Maine v. Taylor

LOCATION:Maine State Legislature

DOCKET NO.: 85-62
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 477 US 131 (1986)
ARGUED: Mar 24, 1986
DECIDED: Jun 24, 1986

Cabanne Howard – Argued the cause for the appellant
E. Paul Eggert – Argued the cause for appellee Taylor
Jerrold J. Ganzfried – Argued the cause for the United States, as appellee under the Court’s Rule 10.4, in support of appellant

Facts of the case

In order to protect its fisheries from parasites and non-native species, the state of Maine prohibited the importation of live baitfish. Robert J. Taylor, the owner of a bait business, violated the law and was prosecuted by Maine authorities.


Did the Maine law unconstitutionally burden interstate commerce, violating the Commerce Clause?

Warren E. Burger:

Mr. Howard, I think you may proceed whenever you are ready.

Cabanne Howard:

Mr. Chief Justice, and may it please the Court:

The issue in this case is whether the State of Maine, consistent with the Commerce Clause, may prohibit the importation of live baitfish for the purpose of protecting its environment.

The case is here on the State’s appeal from a decision of the United States Court of Appeals for the First Circuit which declared the state statute unconstitutional for failing to survive the strict scrutiny test required by this Court in Hughes versus Oklahoma.

This Court subsequently postponed jurisdiction over the appeal until this hearing.

After a brief summary of the relevant facts and a statement of why this Court has jurisdiction, I would like to explain why the Court of Appeals misapplied the proper standard for appellate review of factual findings in district court set forth in Rule 52(a) of the Federal Rules of Civil Procedure, and why the Court also subjected the Maine statute to an unnecessarily strict standard of constitutional scrutiny.

The State of Maine has a small and unique freshwater fishery.

It is available to all residents and non-residents alike.

To protect that fishery, in 1959 the State’s legislature passed a statute which is at issue in this case to protect the fishery against the importation of diseased fish.

In 1981, Congress passed the Lacey Act Amendment of that year, making it a federal crime to engage in interstate commerce in violation of statutes such as Maine’s.

In February of 1983, the Defendant in this case was indicted for importing and 158,000 baitfish, some of which contained various diseases about which the state was concerned.

The Defendant moved to dismiss the indictment on the grounds of the unconstitutionality of the underlying state statute.

The state was permitted to intervene pursuant to Title 28 United States Code, Section 2403(b) in order to defend its statute.

An evidentiary hearing was held before a United States magistrate and the state and federal government introduced substantial expert testimony showing that its statute satisfied both prongs of the Hughes versus Oklahoma test, those being that the statute was needed to protect the state against various parasites and exotic species which could come in through a shipment of live bait, and, secondly, that there was no alternative to an absolute ban on the importation.

The district court and… The magistrate and subsequently the district court agreed with the state and sustained the statute, but the Court of Appeals, asserting its freedom to re-evaluate the evidence completely, reversed.

The state then appealed to this Court, although the United States government did not.

The state believes that this case is covered by the plain language 28 United State Code, Section 1254(2) which gives this Court jurisdiction, and I am quoting,

“by appeal by a party relying on a state statute held by a court of appeals to be invalid. “

On the merits, on the question of the adequacy of the evidence to support the district court’s finding, the state believes that with regard to the… that the principle error created by the Court of Appeals in this case was a decision in effect to retry the case.

The state’s evidence here was overwhelming that the statute met both prongs of the Hughes test.

With regard to the legitimate purpose behind the statute, the state fish pathologist and two other expert… academic experts testified that the statute was needed to guard against both three specific parasites which could establish themselves in Maine’s sport fish such as trout, bass, and salmon, and also that the statute was needed to protect against the introduction of exotic species such as, for example, the common carp, which might successfully compete with indigenous species for habitat.

The same witnesses, as well as the Defendant’s own expert, testified as to the second prong of the Hughes test; that the scientific community has not established a testing program of any kind for baitfish.

And, since that is the case, since there is no possibility of inspecting fish or testing fish–

General Howard, can I interrupt you for just a second?

Cabanne Howard:


Warren E. Burger:

As I understand your brief, you take the position that the Court of Appeals acted as a trial de novo in effect and you are giving your version of the evidence.

You are not giving us the findings that you think the Court of Appeals ignored.

Do we have to look at the original underlying evidence ourselves or can we content ourselves to look at the district court’s findings?

Cabanne Howard:

What I am reciting is what the district court found to be the facts in the case.

I thought you were reciting what witnesses testified to.

I am sorry.

Cabanne Howard:

Well, that is contained in the district court’s findings if you read them, the findings of… It refers specifically to what the witnesses testified and then find as a fact certain things, these things.

In your submission, do we need to go beyond the district court’s written opinion to find out what the facts are?

