DIFW testimony on brook trout bill was embarrassing and inaccurate

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DIFW testimony on brook trout bill was embarrassing and inaccurate

The testimony of Maine’s Department of Inland Fisheries and Wildlife on my bill to add new protections to our Heritage native brook trout waters was embarrassing, inaccurate, and very disappointing.

My outdoor news column yesterday told you about the bill, LD 1018, sponsored by Representative Russell Black at my request. It was supported by Maine Audubon, Trout Unlimited, the Maine Professional Guides Association, Backcountry Hunters and Anglers, The Nature Conservancy, Emily Bastian who directed Maine Audubon’s remote trout pond surveys for 5 years, Bob Mallard a former fly fishing shop owner who now writes for and edits national fly fishing magazines, and other anglers who value these very special fish.

The bill would prohibit stocking fish in or using live fish as bait in tributaries to State Heritage Fish Waters where our native brook trout and arctic char are recognized and protected.

Francis Brautigam, DIF&W’s Fisheries Division Director, delivered the agency’s testimony in opposition to the bill. Francis said the bill “may create challenges, including public acceptance, similar to that which existed during the inception of the original heritage water legislation.”

Actually, the only significant opposition to the heritage water legislation came from the department! The Heritage Waters list, and the initial list of nearly 300 waters where brook trout are protected, was an initiative of the Sportsman’s Alliance of Maine when I served SAM as its executive director and lobbyist. SAM’s terrific Fishing Initiative Committee led the way on that and other important fisheries bills and acts. Then-Senator Chandler Woodcock sponsored the bill for us and DIF&W opposed it. But we overcame that opposition and eventually they joined us in supporting the legislation.

 

Early in his testimony, Francis said “I want to acknowledge our commitment to responsibly managing the State’s wild cold water fisheries and to acknowledge the importance of the fisheries designed as ‘State Heritage Fish Waters.’ The vast majority of waters affected by this bill, particularly headwater ponds with small direct tributaries would have minimal effects on existing management and public use opportunity, and may benefit from protections offered in this bill.”

 

That sounded good, but his testimony really went downhill after that.

 

In his very next statement, Francis claimed “The Department has implemented numerous initiatives over the years, including regulatory and outreach efforts to stem the tide of illegal fish introductions (intentional and unintentional). New introductions represent a real threat to the conservation of Maine’s native and wild cold water fisheries. I make this point to clarify that the Department has been actively engaged in and has devoted considerable resources to tackle this complex issue.”

 

You can be forgiven for doubting this statement. DIF&W has done almost nothing to stem the awful spread of invasive fish throughout the state. For example my favorite landlocked salmon water, Long Pond, just ten minutes from my house, is now filled with 9 invasive species, and DIF&W has given up on salmon in that lake. And I probably don’t have to tell you they did nothing to get those invasives out of the lake.

 

Next, Francis turned to the use of live bait, minimalizing its potential in the tributaries we want to protect. “The ecological risk associated with allowing anglers to use live bait fish in streams is inherently low, because anglers generally do not fish with live bait fish in smaller flowing waters that would constitute many/most of the tributaries to heritage waters.”

 

Makes you wonder why they felt it necessary to oppose this. He did go on to say “the actual benefit of adding a no live fish as bait provision to many heritage water tributaries is low.” That certainly contradicted his earlier statement about their commitment to these fish.

 

When it came to stocked fish, his testimony was particularly troubling. “Smaller flowing waters that would constitute tributaries to many of the listed heritage waters, particularly headwater lakes and ponds, would not likely be identified by the Department as good prospects for new stocking initiatives.” Note he said “not likely.” Later, he said that the likelihood that tributaries to our Heritage waters would be stocked “is low.” Holy Cow! Shouldn’t he have said we will never do it?

 

Many of those who testified for the bill reported examples of where the department has stocked fish that got into our best native brook trout waters. I testified about one of their worst stocking mistakes, putting hatchery trout in a lake that allowed them to access the Rapid River in the Rangeley Region. While the agency originally denied they’d done it, and then said it was a mistake that would not be repeated, they are still stocking hatchery trout in lower Richardson Lake, giving them access to the Rapid.

