Maine Coast News
For immediate Release: February 20, 2002
Contact: Penobscot Bay Watch (207) 594-5717
Maine Legislature's Marine Resources Committee drops "fishpen moratorium" and "living wage" from aquaculture reform bill, but divided vote leaves potential for later re-insertion.
Norwegian firm's US subsidary proposes major re-write to Maine's legislature's aquaculture reform bill.
Augusta. Maine Legislature's Marine Resources Committee yesterday dropped wording ontwo major portions of state's draft bill to reform aquaculture in Maine: a fishpen moratorium in midcoast and southern Maine, and wording calling for aquaculture workers to receive a living wage.
The committee also received what amounts to a nearly complete re-write of the state-crafted bill from a major salmon farming concern. The committee chair has ordered another work session on the bill Thursday.
The committee eliminated, with little discussion, elements of the bill that ordered a moratorium on fishpen aquaculture leasing for the lower half of the Maine coast, and that required that aquaculture industry employees be paid a "living wage". Two committee supporters of those two elements of the bill, however, voted in opposition to the amended bill at a straw vote near the close of the hearing. The divided vote (8-2) gives supporters of the moratorium and the living wage the opportunity to re-insert the moratorium and living wage wording once the bill moves out of the committee.
Industry's proposed re-write of the bill however, would make additional major changes. At last week's public work session of the Marine Resources Committee on the aquaculture reform bill, Committee Chair Senator David Lemoine asked the aquaculture industry to bring them a list of changes that they would like to see.
That list arrived at yesterday's committee work session.
Number one on big industry's wish list is the elimination of all criminal penalties, for violations of any state aquaculture law.
The lawyer representing the industry before the committee, Elizabeth Butler of the Portland law firm Pierce, Atwood, claimed that imposing criminal penalties against violators of aquaculture law would itself violate the Maine Constitution. Her rationale was that the granting of an aquaculture lease is a "civil lease relationship". Therefore only civil sanctions can be prosecuted against aquaculture operations for violating this 'civil lease' law. not criminal sanctions.
As Butler told the committee:
"If its a civil lease relationship the violations are civil, and should remain in that civil zone. If there is something the committee is specific a about something that you perceive needs to be rendered as a criminal provision, that would be isolated and identified with the degree of precision necessary for constitutional muster, then you can make it a criminal law."
However, the committee's legal analyst, and a representative from Maine DEP, noted that the DEP uses the two-tiered civlil penalties/criminal penalties approach to violations.
Below, read industry attorney Elizabeth Butler's description of Atlantic Salmon of Maine's proposed re-write of the Maine Aquaculture reform bill, and questions form the committee followeing her testimony.
--------------------------------------Transcribed--------------------------------------------------
SENATOR LEMOINE: (Displaying document) "Did this come from the industry?"
UNKNOWN VOICE : "Yes."
ELIZABETH BUTLER:
"Chairmon Lemont. My name is Elizabeth Butler, I am an attorney at Pierce Atwood, and represent Atlantic Salmon of Maine. I can walk you through that as a courtesty to expedite matters.
LEMONT: I'd appreciate only the changes the industry proposes, only what the differences are.
BUTLER: "The draft marked "Aquaculture Proposed Compromise Alternative", dated February 19th, first page:
Section 1 of our proposed aquaculture bill would impose civil penalties for violation of any provision of the subchapter, unless expressly otherwise provided. That tracks some of the conversation at the last work session. It does not include this criminal penalty provision .
Section 2 is the aquaculture industry's proposal for resolving the issue of local control vs the state's exclusive authority over submerged land structures. And expressly resolves that in favor of the department's exclusive authority including all structures associated with aquaculture lease operations.
Section 4 is a replication of the committee's bill except it deletes the term "recreational" navigation. 'Navigation is navigation' is the notion, and removes subsection six, the open ended provision that allowed reference to other criteria that may affect recreational uses in the surrounding areas
Section 5 is consistent with the committee's proposed draft except again under the special and experimental leases, it again expressly provides the department exclusive jurisdiction.
Section 6 is as proposed by the committee."
Section 7 is tracking the procedural requirements of the committee's proposed bill."
Section 8 is again tracking the decision criteria as I outlined above for both the standard leases and experimental leases.
Section 9 New section 9 of the aquaculture proposal creates many of the same provisions of the aquaculture monitoring, research and development fund. It provides the same production fee for finfish, provides for the same proposed language for alternative production fee schedules by the commissioner.
It makes a change in Paragraph B about lease and application fees. First it tracks the source of the fee: whether shell or finfish and has sub-funds within the fund. If it comes from shellfish, its tracked and credited to shellfish and only shellfish monies are spent for shellfish purposes. Similarly for finfish.
It also provides that the commissioner's authority to adopt a rule under this section is a 'major substantive rule'.
Finally it forces transparency in the commissioner's proposed fee process. It provides that the commissioner must first provide this committee, in the next legislative session, with a proposed schedule for fee increases, whether production fee, or lease fee, or other fee, and the personnell costs or contracting costs, increases associated with those fee increases. In other words, it forces transparency in the department's proposed increase in taxation for lease fees and user fee dedicated revenues.
The remaining provision of that are largely conforming with the committee's proposed bill.
Finally , Section ten is the aquaculture advisory council. That tracks the committee's bill, with the exception that it again adopts this notion of shellfish-finfish tracking and requires consultation with the affected sector of the industry prior to expenditure of monies under the monitoring fund.
Thank you.
REPRESENTATIVE BULL: I do note that one of the first changes you have here is getting rid of the criminal penalties. We had quite a discussion on this last week. I want to know what the purpose of that is.
BUTLER: There's a very strong sentiment in industry that the current law providing for civil violations on a civil lease is the appropriate controlling law in this case. Unless except as otherwise expressly provided in that provision Again consistent with DMR's current law. Hence we do not agree with the proposal to render the civili lease relationship with the state a criminal one.
BULL: So even if there are some very egregious violations of the law, the most we would be able to do could do is civil penalties?
If its a civil lease relationship the violations are civil, and should remain in that civil zone. If there is something the committee is specific a about something that you perceive needs to be rendered as a criminal provision, that would be isolated and identified with the degree of precision necessary for constitutional muster, then you can make it a criminal law.
But there are two competing notions here. One is civil lease and appropriately civil penalties; the other is that if you are going to move forward on the criminal level it has to pass constitutional muster.
REPRESENTATIVE MCNEIL . If your not going to be under criminal penalties?....(inaudible)
BULL: They're saying that a civil lease agreement, bringing criminal penalties on that, bringing criminal proceedings on a civil lease would be questionable constitutionally>
BUTLER: Two levels Current law is civil lease is civil penalties. Industry is confident that is the appropriate approach. The second is, if you want to create a criminal provision in order to address something that is egregious and goes beyond the relationship, it is important to focus on that particular behavior, articulate it clearly so that it passes constitutional muster.
AlI can tell you right now is that the language that is in the committee bill is somewhat similar to language used in the DEP penalty provisions. There is an issue as to whether a criminal action is specified enough in the law so that someone knows when they 're committing a crime, as opposed to a civil penalty. I think the DEP provision has withstood challenge when there has been one.
SENATOR LEMOINE Any other quesions for the industry on this legislation?
Seeing none. Thank you.
END OF TRANSCRIPT