U.S. Supreme Court Maine v. Taylor, 477
U.S. 131 (1986) Maine v. Taylor No. 85-62 Argued March 24, 1986 Decided June 23, 1986 477
U.S. 131 APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE FIRST CIRCUIT Syllabus Appellee bait dealer (appellee) arranged to have live baitfish
imported into Maine, despite a Maine statute prohibiting such
importation. He was indicted under a federal statute making it a
federal crime to transport fish in interstate commerce in violation
of state law. He moved to dismiss the indictment on the ground that
the Maine statute unconstitutionally burdened interstate commerce,
and Maine intervened to defend the validity of its statute. After
an evidentiary hearing, the District Court denied the motion to
dismiss and held the state statute constitutional. The court found
that substantial uncertainties surrounded the effects that baitfish
parasites and nonnative species would have on the State's wild fish
population, and that less discriminatory means of protecting
against those threats were currently unavailable. Appellee then
entered a conditional guilty plea, reserving the right to appeal
the District Court's constitutional ruling. The Court of Appeals
reversed, concluding that the state statute was
unconstitutional. Held: 1. Maine is entitled to invoke this Court's jurisdiction under
28 U.S.C. § 1254(2). Nothing in the language or history of §
1254(2) suggests that its scope is limited to civil litigation. The
fact that Maine was only an intervenor in the District Court does
not deprive it of standing to pursue this appeal, because its stake
in the outcome is substantial and the controversy remains live,
notwithstanding the Federal Government's decision to abandon its
own appeal. Pp. 477 U. S.
133 -137.

															2. The Maine statute is constitutional. The federal statute
under which appellee was convicted did not waive the requirement of Hughes v. Oklahoma, 441 U. S. 322 ,
that where a state statute, such as Maine's import ban,
discriminates against interstate commerce either on its face or in
practical effect, the State must show both that the statute serves
a legitimate local purpose, and that this purpose cannot be served
as well by available nondiscriminatory means. But the evidence
amply supports the District Court's findings that Maine has made
both showings. Under the "clearly erroneous" standard of review
applicable to these findings, the Court of Appeals erred in setting
them aside. Pp. 477 U. S.
137 -152.

															752 F.2d 757, reversed. Page 477 U. S. 132 BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, WHITE, MARSHALL, POWELL, REHNQUIST, and
O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 477 U. S.
152 .

															JUSTICE BLACKMUN delivered the opinion of the Court.

															Once again, a little fish has caused a commotion. See Hughes
v. Oklahoma, 441 U. S. 322 (1979); TVA v. Hill, 437 U. S. 153 (1978); Cappaert v. United States, 426 U.
S. 128 (1976). The fish in this case is the golden
shiner, a species of minnow commonly used as live bait in sport
fishing.

															Appellee Robert J. Taylor (hereafter Taylor or appellee)
operates a bait business in Maine. Despite a Maine statute
prohibiting the importation of live baitfish, [ Footnote 1 ] he arranged to have 158,000 live
golden shiners delivered to him from outside the State. The
shipment was intercepted, and a federal grand jury in the District
of Maine indicted Taylor for violating and conspiring to violate
the Lacey Act Amendments of 1981, 95 Stat. 1073, 16 U.S.C. §§
3371-3378. Section 3(a)(2)(A) of those Amendments, 16 U.S.C. §
3372(a)(2)(A), makes it a federal crime

															"to import, export, transport, sell, receive, acquire, or
purchase in interstate or foreign commerce . . . any fish or
wildlife taken, possessed, transported, Page 477 U. S. 133 or sold in violation of any law or regulation of any State or in
violation of any foreign law."

															Taylor moved to dismiss the indictment on the ground that
Maine's import ban unconstitutionally burdens interstate commerce,
and therefore may not form the basis for a federal prosecution
under the Lacey Act. Maine, pursuant to 28 U.S.C. § 2403(b),
intervened to defend the validity of its statute, arguing that the
ban legitimately protects the State's fisheries from parasites and
nonnative species that might be included in shipments of live
baitfish. The District Court found the statute constitutional, and
denied the motion to dismiss. United States v.
Taylor, 585 F.
Supp. 393 (Me.1984). Taylor then entered a conditional plea of
guilty pursuant to Federal Rule of Criminal Procedure 11(a)(2),
reserving the right to appeal the District Court's ruling on the
constitutional question. The Court of Appeals for the First Circuit
reversed, agreeing with Taylor that the underlying state statute
impermissibly restricts interstate trade. United States v.
Taylor, 752 F.2d 757 (1985). Maine appealed. We set the case
for plenary review and postponed consideration of Taylor's
challenges to our appellate jurisdiction. 474 U.S. 943 (1985). I Maine invokes our jurisdiction under 28 U.S.C. § 1254(2), which
authorizes an appeal as of right to this Court

															"by a party relying on a State statute held by a court of
appeals to be invalid as repugnant to the Constitution, treaties or
laws of the United States."

															Appellee, however, contends that this provision applies only to
civil cases, and that, in any event, Maine lacks standing to appeal
the reversal of a federal conviction. These contentions both relate
to the unusual procedural posture of the case: an appeal by a State
from the reversal of a federal conviction based on a violation of
state law. We consider them in turn.