 

This is truly unforgiveable. The Rapid was once our best native brook trout water, in my estimation and experience. Now it has bass that entered the river from the New Hampshire end, and hatchery brook trout that got into the river due to DIF&W’s stocking mistake.

 

Towards the end of his lengthy testimony Francis actually said “the work incurred by the Department in administering and implementing this bill is not only considerable, but challenges the ongoing efforts to manage law book simplification.” First of all, I hope you are not expecting the agency to actually simplify our fishing rules. That isn’t going to happen.

 

Francis actually claimed the bill “will add additional pages to the fishing law book.” Emily Bastian, in her testimony in support of the bill, demonstrated the inaccuracy of that claim, noting it would only require four new words in the law book. And Francis is just plain wrong when he says this is going to cause a lot of work for his department.

 

Letters to Commissioner

 

Following the hearing, several people wrote letters to Commissioner Chandler Woodcock, expressing their disappointment in the agency’s testimony, particularly given the fact that he sponsored the original Heritage bill. I want to share two of those letters with you today, along with one sent to Francis Brautigam. Here they are.

 

Bob’s letter to Commissioner Woodcock

 

Hello Chandler

 

I was very disappointed to see IFW, and a former IFW employee, testify against an amendment to a law that that you helped get passed. That the only opposition came from IFW speaks volumes as to the validity of the request and the limited impact it would have on anglers and other special interests. The bait dealers stayed home, the ice anglers stayed home and not a single angler stood up against the proposed amendment.  

 

In addition to George, Emily, myself and a BKT survey volunteer, the bill was supported by the Trout Unlimited, Maine Audubon, Backcountry Hunters and Anglers and Professional Maine Guides' Association.  The support from PMGA and BHA was unexpected, and like the complete lack of opposition, quite telling.    

 

IFWs testimony was unfair and often inaccurate. By using the legal definition of "Tributary" in Title 12 as we were doing, it reset the prohibitions at the first upstream Great Pond on any tributary or tributaries to such. It did not affect anything downstream of a Heritage water unless the first downstream water was also a Heritage water, at which time it became a "tributary" to such.  

 

I also disagree with IFWs position that live bait on streams is a non-issue. I have seen anglers using minnows on Chase Stream in The Forks, a tributary to two Heritage waters: Chase Stream Pond and 10,000 Acre Pond. I have seen the same thing on Wesserunsett Stream near my house, as well as several streams near my old trailer on Chesuncook. While not as common as worms, it is legal and it is done.   

 

Using the "bait dealer inspections" to try to lessen the concerns of the committee members was misleading at best. Just because a bait species is legal to use, does not mean it is not invasive to any given water. Smelts and shiners, legal to use anywhere live bait is allowed and the two most commonly used minnows in Maine, are nonnative to most of central and northern Maine, and the vast majority of Heritage waters. As you also know, the legal-to-use emerald shiner isn't even native to the state, and is therefore invasive everywhere it is used. 

 

It also ignores the fact that many anglers trap their own bait. These anglers often do not know one minnow from the next, including juvenile sunfish, perch and bass.  

 

The opportunity for error here is minimal, and could be easily addressed on a water-by-water basis. Most of the tributaries are small streams where there would be little if any opposition to a NLBAB restriction. The larger waters, mostly tributaries in Rangeley, usually have some form of tackle restrictions in place already. To propose to do this at the stream level vs. exceptions is in no ones best interest, especially IFW and the fish. It will take exponentially longer, require far more manpower, and put waters at risk while we wait.  

 

As you know, the State Heritage Fish Law is Maine's only binding "Wild Trout" program. As you also know, the intention was never for it to be static. It has been amended to include Arctic char, add waters that had not been stocked in 25 years or more, as well as adding 25 or so newly discovered waters. This is nothing more than another necessary adjustment that would be met with limited if any opposition outside IFW. 

