Constitutional issues cause Department of Marine Resources to pull back from Passamaquoddy elver deal

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 Feb. 13, 2014, at 5:23 p.m.

AUGUSTA, Maine — Due to concerns raised by the Maine Office of the Attorney General, state fisheries officials are backing off from a tentative agreement reached with the Passamaquoddy Tribe over the state’s elver fishery.

After months of negotiations, the Maine Department of Marine Resources and the tribe indicated two weeks ago that they had reached a tentative agreement on how the tribe would issue licenses. The tribe would abide by an overall catch limit for its members but, unlike nontribal fishermen, each tribal fisherman would not have an individual quota. Additionally, the tribe would be able to issue as many hand-held dip net licenses as it sees fit.

Also unlike some nontribal licensed fishermen, the Passamaquoddy wouldn’t be allowed to use large, funnel-shaped fyke nets that are fixed in place along the sides of tidal estuaries where the juvenile American eels swim upstream to fresh water.

The attorney general’s office, however, has said that some provisions in the proposal may violate the equal protection clause of the state constitution and, as a result, might be unenforceable if challenged in court. Prohibiting the Passamaquoddys from using fyke nets but allowing nontribal fishermen to use them might not be constitutional, the attorney general’s office has said. The same might be true about penalizing nontribal fishermen who exceed their personal quotas but not imposing penalties on individual Passamaquoddy fishermen, who would have no personal quotas.

Patrick Keliher, commissioner of the Department of Marine Resources, on Wednesday told members of the Legislature’s marine resources committee that the department was backing off its support of the proposal because of the legal concerns. The committee was meeting to discuss possible measures that might be included in a bill, LD 1625, that would lay out rules for the 2014 elver fishing season that starts March 22. The panel is expected to continue discussing the bill on Wednesday, Feb. 19.

Jeff Nichols, spokesman for the Department of Marine Resources, said Thursday that the state cannot adopt conservation measures it cannot enforce.

“If the law is not enforceable, it not only challenges the [Department of Marine Resources’] ability to effectively manage the resource, but it also puts the state at risk of losing this fishery altogether because the Atlantic States Marine Fisheries Commission could shut the fishery down if the state can’t enforce its conservation laws,” Nichols said in a prepared statement.

Last week, the interstate commission approved a general proposal for Maine to use a statewide catch quota, rather than a hard cap on fishing licenses, to protect stocks of American eels. Department of Marine Resources officials have promised the commission that Maine will reduce the total statewide volume of the 2014 elver harvest by 35 percent.

An attempt Thursday to contact Joseph Socobasin, chief of the Passamaquoddy Tribe at Indian Point, was unsuccessful.

Socobasin attended Wednesday’s work session in Augusta and told the marine resources committee that it was “incredibly frustrating” to have the months of negotiations crumble apart with the 2014 elver season quickly approaching. Maine’s annual 10-week season is due to start in a little more than five weeks.

“I thought we had come to an agreement that was acceptable,” Socobasin said. “We don’t want the fiasco we had last year. We all want a resolution. “

Last year, the tribe issued 575 licenses even though the Legislature had passed a law limiting the tribe to 200. Marine Patrol officers criminally charged members of the tribe they found fishing with tribal licenses that the Department of Marine Resources said were invalid, but prosecutors later threw the cases out, saying it was unfair to charge Passamaquoddy fishermen with crimes in what was essentially an intergovernmental dispute.

Socobasin and other tribal officials disputed the notion that any agreement between the state and the tribes has to comply with Maine’s equal protection laws. The tribes, they said, have sovereign rights that the state cannot take away.

“This is not a race-based privilege,” Kirk Francis, chief of the Penobscot Nation, told the committee. “It’s about self-governance.”

Keliher cautioned the committee about the ramifications of not coming to agreement on a bill. If a divided recommendation comes out of the committee, it likely will be harder to get the bill approved by two-thirds majorities in the House and Senate, which is required for the measure to become law before the season starts.

If no new bill is passed before March 22, Keliher said, he still could impose a statewide quota, but there would be no individual quotas. Additionally, poaching still would be a significant concern that could result in the Atlantic States Marine Fisheries Commission shutting the $38 million fishery down. And if there is no legislative agreement with the Passamaquoddys, it could lead to more riverside confrontations and ultimately, a lawsuit in federal court.

“We might not lose the fishery [altogether],” Keliher said. “But we may jeopardize the future of this fishery.”

Nichols indicated Thursday that the Department of Marine Resources is hoping to reach an accord with the Passamaquoddys before the season starts. There are elements to the initial agreement with the tribe that still appear to be acceptable, he said, such as limiting the tribe to an overall quota of 1,655 pounds and not placing a limit on the number of tribal licenses that can be issued.

These proposed measures were not embraced by everyone at Wednesday’s committee session, however.

The committee was told that Maine’s four recognized tribes — Maliseets, Micmacs, Passamaquoddys and Penobscots — caught a total of slightly more than 2,500 pounds of elvers last spring and, under the tentative proposal, the amount of quota set aside for each tribe this year would be the same or even a little higher than it was last year.

Some members of the committee said it would not be fair to place the entire burden for reducing this year’s catch on the backs of nontribal fishermen. Some lawmakers also were unhappy that members of the Passamaquoddy Tribe would be allowed to have an unlimited number of dip net licenses, while only 432 licenses are issued statewide to nontribal fishermen.

“The whole thing with unlimited licenses is a severe problem for me because of what happened last year,” Rep. Wayne Parry, R-Arundel, said.

There also was disagreement among representatives of the different tribes at Wednesday’s session over how the tribal shares of the statewide quota should be allocated.

Henry John Bear, the Maliseet representative in the Legislature, said that if the tribes were going to be held to an overall Indian harvest of slightly more than 2,500 pounds, the tribal chiefs should get together to divvy up that total among themselves — which, he added, should be done on a per capita basis. He suggested that if it was done this way, the Passamaquoddys would get 1,200 pounds, the Penobscots would get 800, the Maliseets would get 300 and the Micmacs would get 200. As currently proposed, the Passamaquoddys would get 1,655 pounds, the Penobscots would get 750, the Maliseets would get 130 and the Micmacs would get 46.

But Chief Socobasin said the Passamaquoddys were not interested in renegotiating their share of the overall statewide catch.

“We see no need to re-cross that bridge,” Socobasin told the committee.

 

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