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Distribution Fights, Coordination

Games, and Lobster Management1

JAMES M. ACHESON

University of Maine

JACK KNIGHT

Washington University in Saint Louis

introduction

Currently, one of the most important issues in resource management is: under

what conditions will people conserve the resources on which their livelihood

depends? In all too many cases, overexploitation is the rule. All around the

world fish stocks, forests, grasslands, air, soils, wildlife, and water quality have

been seriously degraded by human beings. Environmental disaster is not in-

evitable, however, for in many cases those who are dependent on resources, andtheir governments, have acted to generate effective rules to manage those re-

sources at sustainable levels (Anderson and Simmons 1993; Berkes 1989; Mc-

Cay and Acheson 1987; Ostrom 1990; Pinkerton 1989; Ruddle and Akimichi

1984).

One of the most successfully managed resources in the world is the Maine

lobster fishery, where catches are currently at record high levels despite decades

of intense exploitation. More surprising to fisheries managers is the fact that

catches have remained relatively stable between 1947 and 1988 (i.e., ranging

between sixteen and twenty-two million pounds) (Maine Department of Ma-rine Resources 1995). Several factors are involved in producing these consis-

tently high catches, but there is general agreement that the regulatory appara-

tus has played an important role (Acheson and Steneck 1997; Alden 1989).

There are two ways for groups to obtain needed regulations. They may co-

operate to provide informal agreements, which Taylor calls a “decentralized”

solution (1990:225), or they may appeal to the state to provide such rules (i.e.,

a “centralized” solution). The Maine lobster industry has done both. In this ar-

ticle we describe the political processes resulting in the production of the most

209

0010-4175/00/1910 –0884 $9.50 © 2000 Society for Comparative Study of Society and History

1 The data on which this article is based was gathered in the course of a project entitled “CaseStudies in Co-Management,” sponsored by the University of Maine Sea Grant.



important formal regulations (i.e., centralized solutions) in the Maine lobster

industry. Although it is not our focus here, it should be noted that the industry

has also developed rules informally (see, for example, Acheson 1975; 1988).

In the 1870s and 1880s the industry lobbied for the first size regulations and

rules to protect the brood stock; in 1933, the double gauge measure was passed,protecting both juvenile and large, reproductive-size lobsters; in 1948 the all-

important V-notch law passed; and in 1985 the escape vent law came into be-

ing. These laws have tremendous support in the Maine lobster industry. They

are judged so effective that in 1998, the Atlantic States Marine Fisheries Com-

mission was persuaded to adopt the V-notch and double gauge laws for the in-

shore area from Cape Cod to the Canadian border. The Canadians are serious-

ly thinking of adopting these measure as well. In a world in which many of the

world’s marine resources are being exploited to economic extinction (New York

Times 1992; McGoodwin 1990:1–4), the story of how this conservation legis-lation came into being has an importance that extends far beyond the northwest

Atlantic.

Essentially, we argue that these conservation regulations were put into place

over the course of the past 120 years by political processes which do not fit neat-

ly into any one theoretical mold. Complicating the picture are the complex and

changing roles played by factions in the lobster industry, the bureaucracy, and

the Maine Legislature.

In the literature, there are currently three explanations for the generation of

norms or rules, each of which will be explained below: social conventions, ne-

gotiations over distributional benefits, and exchange and competitive selection.

The most important of the regulations in the Maine lobster industry are the

byproduct of distributional fights within the industry. Others are best viewed as

a resolution of coordination problems of the kind described by Lewis (1969)

and Sugden (1986). None of the regulations with which we are concerned came

about by a process of exchange and competitive selection (North 1990). In ad-

dition, we argue that a number of additional factors played an important role in

the development of these regulations, including political entrepreneurship, path

dependency, attitudes toward conservation, and the rate at which the future is

discounted.

Questions about the generation of conservation rules take us into the middle

of one of the most important debates concerning social life—namely, how do

norms and institutions come into being, and how do they change? While the

generation of norms and institutions has never been the primary focus of at-

tention for any social science discipline, the problem has been approached by

people from virtually every such field over the course of several decades. In the

1960s and 1970s, anthropologists were making key contributions to this field,

as seen in the work of Barth (1981), Bailey (1969), Heath (1976), and Kapfer-

er (1976). More recently, the most seminal work has been done by political sci-

entists, economists, and sociologists interested in rational choice theory and the

210 james m. acheson and jack knight



closely related field of institutional economics. Our analysis draws most heav-

ily on the insights and concepts of rational choice literature.

theoretical issues

Several important theoretical commitments lie behind our analysis. First, andperhaps most important, the production of norms is seen as rooted in the ratio-

nal decisions of individuals. That is, individuals pursue a variety of interests

and goals, and the choices they make are designed to achieve their aims most

efficiently. In many situations the outcomes for an individual are dependent on

the choices and rewards of others. People choose to establish norms because

norms make it possible to gain the benefits of coordinated activities and joint

ventures. Conversely, individuals will tend to change norms or defect from

them when it is in their best interest to do so.

Second, the simple fact that norms will bring about collective benefits does

not guarantee that such norms will be provided. The problem was first framed

by Mancur Olson (1965), who pointed out that even if rules or other public

goods would benefit all, they would only be provided if “special incentives”

existed. The essential problem was what Olson described as the “free rider

problem.” That is, there is no incentive for any individual to help produce a pub-

lic good, since that individual will have the benefit of the public good regard-

less of whether or not they contributed to its production. Since it is rational for

every individual to “free ride” on the efforts of others, the public good is not

produced. Everyone has acted rationally, and yet they are all worse off than if

they had cooperated. Either rewards or sanctions are necessary to overcome the

tendency to become a free rider.

More recently, rational choice theorists are phrasing the problem in terms of

a collective action dilemma (Elster 1989:17; Taylor 1990:223). The collective

action dilemma is a situation in which there is a divergence between the inter-

ests of the individual and those of the society. In the absence of rules, rational

action by the individual will bring sub-optimal results or even disaster for the

collectivity. In collective action dilemmas, it is not rational for individuals to

cooperate, even though cooperation would bring positive results for all. More-

over, as Coleman (1990:251) points out, in collective action dilemmas the ac-

tivities of one person produce externalities for others. That is, individuals are

permitted to foist some of the costs of their activities onto others. It is the exis-

tence of externalities that brings the demand for norms.

Collective action dilemmas have received a good deal of attention from so-

cial scientists because they describe so many of the most vexing problems

plaguing humanity. Taylor underscores the importance of the concept by say-

ing that all “politics is the study of ways of solving collective action problems”

(Taylor 1990:224).

Marine fisheries present a classic collective action problem. In the absence

of rules concerning property rights, fishers are capable of imposing very large

fights, games and lobster management 211



externalities on each other. In addition to the problems of gear conflict and gear

congestion, there is the issue of subtractability. That is, the fish one person

catches from the common pool are not available to others. Moreover, the dam-

age that can be done to the environment (breeding stocks, nursery grounds, mi-

gration routes) by shortsighted fishing practices can have serious consequencesfor everyone who seeks to exploit these same stocks in the future. Even though

a rule controlling exploitive effort would help protect the brood stock, produce

larger catches and income, and lower prices for the consumer, such rules are

provided only with difficulty, since it is in the interest of the individual fisher

to avoid being constrained.

In most fisheries the conditions necessary to produce norms restraining ex-

ploitive activities have been largely absent. The failures to solve these collec-

tive action problems have been documented in great detail in the literature on

common property resources (Baden and Hardin 1977; McGoodwin 1990).What is unusual about the Maine lobster industry is that it is one of the few fish-

ing industries that has been able to solve most of the collective action problems

it has faced.

Among rational choice theorists, there is a consensus that norms or rules

emerge from the rational decisions of actors operating in a social milieu, and

that the incentive to establish norms and institutions is grounded in the fact that

they allow actors to gain the benefits of coordinated activity. Three explana-

tions have been developed to explain the emergence of norms. Each of the three

assumes different interactional modes that can each be modeled as a different

game.

