THE STANDING SENATE COMMITTEE ON FISHERIES AND OCEANS
EVIDENCE
OTTAWA, Thursday, March 21, 2024
The Standing Senate Committee on Fisheries and Oceans met with videoconference this day at 9 a.m. [ET] to study the federal government’s current and evolving policy framework for managing Canada’s fisheries and oceans including maritime safety; and, in camera, to examine and report on Canada’s seal populations and their effect on Canada’s fisheries.
Senator Fabian Manning (Chair) in the chair.
[English]
The Chair: Good morning. My name is Fabian Manning, senator from Newfoundland and Labrador, and I have the pleasure of chairing this meeting.
Today, we are conducting a meeting of the Standing Senate Committee on Fisheries and Oceans. Should any technical challenges arise, particularly in relation to interpretation, please signal this to me or the clerk and we will work to resolve the issue.
Before we begin, I would like to take a few moments to allow the members of the committee to introduce themselves.
Senator Kutcher: Stan Kutcher from Nova Scotia.
Senator McPhedran: Senator Marilou McPhedran from Manitoba.
Senator Ravalia: Mohamed Ravalia from Newfoundland and Labrador.
Senator C. Deacon: Colin Deacon from Nova Scotia.
Senator Busson: Welcome. I’m Bev Busson from British Columbia.
Senator Petten: Iris Petten from Newfoundland and Labrador.
Senator Cordy: Jane Cordy from Nova Scotia.
Senator Cuzner: Rodger Cuzner from Nova Scotia. Commissioner, we crossed paths when I served as consul general down in Boston on right whale issues a number of years ago. Good to see you again.
The Chair: On February 10, 2022, the Standing Senate Committee on Fisheries and Oceans was authorized to study the federal government’s current and evolving policy framework for managing Canada’s fisheries and oceans.
Today, under this mandate, the committee will be hearing from Commissioner Patrick C. Keliher from the Department of Marine Resources, or DMR, of the State of Maine.
On behalf of the members of the committee, I want to thank the commissioner for taking the time to join us this morning.
I understand that the commissioner has some opening remarks. Following those remarks, I’m sure senators will have questions for you. Commissioner, the floor is yours.
Patrick C. Keliher, Commissioner, Department of Marine Resources, State of Maine: Good morning. Thank you, Senator Manning and honourable members of the committee. I serve at the pleasure of the Honourable Janet Mills, Governor of the State of Maine.
The DMR manages 70 marine or diadromous species that are harvested commercially, grown by aquaculturists or caught by recreational fishermen. In 2023, Maine landed over $600 million worth of products, with the final value to Maine’s economy estimated at well over $2.5 billion.
While lobstering makes up over 70% of Maine’s landed value, our elver fishery has a landed value of $20 million and is our second most valuable species.
Before I speak about changes to our elver statutes and rules that govern the fishery, it’s important to point out that the American eel is managed under an interstate compact that was established by the U.S. Congress in the 1940s. This compact established the Atlantic States Marine Fisheries Commission, or ASMFC, made up of coastal states from Maine to Florida. The commission establishes a fisheries management plan for species that cross between state jurisdictions and are harvested in waters within three nautical miles from shore.
Because Maine has the only substantial elver fishery south of Canada, our fishery has often been the focus of significant attention from the other states that are members of the commission. At times, they have believed that our fishery was responsible for enabling illegal or black market elvers from their states to be sold into Asian markets.
Maine has had an elver fishery since the early 1970s. For most of those years, we saw very low prices and very few issues; however, in the late 1990s, the price of elvers jumped to over $300 per pound.
Poaching skyrocketed, and the state began establishing conservation measures to bring the fishery under control. At that time, the Maine Legislature heard a bill that proposed to end the fishery, but instead took action to get control of it by cutting the number of licence holders by over 70%, removing 75% of the gear from Maine’s waters.
The fishery seemed to be normalizing, and for the next decade there were very few issues. By 2007, we once again started to see an expansion of illegal activity and black market eels coming into Maine.
In 2012, I proposed legislation to regain control of the fishery with a bill that established a three-year licence suspension for the first elver offence and a permanent revocation for the second. Compliance by licensed harvesters grew to nearly 98% the following year. In 2013, we passed a second set of laws that established restrictions related to our four federally recognized tribes. These changes included capping the number of licences based on a tribe’s history of recent participation within the elver fishery. We also added requirements that applied to both tribal and non-tribal harvesters that prohibited the use of cash, converted elver violations from civil to criminal and provided authority to the Maine Marine Patrol to seize elvers from a dealer if a summons was written.
