Maine Lobster Advisory Council Meeting Minutes
November 15, 2006
Department of Marine Resources
Lobster Advisory Council Meeting Minutes
Department of Human Services Conference Room – Augusta, Maine
November 15, 2006 – 5:00 p.m.
A meeting of the Department of Marine Resources’ Lobster Advisory Council (Council) was held on this date at the Department of Human Services on Civic Center Drive in Augusta. Council members attending this meeting included: Chair Bob Baines (Non-Zone Lobsterman), Jon Carter (Zone B), Dan MacDonald (Zone C), Gerry Cushman (Zone D), Larry Knapp (Zone E), Elliott Thomas (Zone F), Jim Henderson (Zone G) and Ted Hoskins (General Public Member). Council members not present included: Dana Rice, (Eastern Dealer), John Drouin (Zone A), Cappy Sargent (Non-Zone Lobsterman) and Dana McIntire (Non-Zone Lobsterman). Deputy Commissioner David Etnier, Deirdre Gilbert, Colonel Joe Fessenden, Kathleen Reardon, Sarah Cotnoir, Carl Wilson and Donna Hall of the Department of Marine Resources were also present. Others present were Mark Randlett (Attorney General’s Office), Vanessa Levesque (State Planning Office), Patrice McCarron, Kristen Millar, Clare Grindal, Sheila Dassatt, Alison Hawkes, Jon Munsey, Jim Merryman, Sonny Sprague, Thomas Fletcher (NOAA) and Rosanne Mizzoni (Commercial Fisheries News).
The meeting convened at 5:10 p.m.
1. Welcome and Review of Agenda
2. Approval of Minutes (August 30, 2006)
MOTION: (J. Carter and E. Thomas) To accept the minutes of the August 30, 2006 as written. Unanimous.
3. New Business
a. Election of Officers
Election of Officers was held with Bob Baines re-elected as Chair and John Drouin re-elected as Vice-Chair. Unanimous.
b. DMR Legislation
Dep. Commissioner David Etnier explained the drafted bill that was submitted to the legislature after the approval of the Council - “An Act to Amend Laws Pertaining to Entry into the Lobster Fishery”, which incorporates effort reduction steps agreed to by the Council and include the following:
• A new zone option that will allow for the creation of a “parallel” waiting list for young people less than 18 years of age;
• A proposed statewide 17 year-old minimum age requirement to obtain a commercial lobster license; and
• A change in the exit/entry ratio that ties the number of trap tags retired to the number of trap tags issued.
Right now, DMR issues new licenses based on the number of retired lobster licenses and has allowed up to 800 trap tags over time to be issued per new license, depending on zone restrictions. Regarding the new zone option, the waiting list now in use is for apprentices who have completed the program and are over 18 years old. The waiting lists are part of the entry/exit ratios for zones.
D. Etnier explained that DMR has removed the section about having to obtain a high school diploma or general education degree prior to obtaining a lobster license from the bill after consulting with the Maine Attorney General’s Office. D. Etnier introduced Mark Randlett from the Attorney General’s Office and told the Council that M. Randlett would explain his findings after reviewing the education piece of the bill. M. Randlett explained that he was concerned that requiring someone to obtain a high school diploma or general education degree prior to obtaining their lobster license could be considered discriminatory or unconstitutional if DMR was challenged on the requirement.
E. Thomas asked why plumbers, electricians and other professional license holders have to have an education requirement, but lobstermen do not. M. Randlett indicated that different trades may have specific education components and the licensing requires people entering some trades to be tested on those components before receiving a license, which is a different situation than simply requiring them to have a high school diploma or a general education degree prior to purchasing their lobster license.
M. Randlett stated that it is very possible some of the best fishermen in the State have never received their diploma and they could make a very good argument on that and cast doubt on it if it became law. M. Randlett stated that DMR submits their ideas to the Maine Attorney General’s Office and it is our job to point out when issues may be unconstitutional.
G. Cushman stated that Zone D had planned to include the education component on their effort bill. After listening to the legal advice from the AG’s Office, he would take the information back to the Zone D Council to see if they still wanted to pursue the option.