Social Conventions

According to this theory, norms are social conventions which emerge as a re-

sult of the need to coordinate activities. The proponents of this theory assume

a coordination game in which all actors have equal power. All actors would pre-

fer a cooperative solution, because such a solution gives higher outcomes than

an outcome that does not involve cooperation. In a pure coordination game, “a

coincidence of interest predominates” (Lewis 1969:14). A good example of a

social convention is driving on one side of the road. Equally good results can

be had from a rule specifying that everyone will drive on either the right or the

left. Bad results in the form of a high collision rate will follow from a failure to

agree on one or the other.

If only one equilibrium or solution exists, it would presumably be relatively

easy for the parties to recognize this fact and establish it as the rule. If two or

more solutions are available, the actors might enter into an agreement to select

one of them. If they cannot do this, the actors will seize on any salient infor-

mation in their environment to aid in selecting one of the available solutions.

Over a period of time, some of the actors focus on one solution and the others

emulate them, which in time establishes a convention (Sugden 1986:73). Once




the convention is established it will tend to be self-reinforcing, since no actor

can better their own position by defecting from it (Knight 1992:99).

Negotiations Over Distributional Benefits

This body of theory explains the production of norms as an aftereffect of strate-gic conflict over assets and rewards. It shares with the social conventions mod-

el the ideas that humans stand to gain greatly from coordinating activities, and

that rules are necessary if those gains are to be realized. However, this per-

spective emphasizes the distributional effects of rules. Rules rarely distribute

rewards equally; they often result in parties or groups gaining differential re-

wards. In some cases people are fully aware of this and consciously maneuver

to create rules that will give them a distributional advantage. In other cases,

rules are generated as the unplanned byproduct of a struggle over rewards, or

of attempts to resolve conflicts over rewards. In both cases, the goal of actors

is to attain a reward; rules are created to facilitate that goal.

The rules are created through a process of negotiation. The parties involved

have different amounts of power in the negotiations because they have differ-

ent assets. The actors with more assets have a distinct advantage in the negoti-

ations because they are in a position to accept more risk, because they have

more withholding power, and because other people are less willing to sanction

them if they violate a norm. As a result, the rules that result from negotiation

sessions are apt to favor the more powerful; the less powerful have no option

but to accept those rules, since they cannot do better (Knight 1992:128). If the

creation of a rule is the result of a centralized, collective decision-making

process, the resulting rule will reflect the asymmetries in the actors’ resources.

That is, we would expect those with more resources to succeed in negotiating

the establishment of a rule beneficial to themselves.

If the norms comes about via an informal or “decentralized” process, we

would expect a different sequence of events to occur. Over time, actors with

more resources will be able to resolve negotiations in ways favorable to them-

selves. Others with similar resources will be able to do the same, establishing

a pattern. As people recognize that they are dealing with someone with superi-

or resources, they will adjust their strategies to achieve their own best out-

comes. In time, they will alter their strategies to converge on a particular out-

come, thus establishing a norm.

Exchange and Competitive Selection

The third approach sees norms as emerging from voluntary contracts to facili-

tate exchange. This approach is most closely associated with what has become

known as the New Institutional Economics. It has been used to explain the

emergence of a large number of organizations and institutions, including firms,

markets, property rights, contract law, and torts (Acheson 1994; North 1990;

Williamson 1985). The essence of the idea is that when two people perceive




that they can benefit from an exchange, they must agree on the terms by which

that exchange will take place, including rules guaranteeing the compliance of

both parties, and the sanctions that will be imposed if either party reneges on

their duties toward the other. These contracts become norms and institutions

guaranteeing the fruits of cooperative enterprises.Contracts are beneficial because they lower transaction costs. That is, they

reduce the cost of getting the information necessary to negotiate an agreement,

negotiate the exchange, and enforce the exchange. The rules embodied in con-

tracts can benefit both parties, even though they are engaged in a prisoner’s

dilemma interaction.

Institutional change results from changes in prices. When the price of tech-

nology, information, enforcement, or production changes, the parties to an ex-

change may decide that they can do better with a new contract. Sometimes they

can negotiate a new contract within existing norms. In other cases, negotiatinga contract may necessitate changing or ignoring more basic norms or structur-

al principles upon which the contracts depend. (North 1990:86).

The exchanges into which one chooses to enter and the contracts governing

them are selected with a goal of overcoming high transaction costs. These

choices produce a range of organizations.

The kinds of organizations that prevail in the long run depend on relative

efficiency. Competition will drive out of existence those organizations that are

inefficient; successful organizations provide maximum joint benefits for those

involved in the exchanges, and an efficient use of resources for the society. Al-

chain (1950) first used these concepts in his model of evolutionary competi-

tion—less profitable firms will be driven out by more efficient and more prof-

itable firms. More recently, much the same argument is found in the work of

Douglass North (1990). This argument rests on the assumption that competi-

tion produces norms which are in the long-run best interests of individuals and

the larger society.

the maine lobster industry: general information

Throughout its history the Maine lobster industry has been an inshore trap fish-

ery. The typical lobster fisher has a boat about thirty-five feet long equipped

with a diesel or gas engine, which he operates alone or with one helper. The av-

erage fisher today fishes an average of 470 traps made of wood or wire, and

baited with fish remnants. Each trap is equipped with funnel-shaped nylon

“heads,” which make it easy for lobsters to climb into the trap, but difficult to

find their way out. The traps are connected to wooden or styrofoam buoys by a

“warp line.” The buoys are painted with a distinctive combination of colors reg-

istered with the state (Acheson 1988:84–90).

Each day fishers sell their catches to one of the eighty private dealerships or

seventeen cooperatives located in harbors along the coast (Acheson 1988:115–

32).




minimum size limit and protection of

egged females: 1870’s and 1880’s

Until the middle of the nineteenth century lobsters were caught for local con-

sumption, but no commercial lobster industry existed (Martin and Lipfert1985:9–11). The commercial development of the industry had to await two

technical developments in the 1840s: the invention of the lobster smack (a sail-

ing vessel with a circulating seawater tank, allowing shipment of live lobsters

to the cities along the north Atlantic coast), and the invention of canning (Cobb

1901:243– 44; Martin and Lipfert 1985:13).

After 1840, the commercial lobster industry expanded rapidly. Untold millions

of live lobsters were shipped to destinations such as Boston and New York. The

first lobster cannery was established in 1842, and by 1880 there were twenty-

three plants in Maine packing lobster (Rathbun 1887:690). In this period, thevast majority of lobsters caught were canned.

In the 1840s and 1850s, lobsters were plentiful and very large (Martin and

Lipfert 1985:43). However, by the late 1860s there were clear signs of trouble.

The catch was the same, but the numbers of fishers and traps had increased

markedly, resulting in a clear reduction in both the average size of lobsters

caught and the catch per unit of effort (Cobb 1901:244, 255–56; Herrick

1911:367– 69; Rathbun 1887:701– 8). After 1880, catches declined to the point

where the operation of some of the canneries had to be curtailed early in the

season for a lack of lobsters to pack (Cobb 1901:256).Everyone concerned with the industry agreed that something should be done

to protect the resource, but the solutions proposed by the canners and live lob-

ster industry differed significantly. (Rathbun 1887:725).

The fishers and dealers engaged in the live lobster trade blamed the canners.