While the changes were very effective, three additional critical steps needed to be taken in 2014. First, Maine had to ensure that we could limit our overall catch of the quota that had been mandated by the commission, which is just under 12,000 pounds. We did this by establishing an individual quota system based on an individual harvester’s history, and developed a transaction card that allowed Maine to monitor the harvest in real time. We also established a pecuniary gain process so that any individual who exceeds their individual quota must pay back the value of that catch to the department.
Because drafting this law took longer than anticipated, the Maine Legislature delayed the opening of the 2014 season, allowing the agency to calculate the individual quotas. In 2014, the four federally recognized tribes were also allocated 21.9% of the overall state quota.
In 2015, we established the elver export licence. This allowed us to seal all containers of elvers and track these shipments as they left the state. This allowed for better sharing of information with the U.S. Fish and Wildlife Service, the federal agency that inspects all elver products leaving the U.S.
In 2016 and 2017, we made some additional changes to our statutes that allowed additional flexibility for harvesters and also established a lottery for state-issued licences, to maintain the number at 425 non-tribal licences.
The Maine Eel and Elver Fishery opens tomorrow. As in past years, we believe it will end in less than 45 days, allowing over 700 tribal and non-tribal harvesters to catch more than $20 million worth of elvers. If I can believe some of the early price-per-pound estimates, this fishery could be valued at well over $40 million this year.
In closing, I hope to leave you with the understanding that the State of Maine was in a very similar position to what the Department of Fisheries and Oceans, or DFO, is dealing with now. We went through a very iterative process over several years to get to the point we are at today. I think Canada can learn a great deal from the approaches we’ve taken and could make changes over a much shorter period of time.
Maine’s elver management measures allow this fishery to prosper while maintaining protections. I firmly believe that a heavily regulated fishery and dealer system on both sides of the border will not only conserve this species, but will also be a controlling factor that will severely curtail the illegal trade of elvers.
I would like to thank the committee for their time and would be happy to answer any questions you might have.
The Chair: Thank you, commissioner, for joining us today.
Senator Busson: Thank you for being here. It’s interesting to observe how much we have in common with regard to the issues concerning the elver fishery. Canada is approaching a very volatile season with respect to the elver fishery, to the point where violence, threats and widespread unauthorized fishing have caused our minister to close the fishery this year in response to concerns about how to handle and manage the elver fishery. It appears that in the state of Maine, you have come to a situation where you have been able to deal with issues of that nature by issuing quotas and quick and extensive control of your licensing powers.
I may have missed it, but I was wondering if you could talk a little about any focus you might have had on exports — specifically the export of elvers. It’s fairly obvious that the fact that they can be exported to China creates the value of these elvers. Has been any focus on enforcement regarding exports once these elvers are actually harvested, if by chance they are harvested illegally — and if so, how? Regardless, is there a control on exports?
Mr. Keliher: Thank you for the question, senator. There certainly is a control on exports. We have a dealer system that includes a dealer licence for those who export. We distinguish between the dealer who buys from the harvester at the river and the dealer who would purchase either from a dealer or possibly directly from a harvester and then plans to export out of the country.
All exports out of the state of Maine are under the very close control of the Bureau of Marine Patrol within my agency. We must be contacted by the export dealer. Maine Marine Patrol officers actually go to the facility. We monitor the pack-out and watch the eels that are being weighed. We verify the weight, and then a Maine Marine Patrol officer actually seals the container with a tamper-proof seal that includes all the critical information that we and the U.S. Fish and Wildlife Service require before they leave the state.
Those eels would normally go either to the Boston Logan International Airport or to Newark, New Jersey. They would go through a third-party shipping organization, but they are all inspected by the U.S. Fish and Wildlife Service at that point. So any container arriving at one of those airports that has a package that has been tampered with would be deemed illegal. Then the U.S. Fish and Wildlife Service would make contact with us. They would open the containers and weigh them to verify what is internal to the package.
That is a system that has worked incredibly well for us and put tight controls on allowing illegally harvested eels to be commingled with legally harvested eels.
