[HISTORY: Adopted by the Town Council of
the Town of Bar Harbor 10-2-1990 as § 07.02 of the 1990
Code; amended 2-3-1998; 11-16-1999; 4-3-2001; 5-18-2004 by Ord. No. 2004-4; 5-17-2005 by Ord. No. 2005-04; amended in its entirety 6-19-2012 by Ord. No. 2012-02. Subsequent amendments
noted where applicable.]
GENERAL REFERENCES
Port and harbor — See Ch. 153.
This chapter is enacted in accordance with 12
M.R.S.A. § 6671.
The purpose of this chapter is to establish
a shellfish conservation program for the Town of Bar Harbor that will
ensure the protection and optimum utilization of shellfish resources
within its limits. These goals will be achieved by means including:
A.
The shellfish conservation program for the Town of
Bar Harbor will be administered by the Marine Resources Committee,
consisting of seven members to be appointed by the Town Council for
staggered terms of three years.
B.
Committee's responsibilities. The Committee's responsibilities
include:
(1)
Establishing annually, in conjunction with the Maine
Department of Marine Resources, the number of shellfish digging licenses
to be issued.
(2)
Surveying each clam-producing area at least once each
three years to establish size distribution and density and annually
to estimate the status of the Town's shellfish resources.
(3)
Submitting to the Town Council proposals for the expenditure
of funds for the purpose of shellfish conservation.
(4)
Keeping this chapter under review and making recommendations
for its amendment.
(5)
Securing and maintaining records of shellfish harvest
from the Town's managed shellfish areas and closed areas that are
conditionally opened by the Department of Marine Resources.
(6)
Recommending conservation closures and openings to
the Town Council in conjunction with the area biologists of the Department
of Marine Resources.
(7)
Submitting an annual report to the municipality and
the Department of Marine Resources covering the above topics and all
other Committee activities.
(8)
Submitting to the Town Council proposals for ordinances
that affect land use in areas where shellfish beds will be impacted.
(9)
Submitting to the Town Council proposals for ordinances
that affect water use in areas where shellfish beds will be impacted.
(10)
Supporting water quality monitoring efforts by local
citizen and school groups that are working with the Maine Department
of Marine Resources in areas where shellfish beds are located. This
includes but is not restricted to:
(a)
Assisting with selection of monitoring sites;
(b)
Attending training sessions;
(c)
Participating in water sample collection;
(d)
Assisting with watershed surveys;
(e)
Submitting to the Town Council proposals for
the expenditure of funds for the purpose of addressing water quality
related issues;
(f)
Working with the Conservation Commission to
evaluate water quality data; and
(g)
Making recommendations to the Town Council for
changes in land or water use practices that are impacting shellfish
beds.
As used in this chapter, the following terms
shall have the meanings indicated:
A person who is under 18 on the first day of the licensing
period.
[Added 7-21-2020 by Ord. No. 2020-10]
Anyone not qualified as a resident under this chapter.
A person who has been domiciled in this municipality for
at least three months immediately prior to the time his/her claim
of such residence is made.
Soft-shell clams, Mya arenaria; quahogs, Mercenaria mercenaria;
and Eastern oysters, Crassostrea virginica.
[Amended 9-6-2022 by Ord. No. 2022-04]
A.
Generally.
(1)
License required. It is unlawful for any person to
dig or take soft-shell clams from this municipality without having
a current license issued by this municipality as provided by this
chapter.
[Amended 9-6-2022 by Ord. No. 2022-04]
(2)
License fees waived. Resident recreational shellfish
license fees will be waived for residents over 65 and under 16 years
of age.
(3)
State commercial license. A commercial shellfish harvester
must have a valid commercial shellfish license issued by the Maine
Department of Marine Resources. This license does not need to be purchased
prior to purchase of the Town license.
B.
Designation, scope and qualifications.
