Advisory Council Meeting Minutes

September 27, 2009 – 6:00 p.m.
Presque Isle Fish and Game Club
Parsons Road, Presque Isle, ME


Roland D. Martin, Commissioner
Andrea Erskine, Assistant to the Commissioner
Sandy Ritchie, Habitat Conservation Biologist
Lee Kantar, Wildlife Biologist
Rich Hoppe, Wildlife Biologist
Joe Dembeck, Fisheries Biologist
Richard Dill, Fisheries Biologist
Lt. Shon Theriault, Warden Service
Sgt. Brian Gray, Warden Service
Sgt. Dan Menard, Warden Service
Sgt. Tom Ward, Warden Service

Council Members:

Mike Witte, Chair
Ron Usher, Vice Chair
Joe Clark
Al Goodwin
Cathy DeMerchant
Dick Thurston
Frank Dunbar

15 members of the public

I. Call to Order                          
Mr. Witte, Council Chair, called the meeting to order.

II. Introductions

Introductions were made.

III. Acceptance of Minutes of Previous Council Meeting

Motion made by Mr. Thurston and seconded by Mr. Usher to accept the minutes of the previous meeting.

Vote: 6 in favor; 1 abstained (Mr. Clark) - minutes accepted.

IV. Rulemaking

Step 3

1. Piping Plover Essential Habitat

Mr. Goodwin stated he would like to review the mission statement of the Advisory Council’s role.  “The Council shall render to the Commissioner information and advice concerning the administration of the Department and other duties.”  On the issue of piping plovers, he stated they were about to undertake a task that the Federal Congress could not do, the State Legislature could not do, and the Governor could not do.  They thought the Council with 7 members present could do it, and Mr. Goodwin stated they should never do what they were attempting to do.  They were promoting a taking of land from people of the State of Maine and when they got wind of it, they were going to tar and feather them if they let it in.  He asked Commissioner Martin to remove the agenda item from the table and not take it up.

Commissioner Martin stated he felt the Department needed to make their presentation and brief him on what was being removed from the initiative that was discussed at Step 2.

Mrs. Ritchie stated the essential habitat provision under the Maine Endangered Species Act had been a tool we used for 15 years and its most recognized form was to protect bald eagle nesting habitat.  The proposal was to incorporate the essential habitat designation of areas for least tern and piping plovers.  We had removed the Hills Beach area from the proposal.  Later on we would be meeting with a stakeholder group comprised of landowners and Department officials down in that area to develop a document and look at ways we could conserve least terns and piping plovers in the Hills Beach area.

Mr. Clark stated that Hills Beach had been removed from the proposal.  Would the stakeholder group come back to the Advisory Council and ask to be added on at a later date?

Mrs. Ritchie stated our hope in working with the group was that we would be able to develop another tool.  We had worked with many municipalities and developed management agreements in lieu of designating something as essential habitat.  Our desire was to work with the group and develop some other method of conserving least terns and piping plovers in lieu of essential habitat because essential habitat was so opposed there.  If the working group did not pan out and we were unable to develop a document then it would be up to the Commissioner to determine how to proceed at that point.

Mr. Clark asked if a stakeholder group had been developed for the area they were voting on to try to avoid it as well.

Mrs. Ritchie stated the areas in Cape Elizabeth and Old Orchard Beach were municipalities and we had received no opposition to those areas.  The opposition we received was only from the landowners associated with Hills Beach.  Hills Beach had been removed from the proposal.  The stakeholder group would be for Hills Beach only.

Commissioner Martin stated there had been a full blown discussion at Step 2 and not knowing if there was support from the Council at Step 3 he had specifically asked that question.  It was obvious that a majority had wanted to move forward to Step 3 with the understanding that Hills Beach area would be removed.  That’s what had been done.

Mr. Goodwin stated what he heard that night, and what he’d heard before was that IF&W working with Audubon and cities and towns, we should be working with the landowners, the people that owned the beaches where the birds flew in sporadically.  What he had heard over the last 6 or 7 years was that it had been working fine at that level.  When the birds flew in, people contacted the owners of the land and they were allowing them to take specific care of the birds that flew in.  That’s what we needed to do and not put together a plan that was a taking.  The Council should not do this.  He did not believe it was constitutional and they should not be doing this and putting the Department in a position against landowners.

