PORTLAND, Maine — The Maine Supreme Judicial Court next week will hear an appeal by Mainers for Fair Bear Hunting over what the group claims were improper tactics used by the Maine Department of Inland Fisheries and Wildlife during the Nov. 4, 2014, election.
The lawsuit, filed Sept. 30, 2014, attempted to stop the DIF&W from spending taxpayer dollars to oppose the referendum that sought to ban bear baiting and other practices. Maine Superior Court Justice Joyce Wheeler dismissed the lawsuit on March 31, 2015, finding the issue was moot since the election was over.
Voters rejected the citizen-initiated referendum to ban bear baiting, hounding and trapping 54 percent to 46 percent.
Five weeks after the election, it was determined that DIF&W spent at least $31,000 on campaign materials, television ads, debate coaching and staff time to fight Question 1. The spending was detailed in internal agency documents and invoices released to the Bangor Daily News under the Maine Freedom of Access Act.
Mainers for Fair Bear Hunting is asking Maine’s supreme court to reverse Wheeler’s decision and find that “DIF&W’s unlawful campaign activities continued after the November election, are ongoing, and continue to harm [the organization’s] efforts to reform Maine’s inhumane bear management policies.” The organization claims that those expenditures and the department’s efforts were ultra vires, Latin for “beyond the powers,” granted it by the Maine Legislature and continuing.
“Specifically, DIF&W continues to expend agency resources maintaining political content on its website and YouTube channel, and distributing political content contained in its 2014-15 Hunting and Trapping Laws & Rules pamphlet,” Rachel Wertheimer, the attorney representing Mainers for Fair Bear Hunting, wrote in a brief.
The attorney for DIF&W disagreed in her brief.
“DIF&W had already ceased expending agency resources on Question 1-related activities by the time of the election on Nov. 4, 2014, and as of October 2014, had no expectation of future expenditures,” Assistant Attorney General Emily Green wrote on behalf of DIF&W. “However, DIF&W continues to fulfill its statutory directives by encouraging and promoting (through existing website resources, social media, verbally and/or in written form) bear baiting, hounding, and trapping as legitimate forms of bear hunting and as effective and necessary bear management practices in Maine.”
In a footnote, she said that DIF&W employees attend about 200 speaking events, forums, banquets and similar events a year and cover a broad number of topics.
Green maintained in her briefs that state law allows DIF&W to inform and educate the public about fisheries and wildlife issues.
“Since at least 1989, DIF&W has consistently interpreted its statutory authorities as directing it to publicly encourage and promote bear baiting, hounding, and trapping as effective and necessary forms of bear management,” Green wrote. “DIF&W has also consistently interpreted its statutory directives and authorities as obligating it to engage in affirmative public outreach efforts on bears, bear hunting and bear management, as well as on DIF&W’s views and position on those issues.”
Daniel Murphy and Paul McDonald, attorneys for the Maine Wildlife Conservation Council, an intervenor in the case that opposed Question 1 in 2014, said in their brief that “the central question presented in this appeal is whether [Mainers for Fair Bear Hunting]’s extraordinary request to enjoin and censor advocacy prior to the Nov. 14, 2014, vote on a statewide ballot measure has any remaining controversial vitality long after the close of the election.”
While many pages in the briefs focused on whether DIF&W went beyond its statutory powers by advocating the defeat of Question 1, the justices most likely will focus their questions on whether the issue was properly declared moot by Wheeler or not. Historically, the Maine Supreme Judicial Court rarely has ruled on the merits of the underlying claims in cases dismissed as moot by a lower court judge. It has either affirmed the decision or sent it back for the lower court judge to rule on the merits.
The justices will hear the case at 11:30 a.m. Wednesday, Feb. 10, at the Cumberland County Courthouse.
BDN writer Aislinn Sarnacki contributed to this report.