Advisory Council Meeting Minutes
February 4, 2009 @ 9:30 a.m.
Inland Fisheries & Wildlife, Upstairs Conference Room
284 State Street, Augusta
Roland D. Martin, Commissioner
Andrea Erskine, Assistant to the Commissioner
Ken Elowe, Director of the Bureau of Resource Management
Mark Stadler, Wildlife Division Director
Sandy Ritchie, Habitat Conservation Biologist
John Pratte, Wildlife Management Section Supervisor
John Boland, Director of Fisheries Operations
Regis Tremblay, Director of Information and Education
Major Gregory Sanborn, Warden Service
Warden Steve Allarie, Whitewater Boating Specialist
Becky Orff, Secretary and Recorder
Mike Witte, Vice-Chair
Participating by phone:
Joe Clark, Chair
Senator Troy Jackson
Representative Dale Crafts
Skip Trask, ME Trappers Assoc. & ME Professional Guides Assoc.
Jody Jones, Maine Audubon
Gary Archibald, Hills Beach, Biddeford
Silvia Bosse, Norway/Paris Fish & Game
Fern Bosse, Norway/Paris Fish & Game
Gary Corson, New Sharon
I. Call to Order
Mr. Witte, Council Vice-Chair, called the meeting to order.
Introductions were made.
III. Acceptance of Minutes of Previous Council Meeting
Motion made by Mr. Philbrick and seconded by Mrs. DeMerchant to accept the minutes of the previous Council meeting as written.
Vote: Unanimous – minutes accepted as written.
- Step 3
1. Magalloway River Fishing Initiative
Commissioner Martin stated that at Step 2 he informed the Council that he wanted to move forward with the initiative and Mr. Philbrick had spent time discussing a draft. The draft had been modified with help of IF&W staff and was what was before the Council.
A motion was made by Mr. Goodwin and that was seconded by Mr. Philbrick to accept the proposal as presented.
Vote: unanimous – the motion passed.
2. Whitewater Rafting Rules
Warden Allarie stated he had received some additional comments from an outfitter that posed questions concerning his procedure with eliminating all Penobscot River Sundays. After talking to the Commissioner and Deputy he decided to amend the proposal as a compromise. The language was changed slightly. Instead of eliminating all of the Penobscot Sundays, for the integrity of the industry, he felt we should do away with 2 allocated Sundays; one in July and one in August. Allocated Sundays would go from 7 to 5.
Council Member Comments and Questions
Commissioner Martin asked Warden Allarie to share with the Council what had changed since Step 2.
Warden Allarie stated as of Step 2, language would strike all Penobscot Sundays, that wording was modified to go from 7 allocated Sundays down to 2. The percentage of use was not good, but he thought this would be a compromise with all the outfitters.
Mr. Clark asked about the outfitter that contacted Warden Allarie. Was it a major outfitter?
Warden Allarie stated it was, and shared with the Council his concern with getting rid of all allocated Sundays. We did have 2 outfitters that were currently meeting 100% of their goal for Penobscot Sundays. If we did away with all of them, that put the small guy at the same level. If we had to reallocate it, they would all be bidding for the same piece again. He thought that would hurt the integrity of the system itself. Why penalize 2 outfitters for other people’s mistakes?
A motion was made by Mr. Philbrick and that was seconded by Mr. Thurston to accept the proposal as amended.
Vote: unanimous – the motion passed.
3. Beaver Pond, Denmark, horsepower restrictions
Mrs. Erskine stated we were petitioned to restrict Beaver Pond in Denmark to 7 horsepower, and a public hearing had been held. No additional comments had been received and comments at the hearing were in favor. We asked at the public hearing (Representative Sarty and others) if it would be more appropriate to have a 10 horsepower restriction because that was the category currently existing on the books. They had no problem with that and we received confirmation that everyone involved was fine with doing 10 h.p. instead of 7.
A motion was made by Mr. Philbrick and that was seconded by Mrs. DeMerchant to accept the proposal as presented.
Vote: unanimous – the motion passed.
1. 2009 Controlled Moose Hunt - Eastern Aroostook County
Commissioner Martin asked Council members to do a side by side comparison of the material in their packet. One was the Department’s proposal and the other (Draft 2) was Mr. Kieffer’s draft. The Department presented their proposal at Step 1, and Mr. Kieffer’s draft would be discussed. After the meeting and discussion, Commissioner Martin wanted to combine everything and send to the Council electronically an updated draft for comment.
