Tentative agreement on elver licenses between Passmaquoddys, state

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.
Posted Jan. 29, 2014, at 6:40 p.m.
Last modified Jan. 30, 2014, at 8:03 a.m.

AUGUSTA, Maine — State officials and representatives of the Passamaquoddy Tribe have reached a tentative agreement on how the tribe will distribute elver licenses and manage the tribal catch for the 2014 fishing season.

The tribe has agreed to cap the total amount of juvenile American eels caught by its members to 1,650 pounds but will be allowed to issue as many dip net licenses as it sees fit, officials with the tribe and with the Maine Department of Marine Resources said Wednesday. Pending final approval of the agreement, the tribe will not be allowed to issue licenses for fyke nets, which are large funnel-shaped nets that are fixed in place, and tribal fishermen will be required to use swipe cards when they sell their catch, according to DMR.

But there is a sticking point to the proposal. The state Attorney General’s office has concerns about Passamaquoddys and nontribal fishermen being penalized differently, which the state attorneys say could violate the equal protection clause of the Maine Constitution, according to state and tribal officials who spoke Wednesday to the Legislature’s Marine Resources Committee.

Maine has been told by the Atlantic States Marine Fisheries Commission that it must reduce the statewide catch — which includes landings from all four Indian tribes and other licensed fishermen — by 25 to 40 percent from the 2013 total of 18,000 pounds. DMR’s target reduction is 35 percent, which would mean a statewide cap of roughly 11,750 pounds.

To achieve this goal, DMR is proposing individual catch quotas on licensed fishermen that would be based on an average of what each fisherman caught during the 2011, 2012 and 2013 seasons. Any licensed fisherman who exceeds his or her personal quota by five percent or more would lose that license for the following year and would have to repay the market value of their excess eels to the state.

The tentative agreement between DMR and the tribe, however, would exempt Passamaquoddy fishermen from individual quotas. So though the tribe theoretically might exceed its quota of 1,650 pounds, there would be no individual tribal fishermen to penalize because none would have violated a personal quota. This is the difference that concerns the Attorney General’s office, legislators were told.

Patrick Keliher, commissioner for DMR, told the committee that the proposed agreement is “not perfect by any stretch of the imagination,” but that his goal is to resolve the lengthy licensing dispute with the tribe. At the same time, he said, he does not want to jeopardize either the willingness of nontribal fishermen to abide by DMR rules and regulations or the negotiated support the state has received so far from the Atlantic States Marine Fisheries Commission.

“That must be the goal … we are not going to lose a $40 million fishery,” Keliher said.

Tribal officials who appeared before the committee said Wednesday that they are committed to protecting the resource while making the lucrative fishery accessible to as many tribal members as possible. They said they believe they can come to agreement with the state to resolve the concerns about the fairness of potential penalties, but that they need more time to work out the details.

Corey Hinton, a tribal member and an attorney who has been representing the tribe in negotiations with the state, said there is no obligation for tribal and nontribal fishermen to be treated exactly the same way. The tribe is recognized as a separate government by federal law and, as such, can best reach an agreement with the state through a memorandum of understanding rather than through state legislation, he said.

“I’m here to say we have been a separate class of citizens since our first contact with Europeans,” Hinton told the committee. “There does not need to be absolute reciprocity. We have separate [federal] rights.”

The Marine Resources Committee, which has been considering legislation that would address DMR’s concerns about the manner in which the tribes issue licenses to their members, tabled further discussion on that legislation until Wednesday, Feb. 12, in the hopes that legal concerns about the proposed agreement can be resolved by then.

For the past few years the tribe and DMR have disagreed over how many fishing licenses for elvers the tribe should be allowed to issue to its members. The tribe handed out 575 licenses this past spring, after the Legislature had passed a law that limited the Passamaquoddys to 200. DMR quickly responded by indicating that 375 tribal licenses would be considered invalid by Marine Patrol officers.

As a result, more than 50 members of the tribe were charged with Class D crimes, according to testimony submitted by the American Civil Liberties Union of Maine. Most of those charges since have been dismissed by prosecutors in Hancock, Washington and Penoboscot counties.

 

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