Maine Island Forbids Entry (Including to Part-Time Residents and Property Owners)

Sadly for S.M. Stirling fans, it's not Nantucket (which hasn't been in the same state for 200 years in any event).

I quote key parts of the proclamation below; for more, see this Courier-Gazette (Stephen Betts) article (which also notes that "The island has an estimated year-round population of 355, but that swells significantly during the summer" and "The town held its annual town meeting on Saturday and concerns were voiced by some residents about the impact of seasonal residents arriving, possibly carrying the new coronavirus").

My quick reaction:

(1) I think a state could constitutionally enact such restrictions, as an emergency quarantine measure, but I'm skeptical that the particular statutory provisions cited below authorize towns to do the same on their own, and my quick search didn't find any Maine statutes that would indeed so authorize towns.

(2) I don't think municipalities are legally entitled to enact such restrictions in the absence of statutory authorization, though I might well be mistaken.

(3) The town might hope that, even if the proclamation is ultimately held legally invalid, it will deter some people from coming.

WHEREAS, the Town of North Haven, Maine, is situated on an island of the same name lying twelve miles off the coast of Maine; …

WHEREAS, the Town of North Haven operates a non-terminating medical facility known as the North Haven Clinic;

WHEREAS, the North Haven Clinic is staffed by one nurse practitioner and is not licensed or operated as an emergency medical facility;

WHEREAS, patients with serious emergency medical conditions, including patients with COVID-19 requiring hospitalization, must be transported to a mainland emergency medical facility by ambulance on a Maine State Ferry Service vessel;

WHEREAS, transporting patients who are potentially positive for COVID-19 leaves the Town without a nurse practitioner, without a lead Emergency Medical Technician, and without its one ambulance for at least three hours;

WHEREAS, the Town has a limited supply of medical equipment, personal protective equipment, and medicine to treat potential COVID-19 cases; …

WHEREAS, the North Haven Select Board has considered the above factors [see here for the whole list], including the limited availability of people, equipment, and supplies needed to support the island's population, and believes it needs to take steps to protect the people who live on the island from the effects of COVID-19;

WHEREAS, a board of selectmen under Title 30-A Maine Revised Statute, section 2635 shall "as a body shall exercise all administrative and executive powers of the town" except as otherwise provided by State law; and

WHEREAS, Title 30-A, Maine Revised Statutes, section 2109 states that a municipality's home rule authority "shall be liberally construed" to effect activities for the "welfare of the municipalities and their inhabitants";

NOW THEREFORE, in order to best protect the people of the Town of North Haven from the spread of the novel coronavirus known as a COVID-19, the North Haven Select Board hereby orders:

[1.] All travel to the island shall be limited to travel for "essential purposes," as defined below;

[2.] People who do not reside on the island fulltime may not travel to the island due to the significant increase in risk associated with the transmission of COVID-19;

[3.] Contractors who work on the island but do not live on the island may not travel to the island due to the significant increase in risk associated with the transmission of COVID- 19;

[4.] Travel for "essential purposes" shall mean to receive or provide medical care, to provide direct caregiving to people who reside on the island; to resupply bulk food items, fuel, and other products required for human consumption, habitation, and wellbeing; to conduct law enforcement activities, to fulfill Knox County, State, or Federal obligations and to perform duties related to those obligations; and travel for other similar purposes associated with lifesaving, firefighting, and other activities related to the emergency care of persons or property;

[5.] For the time being, "essential travel" shall also include travel to the mainland and back to North Haven Island for the purpose of obtaining groceries and other essential items;

(Note: This may change should the likelihood of an outbreak of COVID-19 increase. The Town of North Haven is working with North Haven Grocery and Penobscot Island Air to arrange for shipment and pick-up or delivery of groceries and other essential items at the North Haven Grocery or via Penobscot Island Air or the Maine State Ferry Service. The Select Board strongly encourages people to order their groceries, foodstuffs, and other necessaries through the North Haven Grocery or from a service that will deliver the items via the Maine State Ferry Service or Penobscot Island Air. The Town will also coordinate efforts to screen and obtain volunteers to help with the delivery of groceries and other essential items to persons who are quarantined or who are otherwise unable to obtain these items themselves. Volunteers would be asked to place the items on people's doorsteps; not to come into contact with quarantined people directly.)

[6.] For the time being, "essential travel" shall also include delivery of building supplies and materials needed for island residents to perform their jobs;

(Note: This may change should the likelihood of an outbreak of COVID-19 increase. The Town will work with Viking, Spears, and other suppliers of building materials and other materials needed for island residents to perform their jobs to find ways to obtain needed materials in a manner that minimizes the likelihood of transmission of COVID-19.)