Senator Busson: If I could briefly continue with a supplementary question, although I think you answered it, I wanted to ask you how confident you are that the system in place was working. I think you have made it fairly clear that it is. Thank you.
Mr. Keliher: Yes, though there is no way for us to control if somebody was going to try to pack elvers out as live lobster, for instance; however, because this fishery is so heavily regulated and scrutinized at both the state and federal levels, it is clear that the U.S. Fish and Wildlife Service is focused on any live product that is being shipped and would be inspecting other packages to see if anything else had been commingled. To my knowledge, there has been no commingling of products or shipping of eels under another product brand since we have put these measures in place.
Senator Busson: Thank you very much.
Senator Petten: Thank you for the valuable information. It seems that you need a great deal of support to be able to check all the elvers that are coming in, and you indicated in your opening remarks that there is a reduced number of harvesters in order to do that.
Can you indicate how many licence holders do you have? What was your process for bringing it down to a manageable number, considering the cost that must be associated with that?
Mr. Keliher: Thank you for that question. We, or the Maine Legislature, started to put controls on the number of harvesters in the 1990s. At one point, this was an open licence. Anybody could buy the licence; anybody could fish.
When the price per pound went up to $300, which seems minor compared to the price per pound being paid now, we did see a big gold-rush mentality. There were nearly 4,000 harvesters at the time, which created not only a problem for enforcement, but also tremendous habitat problems.
Back then, we also saw bycatch problems with Atlantic salmon smolts, other sea-run species being caught in the net and negative interactions with rainbow smelt spawning. Not only was there a harvesting problem, but also an issue with habitat and the ecology of the rivers.
That 70% reduction of licence holders at the time put the number at around 600 licences. Then, as the fishery took off again, it was constrained even more, to the point where we now have a total of 425 non-tribal licences.
Each of the four federally recognized tribes is also allocated a small number of licences. Three of the tribes may get around 100 licences in total. The Passamaquoddy tribe, who have two bands along the Canadian border, conduct their fishery differently. They have a larger percentage of that 20% that I mentioned. They hold what we would refer to as a derby fishery.
They allow as many licence holders from those two bands to purchase a licence, and then they determine what their allocation is. There may be 200 to 300 Passamaquoddy tribal members who will fish starting tomorrow with a quota of about four pounds apiece. They catch that quota incredibly quickly.
In total, we have roughly 700 licences now, tribal and non-tribal. Because of the way the Passamaquoddy tribe fishes, they will be done in less than a week, weather dependent.
Senator Petten: As a supplementary to that — there must be a big cost associated with having all of this checked out. You must have a big department that is checking, scanning and doing all of the monitoring that goes with this.
Mr. Keliher: Yes. We have roughly 230 employees at the Department of Marine Resources. I have 52 Marine Patrol officers, and 37 of those are field officers. Then we have the Bureau of Sea-Run Fisheries and Habitat that oversees the science side of eels. The policy side of eels is dealt with through my department. It is very labour intensive.
I don’t have here at my tip of my fingers the price of a licence, but I would be happy to provide that to the committee. The licences do cost a fair amount. All of that money goes into our Eel and Elver Management Fund.
We also have a lottery. When we get below 425 non-tribal licences, we conduct a lottery. This year, we had 14 licences available; 12,000 people bought chances to win them through the lottery. It grossed the department almost $400,000. All of that money goes to our Eel and Elver Management Fund, and much of that goes to our enforcement work.
Senator Petten: Thank you.
Senator Ravalia: Thank you, commissioner, for being here. I must begin by applauding your iterative process. I think you have done remarkable work.
Are there ongoing discussions or negotiations between the Maine Department of Marine Resources and Canadian authorities regarding the regulation or management of the elver fishery, and if so, what outcomes are being pursued?
Mr. Keliher: There have been. DFO reached out to us several months ago. We hosted a meeting at our lab in Boothbay Harbor with both science policy and enforcement people from DFO and my staff. We walked through our processes and how we came to the point we are at today. There was an additional follow-up meeting that DFO staff had with my senior staff.
I most recently met with the maritime director of DFO at the Boston seafood show to speak more about this. There certainly has been an open dialogue about the work we’re doing.
Senator Ravalia: As a supplementary, could you comment further about your conservation measures and maintaining a healthy ecosystem, particularly in the context of transboundary fisheries management?