There can be no denying that canning was very wasteful. Canners made a prac-

tice of transporting lobsters in “dry smacks,” which killed a lot of the catch

(Cobb 1901:250). It took about five pounds of raw lobster to get one pound for

packing. Moreover, although the canneries took all size lobsters, they preferred

small ones, because they could be had at a cheaper price per pound (Mattocksn.d.). Several reports indicate that canners regularly processed lobsters weigh-

ing as little as half a pound or less (Cobb 1901:256; Martin and Lipfert

1985:42).2 Such practices were detrimental to the live lobster industry. Since

the stock-in-trade of the fresh lobster dealers and fishers were large “dinner”

sized lobsters destined for restaurants in the large cities of the east coast, it was

in the interests of this part of the industry to protect small lobsters until they

grew to a size where they could be sold on the “live market.”

Thus the battle lines were drawn between the canners and the live lobster in-

dustry. The laws that ultimately emerged were the result of a twenty year strug-


2 The smallest lobster that can be taken currently must be three and one-quarter inches on thecarapace and weight about one and one-quarter pounds.



gle for control of the resource. Much of the ammunition for that battle was sup-

plied by European lobster biologists, who recommended that the problems in

the lobster industries of their own countries could be cured with various types

of regulations on size, season, and protection of breeding stock (Rathbun

1887:711–25).Interestingly enough, it was the canners who lobbied the Maine legislature

for the first “conservation laws,” to defend their interests (Judd 1988:605). In

1872, a law was passed forbidding the taking of “berried” (i.e., egg-bearing) fe-

males (Legislative Documents 1872). In 1874, they lobbied the legislature

again, with the result that fishing for lobsters less than ten and one half inches

(head to tail) was prohibited from October 1 to April 1 (Laws of Maine 1874).

These so called “conservation” laws were designed to curtail the activity of the

fresh lobster industry, but did little to change the practices of the canneries. The

law prohibiting the capture of egged females did not affect the canners, sincethey used lobsters too small to extrude eggs; while the seasonal size minimum

left the canneries free to take all sizes of lobsters during the summer canning

season, and made the state responsible for protecting the lobsters when the can-

neries were processing vegetables. Not too surprisingly, the devastation to the

resource continued.

The canners may have won the first battle, but they were to lose the war. Af-

ter 1870, the live lobster trade expanded enormously because of the market ex-

pansion facilitated by arrival of the railroads, which allowed long-distance ship-

ment of iced lobsters, and the development of the lobster pound (a fenced-in

portion of the ocean) where live lobsters could be stored for months. As in-

creasing numbers of fishers supplied the live market, their dependence on the

canneries decreased, especially in the western part of the coast where access to

rail service was better. The political power of those involved in the fresh lob-

ster market grew correspondingly.

Those in the live lobster trade knew that the existing legislation worked to

the benefit of the canners and did nothing for conservation. They wanted a law

prohibiting the canneries from slaughtering millions of small animals, so that

the lobsters could grow to a size at which they could be sold in the live trade.

One fisherman called the existing laws a “farce,” and called for a “law to pro-

tect the small and soft lobsters the entire year” (Rathbun 1887:727). Many

echoed his sentiments, and the legislature was soon besieged with requests and

petitions from fishers’ groups for legislation to protect small lobsters.

In 1879, it was made illegal to can lobsters from August 1 to April 1 (Laws of

Maine 1879). In 1883 it was made illegal to catch any female lobster “in spawn

or with eggs attached, or any young lobster less than nine inches in length . . . ”

between April 1 and August 1 (Laws of Maine 1883). These pieces of legisla-

tion changed the distribution of the lobster catch considerably, since they made

it illegal to take the small and cheap lobsters on which the canners depended, ef-

fectively reserving the lion’s share of the catch for the live lobster industry.




The canners and the fishers along the eastern coast (who sold to the canner-

ies) fought back. They opposed the minimum size measure and repeatedly pe-

titioned the legislature to allow canning to continue unencumbered. Their pro-

paganda claimed that it was the pounds—not canning—that were causing the

depletion of the resource.3

The live lobster industry continued its assault unabated. In 1885 its lobby-

ing efforts resulted in a law effectively reducing the canning season to three

and one half months (Laws of Maine 1885); and in 1889 the law was changed

to make it legal to take lobsters as small as nine inches in total length only

from May 1 to July 1 (Laws of Maine 1889). These laws made canning so un-

profitable that the canneries began to close (Cobb 1901:256 –57). Many went

to Canada. In 1895, the legislature passed a law increasing the minimum le-

gal size to ten and one half inches at all times of year; this law apparently

forced the last of the canneries from the state (McFarland 1911:233; Judd

1988:606).

Although both canners and the fresh lobster industry lobbied for legislation

to reserve much of the catch for themselves, the rules they put in place were de-

signed to protect juvenile lobsters and egg-bearing females. To this day, efforts

to conserve the lobster still depend on size regulations and protection of the

breeding stock.

the fight for the double gauge: 1915 to 1933

The end of canning and the passage of these first conservation laws did not see

an improvement in the prospects of the lobster industry. Catches continued to

decline. From 1900 to 1920, the average catch was 13.2 million pounds—close

to half of what it had been in 1889 (Maine Department of Marine Resources

1995). Both fishers and biologists recognized that the industry was not what it

had once been (Cobb 1901:241; Rathbun 1887:707).

The consensus among biologists was that additional regulations were need-

ed, over and above the ten and one half inch minimum size limit and the pro-

hibition against catching gravid females, which had been passed in the 1880s

(Kelly 1990:3). As early as 1910, biologist George Field argued that catches

would not begin to rise until the larger, more prolific breeding stock was pro-

tected (Martin and Lipfert 1985:51). However, most people in the industry were

strongly opposed to raising the minimum size, seeing clearly that such an in-

crease would cut their catches by increasing the number of lobsters that had to

be thrown back, and would produce large lobsters that would have to be sold at

such high prices that Maine would be effectively closed out of much of the na-

tional and international markets. In retrospect, it is hard to argue with the rea-

soning of either side.


3 Lobsters in pounds suffer mortality due to cannibalism—particularly of lobsters that have themisfortune to shed—and to disease, especially gaffkemia. But pound owners try to minimize suchmortality among lobsters they own.



Francis Herrick proposed a compromise solution—namely, a double gauge

law specifying both a minimum size to protect small lobsters and a maximum

size to protect larger, proven breeding stock. This would focus all fishing on

lobsters that were large enough to make a good meal (i.e., dinner sized lobsters),

but were small enough so they could not usually extrude eggs. Herrick origi-nally thought the minimum should be nine inches, and the maximum eleven

inches (Herrick 1911:382).

Lack of consensus resulted in the legislature doing little beyond changing the

way lobsters were measured, thereby retaining in effect the ten and one half

inch minimum gauge. (Lobsters were to be measured on the carapace rather

than in terms of total length. Thus a ten and one half inch lobster [total length]

became a four and three quarters inch lobster [carapace measure] [Laws of

Maine 1907].) For many, this was the worst of all possible worlds. Fishers had

dubbed the ten and one half inch measure the “poverty gauge,” since it outlawedthe vast majority of the lobsters they caught (Acheson 1992:155). They agitat-

ed against this law continually. The biologists were openly contemptuous, since

this law put all the fishing effort on the large, reproductive-size lobsters. Biol-

ogist Francis Herrick minced no words. He said the law was “unscientific,” “de-

fective” (1911:369), and “bound to fail” (1911:371).

In 1915, conditions in the industry were serious enough that the legislature

appointed a commission to study lobster regulation (Legislative Record 1915a).

Dr. Francis Herrick was called to testify and strongly urged the commission to

recommend a double gauge law for the long run welfare of the industry and the

state (Legislative Record 1915b; Martin and Lipfert 1985:55). The commission

recommended passage of the double gauge, but after representatives from

coastal counties talked with their constituents, no bill favoring the double gauge

was send to the floor of the legislature (Legislative Record 1915c).

