April 25, 2018
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Court says 2009 scallop fishing rules too vague

Bangor Daily News | BDN
Bangor Daily News | BDN
Andy Mays points out growth lines on a mature scallop he harvested Saturday near Mount Desert Island. May says scallops reach their prime in about five years. BANGOR DAILY NEWS PHOTO BY KEVIN BENNETT CAPTION Andy May points out the growth lines on a mature scallop he havested on Saturday, December 19, 2009 from the fridgid waters near Mount Desert Island. May claims scallops reach their prime in about 5 years. (Bangor Daily News/Kevin Bennett)
By Sharon Kiley Mack, BDN Staff

PORTLAND, Maine — A Lubec scallop fisherman has won his appeal before the Maine Supreme Judicial Court of a lower court decision that found him guilty of violating rules regarding how his day’s catch was measured in the 2009 scallop season.

The Law Court ruled on Dec. 23 that state law on how to measure a scallop catch in 2009 was too vague. The law was changed for the 2010 season. The court ruled the wording of the 2009 rules caused fishermen to guess at how the regulation would be applied, failed to give them adequate notice as to what fishing practices would comply with the law, and promoted practices harmful to the conservation purpose of the law.

For the 2010-11 scalloping season, which runs from Dec. 15, 2010, through March 27, 2011, the Department of Marine Resources added a sentence to the meat (shucked scallops) count measurement regulation that reads: “The meat count shall be measured by picking the smallest scallop meats from the harvester’s catch.”

But no such requirement was in place when David McCurdy of Lubec brought his haul into the Lubec shellfish dealer’s dock last December. In fact, McCurdy and most other scallop fishermen interpreted the rules to mean their catch would be measured randomly, not by culling out just the smallest meats.

According to court documents, McCurdy, along with three crewmen, fished for scallops in Cobscook Bay on Dec. 24, 2009. Within three hours, they had harvested 15 gallons of shucked scallops contained in three 5-gallon pails. McCurdy and members of his crew testified at his April 2010 trial at Machias District Court on charges of violating the scallop catch rule that this was a very good haul of high-quality scallops in a short period of time.

During his hearing and through his appeal, McCurdy contended that the DMR’s 2009 regulation concerning the size measurement of scallop meat did not specify whether the officer would take a random or culled sample of the harvested scallop meats.

The harvest rules in Cobscook Bay regulations state: “No vessel or person may take, possess or transfer shucked scallops which measure more than 35 meats per 16 oz. certified measure.”

Department of Marine Resources Officer Russell Wright was on duty checking the scallop harvest of local fishermen on Dec. 24, 2009. Wright checked McCurdy’s buckets, testifying that he stuck his hand into a bucket, rolled the scallops around until he saw small meats, put the small meats in the measure (a pint-sized can), leveled the can off, and counted the meats. The officer did this measure three times and measured 40, 41 and 43 meats per pint.

McCurdy and his crew members testified that the officer separately dumped each of the three buckets into an empty fish container and took out the smallest scallops from each to fill three pint cans. McCurdy then was permitted to sell his catch, except for the three pint cans of the smallest scallops.

At trial, McCurdy contended that a sampling to determine compliance with the regulation should involve a random sample of the contents of each bucket, rather than selection of the smallest scallops for placement in the certified measuring can. He argued that the smaller meats separated from the remainder of his catch consti-tuted less than 2 percent of his total catch.

District Court Judge John Romei found McCurdy guilty of “violating scallop-fishing catch-measurement regulations in Cobscook Bay,” but he suspended all but $100 of the mandatory $500 fine. If McCurdy had lost his appeal in the Law Court, the state also would have taken away his scalloping license, his attorney, Jeffrey Toothaker of Ellsworth, said Wednesday.

Romei said the fine was reduced “because of the way the measure was taken. I think it meets the letter of the law, but not the spirit.”

Romei expressed his concern that the law, as it was written, didn’t achieve the intended result of conserving the scallop fishery. He said it seemed like a fisherman might be inclined to throw away a lot of meats and keep fishing, and essentially overfish the area just to be really sure that — if all the small ones are segregated — his catch will be considered legal.

In his appeal, according to the court documents, McCurdy argued, “If the State wants [fishermen] to throw smaller scallops back after being shucked, put that requirement in writing or come up with a minimum meat size regulation.”

Throwing back shucked scallops would not result in conservation, as the act of shucking kills the scallop, it was pointed out.

In ruling in McCurdy’s favor, the Law Court wrote, “When terminology in a regulation is so vague that businesses or individuals regulated — here, scallop fishermen — must guess at its meaning and cannot determine, in advance, how to conduct themselves to comply with the rule, such a subjective and unpredictable exercise of authority is violative of due process principles and an improper delegation of legislative authority.”

Toothaker said another Down East fisherman, Scott Ramsdell, was convicted several days before McCurdy under the exact same circumstances, but chose not to appeal his conviction due to a lack of funds.

Now that the Law Court’s ruling has come down, Toothaker said, “If the state had any sense of fair play, the state would vacate Ramsdell’s conviction.”

Efforts to reach someone at DMR who could address the question of how many scallop fishermen were charged with this same violation last year were unsuccessful Wednesday.

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