Mr. Keliher: As I mentioned, the overall management plan for American eels, all life stages of the American eel, is set by the Atlantic States Marine Fisheries Commission. It deals with our interstate fisheries issues.
Certainly, at the commission level, we have had many conversations with our Canadian counterparts about the overall health of the American eel. As a catadromous species, as you know, this is a mixed fishery, unlike an Atlantic salmon who homes back to a native river.
The management on both sides of the border is critically important to understanding the health and well-being of this fishery.
I would say that this is a data-poor fishery. I believe that my DFO counterparts would agree with that. The overall species is deemed depleted. The ASMFC is in the process of putting further restrictions on the yellow eel fishery in the United States because of that depleted status.
Senator Ravalia: Thank you.
Senator McPhedran: Thank you for being with us today. It’s encouraging to hear about the effectiveness of the system you have put in place.
My question is about the staffing and budget that were required for you to actually implement that and get the results that you have described to us this morning.
Mr. Keliher: I would have to break that down and supply the committee with the overall budget. I can tell you that for our Marine Patrol officers, this time of year — it is not their sole focus — it takes 75% to 80% of their time on a daily basis.
As you know, this fishery is promulgated in the evening. Our Marine Patrol officers are availed basically unlimited overtime during the season to ensure that we have a very strong presence, not only on the water, but also with the dealer network we have in place.
The dealer network and the harvesters are all licensed by our licensing division. We have six people within our licensing division. We license over 13,000 individuals in the state. This is certainly a big part of the spring work they do.
The other piece of this that I really didn’t go into detail about, but which is incredibly important, is our individual quota monitoring.
Our landings department monitors the elver landings almost on a real-time basis. We used to have what we called a swipe card. It looked like a credit card. The harvester had to present that with a photo ID to a dealer as they purchased the eels.
We recently switched to a key fob. You see people use them at gas stations. Instead of a credit card, it’s a fob, or they can use a QR code on their phone. We have tried to use additional technologies to help put further protections on the fishery when it comes to individual harvesters.
The Landings Program itself, I can tell you right now — based on the work this week — is incredibly busy and intensive. We have to mail those fobs out to the individual harvesters and troubleshoot them. The fob is new for 2023, but we are seeing a very viable system with this technology.
To round it all off, between licensing, landing staff, policy staff and enforcement, the spring is very busy with our elver fishery. From a budgetary standpoint, it is likely in the low millions when it comes to the time involved and work we do associated with the fishery on an annual basis. I can supply additional numbers to the committee.
Senator McPhedran: Thank you. I would like to make that request. That would be very helpful.
No doubt one of the primary concerns on our side for our minister and the decision to suspend has to do with violence. Could you share a bit more about poaching and any violence or conflict that you are still seeing, if any?
Mr. Keliher: Thank you for that question. Early on, violence and threats of violence were incredibly prevalent. Working through our Maine State Police, through their intelligence group with the Maine Marine Patrol, we were aware of organized crime associated with elver fishery because of its cash nature. The one thing that really put an end to much of that was the fact that we stopped the use of cash for all transactions.
It was commonplace to see a dealer on a river with armed guards and half a million dollars in cash on their person to run the night’s purchasing. It was so bad at one point that banks in Hancock and Washington County, the easternmost portion of the state, were running out of money because of the value of the fishery. The violence was real. Certainly, there were fights, but there were never any deaths associated with the violence.
I was probably the only commissioner appointed by a governor who was issued a ballistic vest for my own safety at times. I am a very hands-on, in-the-field commissioner, working with the Maine Marine Patrol at times. I saw first-hand how this fishery could have become incredibly violent at one point in time. However, all of the measures that I laid out and highlighted have stopped all of that. We now have that very much under control.
Senator McPhedran: Thank you very much. You mentioned your counterparts at DFO here in Canada. You can give us a sense of how much knowledge they’ve gained from you in conversations up to this point?
Mr. Keliher: I would like to think they’ve gained a lot of knowledge, senator, from the conversations. I think we’ve had very good conversations with them. They’ve come back after every meeting to ask more questions, to understand our process and the iterative process that we’ve gone through.
Our process occurred over a six- or eight-year period. As I said in my closing statement, I think DFO has the ability to put something in place in a much shorter time frame if those processes can go through the statutory and rule-making process that you have in Canada — which, admittedly, I don’t know much about. If what we’ve done can be replicated, I think much of your problem will be solved.
