Attorney general says state has authority over Passamaquoddy fishing licenses

Posted April 02, 2013, at 2:42 p.m.

ELLSWORTH, Maine — In a March letter, Maine’s attorney general told the Department of Marine Resources that it was within its statutory authority to enforce state rules for elver harvesting on Passamaquoddy fishermen.

The opinion, made available Tuesday, gives some clarification to the state’s legal argument in a dispute between the state and the tribe. At the center of the debate is the Passamaquoddy’s claim that the tribe has sole jurisdiction over the fishing activities of tribal members.

“Tribal members are subject to Maine’s regulatory authority over marine resources to the same extent as other Maine citizens,” wrote Attorney General Janet Mills.

The letter from Mills to Department of Marine Resources Commissioner Patrick Keliher shows that DMR ensured it had the legal authority to impose its regulations on the tribe before LD 421, which limited the number of tribal licenses, was signed into law on March 22.

In the letter, Mills discusses the history of legal agreements between the state and the Passamaquoddy, including the 1980 Indian Claims Settlement Act.

She also wrote that Congress, in negotiations leading up to signing of the settlement act, “specifically extinguished tribal aboriginal claims to Maine’s marine resources.”

That reading, however, didn’t sit well with Passamaquoddy officials.

“Maine seems to think we don’t have anything to stand on in our jurisdiction, but we do,” said Newell Lewey, a member of the Tribal Council at Pleasant Point and a member of the Passamaquoddy Fisheries Committee. “There’s a Doctrine of Reserved Rights, and we never signed away our saltwater fishing rights.”

The differing legal interpretations may eventually be settled in court. On Sunday, just hours before a confrontation between dozens of Passamaquoddy and Marine Patrol in Pembroke, Passamaquoddy Chief Clayton Cleaves said the tribe would challenge summonses issued against tribal fishermen all the way up to the Maine Supreme Judicial Court if necessary.

In the meantime, the Legislature may enact tougher penalties on those who violate the state’s elver fishery rules.

Rep. Walter Kumiega, D-Deer Isle, is the co-chair of the Joint Marine Resources Committee and co-sponsor of LD 632. In its current form, approved by the committee on Monday, the bill would make elver license violations a criminal offense, rather than a civil one, and in most cases would make a $2,000 fine mandatory.

Kumiega said that the newly lucrative fishery — in which fishermen netted about $2,000 per pound in 2012 — has prompted a Wild West mentality in the field, and that the stricter measures are not aimed squarely at the Passamaquoddy, but at any and all poachers.

“There are issues up and down the coast,” Kumiega said Tuesday. “Last night, they [Marine Patrol] arrested several non-tribal members who are repeat offenders. … There are plenty of violations to go around, unfortunately.”

He continued: “The price has certainly made this industry attractive. I’m sure there was illegal activity in the past, but it wasn’t as lucrative. Even with a $2,000 fine, someone might make that back later on the same night.”

In its current form, green-lit by the Marine Resources Committee on Monday, LD 632 also would prohibit cash transactions between elver dealers and harvesters, to introduce “traceability” into the market, Kumiega said. It also would require harvesters to provide photo ID when they sell their catch, and would give Marine Patrol access to landing records. It also creates a new violation, “assisting in illegal harvesting of elvers.”

Kumiega said he hoped the bill would head to the full Legislature for a vote on Thursday, where it would need to be passed as emergency legislation. It would require two-thirds approval in both chambers and would take effect as soon as Gov. LePage signed the bill.

Follow Mario Moretto on Twitter at @riocarmine.

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