What’s New in Maine Fish Law – 2016

April 19, 2016

Fisheries Laws – New Laws for 2016

The Maine Legislature has been busy figuring out ways to make your life better. Here are some of the new laws affecting the fisherman.

Effective for the 2016 elver season, elver dealers will have to use a Dealer Transaction Card to document each sale, purchase and transportation of elvers, including any transfers of elvers from one dealer to another, and including transfers from a dealer to a supplemental dealer. The law amends Title 12 M.R.S. §6864.

At present, elver harvesters must sell elvers through a swipe card system. Swipe cards allow Marine Patrol to monitor the catch in a near real time basis, and existing law criminalizes the cash sale of elvers. The purpose of the amendment is two-fold. First, it creates a fully auditable system of monitoring the elver harvest, from tidal stream to final sale and export. Second, it gives Marine Patrol the ability to inspect a dealer premises and compare the elvers on hand with the elvers accounted for in the swipe card system. Elvers not accounted for in the swipe card system may indicate illegal cash sales.

The Commissioner’s emergency rulemaking authority is enhanced. At present, the Commissioner has the authority to close a fishery or close a harvesting area in response to unusual fishing pressure threatening depletion. The Department has routinely used this tool to manage the sea scallop fishery, declaring a 70 day season which would in fact overfish the resource, then closing areas and curtailing the season in response to the actual harvest. While that approach is reasonable, many harvesters wanted the Department to have the power to actually increase the season and to open a closed area, if the catch data suggested this could responsibly be done. The Department now has that authority, not only for the scallop fishery, but for all the fisheries it manages.

The elver fishery continues to drive regulation. An amendment to Title 12 §6575-L allows a person holding a valid elver fishing license to transfer the license temporarily to another person, if the license holder is sick or disabled and cannot fish. The illness or disability must be proven with medical records. The transfer is temporary, a term which, while not defined in the statutes, DMR considers to mean for one season only. The amendment allows a sick fisherman to make some money off a license he or she can’t fish, and incidentally maintains catch history on the license.

Collectors of spat (juvenile shellfish, used as seed in aquaculture) must now be licensed. Urchin tenders are no longer permitted to sell urchins.

As regular readers of this column know, to my mind DMR continues to chip away at the due process it affords fishermen whose very livelihoods are at stake in a Marine Patrol license suspension action. Where once it was possible to get a jury trial on, in effect, whether the suspension should issue, a few years ago the law changed so only a bench (judge, no jury) trial was available. Now most cases are decided by a state employee hearing examiner whose rubber stamp, a cynic might say, is right there on the desk. Effective 2016, the statute allowing administrative license suspensions (rather than court suspensions) is amended to provide that a postponement (continuance, in law speak) of the hearing to a date more than 60 days from the date of the notice of suspension may be had only if both the fisherman and DMR agree.

Small potatoes? Let me tell you why I find this amendment offensive. First, in certain cases a fisherman defending his or her license might well need a longer continuance to, for example, locate and subpoena a witness who goes to Florida each winter, as happened in one of my cases. This law ties the hearing officer’s hand if he or she agrees with the fisherman but DMR objects. Second, and at least equally important, the amendment treads squarely and improperly on the discretion of the hearing examiner. Certain matters having to do with the conduct of trials are best left to the decision of the person who will hear and decide the case, whether a judge or an administrative hearing officer. The rules by which lawyers try court cases, for example, leave it to the judge to decide whether a witness may testify telephonically, whether a lawyer may withdraw from the case, or for that matter whether and for how long a trial date should be continued; there are countless other examples. For DMR to now so limit the discretion of its own in-house hearing officers, for crying out loud, is very nearly an improper exercise of authority. It is not right.

The Legislature has a short session under way now, and a few fisheries bills pend. One would reexamine the manner in which lobster licenses are allocated, a reflection of the very long wait times in some zones, and of the great value of a lobster license in this era of huge catches. Another would give DMR flexibility in declaring closed periods for elver harvesting, so the closures can work around favorable harvesting tides. Another is an attempt to mitigate clammer-wormer conflicts. I will report on these when the session closes.

Stay out of trouble.

© 2018 Law office of Nicholas H. Walsh, P.A.
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