Advisory Council Meeting Minutes

September 30, 2013 @ 9:00 a.m.
Inland Fisheries and Wildlife
284 State Street, Upstairs Conference Room
Augusta, ME

Attending:       Chandler Woodcock, Commissioner
Andrea Erskine, Deputy Commissioner
Christl Theriault, Assistant to the Commissioner
Jim Connolly, Director Bureau of Resource Management
Doug Rafferty, Director of Information and Education
Judy Camuso, Wildlife Division Director
Joel Wilkinson, Colonel, Warden Service – by phone
Chris Cloutier, Major, Warden Service
Becky Orff, Secretary/Recorder

COUNCIL MEMBERS
Jeff Lewis, Chair – by phone
Lance Wheaton, Vice Chair – by phone
Bos Savage – by phone          
Dick Fortier – by phone
Don Dudley – by phone
Dick Thurston – by phone
Cathy DeMerchant

GUESTS
Fern & Sylvia Bosse


I.  Call to Order

Cathy DeMerchant called the meeting to order.

II.  Introductions

Introductions were made.

III.  Acceptance of Minutes of Previous Meeting

No minutes were available for acceptance.

IV.  Rulemaking

A.  Step 3

1.  2013-14 Furbearer Seasons/Regulations/Beaver Closures

Mr. Connolly stated about a year ago we had an enforcement case that pointed out an inconsistency in the language that defined traps being underwater or covered by water.  The language related to a beaver trap and an individual and the enforceability of an action against that person for having a trap that was out of the water.  In looking at that, there was a discussion of that incident because it became apparent based on the language that was present that the trap being underwater would only be enforced if the individual actually set it but that they could then tend that beaver trap and it would not have to still be underwater. 

Mr. Connolly stated there was an interest in making sure that the original intent and how it was being enforced was that the trap would be underwater at all times.  There was discretion in terms of how the warden service enforced that.  They didn’t go after people and in fact when we reviewed the enforcement actions related to this violation there were only 2 violations and it was when the trap was actually set on the dam, not in a spot where there ever would have been an expectation of water, and then 7 times where there were warnings issued where there had been fluctuations in the water level but at an egregious spot where it was clear that there wasn’t a tending occurring that would have covered the event.  That was in the last six years. 

Mr. Connolly stated the intent in trying to modify the language was to get beyond the enforcement, lawyer, district attorney discussion that changed the one word “set” to a point and time instead of a coverage of the entire time that the individual was trapping.  In order to address that, we had to look at the language.  Looking at the language regarding traps underwater there were many variables which were confusing and contradictory.  That’s when the words, “to remain” were added to the word “set” to try and get the notion that it was beyond a single point and time that the trap should be underwater.  After that proposed language much discussion occurred.  There was a perception that trappers would be targeted, that they could never meet that standard, they would all be violators, etc.  Everyone was concerned that was not an acceptable approach.  We went back and looked at the consent decree because that did come into play because there were references to killer type traps involved with the consent decree and we had discussions about when the trial occurred with the consent decree and was this mentioned.  It did come up in the consent decree in relation to the 4 ft. above the snow that there were discussions with an individual trapper who was cross examined but also Ken Elowe and that there was the intent that there always be 4 ft. of distance between the snow or the ground in killer types traps that were set above the ground. 

Mr. Connolly stated we had discussions with Chris Taub from the Attorney General’s office and looked at what we were trying to accomplish.  We were trying to get traps that were supposed to be underwater to be underwater and find a balance between what we were striving to do and the perception of the trappers without violating the consent decree which called for very specific language.  Originally we were adding language to the section of the law that only had the word “set completely underwater” and then carrying that all the way through the statute.  After looking at the language that came out of the consent decree that was agreed to and accepted by trappers as being adequate, the words set, place and tend were used when talking about completely underwater.  We thought rather than working to modify the word “set” by adding “remain” and carrying that through, if we worked to address the point and time and take the focus off the trap remaining underwater as the way to describe this event, instead we would use the actions of the trapper and modify those.  The idea being that was something that had been accepted in the consent decree as the way to address the issue and had understanding based on the court case but also with the trappers and go back and modify those words where “set” was used and focus on that and add “place” and “tend”. 

Mr. Connolly stated the amended proposal now was rather than focusing on the trap remaining it was set, place or tending.  Anytime the trapper was in contact with the trap whether he was sitting in his vehicle and looked out the window because checking was a part of tending, we would have the words “set, place or tend” and the expectation was the trapper would adjust the trap and reset it underwater.  There were some other places where specific language that said, “at all times” and we left those alone because that was actual language that came out of the consent decree and the Commissioner could not modify that without the court’s approval and the consent decree.  We looked at the language outside of the consent decree but pertained to it and added “place” or “tend” to those words.  Section K would remain unchanged and Section J was modified.

Deputy Commissioner Erskine stated when we looked at the definition of trapping, it included set, place and tend.  The intent was that whole action was part of the act of trapping.  It made sense to use that verbiage in the regulation to make it clear that it was intended that when you set the trap, you were also responsible for tending it as part of the activity.

Commissioner Woodcock stated we appreciated the concerns that were expressed prior to the Advisory Council meeting by the MTA and members of the Council and the general public.  Everyone worked together to come up with the change and it was an important one for the future.

A motion was made by Mr. Thurston and seconded by Mr. Dudley to accept the proposal as amended. 

Vote:  unanimous – motion passed.

B.  Step 2

There were no items under Step 2.

            C.  Step 1

There were no items under Step 1.

V.  Other Business

There were no items under Other Business.

VI.  Councilor Reports

Council members gave reports.

VII.  Public Comments & Questions

There were no public comments or questions.

VIII.  Agenda Items & Schedule Date for Next Meeting

The Council would be notified at a later time of the date and location of the next meeting.

IX.  Adjournment

A motion was made by Mr. Lewis and that was seconded by Mr. Dudley to adjourn the meeting.  The meeting was adjourned at 9:25 a.m.