POLL QUESTION

Penobscot County district attorney dismisses cases against Passamaquoddy elver fishermen

Paul Firminger holds an elver in his hand at South Shore Trading Co., an elver buying station, in Portland, Maine, May 11, 2012.
JOEL PAGE | REUTERS
Paul Firminger holds an elver in his hand at South Shore Trading Co., an elver buying station, in Portland, Maine, May 11, 2012.
Posted Nov. 14, 2013, at 4:13 p.m.
Last modified Nov. 14, 2013, at 9:01 p.m.

Poll Question

ELLSWORTH, Maine — Charges have been dropped against about a dozen members of the Passamaquoddy Tribe who were accused in Penobscot County of fishing for elvers with invalid tribal fishing licenses.

After having considered it this past summer, Penobscot County District Attorney R. Christopher Almy decided last week to dismiss charges filed against members of the tribe who had been issued tribal fishing licenses that the state later said were not valid. There still are dozens of cases pending in other counties, however, against members of the tribe who are accused of fishing with licenses invalidated by the Maine Department of Marine Resources.

The charges stem from an ongoing dispute between the tribe and DMR over how many fishing licenses for elvers, which are juvenile American eels, the tribe is 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.

Due to soaring demand in Asia for eels, Maine’s elver fishery has become one of the most lucrative in the state. Average prices that Maine fishermen have received for their catch have skyrocketed from $10 per pound in 2009 to more than $1,800 per pound in 2012, when they cumulatively caught more than $38 million worth of elvers.

Almy said Wednesday evening that he dismissed the charges because he did not think it was fair to punish individual fishermen who were caught up in a disagreement between the state and tribal governments.

“The reason [for the dismissals] is that, although they might have been in violation of state law, those elver fishermen were led to believe by the Passamaquoddy Tribe that their licenses were valid,” Almy said. “They believed the permit they got from the tribe was all they needed [to be in compliance with the law].”

Tribal officials have maintained that they have legal authority to manage their fishery and to issue as many tribal elver licenses as they see fit. In March, however, Maine Attorney General Janet Mills issued a legal opinion that indicated Maine’s “tribal members are subject to Maine’s regulatory authority over marine resources to the same extent as other Maine citizens.”

In a brief statement released Thursday afternoon, DMR Commissioner Patrick Keliher said he was “extremely disappointed” that Almy had dropped charges against defendants with invalidated tribal licenses.

“I agree with the Attorney General’s office that these cases are strict liability cases and why this district attorney has ignored that is beyond me,” Keliher said.

Jeff Nichols, spokesman for DMR, added that the department is working on a bill that would clarify how DMR validates licenses issued by all of Maine’s Indian tribes.

Almy stressed that not all elver poaching charges have been dismissed. Two defendants who had no licenses at all — either tribal or issued by DMR — were convicted and fined for fishing without a license, he said.

Almy said he was not sure how many such cases he dismissed. According to Logan Perkins, a Bangor defense attorney who represented the charged Passamaquoddys, 11 cases total in Penobscot County have been dropped.

Perkins said Thursday that dismissing the charges against the defendants who had tribal licenses was the right thing to do. She said they were bystanders caught up in a dispute between state officials on one side and tribal officials on the other.

“I want to commend the district attorney’s office for [making] an equitable decision,” Perkins said.

Efforts this week to contact tribal officials about issues related to the elver fishery, including a proposal from DMR to implement a swipe card tracking system for elver fishermen, have been unsuccessful.

Phil Worden, a defense attorney from Mount Desert Island, said Wednesday that he has 18 cases still pending in Washington County and two in Hancock County with Passamaquoddy clients. He said he is filing motions to dismiss for all of them.

At least three other cases — one in Hancock County and two in Waldo County — in which tribal members were facing civil charges of fishing for elvers without a license were dismissed this past August.

Carletta “Dee” Bassano, district attorney for both Hancock and Washington counties, said Thursday that she is sympathetic with Almy’s position but that she has not made any decisions about any specific case pending in her prosecutorial district.

Tribal members “ought to be able to rely” on the validity of elver licenses issued by the tribe, she said, adding that she wouldn’t have “great confidence” in getting a conviction for any Passamaquoddy whose license had been declared invalid by DMR. But she said that each case is different and will be considered individually before any dismissal decisions are made. Cases where tribal members had no licenses, she said, likely will not be dismissed.

“Everything is going to depend on each case,” Bassano said.

In an effort to comply with a directive from the Atlantic States Marine Fisheries Commission, or ASMFC, the state has tried to limit the number of elver licenses handed out statewide to 744 or fewer. DMR itself issued 432 elver licenses this past spring for the annual 10-week elver season.

The restrictions on the fishery have been prompted by concerns about the declining numbers of eels along the East Coast. ASMFC recently decided that as a conservation measure, Maine would have to reduce its annual landings next spring by at least 25 percent from the 2013 total, which DMR estimates to be more than 18,000 pounds.

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