Lots of support for more protection for native brook trout

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A group of outstanding anglers stepped up to encourage the legislature’s Inland Fisheries and Wildlife Committee to expand protection of our native brook trout last Thursday.

 

The public hearing on LD 1136 lasted until 7 pm last Thursday night, and with the exception of the testimony against the bill by DIF&W, all of the testimony encouraged the legislative committee to step up protection of our native brook trout.

 

The bill, sponsored by Rep. Russell Black, would speed up the process of adding waters to the Heritage list, to protect the native brook trout there. For some reason, DIF&W has been resisting this, even after native brookies have been documented in these waters.

 

I wish I had room to publish all of the great testimony, but I’ve chosen, for this column, the testimony of Gary Corson of New Sharon, a lifelong advocate for native brookies who gets lots of credit for his leadership of SAM’s Fishing Initiative Committee and their bill which named the brook trout our Heritage Fish and protected them in 300 ponds that had never been stocked. Gary’s testimony explains the problems we all have with DIF&W’s lack of action on this issue.

 

I’m also giving you the testimony of Emily Bastian, who led Maine Audubon’s program that utilized volunteers to survey 425 remote ponds over a five year period, and who delivered passionate testimony, including the fact she quit working for Audubon when she was told to “de-emphasize the protections (for brook trout) we had promised volunteers.” Emily now works for Trident Fly Fishing, which you can check out at www.tridentflyfishing.com.

 

Even though DIF&W Deputy Commissioner Tim Peabody spoke against the bill, he focused on the fact the agency has new people at the top of the Fisheries Division and would be stepping up its work to protect our native brook trout. Many of those in the audience were skeptical of that promise and urged the committee to act, rather than wait for the department to do something.

 

IFW Committee member Rep. Paul Stearns said he likes the suggestion of protecting our brook trout in law, and Peabody responded saying, “Any time you can give direction to the department, we appreciate it.”

 

Bob Woodbury of Winslow summed up the feelings of many of us when he testified, “The state of Maine has an awesome responsibility to protect these fish.”

 

Bob Mallard, a former fly shop owner and current national fly fishing writer, handed out detailed information on the issue including language we hope the committee will use in an amendment to the bill.

 

Now, here’s my testimony, which focused on the economic value of our native brook trout, followed by the testimony of Gary Corson and Emily Bastian.

 

My Testimony

 

            This bill will protect more of our Brook Trout and Arctic Char by including their waters in the list of Maine’s Heritage Waters. Currently these native and wild (self-sustaining) populations of brook trout are protected in a list of lakes and ponds that have never been stocked or have not been stocked in twenty-five years or more. Stocking and the use of live fish as bait are prohibited to help prevent the introduction of invasive fish and disease.

            The Heritage Waters list, and the initial list of nearly 300 waters where brook trout were 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.

            Unfortunately, they are no longer aggressively protecting native brook trout and arctic charr in other waters where they have been discovered. Starting in 2012, DIF&W, Maine Audubon, and Trout Unlimited recruited volunteers to help locate more native brook trout waters, many of which are remote hike-in ponds. We all expected the department to add these waters to the Heritage List, but they have not done that. Fewer than 40% of these newly identified waters have been added to the Heritage List and protected. That is truly unacceptable to those of us who appreciate and understand how important these trout are to not only Maine, but the entire nation. Maine is home to 97 percent of the wild brook trout waters in the Eastern United States.

            In a Maine Sunday Telegram story last year, written by Deirdre Fleming, Matt Libby of Libby Camps reported, “I would say that 90 percent of our fishing business is out-of-state people looking to fish for wild or native brook trout. They won’t even fish in one of our very few stocked ponds that we have in our area. People are looking for native fish.” Indeed they are.            Harvey Calden, who has owned, with his wife Betty, Tim Pond Camps northwest of Rangeley for 35 years, said 90 percent of his clients come for the native brook trout, and half come from out of state. “The fight on the end of the line is twice what it would be for a (hatchery) fish that is twice as big. They’re really strong,” Calden said.

            It’s the same story at the northern tip of Maine at 130-year-old Red River sporting camp, which sits within a 22,000-acre of public reserve land that is home to 17 wild brook trout waters.

            “The single biggest question I get asked is: ‘Are your fish native?’ said Red River owner Jen Brophy. “It’s just the mystique about catching a native trout, it’s something wild, it’s not farm-raised. There is an allure to it.”

