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Law targeting Canadian log truckers hits a 1st Circuit jam

Crafted to help Maine truck drivers get log-hauling jobs over Canadian competitors, Public Law 280 has a preemption problem.

BOSTON (CN) — The First Circuit looked unlikely Wednesday to rule in favor of a Maine law that gives its residents an advantage when it comes to log-trucking jobs.

U.S. District Judge John Woodcock enjoined the statute known as Public Law 280 this past February on federal preemption grounds, and similar concerns appeared to dominate at oral arguments in Boston on Wednesday as the state pushed for a reversal.

“That’s another way of saying that Maine has taken that decision away from the federal government, and to that extent the H-2A program cannot operate the way it is currently fashioned,” said U.S. Circuit Judge Bruce Selya, a Reagan appointee and one of three judges considering Maine's appeal.

An H-2A visa is typically given when an employer files for it on behalf of a foreign laborer it would like to employ. The visa is only granted by the Department of Labor if the employment of the immigrant worker will not adversely affect the working conditions of citizen workers or if there is a labor shortage that needs to be supplemented by foreign labor.

Jason Anton, an assistant Maine attorney general, stressed in response, however, that the new law applies only to future H-2A applications, not to immigrant laborers already working under the visa.

“I think it’s subtly different for the state to say this is a violation of state employment law and then to direct the federal government to make a particular determination,” Anton said.

Maine lawmakers said the purpose of the law is to keep local truckers from losing out on work when companies hire foreign laborers for less pay.

In addition to the preemption issue, Judge Woodstock found that Public Law 280 has an equal protection problem.

“Although the court understands the state’s interest in protecting Maine workers and ensuring that employers do not hire foreign workers where there are United States workers able and willing to do the job, Congress already considered the interests of the United States workforce against an employer’s need for workers and it has balanced those interests in developing the H-2A program as part of its national immigration and naturalization policy,” Woodcock said in his ruling.

Assistant Attorney General Jason Anton defended the statute. “On its face Maine law is not a regulation of immigration, it does not determine when someone may enter or leave the country,” Anton said. “Instead it is a specific regulation that says only U.S. residents may perform a particular job within Maine.”

The lawsuit at issue was filed roughly a year ago by the Maine Forest Product Council, Pepin Lumber and a Canadian truck driver.

“When the state talks about downstream impact, this isn’t a chain of dominos that has to fall to bar the immigration from occurring,” their attorney, Nolan Reichl at the Portland, Maine, firm Pierce Atwood, told the appellate court Wednesday.

“It’s the first domino, it's the only domino," Reichl continued. "If you do not have the job opportunity you cannot come into the country, so barring the job opportunity is an immigration regulation.

U.S. Circuit Judge David Barron, an Obama appointee, questioned if there would be any way going forward that an H-2A visa could be granted by the Department of Labor in Maine.

Anton noted that such determination would be inconsistent with the new law, so it would be unlikely.

Reichl underscored what he called the absence of "daylight between immigration status and job opportunity here."

“You first have to have the job opportunity," Reichl said.

Neither Reichl nor Anton responded to emails seeking comment.

U.S. Circuit Judge Jeffrey Howard, a George W. Bush appointee, rounded out the panel.

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