Mr. Kieffer discussed his draft. At the last meeting Commissioner Martin had asked him to put together a group and put together a proposal that would be acceptable to, primarily, the landowners. He met with Nick Archer and they had been working together on the moose hunt proposal for some time. They put together a group composed of Greg Smith, President, H. Smith Packing and Smith Farms; Zack Smith, Farm Manager, Smith Farms; Rich Hoppe, Wildlife Biologist, Ashland; Lt. Doug Tibbetts, ME Warden Service; Sgt. Tom Ward, ME Warden Service; Tim Hobbs, ME Potato Board; Nick Archer and Leo Kieffer.
Mr. Kieffer stated the group met and went over the Department’s proposal. During the meeting he and Rich both took notes on the suggestions and at the end of the meeting, they asked Rich to go back to Ashland and incorporate the recommendations of the group into the Department’s proposal. The group also suggested that after that was done, Rich and Leo get together and finalize the report that would be sent to Augusta.
Mr. Kieffer stated he was e-mailed a copy with Rich’s recommended changes and that was one of the forms that was distributed early on. He called Rich because there were some things that had been discussed and approved at the meeting that were not included. Rich stated he had already forwarded the copy to Augusta and Mr. Kieffer stated he would make another revised copy including what he felt came out of the meeting, “Draft 2.”
Commissioner Martin stated he would prefer, in order for everyone to be on the same page, that the Council members take a look at what was entitled, “Draft 2”. Again, this was what was sent to Commissioner Martin by Mr. Kieffer, the final product of what Mr. Kieffer and Mr. Hoppe worked on. They would go over Draft 2 paragraph by paragraph.
Mr. Kieffer stated under number 1, under the designated areas within the towns of Limestone, Caribou, etc. the wording there was added to read, “Designated areas under title, right and interest within the towns designated.” The reason for that change was that much of the land where the broccoli and cauliflower was planted in certain years was leased land, it was not necessarily owned. This broadened the coverage to include any of that leased property that was under their control. The towns of Washburn, Westfield and Connor were added as places where broccoli was grown by large landowners. The Town of Westfield was the hometown of H. Smith packing and there was a lot of broccoli grown there. Washburn and Connor and the landowners were pretty adamant that part of their land not be included. If they were going to include any of that under this type of program, they wanted all of the land where they are growing these crops to be under a uniform set of rules.
Commissioner Martin clarified that it would be Connor Twp., not the Town of Connor.
Mr. Goodwin asked if everyone at that meeting was in full agreement with adding all the towns.
Mr. Kieffer stated the report (Draft 2) before it was submitted to the Commissioner was submitted to the people that were in attendance and Draft 2 was submitted as a complete proposal with everybody on board. He also felt the number of moose hunting permits needed some discussion. Everyone at the meeting was adamantly supportive of the program being revenue neutral. Whatever the revenue generated by the proposal would depend upon the number of moose permits issued and whom they were issued to (nonresidents vs. residents). There would be some cost to the Department. The group discussed having just one moose check station and that be centrally located in Presque Isle. They didn’t include that in the draft because they felt it was something the Department needed to determine. In consideration of the permits they discussed, and it was discussed at Step 1 the figure of 100. He was concerned that enough permits be issued so that part way through the broccoli season those permits were not exhausted and the farmers then having to go out under the general law and remove moose on their own.
Mr. Witte asked if there was any way to find out how many formal complaints were registered with the Department.
Mr. Kieffer didn’t know if the complaints were actually called in. Under general law the farmer having any kind of crop damage could shoot a moose, bear, deer or turkey and then report it to the Warden Service. After the end of the moose season, one of the wardens in conjunction with Smith Farm, tried to determine how many moose had been harvested in the broccoli field. By going to the registration stations they came up with a figure of 61 moose. That was a ball park figure. There were only 2 major farmers that had any problems.
Mr. Kieffer continued reading from Draft 2. Under “person’s eligible to participate”, the only change there were the additional towns of Washburn, Westfield and Connor Twp. The Department’s proposal called for 80 acres in size for landowners who would be eligible to participate and the wording was changed to read, “any designee chosen must have written permission from the landowner” they wanted to make that clear that they require written permission.
