In the course of my 30 year career in public service deeply immersed in the making of law and regulation..looking to law and regulation to solve the social and economic problems to which my work was addressed …it became obvious that every law is a confession of cultural failure. If we governed ourselves wisely, conducted our lives and business in wisdom we wouldn’t need laws and regulations beyond the “Common Law. Behind every law is a piece of our history in which ” we the people” failed to act with collective wisdom. We pass our cultural and historic failures off to an endlessly growing tangle of laws and regulations believing that the law through enforcement and penalties will correct the cultural failure. And it does work, of course, or we wouldn’t keep doing it but the change we effect through law and regulations comes about ploddingly, awkwardly, haltingly, confusingly and painfully.
When I returned to Maine 12 years ago to take up residence here on this beautiful remote island, exhausted from 10 years in the tangle of impossibility presented by environmental laws and regulations I was shocked to hear “the locals” here refer to all State and Federal laws as “unfunded mandates”. A recent tale of conflict between laws intended to protect the whales and the economic hardship most of our working waterfront suffe rbrought to light in heart breaking clarity the fragmentation of our legislative system and our over reliance on it as a n instrument of growth and change.
Last week as my caretaker and I were chatting during a break about his island connections . I learned that the place name of a favorite kayaking route was named for his family.. My caretaker is a hard working bright young lobsterman who works for me between seasons.He is strong, reliable, honest, inventive. I told him how much I loved that area of our shore and that one of my most amazing wildlife sightings had happened there in what we all call “the deep hole” . Kayaking with a friend we were rocked by the wake of a humpback whale surfacing out of that hole. We thought we saw a second smaller whale with her..a calf perhaps we thought. She dove again and in seconds we caught sight of her and her calf an amazing distance from us . “I know”, he said. Some of the guys saw it too. They killed it and sank it because they were afraid if word got out protections for the whale would cost the fishery more than it could afford.”
At first blush, people who live in cities, and people who are animal rights activists would just denounce the actions of those fisherman as ignorant..denounce them as red neckswith a flagrant disregard for the law.… that’s what we do when something shocking to our sensibilities happens..whether on a grand scale like the BP drilling failure or small , local and secret like the killing and sinking of this whale. But if we have the courage and wisdom to rise above that automatic condemning and blaming we might see that what is broken is the legislative system itself and the way we have come to use it and abuse it.
The fisherman weren’t correct that knowledge of this whale’s presence in the Deep Hole would have brought any protective action that would have had any impact on the fishery. She was most likely just sleeping there on her migration further downeast. And their action may have been motivated as much by fear that she would eat more herring than they wanted to share with her. (Price and availability of herring, a principal bait fish in the lobster fishery, is a big problem here.) But our fishery had a very tough time complying with recent whale protective legislation which required most to get all new line..a major and impossible expense for many here. Line is expensive and the amount of line needed to fish 500 traps is more than those of us who only eat lobster can imagine.
Behind the BP story are important questions we all should have been looking at and concerned about..who regulates drilling? Who actually grants the license to drill? Are there international laws? What hold harmless and indemnity is required and what financial backing for that? What the incident revealed was a very corrupt very broken legislative and regulatory system. Has that been repaired and reformed? Do any of us know?
Behind the killing and sinking of my beautiful whale is also a story of a broken and discontinous fabric of law and regulation. The fisherman’s fear of that system is real..it’s valid..it’s something we should listen to and understand because it contains an important truth. But it’s easier for most of us just to condemn them as ignorant red necks with no respect for the law and to grieve for the whale than to take up the very hard work of understanding what really happened and what it really means.
Cove Meadow March 25, 2011