Fishing surveillance bill amended

AUGUSTA — A bill that would authorize the Department of Marine Resources to conduct surreptitious electronic surveillance of lobster boats drew mixed reviews at a hearing by the Legislature’s Marine Resources Committee in April.

But at a work session last Wednesday, the committee voted to recommend passage of an amended version of the bill.

Introduced by Rep. Walter Kumiega (D-Deer Isle) at the request of the Department of Marine Resources, LD 1379 — as initially formulated — would have given the DMR commissioner authority to approve installation of electronic tracking devices on lobster boats without first getting a warrant from a judge. The approval would have been based on an affidavit from the chief of the Marine Patrol that he had “probable cause” to believe that a civil violation of the laws regulating the placement or hauling of lobster gear had occurred.

At its work session last week, the committee scrapped the idea of authorizing the commissioner to approve installation of tracking devices and took a new approach.

According to committee Co-chairman Kumiega, the committee opted to make four kinds of conduct “associated with fishing over the limit” of traps allowed Class D misdemeanors.

As of now, these violations are civil offenses.

The reason for the change, Kumiega said, is that Marine Patrol officers could not obtain sealed warrants from a judge when the offenses were handled as civil violations.

As criminal offenses, that all would change. Marine Patrol officers would be able to obtain warrants without giving notice to the subject of an investigation.

A little history: For many years, certain fishing violations led to criminal charges and the Marine Patrol could get judicial warrants to install electronic surveillance devices without prior notice to the person under investigation. But, in recent years, the difficulty of obtaining criminal convictions for fisheries violations led the Legislature to convert some of the violations to civil offenses. In those cases, the Marine Patrol must give notice to an alleged offender when applying for a surveillance warrant — reducing to virtually nil the effectiveness of the surveillance.

The bill the committee initially considered would have allowed the DMR commissioner alone to authorize installation of a tracking device that recorded only a vessel’s position and speed using GPS technology. It would not have allowed the installation of any kind of camera or voice recorder without a warrant from a judge.

Testifying on the original bill, DMR Commissioner Patrick Keliher told the committee last month the Marine Patrol was facing increasingly difficult enforcement issues, particularly in the boundary in Blue Hill Bay between lobster zones B and C, but not only there. Last year, disputes among lobstermen in the area led to gear losses of as much as $350,000, according to an estimate by Marine Patrol chief Col. John Cornish.

“Tensions are created by those individuals fishing sunken trawls (without marking buoys), over the trap limit and too much gear outside their home zone,” Keliher testified.

Lobstermen are generally limited to fishing 800 traps and may not set more than 49 percent of their allowable traps in a zone other than their own.

“While I strongly believe that the vast majority of the lobster fishery is honest and law-abiding,” Keliher testified, “our inability to stop the ones who are breaking the law in these ways threatens to erode the stewardship and conservation ethic of which this fishery is so justifiably proud.”

Perhaps surprisingly, the warrantless tracker proposal drew strong support from two of the state’s lobster industry trade associations — the Maine Lobstermen’s Association and the Downeast Lobstermen’s Association.

Patrice McCarron, the executive director of MLA, said that better enforcement of the state’s lobster laws was the organization’s “top priority” for 2017.

“The industry has become increasingly concerned with the number of lobstermen who are giving in to greed,” she told the committee. With each new incident, she continued, “the lobster industry’s culture of stewardship begins to fade.”

John Drouin, chairman of the Zone A Lobster Management Council, said the majority of the fishermen in that zone support the bill.

“We need to be able to get the proper evidence to make strong cases and get these crooks and thieves off of the water,” he said. “The current way doesn’t seem to be working, so that means we need to try a different approach.”

Support for LD 1379 was hardly universal.

Oami Amarasingham, advocacy director for the American Civil Liberties Union of Maine, said that while LD 1379 was “cloaked in the language of the Fourth Amendment,” it would violate the constitutional rights of Maine lobstermen and “actually drastically expands the government’s ability to track lobstermen without any limits at all.”

The Maine Lobstering Union also opposed the bill, complaining that it took a scattershot approach to solving very limited problems. Of particular concern to several union members was the DMR commissioner’s apparently unfettered discretion to approve tracker installations.

The Maine Association of Criminal Defense Lawyers also objected to what it characterized as “secret warrants” and “covert electronic surveillance” on lobster boats.

“It is hard to imagine a more significant violation of a person’s constitutional right to be free from unreasonable searches and seizures than a provision that allows an agency commissioner, not a judge, to authorize the secret placement of tracking for surveillance on a vessel upon suspicion of a civil offense,” MACDL President Walter McKee testified.

The amended version of the bill puts the approval of surveillance back in the hands of the judiciary.

“We eliminated the commissioner’s authority [to approve trackers] entirely,” Kumiega said.

In another bill, LD 575, the committee gave the commissioner the authority to suspend fishing licenses of lobstermen convicted of a variety of crimes “related to commercial fishing activities” such as sinking or burning a fishing boat. Those suspensions could range from three to four years for a first offense and from six years to a permanent suspension for a second offense.

“Some bad guys do a lot of damage and that kind of activity is like a cancer,” Kumiega said. “Fines are not a deterrent. The loss of license is what people are afraid of.”

As of Monday afternoon, the text of the amended version of LD 1379 was not available on the Legislature’s website and Julia Brown, the Marine Resources Committee clerk, said the final language was still being drafted. According to Kumiega, the final version of the bill is likely to be ready for review by the committee at its Wednesday work session.

Stephen Rappaport

Stephen Rappaport

Waterfront Editor at The Ellsworth American
Stephen Rappaport has lived in Maine for nearly 30 years. A lifelong sailor, he spends as much time as possible messing about in boats. [email protected]

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