Mr. Philbrick asked about the land description, it was his interpretation that this was to protect agricultural land and his question was around the use of forested and undeveloped land. What was the reason behind that?
Mr. Kieffer stated that was wording from the Department’s original proposal. It was to open the hunt up to some people that lived around the farming area that owned 80 or more contiguous acres. That was changed under paragraph B.
Mr. Philbrick stated what he would like to see included is that it needed to be abutting, if the notion was to protect agricultural land.
Mr. Stadler stated that the proposal was intended to deal with more than just crop depredation, it was also to deal with moose/vehicle collisions along Rt. 1A, Rt. 1 and 161 corridor. 80 acres was the average size of farm land in Eastern Aroostook County. He would suggest to the Council that they not add that provision just talked about.
Mr. Philbrick asked if we were also dealing with the moose/vehicle collisions with the annual moose hunt.
Mr. Witte stated looking through the Department’s proposal, we really weren’t designating the moose/vehicle collision situation along with the agricultural problem in the language. Could we do more with the language to say it was dealing with an overall problem?
Mr. Kieffer stated he didn’t think the 2 issues could be incorporated.
Commissioner Martin stated there were a couple thoughts there. Mr. Philbrick wanted the verbiage “abutting” added to ensure that any undeveloped land was abutting farmland.
Mr. Philbrick stated as we described why a specific area had a special permit it was dealing with the agricultural issue.
Mr. Stadler asked what process we would use to verify if land was “abutting”.
Mr. Philbrick stated he thought the local game warden would be able to identify an abutting piece of property to the agricultural area.
Mr. Kieffer stated that the fields used this year to grow broccoli were not the same fields that would be used next year. It was a rotating crop on a 4 to 5 year rotation. Abutting land would change every year.
Mr. Philbrick stated his concern was the word forested and undeveloped land, rotation of crops in rotated fields was identified as property that was not under developed, it’s fields, it’s part of a farmer’s agricultural crop. Forested lands were not part of broccoli, cauliflower, etc. That was his concern.
Mr. Witte stated they kept using the words broccoli and cauliflower, why not use the term agricultural crops.
Mr. Kieffer discussed paragraph A (see packet).
Mrs. DeMerchant stated as far as the S Corps., weren’t those more for smaller businesses? She thought that Irving was a different kind of corporation.
Mr. Thurston stated it wouldn’t be just small corporations. An S-corp. allowed the tax advantage out to the individuals and the C-corp. had other complications, but generally they’re not C-corps. anymore. Pretty much everybody was an S-corp. no matter how large.
Commissioner Martin asked Mr. Kieffer what the intent of striking out that language was.
Mr. Kieffer stated they felt when you got into stating that shareholders in corporations qualified as eligible to participate in the hunt, that could mean that people from outside of the state who owned stock in a corporation that owned land in Maine, they didn’t feel they should be eligible to participate in the hunt.
Council members agreed.
Mr. Stadler stated that language had been taken from the Department’s rules for deer hunting. He thought the Council needed to be very careful about establishing a precedent, landowner written permission, for hunting. That would be precedent setting for all forms of hunting and had been discussed at the Legislature. If it was put in rule, everyone would have to have written permission to go deer hunting, bird hunting, etc. He wanted to caution the Council about that being precedent setting.
Mr. Philbrick asked if this wasn’t just done on Marsh Island.
Mr. Stadler stated Marsh Island was a controlled hunt, but written landowner permission was not required.
Mr. Kieffer stated if the proposal was not acceptable to the farmers, then people would not get permission to hunt there because they would post their land and set up their own moose removal program.
Mr. Stadler stated it was the intent of the Department to have a training session with the selected guides prior to their permits being issued to them, and we would advise them that the reason we would utilize guides was because we were very concerned about landowner issues on the agricultural lands, and that they must have verbal permission to hunt from those landowners and they would be required to do that.
Mr. Philbrick stated a few problems could be solved by tweaking the vocabulary to eliminate the word written, with the notion it was understood when the permits are issued that they get verbal consent.