The basic cause of the impasse was a conflict of interest between industry

factions. In general, fishers from the western counties wanted to lower the min-

imum size from four and three quarters inches on the backshell (ten and one

half inches total body length) to nine inches total body length. They found al-

lies among dealers and hoteliers who wanted to increase their share of the na-

tional market, where small or “chicken” lobsters from Massachusetts and Cana-

da had proven all too popular. However, most of the fishers along the central

and eastern parts of the coast did not favor a small gauge, since they believed

it was nothing more than a ploy by the dealers to import large amounts of small

Canadian lobsters and undercut the price received by Maine fishers (Corre-

spondence of the Commissioner 1933a). They couched their case in terms of

conserving the reproductive stock.4 It was to take a disaster to break the im-

passe.


4 To read some of the testimony and debate, one would have thought that lobsters thirteen inch-es and over were the life blood of the industry.



In 1919 catches declined sharply, and they remained at record low levels

throughout the 1920s and well into the 1930s.5 Once the Depression began,

prices for lobster fell drastically even though catches were very low. The in-

comes of fishers were so low that thirty-two percent left the industry between

1928 and 1932 (Acheson 1992:157–60; Correspondence of the Commissioner1933b; Maine Department of Marine Resources 1995). The disastrous condi-

tions continued for years (Correspondence of the Commissioner 1931a; 1931b;

1931c; 1933c). The fishery was not to recover until after World War II.

Horatio Crie, who was the Commissioner of Sea and Shore Fisheries and a

very able politician, played a key role in all of the attempts to alleviate the sit-

uation. First, Crie and industry leaders attempted to get higher prices for lob-

sters by initiating an advertising campaign, and by introducing three bills in the

U.S. Congress levying tariffs on imported Canadian lobsters (Correspondence

of the Commissioner 1931d; 1933d; 1933e). When these efforts failed, Crie and

his ally in the legislature, Senator Look, turned their attention to passing a dou-

ble gauge law (Correspondence of the Commissioner 1933f). Crie pointed out

that the double gauge law would protect small lobsters, conserve the large, re-

productive-size lobsters, and allow Maine fishers to catch smaller, more mar-

ketable lobsters than the current law allowed. It would also, he argued, keep out

forty percent of the Canadian lobsters that were currently flooding the U.S. mar-

ket (Elton 1933a). In short, Crie argued that the double gauge law would be

good for both conservation and sales.

In 1933, Crie began a whirlwind campaign to rally support for the double

gauge law. He announced his support in all the coastal newspapers; he sent let-

ters explaining his position to fishers and the congressional delegation (Corre-

spondence of the Commissioner 1933f, 1933g); and he had his wardens try to

get fishers to sign petitions favoring the double gauge (Correspondence of the

Commissioner 1933h).

But no consensus emerged. A questionnaire that Crie sent to all lobster li-

cense holders revealed that the industry was badly split on the issue (Elton

1933b). Judd (1988:622) reports that “1,166 respondents favored the double-

gauge law, and 1,068 were satisfied with the existing limit.” Most of the sup-

port came from the western coast; most of the opposition from the east (Ache-

son 1997:12).

The debate became nastier, and the correspondence reveals a good deal of

bitterness and frustration on all sides (Correspondence of the Commissioner

1933h). In the regular session of the legislature efforts to reduce the legal min-

imum size to nine inches (overall), and to establish a double gauge law were

both voted down (Elton 1933a:8).


5 In the years between World War I and World War II, catches ranged between five million andseven million pounds in most years—one-fourth of what they had been in the 1890s (Maine De-partment of Marine Resources 1995). The causes of this decline are complex, and there is little con-sensus on them (see Acheson and Steneck 1997).



In December, 1933, the Maine Legislature met in special session to deal with

a number of issues concerning the deepening economic crisis. Another double

gauge bill was proposed as the solution to the lobster industry’s problems. On

December 11, 1933, Commissioner Crie spoke in favor of the bill, emphasiz-

ing the need to preserve the industry by protecting the large, reproductive ani-mals. He promised “if a double gauge measure is passed . . . then you will see

the lobsters continue to increase from year to year and no one will ever have to

feel disturbed about the depletion of the lobsters on the Maine Coast so long as

a double gauge measure is enforced” (Crie 1933:2).

A few days later, with almost no publicity or debate, the Maine Legislature

narrowly passed the bill (Elton 1934). It provided for a three and one sixteenth

inch minimum, and a four and one half inch maximum carapace measure. It was

truly a radical piece of legislation—one of the few double gauge laws in the

world (Legislative Document 1935)—and remains the backbone of lobsterconservation efforts in Maine to this day.6

Reaction in the industry was decidedly mixed. Some groups went on record

as favoring the law (Portland Sunday Telegram 1933). The opponents were so

unhappy that they decided to try to have it overturned by a referendum, but did

not obtain enough signatures to have it put on the ballet (Correspondence of the

Commissioner 1934). The opponents of this law remained bitter for decades,

convinced that Crie had sold out their interests to the dealers.

Economic conditions played a role in the passage of this legislation. The in-

dustry and legislature were more willing to consider radical solutions after

years of economic decline. However, the bill would likely not have passed into

law were it not for Crie’s political entrepreneurship. His open advocacy of the

bill, his enlisting of support from key legislators, and his speech to the legisla-

ture before the final vote were all crucial. Most important were his lobbying ef-

forts with the industry. In the last analysis, the double gauge law passed because

of a coalition between the proponents of the bill in the industry, Commission-

er Crie, and powerful members of the Maine Legislature such as Senator Look,

who were concerned with marine resources. When this coalition went into ac-

tion in 1931, twenty years of gridlock gave way in less than eighteen months.

In essence, Crie and Look had negotiated a deal in which they gave their sup-

port to an industry faction favoring a smaller minimum size limit to increase

markets, in exchange for that faction’s support of a maximum size measure pro-

tecting the more prolific large lobsters.

the escape vent: 1978

From 1976 to 1978, there was a great deal of interest within the bureaucracy and

the industry in establishing an escape vent law. Such a law would specify that a


6 The double gauge law appears in Maine Public Law, 1933, c.2, sec.89. It was amended in 1935(Laws of Maine 1935, chapter 294, “An Act Relating to Measurement of Lobsters”).



space be built into each trap by one means or another, to allow the small, sub-le-

gal lobsters to escape from the traps before they were hauled up. This would re-

duce the amount of time it took fishers to clean out their traps. It would also re-

duce the numbers of lobsters killed or mutilated, since small lobsters are eaten by

larger lobsters in the traps, and by large fish after they are thrown overboard andon their way back to the bottom; molting lobsters are also eaten by any hardshell

lobster in the trap. In addition, lobsters tend to hang on to the traps, and regular-

ly have claws pulled off by fishers who are attempting to remove them and throw

them overboard. An escape vent would reduce the numbers mutilated in this way.

By the mid-1970s, the escape vent was an idea whose time had come. Mas-

sachusetts and Newfoundland had established such laws in the 1970s (Martin

and Lipfert 1985:109). In the United States, state and federal biologists were

very interested in reducing mortality on sub-legal lobsters. In the mid-1970s the

entire research staff of the Maine Department of Marine Resources became

strong advocates (Krouse and Thomas 1976). Spencer Appolonio, who was

commissioner at that time, recalls that “Cecil Pierce of Southport developed a

plastic vent. We [i.e. the DMR biologists] tried it out in a tank, and it clearly

worked.” Within a year, a proposal for an escape vent became part of the pro-

posed American Lobster Management Plan, written by the Northeast Marine

Fisheries Board in conjunction with the New England Regional Council ( Maine

Commercial Fisheries, October 1978).

Some fishers, at least, saw virtue in escape vents. A few scattered along the

coast had already been placing such vents in their traps. “Highliner” (highly

successful fishers) Jimmy Brackett of Pemaquid Harbor said that “one of the

secrets of success was to have one lathe on the bottom of the trap with a large

space” to reduce the amount of work cleaning out small lobsters from traps and

to increase the catch of legal-sized lobsters. Eddie Blackmore, president of the

Maine Lobstermen’s Association, recalls, “after I had escape vents in all my

traps I was saving an hour a day pulling (hauling traps) and two to three gal-

lons of gas.” In the debate that followed, some of these men became the

strongest advocates of the escape vent.

