First elver cases against Passamaquoddy fishermen dismissed on technicality

Posted Aug. 12, 2013, at 3:54 p.m.
Last modified Aug. 12, 2013, at 6:19 p.m.

ELLSWORTH, Maine — Three members of the Passamaquoddy Tribe who were facing civil charges of fishing for elvers without a license have had their cases dismissed because they were charged using the wrong paperwork.

Dozens of members of the tribe are facing civil and criminal elver charges as a result of a dispute between the state and the tribe over what kind of authority the tribe has to determine how many elver fishing licenses it issues to its members. Elvers are juvenile American eels, which are in great demand in Asian markets.

This past March, just as the lucrative 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 Maine Department of Marine Resources declared all but 200 of the tribal licenses to be invalid.

Tribal officials have said they have legal authority to manage their fishery and to issue as many tribal elver licenses as they see fit. In March, however, Maine 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.”

Before April 23, when fishing for elvers without a license became a criminal offense, any first offense for the infraction was considered a civil violation under Maine law.

In Hancock County, tribal member Christopher Neptune was facing a civil charge of fishing elvers without a license but the charge was dismissed on Aug. 1 by Ellsworth District Court Judge Bruce Mallonee, according to court documents.

On Monday, a brother and sister who are members of the tribe had their civil cases dismissed in Belfast District Court.

Neptune, who had a 2013 tribal license, was cited for fishing for elvers without a DMR-approved license at the edge of Northern Bay in Penobscot on April 7. Marine Patrol Officer Brent Chasse wrote out the citation with a uniform summons and complaint form, a standard document that many police agencies use.

Neptune’s attorney, Phil Worden of Northeast Harbor, wrote in a motion to dismiss that state law specifies that uniform summons and complaint forms only can be used for a civil charge if the charge alleged carries a potential fine of $1,000 or less. The fine for fishing for elvers without a license was increased in 2012 from $500 to $2,000.

Worden indicated in his motion that Neptune could be charged for the civil violation through a “regular civil action,” rather than by being issued a uniform summons and complaint form. Worden also argued in the document that the dispute is one between the tribe and the state and that his client is just a bystander. The Atlantic States Marine Fisheries Commission, which oversees interstate fisheries in state waters, and the tribe should be included as parties in the case because of the Maine Indian Claims Settlement Act, which “is the equivalent of a treaty,” Worden wrote.

“The defendant is caught in the middle of a dispute that he did not know existed,” Worden wrote in his motion.

Waldo County Deputy District Attorney Eric Walker said Monday that the rapidly evolving legislation governing elver fishing this spring has led to some confusion. He decided to dismiss the civil cases against Desiree Lola and Zachary Jillson on the same technicality as in Neptune’s case. The brother and sister were charged on April 15 with fishing for elvers without a DMR-approved license on the Passagassawakeag River in Belfast.

“There’s some indication the feds were saying, ‘You’re overfishing,’” Walker said. “That started the whole rush to get this legislation fixed.”

The rapid changes have led to a lot of confusion and many disputes over fishing rights, Walker said about agreeing to dismiss the cases.

Last week, the Atlantic States Marine Fisheries Commission decided to postpone at least until October any decision it may make on imposing greater restrictions on fishing for American eels, the population of which is depleted in American waters, according to the commission. Because of concerns about the species, the U.S. Fish and Wildlife Service is considering listing American eels under the Endangered Species Act.

It was not clear Monday if the state might decide to refile the civil charges against the Passamaquoddy fishermen. Attempts on Monday to contact Worden and the prosecutor in Neptune’s case, Assistant Hancock County District Attorney William Entwisle, were unsuccessful.

Defense attorneys representing members of the tribe in other counties on similar civil charges say they have filed similar motions to dismiss. A hearing on a motion to dismiss a case in Penobscot County is scheduled for the end of next week.

Criminal trials for tribal members charged by Maine Marine Patrol after April 23 are expected to take place throughout Maine this fall. Penobscot County District Attorney Christopher Almy said recently he still plans to prosecute criminal cases filed there, even though at one point he said he planned to dismiss them.

Defense attorneys involved in the cases say prosecutors with the Maine attorney general’s office have been involved in discussions about how the cases should be prosecuted, but the attorney general’s office has declined to comment. Officials with the Maine Department of Marine Resources also have declined to comment on the Passamaquoddy cases.

The license limit set for the tribe 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 States Marine Fisheries Commission, which has said that for conservation reasons there should be no more than 744 elver licenses issued statewide.

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 per pound this spring, have been tempting for many people who have no licenses — tribal or otherwise — but are willing to risk getting caught because of the potential payday.

BDN writer Abigail Curtis contributed to this report.

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