An Act To Abolish Municipal Shellfish Ordinances
Maine Legislature, Session 128, LD 0202
Committee: Marine Resources
Sponsors: SIMMONS, O'CONNOR, PIERCE
Amends: 12 MRSA §6038, 12 MRSA §6072, 12 MRSA §6072-A, 12 MRSA §6072-C, 12 MRSA §6302-A, 12 MRSA §6601, 12 MRSA §6621, 12 MRSA §6746, 12 MRSA §6856, 25 MRSA §2801-B, 25 MRSA §2804-I, 38 MRSA §410-I

Legislative Document
No. 202
H.P. 158
House of Representatives, January 24, 2017
An Act To Abolish Municipal Shellfish Ordinances
Reference to the Committee on Marine Resources suggested and ordered printed.
ROBERT B. HUNT
Clerk
Presented by Representative SIMMONS of Waldoboro.
Cosponsored by Representatives: O'CONNOR of Berwick, PIERCE of Dresden.
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  12 MRSA §6038, sub-§1, ¶F, as enacted by PL 2007, c. 606, Pt. A, §2, is 
amended to read: 
F.  Two members who are municipal shellfish wardens represent municipal shellfish 
interests.  In making the appointments under this paragraph, the commissioner shall 
solicit and consider up to 3 recommendations for these 2 appointments from 
associations representing the interests of persons who protect and help manage 
municipal shellfish resources; and 
Sec. 2.  12 MRSA §6072, sub-§3, as amended by PL 1999, c. 267, §1, is repealed. 
Sec. 3.  12 MRSA §6072-A, sub-§11, as enacted by PL 1997, c. 231, §6, is 
repealed. 
Sec. 4.  12 MRSA §6072-C, sub-§3, as amended by PL 2009, c. 229, §6, is 
further amended to read: 
3.  Eligibility.  A limited-purpose aquaculture license may be issued only to an 
individual or to a municipal shellfish management committee established pursuant to 
section 6671. 
Sec. 5.  12 MRSA §6302-A, sub-§1, as amended by PL 2013, c. 254, §1, is 
further amended to read: 
1.  Tribal exemption; commercial harvesting licenses.  A member of the 
Passamaquoddy Tribe, Penobscot Nation, Aroostook Band of Micmacs or Houlton Band 
of Maliseet Indians who is a resident of the State is not required to hold a state license or 
permit issued under section 6421, 6501, 6502-A, 6505-A, 6505-C, 6535, 6601, 6602, 
6701, 6702, 6703, 6731, 6745, 6746, 6748, 6748-A, 6748-D, 6751, 6803, 6804 or 6808 to 
conduct activities authorized under the state license or permit if that member holds a valid 
license issued by the tribe, nation or band or the agent of the band to conduct the 
activities authorized under the state license or permit.  A member of the Passamaquoddy 
Tribe, Penobscot Nation, Aroostook Band of Micmacs or Houlton Band of Maliseet 
Indians 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, nation or band: 
A.  May utilize lobster traps tagged with trap tags issued by the tribe, nation or band 
or the agent of the band in a manner consistent with trap tags issued pursuant to 
section 6431-B.  A member of the tribe, nation or band is not required to pay trap tag 
fees under section 6431-B if the tribe, nation or band or the agent of the band issues 
that member trap tags; and 
B.  May utilize elver fishing gear tagged with elver gear tags issued by the tribe, 
nation or band or the agent of the band in a manner consistent with tags issued 
pursuant to section 6505-B.  A member of the tribe, nation or band is not required to 
pay elver fishing gear fees under section 6505-B if the tribe, nation or band or the 
agent of the band 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. 
Sec. 6.  12 MRSA §6302-A, sub-§2, as amended by PL 2013, c. 254, §2, is 
further amended to read: 
2.  Tribal exemption; sustenance or ceremonial tribal use.  Notwithstanding any 
other provision of law, a member of the Passamaquoddy Tribe, Penobscot Nation, 
Aroostook Band of Micmacs or Houlton Band of Maliseet Indians 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, nation or band or the 
agent of the band.  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, nation or band or the agent of the band.  The sustenance 
lobster license holder's traps must be tagged with sustenance use trap tags issued by 
the tribe, nation or band or the agent of the band 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, by the Penobscot Reservation Tribal 
Council, by the Aroostook Band of Micmacs Tribal Council or its agent or by the 
Houlton Band of Maliseet Indians Tribal Council or its agent. 
For purposes of this subsection, "sustenance use" means all noncommercial consumption 
or noncommercial use by any person within Passamaquoddy Indian territory, as defined 
in Title 30, section 6205, subsection 1, Penobscot Indian territory, as defined in Title 30, 
section 6205, subsection 2, Aroostook Band Trust Land, as defined in Title 30, section 
7202, subsection 2, or Houlton Band Trust Land, as defined in Title 30, section 6203, 
subsection 2-A, 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, Penobscot Nation, Aroostook Band of Micmacs 
or Houlton Band of Maliseet Indians 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, Penobscot Nation, Aroostook 
Band of Micmacs or Houlton Band of Maliseet Indians who takes a marine organism for 
sustenance use or for noncommercial use in a tribal ceremony.  A member of the 
Passamaquoddy Tribe, Penobscot Nation, Aroostook Band of Micmacs or Houlton Band 
of Maliseet Indians 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, Penobscot Nation, Aroostook Band of Micmacs or Houlton Band of Maliseet 
Indians 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. 
