24 Passamaquoddy elver cases dismissed in Hancock, Washington counties

Glenn Bernard of Presque Isle fingers through his elver catch from the previous night to try and find eels small enough to sell in Brewer on Friday, May 31, 2013.
Carter F. McCall | BDN
Glenn Bernard of Presque Isle fingers through his elver catch from the previous night to try and find eels small enough to sell in Brewer on Friday, May 31, 2013. Buy Photo
Posted Jan. 07, 2014, at 6:18 p.m.
Last modified Jan. 07, 2014, at 7:31 p.m.

ELLSWORTH, Maine — Two dozen members of the Passamaquoddy tribe who were charged by Maine Marine Patrol officers in Hancock and Washington counties with fishing for elvers without a license, even though they did have tribal licenses, won’t have their day in court after all.

According to attorneys involved, there were six such cases pending in Hancock County and 18 pending in Washington County. The relevant cases in Hancock County were dismissed in mid-December while those in Washington County were dismissed at the end of the month, prosecutors said this week.

The dismissals follow a similar decision made in November by Penobscot County District Attorney Chris Almy. Almy dismissed about a dozen cases pending against Passamaquoddys who were cited despite possessing tribal licenses. Prosecutors have made it clear that other defendants, Passamaquoddy or otherwise, who had no licenses of any kind or may have committed other violations such as fishing during closed periods still are being prosecuted.

The cases arose during Maine’s 10-week elver season this past spring, after Marine Patrol, the law enforcement division of the state Department of Marine Resources, charged the defendants with fishing without an elver license, even though they each had an elver license that had been issued by the tribe. Elvers are juvenile American eels that migrate from the Atlantic Ocean into fresh water each spring.

DMR had declared most tribal licenses invalid after the tribe, contrary to a 200-license limit set for it by the state Legislature, issued 575 licenses to its members. The department indicated that it would honor only 200 licenses and that any Passamaquoddy caught fishing with an unapproved tribal license number would be charged.

DMR and tribal officials continue to disagree on the number of elver licenses the tribe may distribute to its members.

Hancock County Assistant District Attorney William Entwisle and Deputy District Attorney Paul Cavanaugh, who respectively were prosecuting the cases in Hancock and Washington counties, each said this week that members of the tribe had been issued their licenses by a legitimate authority and got caught up in a dispute between tribal officials and DMR.

“It’s just an issue of fundamental fairness,” Entwisle said. “They had been issued licenses by the tribe.”

Bar Harbor defense attorney Lynne Williams, who represented two Passamaquoddy defendants in Hancock County, said Monday in an email that tribal members have been accustomed to relying on their tribal licenses for years.

“DMR changed the rules midstream [by invalidating licenses], failed to notify those with tribal licenses that they were no longer valid and then, halfway through the season, again changed the rules, making the same charge a criminal offense, rather than a civil violation,” Williams wrote. “My clients had every reason to assume that their licenses were valid, and were prepared to go to trial on these charges.”

Attempts this week to contact Phil Worden, a defense attorney handling Passamaquoddy elver cases in Hancock and Washington counties, and Passamaquoddy tribal officials at Pleasant Point were unsuccessful.

Patrick Keliher, commissioner for DMR, said Tuesday afternoon that he is “incredibly disappointed” that the cases have been dismissed. Not knowing the law — in this case that their licenses had been invalidated — is not a defense for violating it, he said.

Keliher said that even though the county prosecutors have opted not to pursue the cases, the state Attorney General’s office still could. For that reason, he added, DMR does not have plans to return confiscated gear to any of the affected defendants.

“We will start having discussions with the AG’s office” about pursuing the cases, Keliher said.

Interest in Maine’s elver fishery has skyrocketed since 2011, when demand in the Far East soared in the wake of a tsunami that wiped out Japanese stocks of eels being raised in aquaculture ponds for the Asian seafood market. Prices Maine fishermen got for their catch rose from an average of $185 per pound in 2010 to more than $1,800 per pound in 2012, according to DMR statistics, which had made the fishery the second-most valuable in Maine, behind only lobster.

The state license limit is geared toward complying with a directive from Atlantic States Marine Fisheries Commission to keep the number of elver licenses issued statewide to no more than 744. To protect the American eel population, the commission has told Maine that it also must reduce its 2014 catch by 25 to 40 percent from last year’s 18,253-pound total statewide harvest.

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