February 14, 2014






Tribes, state close to elver fishery accord
by Edward French


     A negotiated agreement between the State of Maine and the four Maine tribes to govern the upcoming elver fishing season, which begins next month, moved closer to being finalized at a work session on LD 1625 held by the legislature's Marine Resources Committee on February 12. While one constitutional issue had been raised by the Maine attorney general's office at a January 29 work session, new issues were raised at the second session, which left Passamaquoddy tribal officials frustrated after having negotiated an agreement with the state and obtained approval from the Joint Tribal Council (JTC) to meet the issues that had been raised initially by the AG's office.
     Under the proposal moving forward, non-tribal fishermen would have individual quotas based on their fishing history, while the tribes would have separate quotas. The total quota in the state is being reduced from last year's harvest of 18,253 pounds to 11,749 pounds, or 35%, in order to meet the concerns of the Atlantic States Marine Fisheries Commission.
     Under the plan, the Passamaquoddy Tribe's quota would be 1,650 pounds, which is the amount that tribal members harvested in 2013 and is less than half of the 3,600-pound total allowable catch (TAC) that the tribe had set for the 2013 season. The tribe would have the right to issue an unlimited number of dip net licenses but will not be issuing any fyke net licenses. The tribe also will comply with all state elver fishing laws. The agreement was approved by the Joint Tribal Council on January 22. The tribe's quota would be managed by the DMR, using its new swipe card system for recording landings. There would be a 10% buffer, so that when tribal members have landed 90% of the tribe's quota the tribe's fishery would be shut down.
     To meet the concerns of the AG's office, at a meeting on February 11 the joint council approved a compromise proposal to allow an open derby fishery for tribal fishermen until 80% of the tribe's quota is reached, and then the tribe's fishery would be converted to an individual quota system.
     Jerry Reid, an assistant attorney general, said the new concerns centered on the possibility of being unable to effectively enforce the legislation, with different quota systems for non-tribal, Passamaquoddy and other tribal fishermen. Those differences in how different fishermen would be treated under the law could make it unenforceable, he suggested. He said the AG's office would like to see "an enforcement system where everybody is treated equally to minimize constitutional arguments." The AG's office would prefer a fishery with all fishermen governed by individual quotas or with just an overall quota, but not having the two systems mixed together.
     Corey Hinton, the attorney for the Passamaquoddy Tribe, pointed out that the issue that had been raised before concerned penalties so that the equal protection clause of the Maine Constitution was not violated. To address that issue, under the JTC's approved plan, any tribal fisherman who exceeded the individual quota would pay a fee to an eel management fund for research and law enforcement. Non-tribal members with individual quotas would face license suspension during the following year if they exceed their quota by more than 5%. They also would have to pay restitution equaling the value of the amount of elvers over their quota.
     Hinton noted, "There will always be people who feel aggrieved and who feel they got less than a fair deal." He felt the tribe's plan would pass constitutional muster. "I feel the concern is not with constitutional questions," he said. "We want tribal members to enjoy the right they have enjoyed for time immemorial."
     Joseph Socobasin, the Passamaquoddy chief at Indian Township, said it was "incredibly frustrating," since the tribe thought it had reached an understanding with the state and then found out "at the 11th hour" that was not the case.
      Rep. Henry Bear of the Houlton Band of Maliseets urged that the different tribes should discuss among themselves allocating a total Wabanaki TAC of 2,500 pounds. However, Chief Socobasin objected to Rep. Bear's proposal to have a Wabanaki TAC, since the Passamaquoddys had negotiated a plan with the Department of Marine Resources (DMR). Passamaquoddy Rep. Madonna Soctomah also stated that the tribe does not agree with a Wabanaki quota, since it would leave the tribes to "fight among ourselves. We have been dealt with in that way for generations."
      Marine Resources Commissioner Patrick Keliher said the DMR has supported a plan with the Passamaquoddy having 1,650 pounds, the Penobscots 750 pounds, the Maliseets 130 pounds and the Micmacs 46. It was suggested that, if the tribes don't reach an agreement among themselves, then those numbers, converted to percentages of the state TAC, could be in effect. The committee agreed with setting percentages for each of the tribes, with the amounts to be determined later.
      Keliher said the DMR would prefer to see a fishery for non-tribal fishermen with individual quotas, and the committee indicated unanimously that it prefers an individual quota system. Following some discussion, the committee also indicated a preference for a "convergence" proposal for determining individual quotas. Under the plan, fishermen would use the highest two catches from their past three years in the fishery, and then all of the catches would be reduced by a percentage to reach the state's TAC. With a median catch of about 16 pounds by fishermen last year, those with averages below the median would have their quota increased by 35% of the difference between their average and the median, and those above would be reduced down by the same equation.
       Rep. Mick Devin of Newcastle and Rep. Wayne Parry of Arundel both raised concerns that, while the overall state harvest would be reduced by 35%, the Passamaquoddys would be able to harvest the same amount that they did last year. Rep. Devin stated, "The non-tribal fishermen are carrying the weight for everybody in the state." Committee members also looked at whether there should be an upper limit on the number of Passamaquoddy licenses or on the number of tribal fyke nets, if they became authorized.
      The committee agreed to continue the discussion at a work session on February 19.