															First, despite its procedural peculiarities, this case fits
squarely within the plain terms of § 1254(2): Maine relies on a
state statute that the Court of Appeals held to be
unconstitutional. Page 477 U. S. 134 Although statutes authorizing appeals as of right to this Court
are strictly construed, see, e.g., Silkwood v. Kerr-McGee
Corp., 464 U. S. 238 , 247
(1984), nothing in the language or legislative history of § 1254(2)
suggests that its scope is limited to civil litigation. In arguing
for such a limitation, appellee relies principally on the fact that
§§ 1254(1) and (3) -- which authorize discretionary review of cases
from the Courts of Appeals by writ of certiorari and certification,
respectively -- both apply explicitly to "any civil or criminal
case." [ Footnote 2 ] Since this
express language is absent from § 1254(2), appellee contends that
Congress must have intended this Court's appellate jurisdiction
over cases from the courts of appeals to remain limited to civil
cases, as indeed it was limited prior to the 1925 enactment of §
1254's predecessor. [ Footnote
3 ] Page 477 U. S. 135 We find the argument unconvincing. While some statutes governing
this Court's jurisdiction, such as §§ 1254(1) and (3), expressly
apply to both civil and criminal cases, others are explicitly
limited to civil actions. See, e.g., 28 U.S.C. §§ 1252 and
1253. The absence of either sort of provision from § 1254(2) hardly
demonstrates that Congress had only civil cases in mind, and we see
no reason to read such a limitation into the straightforward and
unambiguous terms of the statute. This is not a situation where
"the sense of the statute and the literal language are at
loggerheads," or where adherence to the plain terms of the statute
" would confer upon this Court a jurisdiction beyond what
"naturally and properly belongs to it."'" Heckler v.
Edwards, 465 U. S. 870 , 465 U. S. 879 (1984), quoting Florida Lime & Avocado Growers, Inc. v.
Jacobsen, 362 U. S. 73 , 362 U. S. 94 (1960) (Frankfurter, J., dissenting), in turn quoting American
Security & Trust Co. v. District of Columbia, 224 U.
S. 491 , 495 (1912). Section 1254(2) serves to ensure
that a state statute is struck down by the federal judiciary only
when it is found invalid by this Court, or when the parties
acquiesce in the decision of a lower federal court. Federal
nullification of a state statute is a grave matter, whether it
occurs in civil litigation or in the course of a criminal
prosecution, and review by this Court is particularly warranted in
either event. [ Footnote
4 ] Page 477 U. S. 136 Appellee's second jurisdictional argument is based on the fact
that the only appellant before this Court is the State of Maine --
only an intervenor in the District Court -- not the United States,
which brought the original prosecution. [ Footnote 5 ] Since the United States and its attorneys
have the sole power to prosecute criminal cases in the federal
courts, appellee contends that Maine may not seek review of the
Court of Appeals' reversal of his conviction. By statute, however,
Maine intervened with "all the rights of a party," 28 U.S.C. §
2403(b), [ Footnote 6 ] and
appeals may be taken to this Court under § 1254(2) by any "party
relying on a State statute" held invalid under federal law by a
Court of Appeals. We previously have recognized that intervenors in
lower federal courts may seek review in this Court on their own, so
long as they have "a sufficient stake in the outcome of the
controversy" to satisfy the constitutional requirement of genuine
adversity. Bryant v. Yellen, 447 U.
S. 352 , 447 U. S. 368 (1980); see Page 477 U. S.
137 also, e.g., Diamond v. Charles, 476 U. S.
54 , 476 U. S. 68 (1986). Maine's stake in the outcome of this litigation is
substantial: if the judgment of the Court of Appeals is left
undisturbed, the State will be bound by the conclusive adjudication
that its import ban is unconstitutional. See, e.g., Stoll v.
Gottlieb, 305 U. S. 165 (1938). And although private parties, and perhaps even separate
sovereigns, have no legally cognizable interest in the
prosecutorial decisions of the Federal Government, cf., e.g.,
Diamond v. Charles, supra, at 476 U. S. 64 -65; Linda R. S. v. Richard D., 410 U.
S. 614 , 410 U. S. 619 (1973), a State clearly has a legitimate interest in the continued
enforceability of its own statutes, see Diamond v. Charles,
supra, at 476 U. S. 65 ; Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel.
Barez, 458 U. S. 592 , 458 U. S. 601 (1982). Furthermore, because reversal of the judgment of the Court
of Appeals would result in the automatic reinstatement of
appellee's guilty plea, the controversy before us clearly remains
live notwithstanding the Federal Government's decision to abandon
its own appeal. [ Footnote 7 ] We
turn to the merits. II The Commerce Clause of the Constitution grants Congress the
power "[t]o regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes." Art. I, § 8, cl.
3.

															"Although the Clause thus speaks in terms of powers bestowed
upon Congress, the Court long has recognized that it also limits
the power of the States to erect barriers against interstate
trade." Lewis v. BT Investment Managers, Inc., 447 U. S.
27 , 447 U. S. 35 (1980). Maine's statute restricts interstate trade in the most
direct manner possible, blocking all inward shipments of live
baitfish at the State's border. Still, as both the District Court
and the Court of Page 477 U. S. 138 Appeals recognized, this fact alone does not render the law
unconstitutional. The limitation imposed by the Commerce Clause on
state regulatory power "is by no means absolute," and

															"the States retain authority under their general police powers
to regulate matters of 'legitimate local concern,' even though
interstate commerce may be affected." Id. at 447 U. S.
36 .

															In determining whether a State has overstepped its role in
regulating interstate commerce, this Court has distinguished
between state statutes that burden interstate transactions only
incidentally and those that affirmatively discriminate against such
transactions. While statutes in the first group violate the
Commerce Clause only if the burdens they impose on interstate trade
are "clearly excessive in relation to the putative local benefits," Pike v. Bruce Church, Inc., 397 U.
S. 137 , 397 U. S. 142 (1970), statutes in the second group are subject to more demanding
scrutiny. The Court explained in Hughes v. Oklahoma, 441
U.S. at 441 U. S. 336 ,
that once a state law is shown to discriminate against interstate
commerce "either on its face or in practical effect," the burden
falls on the State to demonstrate both that the statute "serves a
legitimate local purpose" and that this purpose could not be served
as well by available nondiscriminatory means. See also e.g.,
Sporhase v. Nebraska ex rel. Douglas, 458 U.
S. 941 , 957 (1982); Hunt v. Washington State Apple
Advertising Comm'n, 432 U. S. 333 , 432 U. S. 353 (1977); Dean Milk Co. v. Madison, 340 U.
S. 349 , 340 U. S. 354 (1951).