Cabanne Howard:

Well, we believe that this Court should act in the same way as the Court of Appeals should have acted, which is to apply the clear erroneous test to the record and if you find that there is substantial evidence in the record to support the findings of the district court, you should reverse the Court of Appeals and–

What part of the district court’s findings are you now referring to just so I can follow by looking at the–

Cabanne Howard:

–In the jurisdictional statement?

–Well, wherever the district court’s… They are not numbered findings as we normally have.

Cabanne Howard:

Oh, no.

But, if you read… It is not a very long opinion.

It covers nine pages.


Cabanne Howard:

It is replete with references to the transcript.

I don’t think you will find any difficulty in finding where the findings are.

Does he find that all the testimony is true that you describe?

He does recite a lot of testimony.

Cabanne Howard:


Yes, he does.

With regard, for example, to the question of alternatives, he finds as a fact… The quote is “the fact remains”, I am quoting now.

It is on page D-9.

“The fact remains that testing procedures have not been devised. “

Felix Frankfurter:

There were differences in the opinion testimony.

Cabanne Howard:

There were… If I can summarize–

But, nevertheless, the court believed judgment of another.

Cabanne Howard:

–Yes, that is right.

The thrust of the Defendant’s expert testimony which the Defendant’s counsel will summarize also was that the diseases and parasites that the state was concerned about were really not that serious, therefore, there was no need for–

Did the findings of the district court necessarily involve passing on the credibility of these experts?

Cabanne Howard:

–Yes, sir, they certainly did, and we would suggest that is a very important part of this case.

That is what puzzles me because one of the things he said was that the lack of agreement is not itself the ground for taking one position or the other.

He, in effect, seemed to say that there is disagreement among experts and you need more than that in order to come to the correct conclusion.

Doesn’t he say the experts disagree on the issue?

Cabanne Howard:

The experts were in disagreement on the question of the seriousness of a threat.


And, does he resolve that disagreement?

Cabanne Howard:

He says that it is not… The Commerce Clause should not be read to require the state to take the risk that something will happen to the state.


So, he is saying that no matter which one is right the fact that there is disagreement is enough to support the reasonableness of the state… That is quite different from saying that he picked one set of experts over the other.

Cabanne Howard:

Well, that is true.

Either way it is satisfactory for us.

Well, I understand, but it is a different argument.


Well, Mr. Howard, this line of questioning gets to a question I have had frankly and that is what does the Hughes case require, what is the test laid down in Hughes?

One aspect of it, as I understand here, is that the state has the burden of establishing that no non-discriminatory alternative is available.

The district court, as I understand it, said that Hughes does not preclude the state from acting where the evidence on the effectiveness of such alternatives is in doubt and where the potential disruptive impact is great.

Now, I read the First Circuit’s opinion as possibly disagreeing with that as a legal standard under Hughes.

And, if that is the case, then you have a legal issue here to deal with before you have to grapple with the underlying facts.

Cabanne Howard:


William H. Rehnquist:

In other words, maybe the district court read the standard under Hughes to generously according to the First Circuit.

Is that a possibility?

Cabanne Howard:

–We think that we have satisfied the Hughes test even giving it the strictest reading that the First Circuit’s opinion could be read to give it.

So, we are not relying on any–

Well, do you think the district court’s articulation of this standard, that if the evidence is in doubt, then that is enough for the state?

Do you think that is correct?

Cabanne Howard:

–Well, I think that makes sense.

Well, it may make sense.

Do you think it is correct under Hughes?

Cabanne Howard:

Well, I think Hughes could be read to include such a statement, where there is such a test, where there is doubt in the scientific community.

As I am going to say in a minute, of course, we… think… A further argument in this case can be made that the standard should be not as strict as the Hughes test in the first place.

But, that argument aside, I think–

Warren E. Burger:

I think it is important to know whether there is some framework here for a disagreement on the legal standard between the district court and the First Circuit.

Cabanne Howard:

–I didn’t get the impression from reading the district court’s opinion that the district court… rather reading the Court of Appeals’ opinion that it was disagreeing with what the district court had said.

Cabanne Howard:

I think the Court of Appeals agreed that the district court was applying the strict scrutiny test and in applying the test it is fair enough to say that if there is doubt among the scientific community as to what the status of science is, that that ought to be enough to give the state a legitimate purpose in legislating against uncertainties.

So, I don’t see a difference between the two at all.

As I was saying a second ago, the prohibition… the needs of this prohibition in this case is required because of the absolute testing procedure.

The evidence that the district court found was that there is no testing procedure.

So, in short, the state feels that it satisfied the Hughes test in this case no matter how strictly one wants to state it.

And, in fact, the Hughes test can’t be satisfied on the evidence in this record.

It probably is a test that nobody can satisfy.

Now, beyond this, the state also suggests that the strict scrutiny test of Hughes may not be appropriate to apply in this case for the reason that the Congress enacted the Lacey Act Amendments in 1981 which encouraged the states to pass statutes of this kind.

