June 19, 2018
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Mass. man disputes fine for illegal elver fishing before supreme court

By Judy Harrison, BDN Staff

BANGOR, Maine — Justices of the Maine Supreme Judicial Court were asked Tuesday to determine whether a judge was required to impose a $2,000 fine or had the discretion to impose a lesser fine on a man convicted of fishing for elvers without a license in Hancock County during the 2012 season.

James Bryant of Peabody, Mass., was caught “red-handed” on May 5, 2012, fishing for elvers without a license, his attorney Jeffrey Toothaker of Ellsworth told justices during oral arguments at the Penobscot Judicial Center. He pleaded not guilty on July 3, 2012, and appeared for trial Aug. 31, 2012, before Judge Bruce Mallonee in Ellsworth District Court.

Toothaker said Tuesday that the judge took a two-hour recess to review the law and legislative history of what then was a civil violation. When he returned to the courtroom, Mallonee told Bryant and others charged with the same crime that he had no choice but to impose a $2,000 fine in all their cases even though the language in the statute said “may” rather than “shall.”

William Entwisle, assistant district attorney for Hancock County, told the justice that in 2011, lawmakers passed emergency legislation that amended the law, which previously had allowed a fine of between $100 and $500 to be imposed. He said that the revision allowed only one option — a $2,000 fine.

The Legislature amended the law again last year to make it a Class D crime to fish for elvers without a license. That carries a maximum sentence of a year in prison and a fine of up to $2,000.

Justice Donald Alexander asked Tuesday what the going price for the baby eels was last month, when the elver fishing season ended.

“Twenty-six hundred dollars a pound,” Toothaker replied.

“That leaves him with a six-hundred dollar profit,” Alexander replied. “When we impose a fine, we don’t intend for the defendant to make a profit.”

Toothaker said that his client had not made a profit because the elvers were confiscated.

Chief Justice Leigh I. Saufley and Justice Ellen Gorman questioned whether the court could make a decision on the record since neither a transcript nor a statement from the judge explaining how he concluded the fine was mandatory had been filed.

There is no timetable under which the justices must issue a decision.

The justices’ decision would not impact future cases because the Legislature changed the law. It could impact cases still pending from the 2012 elver fishing season.

Information about how many of those cases might be pending in courts around the state was not available late Tuesday.

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