AUGUSTA — A bill that would authorize Marine Patrol officers in the Department of Marine Resources to conduct surreptitious electronic surveillance of lobster boats drew mixed reviews at a hearing by the Legislature’s Marine Resources Committee in April. But at a work session last Wednesday, the committee voted to recommend passage of an amended version of the bill.
Rep. Walter Kumiega (D-Deer Isle), who represents Tremont and offshore island communities around Mount Desert Island, introduced the measure at the request of the Department of Marine Resources. LD 1379 would give the DMR commissioner authority to approve installation of electronic tracking devices on lobster boats without first getting a warrant from a judge. The approval would be based on an affidavit from the chief of the Marine Patrol that he had “probable cause” to believe that a civil violation of the laws regulating the placement or hauling of lobster gear had occurred.
Until recently, the most serious violations of the lobster fishing laws led to criminal charges. In those cases, the Marine Patrol could get a judicial warrant to install an electronic surveillance device without prior notice to the person under investigation. The difficulty in obtaining criminal convictions for fisheries violations led the Legislature to convert some violations of the Marine Resources laws into civil offenses. In those cases, the Marine Patrol must give notice to an alleged offender when applying for a surveillance warrant – reducing to virtually nil the effectiveness of the surveillance.
The bill the committee voted to recommend would allow the DMR commissioner to authorize installation of a tracking device that records only a vessel’s position and speed using GPS technology. It would not allow for the installation of any kind of camera or voice recorder without a warrant from a judge.
DMR Commissioner Patrick Keliher told the committee last month that the Marine Patrol was facing increasingly difficult enforcement issues, particularly in the boundary in Blue Hill Bay between Lobster Zones B and C, but not only there. Last year, disputes among lobstermen in the area led to gear losses of as much as $350,000, according to an estimate by Marine Patrol chief Col. John Cornish.
“Tensions are created by those individuals fishing sunken trawls (without marking buoys), over the trap limit and too much gear outside their home zone,” Keliher testified.
Lobstermen are generally limited to fishing 800 traps and may not set more than 49 percent of their allowable traps in a zone other than their own.
“While I strongly believe that the vast majority of the lobster fishery is honest and law-abiding,” he testified, “our inability to stop the ones who are breaking the law in these ways threatens to erode the stewardship and conservation ethic of which this fishery is so justifiably proud.”
Perhaps surprisingly, the warrantless tracker proposal drew strong support from two of the state’s lobster industry trade associations – the Maine Lobstermen’s Association and the Downeast Lobstermen’s Association.
Patrice McCarron, the executive director of the MLA, said that better enforcement of state’s lobster laws was the organization’s “top priority” for 2017.
“The industry has become increasingly concerned with the number of lobstermen who are giving in to greed,” she told the committee. With each new incident, she continued, “the lobster industry’s culture of stewardship begins to fade.”
John Drouin, chairman of the Zone A Lobster Management Council, said that the majority of the fishermen in that zone support the bill.
“We need to be able to get the proper evidence to make strong cases and get these crooks and thieves off of the water,” he said. “The current way doesn’t seem to be working, so that means we need to try a different approach.”
Support for LD 1379 was hardly universal.
Oami Amarasingham, advocacy director for the American Civil Liberties Union of Maine, said that while LD 1379 was “cloaked in the language of the Fourth Amendment,” it would violate the constitutional rights of Maine lobstermen and “actually drastically expands the government’s ability to track lobstermen without any limits at all.”
The Maine Lobstering Union also opposed the bill, complaining that it took a scattershot approach to solving very limited problems. Of particular concern to several union members was the DMR commissioner’s apparently unfettered discretion to approve tracker installations.
The Maine Association of Criminal Defense Lawyers also objected to what it characterized as “secret warrants” and “covert electronic surveillance” on lobster boats.
“It is hard to imagine a more significant violation of a person’s constitutional right to be free from unreasonable searches and seizures than a provision that allows an agency commissioner, not a judge, to authorize the secret placement of tracking for surveillance on a vessel upon suspicion of a civil offense,” MACDL President Walter McKee testified.
As of Monday afternoon, the text of the amended version of LD 1379 was available on the Legislature’s website and efforts to obtain a copy of the amended bill directly from the Marine Resources Committee before deadline were unsuccessful.
According to the committee’s calendar, a vote to accept the final language of the amended bill was scheduled for Wednesday, May 10.