            Kathy Hoerbinger of Palm Beach Gardens, Florida, said she and her husband, Marty, have fished all over the world, most recently Mongolia, but their “hearts are at Libby Camps” because of the trout that are native and wild.

            So yes, there is a strong economic argument for this bill as well.

            This bill seeks to make the criteria for adding waters to the Heritage list, the same as what was used to create the initial lists. Specifically, while the criteria for creating the original lists was science-based and defined by the legislature, the criteria for adding waters was left to the IFW Commissioner’s discretion, and allowed to be based on non-scientific criteria set by the commissioner. That turned out to be a mistake.

 

Gary Corson’s testimony

 

Senator Cyrway, Representative Duchesne, and distinguished members of the Fish and Wildlife Committee; my name is Gary Corson, I’m from New Sharon. Speaking NFNA LD 1236.

 

I'd like to begin by saying I understand and share the concerns the proponents of this bill have, and I support the concept of the proposal.  I've attached a portion of an email I sent to Commissioner Woodcock in July 2016  that's relevant to adding SHFW and confirms my concerns and disappointment with the process of adding waters. (See Attachment 1)

In that email I acknowledged that the Department was adding 3 new waters, I left the survey project waters to those involved with that effort (MA, TU, and the Department) and focused my comments on 4 waters that qualified in 2014 and 2015, by reaching the 25-year mark.

In addition, I recommended "Better communications between stakeholders, the public, and the Department, would go a long way in resolving some of these issues".

It's disappointing to be here today, 9 months later, and report nothing has changed except now there are 5 waters that qualify for SHFW status because of the 25-year clause.

 

I'm testifying NFNA because I'm not sure the bill does what needs to be done and as written, it was confusing to me. As mentioned I support the concept and I do believe that some action is needed. I'm more in support than I am opposed.

 

I believe we’re here today as a result of the Departments decision to stall or put off adding qualified waters to the SHFW list and the email regarding the Commissioner's criteria. The following is my take on that criteria. 

1. Has to be a lake or pond

2. Cannot be stocked within the last 25 years inter/intra specific stocking

Both are relevant to the statute and appropriate criteria when adding a water to the list. I'd suggest, if a water is a BKT/BBC water and meets these 2 criteria, it should be proposed.

 

3. Must be a Principal Fishery - (See attachment 2 - Definition of a Principal Fishery)

This  definition is subjective, it's interpreted differently between regional staff, and from what I've seen of the data regarding principal fishery status, it could be a whole lot better.

In addition, there's no way a newly survey pond could possibly meet this definition.

4. Waters need to support all life stages - New criteria, I'd need more information and a better understanding of the intent before I'd feel comfortable commenting on it.

 

Basically numbers 3 and 4 are an attempt to define BKT or BBC waters referenced in the SHFW statute. As written, the statute doesn't stipulate a principal fishery, or a fishery that has a presence of BKT/BBC. There can be a big difference between these 2-options. This is a matter I believe deserves some attention and at some point will need clarification.

 

5. Cannot be a water planned for a restoration project - This completely disregards  SHFW statute. The statute prohibits stocking period. The Heritage legislation has been amended twice to allow restoration projects, both were accomplished through the legislative process. And that's as it should be. You should be aware that in one instance this Committee rejected a proposal to restore a BKT population as  a result of public hearing testimony. From what I've seen, the current process works, it's proven itself to work, and should not be altered.

 

6. Social concerns - To consider social concerns as criteria when proposing a qualified water circumvents the intent of the legislation. That's not to say that social concerns couldn't or wouldn't exclude the addition of a particular water. Those concerns however should come out of the required public hearing process that follows the water being proposed.

 

I find it hard to believe that Commissioner Woodcock actually thinks the above criteria (3 thru 6) should play a role in adding waters to the Heritage list. To me, it sounds more like some ones criteria to keep waters off a list.

 

I'd remind the Committee that the SHFW legislation is about protecting some of the last wild and native brook trout (BKT) and arctic char (BBC) populations in the Country. As such, I was under in the impression the Department/commissioner were expected to propose all lakes and ponds that qualify. (ie. BKT/BBC waters that have never been stocked or haven't been stocked in the last 25-years.) Proposing waters for addition is only a part (and I would contend a small part) of the process. The public hearing process following the proposal, is where the rubber hits the road and where the final decision to add a water or not should be decided. That final decision is made by the Commissioner and the Departments Advisory Council. That's the process. To not propose qualified waters I believe: 1.  circumvents the intent of the SHFW legislation, 2. limits the public's involvement in the process, and 3. has the potential to put some of the Country's last wild and native BKT/BBC waters at risk.

