 716 (Me. 2009).

Mariel Yarbrough, 2L, University of Denver Sturm College of Law

The Supreme Judicial Court of Maine affirmed a judgment convicting a fisherman on four counts of possession of a female lobster “mutilated in a manner that could hide or obliterate”1 a v-notch. The court had to decide whether a Maine statute prohibits possession of female lobsters with naturally regenerated right center flippers that bear evidence of having been previously mutilated. The court concluded that the “v-notch” statute prohibits possession of any female lobster that has been mutilated in the past, regardless of evidence of flipper regeneration.
 
Background
The statute and regulation at issue in this case are “intended to protect the breeding stock of Maine’s lobster fishery.”2 The v-notch lobster conservation program provides that “when an egg-bearing female lobster is caught, it must be marked with a v-shaped notch in the right rear middle flipper, and released.”3 To enforce the v-notch program, the statute makes it a crime to “take, transport, sell or possess” any female lobster showing a v-notch, or one that has been “mutilated in a manner that could hide or obliterate that mark.”4 In addition to a potential one year imprisonment and a $2,000 fine for the Class D crime, violation of the statute may result in a fine of $50 for each violation, a fine of $100 for each egg-bearing lobster, and a fine of $50 for each female lobster marked with a v-notch.
      Dale Richard Weeks had participated in Maine’s lobster fishery since 1974. On December 14, 2007, the Department of Marine Resources Warden, acting on complaints that Weeks was keeping lobsters in violation of the v-notch program, met Weeks’s boat and inspected the catch. The officers identified six lobsters believed to have mutilated right center flippers in violation of the v-notch program and one lobster with a gouged eye socket. According to a separate regulation, it is “unlawful to possess any lobster . . . which is mutilated in a manner which makes accurate measurement impossible.”5 A gouged eye socket impairs accurate measurement; therefore, Weeks did not contest his violation of this regulation. Therefore, the case focused on whether or not he violated the v-notch program.
      Weeks argued that he was not in violation of the v-notch program because the damaged flippers had regenerated after molting. He testified that marine patrol officers told him that possessing lobsters with regenerated right center flippers was legal. Weeks also pointed to the Bureau of Marine Patrol policy statement that “a naturally regenerated flipper is considered legal.”6 Despite this, the trial court found Weeks guilty for four out of the six lobsters, fining him $250 for the four v-notch program violations and $100 for the single violation of the measurement regulation. Weeks wanted the court to amend the judgment to include language clarifying that the mutilated lobsters had a “naturally regenerated flipper.”7 The trial court stated that “despite evidence of regeneration, the lobsters had been mutilated at some point in time, and . . . the statute prohibits possession of any female lobster that has a damaged right center flipper that could have once been v-notched.”8

Mutilated to Hide V-Notch
The appellate court found that the v-notch statute applies to lobsters with regenerated right center flippers that show evidence of mutilation. Mutilate means both “to cut off or permanently destroy a limb or an essential part of,” and also “to cut up or alter radically so as to make imperfect.”9 The statute and regulation unambiguously prohibit possession of a female lobster that has been mutilated in such a way as to hide or obliterate a v-notch. The mutilation can take the form of the flipper being totally cut off, partially cut off, or altered in any way. The court reasoned that, in this case, the v-notch statute defines the offense clearly enough so that “ordinary people can understand what conduct is prohibited.”10

Naturally Regenerated Flipper
At trial, Weeks pointed to a discrepancy between the Bureau of Marine Patrol policy manual and the v-notch statute and corresponding Department of Marine Resources regulation. The policy manual states that “a naturally regenerated flipper is considered legal.” However, the trial court found that this language is ambiguous on its face and is in direct conflict with the purpose of the statute and regulation, thus making it legally ineffective. Additionally, the Department’s website provides a “Guide to Lob­stering in Maine,” which clearly explains that possession of a female lobster with a right center flipper damaged by a natural occurrence is illegal. This publication, which is broadly available, should have resolved any reasonable confusion Weeks, or any other lobster licensee, experienced after reading the policy manual. Further, the court reasoned that since “more specific and quite clear publicly available materials place a lobster licensee on explicit notice of precisely what is required, of what is prohibited, and of the fact that this law creates a strict liability situation,” there is no excuse of confusion available in this situation.11
      The statute does not prohibit possession of a female lobster with a regenerated flipper showing no signs of mutilation. The statute only prohibits possession of a female lobster with a v-notch or a lobster showing evidence of mutilation that could hide or obliterate a v-notch. The court found that for the purposes of the statute, it does not matter whether the flipper is the lobster’s original flipper or a naturally regenerated flipper. The Bureau of Marine Patrol policy manual statement serves to explain that evidence that a lobster has molted and regenerated a flipper is not, in itself, indicative of mutilation that would hide or obliterate a v-notch. Because the statute is unambiguous, it is the controlling law – not the policy manual.
      The v-notch statute provides that “any lobster whose right flipper is v-notched or mutilated in a manner which could hide or obliterate such a mark shall be prima facie evidence of a violation.”12 This means that if a marine patrol officer finds a lobster in a catch with a mutilated right center flipper, the lobsterman in possession of that lobster is automatically held liable for violation of the v-notch statute.

Conclusion
The appellate court affirmed that the v-notch statute and regulation unambiguously prohibit possession of a female lobster with a v-notch or evidence of past mutilation to the right rear flipper, regardless of the presence or absence of evidence of regeneration. It is not a violation to possess a female lobster with a regenerated flipper showing no signs of mutilation.
      This case has important implications for those in the Maine lobster industry, as well as the fishing industry as a whole, because the court, here, presumed that licensees are on “explicit notice” of what is required and prohibited in the industry and that any violator will be held strictly liable. Therefore, fishermen in possession of a commercial license should take time to familiarize themselves with state regulations.

Endnotes:
1.    Me. Rev. Stat. Ann. tit. 12, A7 6436(1)(B) (2009).
2.    Maine v. Weeks, 967 A.2d 716, 717 (Me. 2009).
3.    Id.
4.    Id. (quoting A7 6436(1)(B)).
5.    Me. Rev. Stat. Ann. tit. 12, A7 6431(4) (2009).
6.    Weeks, 967 A.2d at 718, n.2.
7.    Id. at 719.
8.    Id.
9.   Webster’s Third New International Dictionary1493 (2002).
10. Weeks, 967 A.2d at 722, n.5.
11. Id. at 720-21.
12. Me. Rev. Stat. Ann.