Mr. Witte stated he had studied and listened to this and he thought the misnomer was the Department’s role in this was to be involved in the permitting process of things that took place on a major scale on that beach.  An example was if they wanted to replace the sand on the beach with the Army Corp of Engineers, it would allow IF&W to sit in on the permitting process.  In many cases this could be to the advantage of the landowners.  Permits for fireworks, it would give us the opportunity to sit in and work something out so that the fireworks could be moved further down the beach away from nests.  As far as jeopardizing individual landowners, that was a misconception. 

Mr. Clark stated he would be voting against the proposal for the simple reason that the towns and cities and the people involved with the stakeholder group should have gotten together and tried to come up with a solution.  We needed to make sure we had communication with the towns and the cities and with the stakeholders and try to make this more feasible for everybody around.  With the delisting of the bald eagle, agenda item 4, he thought a lot more of that would take place if we had more compromise and communication with the other people involved.

A motion was make by Mr. Usher to accept the proposal and that was seconded by mr. Thurston.

Vote: 4 in favor; 3 opposed - proposal accepted.

2. 2009 Fall Turkey Season: open WMD 12, fall archery

Mrs. Ritchie stated the regional staff in Regions A and D concurred that the population was large enough and harvest rates had been stable over the last year so that it warranted providing hunting opportunity in that area.  That was also under concurrence of our turkey biologist Kelsey Sullivan.

A motion was made by Mr. Usher to accept the proposal and that was seconded by Mr. Thurston.

Vote: 6 in favor; 1 opposed - motion passed.

3. 09-10 Beaver Closures and Fur Trapping/Hunting Seasons

Mrs. Ritchie stated the proposal extended the beaver season in WMDs 1, 2 and 4 to coincide with the opening of the early canid season.  Hopefully we would attract greater trapping pressure in the area where industrial landowners were having major issues with nuisance beaver.  By doing so the season would start on October 18th and would end April 30.  We also modified the setback requirements from active dams.  We were not requiring any setback in WMDs 1, 2 4, 8, 9 and 10.  We were eliminating the setback requirement to see what impact, if any, it would have on the take of otter.  We had sought guidance from the MTA and they concurred with not requiring any setback in WMDs 1, 2, and 4.

Commissioner Martin asked Mrs. Ritchie to talk about the e-mail that was sent by Mark Stadler regarding the conference call that Mrs. DeMerchant, Mr. Witte and Mr. Goodwin participated in. 

Mrs. Ritchie stated that the MTA approached the Department regarding using covered float traps for muskrat during the spring season.  The Department initially was opposed to that because of concerns about the muskrat population but at the request of Council members at the last meeting a conference call was held to discuss all the issues associated with muskrat trapping and after hearing all the issues, IF&W remained opposed to proceeding with covered float sets, largely because of regional concerns about declining muskrat populations and that there were two other traps currently available for taking muskrat, the colony trap and the conibear.  Mr. Stadler outlined the results of that meeting and e-mailed that to the Council stating if there was any opposition to notify the Commissioner.

Commissioner Martin clarified that we would not be moving forward with covered float sets.

Mrs. Ritchie stated there was one other change in the rule that was advertised.  Region B staff received a request from a landowner located in the town of Northport to close his property to beaver trapping in WMD 25.  We wanted to include that as part of the rule.

Mr. Witte stated some people may not know what “setback” meant and suggested that be explained.

Mrs. Ritchie stated there had been a setback requirement where they could set the trap 25 feet from the dam and 10 feet from the house and we were proposing to eliminate that in WMDs 1, 2, 4, 8, 9 and 10 and would sunset in April 2011.

Mrs. DeMerchant stated she did not think it would be a problem to use the covered float sets for 2 weeks.

Mr. Witte stated he felt that way also.

Commissioner Martin asked why no one had contacted Andrea or himself before the meeting?

Mr. Clark stated it appeared to be a computer glitch with the e-mails.

Mr. Witte stated he did not see the e-mail until he was e-mailing with Mrs. DeMerchant. 

Mrs. DeMerchant stated she did attempt to get in touch with Mr. Simko as well but he did not respond to the e-mail.

Commissioner Martin stated the initiative that was being discussed, the float sets, when the proposal was crafted at Step 1 and at Step 2, was the initiative in the proposal? 

Mrs. Ritchie stated no, and it wasn’t currently.

Commissioner Martin stated there was nothing there for anyone to vote for regarding the issue.  We would take a look at it for next year as there appeared to be some interest.

A motion was made by Mr. Usher to accept the proposal and that was seconded by Mr. Witte.

Vote: Unanimous - motion passed.