In 1976, Representative Greenlaw of Stonington introduced a bill in the

Legislature (Greenlaw 1978) mandating an escape vent. This produced a good

deal of discussion in the industry and the legislature. Greenlaw withdrew the

bill in the face of opposition led by Representative Bonnie Post (Owls Head),

who, speaking for the fishers in her district, argued that the use of the escape

vent was something that fishers should choose for themselves, and that in any

case, the issue needed more study before it should be enacted into law. Post

then tried to get the Department of Marine Resources to carry out additional

studies on the efficacy of the escape vent, but with little success. In the mean-

time, a consensus emerged in the industry supporting the idea of an escape

vent. Eddie Blackmore strongly endorsed the idea, and the Association worked

for the bill on the local level.




In the next session of the legislature, Representative Post introduced an es-

cape vent bill. During the hearings that were held up and down the coast, it be-

came apparent that the bill had enemies in the industry, but a good deal of strong

support as well. DMR biologist Ken Honey, who moderated many of these

hearings, recalls that there was scattered opposition—especially along the east-ern part of the coast—but no well-orchestrated attempt was made to scuttle the

bill. It passed in the legislature over moderate opposition in 1978 (Laws of

Maine 1978), and went into effect in 1979. Twenty years later, the escape vent

has tremendous support in the industry. Eddie Blackmore said this “is probably

the best single thing we have done in the past fifty years.”

In retrospect, the escape vent law passed so expeditiously because it had sol-

id support in the industry, the Department of Marine Resources, and the legis-

lature’s Committee on Marine Resources. In this respect, it is perhaps unique

in the history of the industry.

the v-notch

The current V-notch law allows any fisher who catches an egg-bearing female

to cut a notch in one of the side flippers on her tail. Such V-notched lobsters

may never be taken, since they are considered proven breeding stock.7 Many

lobster fishers consider this the most important conservation measure in force

today. In their view, it has resulted in a very large brood stock, which ensures

an adequate number of eggs in the water. It has tremendous support in the in-

dustry at present.

In 1915 and 1917, there was a general consensus that additional conserva-

tion laws were needed to increase the lobster stock. While the Legislature re-

fused to pass the double gauge law, there was a consensus that the preservation

of the industry depended on protection of the breeding stock. In response, the

legislature established a program whereby egged lobsters would be purchased

by the state, whose officers would punch a hole in their tails and release them

(Legislative Record 1917). Fishers were forbidden to take lobsters with

punched tails (Kelly 1990:3).

Fishers were not allowed to sell the berried lobsters they caught to the state.

Only pound owners could do so (Maine Commission of Sea and Shore Fish-

eries 1926:16). Biologist Leslie Scattergood said “this law was passed primar-

ily to stop pound owners from scrubbing the eggs from lobsters that had ex-

truded eggs while they were in the pounds.” [Pound owners had bought these

lobsters from fishers, and felt that they had a right to sell them, even though it

was illegal to do so once they had extruded eggs. The “punched-tail” law or


7 The V-notch will last through several molts and serves to protect egged females for three or

four years. This rule is thought to be especially effective in conserving the largest females, whichmay not extrude eggs every year. Such animals may extrude over one hundred thousand eggs everyother year.



“seeder program” was an effort to bribe pound owners to obey the law.] By the

mid 1930s, however, the “seeder program” had expanded to the point where the

state of Maine was purchasing “60,000 pounds of seed lobster, from the fishers

through dealers, at market prices” (Maine Department of Sea and Shore Fish-

eries 1936:11). These lobsters were punched so that they could not be takenagain. Most were released where the warden had purchased them, but others

were used in the hatchery at Boothbay Harbor.

There were only a few minor changes in the laws concerning egged lobsters

from 1917 to the present, and these were relatively minor. In 1948, the law was

changed to state that egged lobsters would be marked by cutting a V-shaped

notch in the tail, rather than being marked by a round hole punched in the tail.

In addition, egged lobsters would only be purchased from people licensed by

the commissioner, a change designed to aid enforcement efforts (Laws of Maine

1947).8 In 1973, the law was changed to specify that the “V-notch” was to be

placed in the “right flipper next to the middle flipper” (Kelly 1990:4).

The big change in the V-notch program took place on the informal level,

when increasing numbers of lobster fishers took advantage of the law to con-

serve the resource by voluntarily cutting notches in the tails of egged lobsters

they had caught. Eddie Blackmore said that it was the returned veterans [from

World War II] who were responsible for the change: “We decided that if we

were going to keep it [the fishery] going, we needed to do something to re-

plenish the supply.” One of the primary ploys they used was to was to take ad-

vantage of the the V-notch law by voluntarily cutting notches in the tail flippers

of egged lobsters. Former Commissioner Vinal Look points out, “there was nev-

er a law that stated that fishers could not cut V-notches in the tails of egged lob-

sters.” It became increasingly popular to do so. It is one of those cases—per-

haps rare—in which a formal law has been turned into an informal norm.

The current V-notch law gets a mixed reaction from observers of the indus-

try. On the whole, lobster fishers consider this the most important conservation

measure in force today, since it not only ensures that egged females are returned

to the water, but that they are protected so they may breed again. In their view

it has resulted in a very large brood stock, which ensures that there are an ade-

quate number of eggs in the water. One fisher once said to me, “If you do away

with that law [the V-notch], you do away with the industry. It is that important.”

Recent studies by Bayer et al. (1985) reinforce the idea that the V-notch pro-

gram is doing a good deal to maintain the breeding stock by ensuring that a high

proportion of the females that have borne eggs are returned to the water to breed

again.

However, federal and state biologists are not convinced, pointing out that


8

Apparently some unscrupulous dealers and fishers continued to scrub the eggs off berried fe-males and sell them. When caught with egged lobsters in their possession they would claim theywere saving them for the “seeder program.”



a V-notch in the tail of a lobster may become a source of infection. As a re-

sult, throughout the late 1970s and 1980s the federal and state bureaucracies

worked for passage of the federal fisheries management plan, which would

abolish the V-notch and double gauge laws. In order to save these measures,

in 1985 the leadership of the Maine lobster industry entered into an unusualcompromise—namely, that they would go along with an increase in the legal

minimum size, which most fishers strongly opposed, if the federal govern-

ment (i.e., the Regional Fisheries Management Council) would maintain the

V-notch and oversize laws. It was a compromise in which both sides got the

legislation they believed to be most essential (Cousins 1995; Wilson 1995).

But it should be noted that the Maine fishers, including the leadership of the

Maine Lobstermen’s Association, believed so strongly in the V-notch pro-

gram that they were ready to sacrifice greatly to maintain it (Acheson

1989:212–13).In an effort to buttress their arguments to keep the V-notch program, the

Maine Lobstermen’s Association has undertaken an annual V-notch survey

since 1982. This survey consistently shows that “over 60% of egg-bearing fe-

males had a V-notch.” These consistent results suggest that the V-notch pro-

gram is working to save a very large number of breeding females (Lobster Bul-

letin 1995:3).

