Ruling on personal watercraft to make waves on Maine lakes

BELFAST – A Camden man who intentionally challenged the personal watercraft law by riding his Sea-Doo on Lake St. George two summers ago has been found not guilty. The case is likely to have an impact on other communities across the state that have set similar restrictions on personal watercraft.

In a ruling issued in Waldo County Superior Court last week, Justice Donald H. Marden ruled that Mark W. Haskell was not guilty of the civil offense because the personal watercraft law was a violation of his “substantive due process rights.”

Marden described the state law allowing municipalities to prohibit personal watercraft from bodies of water within their boundaries as “unduly arbitrary.” The ban on Lake St. George was enacted at the 2005 town meeting.

Haskell, 54, of Camden, who owns property on Lake St. George, intentionally set out to challenge the town’s ban that summer. He succeeded at 1:50 p.m. July 3, 2005, when game warden Mark Merrifield, who was patrolling the lake in his boat, observed Haskell riding his Sea-Doo.

Merrifield was aware that the town prohibited personal watercraft on the lake, and when he approached Haskell, Haskell told him he disagreed with the ban and asked to be issued a ticket. Haskell told Merrifield he wanted “to contest the law and fight it,” according to court documents.

During the trial, witnesses testified that inboard and outboard motors were allowed on the lake and that many were much louder than personal watercraft motors.

Merrifield and other wardens testified that they use personal watercraft for patrols and that they generally make a smaller wake. Merrifield testified that jet-powered boats were not banned from the lake and that Lake St. George was also used by seaplanes.

Also entered as evidence was a New Jersey newspaper article describing sound tests of personal watercraft and powerboats that concluded that the “water jets” were more quiet. Noise tests conducted by the New Jersey State Police Marine Law Enforcement Bureau reached similar conclusions, according to the ruling. Also presented as evidence was an Environmental Protection Agency finding that personal watercraft emissions were lower than outboard motors of similar power.

Documentation from Florida that indicated that “flushing distances” of watercraft on waterfowl showed that 65 percent of the species studied showed no difference in flush distance by the approach of either a powerboat or personal watercraft.

“Despite their reputation for noise and wildlife disturbance, the direct approach of a personal watercraft rarely elicited a greater flush distance. Rather, where there was a significant difference in the flush distance, the conventional outboard powered boat most often exhibited the larger flush distances,” according to the study.

Justice Marden noted that the state has many laws in place that govern the operation of all types of watercraft.

In his ruling Marden stated that “the threat to the public welfare is created not by the instrument, the boat, but by the nature of its operation.” He stated that “the unrebutted information is that when a personal watercraft is operated responsibly, not in violation of the many rules and regulations regarding such personal watercraft, it is not more dangerous to the environment, to wildlife and to others than powered boats, snowmobiles or marine aircraft.”

Marden also noted a 1919 Supreme Court opinion that clarified the “right of the individual to fish and fowl” on the state’s great ponds “provided he can do so without committing trespass.” It also established the “right of boating, baiting, cutting ice” as public purposes. Boating was a “fundamental right,” Marden ruled.

“The state argues that the defendant has the right to fish or fowl but not for recreation,” Marden wrote. “The argument is irrelevant. The fundamental right is for boating whether it is for recreation or any other purpose.”