															The District Court and the Court of Appeals both reasoned
correctly that, since Maine's import ban discriminates on its face
against interstate trade, it should be subject to the strict
requirements of Hughes v. Oklahoma, notwithstanding
Maine's argument that those requirements were waived by the Lacey
Act Amendments of 1981. It is well established that Congress may
authorize the States to engage in regulation that the Commerce
Clause would otherwise forbid. See, e.g., Southern Pacific Co.
v. Arizona ex rel. Sullivan, 325 U. S. 761 , 325 U. S. 769 (1945). But because of the important role Page 477 U. S. 139 the Commerce Clause plays in protecting the free flow of
interstate trade, this Court has exempted state statutes from the
implied limitations of the Clause only when the congressional
direction to do so has been "unmistakably clear." South-Central
Timber Development, Inc. v. Wunnicke, 467 U. S.
82 , 467 U. S. 91 (1984). The 1981 Amendments of the Lacey Act clearly provide for
federal enforcement of valid state and foreign wildlife laws, but
Maine identifies nothing in the text or legislative history of the
Amendments that suggests Congress wished to validate state laws
that would be unconstitutional without federal approval.

															Before this Court, Maine concedes that the Lacey Act Amendments
do not exempt state wildlife legislation from scrutiny under the
Commerce Clause. See Reply Brief for Appellant 3, n. 2.
The State insists, however, that the Amendments should lower the intensity of the scrutiny that would otherwise be applied.
We do not agree. An unambiguous indication of congressional intent
is required before a federal statute will be read to authorize
otherwise invalid state legislation, regardless of whether the
purported authorization takes the form of a flat exemption from
Commerce Clause scrutiny or the less direct form of a reduction in
the level of scrutiny. Absent "a clear expression of approval by
Congress," any relaxation in the restrictions on state power
otherwise imposed by the Commerce Clause unacceptably increases
"the risk that unrepresented interests will be adversely affected
by restraints on commerce." South-Central Timber, supra, at 467 U. S.
92 .

															In this case, there simply is no unambiguous statement of any
congressional intent whatsoever "to alter the limits of state power
otherwise imposed by the Commerce Clause," United States v.
Public Utilities Comm'n of California, 345 U.
S. 295 , 345 U. S. 304 (1953). In arguing to the contrary, Maine relies almost exclusively
on the following findings in the Senate Report on the Lacey Act
Amendments: Page 477 U. S. 140 "It is desirable to extend protection to species of wildlife not
now covered by the Lacey Act, and to plants which are presently not
covered at all. States and foreign government are encouraged to
protect a broad variety of species. Legal mechanisms should be
supportive of those governments."

															S.Rep. No. 97-123, pp. 3-4 (1981).

															Maine reads this passage, particularly the last sentence, to
direct federal courts to treat state wildlife laws more leniently.
We find this interpretation not only less than obvious, but
positively strained; by far the more natural reading of the last
sentence is that it refers only to the availability of federal
investigative and prosecutorial resources to enforce valid state
wildlife laws. The passage certainly does not make "unmistakably
clear" that Congress intended in 1981 to alter in any way the level
of Commerce Clause scrutiny applied to those laws. Maine's ban on
the importation of live baitfish thus is constitutional only if it
satisfies the requirements ordinarily applied under Hughes v.
Oklahoma to local regulation that discriminates against
interstate trade: the statute must serve a legitimate local
purpose, and the purpose must be one that cannot be served as well
by available nondiscriminatory means. III The District Court found after an evidentiary hearing that both
parts of the Hughes test were satisfied, but the Court of
Appeals disagreed. We conclude that the Court of Appeals erred in
setting aside the findings of the District Court. To explain why,
we need to discuss the proceedings below in some detail. A The evidentiary hearing on which the District Court based its
conclusions was one before a Magistrate. Three scientific experts
testified for the prosecution, and one for the defense. The
prosecution experts testified that live baitfish imported Page 477 U. S. 141 into the State posed two significant threats to Maine's unique
and fragile fisheries. [ Footnote
8 ] First, Maine's population of wild fish -- including its own
indigenous golden shiners -- would be placed at risk by three types
of parasites prevalent in out-of-state baitfish, but not common to
wild fish in Maine. See, e.g., App. 39-55. [ Footnote 9 ] Second, nonnative species
inadvertently included in shipments of live baitfish could disturb
Maine's aquatic ecology to an unpredictable extent by competing
with native fish for food or habitat, by preying on native species,
or by disrupting the environment in more subtle ways. See,
e.g., id. at 59-70, 141-149. [ Footnote 10 ]

															The prosecution experts further testified that there was no
satisfactory way to inspect shipments of live baitfish for
parasites or commingled species. [ Footnote 11 ] According to their testimony, the small size
of baitfish and the large quantities in which they are shipped made
inspection for commingled species "a physical impossibility." Id. at 81. [ Footnote
12 ] Parasite inspection posed a separate set of difficulties
because the examination procedure required destruction of the fish. Id. at 81-82, Page 477 U. S. 142 195. Although statistical sampling and inspection techniques had
been developed for salmonids ( i.e., salmon and trout), so
that a shipment could be certified parasite-free based on a
standardized examination of only some of the fish, no
scientifically accepted procedures of this sort were available for
baitfish. See, e.g., id. at 71, 184, 193-194. [ Footnote 13 ]

															Appellee's expert denied that any scientific justification
supported Maine's total ban on the importation of baitfish. Id. at 241. He testified that none of the three parasites
discussed by the prosecution witnesses posed any significant threat
to fish in the wild, id. at 206-212, 228-232, and that
sampling techniques had not been developed for baitfish precisely
because there was no need for them. Id. at 265-266. He
further testified that professional baitfish farmers raise their
fish in ponds that have been freshly drained to ensure that no
other species is inadvertently collected. Id. at
239-240.

