Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mainers for Fair Bear Hunting v. Maine Department of Inland Fisheries and Wildlife

Superior Court of Maine, Cumberland

October 22, 2014

MAINERS FOR FAIR BEAR HUNTING and KATIE HANSBFRRY, Plaintiffs
v.
MAINE DEPARTMENT OF INLAND FISHERIES AND WILDLIFE, Defendant and MAINE WILDLIFE CONSERVATION COUNCIL, intervener

          ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER

          Joyce A. Wheeler Justice

         BACKGROUND

         Before the court is the plaintiffs Mainers for Fair Hear Hunting and Katie Hansberry (collectively, "MFBH")'s motion for a temporary restraining order. MFBH argues that defendant Department of Inland Fisheries and Wildlife ("DIFW”) or the "Department") is engaged in illegal campaign activity against Question 1-a ballot initiative that would ban bear baiting, hounding, and trapping-on the November 2014 ballot.

         In November, Maine voters will have an opportunity to vote on Question 1, which reads: "Do you want to ban the use of bait, dogs or traps in bear hunting except to protect property, public safety, or for research?" Plaintiff Mainers for Fair Bear Hunting is a N6unc Ballot Question Committee and proponent of Question 1. Plaintiff Katie Hansberry is a Maine resident who serves as Campaign Director for Plaintiff Mainers for Fair Bear Hunting.

         The Department is a Maine state agency charged with among other things, preserving, protecting, and enhancing the inland fisheries and wildlife resources of the State, encouraging the wise use of these resource; and effectively managing these resources. 12 M.R.S. § 10052. The Commissioner of DIFW and DIFW have the responsibility, pursuant to 12 M.R.S, §§ 10053(1) and 10103(2), to manage all wildlife resources in Maine. When necessary to accomplish their statutory duties, the Commissioner and DIPW have the statutory duty, pursuant to 12 M.R.S. §10105(1), to authorize the taking of wildlife, including bears, subject to conditions and restrictions established by the Commissioner and DIFW. Pursuant to 12 M.R.S. § 10056, they are also charged with increasing the public's knowledge and understanding of wildlife resources and the management of those resources, and with the promotion of such resources. The Commissioner and DIFW have the authority, pursuant to 12 M.R.S. § 10108(2), to implement programs to promote the hunting of Maine wildlife, including the hunting of bears. Such programs "may include coordination of activities between the public and private sectors and utilization of promotional missions, exhibits, brochures, technical assistance and expertise as necessary to develop and promote" hunting activities in Maine, including the hunting of bears.

         According to Andrea Erskine [1], Deputy Commissioner of DIFW, DIFW, and its Commissioner, based on their experience and expertise, consider bear baiting, hounding, and trapping to be legitimate forms of bear hunting in Maine. Erskine Aft. ¶ 9. This has been so historically since at least 1959. Erskine Aff. ¶¶ 9. 11. The Commissioner and DIFW consider these methods to be not only the most effective forms o£ management of Maine's bear population, but also to be necessary and essential. Erskine Aff. 9. They believe the elimination of these forms of bear hunting in Maine would severely handicap their ability to effectively manage Maine's bear population. Id. DIFW takes the position that if bear baiting, hounding arid trapping were not permitted in Maine, the Maine bear population would grow and expand until bear numbers became limited by the amount of food their habitat could produce. Id. If this were to occur, more bears would die of starvation and disease and would be killed in order to prevent conflicts with people, and public .safety and property damage concerns as the result of bear activity would increase dramatically. Id.

         The Commissioner and DIFW, since at least 1989, have consistently interpreted their statutory directives and authority as requiring them to publicly encourage and promote bear baiting, hounding and trapping as legitimate forms of bear baiting and as effective and. necessary forms of bear management in Maine. Erskine Aff. ¶10. The Commissioner and DIFW have also consistently interpreted their statutory directives and authorities as obligating them to engage in affirmative public outreach efforts on bears, bear hunting (including bear baiting,, trapping, and hounding), and bear management in Maine, as well as on DIFW's views and positions on those issues, Id. ¶ 10.