There has never been any attempt by the industry to overturn the V-notch pro-

gram. It is ironic that the only attempt to abolish this conservation law has been

made by the New England Regional Council, an agency whose primary goal is

the conservation of marine resources (Acheson 1997:15–21).

trap limits

The number of traps has increased astronomically since the 1950s. This esca-

lation was made possible by the advent of the hydraulic trap hauler, which al-

lowed fishers to use more traps than they had previously, and a 1953 law that

made it legal to use multiple traps on a line (Kelly 1990:11). Once some peo-

ple in an area began to use more gear, others were forced to follow suit or see

the percentage of traps they had on the bottom decline. In some areas, particu-

larly in Casco Bay, people who were using three hundred traps in the late 1960s

were using over two thousand in the 1990s.9

Shortly after the trap escalation began in the 1950s, people in the lobster in-

dustry began calling for a trap limit (i.e., a ceiling on the number of traps a li-

censeholder could use). The proponents argued that a trap limit would confer

benefits on all. One would catch as many lobsters if everyone were restricted

to the same number of traps, and there would be substantial savings, in that few-

er traps would have to be built, baited, and tended. Moreover, fishing a small-


9 The average number of traps fished by Maine lobster fishers was 475 in 1996.



er number of traps, it was argued, would permit fishers to use smaller and less

costly boats which could be operated by a single person, rather than larger ves-

sels requiring crews of two and three people. Perhaps most importantly, a trap

limit would also alleviate the problems of trap congestion and gear tangles,

which had become very severe.The first effort to get a trap limit was made in the late 1950’s. Such a large

number of lobster fishers have seen the benefits of the limits that Representa-

tive Chester Rice avers that one or more trap limit bills have been introduced

in every one of the last fifteen sessions of the Maine legislatures. All attempts

failed until 1995.

Efforts to establish a trap limit have always foundered on two issues. First,

there is a strong feeling that a trap limit will do no good unless it is coupled with

a limit on licenses (“limited entry”). The logic is that a trap limit will not re-

lieve congestion if new fishers can still come into the industry, bringing with

them thousands of new traps. However, limited entry has always been received

with ambivalence, because such legislation would mean prohibiting young peo-

ple from entering the lobster fishery—one of the few employment possibilities

available in many coastal towns (Acheson 1975:663–65).

Second, and more important, the majority of fishers agree that there should

be a limit on traps, but no one agrees on what the limit should be. Part of the

problem is that the average number of traps fished varies widely from one part

of the coast to another. A trap limit that would be acceptable to people in east-

ern Maine, where six hundred traps is considered a large number, would be

completely unacceptable in an area such as Casco Bay, where fishers commonly

have over eighteen hundred traps. Moreover, within each town the so called

“full time” fishers generally fish far more traps than the “part-timers,” who have

other jobs. Thus, attempts to get trap limits engender two types of conflict: be-

tween different areas of the coast, and between full and part-time fishers in any

single harbor (Acheson and Wilson 1996). This has resulted in a lack of con-

sensus in the industry and a general lack of support for any trap limit proposal

in the legislature.

Moreover, the conflict over trap limits is exacerbated by the fact that trap lim-

its have severe distributional effects. Trap limits do not constrain all fishers.

They force those fishing over the allowable maximum to reduce the number of

traps they fish. This is likely to affect the big fishers, and may not force the

small or average fishers to make any changes at all. In the process, however,

the percentage of traps small fishers have on the bottom is increased relatively,

giving them a higher percentage of the catch. From this perspective a trap lim-

it is a means by which small fishers can constrain big fishers and lower their

proportion of the catch.

But the pressure on the legislature to pass such a bill was unceasing (Ache-

son 1975:666). Representative David Etnier said, “I would go to Five Islands




and places in my district and all I would hear is ‘Why don’t you do something

for us? Why can’t we get a trap limit?’”

By the 1990s, other forces and ideas were gaining momentum that were to

result in a trap limit in the aftermath of other legislation. For two decades, a

sizeable body of literature has been produced documenting the local conserva-tion rules found in a large number of fishing communities (Anderson and Sim-

mons 1993; Berkes 1989; McCay and Acheson 1987; Ostrom 1990; Ruddle and

Akimichi 1984). This gave rise to a growing interest in co-management (gov-

ernance structures in which the authority to manage fisheries was shared by

government and industry groups) (Pinkerton 1989). In 1993, the idea began to

float around the Maine fishing industry after a session on co-management, or-

ganized by Jim Wilson of the University of Maine, was held at the Maine Fish-

ermen’s Forum. In 1994, Robin Alden became commissioner of Marine Re-

sources in Maine. She had become increasingly interested in co-managementbecause she was convinced that if fishers had management authority they would

impose on themselves those conservation rules which they believed were ef-

fective in conserving resources and which were in their own best interests. This

would foster a sense of stewardship and reduce enforcement costs. She imme-

diately began to lobby for co-management in the Department of Marine Re-

sources, with industry members, and with members of the legislature. By the

spring of 1995, the legislature’s Joint Standing Committee on Marine Re-

sources held a series of hearings on a number of issues, including trap limits

and co-management.

Late in the spring of 1995, the legislature passed a trap limit law (Legislative

Document 782, 1995) as part of a broader co-management law for the lobster

industry, which has become known as the “Zone Management Law.” This law

stipulated a twelve hundred trap limit. It further said that the coast would be di-

vided into zones, which would be managed by councils composed of lobster li-

cense holders. Fishers in these zones could impose on themselves, with a two-

thirds vote, rules to limit the number of traps a person could fish below the

statewide limit, the times when fishing is allowed, and the number of traps on

a line.

The passage of the Zone Management Law came as somewhat of a surprise.

Even close observers of the industry, such as Maine Lobstermen’s Association

Executive Director Paton White, admit they are not sure “how and why it got

passed.” Certainly it was not a law they had lobbied for. The industry was in-

terested in co-management, but industry leadership had lobbied for a trap lim-

it combined with limited entry, and what emerged from the legislature had

zones and no limited entry provision.

What influenced the legislature to pass this law? One factor was a convic-

tion that co-management should be tried; but another was that the Marine Re-

sources Committee had been frustrated for decades by their inability to pass an




acceptable trap limit bill (Sonnenberg 1991). The zones are a mechanism for

coming to grips with one of the major stumbling blocks for trap limits—name-

ly, strong disagreements about how many traps would be permitted—by al-

lowing different areas of the coast to establish their own limits.10

The commissioner certainly had a strong influence on the legislation thatemerged. She lobbied for co-management and a trap limit, and against limited

entry. It is clear now that members of the Marine Resources Committee used

the strong support for a trap limit in the lobster industry as a springboard to

frame a co-management bill that gave fishers of each zone the right to pass some

regulations on themselves, including a more restrictive trap limit than the lim-

it imposed on the state as a whole.

Response to the Zone Management Law was decidedly mixed in the indus-

try. Once the law was passed, the leadership of the two lobster fishers’ associ-

ations (the Downeast Lobsterman’s Association and the Maine Lobsterman’s

Association) became enthusiastic supporters of the law and worked hard to see

it implemented. Others were much less enthusiastic. A group of fishers from

eastern Maine filed a lawsuit that was later judged to have no merit. (Bangor

Daily News 1996). Many full-time fishers all over the state were leery of the

law, since they believed it would favor the “part-time fishermen” who would

have a majority of votes. Some part-time fishers (with other jobs) were fearful

that the full-time fishers would pass laws restricting the time when fishing could

be done (e.g., prohibiting fishing on Saturdays or after 4:00 P.M.), which would

force them from the industry. Many observers of the industry, including some

experienced politicians, were convinced that the law was designed to fail, since

it did not seem possible that fishers would pass rules to limit their own fishing.

Three years after the bill was passed by the legislature, the co-management

experiment in Maine appears to be quite successful. By May of 1997, the zones

had been established and the bylaws for the Zone Councils had been set up. By

March of 1998, six of the seven zones had had referendums in which restric-

tive trap limits had been established, or have such referendums planned for the

near future. Some of these zones have passed very restrictive trap limits by a

wide margin. Zone E, for example, passed a six hundred trap limit, with eighty

two percent voting in favor. Many of the fishers with large numbers of traps are

very unhappy, feeling (with justification) that these trap limits have worked to

the benefit of small fishers and put them at a competitive disadvantage. They

know that the imposition of trap limits came as a result of their losing a distri-

bution battle.