															Weighing all the testimony, the Magistrate concluded that both
prongs of the Hughes test were satisfied, and accordingly
that appellee's motion to dismiss the indictment should be denied.
Appellee filed objections, but the District Court, after an
independent review of the evidence, reached the same conclusions.
First, the court found that Maine "clearly has a legitimate and
substantial purpose in prohibiting the importation of live bait
fish," because "substantial uncertainties" surrounded the effects
that baitfish parasites would have on the State's unique population
of wild fish, and the consequences of introducing nonnative species
were similarly Page 477 U. S. 143 unpredictable. 585 F. Supp. at 397. [ Footnote 14 ] Second, the court concluded that less
discriminatory means of protecting against these threats were
currently unavailable, and that, in particular, testing procedures
for baitfish parasites had not yet been devised. Id. at
398. Even if procedures of this sort could be effective, the court
found that their development probably would take a considerable
amount of time. Id. at 398, n. 11. [ Footnote 15 ]

															Although the Court of Appeals did not expressly set aside the
District Court's finding of a legitimate local purpose, it noted
that several factors "cast doubt" on that finding. 752 F.2d at 762.
First, Maine was apparently the only State to bar all importation
of live baitfish. See id. at 761. Second, Maine accepted
interstate shipments of other freshwater fish, subject to an
inspection requirement. Third, "an aura Page 477 U. S. 144 of economic protectionism" surrounded statements made in 1981 by
the Maine Department of Inland Fisheries and Wildlife in opposition
to a proposal by appellee himself to repeal the ban. Ibid. Finally, the court noted that parasites and nonnative species could
be transported into Maine in shipments of nonbaitfish, and that
nothing prevented fish from simply swimming into the State from New
Hampshire. Id. at 762, n. 12.

															Despite these indications of protectionist intent, the Court of
Appeals rested its invalidation of Maine's import ban on a
different basis, concluding that Maine had not demonstrated that
any legitimate local purpose served by the ban could not be
promoted equally well without discriminating so heavily against
interstate commerce. Specifically, the court found it "difficult to
reconcile" Maine's claim that it could not rely on sampling and
inspection with the State's reliance on similar procedures in the
case of other freshwater fish. Id. at 762. [ Footnote 16 ]

															Following the reversal of appellee's conviction, Maine and the
United States petitioned for rehearing on the ground that the Court
of Appeals had improperly disregarded the District Court's findings
of fact. The court denied the petitions, concluding that, since the
unavailability of a less discriminatory alternative "was a mixed
finding of law and fact," a reviewing court "was free to examine
carefully the factual record and to draw its own conclusions." Id. at 765. B Although the proffered justification for any local
discrimination against interstate commerce must be subjected to
"the strictest scrutiny," Hughes v. Oklahoma, 441 U.S. at 441 U. S. 337 ,
the empirical component of that scrutiny, like any other form of
factfinding, " is the basic responsibility of district
courts, Page 477 U. S.
145 rather than appellate courts,'" Pullman-Standard v.
Swint, 456 U. S. 273 , 456 U. S. 291 (1982), quoting DeMarco v. United States, 415 U.
S. 449 , 415 U. S. 450 ,
n. (1974). As this Court frequently has emphasized, appellate
courts are not to decide factual questions de novo, reversing any findings they would have made differently. See,
e.g., Anderson v. Bessemer City, 470 U.
S. 564 , 470 U. S. 573 (1985); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U. S. 100 , 395 U. S. 123 (1969). The Federal Rules of Criminal Procedure contain no
counterpart to Federal Rule of Civil Procedure 52(a), which
expressly provides that findings of fact made by the trial judge
"shall not be set aside unless clearly erroneous." But the
considerations underlying Rule 52(a) -- the demands of judicial
efficiency, the expertise developed by trial judges, and the
importance of firsthand observation, see Anderson, supra, at 470 U. S.
574 -575 -- all apply with full force in the criminal
context, at least with respect to factual questions having nothing
to do with guilt. Accordingly, the "clearly erroneous" standard of
review long has been applied to nonguilt findings of fact by
district courts in criminal cases. See Campbell v. United
States, 373 U. S. 487 , 373 U. S. 493 (1963); 2 C. Wright, Federal Practice and Procedure § 374 (2d
ed.1982). We need not decide now whether all such findings should
be reviewed under the "clearly erroneous" standard, because
appellee concedes that the standard applies to the factual findings
made by the District Court in this case. See Tr. of Oral
Arg. 27. We note, however, that no broader review is authorized
here simply because this is a constitutional case, or because the
factual findings at issue may determine the outcome of the case. See Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 , 466 U. S. 501 (1984); Pullman-Standard v. Swint, 456 U.S. at 456 U. S. 287 .
[ Footnote 17 ] Page 477 U. S. 146 No matter how one describes the abstract issue whether
"alternative means could promote this local purpose as well without
discriminating against interstate commerce," Hughes v.
Oklahoma, 441 U.S. at 441 U. S. 336 , the more specific question whether
scientifically accepted techniques exist for the sampling and
inspection of live baitfish is one of fact, and the District
Court's finding that such techniques have not been devised cannot
be characterized as clearly erroneous. Indeed, the record probably
could not support a contrary finding. Two prosecution witnesses
testified to the lack of such procedures, and appellee's expert
conceded the point, although he disagreed about the need for such
tests. See App. 74-75, 184, 265-266. That Maine has
allowed the importation of other freshwater fish after inspection
hardly demonstrates that the District Court clearly erred in
crediting the corroborated and uncontradicted expert testimony that
standardized inspection techniques had not yet been developed for
baitfish. This is particularly so because the text of the permit
statute suggests that it was designed specifically to regulate
importation of salmonids, for which, the experts testified, testing
procedures had been developed. [ Footnote 18 ] Page 477 U. S. 147 Before this Court, appellee does not argue that sampling and
inspection procedures already exist for baitfish; he contends only
that such procedures "could be easily developed." Brief for
Appellee 25. Perhaps this is also what the Court of Appeals meant
to suggest. Unlike the proposition that the techniques already
exist, the contention that they could readily be devised enjoys
some support in the record. Appellee's expert testified that
developing the techniques "would just require that those experts in
the field . . . get together and do it." App. 271. He gave no
estimate of the time and expense that would be involved, however,
and one of the prosecution experts testified that development of
the testing procedures for salmonids had required years of heavily
financed research. See id. at 74. In light of this
testimony, we cannot say that the District Court clearly erred in
concluding, 585 F. Supp. at 398, n. 11, that the development of
sampling and inspection techniques for baitfish could be expected
to take a significant amount of time.