 

I'd like to close my testimony by leaving the Committee with some personal thoughts on the SHFW. I think the SHFW legislation is the best piece of legislation pertaining to the management of Maine's wild and native salmonid fisheries ever enacted.  If we take care of this legislation, it will be more important 30, 40, 50, years from now, then it is today.

The first time I testified before this committee was in the 1980's, I was very active on legislative matters concerning the State's fisheries from the late 1990's through 2014. There's nothing I've been a part of in Augusta that I'm more proud of then my involvement with the SHFW legislation. I made my living off this resource, and I know how important it is. The enactment of the SHFW legislation in 2005 identified and protected some of the State's most valuable fisheries, and it could be argued that value increases with every passing day.

 

As much as I support and respect the Commissioner and Frances, and as much as I appreciate  some of the changes in staff and structure at the Division leadership level, I remain concerned with the Departments commitment to responsibly manage these waters. The testimony I heard on LD 1018 a few weeks ago certainly didn't lessen my concerns; we still have fisheries division staff that have never bought into the SHFW legislation; the Department's history of opposition to the SHFW is well documented; and, there's no doubt in my mind, that left up to the Department, there would be no list of SHFW.

 

I urge the committee to stay involved with any and all changes to the SHFW legislation. And, I think it's important that you maintain an active role in the management of these waters.

 

Thank you for allowing me the opportunity to testify.

 

Emily Bastian’s testimony

My name is Emily Bastian, I am a degreed Ecologist.  I have worked for Maine Department of Inland Fisheries and Wildlife, National Park Service, Audubon, Appalachian Mountain Club and currently Trident Fly Fishing.  This includes spending five years working for Maine Audubon as the Project Coordinator for the joint Audubon/TU/MDIFW Brook Trout Survey Project.

Maine’s State Heritage Fish Law offers the only formal, documented and legally binding protection for our self-sustaining native brook trout and Arctic char.  Currently these fish are protected in a list of lakes and ponds that have never been stocked or have not been stocked in 25 years or more. The law does nothing more than prohibit IFW from doing and allowing what their own biologists have said is harmful to wild brook trout and Arctic char – stocking and the use of live minnows as bait.  It does not eliminate the use of worms or change the bag or length limits on any waters.

THE BROOK TROUT POND SURVEY PROJECT

Since 2011, hundreds of volunteer anglers have taken to the field on their own time and at their own expense to assist IFW in identifying and documenting previously-unknown populations of pond-dwelling wild native brook trout.  These ponds have never been stocked and contain what are in most cases – if not all – genetically-pure brook trout.  To date, more than 400 volunteers have donated nearly 8,000 cumulative hours to the project and have surveyed over 425 remote ponds – a tremendous dedication of effort and show of support for Maine’s native brook trout. 

A PROMISE OF PROTECTION

From the beginning, the project partners – IFW, TU and ME Audubon – all agreed on a very simple and clear goal for the Brook Trout Pond Survey Project: To identify previously undocumented self-sustaining native brook trout populations in remote Maine ponds and to protect brook trout in those survey waters where they are confirmed.” 

Thanks to the dedicated efforts of the Brook Trout Pond Survey volunteers, IFW biologists have been able to confirm 70 previously unknown self-sustaining native brook trout ponds since the project began. 

The brook trout in these ponds are highly vulnerable.  Many of these ponds are tiny – less than ten acres – and therefore extremely vulnerable to exploitation, invasive fish (including minnows) and competition with stocked fish.  They are some of the most fragile waters in the state.

We promised that these waters would be put on the Heritage Fish List to protect them from invasive minnows and stocking.  This goal was documented on our websites, our presentations to volunteers and our recruitment materials.

While volunteers worked hard to identify previously unknown wild brook trout ponds, the partners fell dangerously behind in securing the promised protections for these waters.  As the years passed the problem worsened, with a larger percent of the newly discovered waters left unprotected at the end of each year.  Ultimately, our identification and documentation of these waters without protecting them was doing more harm than good by removing their anonymity and failing to replace it with formal restrictions.