Senator McPhedran: Thank you so much.
Senator C. Deacon: Commissioner, thank you so much for being with us today. Your testimony is beyond compelling.
While you were speaking, I was left with the impression that the meetings with DFO began this year or just recently. There must have been prior efforts on their part to come down and learn, given that we have so many problems in Canada and this is a file that they have absolute control over.
Can you speak to what’s gone on prior to the most recent interactions?
Mr. Keliher: Certainly. Prior to the DFO officials actually coming to Maine to understand the process, we had close coordination around illegal activities. Law enforcement within DFO, the fisheries agencies, had many conversations with the Maine Marine Patrol. Most of those conversations likely revolved around potential illegal trade or illegal movement across borders. I can’t speak to any specifics about conversations that they took to heart at that time concerning changes that could be made, but the majority of our conversations took place in the last six to eight months.
Senator C. Deacon: So I guess there were conversations about the symptoms but not about solving the problem; that’s what it sounds like. That’s really important, and I appreciate it.
We are still struggling with a lot of violence in Canada. I want to zero in on the extent to which you’ve been able to address that through the measures you’ve identified. If the focus was on managing enforcement and the violence, it sounds like the efforts to get to the policy changes, and to really understand how they have enabled you to get to a very different place than we are, were recent. I’m just coming to terms with that fact.
Mr. Keliher: Yes. All of the problems that we had in Maine were associated with a very high price per pound and the greed associated with that. To be able to catch eels, which is incredibly easy, and sell them on the black market at $500 per pound was incredibly lucrative — until we put all these measures together over a six-year period, roughly from 2012 to 2018. If we had not done that, there is no question that the fishery would have been closed here as well.
Senator C. Deacon: Is there any formal mechanism for cooperation between Canada and the United States around the eel fishery alone that involves Mexico and perhaps other nations as well? Are you aware of any discussions about that? Does anything exist in that regard?
Mr. Keliher: There’s nothing that I am aware of with either Mexico or any of the Caribbean islands where some harvesting of elvers may take place. There is no formal mechanism from country to country. We are a sovereign state and we don’t have to worry about dealing with the U.S. State Department or the National Marine Fisheries Service. We are able to communicate and work directly with DFO on our own terms.
As I mentioned earlier, there is some coordination around science at the Atlantic States Marine Fisheries Commission level. Again, that’s a compact of states. It doesn’t fall under the authority of any federal department.
Senator C. Deacon: Thank you, commissioner.
Senator Kutcher: Thank you, commissioner, for being with us and sharing your valuable time and your invaluable experience with us. I’d like to follow up from Senator Deacon’s questions so that I have a better idea of the time frame.
If I understand correctly, you recognized that this was a problem and had to create a solution around 2012. Is that about right? Is that when this was recognized?
Mr. Keliher: The initial problem was recognized back in the 1990s, but the most recent issues started in 2012, when we really started to see problems due to the high value.
Senator Kutcher: You addressed this problem. If I heard correctly, by 2018 — over a six-year period — you came up with a series of interventions to achieve where you are now.
Mr. Keliher: That’s correct, senator.
Senator Kutcher: Thank you. And if I understand correctly, DFO came from Canada to discuss your successes in 2023.
Mr. Keliher: That’s correct.
Senator Kutcher: We can all do the math. Thank you for that.
You talked about the Marine Patrol officers and their relationship with the state police. One of the challenges that we are facing here is we have municipal police forces, provincial police forces and the RCMP — which is the federal police force — allocated to provinces. In Canada, if there is any way to make things complicated, we do that.
We also have fisheries officers. Can you speak about the relationship between your Marine Patrol officers and your state police? How do they interact? What’s collaboration do they have, et cetera?
Mr. Keliher: We certainly have ways to complicate things here as well, senator. Not only do we have municipal police, we have county sheriffs as well, and the Maine Marine Patrol coordinate with them. At the state enforcement level, we have state police, which are part of the Bureau of Public Safety. And we also have the Maine Warden Service, which is the law enforcement branch under our sister agency, the Department of Inland Fisheries and Wildlife. They also coordinate with the Maine Marine Patrol, and then we have the Maine Marine Patrol itself. That coordination has been critical at times, especially early on.
