March 22, 2013






Tribe and state still at odds over cap on elver licenses
 by Edward French


    The debate over the number of elver fishing licenses being issued by the Passamaquoddy Tribe this year may appear to be resolved in the state legislature, which is moving ahead with a plan for 200 tribal licenses, but the Passamaquoddy Joint Tribal Council says the state cannot cap the number of licenses the tribe issues. Fred Moore, a spokesman for the Passamaquoddy Fisheries Advisory Committee, says, "They will do what they want to do, and we will do what we want, and we're going fishing."
     Following a March 6 public hearing and a work session on March 13, the legislature's Marine Resources Committee recommended an amended LD 451 that would allow the Passamaquoddy Tribe to issue 124 licenses for fishing only one piece of gear, either a fyke net or dip net. An additional 26 licenses would allow for both a fyke net and a dip net. Finally, 50 more limited licenses would allow for taking elvers only on the St. Croix River and only with a dip net.
     The bill increases the number of state elver licenses by providing that an additional 25 dip net licenses be made available through the Department of Marine Resources' (DMR) elver gear lottery for this season. The amended bill also addresses how many elver fishing licenses may be issued by the Houlton Band of Maliseets by providing for the issuance of eight elver fyke net licenses and eight dip net licenses. A bill had been presented by Rep. Henry John Bear of the Houlton Band to allow for 25 elver licenses for the Maliseets, 50 for the Penobscot Nation and 25 for the Aroostook Band of Micmacs, but at least the portion of the bill addressing elver licensing does not look like it will be moving forward.
     In addition to LD 451, the committee also recommended an amended version of LD 604, which proposed to increase the number of commercial elver licenses issued by the Penobscot Nation from eight to 48. Under the amended LD 604, eight licenses can be issued for using both a fyke net and dip net, and the additional 40 are for only a fyke net or a dip net.
     Moore believes Commissioner of Marine Resources Patrick Keliher took an underhanded approach in suggesting that the tribes have a total pool of licenses that they could fight over. "We couldn't play into that," he says.
     According to Moore, tribal leaders and the Fisheries Advisory Committee encouraged legislators not to go ahead with a license cap as proposed in LD 451. The tribe wanted LD 451 carried over to the next legislative session so that the state and the tribe could work out a co-management plan for eels. "We have a very good eel management plan, and we want to work with the state. We hope the state will enact some of the measures in our plan," says Moore. "We truly desire to work with other jurisdictions to preserve American eel resources." The tribe's management plan does not have any limit on licenses but does have a total allowable catch of approximately 3,600 pounds for the tribe for the 2013 season. Last year over 18,000 pounds of elvers were harvested in the state.
     Under the 1998 Passamaquoddy fishing law, members of the tribe are exempted from state licensing when taking marine resources, but they are subject to the state's marine resource laws and enforcement. Moore says the tribe has spent a great deal of time since 1998 developing culturally based management plans that are stricter than the state's plans. "We would hope the state could reconcile its approach to management with sustainable conservation management," he says. "We believe we have a superior management plan, and the state would be well advised to take that into consideration." He declines to predict what action the state might take if the tribe issues more than the 200 licenses that are specified in LD 451.
     "A top-down cap on licenses is inconsistent with tribal culture," Moore adds. "Tribal members do not require the permission of the State of Maine to go fishing." Describing the actions of the DMR as "aggressive and draconian in nature," he says the state is actually aiming to gain control of the tribe.
     Deirdre Gilbert, director of marine policy at the DMR, says the state wanted a cap on the number of licenses being issued by the tribes to ensure that Maine remains in compliance with the Atlantic States Marine Fisheries Commission's (ASMFC) Fisheries Management Plan for American eel. The Passamaquoddy Tribe does not have a cap on licenses and had issued 236 last year, when the price of elvers jumped up to $2,600 a pound. The previous year the tribe had issued only three licenses.
     The ASMFC management plan limits Maine to a total of 744 licenses and 1,242 pieces of gear. If the state is found to be in noncompliance with the plan, it faces "a complete shutdown of the fishery for all participants," DMR Commissioner Patrick Keliher had stated in recent testimony on one of the elver bills that the legislative committee has been considering. With the legislation that is moving forward, the state would remain in compliance. The state has had a cap of 407 licenses. With the 25 additional dip net licenses, it would be issuing 432. The Passamaquoddys would have 200, the Maliseets 16, the Penobscots 48 and, under current law, the Aroostook Band of Micmacs have eight, for a total of 704 licenses.
     LD 451, as emergency legislation, could be signed into law and take effect by the beginning of this year's season, which opens on March 22. Gilbert points out that the Marine Resources Committee tried to make it clear in the Passamaquoddy bill that while the different parties needed to come to an agreement to get through this season, discussions will need to be held on making changes for next year. The ASMFC will be holding hearings in April on a draft addendum to its eel management plan that would aim to increase conservation of eel stocks. Final action on the addendum is set for May. "The direction established through this addendum process will have tremendous bearing on how Maine pursues this fishery in the future," Keliher had stated in his testimony.
     The Passamaquoddy bill directs the commissioner of marine resources to develop recommendations for changing the state's regulations to be consistent with the ASMFC plan and to work with the four Maine tribes to develop a mutually agreeable structure for elver fishing licensing by those tribes. He is to issue his recommendations by next January to the Marine Resources Committee, which is authorized to report out a bill related to the recommendations.

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