(1)
Resident commercial shellfish license. The license
is available to residents of the Town of Bar Harbor. It entitles the
holder to dig, take or possess any amount of soft-shell clams from
the shores and flats of this municipality, except where lower limits
have been established for certain areas.
[Amended 9-6-2022 by Ord. No. 2022-04]
(2)
Nonresident commercial shellfish license. The license
is available to nonresidents of this municipality. It entitles the
holder to dig, take or possess any amount of soft-shell clams from
the shores and flats of this municipality, except where lower limits
have been established for certain areas.
[Amended 9-6-2022 by Ord. No. 2022-04]
(3)
Resident
junior commercial license. This license is available to any resident,
who has attained his or her 13th birthday, but has not yet attained
their 18th birthday as of the first day of the current licensing year.
This license entitles the holder to harvest and take any amount of
soft-shell clams from the shores and flats of this municipality, except
where lower limits have been established for certain areas.
[1]
Editor's Note: This ordinance also redesignated former Subsection
B(3) through (8) as Subsection B(5) through (10), respectively.
(4)
Nonresident
junior commercial license. This license is available to any nonresident,
who has attained his or her 13th birthday but has not yet attained
their 18th birthday as of the first day of the current licensing year.
This license entitles the holder to harvest and take any amount of
soft-shell clams from the shores and flats of this municipality, except
where lower limits have been established for certain areas.
[Added 7-21-2020 by Ord. No. 2020-10; amended 9-6-2022 by Ord. No. 2022-04]
(5)
Resident recreational shellfish license. License required
for harvest of soft-shell clams only. The license is available to
residents and real estate taxpayers of this municipality and reciprocating
municipalities. It entitles the holder to dig, take or possess no
more than one peck of soft-shell clams in any one day for personal
use. This license is not available, nor valid, to holders of a Maine
commercial shellfish license.
[Amended 9-6-2022 by Ord. No. 2022-04]
(6)
Nonresident recreational shellfish license. The license
is available to any person not a resident of this municipality. It
entitles the holder to dig, take or possess not more than one peck
of soft-shell clams in any one day for personal use. This license
is not available, nor valid, to holders of a Maine commercial shellfish
license.
[Amended 9-6-2022 by Ord. No. 2022-04]
(7)
All shellfish licenses. It shall be unlawful for an
individual to possess any Bar Harbor shellfish license if their state
shellfish harvesters license is under suspension or revocation for
any reason for the period of state suspension at a minimum.
(8)
License must be signed and consent to inspection.
In order for a Town shellfish license to be valid, it must be signed.
Any person who signs a Town shellfish license has a duty to submit
to inspection and search for violations related to the licensed activity
by the Town Shellfish Warden or other Law Enforcement Officer under
the following conditions:
(a)
Watercraft or vehicles and the equipment located
on watercraft or vehicles which are used primarily during shellfish
harvesting activity may be searched or inspected at any time if the
Shellfish Warden or other Law Enforcement Officer has a reasonable
suspicion of a violation of the Town Shellfish Conservation Ordinance
by the licensed individual.
(9)
Conservation time requirements for commercial shellfish license.
No commercial license shall be issued until the applicant has completed
the minimum number of mandatory conservation hours. Qualifying conservation
time includes attending Marine Resources Committee meetings, clam
flat population and recruitment surveys, reseeding and any other approved
activity. Any member of the Bar Harbor Marine Resources Committee
may verify hours for approved activities. The minimum required conservation
hours will be established by the Marine Resources Committee at least
six months prior to current license expiration date. Conservation
time must be accumulated in the previous licensing year; however,
if an individual obtains the appropriate conservation time, but is
unable to obtain a commercial license, their conservation time will
rollover to the next year or until they are offered a license to the
next year or until they are offered a license. Conservation time requirements
are waived for anyone 16 and under at the end of the previous licensing
year.