In one instance I was personally involved with, we had to remove gear from rivers in Washington County. There were 25 law enforcement officers who had coordinated in that single evening to remove illegal gear. They included state police, Maine Marine Patrol, and the Maine Warden Service. So that coordination happens very naturally here, and I can’t speak enough about how good a partner our law enforcement bureaus within those other agencies are. They are definitely invaluable to the work that we have to do.
Senator Kutcher: Thank you for that, commissioner. To make sure I understand correctly, you were able to deal with the issue of various jurisdictions, various groups and various agencies quite successfully in order to deal with some of the illegal activity and violence that was happening.
Mr. Keliher: That’s correct.
Senator Kutcher: And Maine is a state, yet you have federal jurisdictions. I imagine you have cross-state shipments if you are shipping out of Newark. What’s the role of the federal organizations? We have the Canada Border Services Agency here. How does the federal monitoring group work with your state? What is the relationship there and how does it work?
Mr. Keliher: Again, we coordinate very closely, in this case with the U.S. Fish and Wildlife Service’s Office of Law Enforcement, both on the ground here in the state of Maine and across the border as it pertains to the shipment of eels and any illegal trade of elvers that may be attempted across borders as well. From a federal standpoint, any time you harvest in one state and illegally take it to another state, that’s called a Lacey Act violation. There are very high fines and a lot of jail time associated with those. So the U.S. Fish and Wildlife Service’s focus is centred around those cross-border interactions.
We also coordinate with our state partners in other states, if there is any illegal activity in other states where people may try to bring products to the state. Again, I won’t say it has been eliminated, but it has been incredibly curtailed based on what we put in place.
At the Canadian border itself, we have the Department of Homeland Security. The border patrol associated with Homeland Security is well aware of that illegal trade that could potentially happen. Because the fishery is being closed in Canada because of these issues, we are keeping a very close eye on the border.
The U.S. Fish and Wildlife Service take the lead on coordinating with their federal partners, but we are very much a part of those conversations.
Senator Kutcher: If I understand correctly, you have very good collaboration — not just collaboration, but a coordinated response — between different states, and also between states and the federal organizations that are responsible. Is that a reasonable understanding?
Mr. Keliher: That is a very reasonable understanding.
Senator Kutcher: Okay. Thank you very much for that.
Senator Cuzner: My two questions were almost exactly what Senator Kutcher presented, but he asked them much more eloquently than I would have. The fact that we were thinking the same thing should be of concern to the senator as well.
Commissioner, you would know full well, having dealt with some of the right whale initiatives — I think all Canadians can be proud of the responses that we’ve taken in the wake of the whale hits and deaths in 2017. When we look at the aerial surveillance, drone surveillance, the dynamic closures — we’ve done some good things to address that issue.
I think that’s why the Senate committee, harvesters and brokers are all so perplexed with why it has taken so long to have DFO respond on this particular issue, because this has been brewing for a number of years now.
Just coming off what Senator Kutcher asked, with respect to the violence that you were seeing back in the early 2000s, when you were initially tasked with coming up with a solution in 2012, the gestation period of that seemed fairly quick. With respect to the money that had to be appropriated to address the problem, where were the additional resources placed? Can you give us a reflection on how that evolved? And were you ready to go right out of the gate in 2012? You mentioned the initiative around the shipping and, in response to Senator Busson’s question, the great controls around the shipping. Was that a fact right from the start or something that was implemented as you learned more about the issue?
Mr. Keliher: Thank you, senator. At the time, honestly, it felt like we were taking baby steps. We knew where the problems lay and were trying to figure out the best way to approach them. There was no carrot-and-stick approach at the beginning; we had to take a stick approach, so we put things in place where we could remove people from the fishery for illegal activity. That illegal activity could be accepting eels from someone who caught them from another area. And it was not “three strikes and you’re out.” We put a “two strikes and you’re out” set of statutes and regulations in place. If you are caught the second time, you are out of the fishery. Based on the amount of money that an individual could make, the threat of losing their licence for two years — or permanently — was a major factor in the early days of getting the harvesters under control, to understand that they have some culpability here. They could not be part of what was happening illegally on the outside.
Once we had control of the harvesters and started to get better control of the dealers, then we started to look at the export side of things. We knew we had to ensure that no eels that were harvested illegally, whether in Maine or any other jurisdiction, could be commingled with that legal product.
