The Maine Department of Marine Resources is drafting legislation that would expand the authority of Marine Patrol officers to covertly install electronic surveillance devices on the boats of fishermen suspected of violating state fishing regulations.
The proposal is similar to one that faltered in the Legislature two years ago and is a response to ongoing concerns that some lobstermen are fishing more traps than allowed or engaging in other tactics to skirt Maine’s strict fisheries laws. The proposal also coincides with high-profile turf wars or personal disputes between lobstermen last year that resulted in hundreds of thousands of dollars in lost or damaged equipment.
The language of the bill has not been released, and DMR officials declined to provide specifics until the legislation has been finalized, consistent with a LePage administration policy. But in a general outline, DMR spokesman Jeff Nichols said the proposal would ease restrictions on Marine Patrol officers when they want to install electronic tracking or surveillance equipment on boats as part of investigations.
It was unclear last week whether the Marine Patrol would be required to obtain a warrant from a court before deploying surveillance devices, a question that could dictate whether the proposal raises constitutionality concerns among fishermen. But it appears the department is seeking to make it easier to track vessels of fishermen suspected of violations of fishing laws, whether civil or criminal.
Maine law already allows Marine Patrol officers to obtain a warrant from a court to covertly install surveillance devices – such as GPS, audio or video equipment – on vessels when officers have probable cause to believe the operator is engaged in criminal violations. But in cases involving suspected civil violations, officers must provide at least 24 hours’ notice to fishermen before installing the devices.
Some of the illegal practices classified as civil violations include fishing more than the 800-trap limit, using fishing gear without name tags, and disturbing or molesting the gear of other fishermen. Criminal violations include fishing with so-called “sunken trawls” – strings of lobster pots placed without marker buoys – or fishermen dropping more than half of their gear outside of their designated zone.
Nichols said the change would help officers combat such practices as fishing too many traps or with sunken trawls. By using sunken trawls, fishermen can evade trap inspections by Marine Patrol officers or avoid detection by other lobstermen fishing in the area.
“It’s not any specific incident, but is (responding to) a growing number of complaints that Marine Patrol has received over the past several years about people fishing sunken trawls or fishing over the limit,” Nichols said. “A lot of fishing is happening farther offshore, so that makes it harder for Marine Patrol to enforce.”
Lobster is Maine’s largest and most valuable fishery. In 2015, Maine lobstermen landed an estimated 121.1 million pounds of the crustaceans worth a record $495.4 million. Yet despite the high prices – or perhaps because of them – the always-present territorial tensions between lobstermen have escalated during the past year.
Between summer and fall, for instance, more than $350,000 in gear was lost or damaged during a turf war among lobstermen in the waters off Deer Isle and Mount Desert Island. More than a dozen lobstermen were believed to be involved in the conflict, which Marine Patrol Col. Jon Cornish said at the time was the worst he’d seen in 32 years.
The department declined to elaborate on that aspect of the proposal before the bill language had been finalized.
A proposal for “warrantless” installation of surveillance equipment ran into strong opposition from some in the lobster industry in 2015. Representatives of the Maine Lobstering Union claimed the proposal violated the Fourth Amendment of the U.S. Constitution and would subject lobstermen to “unreasonable searches in the absence of probable cause or a warrant.”
“While there is an exemption in Fourth Amendment case law that sanctions routine regulatory inspections in highly or pervasively regulated industries like commercial fishing, the proposed amendment goes well beyond the parameters that this exemption envisions,” Kimberly Ervin Tucker, an attorney for the Maine Lobstering Union, said in testimony submitted to the Legislature’s Marine Resources Committee. “Covert installation of electronic surveillance equipment on watercraft or vehicles used by licensed lobstermen should only be permitted where there is probable cause to support the need for such monitoring and be done after obtaining a warrant.”
Tucker said Thursday that she had not seen any proposals from DMR.
“We will be watching the language carefully, if it is filed, and vigorously advocate for the Fourth Amendment to be enforced,” Tucker said.
Back in 2015, DMR Commissioner Patrick Keliher told lawmakers on the Marine Resources Committee that one option to address constitutionality concerns would be to continue requiring a warrant from the courts but to eliminate the 24-hour advanced notification for civil violations. He said the department was exploring that option; however, the language dealing with surveillance equipment was dropped before the broader bill passed the Legislature.
“This proposed change in law is at the request of Marine Patrol to provide them with the necessary tool to do their job of protecting Maine’s lobster resources for the benefit of all license holders, and for future generations,” Keliher said in his April 2015 written testimony. “It is important to understand that the department would use this authority only when there was clear probable cause to suspect a violation.”
The new legislative session will get underway Wednesday.