4. Elimination of Bald Eagle Essential Habitat designation and "Housekeeping" revisions to ET rule

Mrs. Ritchie stated the rule would do two things.  We had delisted the bald eagle which meant it was no longer listed as endangered or threatened in Maine which meant we no longer needed the essential habitat provision that was in place for the last 15 years.  We were recommending that the essential habitat designation be removed.  The second thing was that the rule took care of some general housekeeping items regarding endangered and threatened issues.  It corrected some scientific names and minor procedural things.  The major thing the rule did was eliminate the essential habitat provision for bald eagles.  That didn’t mean the bald eagles didn’t have any protection.  They were still protected under the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act and by provisions in Maine.  There were no changes from Step 2.

A motion was made by Mr. Usher to accept the proposal and that was seconded by Mr. Goodwin.

Vote: 6 in favor; 1 opposed - motion passed.

5. Emergency Rule - Any-deer Permits

Mrs. Erskine stated we were doing this as an emergency rule.  We would skip the first 2 steps and go right into adoption.  It could only remain in effect for 90 days, but the purpose of the rule was after the antlerless deer permits were drawn when the programmer was running the check program he discovered there were 755 permits that should have been issued, that were not pulled out as part of the drawing.  This was to correct that mistake.  We had to increase the percentage of permits going to Superpack holders for 2009 and when that was programmed in to occur, it affected permits in one of the other categories so that 755 permits that should have been issued were not.  The 755 permits were being added into the WMDs that were listed on the rulemaking notice.

Commissioner Martin stated there had been a lot of discussion with the Attorney General’s Office.  Because of the clerical mistake there were 755 people out there, especially Superpack license holders that should be entitled to a permit.  The AG’s office advice was the only way it could be done was through an emergency provision.

Mr. Clark stated he thought this was the second time we’d had problems with the Superpack licenses, was it more of a hindrance than a plus to the sportsmen?

Commissioner Martin stated that every legislative session there was a change or amendment to the Superpack license concept.  It was very challenging but the Legislature wanted it and it had to be implemented.

Mr. Witte asked how the people were going to be notified.

Mrs. Erskine stated we would mail them the permit numbers with a letter explaining why.

A motion was made by Mr. Usher to accept the proposal and that was seconded by Mr. Thurston.

Vote: unanimous - motion passed.

Step 2

1. 2010 Spring Turkey

Mrs. Ritchie stated we were not proposing any changes to the 2010 season except we wanted to make the season dates reflect the 2010 calendar.  She gave an update on the Turkey Working Group.  They had just concluded 3 meetings with a diverse group, dairy farmers, blueberry growers, small farmers, sporting interests, landowners, etc.  Some good recommendations came out of the group.  A final report was being prepared to present to the Legislature in January 2010.  The Legislature would be the first to see that report.  The Group had been asked to consider 3 things; nuisance issues, expanding hunting opportunity and using turkey to move into electronic tagging.  Regarding nuisance turkey issues she thought we had a good process to put in place.  We would be working with the National Wild Turkey Federation and possibly other sporting interests to help the Department work with landowners and address nuisance turkey issues.  Expanding hunting opportunity, she thought the group overall wanted the Department to move slowly and evaluate changes that had already taken place.  Recommendations that came out of the group were unanimously endorsed by every member.

2. Fishing Regulations

Mr. Dembeck stated he was one member of the group that for the last 18 months had been consolidating the two lawbooks.  It would also be a 2-year lawbook instead of an annual one.  The reason for the consolidation was partly to save money and also to come inline with other states.  We were the only northern tier state with two books.  The Council should have received an e-mail with an addendum attached that consisted of 5 specific rulemaking proposals that were brought forth after the last Council meeting through public comment and staff decided to move forward with them.

Mr. Dembeck discussed Hay Pond.  Hay Pond was a wild brook trout pond in Penobscot County that in 2001 we inadvertently left off the closed to ice fishing list in the ice fishing law book.  It took several years to realize that mistake had occurred.  It wasn’t until winter of 2008 that anglers took advantage of that mistake and the local warden brought that to the regional biologist’s attention and based upon that we wanted to make it a rulemaking proposal.  The regulation would become effective January 1, 2010 and the rest of the rulemaking proposed would take effect April 1, 2010.

Mr. Dembeck stated there had been 3 public hearings held in Princeton, Dover-Foxcroft and Auburn.  Hearings were lightly attended and some comments were made.  At the Princeton hearing East Grand Lake was discussed and there was concern that the regulation was different from the Canadian regulation.  The second aspect was enforcement of the 2-line open water fishing regulation. 

