H.P. 1523 - L.D. 2145
An Act Concerning the Taking of Marine Resources by Members of the Passamaquoddy Tribe
Emergency preamble. Whereas, Acts of the Legislature do not become effective until 90 days after adjournment unless enacted as emergencies; and
Whereas, it is imperative that this Act take effect before the expiration of the 90-day period so that members of the Passamaquoddy Tribe may exercise the licensing provisions of this Act for the spring and summer fisheries; and
Whereas, in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 12 MRSA §6302-A is enacted to read:
§6302-A. Taking of marine organisms by Passamaquoddy tribal members
1. Tribal exemption; commercial harvesting licenses. A member of the Passamaquoddy Tribe who is a resident of the State is not required to hold a state license or permit issued under section 6421, 6501, 6505-A, 6505-C, 6535, 6536, 6601, 6701, 6702, 6703, 6731, 6745, 6746, 6748, 6748-A, 6748-D, 6751 or 6803 to conduct activities authorized under the state license or permit if that member holds a valid license issued by the tribe to conduct the activities authorized under the state license or permit. A member of the Passamaquoddy Tribe issued a tribal license pursuant to this subsection to conduct activities is subject to all laws and rules applicable to a person who holds a state license or permit to conduct those activities and to all the provisions of chapter 625, except that the member of the tribe:
A. May utilize lobster traps tagged with trap tags issued by the tribe in a manner consistent with trap tags issued pursuant to section 6431-B. A member of the tribe is not required to pay trap tag fees under section 6431-B if the tribe issues that member trap tags;
B. May utilize elver fishing gear tagged with elver gear tags issued by the tribe in a manner consistent with tags issued pursuant to 6505-B. A member of the tribe is not required to pay elver fishing gear fees under section 6505-B if the tribe issues that member elver fishing gear tags; and
C. Is not required to hold a state shellfish license issued under section 6601 to obtain a municipal shellfish license pursuant to section 6671.
2. Tribal exemption; sustenance or ceremonial tribal use. Notwithstanding any other provision of law, a member of the Passamaquoddy Tribe who is a resident of the State may at any time take, possess, transport and distribute:
A. Any marine organism, except lobster, for sustenance use if the tribal member holds a valid sustenance fishing license issued by the tribe. A sustenance fishing license holder who fishes for sea urchins may not harvest sea urchins out of season;
B. Lobsters for sustenance use, if the tribal member holds a valid sustenance lobster license issued by the tribe. The sustenance lobster license holder's traps must be tagged with sustenance use trap tags issued by the tribe in a manner consistent with trap tags issued pursuant to section 6431-B; however, a sustenance lobster license holder may not harvest lobsters for sustenance use with more than 25 traps; and
C. Any marine organism for noncommercial use in a tribal ceremony within the State, if the member holds a valid ceremonial tribal permit issued to the tribal member by the Joint Tribal Council of the Passamaquoddy Tribe or the governor and council at either Passamaquoddy reservation.
For purposes of this subsection, "sustenance use" means all noncommercial consumption or noncommercial use by any person within the Passamaquoddy reservation at Pleasant Point or Indian Township or at any location within the State by a tribal member, by a tribal member's immediate family or within a tribal member's household. The term "sustenance use" does not include the sale of marine organisms. A member of the Passamaquoddy Tribe who takes a marine organism under a license or permit issued pursuant to this subsection must comply with all laws and rules applicable to a person who holds a state license or permit that authorizes the taking of that organism, except that a state law or rule that sets a season for the harvesting of a marine organism does not apply to a member of the Passamaquoddy Tribe who takes a marine organism for sustenance use or for noncommercial use in a tribal ceremony. A member of the Passamaquoddy Tribe issued a license or permit under this subsection is exempt from paying elver gear fees under section 6505-B or trap tag fees under section 6431-B and is not required to hold a state shellfish license issued under section 6601 to obtain a municipal shellfish license pursuant to section 6671. A member of the Passamaquoddy Tribe who fishes for or takes lobster under a license or permit issued pursuant to this subsection must comply with the closed periods under section 6440.
3. Lobster and sea urchin licenses; limitations. The Passamaquoddy Tribe may not issue pursuant to subsection 1:
A. More than 24 commercial lobster and crab fishing licenses in calendar year 1998, including all licenses equivalent to Class I, Class II or Class III licenses and student licenses, but not including apprentice licenses. Any lobster and crab fishing license issued by the tribe after calendar year 1998 is subject to the eligibility requirements of section 6421, subsection 5; and
B. More than 24 commercial licenses for the taking of sea urchins in any calendar year. Sea urchin licenses must be issued by zone in accordance with section 6749-P.
4. Sea urchin and scallop handfishing and tender licenses; limitations. The Passamaquoddy Tribe may not issue a license or permit pursuant to subsection 1 or 2:
A. For the harvesting of sea urchins or scallops by hand unless the license or permit applicant meets the diver competency requirements of section 6531; and
B. For the tending of a person who fishes for or takes scallops or sea urchins by diving unless the applicant meets the safety training requirements of section 6533.
5. Notification. Subsections 1 and 2 do not apply to a member of the Passamaquoddy Tribe unless a copy of that member's tribal license or permit is filed with the commissioner by the tribal licensing agency or a tribal official in accordance with section 6027.
6. License suspension. If a member of the Passamaquoddy Tribe issued a license or permit under this section is convicted of a violation for which a license suspension is mandatory under chapter 617, the commissioner shall suspend that member's license or permit for the specified period. If a member of the Passamaquoddy Tribe issued a license or permit under this section is convicted of a violation for which the commissioner may suspend a license, the commissioner may suspend that member's license or permit in accordance with chapter 617.
7. Enforcement. A violation of a marine resources law or rule by a member of the Passamaquoddy Tribe who is issued a license or permit pursuant to this section must be enforced pursuant to chapter 609. A member of the Passamaquoddy Tribe who is issued a license or permit pursuant to this section must possess and exhibit that license or permit in accordance with section 6305 and must comply with the provisions of section 6306 regarding inspections and searches by marine patrol officers for violations related to licensed or permitted activities.
8. Resident of the State defined. For the purposes of this section, "resident of the State" means a member of the Passamaquoddy Tribe who is eligible to obtain a state resident license under section 6301, subsection 1.
Sec. 2. Report. The Maine Indian Tribal-State Commission shall study any question or issue regarding the taking of marine resources by members of the Passamaquoddy Tribe and the Penobscot Nation. The commission shall report any findings and recommendations to the Joint Standing Committee on Marine Resources by December 15, 1998.
Sec. 3. Relation to "An Act to Implement the Maine Indian Claims Settlement." This Act is not an amendment to the Maine Revised Statutes, Title 30, chapter 601, An Act to Implement the Maine Indian Claims Settlement, and is not subject to ratification by the Passamaquoddy Tribe pursuant to United States Code, Title 25, Section 1725(e)(1). If a court of competent jurisdiction finds that this Act or any portion of this Act alters any provisions of Title 30, chapter 601 so as to constitute an amendment to Title 30, chapter 601, this Act or that portion of this Act, if separable, that constitutes an amendment to Title 30, chapter 601 is void.
Emergency clause. In view of the emergency cited in the preamble, this Act takes effect when approved, except as otherwise indicated.
Effective April 3, 1998, unless otherwise indicated.
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