Tribe and state seek elver fishery resolution

The dispute between the state and the Passamaquoddy Tribe over the issuance of elver fishing licenses has simmered down this past week, as both Maine and tribal officials continue meeting to reach a resolution. The relative calm contrasts with the previous week, when tensions over the tribe's authority to issue an unrestricted number of licenses reached a boiling point, with the governor of the state threatening one of the chiefs of the tribe that he would withdraw all support for the tribe and shut down the fishery.
During the debate, one issue that has been raised is the tribe's preference for a fishing quota instead of a cap on licenses, since the tribe maintains that tribal members have an inherent right to fish. Another question being asked is whether the tribal licenses are invalid under the state's jurisdiction, since they were issued before the new state law limiting the number of tribal licenses took effect. The tribe ended up issuing 575 licenses for this year and stopped issuing licenses on March 22, the day the fishery opened in Maine. However, the Department of Marine Resources (DMR) maintains that it was clear that the new law authorizing the tribe to issue 200 elver licenses would be in effect for this season.
Currently, under the management plan established by the Atlantic States Marine Fisheries Commission (ASMFC), Maine can only issue 744 licenses and 1,242 pieces of gear. “Maine remains well under the gear limitations; however, by issuing 575 licenses to tribal members, the Passamaquoddy put the state out of compliance with the license limitation,” stated Commissioner of Marine Resources Patrick Keliher in a release. “We're obligated to enforce state law to remain compliant with the ASMFC plan, and we will do so in a fair and just manner with anyone in violation of our laws,” he added. “With that being said, I remain hopeful that we will reach an agreement soon, and I will continue to reach out to the tribe in an effort to come to an understanding.”
At a press conference attended by about 100 tribal members on March 31 in Calais, Passamaquoddy Chief Clayton Cleaves of Sipayik stated that the demonstration was about freedoms -- freedom to work, freedom to finance the high cost of living, freedom to educate the tribe's children and freedom to have good health -- and about recognition -- recognition of treaties, recognition of the tribe's sovereignty and recognition of tribal government affairs.
Referencing Commissioner Keliher's statement that the Passamaquoddys are jeopardizing the entire elver fishery in the state, Newell Lewey, a tribal councillor at Sipayik, said, “The Passamaquoddy are not jeopardizing the state's fishery.” Tribal officials point out that the tribe has a total allowable catch (TAC) of 3,600 pounds for elvers, also known as glass eels, with the fishery being closed when that catch is reached. The state has no quota on its fishery. Also the minimum distance between tribal fyke nets is 30 feet, which is three times greater than the state's minimum distance, and that requirement has reduced the number of nets on area rivers. Also, only one fyke net is allowed per license, while a state license can allow for two fyke nets. In addition, the taking of any eels longer than 4" in length, either silver or yellow eels, is not allowed under the tribe's plan.
Fred Moore III, coordinator of the Passamaquoddy Advisory Committee, says statements by state officials that the number of tribal licenses is threatening the entire fishery in the state are “an unfortunate attempt to engage in the politics of fear.”
Lewey noted that the potential earnings of $7.2 million, if the average elver price is $2,000 and 3,600 pounds are caught, would help all of Washington County, with tribal members spending money at local businesses.
Vera Francis, a member of the fisheries committee, said the development of the tribe's eel fishery plan “was informed by good stewardship and traditional knowledge and wisdom,” along with information from tribal fishermen. “This is an issue between two governments,” she said. “It is not an issue of numbers, it is one of jurisdiction and authority.”
Noting that the elver fishing “is a community-based fishery” for the tribal members, with children and families involved, she said it will grow and strengthen a traditional economy. “We are not out of compliance. We are Passamaquoddy. We have always fished and we will always fish,” stated Francis. “We do not need the permission of the state to become healthy individuals and healthy communities.”