Mr. Goodwin stated at the public hearing there was a lot of discussion on S-15.  The discussion he picked up on was that they would like to drop the 2 fish limit to 1 and all fish over 14” or 18” would go back.  The other issue was the Canadians.  There was an imaginary line.  A common occurrence there, including the St. Croix River, when putting in a canoe in Woodland, Maine and going north half the time you’re in Canada the other half you’re in Maine.  East Grand, you can fish the lake but if you step ashore in Canada, you need a Canadian license.  If you stay in the boat you should be protected under Maine law and the Canadians should be protected the same way. 

Mr. Dembeck stated the S-15 regulation received the most interaction during the hearing.  The comments were that they felt the regulation was not restrictive enough given the amount of fishing pressure on those waters and the potential harvest that was occurring and given the age of the fish. 

Commissioner Martin stated there were 5 or 6 guides at the hearing that had been conferring with Rick Jordan on the issue and they were all of the same opinion that there should be better protection.  However, he was not sure that everybody was on the same page and understood the intent.  The other issue regarding change on a border water, there needed to be a mutual agreement and that process had not been completed yet.  Regarding the public hearing in Dover, there were no comments there except one positive comment.

Mr. Dembeck stated he felt the hearing in Dover was testament that staff had worked with the Moosehead Group in making certain regulations they were proposing so there was agreement on that.  The public hearing in Auburn the comments most discussed were the Sebasticook River and the removal of Fort Halifax Dam.  Another initiative was discussed, Webb Lake and opening those tributaries to smelt dipping in the spring.  A member from the lake association was there in opposition because of access issues.  The other water body that was most discussed was Azicohos Lake.  We had liberalized the salmon regulations there but some individuals felt that it wasn’t enough; a smaller size was required because of the fact that in data collections a lot more smaller fish were showing up in creel surveys. 

Mr. Dembeck stated one issue that was mentioned at every meeting and they had been hearing a lot was regarding the first draft of the combined lawbook.  On the northern and western counties we broke those into two sections, one that was open to ice fishing and open water and waters open only to open water.  The comment most often heard was that was confusing.  We were looking at ways of making that more comprehensible. 

Mr. Thurston asked about the size of the lawbook going to 8 ½ x 11, where were we with that?

Mr. Dembeck stated we would be adding maps and other information that was not included in the draft.  We felt that an 8 ½ x 11 size would provide a lot more opportunity for presentation of maps, graphics and other information that may become more germane in the future.  The other aspect we felt important was because of computer access nowadays to the lawbook, people may lose their lawbook and if they printed one off their computer it would be identical to what was handed out.  Most states providing lawbooks used this size.

Mr. Thurston asked about printing costs. 

Mrs. Erskine stated they had met with the current printer to talk about cost, increasing the size, etc.  We would cut down on distribution costs because it would be a 2-year lawbook and that needed to be factored in.

Mr. Dembeck stated if he recalled, the 8 ½ x 11 size was cheaper page for page compared to a smaller book.

Step 1

1.  Whitewater Rafting
Lt. Theriault discussed items in the handout.  This would clarify language changes in Chapter 14 to mirror changes in the commercial whitewater industry.  The biggest part of the changes would be recommendation 1, classifying the South Branch of the Penobscot River as a rapidly flowing river.  The rest of the changes would be pretty standard from previous years. 

2.  2010 Moose Season
Mr. Kantar stated he would break this into two parts.  The first part would be the straight forward allocations by law as management districts we were recommending for 2010 and then part two would be to talk about and address the request by the Legislature regarding the potential change in management for WMD 2. 

Mr. Kantar stated that although Maine had a moose hunt since 1980 it had only been since 2001 that the Department was given the authority over the number and type of permits issued as well as the season dates.  Only since 2002 had we been consistent with the number of permits allocated by WMD and seasons had stayed pretty much the same.  That was important when it came time to analyze what was going on with the moose population.  2003 was another critical point when we went from issuing any-moose and antlerless only permits to the current system of bull only, antlerless only permits.  It gave us a very good tool in predicting what annual harvest was.  For every WMD we had publicly derived goals and objectives that were set back in 2000 by the Big Game Working Group that gave us our marching orders at to where moose populations should be.

Mr. Kantar stated we were recommending 2,985 permits for 2010 and went over WMD allocations (see packet).  A couple things they had to keep in mind when managing moose was to look at the population every year in respect to how much habitat was out there.  We looked at how many moose we were carrying in a particular area and how that may or may not be affecting the habitat.  Population trends were looked at.  The population structure of bulls was also carefully looked at.

