Marine Patrol Specialist Sean Dow works aboard P/V Dirigo II in Blue Hill Bay. The Maine Marine Patrol is seeking authority from the Legislature to install covert electronic surveillance devices without a search warrant from a court on boats suspected of violating the state’s lobster fishing laws. ISLANDER FILE PHOTO

State seeks permission to ‘bug’ fishing vessels

AUGUSTA — Last November, the Marine Patrol charged a Spruce Head lobsterman with fishing 156 lobster traps more than the 800 he was authorized to fish.

In October, a trap war between fisherman from Lobster Management Zones B and C reached such epic proportions that the state offered a $15,000 reward for information that could help the Marine Patrol with its investigation of incidents. According to the Department of Marine Resources, the dispute generated considerably more than $350,000 in lost fishing gear. Zone B extends from Schoodic Point to Newbury Neck in Blue Hill Bay, while Zone C stretches from Newbury Neck to Cape Rosier.

Long before all that excitement came to public attention, the DMR last April proposed legislation that would significantly expand the Marine Patrol’s authority to place electronic surveillance devices on commercial fishing boats surreptitiously, without first obtaining a search warrant from a judge or permission from the boat owner. The surveillance equipment could include GPS tracking devices, concealed audio or video recorders and other electronic equipment.

The covert surveillance proposal was contained in a wide-ranging bill suggested by the DMR, LD 1233. The bill was enacted by the 127th Legislature but without the surveillance authority that drew strong objection from members of the Maine Lobstering Union on constitutional grounds.

Now, the DMR is heading back to the Legislature with another attempt to get Maine Patrol officers the authority to install electronic surveillance devices on lobster boats without telling the fisherman whose boat is involved. Whether the proposal will be the same as it was last year, or if not, how it will differ, is unclear.

On Monday, DMR spokesman Jeff Nichols said that a definitive version of the bill had yet to be drafted.

“We’re not going to comment until we get final language on the bill,” Nichols said in an afternoon telephone conversation. “I don’t know when we’re going to have final language.”

In written testimony to the Legislature’s Marine Resources Committee last year, DMR Commissioner Patrick Keliher explained that current law allows the Marine Patrol to get a warrant from a court for placement of surveillance equipment without the knowledge of the fisherman only when there was probable cause to believe that a criminal violation of the state’s lobstering laws had occurred.

For civil violations, the Marine Patrol can only get a search warrant with 24 hours notice to the individual, “which tends to temporarily cease the illegal behavior that the search warrant is seeking to identify.”

Many illegal fishing practices are classified as civil violations, including fishing more traps than the 800-trap limit, fishing traps without DMR-issued identifying tags affixed and, perhaps surprisingly, molesting gear belonging to other fishermen. Gear molestation can range from short-tying buoy lines, so that the buoys don’t float on the surface at high tide, to cutting off the buoys entirely so a fisherman can’t retrieve his traps.

Criminal violations include fishing with so-called “sunken trawls” – groups of several lobster traps strung together and fished without the use of identifying marker buoys. Fishermen can use sophisticated electronic navigation gear to locate their trawls. The practice is more common in offshore waters where encounters with the Marine Patrol are less likely than closer to shore. It also is a criminal violation for fishermen to drop more than 51 percent of their licensed traps outside of their chosen lobster management zone.

Last year, the surveillance-without-warrant proposal drew objections from fishermen who said it would be a violation of their constitutional rights. Keliher conceded that the proposal might raise significant issues under the Fourth Amendment’s prohibition against unreasonable searches.

That issue was raised by Kimberly Ervin Tucker, an attorney for the Maine Lobstering Union, in testimony submitted to the Marine Resources Committee last spring.

“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,” Tucker wrote. “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.”

In his testimony, Keliher said, “the Department is aware that there are some individuals in the industry who are concerned about removing the need for the warrant. Another possible approach to this issue would be to continue to require the warrant from the court, but to provide an exception to the notice requirement for the civil violations that are of specific interest.”

The 128th Legislature was slated to begin its first session on Wednesday, Jan. 11. As of press time, a DMR bill had yet to be submitted.

Stephen Rappaport

Stephen Rappaport

Waterfront Editor at The Ellsworth American
Stephen Rappaport has lived in Maine for nearly 30 years. A lifelong sailor, he spends as much time as possible messing about in boats. [email protected]

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