Of the roughly 70 ponds where volunteers identified wild native brook trout and IFW biologists confirmed their presence, only 23 of them have been added to the Heritage List to date.  Approximately 10 of the ponds omitted date back to the beginning of the project, leaving them exposed and unprotected for over five years.  That over two-thirds of the confirmed native brook trout ponds have been left entirely unprotected is unacceptable. 

I tried to address this by working with the project partners.  I suggested a change in strategy, as our ongoing meetings with IFW were not yielding the desired results.  Around this time last year, I was informed by Bob Mallard that he was helping George Smith with some legislation which they hoped would address the addition of our survey waters as well as other applicable waters that IFW was failing to add the Heritage List.  As Project Coordinator, I was the one who sent the volunteers into the field, and I was eager to bring closure and fulfill the promises we had made to them. 

Unfortunately, TU and Audubon decided to stay the course and continue to negotiate with IFW which to date had yielded limited results rather than the support the legislation.  As the months passed with no measurable progress and public pressure to address the problem increased, the project partners decided to deemphasize their promise of protection and focus primarily on identification, a decision I was not comfortable with since I had been telling the volunteers that our goal was protection not just identification. 

KEEPING A PROMISE

For five years, I traveled the backwoods of Maine working with volunteers to locate and survey the last remaining unknown wild native brook trout waters in the state and possibly the country.  I planned the survey trips, fed the volunteers, helped change blown-out tires deep in the woods (which volunteers were not reimbursed for) and poured through maps with compass and GPS to plot a course into these uncharted waters, blazing trails for miles so we could determine if wild native brook trout were present and gain protection for them if they were.

We all knew why we were there: There was never any doubt nor any debate.  Never once did the thought of the partners failing to provide the protections they promised enter our minds.  Everyone involved acted in good faith and we went where we were sent at whatever hardship the effort required.  We did so in a sincere desire to protect – not simply identify – these populations of our state heritage fish. 

I did what the project partners told me to do.  I worked tirelessly to recruit and train volunteers, and I sent them into the woods with the promise that the waters they discovered would be protected.  The volunteers did their part as well, taking time from their busy schedules and working for free to help protect this invaluable resource.  They gave their blood to the hordes of blackflies and their sweat to the damp hot woods.  They did so because they believed in the mission, and they believed in us.  They believed we would keep our promises. 

The volunteers came from all walks of life.  From rich to poor, from urban to rural, from old to young.  While most were from Maine, some came from out-of-state because they felt so strongly about what we were doing.  But no matter where they came from or who they were, they were all license-buying anglers with one thing in common: A love for Maine’s native brook trout and a belief that these special fish need and are deserving of protection.

The partners made a promise to me.  I made a promise to the volunteers.  And the partners reiterated that promise to the volunteers.  But we failed to keep that promise, and for that we should be ashamed.

When it became apparent that IFW was not going to hold up their end of the bargain, rather than embrace a new plan of action, the other partners opted to change the emphasis of the project so we would not make promises we could not – or more accurately would not – keep.  I was instructed to change my presentation and website to de-emphasize protection and focus on identification.  “We need to be careful what we say about protection,” I was told by one project partner.

MY RESIGNATION

I poured my heart and soul into the joint Audubon/TU/IFW Brook Trout Survey Project for five years of my life.  Even when I knew we were falling behind and failing to deliver on our promises, I stuck with it and tried to find a way to address our failings because I believed in the mission and was unwilling to abandon the volunteers or our wild native brook trout.  I was willing to do whatever it took to protect these fish and I refused to let the volunteers down.

When I was directed to change my presentation and website to de-emphasize the protections we had promised the volunteers, I refused to accept it or be part of it.  I was stunned and disappointed that the project partners were willing to change the format of the project, and renege on their promise to the volunteers rather than stand up for what was right.  I was unwilling to deceive my volunteers, and I resigned rather than compromise my beliefs.  

Resigning from Audubon and walking away from the Brook Trout Survey Project was a gut-wrenching decision.  It was as much a calling as it was a job, and something I truly believed in.  I did it for the fish, not the money.  Only when it became abundantly clear that we had changed directions and there was nothing I could do to change that did I act.  