 

It is also important to note that nothing is, or was, preventing IFW from addressing this before we went to the legislature. That this was not done in the decade since the law was passed validates our concern, and the need to get it addressed legislatively. Interestingly, IFW selectively did exactly this on some, but not all, char waters and did not extend it to brookie waters. 

 

I do not see where continuing to oppose the only formal wild trout program we have is being "committed to wild brook trout" as Francis said. And to have you, a sponsor of the original bill, take the positions you have against strengthening such is a tough pill to swallow, and an even tougher position to try to justify. I am admittedly stunned and disappointed. 

 

Francis greatly overstated the potential impact of the proposed amendment. The "social" impacts would be minimal, the impact on IFW would be minimal, and it would not add single water to the law book - and Francis and IFW should have known this. To say it would add "a large number of special regulations" and "add pages to the law book" was inaccurate, unfair and misleading. 

 

The impact to the law book is this:

 

* A new S-Code to be applied to Heritage waters where the tributaries do not already have tackle restrictions. In fact, you could just apply it to all Heritage waters. It is no different than how you already manage smelt - "tributaries closed to the taking of smelt".  

 

And while most, but certainly not all, tributaries to Heritage waters are not currently candidates for stocking, can you guarantee that they will not become such up the road if the fishery declines or under a new administration?  Did the prior administration not stock numerous waters that had the Heritage law been in place at the time would have been so designated, and they would not have been allowed to do so?  

 

At the time of the original Heritage bill, I researched the last 30 waters that had gone from never-stocked to stocked (from a list of over 150 waters stocked for the first time in roughly the last decade). In all cases they went from General Law fishing (unrestricted bait, 5-fish and 6") to stocked with no attempt to mitigate the issue of the declining fishery with tackle, bag, length or season changes.  

 

And the situation at Lower Richardson proves that IFW continues to stock fish where they can gain access to Heritage waters. Both stocked brookies and salmon are leaking into Pond in the River. IFW knows this, yet nothing has changed. In fact, stocked fish are ending up on top of wild fish all over the state: Kennebec above and below Wyman, Dead, West Branch, Chesuncook, Moosehead, Pierce, Webster, Magalloway, Rainbow, etc.  

 

IFW does not support the State Heritage Fish law and never has. IFW fought the original bill, and by default you the sponsoring legislator, and has opposed every proposed amendment since then. IFW is refusing to add volunteer survey ponds at a rate of over 60% for reasons that are purely social and coming solely from IFW - there would be virtually no opposition to adding these waters.   

 

That the biggest roadblock to protecting Maine's wild native brook trout and Arctic char comes from within IFW is truly sad. That you have perpetuated it, not stopped it, is even more so. Those in the room worked very hard to help get your original Heritage Fish bill passed Chandler. Please stop working against us as we try to strengthen it. 

 

Regards

 

Bob Mallard  www.bobmallard.com

 

Emily’s letter to Commissioner Woodcock

 

Dear Commissioner Woodcock,

 

I attended the hearing in Augusta yesterday to testify in front of the IFW Joint Standing Committee in support of LD 1018, An Act to Prohibit Stocking Fish in or Using Live Fish as Bait on Tributaries to State Heritage Fish Waters. 

 

Those testifying in support presented a clear and united front to improve Maine's only legally binding protection for our native brook trout and Arctic char. Testimony was submitted by such diverse groups as the Professional Maine Guides' Association, Trout Unlimited, Backcountry Hunters and Anglers, Maine Audubon, volunteers from the joint IFW/ME Audubon/TU Brook Trout Survey Project and members of the public. 

 

The only opposition was presented by MDIFW. I am deeply disappointed. While IFW has repeatedly said that they are "committed to wild brook trout", the Department's actions do not support this claim. I am frankly appalled that less than one week ago, you stood in front of Sebago TU at the chapter's Annual Conservation Banquet as the invited keynote speaker and specifically referenced your contribution to the State Heritage Fish Law. Your current vehement opposition to this bill today is absolutely unconscionable.