Mr. Kieffer moved on to section B. The wording to replace the struck out portion was provided by Lt. Doug Tibbetts. There was also discussion as to at least 3 successful moose hunts. He didn’t know what a successful moose hunt meant. It meant different things to different people.
Skip Trask stated there were 7,000 guides out there, and there were many of them that didn’t have a lot of experience. He was concerned about that, and also in the proposal it mentioned a liability insurance requirement. The Maine Professional Guides Association was going to suggest that. He would like to suggest that we require proof of liability insurance at the time guides applied. He thought that would weed out a lot of the guides that didn’t do much guiding.
Mr. Kieffer stated they did say all guides would be required to provide evidence of satisfactory liability insurance and when they did, if it was on the original application that was fine. Right now there were many guides that worked for sporting camps. The sporting camps had a liability policy and the guides were covered under that policy during their employment. The Department would have to decide if those guides would be accepted.
Mr. Kieffer read over the remainder of the draft. The portion speaking to written permission was again noted and questioned.
Commissioner Martin asked if in either draft it was made clear that this was a one year program.
Mr. Kieffer stated yes, it was discussed as a one year program. He felt this would be based on the number of moose and should be taken one year at a time. He would like to make a plan that would benefit the sportsmen and farmers.
Commissioner Martin stated in both proposals it was made very clear that it was for one year only. If that was not modified, it would be back before the Council at the end of the season.
Mr. Kieffer stated he would like to see it continue subject to review each year. Changes may need to be made.
Commissioner Martin stated as it was currently drafted, the hunt would end December 31 which meant he could not continue without coming to the Council regardless if they wanted to make changes or not. A sunset provision was discussed.
Mr. Philbrick stated regulation booklets were on a 2-year cycle. The minimum he would be comfortable with was 2 years. He would like to see it continue.
Mr. Poulin stated he was very concerned about the messaging of the program, and whether it was for a combination of protecting vehicles or for a controlled hunt in the agriculture area. He didn’t think we should have 2 messages there. It was easy to defend the agriculture position. If this were to come back at Step 3, he hoped there would be more opportunity for discussion.
Commissioner Martin stated at Step 3 it would be an up or down vote. Discussion would be allowed at Step 3, however, he would like their input when he sent them the updated proposal.
Mr. Poulin stated when they received the proposal that they reply to all when making comments.
Mr. Kieffer stated he felt it was important because of the timeframe to bring this ahead at the March meeting.
Skip Trask stated he hoped they would do something to ensure that top quality guides were used. He would also recommend that if each guide received 3 permits that whenever those clients were hunting moose that they be in the presence of the guide.
Commissioner Martin stated when the final draft was produced, he had a strong feeling that some type of certification would be required.
Gary Corson stated he was not aware that the Department required any guide to carry liability insurance for any guiding activity. That was usually put on the guide by the landowner. As far as a guide being qualified, there was a fairly new classification, a master hunting, fishing or recreation which required the guide to have 10 years experience with a set number of hours for a period of 5 years. There were very few people that had that classification, but many would qualify. Requiring liability insurance by the Department and setting that precedent was scary. Another part was that the Department licensed guides, were we saying that we were licensing people that weren’t qualified?
Mr. Kieffer stated he was not sure how to implement it, but the landowners were not going to let people hunt there without liability insurance.
Gary Corson stated he did not have a problem with the landowners requiring the guide have liability, he did not want the Department to require the guide have insurance. It would be precedent setting.
Mr. Kieffer asked about the timeframe so that he could bring any new drafts to the landowners to see if it was acceptable to them.
Commissioner Martin stated he needed to be able to market the proposal statewide, not only to the farmers in Aroostook, but to the rest of the State of Maine. A copy of the Department’s proposal would be forwarded to the Council in the next couple of weeks and then hopefully comments would follow.
Mr. Philbrick asked Mr. Kieffer if he would forward comments from landowners on items that may not sit well with them to the Council.
2. State Owned Wildlife management Area/Area Specific Regulations/Steve Powell WMA (Swan Island)
Mr. Stadler stated the last session of the Legislature determined that Swan Island become self sufficient and self funding. A special dedicated account was set up to receive revenue for that. The proposal was to modify some of the rules governing Swan Island that allowed the Department additional opportunity to allow the public to view the island for more extended periods of time. No comments had been received on the proposal. The Department had talked with the Town of Richmond; Swan Island was its own township, Perkins Twp. but was adjacent to the Town of Richmond. Richmond viewed Swan Island as an economic opportunity.