The one piece I mentioned that bears repeating with more detail is that a Maine Marine Patrol officer can go into a dealer, and if we determine that there is a violation at that dealer location, and we know that two pounds of illegal eels were brought into that facility based on our investigation, we don’t just take the two pounds from that dealer. We take every eel from that dealer. There could be 2 to 500 pounds. The fact that a dealer has that much to lose associated with this process very quickly brought the dealers in line with the laws that we put in place. We had very high compliance on both sides, dealers and harvesters. I can’t say it enough: You can’t solve this problem without heavily regulating both sides, including the export component.
Senator Cuzner: With the tribal licences, is there any jurisdiction as far as conservation or policing of the tribal licences from the First Nations communities?
Mr. Keliher: They are able to license their individual harvesters, but then we have to accept those licences, and they fall under all of the same conservation laws and rules that are in place for the non-harvesters. That becomes a critical component.
We ended up, through some very tense negotiations at the Maine Legislature, trying to determine what kinds of controls need to be put in place.
We have a very different system in Maine with our four federally recognized tribes. It’s based or on what is called the Maine Indian Claims Settlement Act of 1980. That act put in place laws associated with what the tribes can do as it pertains to both wildlife on the freshwater side and the marine side.
On the marine side, it is very clear in current statutes that we have the authority to regulate their activities as it pertains to any commercial removal of any species.
They do have sustenance rights. Sustenance rights, though, do not include the taking and selling of something; it concerns the taking and eating of something — and not many people are eating something that costs $2,000 a pound. I will just leave that where it is.
The Chair: Just leave that to hang there for a while.
Mr. Keliher: Yes.
Senator Cordy: That certainly does give one pause when you think about the cost of it.
As others have said, thank you so much for your testimony. It gives us all hope that there are solutions to this issue that are good for everyone.
My questions have already been asked, so I will just go in a little deeper on some of those things. You spoke about the buy-in from all levels of government. Was that challenging to bring into effect, or did everybody realize that something had to be done quickly?
Mr. Keliher: Certainly, between the executive and legislative branches of government, everybody knew that if we didn’t get it under control, the fishery would be closed. And even with a closed fishery, there would still be illegal activity. When you have something that has this much value, if somebody can find a way to harvest it and sell it into the black market, that’s going to continue.
We took the approach of putting in place a lot of regulations in hopes — and I emphasize “in hopes,” because we were not sure at the time — that this heavily regulated fishery would curtail that illegal activity. And within the borders of the state of Maine, it has done that.
Looking to the south at our state partners, do they still see some illegal activity? Yes, but, again, at a much different level than it has ever been before.
That’s why I feel that if Canada can put these regulations in place — or something similar to what we have here — it will go a tremendously long way in curtailing this illegal activity even further.
Senator Cordy: Thank you for that. You spoke about stopping the use of cash on the river. Your example was incredible — that someone would actually have that much cash on the water. You also mentioned illegal poaching. It would seem to me that both would require a significant number of police officers or security people on the water. How did you do that? How did you stop the cash being used and also the poaching? Did you have huge numbers of people on the water when the elver fishery was going on? How did you go about it?
Mr. Keliher: Stopping the cash was a statute. It was passed by the Maine Legislature. I can tell you the governor I was working for at the time did a lot of eye-rolling when I said we weren’t going to allow the use of legal tender to purchase something. But after spending a lot of time educating him on the issues we were dealing with, he agreed that he would sign that into law when the Maine Legislature finally passed that statute.
For the work on the water, as I said, I have 52 Maine Marine Patrol officers, and 37 of them are in the field at any given time. We have 3,500 miles of coastline. Could we use more Marine Patrol officers? Absolutely. However, we try to work smarter and not harder. At the time, we’d keep the industry guessing at where we might be. We were making incredibly high-profile cases at the time, both with product coming in from out of state and from illegal activity within our state.
As long as we could keep them on their toes, we kept this in check, until we finally got these other changes to statutes in place in 2017 and 2018.
Senator Cordy: You spoke about the elvers. If someone had some illegal catch, even a very small amount — and I thought that example was very good — you would not just take the illegal elvers but the whole catch.
When you looked at penalties for those fishing illegally, that was certainly an incentive, that they would lose their whole catch. So there were financial ramifications, and I believe you mentioned prison sentences as well.
