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The dispute between state and Passamaquoddy tribal officials over the elver fishery appears again headed for a collision course. After hearing that the tribe planned to use its sustenance fishing rights to catch elvers outside of the state's reporting requirements and catch limits and to export the elvers out of the country, Marine Resources Commissioner Patrick Keliher acted on May 6 to ban the use of fyke nets outside of the state's management plan for the fishery. Passamaquoddy Chief Fred Moore of Pleasant Point, though, says the tribe is not planning at this time to export elvers and that the state is trying to cause a confrontation with the tribe.
Keliher says the emergency rule, which takes effect on May 8, will prevent the overharvest of the elver fishery and ensure that the tribe does not jeopardize the state's compliance with the Atlantic States Marine Fisheries Commission's (ASMFC) American Eel Plan, which sets Maine's elver quota at 9,688 pounds. Daily landing reports are required by the state and the ASMFC's plan. "Fyke nets, which catch significantly more elvers than a dip net, may result in much greater unreported catch and could cause the state to exceed its total allowable catch if utilized outside the scope of the daily reporting requirement in the commercial fishery," says Keliher.
"The Department of Marine Resources (DMR) has taken this step based on information from the Passamaquoddy Tribe at Pleasant Point that it has issued sustenance licenses that authorized the use of a fyke net," says Keliher. "The Passamaquoddy Tribe does not have a mechanism to accurately track and report the landings of sustenance license holders to the department and is putting this fishery at risk by using gear that could significantly increase the take of elvers and cause the state to exceed its overall quota."
While the Passamaquoddy Joint Tribal Council voted last year after much debate to follow the state's elver management plan with individual catch quotas and also to allow only the use of dip nets, Chief Moore says the decision was only for that year. The tribe is now back "with the original version of our fisheries management plan," which allows the use of fyke nets. In addition, the Passamaquoddy Joint Tribal Council voted on March 23 to amend the tribe's Fisheries Management Plan to allow a sustenance fishery for elvers.
Unlike the state, the tribe has favored an open access fishery. The Indian Township tribal government, though, is now supportive of the state's management plan with catch quotas, according to Moore, while it has "little support at Pleasant Point." Under the state's elver management plan, the tribe has a quota of 1,256 pounds and has issued 571 licenses, with individual quotas of 2.2 pounds. The Pleasant Point tribal government issued just over 320 commercial licenses, and Indian Township issued over 240.
Keliher asserts that the tribe at Pleasant Point "has decided to change harvest plans in the middle of the season, as the tribe has done in previous years. Chief Fred Moore, in a conversation with Marine Patrol, has admitted that the tribe plans to ship the eels harvested by sustenance fishermen out of the country, a clear violation of Maine sustenance laws. Chief Moore has spelled out a plan that not only jeopardizes Maine's compliance with ASMFC but also violates state law. Let me be clear: When elvers are valued at $2,000 per pound they are not being caught for sustenance, they are being caught and sold."
At a Marine Resources Committee work session on May 6, Keliher also said he understands that the elvers that are exported would be grown out and later shipped back to the tribe, which would use the eels as sustenance food.
Moore, however, disputes Keliher's comments, saying there is no immediate plan to export elvers. He says that, while the exporting of elvers may be a long-term goal, a decision has not been made on the matter. He says the DMR's rule-making action "is an attempt by the state to take the Passamaquoddys off the rivers and deny tribal members access to the marine environment." He believes the move is "a deliberate attempt to start a confrontation with the tribe. I think LePage is looking for a reason to send the National Guard."
Moore adds that Keliher does not have the authority "to dictate the definition of tribal culture." He says the tribe is aiming, through a sustenance fishery, "to have access to the marine environment without the hindrance of the state. Our ability to feed ourselves as a people is under threat." The state's approach to the elver fishery is about commerce, Moore says, while for the tribe "it is about our ability to be ourselves."
While Keliher stated at a Marine Resources Committee work session on May 6 that "there has been zero consultation" with the DMR on the elver issue, Moore says there have been talks between state officials and elected Passamaquoddy officials, along with discussions between local Marine Patrol officers and tribal officials.
Moore says the state's rule-making action is a violation of the Maine Indian Claims Settlement Act of 1980 and the Maine Implementing Act. The tribe's view on its sustenance fishing rights is upheld in a January 30 letter from the Office of the Solicitor for the U.S. Department of the Interior to the general counsel for the U.S. Environmental Protection Agency. Referencing the four Maine tribes, Solicitor Hilary Tompkins writes, "The right of all four tribes to take fish is well-founded under state as well as federal law." She points out that the rights of the Passamaquoddys and the Penobscots are expressly reserved fishing rights, with the Maine Implementing Act acknowledging the right of members of the two tribes to "take fish ... for their individual sustenance" within their reservations free of state regulations.
Joint management explored
Among the attempts to resolve the conflict between the tribe and the state over the elver fishery has been a proposal for a joint management agreement. At an April 27 hearing on a bill submitted by Passamaquoddy Rep. Matthew Dana that would authorize a tribal-state memorandum of agreement for the eel and elver fisheries, Dana asked to amend his bill to allow the tribes and the state to cooperate in the management of all marine species, not just elvers. He noted that there are many types of state and tribal cooperative management agreements in the U.S., particularly around the Great Lakes and Pacific Northwest.
In her testimony on the bill, Jamie Bissonette-Lewey, chair of the Maine Indian Tribal-State Commission, reviewed MITSC's 2014 report over the three-decades-long conflict between the Passamaquoddys and the state over the management of the tribe's saltwater fishery. While the Maine Attorney General's Office maintains that the tribe has no rights to the saltwater fishery and that the state has sole authority to regulate the fishery, the tribe stands on its aboriginal rights to fish within its traditional territory. While negotiations between the tribe and the commissioner of marine resources have appeared promising for co-management of the fishery, legislation that has been passed has been "problematic." Laws that amend the Maine Implementing Act have been enacted without approval of the affected tribes, as required by the Maine Indian Claims Settlement Act. MITSC recommended that language requiring approval of the tribes be included in Rep. Dana's bill.
Commissioner Keliher spoke in opposition to the bill, stating that the draft memorandum of agreement that the Passamaquoddy Tribe proposed last year would have been contrary to state law and the ASMFC's Eel Fisheries Management Plan. However, he would be willing to discuss fisheries issues with the tribes.
Assistant Attorney General Jerry Reid stated during the April 29 work session on the bill that it seems unnecessary, since the DMR already has the authority to enter into memoranda of agreement with other entities and to negotiate with the tribes. The AG's office does "have concerns" that the bill would raise expectations, since a memorandum of agreement is not a change in law and would not be a change in the Maine Indian Claims Settlement Act. Reid also raised the issue of the equal protection clause in the federal and state constitutions, which states that all citizens, no matter their race or ethnicity, are to be treated equally, although there are exceptions. If the memorandum of agreement grants "unique benefits" based on race, it would be "treacherous territory," Reid said. The AG's office had raised similar concerns last year, during the committee's discussion on an elver fishery bill.
A continuation of the work session on May 6 was tabled because Rep. Dana and some of the attorneys could not be present. |
