February 13

Maine regulators’ deal with native tribes over elver fishery collapses at key stage

The state says constitutional concerns prevent it from supporting a tribal accord crucial to its management plan.

By Steve Mistler smistler@pressherald.com
Staff Writer

AUGUSTA — A tentative agreement between state regulators and Maine’s Native American tribes for the upcoming elver season collapsed Wednesday as state officials cited concerns in the Attorney General’s Office that such an accord would violate the state Constitution and be impossible to enforce.

click image to enlarge

A man holds elvers, young translucent eels, in Portland.

2012 Associated Press File Photo/ Robert F. Bukaty

The development raises the already high stakes, with federal regulators threatening to shut down the multimillion-dollar commercial fishery unless the state advances a new management plan and reduces the catch by 35 percent from the 2013 season.

L.D. 1625, a bill advanced by the LePage administration and under review by the Legislature’s Marine Resources Committee, is designed to enact that plan and allay regulators’ concerns about the sustainability of the fishery, which is now second in value to the state’s lobster industry.

An agreement with the tribes had been critical to the state’s management plan, which sought to set new limits on the catch without impinging on the sovereignty of the tribes, especially the Passamaquoddies. Last year, the tribe issued 575 licenses, well above the state limit of 200. That led to a clash between law enforcement officers and Passamaquoddy fishermen on the banks of the Pennamaquan River in Washington County.

Last week, the federal Atlantic States Marine Fisheries Commission gave preliminary approval to the state’s new management plan, which includes a reduction in the harvest to 11,750 pounds statewide, catch quotas for individuals, an electronic swipe card processing system and new penalties that would classify violations as Class D crimes, with $2,000 fines.

The provisions were introduced in late January, along with terms of the agreement that effectively allocated part of the fishery to the tribes while creating separate regulations for tribal and non-tribal fishermen.

The Attorney General’s Office immediately raised constitutional concerns, but talks continued, leading to an overwhelming endorsement by the Maine Indian Tribal-State Commission this week.

Tribal members reacted with dismay Wednesday after Marine Resources Commissioner Patrick Keliher told the committee that the LePage administration could not back the proposal. Keliher, who had helped negotiate the tentative agreement, cited advice from the Attorney General’s Office.

Michael-Corey Hinton, a native Passamaquoddy who is a Washington, D.C., lawyer working pro bono for the Joint Tribal Council of the Passamaquoddy Tribe, said Keliher and the committee ignored the good-faith negotiations held over the past several months.

“They just tossed it out,” said Hinton, and the committee never addressed his legal opinion that the agreement would be constitutional.

The dissolution of the agreement raises questions about what the tribes will do if state regulators try to close the fishery or regulate the number of tribal licenses, which the tribe contends is under its jurisdiction as a matter of sovereignty.

Other language in the bill lays out fines and conditions for the upcoming season, which starts March 22.


On Wednesday, Jerry Reid, an attorney in the Attorney General’s Office, told lawmakers that the agreement would violate equal-protection measures in the Constitution. Reid said that different regulations for tribal and non-tribal license holders would create enforcement loopholes and potential lawsuits against the state by non-tribal fishermen.

Hinton told lawmakers that Reid’s concerns were unfounded. He said the agreement between the two governments would create a tall legal hurdle for any challenge of state enforcement, and concerns about inequality between tribal and non-tribal fishermen could also apply to the proposed individual catch quotas.

The bill would assign catch limits to fishermen based on their last three years of reported catches. The provision was included to reward fishermen who have been in the fishery longer than those who flocked to it in the recent boom.

Elver prices soared after a 2011 tsunami in Japan wiped out eel farms. Prices, which were as low as $25 a pound, climbed above $2,000 a pound in 2012.

(Continued on page 2)

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