D. Etnier explained the second drafted bill that was submitted to the legislature “An Act to Create a Non-Resident Lobster and Crab Landing Permit”, which would allow non-resident lobstermen to land their legal catch as defined by Maine law in a Maine port. Presently, the law states that dealers can only purchase lobsters landed in Maine ports from Maine-licensed lobsters harvesters. David Etnier explained that this issue primarily arose when established Maine lobster businesses, most of which straddle the Piscataquis River on the border that divides Maine and New Hampshire, were told by the Maine Marine Patrol about two years ago that they could no longer purchase lobster landed on their wharves by New Hampshire licensed lobstermen. These folks then hired an Attorney who then conferred with the Attorney General’s Office. The Attorney General’s Office looked very hard at the constitutional concerns of the ability to lobster from one State and land in another.
M. Randlett stated that the Federal Constitution issues the ability of States to regulate commerce of different States and it would be a political challenge to prevent someone from fishing and landing their catch in the State of Maine. The Attorney General’s Office considered this from a lot of different angles; Maine’s current laws, the way fishermen lobster and the way the license is structured. This unlawfully prohibits interstate commerce and it would be a constitutional challenge and they advised DMR that they would have a problem and may want someone else to look at this. M. Randlett stated that their advice would be to allow people who don’t have a permit in Maine to obtain a permit to get around the commerce problems, if this was violating the ability to enforce. D. Etnier said that DMR asked the Attorney General’s Office to get the law as tight as possible to the US Constitution so it would be defensible.
D. Etnier explained that corrections have been made to the present bill. The key component to make the law work is to grandfather the folks that as of the date of the law in 2007 met all the requirements. They would also be able to leave their boats in Maine.
One member asked whether non-trap or trap, if this would still subject everyone to these laws. Even if they were grandfathered, they would still need a permit and would have to comply with all other laws.
Col. Joe Fessenden added that the Maine law prohibiting the landing of lobsters by mobile gear is solid. G. Cushman asked Col. Fessenden if this law has been challenged. Col. Fessenden explained that it has been challenged in the past and courts had made it clear that states can have more restrictive laws.
M. Randlett stated that no one can land lobsters in Maine that have been dragged and that persons from Maine have the same prohibition. Commerce problems arise when you discriminate. He stated that draggers are held to the same standard landing in Maine. They need to have a permit, a Maine registered vessel and Maine can enforce its law on them.
With this law and New Hampshire’s allowance of 1,200 traps, they would be bound by Maine laws such as tags and landing permits and it would be up to Maine Patrol to enforce. A question was asked if we could enforce in New Hampshire waters, which Maine cannot. A suggestion was made that Maine should require them to tell how many tags they have purchased for Federal waters. P. McCarron asked how the declared zone piece worked. D. Etnier stated that they will have designate on their application where they intend to fish.
c. 2006-2007 Shrimp Season
The shrimp season has been set beginning December 1, 2006 and ending on April 30, 2007. Dragging is not allowed inside until January 1st. The season is 10 days longer this year and the shrimp are reported to be in good supply. D. Etnier said that Col. Fessenden and the Marine Patrol have started meeting with several of the lobster zones. Shrimp draggers are invited to attend the meetings to talk about their traditional tows and gear conflict problems. There are people who would like to see the shrimp season moved up. The decision on setting the season was made at a meeting in New Hampshire based on the stock assessment. People are encouraged to share the bottom and help the folks in the shrimp industry as much as possible. If everyone works together, this could be an excellent year for those in the shrimp industry.
Col. Fessenden stated that meetings are covered in Zones D-G and that they will be meeting with Zones B & C. The bio-mass of shrimp is reportedly higher than ever. L. Knapp asked how far back the records went. Col. Fessenden stated since 1968. L. Knapp asked if there are any processors this year. G. Cushman said there are 2-3 processors that he knows of and that one is opening up on December 1st and the other planned to open on December 15th.