															More importantly, we agree with the District Court that the
"abstract possibility," id. at 398, of developing
acceptable testing procedures, particularly when there is no
assurance as to their effectiveness, does not make those procedures
an "[a]vailabl[e] . . . nondiscriminatory alternativ[e]," Hunt, 432 U.S. at 432 U. S. 353 , for purposes of the Commerce Clause. A
State must make reasonable efforts to avoid restraining the free
flow of commerce across its borders, but it is not required to
develop new and unproven means of protection at an uncertain cost.
Appellee, of course, is free to work on his own or in conjunction
with other bait dealers to develop scientifically acceptable
sampling and inspection procedures for golden shiners; if and when
such procedures are developed, Maine no longer may be able to
justify its import ban. The State need not join in those efforts,
however, and it need not pretend they already have succeeded. Page 477 U. S. 148 C Although the Court of Appeals did not expressly overturn the
District Court's finding that Maine's import ban serves a
legitimate local purpose, appellee argues as an alternative ground
for affirmance that this finding should be rejected. After
reviewing the expert testimony presented to the Magistrate,
however, we cannot say that the District Court clearly erred in
finding that substantial scientific uncertainty surrounds the
effect that baitfish parasites and nonnative species could have on
Maine's fisheries. Moreover, we agree with the District Court that
Maine has a legitimate interest in guarding against imperfectly
understood environmental risks, despite the possibility that they
may ultimately prove to be negligible.

															"[T]he constitutional principles underlying the commerce clause
cannot be read as requiring the State of Maine to sit idly by and
wait until potentially irreversible environmental damage has
occurred or until the scientific community agrees on what disease
organisms are or are not dangerous before it acts to avoid such
consequences."

															585 F. Supp. at 397.

															Nor do we think that much doubt is cast on the legitimacy of
Maine's purposes by what the Court of Appeals took to be signs of
protectionist intent. Shielding in-state industries from
out-of-state competition is almost never a legitimate local
purpose, and state laws that amount to "simple economic
protectionism" consequently have been subject to a "virtually per se rule of invalidity." Philadelphia v. New
Jersey, 437 U. S. 617 , 437 U. S. 624 (1978); accord, e.g., Minnesota v. Clover Leaf Creamery
Co., 449 U. S. 456 , 449 U. S. 471 (1981). [ Footnote 19 ]
But Page 477 U. S. 149 there is little reason in this case to believe that the
legitimate justifications the State has put forward for its statute
are merely a sham or a " post hoc rationalization." Hughes, 441 U.S. at 441 U. S. 338 ,
n. 20. In suggesting to the contrary, the Court of Appeals relied
heavily on a 3-sentence passage near the end of a 2,000-word
statement submitted in 1981 by the Maine Department of Inland
Fisheries and Wildlife in opposition to appellee's proposed repeal
of the State's ban on the importation of live baitfish:

															"'[W]e can't help asking why we should spend our money in
Arkansas when it is far better spent at home? It is very clear that
much more can be done here in Maine to provide our sportsmen with
safe, home-grown bait. There is also the possibility that such an
industry could develop a lucrative export market in neighboring
states.'"

															752 F.2d at 760, quoting Baitfish Importation: The Position of
the Maine Department of Inland Fisheries and Wildlife, App. 294,
309-310. We fully agree with the Magistrate that "[t]hese three
sentences do not convert the Maine statute into an economic
protectionism Page 477 U. S. 150 measure." App. to Juris. Statement E-6, n. 4. [ Footnote 20 ] As the Magistrate pointed out,
the context of the statements cited by appellee

															"reveals [they] are advanced not in direct support of the
statute, but to counter the argument that inadequate bait supplies
in Maine require acceptance of the environmental risks of imports.
Instead, the Department argues, Maine's own bait supplies can be
increased." Ibid. Furthermore, the comments were made by a state
administrative agency long after the statute's enactment, and thus
constitute weak evidence of legislative intent, in any event. See ibid. [ Footnote
21 ]