10 In April 1995, many people were called to testify before the Marine Resources Committee of

the Maine Legislature, including the senior author. He urged the Committee to consider a zone man-agement bill and to try giving more management responsibility to fishers. Several other people hadsimilar messages. Together these people had some influence on the bill.



rational choice theory and the mechanisms producing

lobster conservation legislation

As is the case with all institutions, lobster conservation regulations allow peo-

ple to achieve benefits that they could not attain by acting alone. However,

norms are not produced automatically, even in cases where everyone would

benefit from them. In the literature on rational choice theory three different ex-

planations exist for the emergence of norms. We argue that only two of these

three explanations are applicable to the production of regulations in the Maine

lobster industry in the past 120 years.

Distribution Fights

Knight has hypothesized that most institutions come about as a byproduct of

conflict over resources, in which there are multiple equilibria and asymmetri-

cal power relationships (Knight 1992:123–32). The party that will be able toestablish a norm favoring itself is the one with the greatest share of the resources

(Knight 1992:132). This explanation is applicable to the generation of three of

the most important lobster conservation laws. The first minimum size measure

and prohibition on taking egged females, the double gauge law, and trap limits

all came about as byproducts of negotiations over distributional rewards.

The first size regulations and prohibitions against taking egg-bearing females

were instituted during the course of a battle between the canners and the live

lobster industry over control of the lobster supply. These rules do conserve the

resource; but they could also be formulated in ways which would give either

the canners or the live lobster industry an advantage, by favoring lobsters of a

size and price advantageous to one faction or the other. At first, the canners suc-

ceeded in persuading the legislature to pass seasonal rules and size regulations

to constrain the live lobster industry and reserve the catch for themselves. But

after 1879, the live lobster industry succeeded in lobbying for laws that ulti-

mately made it impossible for the canners to stay in business. The live lobster

faction won because they had more support in the public, the press, and the leg-

islature.

The same overriding distributional concerns dominated the long battle for

the double gauge law. Fishers in the western part of the coast, dealers, and ho-

tel owners wanted smaller, cheaper lobsters (i.e., nine inch lobsters) to expand

their markets. Many fishers, especially those in the eastern part of the state,

feared that lowering the gauge would result in a flood of imports from Canada,

undercutting the Maine price to the benefit of the dealers. Neither side had the

resources to gain an advantage until Commissioner Horatio Crie, an able polit-

ical entrepreneur, and members of the Marine Resources Committee formed a

coalition with the industry faction wanting a smaller gauge, in exchange for

their support for the double gauge.

In both the case of the first conservation laws of the 1870s and 1880s and the

double gauge law, fishers in the eastern part of the state were pitted against those




in the west. In this contest the fishers in the east were at a distinct disadvantage,

since there are fewer fishers east of Penobscot Bay. More importantly, there are

only two counties along the eastern coast and six in the west. Since this dis-

parity gives fishers from the western part of the coast more influence in the leg-

islature, they were able to force through rules in their favor.The trap limit is the result of twenty-five years of conflict over distribution

of the resource. Essentially, trap limits are devices used by fishers using small-

er numbers of traps to constrain the efforts of those with more gear. Large fish-

ers resist such constraints—especially when trap limit rules would result in a

higher proportion of the catch going to the hated “part-timers.” The Zone Man-

agement Law was an innovative way of dealing with this distributional prob-

lem. By allowing different zone councils to set their own regional trap limits,

the law minimized conflict among demands coming from different regions of

the state, with their different fishing practices.

In the case of all three of these laws, there were multiple solutions to the prob-

lem (i.e., multiple equilibria), each of which would benefit one industry faction

more than another by allocating to it an increased part of the catch. People in

the industry were, of course, fully aware of this fact and fought strenuously in

the legislative arena for laws which would benefit them. The faction that ulti-

mately succeeded was the one that had the most resources, in terms of numbers

of votes and power in the legislature. In every case, this meant forming a coali-

tion with agents of the government, who had their own agendas. The laws that

emerged were compromises incorporating features desired by powerful indus-

try factions to gain control over the lobster resource, and others which agents

of the government were able to insert in the bill (e.g., the double gauge law and

the Zone Management Law [trap limit]).

The processes by which these three lobster regulations have been generated

serve as a reminder of one of the most basic axioms of the new institutional eco-

nomics and rational choice theory—namely, that regulations are rarely neutral;

they usually help some people more than others. “Individuals realize this, and

they attempt to change institutions to serve their ends more effectively . . .”

(Ensminger 1992:xiii).

In the lobster industry, negotiations over distributional rewards are scarcely

friendly. One consultant hired to give expert advice on the effect of several pro-

posed regulatory changes in 1986 was clearly appalled by the atmosphere sur-

rounding negotiations concerning lobster legislation, calling it an “adversarial

struggle” (Botsford, Wilen and Richardson 1986:53–55). However, conflict is

almost inevitable, given the nature of the incentives involved. All three of these

distributional contests can be modeled as iterated prisoner’s dilemma games.

The dominant strategies of the factions are different; the stakes are relatively

large; and there is strong motivation to defect from a norm. But there are also

solutions that entail cooperation as a rational self-interested strategy. Under

such conditions, the task is to develop procedures that will make these cooper-




ative strategies more attractive than defection. In such an atmosphere sweet

words and reason will gain little, while and persuading the legislature to sup-

port one’s bill pays handsomely.

Social Conventions

The escape vent law and the V-notch law came about as the result of an entire-

ly different process. The interactions that generated these rules are best mod-

eled as pure coordination games of the type described by Lewis (1969) and Sug-

den (1986). In such games, there is a “coincidence of interests” among the

actors (Lewis 1969:14). Such games may have multiple equilibria, but one of

them is preferred by everyone. Moving to this solution benefits everyone.11

At the time they were enacted, both the escape vent and the V-notch laws

were widely perceived as equally benefiting everyone in the industry, and serv-

ing the cause of conservation as well. By passing these laws, the legislaturehelped fishers as individuals, moved the industry as a whole closer to pareto

optimum, and satisfied bureaucrats concerned with their public trust responsi-

bilities. The process by which these laws were passed was far less acrimonious

than that resulting from the distribution battles described above.

Beyond these similarities, the circumstances surrounding the passage of the

escape vent and the V-Notch program were quite different. The escape vent law

came about through formalization of an existing practice; the V-notch law took

advantage of a formal law to build a conservation program by decentralized

means.

Support for an escape vent law came about very quickly in the 1970s, since

the bureaucracy and the Marine Resources Committee were well disposed to-

ward it. Many people in the industry supported the proposal, influenced by the

fact that some “highliners” had tried escape vents and found them advanta-

geous. In a sense, the passage of this law was tantamount to the formalization

of an informal practice. Many laws are, in fact, generated in this fashion (Knight

1992:85).

The V-notch program is an informal institution building on the possibilities

presented by a formal law. The original law was designed to save a few thou-

sand seed lobsters. Fishers saw the possibilities inherent in this situation and

proceeded to V-notch very large numbers of the egged lobsters they caught in

the interests of conservation. Their voluntary activities have made the program

far more effective than its originators ever dreamed in 1917.

Exchange and Competitive Selection

We argue that none of the lobster conservation laws was produced by a process

of exchange and competitive selection. No law was the result of a deal or deals


11 In this sense the establishment of the escape vent and the V-notch laws are not really a col-lective action problem as defined by Elster (1989:24–27), where rational action (i.e., defection) byan individual can lead to a pareto inferior outcome.



resulting in contract. Certainly there is nothing in the history of this legislation

to suggest that competition forced less efficient types of contracts to extinction.

Once rules were established, they tended to remain.

the development of maine lobster regulations:extending the analysis

The historical data on lobster legislation support the contention that a number

of other factors have had a marked influence on the development of regulations

in the Maine lobster industry. While all of them have been discussed by ratio-

nal choice theorists and others interested in the production of norms, they fall

into no well-integrated theoretical mold. We suspect, however, that some of the

following factors play a role in influencing fisheries regulations and resource

management policy more widely.