[7.] People on the island shall avoid close human contact with people other than their families or others with whom they reside;

[8.] People on the island shall not meet in groups larger than ten persons, unless a family gathering would include more than ten persons; …

Thanks to commenter Dr. Ed for the pointer.

Comments

[dangfitz]

Notice the wide exception for government: "to conduct law enforcement activities, to fulfill Knox County, State, or Federal obligations and to perform duties related to those obligations". If they were serious, these things could also wait.

[Dr. Ed]

Note also that those who provide "caregiving to people who reside on the island" are permitted onto the island. That's likely how the Wuhan Virus got into the nursing home in Washington State.

[Mark Leen]

Does the town have home rule? That may give it broader authority.

[Pettifogger]

Good point. I know nothing about this town, and nothing about Maine law, much less Maine local government law. But in Texas at least, home-rule municipalities have full police powers except as denied to them by statute. Assuming Maine law is similar and assuming the town is home rule, the question becomes more interesting.

But at a permanent population of 355, I'd be surprised if Maine let it be home rule. As best I recall, the minimum population for a home-rule city in Texas is 5,000. Smaller cities are general law cities, which only have such powers as have been specifically delegated to them.

[grberry]

All Maine towns and cities have home rule authority.

Title 30-A, Section 2001: "7. Home rule authority. "Home rule authority" means the powers granted to municipalities under chapter 111; section 3001; and the Constitution of Maine, Article VIII, Part Second." "8. Municipality. "Municipality" means a city or town, except as provided in chapter 225." [Chapter 255 is for the Maine Municipal Bond Bank.]

Same title, Section 3001 "1. Liberal construction. This section, being necessary for the welfare of the municipalities and their inhabitants, shall be liberally construed to effect its purposes.

Any municipality, by the adoption, amendment or repeal of ordinances or bylaws, may exercise any power or function which the Legislature has power to confer upon it, which is not denied either expressly or by clear implication, and exercise any power or function granted to the municipality by the Constitution of Maine, general law or charter."

clause 2 of that section is a presumption of validity, clause 3 limits what can can be evidence of implied preemption by the state legislature.

See http://legislature.maine.gov/statutes/30-A/title30-Ach0sec0.html and subpages.

[Pettifogger]

So then the question is whether the rules are somehow unconstitutional. Others discuss that below, but I'm not convinced an unconstitutionality argument is a winner.

[SQRLSY One]

If I own property there, but can NOT visit my own property, can I stop paying property taxes for that reason, and still retain ownership? If not, isn't this some sort of "taxation without representation"? Didn't our ancestors fight, and kill some despots, over this kind of thing?

[vek]

That sucks... But do you really not understand the concept of an emergency situation?

Stuff that is completely unacceptable in normal times can become necessary in other times.

One can argue this is a bit extreme for the situation, as I think some other things being done elsewhere are... But would you say the same if the death rate of this was the same as Ebola, 90%?

I think it would seem mighty reasonable at that point. Nobody is proposing this become permanent... So you just gotta lump it buddy.

[Dr. Ed]

"People who do not reside on the island fulltime may not travel to the island due to the significant increase in risk associated with the transmission of COVID-19

That's the problem -- it creates two classes of people and denies one their legal (property) rights without any rational basis -- unless one can argue that "fulltime" residents are somehow immune to becoming infected when they are ashore.

So you have one class of people who are free to come and go as they please -- there are three ferries a day -- and another group which is not. This is very different from saying that *no one* can go, i.e. shutting down the ferry, or restricting it to only law enforcement and such.

Look at this a different way -- what if they said "No Asians"? That actually would be slightly more rational than what they are doing here, and I somehow suspect that might not be tolerated....

[Krayt]

it creates two classes of people and denies one their legal (property) rights without any rational basis — unless one can argue that “fulltime” residents are somehow immune to becoming infected when they are ashore.

It seems perfectly rational. It's a far cry from local visits to a supermarket and letting in people who may be strewn across the country...or the planet. And sheer numbers increase the risk, too.

They just aren't the right level of government or people to strongarm things.

[Krayt]

That's sarcasm, by the way.

[Dr. Ed]

It’s a far cry from local visits to a supermarket and letting in people who may be strewn across the country…or the planet."

Year-round residents routinely go to assorted places around the planet, and there is no restriction on their return. And then anyone providing home care to any island resident is free to come out there -- and that's a high-risk group as they are providing care to a whole lot of other people as well.

This is not local visits to the supermarket, as much as they wish to make it look like that.