															The other evidence of protectionism identified by the Court of
Appeals is no more persuasive. The fact that Maine allows
importation of salmonids, for which standardized sampling and
inspection procedures are available, hardly demonstrates that Maine
has no legitimate interest in prohibiting the importation of
baitfish, for which such procedures have not yet been devised. Nor
is this demonstrated by the fact that other States may not have
enacted similar bans, especially Page 477 U. S. 151 given the testimony that Maine's fisheries are unique and
unusually fragile. [ Footnote
22 ] Finally, it is of little relevance that fish can swim
directly into Maine from New Hampshire. As the Magistrate
explained: "The impediments to complete success . . . cannot be a
ground for preventing a state from using .its best efforts to limit
[an environmental] risk." Id. at E-10, n. 8. IV The Commerce Clause significantly limits the ability of States
and localities to regulate or otherwise burden the flow of
interstate commerce, but it does not elevate free trade above all
other values. As long as a State does not needlessly obstruct
interstate trade or attempt to "place itself in a position of
economic isolation," Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 , 294 U. S. 527 (1935), it retains broad regulatory authority to protect the health
and safety of its citizens and the integrity of its natural
resources. The evidence in this case amply supports the District
Court's findings that Maine's ban on the importation of live
baitfish serves legitimate local purposes that could not adequately
be served by available nondiscriminatory alternatives. This is not
a case of arbitrary discrimination against interstate commerce;
the Page 477 U. S. 152 record suggests that Maine has legitimate reasons, "apart from
their origin, to treat [out-of-state baitfish] differently," Philadelphia v. New Jersey, 437 U.S. at 437 U. S. 627 .
The judgment of the Court of Appeals setting aside appellee's
conviction is therefore reversed. It is so ordered. [ Footnote 1 ]

															"A person is guilty of importing live bait if he imports into
this State any live fish, including smelts, which are commonly used
for bait fishing in inland waters."

															Me.Rev.Stat.Ann., Tit. 12, § 7613 (1981).

															[ Footnote 2 ]

															Section 1254 reads in full:

															"Cases in the courts of appeals may be reviewed by the Supreme
Court by the following methods:"

															"(1) By writ of certiorari granted upon the petition of any
party to any civil or criminal case, before or after rendition of
judgment or decree;"

															"(2) By appeal by a party relying on a State statute held by a
court of appeals to be invalid as repugnant to the Constitution,
treaties or laws of the United States, but such appeal shall
preclude review by writ of certiorari at the instance of such
appellant, and the review on appeal shall be restricted to the
Federal questions presented;"

															"(3) By certification at any time by a court of appeals of any
question of law in any civil or criminal case as to which
instructions are desired, and upon such certification the Supreme
Court may give binding instructions or require the entire record to
be sent up for decision of the entire matter in controversy."

															[ Footnote 3 ]

															Congress in 1925 amended § 240(b) of the Judicial Code to read
as follows:

															"Any case in a circuit court of appeals where is drawn in
question the validity of a statute of any State, on the ground of
its being repugnant to the Constitution, treaties, or laws of the
United States, and the decision is against its validity, may, at
the election of the party relying on such State statute, be taken
to the Supreme Court for review on writ of error or appeal; but in
that event a review on certiorari shall not be allowed at the
instance of such party, and the review on such writ of error or
appeal shall be restricted to an examination and decision of the
Federal questions presented in the case."

															Act of Feb. 13, 1925, § 1, 43 Stat. 939.

															Until then, appeals were allowed as of right from decisions of
the courts of appeals only in civil cases involving more than
$1,000, and not arising under the diversity, admiralty, patent, or
revenue jurisdiction of the federal courts. See Act of
Mar. 3, 1891, § 6, 26 Stat. 828.

															The relevant portion of the 1925 Act was added on the floor of
the Senate, and the debates surrounding the amendment contain no
suggestion that it was intended to apply only in civil cases. See 66 Cong.Rec. 2753-2754, 2757, 2919-2925 (1925).

															[ Footnote 4 ]

															Even if this case fell outside the scope of 28 U.S.C. § 1254(2),
we would still have discretion under 28 U.S.C. § 2103 to grant
review by writ of certiorari. See Doran v. Salem Inn,
Inc., 422 U. S. 922 , 422 U. S. 927 (1975); El Paso v. Simmons, 379 U.
S. 497 , 379 U. S.
502 -503 (1965).

															[ Footnote 5 ]

															The United States filed a timely notice of appeal to this Court,
App. 311, but later moved in the Court of Appeals to dismiss its
appeal. Id. at 313. This was

															"[b]ecause the Acting Solicitor General determined that other
cases were entitled to priority in selecting the limited number of
cases the government would ask this Court to review."

															Brief for United States 14-15. The Court of Appeals granted the
Government's motion. App. 315.

															[ Footnote 6 ]

															Title 28 U.S.C. § 2403(b) provides:

															"In any action, suit, or proceeding in a court of the United
States to which a State or any agency, officer, or employee thereof
is not a party, wherein the constitutionality of any statute of
that State affecting the public interest is drawn in question, the
court shall certify such fact to the attorney general of the State,
and shall permit the State to intervene for presentation of
evidence, if evidence is otherwise admissible in the case, and for
argument on the question of constitutionality. The State shall,
subject to the applicable provisions of law, have all the rights of
a party and be subject to all liabilities of a party as to court
costs to the extent necessary for a proper presentation of the
facts and law relating to the question of constitutionality."

															[ Footnote 7 ]

															The United States advises us that it does not intend to seek
dismissal of the indictment if Maine prevails in this Court. See Brief for United States 17, n. 17.

															[ Footnote 8 ]

															One prosecution witness testified that Maine's lakes contain
unusually clean water, and originally supported "a rather delicate
community of just a few species of fish." App. 57. Another stressed
that "no other state . . . has any real landlocked salmon fishing.
You come to Maine for that or you live in Maine for that." Id. at 137.