Moore says a cap on licenses “is inconsistent with our culture,” since tribal members have an inherent right to fish. “Our view of the environment is that of our home, and the creatures are our neighbors. They're indigenous, as we are.” He notes that there is a fundamental difference in looking at whether fishing is a right or a privilege.
Escalation in tensions
The dispute first developed last May, after the tribe issued 236 elver licenses, having issued only three the previous year. After a meeting that month, state and tribal officials planned to meet during the summer to discuss the tribe's plans for all of the state's limited entry fisheries.
Under the 1998 Passamaquoddy fishing law, members of the tribe are exempted from state licensing when taking marine resources, but they are subject to the state's marine resource laws and enforcement. When the legislation was signed into law, the state's elver fishery did not have a limited entry system, and no action was taken since then to place a cap on the number of tribal licenses that are issued. The state does now have a cap of 432 state licenses, with new licenses issued only through a lottery system.
After the May meeting, only one more meeting between state and tribal officials to discuss the matter ended up taking place, which was the day in January that the DMR submitted its legislative proposal to limit the number of tribal licenses. State and tribal officials disagree about attempts made by each side to discuss their differences and a last-minute memorandum of understanding that was offered by the tribe for joint management of the resource. The tribe did approve on March 20 several emergency measures for its management of the elver fishery.
On March 29, after the new law took effect, the DMR received the list of 575 tribal members who were issued licenses. According to the DMR, existing law makes it clear that tribes must supply a list of license holders before the season begins in order for those licenses to be considered valid. The commissioner then chose a list of 150 licenses to provide those tribal members an opportunity to harvest elvers within the law. The DMR began notifying harvesters that anyone fishing without a validated license would be in violation of state law and summonsed, beginning on March 31. Under LD 451, the tribe is authorized to issue an additional 50 licenses with the St. Croix dip net‑only restriction. According to the DMR, the tribe has not provided these additional 50 licenses to DMR for validation.
Tensions between the state and the tribe then escalated on March 31, when the Maine Marine Patrol, along with Commissioner Patrick Keliher and three state troopers, confiscated three fyke nets from tribal members who were fishing on the Pennamaquan River in Pembroke without what the DMR considered valid licenses. Summonses were eventually issued by the state.
The next day, Governor Paul LePage spoke by phone with Passamaquoddy Chief Cleaves about the issue. A letter from Chief Cleaves to Senate President Justin Alfond concerning the conversation states, “In a loud, enraged and demanding tone, after asking me whether or not the tribe was going to follow state law, Governor LePage stated the following ultimatum -- that he was immediately withdrawing all support to the tribe.” That threat included his support for the state and tribal Truth and Reconciliation Commission, a potential casino bill for Washington County and any consultation with the tribe. LePage also threatened he would shut down the entire elver fishery.
Meetings were then held on April 3 and 5 in Augusta between state and tribal officials that were more positive in tone. According to Lewey, who attended the meetings, the state and the tribe outlined their goals and discussions are ongoing. He declines to release more details about the goals at this point.
After the April 3 meeting, Commissioner Keliher stated, “The tone of this meeting was positive and clearly showed that both sides are working to understand each other's point of view and are committed to finding a resolution to this issue in the near future. We have some more work to do to reach a clear understanding with the tribe around the license cap and compliance with the Atlantic States Marine Fisheries Commission compliance issues that Maine faces.”

Hearing slated on ASMFC plan
The DMR has been concerned about being in compliance with the ASMFC's management plan, particularly since the ASMFC is considering changes in the plan, including the possibility of a complete closure of the fishery. In addition, the DMR fears an increase in elver fishing effort might influence the U.S. Fish and Wildlife Service's decision on a petition seeking to list the American eel as threatened or endangered, which also would end elver fishing.
A hearing on the ASMFC's Draft Addendum III to the Interstate Fishery Management Plan for American Eel will be held on Tuesday, April 30, from 1 to 5 p.m. at the Augusta Armory. The addendum proposes a range of management options with the goal of reducing mortality and increasing conservation of eel stocks across all life stages. The addendum responds to the 2012 stock assessment indicating that the eel population in U.S. waters is depleted. Glass eel fisheries currently only occur in Maine and South Carolina, while yellow eel fisheries occur in New Jersey, Delaware, Maryland, Virginia and North Carolina.