And, if the courts were to continue to apply the strict scrutiny test to statutes like this, that would frustrate the will of Congress in passing the Lacey Act Amendments.

In short, there is a need to harmonize the policy of Congress in encouraging statutes like this with, of course, the policy of the Commerce Clause to prevent the economic vulcanization of the United States.

In our brief, we have suggested that there is a way in which the Court could fashion a lower degree of scrutiny.

We are not arguing that there should be no scrutiny at all, of course, but we do argue that there should be a lesser degree of scrutiny.

For example, on the question of legitimate purpose, we think that the proper way under the Lacey Act to approach a case like this would be to presume that the state statute, that the state legislature has acted for the legitimate purpose that it says and put the burden on the Defendant to come in with some evidence that there is some illegitimate purpose going on.

And, similarly, on the question of whether there is an adequate alternative, the state should be given a little bit more leeway than being required to adopt any hypothetical alternative that the Court of Appeals might be able to think up.

In conclusion, the state believes that the Commerce Clause should not require it to take the risk that the indiscriminate importation of baitfish would not be harmful to its environment.

If there are no further questions, Mr. Chief Justice, I would like to reserve the remainder of my time.

Warren E. Burger:

Mr. Ganzfried?

Jerrold J. Ganzfried:

Mr. Chief Justice, and may it please the Court:

I would like to address some of the questions that came up during the state’s presentation and that is that there is no difference of opinion in the record on the fact of whether there were may tests, inspections, certification, or sampling procedures presently available to test these fish for the parasites and exotic diseases in any way other than a total exclusion.

The district court found that the fact remains that there is no testing technique.

The Court of Appeals did not find that finding to be clearly erroneous and, in fact, Appellee Taylor does not contest to the contrary.

His brief in this Court on page 25 says simply that there are procedures that could be developed.

So, we submit that what one might ordinarily expect would be a less restrictive form of regulation in this area, mainly an inspection and testing procedure is on the facts that Maine has proven in this case, simply not available.

Can you buy baitfish in Maine?

Jerrold J. Ganzfried:

You can buy live bait in Maine.

Warm water bait?

Jerrold J. Ganzfried:

I may not have the technology correct, but if it is from Maine, if it is not imported into Maine–


Maine people do sell bait for the purpose… for the same purpose that these baitfish were–

Jerrold J. Ganzfried:

–Mr. Taylor, the Appellee in this case, is a commercial bait salesperson in Maine.

Jerrold J. Ganzfried:

He is an in-state seller of live bait.

–Of live bait that is produced in Maine.

Jerrold J. Ganzfried:

That is correct.

These were golden shiners.

Are golden shiners available in Maine?

Are they produced there for bait?

Jerrold J. Ganzfried:

I believe that there is a form of golden shiner that is produced in Maine, although as I recall–

How do they know that–

Jerrold J. Ganzfried:

–it is indicated in the brief and has a different name.

–How do they know that the baitfish produced in Maine are without bacterial injury?

There must be some testing procedures then.

Jerrold J. Ganzfried:

Yes, there are some procedures for testing.

The difficulties with them are, number one, that in order to test a fish you have to kill the fish.

Once you kill the fish, it is not live bait.

Thurgood Marshall:

If they can assure themselves that the baitfish produced in Maine posed no danger, why can’t they assure themselves by visiting some out-of-state hatchery that the right procedures are–

Jerrold J. Ganzfried:

The record indicates, and it is uncontested on this point, that the parasites, diseases, and predators that were discussed in this case are not native to the State of Maine and have not been previously found in the State of Maine.

–How do they know that they haven’t been if they can’t test?

Jerrold J. Ganzfried:

To the best ability that they have with the tests… They have no test that they can perform without killing the fish and, therefore, rendering no longer live baitfish.

That is true of all fish.

I mean, if you were importing trout or salmon or whatever, you just take a sample and you kill the ones in the sample, isn’t that right?

Jerrold J. Ganzfried:


The difference is, and the testimony in the record reflects this, is that for trout and salmon, testing, sampling, and certification procedures have been developed and they are regarded as reliable.

No such procedures have been developed for live baitfish and to the extent that there are any testing procedures at all, they are not considered reliable and they often produce false negatives, so even… As Mr. Walker, the state expert, the first witness in the case, testified, he examined the fish in this batch of 158,000 Mr. Taylor was bringing in and based on the tests available to him, he said even the fish he killed and examined he could not certify that they were free of these diseases and parasites.

So, you say that because these parasites have never been found in Maine as far as you know, that Maine is just lucky enough not to be cursed with those, but they know that other states, baitfish from other states are.

Jerrold J. Ganzfried:

That is correct.

And, you never can tell when they are or are not.

Jerrold J. Ganzfried:

You can sometimes tell when they are, but you can never tell with any reliability that they are not.

