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.
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.
UNFAIR TO NON-TRIBAL FISHERMEN?
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.
That year’s haul of about 19,000 pounds was worth nearly $40 million. Some fishermen earned more than $100,000 during the 76-day season. Landings declined slightly in 2013, to a total of 18,253 pounds with a value of nearly $33 million.
The now-dissolved agreement between the state and the tribes would have allowed the Passamaquoddies to catch as many elvers, collectively, as they did last year, 1,650 pounds. Three other tribes would have increased quotas, ranging from eight pounds to nearly 160 pounds.
Several members of the Marine Resources Committee said the tribal quota would be unfair to non-tribal fishermen.
Keliher said last year’s catch by the Passamaquoddies included landings that may have been illegal because the fishermen may have had one of the 375 licenses not approved by the state.
“I have a real problem with pushing (the reduced statewide) quota on the backs of the rest of the fishermen,” said Rep. Wayne Parry, R-Arundel. “We wouldn’t even be here if some 400 licenses weren’t issued illegally.”
Rep. Michael Devin, D-Newcastle, agreed, saying, “I don’t see how we can justify having non-tribal fishermen carrying the weight for the entire reduction.”
TRIBES OBJECT TO COURT OPTION
The tentative agreement would have allowed the Passamaquoddy Tribe to issue an unlimited number of licenses while adhering to the state’s swipe card system. There would be no individual catch limit until the tribal fishermen collectively reached 80 percent of their total quota.
Keliher said he negotiated the tribal quota hoping to avoid conflicts on Maine’s riverbanks. After Wednesday’s deal collapsed, he said the tribes should take the state to court to resolve the issue.
Madonna Soctomah, the Passamaquoddy tribal representative to the Legislature, said lawmakers could ask the courts to determine whether the tribal agreement was constitutional.
Soctomah objected to lawmakers’ move to let the tribes settle their respective catch quotas among themselves.
“State and federal governments have been doing that to the tribes for years,” she said. “They’ve thrown us into one bowl and made us fight with ourselves.”
It will take two-thirds majority votes in the House and Senate to approve the LePage administration’s bill as emergency legislation. If it fails, Keliher and his agency will use emergency authority to open a derby-style season that will end as soon as the catch hits the 11,750-pound statewide limit. Keliher said such a season could increase the possibility of conflict on Maine’s rivers.
Also, the migration of eels means that fishermen in southern and midcoast regions could hit the harvest limit before fishermen in Hancock and Washington County ever set their nets.
Keliher said the state did not have accurate eel migration data that would allow it to manage a derby season based on different river systems.
Steve Mistler can be contacted at 791-6345 or at: firstname.lastname@example.org