They Grabbed My Boat!

by Nicholas Walsh, PA

Soon after I started my law practice a transplanted Texan hired me for a trap molestation case. He had a recreational lobster license and fished five traps outside Portland harbor. The locals resented his traps, and time and again he checked his traps and decided someone had been taking his lobsters. One fine summer day all five traps were again empty and he got the bright idea to pull a nearby pot and see if the other lobstermen were also luckless. A Marine Patrol agent lurked nearby, and you can guess the rest of the story. However, my client’s tail had a particularly unhappy and somewhat unusual ending.

There are generally two phases to any fisheries violation, but sometimes there’s an unfortunate third phase. The first phase occurs in Maine District Court, and that’s where the state tries to prove that the crime or violation occurred. If the state makes its case and the fisherman is found guilty (of a crime) or liable (of a violation), the matter often proceeds to phase two. That’s where the Department of Marine Resources imposes a license suspension.

When the Department receives official notice of the conviction or finding of a violation, the Commissioner has 60 days to decide whether to impose a suspension, and to give the license holder written notice of the suspension. The notice, which is a letter, provides the basis for the suspension, states the effective date of the suspension, and, importantly, tells the fisherman that he or she has an opportunity for a hearing to argue for a lesser suspension. (For a few violations there is a mandatory suspension of a given length, such as three years for molesting lobster gear. In such a case DMR will not afford a hearing.) I covered administrative suspensions in an earlier column “(D.M.R. License Suspensions”), which you can find on my website, nicholaswalsh.com. I’m not going to cover that ground here.

Once in a while D.M.R., not content with getting the conviction and then suspending the license, decides to take a third step: it grabs the boat and gear. This process is known as a “libel” and, like so much in this area of the law, it has truly ancient roots.

Maine statutes Title 12 section 6207 states “All equipment and vehicles used or possessed in violation of any provision of marine resources’ laws are contraband and are subject to forfeiture.” It’s a long statute but the rest is mostly process: The sentence I quoted tells you most of what you need to know. D.M.R. brings the action in court (usually District), in the form of a civil complaint against, for example, “F/V Flying Yankee, her nets, tackle etc.” The catch may similarly be libeled, in the same action, or alone, if D.M.R. decides to libel the catch but leave the boat.

These cases are tough for a fisherman to win. The standard of proof is not the strict “beyond a reasonable doubt” used in criminal cases, nor even the “clear and convincing evidence” standard used in some critical civil cases. All the state has to prove is that it is “more probable than not” that the boat was used to violate a marine resources law. If there is already a criminal conviction of a fisheries law, that’s all the court needs to rubber stamp the libel judgment. If there’s no criminal conviction but only a civil violation, some brief testimony by the officer is generally all that’s needed for the state to carry the day.

If judgment is given, D.M.R. can keep the libeled boat, vehicle, equipment etc., or it can sell it for D.M.R.’s account. If catch is libeled, normally D.M.R. will sell the catch while it’s fresh. (The law allows that.) The libel is then against the proceeds, a fact which leads to case names like “State of Maine vs. The Proceeds of Approximately 1150 pounds of Scallop Meats”. If D.M.R. wins, the catch proceeds go into the state’s General Fund.

I said the libel is the unhappy third phase of a fisheries prosecution. Actually, often D.M.R. brings the libel before trying the violation or crime. According to the letter of the statute, the sole notice D.M.R. is required to give the defendant is a public posting in two public places, such as the town hall and post office, declaring the libel. Many Marine Patrol agents will give the fisherman “actual notice” of the libel action, by handing them a paper, but it’s not required and does not always happen. (In my opinion it should be required.) If the fisherman fails to assert a claim in court, maybe because he or she never found out, the fisherman will be defaulted and lose the property. Therefore D.M.R. often wins these cases just because the unknowing fisherman didn’t act to protect his or her interests.

The lesson is, if you are in trouble with D.M.R. and it has seized your property, keep close tabs on the Department to see if a libel is being brought. A call to Marine Patrol in Augusta is certainly in order. If you know a libel is pending, it would be smart to see if the state will put off the libel until the fisheries violation case is before a judge, because a plea bargain may take care of the libel as well. That’s what I try to do.

D.M.R. brings maybe twenty-five libels in a given year. Six or eight are against boats and vehicles, the rest against catch. The elver boom has brought a slight increase, because the Department is wisely unwilling to liberate live elvers if it can’t be certain what water body produced them, so it libels and sells them. Libels are not common cases, but they can be devastating to the fisherman whose property is forfeited – watch out.

Nicholas Walsh is an attorney specializing in maritime law and waterfront matters. He can be reached at 772-2191, or nwalsh@gwi.net.