RANDOLPH — Town and environmental officials are divided over a recently dusted-off municipal ordinance that would assess a fee on every ice fishing shack put up along the town’s Kennebec River frontage.

On June 28, selectmen Peter Hanley and Edward Gorham voted to have Police Chief and Harbor Master Gregory Lumbert enforce a $15 annual registration fee on the shacks. In doing so, they reactivated a 1992 Town Meeting vote in which citizens voted to enforce a fee on smelt shacks.

After 12 years in effect, selectmen repealed the ordinance in 2004. But selectmen who served at the time give different stories about why it was repealed.

One of those former selectmen, now the deputy town clerk, has voiced opposition to the ordinance, which the town’s attorney said he wasn’t contacted about.

Meanwhile, some of the state’s best minds in environmental law couldn’t give definitive opinions on the ordinance.

Joey Doody, a Chelsea resident, and Jim Worthing, the owner of Worthing’s Smelt Camps, the town’s largest camp renter, attended a meeting of the Board of Selectmen Tuesday to express anger over the ordinance’s rebirth, saying it was done without reason.

Gloria Mansir-Fitzherbert, a town resident, was a selectman in 2004 when the board unanimously repealed the ordinance.

“From doing some research, we don’t own the river,” she said Thursday. “We don’t own the river, so how can we charge him for it?”

Randolph indeed doesn’t own the river; it’s held under public trust by the state of Maine, according to Sean Mahoney, an environmental lawyer and director of the Maine branch of the Conservation Law Foundation.

Intertidal land — defined in statutes as all land “affected by the tides between the mean high watermark and either 100 rods seaward from the high watermark or the mean low watermark” — is allowed to be used for “fishing, fowling, navigation and use as a footway between points along the shores and use for recreational purposes.”

But those statutes don’t posit whether the town can regulate business activity that occurs in intertidal water, such as the placement of smelt shacks. Mahoney said he couldn’t venture a guess as to whether the fee is legal or not.

Jeff Pidot, who retired as chief of the Natural Resources Division of the Maine Attorney General’s Office in 2007, also said he couldn’t form an opinion on it.

“The question is whether this land that this personal property sits on is state-owned property and is used for fishing,” Pidot said.

Town attorney John Larouche said Thursday he has not been contacted to review the ordinance.

“I haven’t been contacted by the town on this, and that’s probably lucky,” he said, refusing to elaborate. “I have no information.”

Peter Oakes, also a selectman in 2004, told a different story than Mansir-Fitzherbert’s, saying that Worthing appeared before the board in February 2004 angry about the fee.

The meeting minutes from then say “discussion was held over whether or not the registration stickers are needed in the future or if it was unnecessary.” Worthing is recorded as saying he had “approximately 55 shacks to be registered this year and would be in the next day to do so.”

According to Oakes, the board waived the fee because Worthing threatened not to pay it.

Deputy Town Clerk Raeleen York, also was a selectman in 2004, said when they repealed the fee then, it cost $10.

She corroborated much of Oakes’ story, saying the board agreed to waive fees in the coming years if Worthing paid that year’s fee.

“It was my understanding that, when the original fees were required, it was for cleanup,” she said. “That wasn’t a problem with Jimmy. He was clean and he owned the majority of the smelt shacks.”

York said she didn’t think there have been any problems with cleanliness at the site since.

She opposes the ordinance.

“I agree (with Worthing),” she said. “I don’t think the town should do that, especially if the other towns weren’t.”

Hanley and Gorham voted to reinstate the fee last week. Selectman Robert Henderson was absent from the vote, but said Thursday he is in agreement with the board.

Selectmen, including Hanley and Gorham, voted in March 2010 to bring back the ordinance, but never informed Lumbert, who was supposed to be policing it. The June vote, he said, was the first he heard of it.

Hanley said Tuesday that the main aim of the ordinance — which he called a fee, not a tax — was to raise revenue for the town.

“I can understand the town and selectmen are trying to get every dollar they can get. Every town is,” Oakes said. “Today’s a different day.”

Hanley said the 1992 ordinance is clear that the fee can be reassessed, despite a challenge from Matthew Dunlap, the executive director of the Sportsman’s Alliance of Maine, who said Tuesday there is “a strong possibility” it is illegal.

“You read that over pretty clear that we could tax them — I mean, charge a fee — not a tax,” Hanley said Thursday. “I’m not worried at all.”

The Sportsman’s Alliance of Maine, after being alerted by Chelsea resident Joey Doody, sent an email alert to group members Tuesday about the ordinance, urging “the Board of Selectmen not to implement this new tax on ice fishing shacks.”

At the Tuesday meeting, Doody asked the selectmen to provide “a legal basis” for the ordinance. They agreed to research it and took his name, address and phone number.

Doody doesn’t think they have it.

“Even Mr. Hanley said they don’t own the tidal waters,” Doody said. “I’m going to fight until someone says it’s legal or not.”

Michael Shepherd — 621-5662

[email protected]


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