District attorney says he may dismiss charges against Passamaquoddy elver fishermen

Paul Firminger holds an elver in his hand at South Shore Trading Co., an elver buying station, in Portland, Maine, May 11, 2012.
JOEL PAGE | REUTERS
Paul Firminger holds an elver in his hand at South Shore Trading Co., an elver buying station, in Portland, Maine, May 11, 2012.
Posted July 23, 2013, at 5:40 p.m.
Last modified July 24, 2013, at 6:53 a.m.

BANGOR, Maine — After saying he was going to dismiss charges pending in Penobscot County against members of the Passamaquoddy Tribe accused of fishing for elvers without a license, District Attorney Chris Almy said Tuesday evening that he has decided to wait before making a decision.

There are more than 30 criminal cases pending statewide against members of the tribe, which has been involved in a dispute with the Maine Department of Marine Resources over how many elver licenses it should issue to its members. All of the Passamaquoddys charged had been issued licenses this spring by the tribe. The department later declared the licenses invalid.

State law was changed this April to make any illegal harvest or possession of elvers a criminal offense, meaning anyone without a valid license caught fishing or in possession of elvers now can be arrested and, if found guilty, sentenced to up to a year in jail and fined $2,000. Maine’s annual elver fishing season lasts for 10 weeks, from March 22 through the end of May.

Before the law was changed, a first offense was considered a civil infraction, which meant that violators did not face jail time. Only repeat unlicensed violators could face criminal charges.

Almy had said late Tuesday afternoon that he was going to dismiss the elver license charges against members of the Passamaquoddy Tribe until the licensing authority dispute between the Department of Marine Resources and the tribe was resolved by the tribe and the state Attorney General’s office. He said later, however, that he was going to consider the matter further before deciding whether to dismiss the cases.

He did not elaborate about why he chose to wait or if there was a specific aspect of the issue that he wanted to spend more time on before making up his mind.

In March, Attorney General Janet Mills issued a legal opinion that indicated Maine’s “tribal members are subject to Maine’s regulatory authority over marine resources to the same extent as other Maine citizens.”

Almy said if he does decide to dismiss the charges, some or all could be refiled if and when the licensing authority issue is resolved.

According to attorneys involved, there are about a dozen members of the tribe who faced criminal charges of fishing without a license in Penobscot County.

This past March, just as the elver season was set to begin, the state set a limit of 200 licenses for the Passamaquoddys but the tribe instead issued 575. In response, the Department of Marine Resources declared all but 200 of the tribal licenses to be invalid.

A spike in the value of elvers, from an average of roughly $100 per pound in 2009 to nearly $2,000 per pound in 2012, is behind the sudden surge in interest in fishing for the juvenile American eels. The high prices, which generally remained above $1,500 pound this spring, have been tempting for many people who have no licenses but are willing to risk getting caught because of the potential payday.

The tribal license limit set by the Legislature in March is the first such limit the state has sought to impose on the Passamaquoddys. The Department of Marine Resources sought to set a limit for the tribe in order to comply with the Atlantic State Marine Fisheries Commission, which has said that for conservation reasons there should be no more than 744 elver licenses issued statewide.

Clayton Cleaves, chief of the Passamaquoddy Tribe community at Pleasant Point, said Tuesday that the tribe always has retained its inherent rights to fish. The state, he said, does not have authority to limit those rights.

“We may have to go to court to get our treaty rights recognized,” Cleaves said.

Cleaves said there aren’t many jobs in Washington County and that the income from elver fishing is important to the tribe. The tribe sets a 3,600-pound limit on the amount of elvers that its members cumulatively can catch each year, he said, which makes its conservation methodology more sustainable than the state’s, which sets no such overall catch limit.

“This is a resource that needs to be protected,” Cleaves said. “I hope the state will dismiss every charge against tribal members.”

Jeff Nichols, spokesman for the Department of Marine Resources, said Monday that during the 2013 elver fishing season, Maine Marine Patrol issued 351 civil and criminal fishing violations, of which 208 were for fishing without a license. Both Passamaquoddys and people who are not members of the tribe were among those charged with fishing without a license, he said, but he does not know how many of those 208 citations were issued to tribal members.

Nichols said the department is declining to comment about the elver court cases.

Bar Harbor attorney Lynne Williams and attorney Phil Worden of Northeast Harbor are co-representing Passamaquoddys in cases filed in Hancock County.

Williams said Monday that members of the tribe have solid legal grounds for contesting the criminal charges. All had valid tribal licenses, which have been honored by the state for years, and many who had licenses deemed invalid by the Department of Marine Resources were never notified by the agency of the department’s decision, she said.

Williams said she hopes the tribe and the agency can come to a long-term agreement on license or catch limits before the 2014 season starts next March.

“Before next year’s season comes, they have to figure out how they’re going to [resolve the dispute],” she said.

Logan Perkins, a defense attorney in Bangor who represents 11 members of the tribe who are facing criminal charges in Penobscot County, said Tuesday her clients essentially are bystanders who have been caught up in an inter-governmental disagreement.

“I think it is unfair to bring a criminal sanction against an individual who was operating with a license that was valid at the time they received it,” Perkins said. “Individual tribal members don’t have any power over whether their licenses are considered valid by the state.”

Logan added that she is concerned whether each of her clients could get a fair trial by a jury of his or her peers, given the small number of Passamaquoddys who live in Penobscot County. The largest concentrations in Maine of Passamaquoddy members are at Pleasant Point and Indian Township, both of which are in Washington County. If her clients’ cases move forward toward jury trials, she said, jury selection could occur as soon as early September.

“I’m hopeful the Penobscot County district attorney’s office will see the light and dismiss these cases,” Perkins said.

Attempts this week to contact other prosecutors in Hancock, Washington, and York counties, and other defense attorneys representing Passamaquoddy tribal members on elver charges, have been unsuccessful.

In 2012, more than 600 licensed Maine elver fishermen caught over 19,000 pounds of elvers, more than double the previous year’s total catch. They were sold for a statewide sum of nearly $38 million, making Maine’s elver fishery the second most valuable in Maine after the $339 million lobster fishery.

Elver landings and revenue totals for 2013 are not yet available.

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