The Fisherman and the Whale:Tale of a Disconnected Legislative System

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’s’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








About lindsaynewlandbowker

Bowker Associates, Science & Research In The Public Interest, is an independent non profit providing self initiated pro bono analysis on key issues with a potential for massive adverse environmental impact . Bowker Associates has been an internationally recognized and cited voice in analysis of the Samarco failure, its consequence, and the possibilties for recovery. In 2017 we partnered with Daveid M. Chambers, a world leader in responsible mining, in our third joint work on the economics of tailings failures. Bowker, L.N.; Chambers, D.M. In the Dark Shadow of the Supercycle Tailings Failure Risk & Public Liability Reach All Time Highs. Environments 2017, 4, 75. A peer reviewed journal published investigation of the cowboy economics of the supercycle and the resulting escalation on the number and magnitude of catastrophic failures. In 2016 we parnered with Dave Chambers in our 2nd joint work together looking at root causes of failures at a conference . Bowker, L.N.; Chambers, D.M. Root Causes of Tailings Management Failures: The Severity of Consequence of Failures Attributed to Overtopping 1915–2015. In Proceedings of the Protections 2016, Fort Collins, CO, USA, 14 June 2016. [Google Scholar] In 2015 Bowker Associates collaborated with geophysicist David M. Chambers to recompile global authoritative accounts of significant TSF failures in recorded history and to analyze these data in the context of global mining economics 1910-2010 ( Risk, Economics and Public Liability of TSF Failures, Bowker/Chambers July 2015) The third annual update of this globally referenced and used compilation was just released at Researchgate. ( In 2014 Bowker Associates commissioned globally respected geophysicist and hydrogeologist Dr. David Chambers to undertake two technical works: (1) development of technical go no go criteria for vetting mine applications tp:// and (2) a case study of Maine's Bald Mountain, an un mined low grade high risk VMS deposit demonstrating the efficacy and accuracy of two risk assessment tools in vetting mine proposals In Maine, Bowker Associates has deeply engaged and been a public voice in the Searsport DCP LPG Tank, The Cianbro proposal for a Private East West Toll Road, JD Irvings rolling pipeline of Bakken crude to its plant in St. John and review of Phase II plans at The Callahan Superfund site in Brooksville, Maine, and Maine's revisitation of mining in statute and regulation... Our only “client”: is always “the pubic interest”. Our model is to focus on only one or two issues at a time so that we have a substantive command of the relevant field as our foundation for ongoing engagement. Our core work is in envirommental risk management, science and technology as well as bringing any available “best practices” models to the fore. The legal and regulatory history/best models are also a major thrust of our work in building and evaluating public policy. Director/Principal Lindsay Newland Bowker, CPCU, ARM is a recognized expert in Environmental Risk Management., Heavy Construction Risk Management and Marine and Transit Risks and has more than 3 decades of engagement in buiding public policy. Appointed by Governor Mario Cuomo to New York State Banking Board (served 1986-1996); President New York Chapter Chartered Property and Casualty Insurers; Environmental Committee, Risk and Insurance Management Society; Director, Convenor/Co-Chair Bermuda Market Briefing "From Captive to Cats" Hamilton Bermuda. Published Articles of Significance The Risk Economics and Public Liability of Tailings Facility Failures, co-authored with David M. Chambers, July 2015 Beyond. Polarization: Superfund Reform in Perspective, Risk & Insurance Managing Risk For Loss Prevention & Cost Control (Jan. 24, 1997). Lead Hazards and Abatement Technologies in Construction: A Risk Management Approach CPCU Journal 1997 Employee Leasing: Liability in Limbo Risk Management June 1 1997 Environmental Audit Privilege and the Public interest Risk & Insurance Managing Risk For Loss Prevention & Cost Control, April 1997 Asbestos:Holes In Abatement Policies Need To Be Plugged, Lloyd’s Environmental Risk International, May 1993 Editor Published Letters Evironmental Risk Management Beware of Facile Policies Like Fetal Protection Business Insurance 1995(?) High Court Review May Increase Sale of Bank Annuities Business Insurances August 8, 1995 Professional Profiles Protecting the Big Apple’s Core Managing Risk For Loss Prevention & Control December 1996 Major Career Highlights First rigorous analysis showing Relationship Between declining ore grades and TSF Failures of increasing consequence ( July 2015) FIrst Documentation that Gentrification Has Same Impacts as Unassisted Displacement from Urban Renewal Sites Direted Court Ordered EIS of FHA Mortgage Scandal Created Nation's First Homeownership Program for Low Income People (SHIP) Created Earliest Geographic Information Systems Using Defense Technology Developed By IBM Designed and Conducted Parallel Census Count to Show Systematic undercount in minority neighborhoods Documented Bias in ISO Territory Rating Plans for Private Passenger Auto Insurance Using ISO's own Rating Techniques Demonstrated Inherent Bias in Mortgage Policies of Banks With Inner City Branches Demonstrated that NY Telephones Plan for Area Code Split To accommodate anticipated cell phone demand was not efficient and would exhaust in 5 years ( which it did) Undertook First Systematic Evaluation of Child Protective Services Caseload Using Multi Variate Analyic Techniques Developed Child Protective Caseload Management and Tracking System (CANTS) and directed implementation in 4 client states including Illinois, Florida and New York Created and Ran Office of Risk Management for NYC DEP the Nations largest Water & Sewer Authority . Designed, Created and Administered Nation's First Owner Controlled Insurance Program (OCIP)for High Risk Tunneling Education Masters NYU Graduate School of Public Administration BSC New School For Social Research Maine Public Schools Deering High School
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