May I ask one question about the absence of testing procedures which seems to suggest kind of ends the case.

Wasn’t the dispute in the testimony over the question whether the problem was sufficiently serious to justify the expenditure and so forth to develop testing procedures?

Some experts said, well, this doesn’t amount to anything anyway, so that is why we don’t have tests.

That is what the conflict was.

Jerrold J. Ganzfried:

That is right.

And, the portion of the district court’s opinion to which I referred to before discussing the disagreement, the district court does indicate that he is speaking about a disagreement only with respect to the question of the legitimacy of a state interest and not as to whether there is a less restrictive alternative and found that the Defendant’s expert agreed with prosecution that there is not testing/inspection/certification procedure.

The district court’s comment to that disagreement was limited to the legitimacy of the purpose.

The Court of Appeals did not find to the contrary on the purpose.

The district court upheld the purpose, the Court of Appeals did not find that the state’s purpose was not a legitimate state purpose.

Do you take the view that if there is disagreement among experts on whether there is a serious problem or not that that is a sufficient basis for sustaining the statute without the judge finding that one group of experts was right as opposed to the others?

Jerrold J. Ganzfried:

We think that the question of whether the threat to the state is a sufficiently serious one is essentially a legislative determination and that the–

William H. Rehnquist:

So, your answer is if they can get one expert that says it is serious, that is enough to justify the statute even though the judge says I don’t know whether to believe him or not.

That is your position?

Jerrold J. Ganzfried:

–Our position is essentially… The orderly way to proceed is for Mr. Taylor, if he develops a test, which he hasn’t done yet, to present that, to present his experts, to present his possibilities as to inspection and certification procedures to the state legislature.

It basically is our feeling that under Hughes versus Oklahoma, there should be sufficient elbow-room for a state to implement prophylactic measures when the effect on the state’s ecology would be very serious and there is substantial scientific basis for the state’s concern.

On the question of the state of the record in this case, I would point out that the Defendant’s expert himself contradicted himself on the point.

He indicated he was the first person to discover one of the parasites that is involved here and he put a good deal of study into it because, as he said, it was regarded as a major problem.

We have to look at the underlying evidence.

We can’t just read the district court’s opinion, right?

Jerrold J. Ganzfried:


I think the findings the district court sustaining the legitimacy of the state purpose and according proper deference to the state legislature, not substituting the court’s judgment for the legislative judgment, and the findings of fact by the district court, which were not found to be clearly erroneous by the Court of Appeals, but were simply disregarded by the court which, as it said, read the record and “drew its own conclusions”.

We think that where the Court of Appeals went wrong was in substituting its finding of fact for those of the district court and in substituting its judgment for the state legislature.

Warren E. Burger:

Mr. Gansfried, do you think there is any tension or disagreement between the district court and the Court of Appeals on the Hughes standard?

Jerrold J. Ganzfried:

They articulate the Hughes standard the same way, but in terms of the application of that standard to the particular case–

I mean, the Court of Appeals seemed to apply a more strict standard under Hughes.

Jerrold J. Ganzfried:

–The Court of Appeals seemed to assume it was the arbiter of both facts and state interest.

And, under this Court’s decision, it is neither.

I have addressed the difficulties with the Court of Appeals’ opinion.

Let me get back to one important point that is a factual one and that is the uniqueness of Maine’s situation.

They do prohibit the importation of live baitfish, but if I could draw an analogy to this Court’s decision in Philadelphia versus New Jersey, the situation Maine was in here is similar to what New Jersey would have been in had there been no domestic solid waste in New Jersey.

Here, the State of Maine is attempting to keep out and protect its environment from that which was not there before.

Thank you.

Warren E. Burger:

Mr. Eggert?

E. Paul Eggert:

Mr. Chief Justice, and may it please the Court:

Mr. Taylor in the court below has attacked the constitutionality of the state statute which forbids the importation of baitfish.

He has done that in a fairly unique circumstance of being in the midst of a federal criminal prosecution and attacking a state statute.

As background for that particular challenge, Mr. Taylor has been in the bait business for approximately 17 years.

He has raised in the State of Maine baitfish and mainly golden shiners during that period of time.

They are, indeed, the same type of species of golden shiners that he was attempting to import in this particular situation.

The reason Mr. Taylor is importing golden shiners from other states is due to the reality of aquaculture in Maine.

Maine has a harsh winter, a short warm season during which fish may be raised and harvested and the fish selling cycle is just the opposite of that.

Maine fishermen can fish year around with live bait, but they do not do so.

Mainly, they fish in winter, ice fish with live bait, and that is the peak season for Mr. Taylor.

It is very difficult for Mr. Taylor to raise golden shiners and keep them over the winter to supply the demand of his customers, and, therefore, in order to remain in business and to grow in his business as the demand of the marketplace dictates, he has been forced to go outside the state during winter months to bring back in golden shiners.