Among the five management options for glass eels that are being considered by the ASMFC is a quota, with options either for 6,373 pounds for Maine, based on historical average landings, or 4,780 pounds for the state, based on a 25% reduction.
Moore says, “We encourage the state to look at our plan” and consider adopting some of its management provisions, including a quota. “We truly look forward to working closely with the state and the Atlantic States Marine Fisheries Commission, particularly as it relates to stewardship of the environment and the resource,” he states. “We believe we have an excellent plan, but we welcome suggestions on how we could strengthen it.”
According to Moore, the tribe's fisheries committee had been developing a quota proposal during the past year but it was not ready to be included in the eel management plan that was approved by the Joint Tribal Council (JTC) on February 13. However, when an agreement was not reached between the tribe and the state and when the large number of tribal licenses were being issued, the committee told the JTC that a quota would need to be enacted as an emergency measure, which occurred on March 20.
The quota is based on the landings last year by tribal members, which totalled about 1,000 pounds, the number of permits issued, the amount of gear being fished and the amount of time tribal members were fishing, which was only three weeks last year. The total take potential was then estimated at 4,400 pounds, and the quota was scaled back to 3,600 pounds.
Enforcement and higher penalties
In order for the tribal catch to be monitored, tribal members are required to report their landings each week, and Moore says there is “zero tolerance” for not reporting. Those who don't report are subject to having their permit suspended, and those who are not showing that they are fishing for at least three weeks are also subject to permit suspension.
All Passamaquoddy law enforcement officers are charged with enforcing the tribal laws, including fishing laws. While no summonses had been issued as of April 8, some actions have been taken to ensure that fyke nets are at least 30 feet apart.
Except for the incident on the Pennamaquan River on March 31, Moore says that relations between the tribal members and the Maine Marine Patrol “have been excellent over the last 15 years.” He adds, “The Maine Marine Patrol has the full support of the Joint Tribal Council when it comes to enforcing fishing laws.”
“We're not out to take all we can while we can,” adds Moore. “We are interested in working with other jurisdictions, including other states. We all have a stake in this resource. As an issuing authority, we understand our responsibility not only to tribal members of today and future generations but also for the health of the resources itself.”
While the DMR has drawn attention to its concern that tribal members are fishing with invalid licenses, the state also has been taking steps to control illegal fishing by people throughout the state, because of the high price that elvers are fetching. On April 3, the Marine Patrol issued a summons to Phillip Parker, 41, of Candia, N.H., in the largest case of illegal possession of elvers in the history of the fishery. An investigation revealed that the New Hampshire man intended to sell 41 pounds of elvers without a Maine elver‑harvesting license. The fine for illegal possession of elvers in Maine is currently up to $2,000. That is an insufficient deterrent, according to DMR officials, given the current $2,000 per pound value of elvers in Maine.
A bill before the legislature, LD 632, will criminalize violations of elver fishery laws, including illegal possession. “This bill would allow for the arrest of unlicensed harvesters, and those committing other illegal acts and would make a $2,000 fine mandatory for those convicted,” said Keliher in a release. “The incredible amount of money in this fishery warrants a more stringent penalty because fines often don't amount to one pound of elvers. For some who are illegally harvesting far more than that in a day, it does not deter them from continuing to break the law. A lack of sufficient penalty for violating elver harvesting laws puts the resource at risk.”
While the state is planning to increase fines for elver fishery violations, the tribe's eel management plan also requires mandatory minimum fines for a number of violations, including illegal possession fines based on the weight of the eels. For instance, the fine for having five pounds of eels that are over 4 inches in length would be $2,500. The plan also has a zero tolerance provision for fishing while under the influence of alcohol or drugs.