I lost my job and my place in the Maine trout conservation community trying to protect these ponds and honor our promise to the volunteers.  I am here today pleading with you to uphold those promises, so we can continue the important work that was started in 2005 when a group of concerned anglers fought for the passage of the State Heritage Fish Law to gain some much-needed protections for our wild native brook trout and Arctic char. 

The only way we will gain the protections promised to the volunteers and prevent this from happening again is to amend the law to require, not suggest, that IFW add the newly discovered never-stocked native brook trout ponds and other applicable waters to the Heritage list.  

THE STATE HERITAGE FISH LAW – A WORK IN PROGRESS

There is absolutely no biological reason why the rules for adding new waters to the Heritage list should be different than the criteria for establishing the initial lists.  The bill before you today seek to make the criteria for adding waters to the Heritage list the same as that used to create the initial lists.  How can we view creating the lists differently than we do maintaining them going forward?  

The legislature unanimously passed the State Heritage Fish Law in 2005.  No one involved believed that it was intended to be static.  The precedent has been set as the law has been amended in 2007, 2009, 2013 and 2014. 

It is fair to say, and the facts support the position, that IFW has never supported the Heritage Fish law.  They went back to turn-of-the-century federal stocking reports of questionable reliability to keep waters off the list because they had been stocked. They interjected the theory of “indirectly stocked” to omit waters without doing any research to confirm whether stocked fish from a secondary source had – or even could – migrate into the target water.  They have failed to add waters that meet the 25-years-since-last-stocking threshold, and refused to add the waters the volunteers worked so hard to identify. 

If we all agree that change is warranted, we should document that change via amendment so it is binding and so it is implemented as quickly as possible.  While “agreements” can be undone with minimal effort, amendments are legally binding and not easily undone.  Amending the State Heritage Fish Law assures that these changes cannot be reversed without legislative approval in the future.

I do not believe that anyone in this rooms disagrees that we have a problem that needs to be addressed.  The only question is how to address it.  This isn’t about turf or avoiding hurting anyone’s feelings – it’s about protecting wild native brook trout and living up to the promises we have made to volunteers who went where we sent them and did what we told them to do in the name of protecting our native brook trout.

IFW will likely tell you that they will address our concerns through internal processes and that a law is not necessary.  But one must ask: Why did IFW not do this before now when we had to come here and when there was nothing to prevent them from doing so?   And why did they not act when the other project partners asked them to? 

There is no reason to delay this and many reasons not to.  An exhaustive, time-consuming analysis as IFW may suggest is necessary is wasteful and will only serve to delay the outcome and compromise the result.  We have lost much in a relatively short time, and delay only threatens the resource even further. 

In 1993, Maine had 432 never-stocked native brook trout ponds.  When the State Heritage Fish Law was passed in 2005, we were down to less than 300: That constitutes a loss of roughly 35% in just over a decade.  At the rate we were going, we were on track to lose all our never-stocked brook trout lakes and ponds in my lifetime.  And that is something that I am unwilling to accept.

The situation regarding invasive minnow infestations is no better.  In the last decade, we have lost two of twelve rare Arctic char populations and numerous wild brook trout populations to invasive smelts and shiners.  Bald Mountain Pond, also home to rare Arctic char, recently succumbed to invasive smelts.  By most definitions, Maine is experiencing the worst invasive fish infestation epidemic in the nation.

Maine has been designated the last stronghold for wild native brook trout, and is home to the only populations of Arctic char left in the lower 48.  We have a responsibility to protect and preserve this irreplaceable and valuable ecological resource.  We owe it to the hundreds of volunteers who donated thousands of hours surveying remote waters across the state to make good on our promise, and we owe it to the people of Maine to protect our state Heritage Fish now and into the future. 

Legislation is not only the most effective way to ensure that our wild native State Heritage Fish will receive protection from stocking and the use of live fish as bait, as history has proven, it is the only way.  All other efforts to gain these protections have failed.

Failing to amend the law will result in a partial solution and a delayed and incomplete implementation.  Legislative action acknowledges the hard work of those who brought this to the table, and the volunteers we sent into the field to find these waters, while requiring that IFW do what they are supposed to do–protect the resource.  As members of the State Legislature, you have the power to act.  You can bring closure to what has taken five years to bring to the table.  

Please support LD 1236: An Act to Improve Maine’s Heritage Fish List. Thank you for your time and careful consideration. 

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