[vek]

As I said, I think it's a bit much... But the fact sis basically ANY restriction of travel right now will have a material benefit to the spread... The question is is the benefit worth the cost?

How do you know they aren't going to demand a mandatory quarantine for every permanent resident when they get back to the island? That's what the town in Colorado during the Spanish Flu did, and they didn't have a single illness in the community, OR a single death... Until the lifted the blockade, then 100 people got sick, and 7 died IIRC.

This shit works, it's just a question of practicality.

Personally, I've never bought into the nonsense argument that you can't profile people. I think profiling is EMINENTLY reasonable, logical, and intelligent in MANY instances. Just because the liberal retards are against using logic, hence demand equal treatment no matter what, ignoring that externally identifiable factors are often valid for sorting purposes, doesn't mean I have to buy into that nonsense.

Again, I think this is over the top... But in a small community like that I can understand why they'd rather tell vacationers to fuck off so that their buddy Bob, that they've known for 40 years, doesn't die. And if implemented intelligently, with quarantine upon return, this would statistically save perhaps a couple lives just on their silly little island.

[Dr. Ed]

I'm thinking more of the "taking" clause -- they are denying you the use of your property for a use (residence) that they are permitting others to use theirs for.

[vek]

Yeah, it's totally fucked... But again, during a short term emergency, totally fucked things might be the best possible alternative.

I would be more open to them requiring a mandatory quarantine for ALL people coming to the island, and for said people, whether full time residents or not, to have to pay for the costs of medical supervision should it be needed.

That allows people to come and go if they want, and it is equally applied... There's just an up front and known cost if you want to do it during this slow moving disaster.

[Dr. Ed]

"I would be more open to them requiring a mandatory quarantine for ALL people coming to the island, and for said people, whether full time residents or not, to have to pay for the costs of medical supervision should it be needed."

That would make sense, but that's not what they are doing.

One group of property owners are free to come and go (anywhere) as they please -- and have others to come out and provide care to them -- while another group are totally banned.

[Dr. Ed]

"A local who visited the mainland is just as likely to get sick as anybody else."

My point exactly -- and they won't do this. Because this has no more to do with rationally keeping the virus off the island than the Jim Crow laws had to do with their purported purposes.

The problem I have is that a "yearround" resident returning from a 2 week vacation in Italy is free to return to the island, while a less medically risky person is denied his right to return to his home because of his residency status. How is that not an equal protection issue?

And is an unconstitutional act justifiable because the other actions aren't?

[Dr. Ed]

It's like New York City Mayor Bill DeBlasio saying he's allowed to go to the gym when no one else is allowed to because he is more important.

[Stephen Lathrop]

Ed, you might reason that from the point of view of the island, the virus is elsewhere. So people who live elsewhere—essentially spending all their time among exposures to the virus which local residents do not have—are more hazardous if they visit the island than are island residents who leave, and then return after lesser exposures. Add to that the fact that folks who live elsewhere presumably have less need of life on the island than the folks who live on the island do.

That may not be enough to defeat an equal protection argument, but to me it seems like a pretty good argument for ignoring equal protection in that limited case. The conspicuous weakness which all arguments about rights share—as Franklin noted—is that they preclude every other way of looking at a problem. So another question becomes, how much preclusion is too much?

[James Pollock]

Surely someone owns the property used to get on and off the island (boat docks, and the like) and has the power the exclude others from it property.

[Dr. Ed]

Yes, the State of Maine does -- the Maine Department of Transportation owns the ferry terminal, and the roads beyond it are public streets maintained by the town (with state highway aid), and considered public ways under state law.

I believe that the airport is similar to the one on Matinicus -- privately owned, exclusively used by Penobscot Island Air (an air-taxi outfit), but maintained with Federal funding which makes a very interesting legal issue.

This is not a private island -- never has been, it was first incorporated (as part of the adjacent island of Vinalhaven) as a town in 1760 and then became its own town in 1846. What needs to be understood about Maine is that prior to the 1920's, all transportation and commerce was done by water, not land -- and the advantages the islands had was that their harbors didn't freeze in the winter.

The M/V North Haven, the first state ferry to serve North Haven, was built in 1958. I believe (but am not certain) that it came about as part of the National Defense Highway programs, particularly as the original ramp at the Rockland terminal had a plaque stating it was designed to hold a M-something US Army truck.

The MDOT says that the deck of the state ferry is considered a state highway and hence this is a town closing a state highway.

Conversely, this ban would prevent people with privately-owned boats from docking at their own privately-owned wharves....

[Krayt]

"You have to die because we threw money at you."