Sec. 7.  12 MRSA §6601, sub-§2, as amended by PL 2011, c. 598, §26, is further 
amended to read: 
2.  Licensed activities.  The holder of a commercial shellfish license may fish for, 
take, possess or transport shellfish within the state limits or sell shellstock the holder has 
taken to a wholesale seafood license holder certified under section 6856 or an enhanced 
retail certificate holder under section 6852, subsection 2-A.  The holder may also sell 
shellstock the holder has taken from that license holder's home in the retail trade. This 
license does not authorize the holder to fish for or take shellfish in violation of a 
municipal ordinance adopted pursuant to section 6671. 
Sec. 8.  12 MRSA §6621, sub-§3, ¶C, as amended by PL 1995, c. 323, §1, is 
repealed. 
Sec. 9.  12 MRSA c. 623, sub-c. 1, art. 4, as amended, is repealed. 
Sec. 10.  12 MRSA c. 623, sub-c. 1, art. 4-A is enacted to read: 
ARTICLE 4-A 
MUNICIPAL SHELLFISH MANAGEMENT 
§6677.  Municipal shellfish ordinances 
A municipality may not adopt or enforce an ordinance that regulates the taking or 
possession of shellfish, provides protection from shellfish predators or authorizes 
municipal officials to open and close flats. 
§6678.  Shellfish reseeding program 
The department shall carry out a program of shellfish reseeding.  The program must 
include such activities as the transplanting of soft-shelled clams from areas of large 
concentrations to potentially productive areas and relaying shellfish otherwise inhibited 
from attaining optimum market size.  The department may close areas to protect reseeded 
flats. 
Sec. 11.  12 MRSA §6746, sub-§2, as amended by PL 2011, c. 598, §35, is 
further amended to read: 
2.  Licensed activity.  A boat license under this section may be used for dragging for 
mussels.  The holder of a mussel boat license may also possess or transport mussels 
within the state limits or sell mussels the holder has taken to a wholesale seafood license 
holder certified under section 6856 or an enhanced retail certificate holder under section 
6852, subsection 2-A.  The license also authorizes the captain and crew members aboard 
the licensed boat when engaged in dragging for mussels to undertake these activities.  A 
mussel boat license does not authorize the holder to fish for or take mussels in violation 
of a municipal ordinance adopted pursuant to section 6671. 
Sec. 12.  12 MRSA §6856, sub-§3-D, as amended by PL 2015, c. 68, §11, is 
repealed. 
Sec. 13.  25 MRSA §2801-B, sub-§1, ¶F, as repealed and replaced by PL 2001, 
c. 710, §11 and affected by §12, is repealed. 
Sec. 14.  25 MRSA §2804-I, as enacted by PL 1999, c. 682, §5, is amended to 
read: 
§2804-I.  Law enforcement training for harbor masters 
Harbor masters and municipal shellfish conservation wardens must successfully 
complete the preservice law enforcement training requirements in section 2804-B and the 
in-service law enforcement training requirements in section 2804-E in order to have the 
power to make arrests or to carry a firearm.  Harbor masters and municipal shellfish 
conservation wardens are exempt from section 2804-C. 
Sec. 15.  38 MRSA §410-I, sub-§3, as enacted by PL 2009, c. 213, Pt. FFFF, §4, 
is amended to read: 
3.  Annual coastal water quality monitoring and remediation planning.  The 
department shall in coordination with the public health division of the Department of 
Marine Resources create an annual work plan outlining priorities for the monitoring and 
classification of shellfish growing areas and for hydrographic studies in shellfish growing 
areas. The work plan must also prioritize remediation projects that will improve water 
quality within shellfish growing areas. Staff from both agencies must be assigned in 
determining responsibilities of the work plan. The Department of Marine Resources shall 
solicit priorities from the Shellfish Advisory Council established under Title 12, section 
6038 and from municipalities with approved municipal shellfish programs for work 
within shellfish growing areas in those communities. In order for municipal 
recommendations to be considered for inclusion in a work plan, the municipality must 
commit to assist in the identification and remediation of nonpoint source pollution, 
including failing subsurface wastewater disposal systems, in areas affecting the water 
quality of shellfish growing areas. 
The agencies shall prepare a draft work plan by February 1st of each year and make it 
available for review at a regularly scheduled meeting of the Shellfish Advisory Council, 
set out under Title 12, section 6038. 
The agencies shall begin implementing the work plan by March 1st annually. 
SUMMARY 
This bill eliminates the authority of a municipality to adopt a shellfish conservation 
program and ordinance and prohibits a municipality from adopting or enforcing an 
ordinance that regulates shellfish, provides protection from shellfish predators or 
authorizes municipal officials to open and close flats.