The initial question that is before this Court as I understand it is a matter of jurisdiction which has been reserved to this hearing.

Our position on jurisdiction is that Section [= 1254(2)] is not as clear cut as the state would have us believe, but, in fact, that particular statute does not apply to criminal cases, which this is.

It is a criminal appeal.

And, that that statute applies only to civil cases.

That is clear in the legislative history of that statute and in the very language of the statute itself.

That does not mean that this Court cannot hear the merits of this particular case, but that we would contend that the Court must treat this as a petition for Writ of Certiorari and we would further contend that this question is not important enough for the Court of grant that petition.

All parties in this particular case, I think, agree that this statute that we are talking about is discriminatory.

It is a flat prohibition against the importation of baitfish.

It stops it at the border.

What is being prohibited is something that the state allows all the time to go on within its borders.

Golden shiners are a common baitfish within the State of Maine and outside the State of Maine.

Once this discriminatory effect of the statute has been admitted by all parties, the constitutional law which… the body of constitutional law which has surrounded the analysis of the statute indicates that the courts must look at the statute and the proposed justification for the statute with strict scrutiny.

We would contend that the district court, through the magistrate’s findings, and also the district court’s findings, gave lip service to that strict scrutiny standard and said that they were applying the strict scrutiny standard and, in effect, were merely adopting the opinions of the state’s experts because they really didn’t have any basis for distinguishing between or finding one expert’s opinion to be more correct than the others.

They fell back to the position that the state has proposed these problems as their legitimate purpose.

The Defendants contest that, but we are not really sure, therefore, we will accept the state at face value and allow the statute to stand.

We contend that the Court must do more than that, that the Court must not just make findings perhaps on a preponderance of the evidence standard or maybe even a lesser standard in this particular case, as what the court did, but they must make those findings and then look and scrutinize those findings in the context of everything else that was presented in the hearing.

I think this Court does, indeed, have to go back to the transcript to look at the evidence that was presented.

Well, Mr. Eggert, in the brief you suggest that under a Commerce Clause analysis that clear and convincing evidence is the standard to be applied.

Now, you are not arguing that to us, are you?

E. Paul Eggert:

No, I am not, Your Honor.

I think I may have been analogizing that when that is the standard and the lower court… When a clear and convincing standard is evidenced as the standard, and the lower court has obviously misapplied that standard, that the Appellate Court then has to look at the record, the factual record, and make a determination for itself from that record whether or not the lower court is correct.

Well, this is just a preponderance–

E. Paul Eggert:

As it pertains, I believe, to the initial findings of fact, but that is not sufficient that the findings of fact agree with the state’s position.

The Court must go further than that and apply those facts to the statute and that is where the strict scrutiny comes in.

It is not enough that the Court say, yes, we agree, for instance, that there is a parasite which could be introduced into the State of Maine through importation of baitfish.

It goes further than that to find out if that is a sufficient reason for blocking commerce at Maine’s border.

In two of those particular instances–

–I am not sure I understand your idea of strict scrutiny here which is the kind of thing you might apply under an equal protection analysis if there were discrimination on the basis of race.

We don’t have that there, do we?

We just have the requirements set forth in Hughes versus Oklahoma that we have to apply, isn’t that right?

E. Paul Eggert:

–Well, the Hughes versus Oklahoma indicates that the strict scrutiny standard is what is being applied and what has to be applied.

That language is identical to that used in equal protection cases.

I know of no other place in which that standard is fully explicated.

I would suggest to the Court that, yes, indeed, it is the same standard and that the courts have to go beyond just what is presented to it by way of factual basis.

This particular case is justification for the statute and gives serious consideration and hard consideration as to whether or not that is sufficient to allow a state to block interstate commerce.

In this particular case factually, we have one of the parasites, capillaria, being proposed and that was found in this particular shipment, as I understand it.

That is proposed as a justification for blocking interstate commerce, and yet the state’s expert has agreed he has found capillaria within the state.

Well, under… in applying the Hughes test, do you think the Court of Appeals is free to just speculate on other possible alternatives or does the Court of Appeals have to consider and rely on the evidence as determined by the district court?

E. Paul Eggert:

No, I don’t think it can speculate and go totally outside the record, but it certainly can look to other sources in the sense that the First Circuit Court of Appeals did.

It went to Maine’s statutory and regulatory structure to see whether or not Maine’s avowed purpose with this statute was at all consistent with what they do with other fish.

The state’s contention is that somehow baitfish are entirely different from trout and salmon which they would like to encourage in the State of Maine and that is true because they are different species.

However, there is a bit of prejudice, I believe, involved in that particular conception and that is that somehow the baitfish dealers in Arkansas are not as careful and good as the trout raisers in Maryland, let’s say, without much justification for that.