 

The testimony submitted by Francis Brautigam on behalf of the Department yesterday contained many inconsistencies and unfairly misleading statements. I will speak to just a few of the most blatant here:

 

Francis said many times how this bill would introduce "many social challenges" and that the public would have difficulty accepting this bill. Commissioner, the public had every opportunity to speak on this bill yesterday, and many did: The JSC saw overwhelming support from the audience and heard many very compelling testimonies from the public and numerous stakeholder groups in support of the bill. It appears that IFW is actually fabricating a facade of supposed opposition in order to muddy the waters here.

 

Francis also incorrectly said that passing this bill would result in "a large number of special regulations" and would "add pages to the lawbook". This is absolutely false. LD 1018 is a very straightforward bill, and could be addressed by adding just four words to the IFW lawbook, creating very minimal impact. The lakes and ponds given Heritage designation are already in the lawbook, so no new listings would in fact need to be included: We could simply create a new S-code that mimics S-4 but applies to "tributaries" of said waters.

 

Francis also purported that the Department "would not identify these waters as likely candidates for stocking initiatives." If this is true, then why oppose the bill? ... Because we all know that IFW does not in fact voluntarily refrain from stocking waters that could impact Heritage Fish waters: Your department already has and continues to do so, despite repeated evidence that this is harmful to native fish populations. For example, IFW continues to stock landlocked salmon and brook trout in Lower Richardson Lake, despite repeated documentations of stocked fish showing up in Maine's fabled Rapid River. 

 

Francis repeatedly said yesterday that "IFW supports the Heritage Fish Law". Commissioner, these words are deceiving as they not consistent with the Department's actions, and it is unfair to mislead the public. We all know that IFW has fought the implementation of the Heritage Fish Law since day one. The public isn't buying your charade -- and neither is the JSC: Several legislators expressed dismay that IFW could be in opposition to this bill. Following Francis' testimony, Senator Woodsome promptly proclaimed, "This is a very serious issue, and I am amazed that IFW has come out against this bill." The senator went on to say: "While I would like to work with the Department, I will not be stonewalled by the Department." 

 

Commissioner Woodcock, this obstructionist behavior on the part of IFW is absolutely unacceptable. The public will call you to task. Support for the Heritage Fish Law is widespread and comes from such groups as the Backcountry Hunters and Anglers and the ME Professional Guides' Association. From Don Kleiner's testimony yesterday: "This is a gem, and we need to do everything we can to protect it." Francis' repeated references to the "public angst" that would be caused by the implementation of this bill was certainly not demonstrated yesterday. 

 

There is no biological reason why the criteria for managing the tributaries to State Heritage Fish waters would be different than the rules on the lakes and ponds themselves. Commissioner Woodcock, as the original sponsor of the bill you will recall that this is not the “Heritage Waters Law”, it is the “Heritage Fish Law”: We are not protecting the ponds per se – we are protecting the fish, and to do so effectively it is imperative that the ponds and tributaries are managed the same way. That the Heritage Law does not currently consider tributaries to lakes and ponds given Heritage designation puts the whole program at risk.  

 

Maine has been designated as the last true stronghold for wild brook trout, and is home to the only remnant populations of Arctic char in the lower 48. We have a responsibility to protect and preserve this irreplaceable and valuable ecological resource. Maine's Heritage Fish Law is the most effective way to ensure that populations of native brook trout and Arctic char will remain viable and healthy for generations to come. We owe it to the people of Maine to protect our State Heritage Fish now and into the future.

 

I hope you will reconsider your opposition to LD 1018 in advance of the work session next week.

 

Thanks for listening. – Emily Bastian

 

Emily’s Letter to Francis Brautigam

 

Good afternoon, Francis:

I am deeply disappointed in your opposition to LD 1018, An Act to Prohibit Stocking Fish in or Using Live Fish as Bait on Tributaries to State Heritage Fish Waters. You and I have known each other for a long time. I know that you personally support measures to protect, preserve and enhance our native fish. How can you in good conscience speak in opposition to such a bill that would help our native brook trout and rare Arctic char?