Mr. Keliher: Yes. We moved all the violations associated with the elver fishery from civil to criminal. That would be what we call a Class D crime. In many cases, Marine Patrol officers would put people in handcuffs and bring them to the local county jail associated with that. Normally, it would be a ticket, and then they would go home. But in many cases, at the very beginning, we were taking harvesters directly to jail and letting them get bailed out through that process.
That was certainly something that caught everybody’s attention. It is a very different approach than other approaches we take with conservation law enforcement. We had both the threat of a criminal violation, which would make somebody a felon — which certainly changes their outlook on life, if they are going around tagged as a felon — and there is the financial component of losing your catch, and also losing their licence either for up to two years or permanently. That loss of licence is worse than any fine that they could have.
Senator Cordy: Thank you.
Senator Busson: I will try to be brief, but you’ve raised so many interesting points and questions. We are left wondering why we are in the situation we are in here in Canada.
Given the different jurisdictions and the different ways that the elver fishery is managed here in Canada, could you give us an estimate with regard to the illegal fishery now in Maine? How much of that existing illegal fishery is or was poachers with no licence? How many were people who were over the quota of the licence they had? Do you have any estimate of what that balance looked like at the time you began your drastic enforcement?
Mr. Keliher: I won’t have numbers without going back into the database to try to get them for you, but I would describe it this way: Before the individual quota system was put in place, the vast majority of the violations we were seeing involved non-licensed harvesters. But as soon as this became an individual quota and that quota was closely tracked on a daily basis, nearly real time, the incentive for somebody to take illegal eels went away. If it is a $2,000-a-pound fishery and you had to buy illegal eels for $500 or $1,000, you’re giving away up to half of your profit. These fishermen quickly realized, “We’re better off catching our own eels, the way this system is working.”
Because of that, the following year, we saw very few fishermen trying to illegally harvest outside of the licence system.
That was an eye-opener for us. Just to paint the picture, we have no other fisheries in the state of Maine that have individual quotas. This was a huge change in policy for us. We pride ourselves on an owner-operator system that gives people access based on how hard they are willing to work. But, here, we knew we needed to have that individual quota system in place as a key component to the work that we were doing.
Senator Busson: Thank you very much. You made a big point of saying how important it was to be able to move these civil statutes to criminal statutes in order to put the framework of enforcement together. Would you say that was key?
Mr. Keliher: Yes, it was, certainly. That was definitely a key part of the work that we were doing on the enforcement side. That threat of becoming a felon associated with that, along with the loss of licence, was a very big driver in ensuring a high level of compliance with the fishery.
Senator Busson: Thank you very much.
Senator Petten: In Canada, we have a tendency to look at the cost of enforcement, but you looked at a way of covering the costs through paying back, through exceeding the quotas in your lottery system. I just want to put that on the record because that’s an important issue — finding ways to solve your own problems. That was very good. I appreciated your testimony. Thank you.
Mr. Keliher: Thank you.
The Chair: Commissioner, I’ll give you a moment to make closing remarks, if you would like to do so.
Mr. Keliher: Thank you, Senator Manning. I would briefly say again that I think we have a framework that Canada could take. It may need some massaging based on policies internal to your country, but certainly what we have put in place has gone a long way toward ensuring that my state partners to the south can understand that we can promulgate this very lucrative fishery in a way that puts protection in place for not only the species as a whole but also the industry as a whole.
The fact that we can allow up to 700 individuals to share the value of a $20-million-plus fishery certainly makes it both socially and economically viable, and hopefully it will prosper into the future. Thank you very much, and I appreciate the invite. It was an honour to be invited to speak to you here today.
The Chair: Thank you, commissioner, for taking time to appear before our committee this morning. This was very informative and, certainly, from the list of questions that were put forward, our senators were very interested in what you had to say.
Senators, the second item on today’s agenda is consideration of a draft report. I suggest we proceed in camera. Is there any objection to proceeding in camera?
Senator McPhedran: I have no objection, Senator Manning, but I do want to bring to your attention that I have two students with me today. I don’t know how members feel about that.
The Chair: There is no objection to proceeding in camera. Is there any objection to having students in the room while we proceed in camera?
I am not seeing any. It is agreed then. Thank you.
(The committee continued in camera.)