															[ Footnote 9 ]

															Two of these types of parasites were found in appellee's
confiscated shipment of golden shiners. See United States v.
Taylor, 585 F.
Supp. 393 , 395-396 (Me.1984).

															[ Footnote 10 ]

															Although appellee's shipment was not found to contain any fish
other than golden shiners, it did contain "some polliwogs and . . .
some crustacean crawfish." App. 69. There was testimony suggesting
that these could pose the same ecological risks as nonnative fish. See id. at 70.

															[ Footnote 11 ]

															The expert who examined appellee's shipment testified that,
although his inspection of the shipment revealed only two of the
three parasites he described as prevalent in baitfish outside
Maine, "I certainly could not put my signature on a certificate to
say that [none of the third parasite] was present in that lot." Id. at 85.

															[ Footnote 12 ]

															The shipment intercepted in this case contained approximately
158,000 fish, with about 70 specimens to the pound. Id. at
80.

															[ Footnote 13 ]

															According to the prosecution testimony, the design of sampling
and inspection techniques must take into account the particular
parasites of concern, and baitfish parasites differ from salmonid
parasites. See, e.g., id. at 184, 193-194. Appellee's
expert agreed. Id. at 237, 265-267. There was also
testimony that the physical layout of bait farms makes inspection
at the source of shipment particularly difficult, and that border
inspections are not feasible because the fish would die in the time
it takes to complete the tests. Id. at 75-79.

															[ Footnote 14 ]

															For several reasons, the District Court discounted the testimony
of appellee's expert that baitfish parasites did not pose so
serious a threat as disease organisms found in salmonids. The court
noted that "considerable scientific debate" surrounded even the
threat posed by salmonid diseases, that appellee's expert testified
largely about the effects that baitfish parasites had in commercial
hatcheries, rather than in the wild, and that he was unfamiliar
with northeast fisheries. 686 F.
Supp. at 397 .

															[ Footnote 15 ]

															While the District Court approved the Magistrate's general
finding that "there are no obviously workable alternatives to the
outright prohibition of importation," id. at 398, neither
the court nor the Magistrate made any specific finding as to
whether Maine could adequately protect against the inadvertent
introduction of nonnative species by allowing baitfish to be
imported only from professional bait farmers using freshly drained
ponds. There was conflicting evidence on this point. Appellee's
expert suggested that such methods largely eliminated the problem
of commingled species, App. 239-240, but a prosecution witness
testified that complete success was "unlikely." Id. at
170. See also id. at 150 (prosecution testimony that
shipments cannot be screened reliably for commingled species
because "[t]his is a business. You have living material that you
have to move; you can't hold them in tanks and this kind of thing
for any length of time"). We are in no position to resolve this
factual dispute, and we conclude, in any event, that the District
Court's findings regarding parasites adequately support the
constitutionality of the challenged statute.

															[ Footnote 16 ]

															The court also noted that "a restriction on the number and size
of importations would be less restrictive than a total ban," 752
F.2d at 762, but it identified no reason to believe that such a
restriction would protect against parasites and commingled species
as effectively as a ban.

															[ Footnote 17 ]

															In support of its conclusion that it "was free to examine
carefully the factual record and to draw its own conclusions," id. at 765, the Court of Appeals cited Bacchus Imports
Ltd. v. Dias, 468 U. S. 263 (1984), and Boston Stock Exchange v. State Tax Comm'n, 429 U. S. 318 (1977). The question in each of these cases was whether a given set
of facts amounted to discrimination forbidden by the Commerce
Clause; in neither case did this Court reject underlying factual
findings made by the trial court. Indeed, there were no such
findings to reject -- the facts were stipulated in Bacchus,
see 468 U.S. at 468 U. S. 269 ,
and Boston Stock Exchange was decided on a motion to
dismiss, see 429 U.S. at 429 U. S.
320 .

															[ Footnote 18 ]

															The statute provides: "The commissioner may grant
permits" for the importation of freshwater fish upon an application
that describes the fish and their source and includes

															"[a] statement from a recognized fish pathologist, from a
college or university, from a state conservation department or from
the United States Fish and Wildlife Service, certifying that the
fish . . . are from sources which show no evidence of viral
hemorrhagic septicemia, infectious pancreatic necrosis, infectious
hematopoietic necrosis, Myxosomo cerebralis or other diseases which
may threaten fish stocks within the State."

															Me.Rev.Stat.Ann., Tit. 12, § 7202 (1981) (emphasis added). The
listed diseases all were identified at the hearing before the
Magistrate as salmonid disorders. See App.193.

															[ Footnote 19 ]

															This rule has been applied not only to laws motivated solely by
a desire to protect local industries from out-of-state competition,
but also to laws that respond to legitimate local concerns by
discriminating arbitrarily against interstate trade, for "the evil
of protectionism can reside in legislative means as well as
legislative ends." Philadelphia v. New Jersey, 437 U.S. at 437 U. S. 626 .
The Court has held, for example, that New Jersey may not conserve
the disposal capacity of its landfill sites by banning importation
of wastes, see ibid., and that Oklahoma may not fight
depletion of its population of natural minnows by prohibiting their
commercial exportation, see Hughes v. Oklahoma, 441 U. S. 322 (1979). In each case, out-of-state residents were forced to bear
the brunt of the conservation program for no apparent reason other
than that they lived and voted in other States. See
Philadelphia v. New Jersey, 437 U.S. at 437 U. S. 629 ; Hughes, 441 U.S. at 441 U. S.
337 -338, and n. 20. Not all intentional barriers to
interstate trade are protectionist, however, and the Commerce
Clause

															"is not a guaranty of the right to import into a state whatever
one may please, absent a prohibition by Congress, regardless of the
effects of the importation upon the local community." Robertson v. California, 328 U.
S. 440 , 328 U. S. 458 (1946). Even overt discrimination against interstate trade may be
justified where, as in this case, out-of-state goods or services
are particularly likely for some reason to threaten the health and
safety of a State's citizens or the integrity of its natural
resources, and where "outright prohibition of entry, rather than
some intermediate form of regulation, is the only effective method
of protecti[on]." Lewis v. BT Investment Managers, Inc., 447 U. S. 27 , 447 U. S. 43 (1980).