         Historically, DIFW has taken a variety of actions to fulfill their statutory directives and to inform the public on DIFW's views on bears, bear hunting (including bear baiting, hounding and trapping) and bear management. DIFW's bear Fact Sheet, about which the plaintiffs complain, has been publicly available since at least 2004, Erskine Aff. ¶ 11, Ex. A, B, C. More recently, DIFW's actions, also about which the Plaintiffs complain, include the Commissioner holding a. press conference and issuing a statement in response to the announcement that the ballot question had been approved; DIFW employees appearing in and expressing DIFW's views during television advertisements that were filmed, produced .and paid for by Maine Wildlife Conservation Council ("MWCC"), and DIFW employees attending as guests banquets held by Maine Bowhunters Association and MWCC Erskine Aff, ¶ 16. At this point, DIFW has no plans to expend additional agency funds or resources to create YouTube videos supporting bear baiting, hounding or happing prior to the November 2014 ballot question. Erskine Aff. ¶ 14. Nor does DIFW plan to make any changes or updates to its informational Bear Fact Sheet, or to create any other DIFW visual media projects involving bears, bear baiting, hounding or trapping, or bear management prior to the November 2014 ballot question. Id. DIFW does, however, intend to continue to disseminate information to the public by releasing additional YouTube videos that were completed before the filing of the lawsuit, and to otherwise continue to encourage and promote through its existing website resources, social media, verbally, and in written form bear baiting, hounding and trapping as legitimate forms of bear hunting and as effective and necessary bear management practices in Maine, and to oppose ballot initiative Question 1. Id.

         DIFW opposes Question 1 because if it passes, it will lose the only effective Louis available in control the State's bear population, DIFW argues that it is protected by the government free speech doctrine. MFBH contend that this doctrine does not apply because they do not raise constitutional claims, rather they contend that DIFW is engaged in an unauthorized and ultra virus use of public funds for campaign activity, the full nature and extent of which remains unknown, to the plaintiffs because of DIFW's slow response to plaintiffs' FOAA requests. Plaintiffs contend that once the election is over,, there is no possible' relief to remedy the alleged violations by DIFW. MFBH seek in this motion to stop DIFW from "unlawfully and irreparably influencing the outcome of the election via impermissible political activity." (Pl's Mt. 18.) MFBH argues that the Department cannot use its resources, including staff time, to advocate only one side its a controversial question and undoubtedly influence the outcome of the election. Plaintiffs' motion asks this court to order DIFW "to cease further use of [DIFW] resources on campaign activity; to immediately remove partisan political content from [DIFW's] website, YouTube channel, Facebook page and other media outlets; to immediately terminate the dissemination of television advertisements produced using DIFW staff time and resources." (Pl's Mt 20.)

         The intervener Maine Wildlife Conservation Council ("MWCC”) is a Ballot Question Committee formed to influence the statewide referendum on Question 1. MWCC owns the TV advertisements and opposes the plaintiffs' motion as an impermissible prior restraint on its free speech rights. There is no dispute, for the most part, that DIFW and the Ballot Question Committees, such as MWCC, are working with DIFW to influence the outcome of the referendum; therefore, the court will not repeat here the specific claims of the plaintiffs[2] concerning the ways that DIFWs campaign activity exceeds the authorized "fair comment" and ''dissemination of information". Rather, the court will address whether DIFW can be restrained as plaintiffs request. [3]

         Even if the. plaintiffs were to prevail on (heir ultra vires argument, they have failed to demonstrate that the government free speech doctrine is inapplicable, they will suffer irreparable harm, and the public interest will not be adversely affected by granting the "TRO. The alleged harm is that DIFW's activity will influence the outcome of the election, notwithstanding die effort of the plaintiffs to reach out to the voters to inform them of the value and benefits of enacting the referendum. Influencing the outcome of the election is precisely what DIFW hopes to do. DIFW believes, based on its experience and expertise, that it is obligated to publicly encourage and promote bear baiting, hounding and trapping as legitimate forms of bear hunting and as effective and necessary forms of bear management in Maine, DISCUSSION

         Temporary Restraining Order

         On a motion for a temporary restraining order (TRO), the moving party ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.