Legal wrangling over St. Croix River alewife migration continues

A gull swallows an alewife whole below the Damariscotta Mills Fish Ladder, Wednesday, May 16, 2012, in Nobleboro, Maine.
A gull swallows an alewife whole below the Damariscotta Mills Fish Ladder, Wednesday, May 16, 2012, in Nobleboro, Maine. Buy Photo
Posted Oct. 16, 2012, at 4:53 p.m.

PORTLAND, Maine — The latest salvo in a lingering legal battle over allowing alewives access to the headwaters of the St. Croix River has been fired over the state of Maine’s bow by the Portland-based Conservation Law Foundation.

A 21-page civil lawsuit filed Monday challenges a law passed by the Maine Legislature in 1995 that blocked alewife passage up the St. Croix watershed beyond the Woodland Dam in the Washington County community of Baileyville and the Grand Falls Dam farther upstream near Princeton.

While those restrictions were amended in 2008 to allow alewife passage at Woodland Dam, the barrier at the Grand Falls Dam remains in place. The CLF lawsuit contends that alewives and other species of saltwater fish that migrate up freshwater rivers and streams to spawn are blocked by the barrier from 98 percent of their spawning habitat. That, the suit claims, has “decimated” their population in the St. Croix River, which CLF says dropped from millions of alewives in 1995 to 900 by 2002.

The St. Croix River is part of the international boundary between Maine and Canada. It flows for 71 miles from the Chiputneticook Lakes south and southeast, bisecting Calais and St. Stephen, New Brunswick, before flowing into Passamaquoddy Bay.

Monday’s suit filed in U.S. District Court names as defendants Patrick Keliher, commissioner of the state’s Department of Marine Resources, and Chandler Woodcock, commissioner of the Maine Department of Inland Fisheries. Woodcock declined comment, saying through a spokesperson that he hadn’t yet read the CLF lawsuit. An effort to reach Keliher for comment was not immediately successful Tuesday.

The suit seeks an injunction that would forbid application of the state’s “Alewife Law” and would order the state to reopen an existing fish ladder at Grand Falls Dam. It comes on the heels of a ruling in July in which the federal Environmental Protection Agency determined that the Maine law banning native alewife migration up the river violates the federal Clean Water Act.

An EPA letter to Maine’s attorney general said the status quo represents an illegal lowering of water quality that the agency cannot and will not approve. The EPA ruling, in essence, challenged Maine’s efforts to eliminate access by alewives — also known as “river herring” — to natural spawning habitat in the watershed above Grand Falls Dam.

The EPA said in its findings that “Maine should take appropriate action to authorize passage of river herring to portions of the St. Croix River above Grand Falls Dam.”

The attorney general responded in August with a letter to the EPA that claimed the Alewife Law regulations were a “fisheries management measure” and not a clean water issue.

The suit points out that, for thousands of years, Native American populations along the St. Croix have depended on alewives as a food source. So have raptors and a variety of species of fish, including tuna, cod, haddock and halibut. The suit also notes that alewives are the “preferred bait for the spring lobster fishery in Downeast Maine.”

The CLF lawsuit’s background summary on the dispute says Maine’s Alewife Law was originally enacted through political pressure by local fishing guides who made “false claims” that non-native smallmouth bass populations were struggling due to restoration of native alewife stocks. The lawsuit filed Monday cites several, peer-reviewed scientific studies that concluded that smallmouth bass and alewife populations “do co-exist without detriment to either species.”

“The State’s response to both sound science and the law has been to delay and to evade the issue,” Sean Mahoney, a vice president and director of CLF-Maine, said Monday in a prepared statement. “The state law clearly and intentionally frustrates the purpose of the Clean Water Act. It is our hope that this lawsuit will allow the operator of the Grand Falls Dam to open the existing and functioning fish ladder at the dam to allow alewives and other anadromous fish access to their native habitat. Further delay is unnecessary, unwise, and illegal.”

Founded in 1966, CLF is a 3,000-member nonprofit organization with offices in Maine, Massachusetts, New Hampshire, Rhode Island and Vermont.

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