The state’s experts–

Mr. Eggert, supposing that we were dealing with district court findings of just rather plain, ordinary facts as to whether there were or were not an adequate test for this parasite.

Now, if the district court finds those facts of particular weight and the appeal is taken to the Court of Appeals, does the Court of Appeals review those under a clearly erroneous standard as it would other findings of fact?

E. Paul Eggert:

–No, I don’t believe they do.

William H. Rehnquist:

Why not?

E. Paul Eggert:

Because it is a mixed question of law and fact.

The hypothesis I gave you was the kind of factual questions that are classical, factual questions under any application of Rule 52.

You are always going to be applying law to facts.

That doesn’t set you free from the clearly erroneous test.

E. Paul Eggert:

I agree.

Warren E. Burger:

Why isn’t the Court of Appeals bound by the clearly erroneous test here?

E. Paul Eggert:

They are bound by the clearly erroneous test when they look at the facts, but they are not bound when they then apply the legal standard to that.

Well, no, I don’t think anyone would think they were.

E. Paul Eggert:


But, then, when they go and look at the legal standard that the district court applied and determines, which I believe they did determine, that the district court was wrong with that legal standard, then I think that opens to question whether or not the district court was adequately and properly looking at the factual record in making its findings.

Is that the clearly erroneous test or is it something different?

You know, it is a rather vague statement.

E. Paul Eggert:

I guess it is more of a hybrid.

I think the courts have said that when there are factual findings that don’t fit into the legal structure or the proper legal standard, that the courts then are not bound by those factual findings.

That they then have to somehow get back into the record and review the facts.

So, if as far as we had to go was to say could the district court, based on the record, determine that there were no alternative means or that there were no other alternative means of testing or that there are no adequate methods of testing and that was the end of the question, then I think, yes, the district court would be correct.

The Court of Appeals would apply the clearly erroneous standard.

But, that does not end, in my view, the inquiry that the Court of Appeals has to undertake when it reviews the district court findings.

I would like to perhaps clear up a problem in the record and that is I do not believe any of the experts said there were no procedures except procedures for testing various fish for these parasite problems.

The state’s expert himself testified that he tested the fish in his samples for the three parasite problems and was satisfied that he found two of the three within the shipment.

I think that is pretty clear evidence that, in fact, there is a testing procedure.

What is really at issue and what the experts disagree upon is the sampling procedure which is undertaken.

Now, with trout and salmon, everybody has agreed that some “X” number of a thousand fish, five out of a thousand fish can be sampled and if those are disease free, then we can pretty safely say that the entire shipment is disease free.

Experts have not yet agreed we can do that and say we have sampled five of the thousand baitfish and, therefore, the entire shipment is disease free and the reason that hasn’t been done is because these particular problems that the state is talking about do not pose a threat to the total ecological system of the warm-water fish in Maine.

There is no evidence in the record that that kind of problem is posed by importing baitfish.

Even diseased baitfish?

E. Paul Eggert:

That is correct.

Well, what is the state’s position of what would happen if a large number of diseased baitfish were imported?

E. Paul Eggert:

The state’s position is that that is going to pose a problem.

What sort of a problem?

E. Paul Eggert:

I don’t know.

And, your position is it doesn’t pose any problem?

E. Paul Eggert:

Our position is that it does not pose a problem in the sense that it will not infect the wild fish population; that there is no evidence in the record, even though these parasites have existed in other states all over the country, there is nothing in the record from the state that shows that these have ever… that these problems have ever been transmitted to wild fish and there certainly should be if the state is correct.

Was this a subject of the expert testimony, one of the subjects of the expert testimony?

E. Paul Eggert:


William H. Rehnquist:

Did the experts disagree?

E. Paul Eggert:


The state’s expert testified that these problems do exist in fish, in baitfish, golden shiners; that they have been found in illegally imported baitfish, but that is as far as they go.

They say that one of the parasites does cause mortality in individual fish, but a scarcity in the record of whether or not that translates into any harm for the environment.

What is not in the record perhaps is that this is a changing field.

The experts are disagreeing and they perhaps are going to be developing, and as I understand it, have developed tests for–

Meanwhile, who is supposed to bear the risk?

E. Paul Eggert:

–When it comes to–

Warren E. Burger:

You don’t suggest that these parasites don’t exist?

E. Paul Eggert:


In these shiners.

E. Paul Eggert:

No, they do, and they exist in probably all the other… in many of the other states and have not caught the problem.

Maybe so.

That may be so, but it is an undesirable thing to have them spread around, isn’t it?

E. Paul Eggert:

I am not sure I would concede that, no.

It is something that–

You are saying that it would not be a sufficient threat to permit Maine to keep them out of the state?

E. Paul Eggert:


With or without tests?

E. Paul Eggert:


I would submit that, yes, that they are not a sufficient problem.

So, your submission is even if there is no test Maine has to let them in.