Council Member Comments and Questions
Mr. Witte asked about the Friends of Swan Island, what role did they play?
Mr. Stadler stated the Friends was a very active stakeholder group that provided assistance to the Department in a number of areas. The group had diminished due to health issues with some of the members. There had been a decline in the level of participation. A lot of what they did was provide assistance in the restoration of the historic buildings.
Mr. Witte asked if we could reestablish a relationship with the Friends.
Commissioner Martin recommended waiting until after the FY10-11 budget exercise.
3. Moose Permit Auction, Deadline for Applications
Mrs. Erskine stated there were no changes to the proposal. This was a date change to expedite scholarship monies to the conservation camps. She had not received any comments since it had been advertised.
4. Allen Pond, Horsepower Restriction
Mrs. Erskine stated a public hearing had been scheduled for February 25 in Greene. They were asking for a 10 h.p restriction. She had not received any comments since it had been advertised.
- Step 1
There were no items under Step 1.
V. Other Business
1. Review of the Canada Lynx rules and regulations - where we currently stand (Council member request)
Mr. Elowe stated he would give an update on where we were with lynx in general. He discussed the lawsuits, one of which ended in the consent decree. The second lawsuit which was enacted in October 2008 requested an injunction against the trapping season to protect lynx. A hearing was held and the judge ruled against the preliminary injunction saying there wasn’t sufficient information to show there was irreparable harm, and the Department had taken the necessary steps to ensure that lynx impact was minimized.
Mr. Elowe stated one of those necessary steps was our application to the USFWS for the incidental take permit. Under the Federal ESA allowed the state to continue lawful activities such as trapping and acknowledge that there would be some potential for incidental take, but the conservation benefit of what the state was doing overrode the impacts to lynx from incidental take. That application was submitted in August 2008. The USFWS in Maine was staffed by 2 people in the Old Town field office and at the time our application was submitted they were working on 2 other lawsuits. One of which was lynx critical habitat which was a parallel but separate issue with lynx and trapping.
Mr. Elowe stated the USFWS was tied up with that lawsuit and court imposed deadlines all through the fall and with Atlantic salmon. The incidental take permit was put aside for the fall period. That activity ended in January 2009 and had committed to Mr. Elowe that they had started working on their end of the incidental take permit process. They had to write an environmental assessment of what the impact to lynx was from the application for incidental take. Did they agree with the alternatives, conclusions, population size, impacts, etc. They would then put the proposal out for nationwide comment in the Federal Register. That would take 60-90 days. They would get the comments back and make the determination. Mr. Elowe stated they were working on a timeline and could happen before the 2009 trapping season.
Mr. Elowe stated with regards to rulemaking, while the lawsuit hearings were taking place there were 2 lynx caught in conibear traps. The first was caught in a set not technically legal, but the intent was not to be illegal. We needed to clarify the rule we had passed on how to set conibears in trees. We submitted emergency regulations in December 2008 to take care of that situation. Then the second lynx was caught, but not reported. Warden Service discovered this and it was well handled. It was not a legal set. The judge concluded that the 2 lynx caught in conibears actually proved the state’s regulations were good and that if you didn’t follow them you were likely to catch a lynx. That was his decision on the preliminary injunction, there was a request by the plaintiffs for a permanent injunction until we received a permanent injunction. That hearing would be in April 2009.
Mr. Elowe gave commentary on the state of lynx in Maine and their relationship with habitat, coyotes, bobcats and the decrease in deer. Now with an influx of hares northwestern Maine was suitable for lynx.
Council Member Comments and Questions
Mr. Witte asked if the increase in the turkey population was related to increased bobcat activity.
Mr. Elowe stated bobcats statewide were at a low in the 80’s because of competition with coyotes and lack of small game. Also high pelt prices increased harvest. All that had shifted.
Mr. Philbrick stated the reason he had asked for the discussion was for the two serious issues. He had received a number of requests to become more knowledgeable about where we stood with the incidental take permit. He had been asked about the permit process for large corporations, specifically wind generation, anything to do with large tracts of land like Plum Creek. Two specific species were discussed, one being the bald eagle and whether coming off the endangered species list made it easier for corporations to have their way.