The Role of the Industry, Science, and Government in Generating Legislation

In the past 120 years, regulations of the Maine lobster industry have been the

result of interactions between several different interested parties, including fac-

tions of fishers, state and federal officials, and scientists. Conservationists are

latecomers to the game. Without question, fishers have had more influence over

legislation than any other group. Vinal Look, ex-commissioner of the Depart-

ment of Marine Resources, said that “the Legislature has never passed an im-

portant regulatory bill without substantial support from the industry.” This

means that if we want to understand the genesis of lobster regulatory legisla-

tion, we must focus primarily on the strategic choices of various groups of fish-

ers and the process of negotiations among them.

While all of this lobster conservation legislation was produced by industry

groups that influenced the apparatus of government, the government was very

active in the process and pursued its own ends. The government’s presence in

the debate changed everything. First of all, it added two new players to the

mix—the legislature and the Department of Marine Resources. While the leg-

islature and DMR often have different goals, they have one dominant interest

that distinguishes their actions from those of the industry. The oceans are owned

by the public and held in trust by the government, which has the responsibility

to conserve marine resources. It is a responsibility the legislature and DMR

have taken very seriously. To be sure, the legislature is always careful to assess

public support and the interests of their constituents, but in the last analysis,

conservation has been a primary emphasis. This is, perhaps, only to be expect-

ed. All governments have an interest in promoting economic growth, both to

increase revenues to the state and to build political support in order to stay in

power (Knight 1992:191). The industry has also been interested in conserva-

tion, especially in recent decades. But where industry is concerned, conserva-

tion is of less importance than distributional issues.

Second, the introduction of the government changed outcomes. To be sure,




neither the DMR nor the legislature could dictate rules that had little or no in-

dustry support. But agents of the government could and did enter into coalitions

with various industry factions to get the support needed to pass certain pieces

of legislation. In these cases, the agents of the government had enough power

to insist that bills be altered in ways that met their own agenda. The doublegauge law, for example, was the result of a coalition between Commissioner

Horatio Crie and a faction of the lobster industry in the western counties, which

wanted a smaller minimum gauge. Neither could have attained their goals in

the absence of the other. Commissioner Crie was able to use industry support

for a smaller minimum size measure to get a double gauge law, which protect-

ed both juvenile and reproductive-sized lobsters.

Sixty years later, Commissioner Robin Alden and her allies in the legisla-

ture were able to use strong industry support for a trap limit to fashion the

Zone Management Law. This gave the industry a trap limit embodied in a co-management law.

Scientists played a decidedly secondary role in the generation of conserva-

tion legislation. Pronouncements by scientists concerning industry problems

were certainly not enough to ensure that remedial legislation was forthcoming

swiftly. Richard Judd (1988:598) points out that “there was no simple one-to-

one correlation between biological necessity and conservation law.”

Scientists have, however, been a primary source of management ideas and

data. The original size limit laws, the laws protecting egg-bearing females, the

double gauge law, and the escape vent law originated with European scientists.

Sometimes it took decades for these management ideas to be enacted into law.

The double gauge was proposed by biologists just after the turn of the century,

but no law was instituted until 1933. The idea of a trap limit has been bandied

around for over thirty-five years. Eventually, scientists’ ideas were incorporat-

ed into law, but only after powerful factions in the industry realized that they

could be used to further their own agenda. This underlines the fact that “scien-

tific facts” are often little more than ammunition that can be seized on by con-

testants in distributional fights at convenient moments.

Political Entrepreneurship

Political entrepreneurs played a crucial role in the development of some of the

most important lobster conservation laws. The double gauge law would not

have been passed were it not for Commissioner Crie; and MLA President Ed-

die Blackmore played a key role in lobbying for the passage of the double gauge

and the escape vent laws. Similarly, Commissioner Alden was a strong sup-

porter of co-management. These people wielded no unusual power, nor could

they provide rewards; rather, they were critical in changing people’s attitudes

toward legislation by pointing out to various groups the benefits to be gained.

In this regard, Taylor argues that the ability to change attitudes is the most im-

portant function of political entrepreneurs (Taylor 1990:233–34).




Path Dependency

The development of lobster conservation laws reveals a high degree of path de-

pendency. Choices that were made in the nineteenth century opened some av-

enues for regulation, and closed off others. In the late nineteenth century, it be-came axiomatic among biologists and fishers that the key to conserving the

lobster resource was the preservation of lobsters in critical parts of their life cy-

cle—namely, juvenile and reproductive-sized lobsters. This became part of the

ideology of the industry (Geertz 1973). The first rules in the 1870s accom-

plished these goals by a minimum size measure and a prohibition against tak-

ing egg-bearing females. These laws set a precedent which has not changed to

this day. All of the important legislation that followed was built on the same

principle and was designed to protect the breeding stock (i.e., the 1917 seeder

law, the 1933 double gauge law, and the V-notch program), or to protect the ju-veniles (i.e., the escape vent law and increase in the legal minimum size). Ma-

jeski (1990:278–79) makes a strong case that humans use precedent-based rea-

soning in attempting to solve problems, which operates to extend existing

norms into new situations. This certainly appears applicable to lobster legisla-

tion. Once it was widely accepted that stock was to be conserved by protecting

lobsters in important parts of their life cycle, the industry and legislature never

varied from this solution.

Moreover, acceptance of the idea of conserving the lobster by protecting

them during important parts of their life cycle precluded the use of other kindsof regulations widely used to manage fisheries. In the 1970s, the National Ma-

rine Fisheries Service financed a survey to explore the kinds of regulations fish-

ers would accept. The survey clearly showed that the industry would be very

opposed to a moratorium on fishing, limited entry, a tax on traps, or any kind

of quota (Acheson 1975). All of these measures attempt to conserve the re-

source by cutting fishing effort—a principle the Maine lobster industry regards

as ineffective and ill-advised. In addition, it was to be expected that when the

New England Regional Fisheries Management Council sought to do away with

the oversize measure and the V-notch rule in the 1980s, they would be mas-

sively opposed by the industry. These proposals violated what most fishers con-

sider the most important principle behind effective management.

The success of past legislation in conserving the resource led inevitably to

increased lobbying for a trap limit in the 1990s. In supporting the double gauge,

the escape vent, and the V-notch laws, industry is investing in the resource. That

is, it is forgoing current catches to attain larger and more certain catches in the

future. The conserved lobsters are in a common pool. As Hechter points out,

“once individual assets are pooled in a central place, however, another free-

rider problem occurs: how is it possible to stop a depositor from taking more

than her fair share or from consuming the entire fund?” (1990:246). In the lob-

ster industry, the solution to this problem is the trap limit, which is designed to




prevent fishers with many traps (known as “hogs”) from gaining an unfair share

of the common pool.

Discounting the Future: The Effect of the Conservation Ethic

Since the 1930s, the lobster industry has undergone a fundamental culturalchange, resulting in the development of a conservation ethic. This development

appears to be connected in a fundamental way to changing attitudes towards the

rate at which future benefits are discounted. In the lobster industry, where peo-

ple are relatively sure that the resource will be there in the future, and the rules

are well enforced by both the wardens and other fishers, people do not de-

fect from the rules. Under these conditions, the laws are largely self-enforcing

(Knight 1992:178). Where the discount rate is high and enforcement less cer-

tain, people compete to get as much of the resource as possible, and a tragedy

of the commons ensues. Chief Warden Joe Fessenden points out that this hasoccurred recently in the Maine scallop and groundfish fisheries, which are cur-

rently in very poor condition.

This suggests that the most critical question facing resource management is

how to foster a sense of stewardship among users of natural resources. It will

involve structural changes to ensure that those who bear the sacrifices of con-

servation legislation will gain the benefits. It will also mean some more diffi-

cult changes in values and attitudes.

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