E. Paul Eggert:


May I ask this question?

I am confused at the moment.

There is a section in your brief on page 25, the caption of which says,

“The Court of Appeals Did Not Sufficiently Consider the Serious Consequences to Maine’s Ecology of Invalidating the Challenged Statute. “

Are you representing the Solicitor General?

E. Paul Eggert:


I beg your pardon.

E. Paul Eggert:

The other–

William H. Rehnquist:

You are saying there is no risk to Maine’s ecology?

E. Paul Eggert:

–That is what I am saying.


E. Paul Eggert:

The other reason that the state’s attempt to… or the state’s scheme to protect its ecology, if I may phrase it that way, cannot be effective is that Maine’s water environment is not unique.

In fact, it shares a substantial watershed with the State of New Hampshire which the state’s own expert conceded.

His testimony was sufficient that the state could not possibly block these problems from coming to the State of Maine as long as the State of New Hampshire allowed importation of baitfish into that particular state.

And, he further conceded that as far as he knew, and it is as far as I know true, the State of New Hampshire does allow importation of these golden shiners.

In fact, they come probably from the same place, through the Massachusetts wholesale dealers, into the State of New Hampshire.

And, any release of those baitfish in the State of New Hampshire, at least in the common, shared watershed between New Hampshire and Maine is going to mean that these problems are going to exist in Maine, if, in fact, they don’t already exist, and they probably do, and the state–

Warren E. Burger:

So, you are just submitting the state isn’t… they may have a little problem and they aren’t entitled to try to keep it little.

E. Paul Eggert:

–Well, Your Honor, they certainly don’t take any steps with their regulatory and statutory scheme to try to deal with that problem as exists within the state.

Mr. Howard mentioned the possibility of carp coming into the state.

Well, carp does exist in the State of Maine and it exists in the lower Kennebec River.

And, I don’t know of anything that would prevent people from taking that carp and spreading it to the rest of the state.

If the state is really serious about dealing with what they perceive to be problems, it would seem to me it would be within a framework, consistent framework, that would deal with all these problems, both in state and out of state and they just don’t do that.

They take it one little perceived problem and have dealt with it in a most severe fashion and that is to stop all commerce in that particular area.

Finally, and perhaps by no means least, the district court found that there was no economic protectionism involved in this particular statute despite some direct evidence in a publication by the Department of Inland Fisheries that it was better to raised baitfish in Maine and keep Maine’s baitfish economic alive and healthy rather than spending our money in Arkansas.

The Circuit Court of Appeals, I think, more correctly looked at that and at least indicated that that was a reflection, that there was, indeed, some economic protectionism involved in this particular case and that is the very problem that the Commerce Clause is designed to prevent.

Do you think Maine could just prevent bait fishing entirely?

E. Paul Eggert:

Yes, indeed, they could.

And, keep out baitfish from any other states?

E. Paul Eggert:


I know they could prevent bait fishing, but do you think could keep… They could enforce that rule by preventing importation of baitfish?

E. Paul Eggert:

I would think the state could regulate in such a fashion that they say people in Maine, we will not allow fishing with live bait in the State of Maine.

If that is a serious problem, if the state thinks there are serious problems with live bait, then that is an even-handed regulation that they certainly could adopt.

Politically I am not sure the could, but–

You don’t think the state is required to go to that length to meet its reasonable alternatives?

E. Paul Eggert:


I am suggesting that the state is required to perhaps expend a little bit of effort to regulate and allow baitfish to be imported into the State of Maine under strict controls perhaps, but not be allowed to just flatly prohibit the importation of baitfish.

I believe that the State of Maine can, if it wants to, devise a system, a permanent system, a licensed system, an inspection system which would satisfy them and which would satisfy Mr. Taylor and other bait dealers in the State of Maine, indeed, as many other states in the northeast.

Is your client prepared to share its costs… share the cost of sending inspectors all around the country?

E. Paul Eggert:

If that is what it takes for him to be able to import baitfish, to have them inspected somewhere else, he certainly would.

The place where most of these baitfish come from in Arkansas, there is, in fact… I am not sure, the Department of Inland Fisheries research station there that does, in fact, test sample certified fish to be disease free and they certainly could do that right there at the source in Arkansas and the fish could be brought into Maine quickly.

Thank you.

Warren E. Burger:

Do you have anything further?

Cabanne Howard:

Yes, Mr. Chief Justice, just three points in response to the prior questions.

Justice White, with regard to the question you were just asking, the problem of sending inspectors to other states is the same problem that applies to inspecting in Maine.

There is no test that anybody can apply anywhere.

Byron R. White:

If two out of every hundred thousand baitfish are diseased, you may find those two but you would never know whether you found them all.

Cabanne Howard:

That is the point.

The point is there is no test that can be done to find the parasites and the diseases.

There is such a test for semolinas.

The scientific community has not developed one.