															[ Footnote 20 ]

															The District Court did not address appellee's argument that the
import ban was protectionist, because it did not believe that
appellee had objected to the Magistrate's rejection of that
argument. See 585 F. Supp. at 395, n. 5. The Court of
Appeals disagreed, concluding that appellee's objections to the
Magistrate's recommended decision incorporated all the arguments
included in his motion to dismiss. See 752 F.2d at 760, n.
7. In the objections he filed with the District Court, appellee did
not specifically contend that the statute was protectionist, but he
concluded by asking that the indictment be dismissed "[f]or the
reasons stated herein and also for those reasons stated in
Defendant's Memorandum of Law in Support of Motion to
Dismiss. " Defendant's Objection to the Magistrate's
Recommended Decision on Defendant's Motion to Dismiss Indictment 4
(Mar. 12, 1984) (emphasis added). Because we think the Magistrate
was clearly right to reject the argument that Maine's bait statute
constitutes economic protectionism, we need not decide whether this
catchall language sufficed to preserve the argument for later
review. Cf. Thomas v. Arn, 474 U.
S. 140 , 474 U. S.
148 -149 (1985).

															[ Footnote 21 ]

															The import ban was originally enacted in 1959. See 1959
Me.Acts, ch. 112.

															[ Footnote 22 ]

															Although Maine's flat statutory ban on the importation of all
live baitfish is apparently unique, Minnesota prohibits the use of
imported minnows for bait purposes "[e]xcept as otherwise
specifically permitted," Minn.Stat. § 101.42, subd. 6 (1984), and
several other States require administrative approval for the
importation and introduction of any live fish, see, e.g., Utah Code Ann. § 23-15-12 (1984); Va.Code § 28.1-183.2 (1985);
Wis.Stat. § 29.535 (Supp.1985); cf. S.D.Codified Laws §
41-14-30 (1977) (minnows may be transported "into or through South
Dakota" only pursuant to a 12-hour permit). Other States have
granted authority to their wildlife agencies to prohibit the
importation of particular species. See, e.g., Ala.Code §
9-2-13 (1980); N.C.Gen.Stat. § 113-160 (1983); cf. Nev.Rev.Stat. § 503.310(1) (1985) ("The [state wildlife] commission
is empowered to regulate or prohibit the use of live bait in
fishing to the end that no undesirable species of fish
intentionally or unintentionally may be introduced into the public
waters of this state").

															JUSTICE STEVENS, dissenting.

															There is something fishy about this case. Maine is the only
State in the Union that blatantly discriminates against
out-of-state baitfish by flatly prohibiting their importation.
Although golden shiners are already present and thriving in Maine
(and, perhaps not coincidentally, the subject of a flourishing
domestic industry), Maine excludes golden shiners grown and
harvested (and, perhaps not coincidentally, sold) in other States.
This kind of stark discrimination against out-of-state articles of
commerce requires rigorous justification by the discriminating
State.

															"When discrimination against commerce of the type we have found
is demonstrated, the burden falls on the State to justify it both
in terms of the local benefits flowing from the statute and the
unavailability of nondiscriminatory alternatives adequate to
preserve the local interests at stake." Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333 , 432 U. S. 353 (1977).

															Like the District Court, the Court concludes that uncertainty
about possible ecological effects from the possible presence of
parasites and nonnative species in shipments of out-of-state
shiners suffices to carry the State's burden of proving a
legitimate public purpose. Ante at 477 U. S.
142 -143, 477 U. S. 148 .
The Court similarly concludes that the State has no obligation to
develop feasible inspection procedures that would make a total ban
unnecessary. Ante at 477 U. S. 147 .
It seems clear, however, that the presumption should run the other
way. Since the State engages in obvious discrimination against
out-of-state commerce, it should be put to its proof. Ambiguity
about dangers and alternatives should actually defeat, rather than
sustain, the discriminatory measure. Page 477 U. S. 153 This is not to derogate the State's interest in ecological
purity. But the invocation of environmental protection or public
health has never been thought to confer some kind of special
dispensation from the general principle of nondiscrimination in
interstate commerce.

															"A different view, that the ordinance is valid simply because it
professes to be a health measure, would mean that the Commerce
Clause of itself imposes no restraints on state action other than
those laid down by the Due Process Clause, save for the rare
instance where a state artlessly discloses an avowed purpose to
discriminate against interstate goods." Dean Milk Co. v. Madison, 340 U.
S. 349 , 340 U. S. 354 (1951). If Maine wishes to rely on its interest in ecological
preservation, it must show that interest, and the infeasibility of
other alternatives, with far greater specificity. Otherwise, it
must further that asserted interest in a manner far less offensive
to the notions of comity and cooperation that underlie the Commerce
Clause.

															Significantly, the Court of Appeals, which is more familiar with
Maine's natural resources and with its legislation than we are, was
concerned by the uniqueness of Maine's ban. That court felt, as I
do, that Maine's unquestionable natural splendor notwithstanding,
the State has not carried its substantial burden of proving why it
cannot meet its environmental concerns in the same manner as other
States with the same interest in the health of their fish and
ecology. Cf. ante at 477 U. S. 151 ,
n. 22 (describing less restrictive procedures in other States).

															I respectfully dissent.