Col. Fessenden said this could be a very good season and the key to the whole thing is working together and that most fishermen know what the traditional tows are. Hopefully fishermen will cooperate and share the bottom. If problems should arise, the Commissioner does have the authority by emergency rulemaking to close areas. One member stated he did not think there would be many problems and does not see a conflict if people stay out of the middle of the tows. Plus, you can’t shrimp inside until January 1st and that would give people ample time to move their gear if needed. Another member asked why they don’t set the shrimp season later, like 12/31 thru 5/31. Col. Fessenden stated that the shrimp season is not supposed to be set around gear conflict issues.
d. Bay Management Update
D. Etnier introduced Deirdre Gilbert, Special Assistant to the Commissioner at DMR and Vanessa Levesque of the State Planning Office to present an update on the Bay Management Study. D. Gilbert explained that in 2003 the Aquaculture Task Force was formed after some environmental and community groups became concerned with aquaculture leasing and siting. This task force identified a need to look at all users and the impacts in bays and recommended that the study be broad enough to cover more than just aquaculture. In July of 2004 the Legislature passed LD 1857 “An Act to Implement the Recommendations of the Task Force on the Planning and Development of Marine Aquaculture in Maine”. D. Gilbert explained that Part B of the law directs Maine’s Land and Water Resources Council (LWRC) to carry out a two-year study to explore and document potential new and innovative concepts for the management of Maine’s embayments. D. Gilbert stated that as part of the study a series of public meetings have been held, including a full day meeting in Belfast. D. Gilbert stated that from some of those meetings they found that the public had concerns that State agencies are not working together toward common goals in the nearshore, and that municipalities do not have a forum to work together on regionally important issues.
D. Gilbert stated that a report is due back to the Marine Resources Committee by January 15, 2007. The report is from the LWRC, and was compiled by staff from DMR and the State Planning Office with the assistance of a steering committee made up of public members with experience in the relevant areas. The report recommends:
• Moving towards regional management of nearshore waters – The State will encourage and support regional initiatives to address locally-relevant issues by providing information, staff assistance and/or funding and by encouraging interlocal agreements.
• Increasing the amount, availability and accessibility of nearshore data and information – The State will create and implement a long-term coastal marine science plan to identify and prioritize needed data, and enhance information exchange and marine geographic information systems (GIS) for nearshore data in Maine.
• Implementing a strong vision for Maine’s nearshore resources – The State will implement, across relevant agencies, the Coastal Management Policies Act, and will institute several coordination mechanisms to improve interagency cooperation and communication.
• Increasing the amount and diversity of funding sources – In order to support the implementation of the recommendations under each of these goals, the State will maintain current levels of funding for existing state priorities while securing additional sources of support for enhanced programming.
V. Levesque said that the support of regional initiatives could provide an opportunity for fishermen and others to work with landowners on land-based water quality problems or on coastal access issues. V. Levesque stated that they have heard a lot about water quality concerns and said there is no intention to interfere with any cooperative fisheries management.
L. Knapp stated he was scared of the study; he is leery of one more layer. D. Gilbert stated that the goal of the study is to improve nearshore management and that many people have pointed to the lobster zone councils as one example of how well regional management can work.
D. Etnier stated that DMR is only trying to do what was mandated. DMR and SPO were told by the Legislature to come up with a definition of Bay Management. D. Etnier stated that what came out of that work is the draft summary of recommendations that were distributed. The hope is that some good things will come out of this. D. Etnier explained that this report is going to the Legislature in January. Much work has been done and more needs to be done. There is a cost associated with some of these recommendations, and DMR cannot pay for all of them with existing resources.
T. Hoskins said he had expressed before that fishermen need to be talking with other fishermen, and if this is going anywhere it has to involve the fishermen. E. Thomas stated he had attended one of the meetings and it was very interesting and that some people seemed to feel that there are too many fishermen fishing in the bay. V. Levesque said these recommendations are not going to affect the lobster zone council system in any way. V. Levesque said we are hoping more people will want to be engaged. C. Wilson stated that whether the lobster fishery is engaged or not, the lobster fishery is important. The lobster fishery is using those resources and there has to be a discussion there because the lobster fishery affects so many people.