As you know, I am a lifelong Mainer, former IFW employee and former coordinator of a joint IFW/METU/ME Audubon survey project. I have supported the Department with my dollars every year since I was old enough to buy a license. I am scheduled to take my test to become a ME Guide this spring. However, I have become increasingly frustrated with the Department and I am seriously questioning whether I can continue to support such an organization at all. It's not just me: The public is counting on IFW to protect our native brook trout. That IFW is presenting the most significant -- in fact, the only -- opposition to the bill is disgraceful. Quire frankly, IFW looked foolish presenting the only opposition yesterday following such strong support for the bill from such a diverse constituency. 

While IFW has repeatedly said that they are "committed to wild brook trout", the Department's actions do not support this claim. I am frankly appalled that less than one week ago, Commissioner Woodcock stood in front of Sebago TU at the chapter's Annual Conservation Banquet as the invited keynote speaker and specifically referenced his contribution to the State Heritage Fish Law. Your Commisioner's current vehement opposition to this bill today is absolutely unconscionable.

You mentioned several times yesterday that this bill would introduce "many social challenges" and that the public would have difficultly accepting this bill. Francis, the public had every opportunity to speak on this bill yesterday, and many did: The JSC saw overwhelming support from the audience and heard many very compelling testimonies from numerous stakeholder groups in support of the bill, including the Professional Maine Guides' Association, Trout Unlimited, Backcountry Hunters and Anglers, Maine Audubon, volunteers from the joint IFW/ME Audubon/TU Brook Trout Survey Project and members of the public. Those testifying in support presented a clear and united front to improve Maine's only legally binding protection for our native brook trout and Arctic char. It appears that IFW is actually fabricating a facade of supposed opposition in order to muddy the waters here.

It was also misleadingly stated that passing this bill would result in "a large number of special regulations" and would "add pages to the lawbook". This is absolutely false. LD 1018 is a very straightforward bill, and could be addressed by adding just four words to the IFW lawbook, creating very minimal impact. The lakes and ponds given Heritage designation are already in the lawbook, so no new listings would in fact need to be included: We could simply create a new S-code that mimics S-4 but applies to "tributaries" of said waters.

IFW repeatedly proclaimed yesterday that the Department "supports the Heritage Fish Law". Frankly, these words are deceiving as they not consistent with the Department's actions, and it is unfair to mislead the public. We all know that IFW has fought the implementation of the Heritage Fish Law since day one. The public isn't buying the charade, and neither is the JSC: Several legislators expressed dismay that IFW could be in opposition to this bill. We were close to getting a vote in favor on the floor yesterday. We have more support than your commissioner seems to think.

I have told the Commissioner that this obstructionist behavior on the part of IFW is absolutely unacceptable. The public will call you to task. As Don Kleiner's testified yesterday: "This is a gem, and we need to do everything we can to protect it." Your repeated references to the "public angst" that would be caused by the implementation of this bill was certainly not demonstrated yesterday. 

There is no biological reason why the criteria for managing the tributaries to State Heritage Fish waters would be different than the rules on the lakes and ponds themselves. Commissioner Woodcock, as the original sponsor of the bill you will recall that this is not the “Heritage Waters Law”, it is the “Heritage Fish Law”: We are not protecting the ponds per se – we are protecting the fish, and to do so effectively it is imperative that the ponds and tributaries are managed the same way. That the Heritage Law does not currently consider tributaries to lakes and ponds given Heritage designation puts the whole program at risk.  

Maine has been designated as the last true stronghold for wild brook trout, and is home to the only remnant populations of Arctic char in the lower 48. We have a responsibility to protect and preserve this irreplaceable and valuable ecological resource. Maine's Heritage Fish Law is the most effective way to ensure that populations of native brook trout and Arctic char will remain viable and healthy for generations to come. We owe it to the people of Maine to protect our State Heritage Fish now and into the future.

I hope you will reconsider your opposition to LD 1018 in advance of the work session next week. There is still time to do the right thing for our brook trout and Arctic char.

Thanks for listening.

Regards, Emily

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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