That is uncontradicted on this record which leads me to respond to an earlier question from Justice O’Connor.

You were concerned, as I recall, about whether there is a difference in the test that the district court and the Court of Appeals applied here.

I had a chance to reread the Court of Appeals’ opinion during the other arguments and I can’t see anything in there that indicates that the Court of Appeals criticized the district court on its application of the test.

And, furthermore, the point on which the Court of Appeals reversed; that is that there was other means that the state hadn’t sought and found to protect itself, that point is one in which there is no disagreement in the record.

There is no evidence at all that there is no test.

The record is unequivocal.

The disagreement occurs on the point as to whether there is a risk, whether there is a real risk or not.

The Defendant’s experts on that issue tried to make the point that there was a difficulty on the risk.

But, that wasn’t the point on which the Court of Appeals reversed the lower court.

So, it doesn’t seem that there is a problem with regard to the application of the test in either case.

And, as to the question about the risk, Justice Stevens, I think you were concerned that the district court didn’t make findings about that and if I could just direct your attention to a paragraph on page D-7 of the jurisdictional statement.

It is in the middle of the page, the first full paragraph.

I think that is the paragraph where the court is finding that… having cited the testimony above it… the court is coming to the conclusion that given the somewhat unique characteristics associated with the Maine fish population, the substantial uncertainties surrounding the effects and so on shows that there is a risk.

John Paul Stevens:

What sentence do you refer?

I just read that paragraph as a recitation of what the testimony was.

Cabanne Howard:

Well, I realize the court didn’t use the words “I hereby find”–

John Paul Stevens:

He didn’t say I believe this one and I don’t believe that one.

He didn’t do that.

Cabanne Howard:


Well, I think that is his conclusion.

John Paul Stevens:

What makes you think that?

Cabanne Howard:

Well, because–

It is a summary.

Cabanne Howard:

–That is right.

It is a summary of the preceding testimony and then in the next paragraph he goes on to the next standard.

John Paul Stevens:

Without ever saying I agree with that expert.

Cabanne Howard:

Excuse me?

John Paul Stevens:

Without ever saying he agreed with the testimony.

Jerrold J. Ganzfried:

He didn’t actually say I hereby find so and so, but I think–

John Paul Stevens:

What he said was there is a disagreement and in view of the fact there is a disagreement the state is entitled to rely on the uncertainty.

Cabanne Howard:


But, I think he is finding that there is a substantial uncertainty.

That is to say that he is not finding that… He is finding that there is a legitimate uncertainty here.

Presumably there could be a situation where a state could come in–

John Paul Stevens:

And, in case it does, the state can go ahead and protect its environment.

Cabanne Howard:


John Paul Stevens:

That is what it says.

Cabanne Howard:

Anyway, I think that finding is there, at least I would characterize–

John Paul Stevens:

The finding that there is uncertainty is there, yes.

Cabanne Howard:

–Yes, that is right, and that is what we need.

All we need to show is there is a finding as to uncertainty and there is substantial evidence to support that finding.

And, if that is the case, we think we should win the case.

Byron R. White:

Do you know of any other states that have a similar rule?

Cabanne Howard:


And, I think one of the reasons why there isn’t is because the State of Maine… and it is in the record and the courts found this below… a unique and fragile fishery here which requires a prohibition of this kind.

Many other states have regimes where the state administrative officer, the Fish & Game Commissioner, let’s say, has the power to regulate the importation of fish and presumably under those–

Byron R. White:

Why are these shiners any more dangerous to Maine than they are to New Hampshire?

Cabanne Howard:

–Well, they would be equally dangerous to New Hampshire.

Byron R. White:

New Hampshire lets them in, don’t they?

Cabanne Howard:

I think they do.

At least–

Byron R. White:

You don’t know that?

Cabanne Howard:

–I don’t know the answer to that, as to what the New Hampshire law is.

Byron R. White:

What about Vermont?

Cabanne Howard:

I don’t know, but the situation–

Byron R. White:

Do you know of any other state that keeps them out.

Cabanne Howard:

–I know of no other state that has a statutory prohibition.

Byron R. White:

Well, do you know of any other state that lets them in on the assumption that the threat is not very great?

Cabanne Howard:

It is a question of what the state administrative officers do with their administration discretion that legislatures may have given to them.

Byron R. White:

So, I ask you again, do you know of any–

Cabanne Howard:

No, I do not know, but that doesn’t mean it isn’t being done.

In short, it is the fragility of the Maine ecology that requires a prohibition of this kind.

Byron R. White:

–You mean some diseased fish would cause more havoc there than they would in the non-fragile New Hampshire fishery?

Cabanne Howard:


We have a very unique fresh-water, pure-water fishery with a lot of… a small number of fish, trout, bass, salmon that are very vital to our state and because of that unique fact the state has a special interest in keeping that pure.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.