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Watercraft Ban a Test of State's Reach

April 14, 2008 - LIBERTY -- Three years ago, Mark Haskell bought a $13,000 Sea Doo personal watercraft and set out to break the law.

He took the watercraft out on Lake St. George on the Fourth of July, fittingly in the central Maine town of Liberty, where he owns a camp. Residents there had voted a few years earlier to ban such machines from the lake, and the Legislature approved the ban.

That didn't sit well with Haskell, a self-described rabble-rouser who felt his individual rights were being trampled. He welcomed the ticket he got from a warden, and he has taken his case all the way to the state's highest court.

On Thursday, the seven justices of the Maine Supreme Judicial Court heard arguments in Portland. At issue is whether the state – at the request of individual towns – has the right to ban personal watercraft on lakes and ponds.

The machines are already banned on about 60 lakes and ponds in populated areas, and hundreds more in unorganized territories controlled by the state.

Those bans could face legal challenges if the court rules for Haskell, 54, who splits his time between Camden and Liberty. A ruling against him would uphold the bans, and would be a blow to personal watercraft enthusiasts and the industry. The justices could take weeks or months to issue a ruling, so any impacts likely will not come into play this year.

"It's a huge case on both sides of the issue," said Ken Bailey, a lake warden for the town of Camden, and executive director of the Megunticook Watershed Association.

"There will be a lot of people staying tuned. Personal watercraft users and other recreational boaters, canoers, kayakers, fishermen, property owners," Bailey said. "Everybody has a stake on these lakes for different reasons."

Ever since Haskell set out to challenge the state law, the matter appeared headed for the state's top court.

The judge at Waldo County Superior Court, who ruled in favor of Haskell last October, noted that fact when he got the case.

"It seems to me, from the get-go, this has been an issue that is begging to be resolved as a matter of law," Justice Donald Marden said.

The state appealed, sending the case to the Supreme Judicial Court.

Gerald Reid, the assistant attorney general representing the state, told the court Thursday that Haskell's quest should have gone through the Legislature, not the courts.

"The Jet Ski ban implicates no constitutionally protected, fundamental right," Reid told the justices.

It's rational and appropriate for the state to approve local bans, based on the will of the townspeople, Reid said.

He also said personal watercraft are different from any other machines on the water, because of their blend of speed and maneuverability.

"Jet Skis also pose a unique threat to public health and safety," Reid said.

Haskell was represented by attorney Michael Kaplan of Preti Flaherty in Portland.

During Thursday's hearing, Kaplan said state lawmakers have the right to ban activities on Maine's lakes and ponds, but they must have solid reasons and evidence to take such severe action.

A popular vote in one town – 46 people in the case of the Liberty vote – does not pass that test, he said.

Lakes and ponds larger than 10 acres are owned collectively by the people of the state, not by towns or private parties. Nearly 3,000 bodies of water in Maine fall into that category.

Kaplan said no evidence has been presented to legislators suggesting that personal watercraft are any more of a threat to public safety, or any more of a nuisance, than other craft allowed on ponds and lakes. Instead, the bans are generally based on a bias against a single activity, Kaplan argued.

"This is pure local prejudice," Kaplan said after the hearing, which Haskell attended.

"Don't pick on me because of the size and shape of my boat," Haskell said. "The myth is that they go too fast. A lot of boats go too fast. What if we banned red convertibles because people think they go too fast?"

PERSONAL WATERCRAFT RESTRICTIONS

PERSONAL WATERCRAFT have been banned on the following bodies of water in southern Maine:

NAPLES: Trickey Pond, Brandy Pond between sunset and 9 a.m.

POLAND: Tripp Pond, Upper Range Pond and Middle Range Pond.

PHIPPSBURG: Big Pond, Wat Tuh Lake, Center Pond, Silver Lake and Meetinghouse Pond.

WATERBORO: Middle Branch Pond.


By TREVOR MAXWELL, this article first appeared in the Portland Press Herald, April 11, 2008.

Lakes: Lake George
Regions: Belgrade


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