Mr. Elowe discussed the delisting of bald eagles. When bald eagles were removed from the state endangered species list, that did not remove protection, they were still a protected resource. The Federal Bald and Golden Eagle Protection Act had a lot of provisions that mirrored the Federal Endangered Species Act in terms of clout. Corporate proposals for permits were still commented on by IF&W. This was similar for lynx.
Mr. Philbrick discussed newspaper articles regarding lynx and the number of phone calls to Council members they generated. At some point he would like a work session to bring the Council up to speed on “sensitive” issues so they could speak knowledgably about the subject.
Commissioner Martin stated that after April 13, 2009 they would be in a better position for briefings. In regards to the Council’s request that they send a letter to the Congressional Delegation, that had been completed and would be sent. They knew that a letter was coming and hopefully that would expedite the process.
2. Discussion on Piping Plover initiative
Commissioner Martin stated the Department felt very strongly that the issue needed to be revisited. The proposal was not passed by a close margin. The Department had met with Mr. Archibald and also with Maine Audubon. Audubon would be given an opportunity to present their case to determine if the issue should be revisited. He asked that they poll Council members to see if there was enough interest in discussing the issue again. If there was enough interest the initiative would start over at Step 1.
Mr. Dunbar stated he supported it last time and would support discussing the issue again.
Mrs. DeMerchant stated she was in support last time and would continue to be in support.
Mr. Philbrick stated he wasn’t in support last time, but he thought discussing it was necessary to resolve the issue. Yes, he would support putting it back on the agenda.
Mr. Usher stated he would be in favor of reconsidering the issue.
Mr. Thurston stated he would reconsider it.
Mr. Goodwin stated he agreed there needed to be further discussion.
Mr. Poulin agreed to reconsider.
Mr. Witte agreed to reconsider.
Mr. Kieffer stated he would be willing to reconsider it.
Commissioner Martin stated he wanted make something clear. At the December meeting there were members that suggested if a particular area was removed from the proposal, they could support the Department’s position. When the Department met with Audubon recently they discussed the possibility of moving forward in a different form to exclude Hills Beach. Maine Audubon would not support that and the Department could not support that. If it moved forward, it would be the entire package.
Mr. Witte stated they would move forward with the issue.
VI. Councilor Reports
Councilors gave reports.
VII. Public Comments & Questions
Gary Archibald, Hills Beach stated when he started the process he was told the final vote was the final vote. It seemed to him from observing that if it was a “yes” vote it was a final vote, if it was a “no” vote it was a maybe. He was not sure how well it would be received by the landowners in Hills Beach. It disappointed him that he had to go through the process again. He felt that going through the public hearing really didn’t mean anything. He thought it was predetermined and it would be supported as a yes. He did question the process. He felt the Council was the only group, in the end, that would listen. It concerned him that the only reason Hills Beach was on the list was because of other factors, not the plovers. The plovers were incidental that met the criteria of the Federal legislation, but in his opinion may not have happened for 10+ years. They were dealing with a group of highly cooperative landowners that were willing to help. He did not know what their reaction was going to be, and he was very disappointed.
Jody Jones, Maine Audubon thanked the Council for reconsidering. She stated she felt she had not done her due diligence in being present when the issue was discussed the first time around and getting information to the Council in a helpful way. She discussed comments from the public hearing that were sent to Council members showing that Hills Beach met the criteria for essential habitat. She then discussed the benefits of having an area designated as essential habitat. It was not a prohibition; it gave IF&W the ability for oversight on permitted activities to reduce impacts to plovers and their nests.
Commissioner Martin stated he would encourage Jody and Gary to meet and review the packet to see if some consensus could be met. He was open to having a second public hearing.
Gary Archibald stated they had heard it all, but felt they should move forward with another hearing.
Commissioner Martin asked that Gary and Jody recommend where and when the Department should hold a public hearing and get back to him
VIII. Agenda Items & Schedule Date for Next Meeting
The March meeting would also be a teleconference meeting and Council members would be receiving an e-mail with the date and other information.
Mr. Philbrick motioned to adjourn the meeting and Mr. Dunbar seconded that. The meeting was adjourned at 12:10 p.m.