AUGUSTA, Maine — Passamaquoddy Chief Joseph Socobasin said Friday the tribe was disappointed that the Department of Marine Resources withdrew its support Wednesday for a tentative agreement with them over the state’s elver fishery because of legal concerns.
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 legal concerns raised by the Maine Office of the Attorney General.
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.
“We were cautiously optimistic” going into the meeting, Socobasin said in a Friday news release.
“By lunchtime, the agreement dissolved before our eyes,” said Vice Chief Clayton Sockabasin, who is also the chair of the Passamaquoddy Fisheries Committee. The Passamaquoddy Fisheries Committee and Passamaquoddy Tribal Leadership entered into good-faith negotiations with the DMR last December. Last week the tribe and the state met with the Atlantic States Marine Fisheries Commission. The 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.
The attorney general’s office, however, 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.
In reflecting on the events of the day, Tribal Attorney Corey Hinton said, “The DMR showed up … with draft language written into their bill that conceptually mirrored our open to individual quota plan. Yet DMR struck the language during the work session.”
Hinton presented fully articulated legal arguments that addressed the equal protection concerns of the attorney general, the release said. These arguments were rejected, but no legal basis for that rejection was offered. “It is so bad that if the Passamaquoddy Tribe came up with a new way to grow grass so it was greener and healthier, the state of Maine would reject it. They just don’t want us to succeed — even if we make it better for everyone,” said Tribal Councilor Newell Lewey.
“Because we are fishers, the fish — in this case the American eel — comes first. We amended our law to further our conservation efforts,” said Vera Francis, a member of the Passamaquoddy Fisheries Committee. And then, the tribe carefully negotiated with the DMR and Walter Kumiega, chair of the Joint Standing Committee on Marine Resources. “We went to great lengths to make this historic bilateral agreement possible,” said Chief Socobasin.
So, once more, the state is on the precipice of the elver season with no road forward. With all this uncertainty, the Passamaquoddy Tribe is certain that it will manage their own salt-water fisheries.
“Yes, this is our reserved treaty right,” said Socobasin, “But more importantly, it is who we are, who we always have been and who we will be as long as we are on this earth.”
Socobasin told the marine resources committee Wednesday 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.
The Legislature’s marine resources committee is expected to continue discussing the bill on Wednesday, Feb. 19.
BDN writer Bill Trotter contributed to this report.