AUGUSTA — Maine Department of Marine Resources (DMR) Commissioner Patrick Keliher cannot enter into an agreement with the state’s federally recognized tribes that runs contrary to state law or federal fisheries rules, he told the legislature’s Marine Resources Committee Monday. He was speaking in opposition to LD 1262, “An Act to Authorize Tribal-State Memoranda in the Eel and Elver Fisheries.” The bill is sponsored by Rep. Matthew Dana of the Passamaquoddy Tribe.
The bill would allow the DMR Commissioner to enter into a memorandum of agreement (MOA) with the five tribes regarding the management of commercial fisheries. Rep. Dana has amended the language to delete the specific reference to elvers and to add a final section requiring approval by the tribes. The bill spells out a process by which the Marine Resources Committee of the legislature could “make any necessary statutory changes in response to the MOA.”
In the months leading up to the 2014 elver season, the first with a new, stricter quota system per federal rules, Keliher met several times with tribal leaders to draw up an MOA. At issue was how to include the tribes in the DMR system for allocating the state’s total elver quota.
“The legislature ended up enacting a bill that was not exactly what the agreement said,” House Chair Rep. Walter Kumiega told the Islander Monday evening. “The Passamaquoddy tribe wanted to run as a derby fishery so tribal members would not be assigned individual quotas. What we ended up doing was allocating some quotas to the tribes to distribute however they want. Then they send a list to DMR of license holders, and then DMR issues swipe cards.”
The differences between the MOA and the bill passed last year were due to legal concerns brought by the state Attorney General’s office. “They thought it could cause enforcement problems with non-tribal members,” Kumiega said. The concern was based on the equal protection clause of the state’s constitution, since tribal and non-tribal fishermen may have had different access to the elver resource.
After Dana introduced the bill to open Monday’s hearing, representatives from the Maine Indian Tribal State Commission and the Friends Committee on Maine Public Policy spoke in support of the measure.
Newell Lewey of the Passamaquoddy fisheries committee, who was involved in the last year’s meetings that led to a first MOA, also spoke in favor. “Over the last three years, the eel fishery has been contentious,” he said. “I think this bill would go a long way in resolving conflicts.”
Specific issues in the management of the elver fishery “are starting to be resolved,” Keliher said in his testimony, “but the legal issue remains. We certainly recognize the sovereignty of the tribes, but we have one set of management criteria. At the end of the day it is managing the access for everyone, tribal and non-tribal alike.”
The work session on the bill will include Dana and a representative from the Attorney General’s office. “I think the point of the law is to allow the state and the tribe to enter into an agreement that does contradict state law, then come back to the legislature to report out a bill to make the changes,” Kumiega said. “It lays out a process for how that would happen.”