S. Dassatt said she has spoken to a lot of fishermen who have lost their gear. They believe it may be because they have gear set in front of expensive homes. Those homeowners do not like the looks of it in front of their coastal homes. J. Carter said that we need to pay attention to this and that there is talk of a group of people on Mount Desert Island that want to stop lobstermen from starting their engines before 9:00 a.m. D. Etnier said there are many groups out there working on different things, trying to figure out what they can do about some of these issues and we need to be consistent in our process. The Council was urged to continue to pay attention to this work, especially as the recommendations are submitted to the Legislature this January.
e. MLPC Board Nomination
A letter of recommendation to consider Chad Dorr as a new member of MLPC was presented to the Lobster Advisory Council. This vacancy represents the Downeast Region as a Dealer member.
MOTION: (J. Carter and E. Thomas) To nominate Chad Dorr to the MLPC board. Unanimous.
f. Lobster Research, Education and Development Board Update
D. Etnier explained the summary of recommendations that were approved by the Lobster Research, Education and Development Board meeting in late October. The awards are as follows:
Research Proposals:
• $70,000 Research on Lobster Age-Size Relationships: Developing Regionally Specific Growth Models from Meta-analysis of Existing Data/Wahle, Chen, Lawton
• $40,000 Temperature effects on lipofuscin concentrations in the olfactory lobe cell mass of the brain of the American Lobster in the Gulf of Maine (GOM)/Grace.
Education Proposals:
• $20,000 Lobster LabVenture/Lishness
• In addition, under the topic of Education, the review committee recommended allocating $70,000 to be used to offset the cost of safety courses for lobstermen administered by USCG approved instructors.
• $10,000 to support travel by Maine lobstermen to the 8th International Conference & Workshop on Lobster Biology and Management in September 2007 on Prince Edward Island.
Development Proposals:
• $28,603 Optimizing lobster value through development of a value-added product manufactured from processing waste/Perkins
• $25,000 Marketing and Development Activities/Maine Lobster Promotion Council (specifically for the Marine Stewardship Council Certification assessment portion of the proposal)
• $19,181 Optimizing the Value of Harvested Lobster by Developing a Shelf-Stable Sausage from Lobster Mince/Bushway
This totals $282,784 in funding awarded through this RFP. At a previous meeting of the Board, it was agreed to provide $100,000 in a sole source contract to support the development of a user-friendly version of the lobster assessment model. This brings the total amount of funding currently provided for projects to $382,784.
g. Proposal for overlap of Area 1 & Area 3 (Jim Merryman & Jon Munsey)
Jim Merryman and Jon Munsey from the Maine Offshore Lobstermen’s Alliance presented their proposal for an Area 1/Area 3 overlap. J. Munsey explained that they started last March by going to the Congressional delegation and then brought their idea to Area 1 and now are presenting it before this Council. The objective is to allow Maine fishermen access to Area 3; this would include all Area 1 fishermen. J. Merryman said that with the Cashes closure we basically lost the traditional bottom. It would give us the 25600 line and not just the 25400.
G. Cushman said he supports the idea. J. Merryman said if you participate in the overlap, you would be bound by Maine law. J. Carter said he had an Area 3 permit and lost it. He had no logs to back it up, just landing receipts so nothing proved he had it.
C. Wilson stated there is an equal stock assessment. People did not check off Area 3; the minimum sizes were used for biological measures. Carl said we are seeing Area 3 boats migrating and this is not good for the stock assessment. Area 3 is covering 500 miles of coast. Carl stated that Massachusetts is seeing boats going up through hammering the area that have never been there before. J. Henderson said last spring there was a boat from Rhode Island 40 miles from Maine just outside the 600 line lobstering. Col. Fessenden said there is an Area 2/Area 3 overlap and maybe this could work the same way. B. Baines stated he thought they should push their idea.
T. Fletcher stated that these biological areas are management areas and he believed they would not want more lines. NMFS has talked about having different biological areas in Area 3.
4. Old Business - None
5. Reports and Updates
a. DMR Updates
Rule-Making
D. Etnier stated that at their last meeting, the DMR Advisory Council supported the safety component of the apprentice program. In January, the DMR Advisory Council will be voting on the recommendation of the Zone D Lobster Council referendum results, requiring a sponsor of an apprentice to have held a Class I, Class II or Class III lobster and crab fishing license for at least 5 years and requiring that an apprentice may enter Zone D only if the apprentice apprenticed in Zone D.