Also, today Volokh/Reason has ads that have a hidden overlay of the whole screen, intercepting, and sometimes interfering with, button presses on other things. This should stop.

[Doug Huffman]

I live on just such an island. The impoverished town government has a contentious relationship with the ferry company, wanting to impose a tourist tax on a state regulated business and tariffs.

A shutdown of the tourist trade would strangle the town, 54246.

I have been away for a month and have not heard of such plans. I don’t plan to return Home from sunny Florida for another six weeks.

[vek]

I used to live on such an island in Washington state. It was cool I guess, but weird.

In such a small community I can really see how people are like "I don't give a shit if it sucks, or if the economy is shitty... I don't want all my friends and family dying because some dick from the mainland wanted a weekend getaway to his cabin after getting back from Italy!"

[Dr. Ed]

It's more like racism in the Jim Crow South -- "I don't care if I'm poor because I'm better than the "Flatlander" who was born in Massachusetts" - with "Flatlander" being the kin to the racial slur that was commonly used.

[Absaroka]

I'll leave the legal questions to people who are qualified, but the 'full time residents' part seems ethically problematic to me. It seems to say that part time resident Alice, who happens to be returning from a short trip to Atlanta and wants to live on her farm is SOL, while full time resident Bob who is returning from Italy to the Senior Home can come home. That seems sketchy to me.

[Dr. Ed]

It gets better, Absaroka -- the other question you need to ask is who gets to define "full time resident."
It often has a lot to do with where you were born, and whom you are related to -- that's the underlying issue here.

[vek]

As I mentioned above, this is ONE thing they're doing... They may decide to have mandatory quarantines for all before they go free on the island still... Frankly they should if they're going to go this far to begin with! A local who visited the mainland is just as likely to get sick as anybody else.

[Dr. Ed]

"A local who visited the mainland is just as likely to get sick as anybody else."

My point exactly -- and they won't do this. Because this has no more to do with rationally keeping the virus off the island than the Jim Crow laws had to do with their purported purposes.

The problem I have is that a "yearround" resident returning from a 2 week vacation in Italy is free to return to the island, while a less medically risky person is denied his right to return to his home because of his residency status. How is that not an equal protection issue?

And is an unconstitutional act justifiable because the other actions aren't?

[Dr. Ed]

I think a state could constitutionally enact such restrictions, as an emergency quarantine measure

Would there not be a requirement that it be "rational" -- I'm thinking "equal protection" here. For example, even though she's been down to DC all winter, Congresswoman Chellie Pingree (D-ME) is free to come and go as she pleases because she is considered a "fulltime" resident, while others who are at far less of a risk of transmission are excluded.

Likewise, there is this gem: " People on the island shall not meet in groups larger than ten persons, unless a family gathering would include more than ten persons" -- I'm not questioning their authority to ban groups of more than ten people but the equal protection aspects of the "family gathering" exemption. ("Family" could include half the island...)

"(3) The town might hope that, even if the proclamation is ultimately held legally invalid, it will deter some people from coming."

No, they're hoping that the State Ferry Service and the (private) Air Taxi service will enforce it for them --- which is how some other questionable things have been enforced in the past. It appears that the Ferry Service wants no part of this, stating "we are not a law enforcement agency" and the Sheriff's Department is seeking legal advice.

My question is to 46 USC 1983 liability. Am I correct that "sovereign immunity" would not apply -- that the "color of law" statute is under the auspices of the 14th Amendment and hence bypasses the 11th?

[Peter Gerdes]

I wonder if residing there fulltime is defined. If I live half the year in two places do I live in either fulltime? Does that make the statute vague?

[Doug Huffman]

The taxman has that answer.

[Alpheus W Drinkwater]

The outer banks of NC (Dare County) has passed similar entry limitations, but nowhere near as strict. Non-resident property owners and employees/contractors can still enter with proof of ownership or employment.

The bigger issue is the tens of thousands of weekly renters who have already paid their rents, or have made substantial down payments. They are not allowed to enter. Because the rental agencies have all moved to voluntary vacation insurance rather than offering refunds in this situation, many tourists might be out substantial amounts of money, depending on how the insurance companies end up handling this. A few of them have already announced that per the terms of the policies, they are not required to pay out in this situation. Plus no one knows how long the travel restrictions will last.

[Dr. Ed]

This strikes me as a rather messy class action suit -- and with substantial amounts of money at stake, I suspect it will become one.

But how does the travel insurance not pay?

And the other wild card here is how much of this was paid with either MasterCard or Visa, both of which have vendor recharge provisions for nonperformance....