Conservation, Policy and the Role of Counsel

The conservation interests in the State of Maine have been roused to a furor by the decision of Maine's highest court in State v. Johnson. The case, in substance, holds that Maine's Wetlands Act is unconstitutional when applied to prohibit the filling of a specific segment of salt water marsh. While both the decision and the underlying statute are of considerable substantive interest, the case deserves particular study for the light it sheds on the role of counsel in helping the legal process accommodate new policy concerns. A note of caution must, of course, be sounded before seeking to generalize too broadly from a single example. It is always possible that a case of major significance may arise among private parties, or even between government and private parties, without its importance being recognized by those directly involved. Such was not the case with Johnson. When the permit to fill the marshland was denied and the owners sought judicial review, it was recognized as the first contested case to arise under the new Wetlands Act. The parties and the trial justice sought to expedite appeal of the case, the landowners seeking an immediate declaration of the unconstitutionality of the Act. The expedited appeal was rejected, and the case was remanded for the taking of evidence. At that early stage the Natural Resources Council of Maine had already entered the case as amicus curiae, and a law school faculty member who had helped draft the legislation participated in preparing the amicus brief. The case also received comment in a recent study of laws affecting marine resources in Maine. It is precisely because it was a cause celebre by the time of trial that the case deserves careful analysis as an example of the lawmaking process.