ASMFC approves state's approach

     At the committee's January 29 work session, Keliher noted that the state has been managing the fishery through input controls on the amount of gear and licenses and is now moving to output controls through a quota. He felt that the ASMFC would approve the state's change in how it manages the fishery, since there would be a conservation equivalency between the two approaches.
       At a meeting on February 6, the commission's American Eel Management Board approved the conservation equivalency proposal, with the 11,749-pound quota for the 2014 elver season, which begins on March 22. In addition to quota management, Maine also will be implementing a harvester swipe card system with daily dealer reporting in order to increase accuracy and timeliness of landings data and to reduce opportunities for illegal harvest. The board will consider approval of coastwide conservation measures for American eel fisheries at its May meeting.
       During the discussion at the January 29 work session, Keliher stated, "The state and the tribes need to ensure a final resolution that satisfies the ASMFC. That must be our goal so we don't lose a $40 million fishery."
     Tribal attorney Hinton said that the state and the tribe had made significant progress during negotiations over the past three weeks and that there had been "a rekindling of positive negotiations." Responding to the AG's issue concerning equal protection, Hinton noted, "We have been subject to unequal protection at nearly every turn. The legal system is fraught with inequity."
     He added that since the tribe has a separate political status under U.S. law there would not need to be the same quota penalty for tribal and non-tribal members. "We have separate rights. We are a separate class of citizens," he noted. "We have been a separate class of citizens ever since we had contact with Europeans." He said the state has one responsibility in dealing with citizens of the state and a separate responsibility in dealing with sovereign governments.
     Hinton outlined that the tribes in Washington state have memorandums of agreement with the state for fisheries management, following the Boldt decision in the late 1970s. Such agreements are "the norm now" in that area, with allocations for each fishery to the tribes, and they have passed "constitutional muster for decades," he said. "We believe this is an issue of comity and fairness, and we believe this model can be implemented in Maine." The tribe had given the DMR a draft memorandum of agreement for the elver fishery so that the fishery would be managed jointly.
     Keliher felt that the legislation for this coming season needs to be finalized, addressing the legal issues that have been raised, before a memorandum of agreement can be reached.
      The Maine Indian Tribal State Commission has sent a letter to the Marine Resources Committee opposing the original language in LD 1625. The letter presents data concerning the 2013 elver harvest that casts doubt on claims tribal elver harvesters threatened state compliance with ASMFC conservation goals. Harvesters licensed by the state caught on average 24.4 pounds of elvers compared to 12.3 pounds harvested by Penobscot fishers and 2.9 pounds landed by Passamaquoddy harvesters. The overall Passamaquoddy harvest amounted to a little more than 10% of the total catch, and individual Passamaquoddy harvesters landed on average less than an eighth of the quantity of elvers caught by individuals licensed by the state. Yet more than 25% of all criminal and civil charges brought by the State of Maine alleging elver harvesting violations were levied against Passamaquoddy harvesters.


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