Commissioner Martin stated he would pick up the discussion regarding WMD 2.  As the result of a public hearing held in Caribou 2 or 3 years ago regarding moose, Representative Troy Jackson who was now on the State Senate was successful in enacting a resolve.  The resolve was a directive to the Department.  The classification of WMD 2 must be the same as that of WMD 3 for purposes of moose hunting.  Currently WMD 2 was classified as a recreational zone, WMD 3 was classified as a compromise zone.  The Legislature had said, notwithstanding what any biologist or working group had determined, they were telling us to take WMD 2 which was a recreational zone and classify it as a compromise just like WMD 3.  The recommendation from a biological point of view was to issue 250 permits as opposed to the 95 that were issued last year in WMD 2.

Commissioner Martin stated there were some that were supportive of the resolve, specifically Senator Jackson who introduced it, that further said if WMD 2 was going to be a compromise zone it must be the same numbers as WMD 3.  The Attorney General’s office determined it did not have to be the same number of permits, just classify it and based on the moose population the Department determine the number of permits. 

Mr. Kantar stated that in conjunction with this we were asked to take a look at a third week of hunting.  What that would mean was WMDs 2, 3, 6 and 11 would have a third week.  We would recommend as part of that the third week would fall in October, it would be consecutive of the October season so 2 weeks in a row.  He wanted to clarify that people should not confuse the third week to mean more moose permits.  It simply meant there had been interest in a third week and whatever the permit allocations were based on the biology and working group recommendations and take those permits and divide them by 3 for the 3 weeks.

Council Member Comments and Questions

Mr. Clark stated he had been e-mailing with Mr. Kantar regarding moose casualties with automobiles.  When Mr. Kantar looked at his data from the recreational zones like 9 and 10 going up I95 from Bangor to Houlton and also Rt. 1 from Houlton to Madawaska, were those accidents interpreted in his overall permit numbers for moose?

Mr. Kantar stated no.

Mr. Clark asked why WMD 9 only had 50 permits and WMD 10 had 110 with the dividing line being Rt. 11 (Brownville Road).

Mr. Kantar stated if you looked at WMDs 9 and 10 you had to look at what the goals and objectives were for the districts.

Mr. Clark stated a lot of people he had talked to the last couple of years were afraid to hunt those areas, especially where that dividing line was, because of where the moose came out on the Brownville Road.  He traveled that road every day and saw a lot of moose between Millinocket and Brownville.  He knew of hunters that had permits in WMD 10, but could not get the moose to cross the road.

Mr. Kantar stated WMDs 9 and 10 the objective was to balance concern with moose vehicle collisions and the desire to provide excellent hunting and viewing opportunities.  WMD 9 was really a telling case as far as wildlife viewing and the importance of that to the State.  The bottom line was that the objectives for 9 and 10 and where the moose population was, was what directed us to whether we were going to add or subtract permits.  WMD 9 had been at target with the same amount of permits, WMD 10 had been below objective.  If you had a moose population under objective there was no rationale to increase moose permits.  The road collisions were another issue.  How many moose were we going to remove from an entire management district to get to the point where you would reduce the probability of someone hitting a moose?  That was a difficult question and needed to be approached in other ways.  As far as boundaries were concerned we already had the mandate on how the WMDs had to be drawn out and recognizable by people.

Commissioner Martin asked if the allocations might be modified based on the 2009 harvest numbers.

Mr. Kantar stated we had a system in place so we could get 2009 data before we had to make recommendations for 2010.

Mr. Witte asked about success rates, the rates had been dropping, and if we were accomplishing the objectives we wanted to accomplish if the percentages took a drop this season vs. the projection.

Mr. Kantar discussed success rates.  If you looked over the most consistent set of years where we had been harvesting moose from 2003 – 2008 the success rates didn’t seem to matter.  Success rate was a difficult thing to judge as to what that meant to the population itself.

V. Other Business

There were no agenda items under Other Business.

VI. Councilor Reports

Councilors gave reports.

VII. Public Comments & Questions

There were no public comments or questions.

VIII. Agenda Items & Schedule Date for Next Meeting

The next meeting was scheduled for Thursday, October 29, 2009 at Bald Mountain Camps in Oquossoc beginning at 10:00 a.m.  The Council did not meet in November.  The December meeting would be held on Thursday, December 3, 2009 at 9:30 a.m. at the Augusta Headquarters. 

IX. Adjournment  

Mr. Clark motioned to adjourn the meeting and Mr. Thurston seconded that.  The meeting was adjourned at 8:30 p.m.