S. Cotnoir stated that Zone A had just sent the same type of referendum and the results were still being compiled, but it looked as though there is support in Zone A to put the same recommendation forward to the DMR Advisory Council.
S. Cotnoir stated that there are four public hearings on ASMFC Addendum X (Mandatory Data Collection) scheduled at the end of the month. There was a question about Option 1 (status quo). Carl Wilson said they dropped the reporting requirement and they went to the status quo option. S. Cotnoir said this is a follow up from Addendum VIII, where there was a lot of confusion about the 10%. Bob Baines has asked how we should comment on the reporting plan when the reporting plan has not been developed yet. K. Reardon stated that status quo should work for us.
Whale Update
D. Etnier said the Take Reduction Team will meet in December. There is still no certainty on when the whale rules will be out, but after the Take Reduction Team meeting, DMR should know something. When they do release the whale rules, DMR will mail them out to everyone. David said that DMR was notified of a Dynamic Area Management Zone (DAM) yesterday because of whale sightings in Maine.
Patrol Update
Col. Fessenden distributed copies of two maps showing the Dynamic Area Management Zones (DAM) that NMFS issued yesterday and that will go into effect on November 18th. Joe explained that these are both huge areas and that they do not usually make their way in to shore this close. He stated the reason for these DAM areas is because of the sightings of several right whales. Joe said no one should be moving gear in to those areas. He stated that this is serious and asked that fishermen cooperate. Joe stated he knows this is a tough time of year and a tough situation for the fishermen. He said if Marine Patrol finds old gear that is not whale compliant, names will be taken, gear could be seized and that fines will come out of it.
Commercial Fishing Safety Council (CFSC) Update
B. Baines said that 70K was set aside to help offset the cost of the drill instructors safety course that all apprentices will be required to take. We don’t know the subsidy amount yet or how it will be disbursed. B. Baines said he would like to see this money be available to all fishermen and not just the apprentices. J. Carter said he thought the intent of the money was to only be given out to apprentices. D. Etnier said there has been some discussion about the money being available to all fishermen.
B. Baines said that Major John Fetterman is working with the Coast Guard to see how we can adopt Federal safety regulations so the same rules apply to Maine registered boats that apply to documented vessels in the same areas.
Bob said the next CFSC meeting is scheduled for December 13th and they will be working toward other initiatives such as coming up with a program that will encourage all fishermen to take the drill instructor’s safety course.
b. Zone/Industry Issues – Summaries
Zone A: A Zone A Representative was not present at the meeting
Zone B: Jon Carter stated that some enforcement action had taken place in Zone B that had made some of the fishermen happy. Col. Fessenden stated that there had been enforcement of a couple of fishermen that were fishing over their 51% in Zone B. He said that their tags were taken and they would not be getting them back. Col. Fessenden said that the Officers had seized about 80 traps over the limit while working this enforcement detail. J. Carter stated that the fishermen in Zone B were happy to see these actions taken and that it had created good public relations between the fishermen and DMR.
Zone C: Dan MacDonald reported that at the next Zone C meeting they will be looking at sending out a limited entry questionnaire.
Zone D: Gerry Cushman stated that Zone D has asked Rep. Chris Rector to sponsor their effort bill.
Zone E: Larry Knapp reported that they are watching the Zone D effort bill.
Zone F: Elliott Thomas stated that they are in favor of Zone D’s bill and maybe they will join in.
Zone G: Jim Henderson reported that Cape Porpoise put in a 600-trap proposal to keep guys from switching from Zone F to Zone G. There are problems with people jumping in to other harbors to fish.
6. Set Next Meeting Date and Agenda
The date of the next Lobster Advisory Council meeting was set for January 17, 2007 at 5:00 p.m. at the Department of Human Services on Civic Center Drive in Augusta.
MOTION: (J. Carter and J. Henderson) To adjourn. Unanimous.
The meeting adjourned at 7:50 p.m.
