Number 9 November 4, 1971

Number 9 November 4, 1971 Honorable Kevin B. Harrington President, Massachusetts Senate Senate Lobby State House Boston, Massachusetts 02133 Dear Senator Harrington: I am in receipt of an order of the Senate which requests my opinion on the following question: "Would H. 5982, entitled 'An Act relative to the territorial wa- ters of the Commonwealth and extending the authority of the Di- rector of the Division of Marine Fisheries' if passed, violate any P.D. 12 63 provision of the Constitution or laws of the Commonwealth or of the United States?" Subject to the discussion and caveats contained herein, I answer the question in the negative. H. 5982 would amend Chapter 130 of the General Laws by adding a new paragraph 10 to section 17 thereof. Section 17 deals with the powers and duties of the Director of the Division of Marine Fisheries. As amended, section 17 would provide, in pertinent part: "(10) Notwithstanding any contrary provision of law, with the exception of chapter 130 of the General Laws of the Common- wealth of Massachusetts, adopt, amend, or repeal all rules and regulations, with the approval of the Governor, necessary for the maintenance, preservation and protection of all marine fisheries re- sources between the mean high water mark of the commonwealth and a straight line extension of the lateral boundaries of the com- monwealth drawn seaward to a distance of 200 miles or to a point where the water depth reaches 100 fathom [sic], whichever is the greatest. Any person, firm or corporation convicted of violating any rule or regulation authorized under the provisions of this paragraph shall be punished by a fine not to exceed ten thousand dollars ($10,000.). Violations may be prosecuted in any superior court within the Commonwealth of Massachusetts." H. 5982, therefore, provides the Director of the Division of Marine Fisheries with broad rule-making authority. He may "adopt, amend, or repeal all rules and regulations . . . necessary for the maintenance, pre- servation and protection of all marine fisheries resources ..." located in area between "mean high water" and a line approximately two hundred miles from shore. The bill does not require that the Director take any action, nor does it prescribe or specify what rules and regula- tions are to be adopted, amended or repealed. Complete discretion re- sides with the Director, subject to the approval of the Governor. In this posture, it is conjectural as to just what use the Director will make of his powers if the bill is enacted into law. It is possible that he will adopt rules which would have the effect of preserving and protecting the marine fisheries resources within the designated area even though such rules were enforced only within the territorial waters of the Com- monwealth. It is also possible that the Director will decide to limit his rule-making authority to adopting rules and regulations which affect or are to be enforced only against residents of the Commonwealth, even though such rules will be effective within the entire two hundred mile area. Such enforcement against residents of the Commonwealth could well, depending upon the exact facts of the situation, be constitutional. Skiriotes v. State of Florida, 313 U.S. 69. 72-79. In conclusion, then, it is my opinion that H. 5982 per se does not con- travene any provision of the Constitution or laws of the Commonwealth 64 P.D. 12 or of the United States. I intimate no opinion whatsoever whether the Commonwealth could establish jurisdiction over an area two hundred miles seaward and enforce rules or regulations of one of its agencies within that area as to persons not residents of the Commonwealth, since that question is not presented by the request for an opinion. Such an opinion could only be given on a precise state of facts which is not now before me. Very truly yours, ROBERT H. QUINN Attorney General