[Amended 7-21-2020 by Ord. No. 2020-10]
(10)
Commercial license eligibility. Individuals possessing Bar Harbor
commercial shellfish harvesting licenses for four of the previous
five years and who have accumulated the required conservation time
are eligible to obtain their licenses two weeks in advance of the
next license year. The Marine Resources Committee shall determine
the number of advance licenses available for the next year no later
than six months in advance. If the number of eligible individuals
exceeds the number of advance licenses available, those licenses shall
be assigned through a lottery. Any licenses not issued before the
first working day of the new license year will be available to any
eligible individual that has met the conservation time requirement.
[Amended 6-18-2019 by Ord. No. 2019-08]
C.
Application procedure. Any person may apply to the
Town Clerk, on a form provided by the municipality, for the licenses
required by this chapter.
(1)
Contents of the application. The application must
be in the form of an affidavit and must contain the applicant's name,
current address, birth date, height, weight, signature, number of
conservation hours and any other information the municipality may
require.
(2)
Misrepresentation. Any person who gives false information
on a license application will cause said license to become invalid.
D.
Fees. Fees for the various classifications of licenses
shall be established by the Town Council from time to time. License
fees must accompany in full an application for any license. The Town
Clerk shall transfer all fees received to the Town Treasurer. Fees
received for shellfish licensing shall be used by the Town for shellfish
management, conservation and enforcement. Fifty cents may be retained
by the Town Clerk's office, or a designated agent, at point of purchase.
E.
Limitation of diggers. Because the shellfish resources
are limited and a commercial or recreational digger can be expected
to harvest a certain volume of clams per year, the number of diggers
must be controlled. This number will vary from year to year depending
upon estimates of the resource capabilities and management requirements
consistent with good resource utilization. The following procedures
will be followed to exercise the control:
(1)
Number of licenses established. Prior to May 1 the
Town Marine Resources Committee, with the approval of the Maine Commissioner
of Marine Resources, will establish the number of commercial and recreational
licenses to be permitted following the requirements of 12 M.R.S.A.
§ 6671(3-A).
(2)
Notice to Town Clerk. Prior to June 1 the Town Marine
Resources Committee will notify the Town Clerk in writing of the number
of licenses to be issued.
(3)
Public notice. Not less than 10 days prior to the
period of issuance notice of the number of licenses to be issued and
the procedure for application shall be published in a trade or industry
publication, or in a newspaper or combination of newspapers with general
circulation, effective in reaching persons affected. Notice shall
also be posted in the municipal offices until the period of issuance
concludes.
(4)
Limited
license sales. The number of licenses issued may be limited and will
be issued according to the Municipal License Allocation Request as
approved by DMR. The Town Clerk shall issue licenses to residents
and nonresidents as allocated for the first 90 days of the period
of issuance after which any unsold licenses shall be made available
to residents and nonresidents alike on a first-come-first-served basis
or by lottery, at the approved fee per available license class.
[Added 7-21-2020 by Ord. No. 2020-10[2]]
[2]
Editor's Note: This ordinance also redesignated former Subsection
E(4) as Subsection E(6).
(5)
Unlimited
license sales. When the Marine Resources Committee determines limiting
shellfish licenses is not an appropriate shellfish management option
for one or more license categories for the following year, it can
change to unlimited license sales within a category. The Town Clerk
shall issue licenses as allocated. On the first day of license sales,
the total number of nonresident commercial licenses shall be issued
in accordance with DMR Regulations Chapter 7.4, Section 1. Thereafter,
nonresident licenses will be issued in accordance with the 10% rule
as described in 12 M.R.S.A. § 6671, Subdivision 3E, and
DMR Regulations Chapter 7.4, Section 2, Table 1.
[Added 7-21-2020 by Ord. No. 2020-10; amended 9-6-2022 by Ord. No. 2022-04]
(6)
Dates of issuance. The Town Clerk shall issue licenses
as allocated from the first day of July. Categories with limited license
sales shall be offered until the 28th day of September, after which
licenses in these categories shall be issued to residents and nonresidents
on a first-come-first-served basis.
[Amended 7-21-2020 by Ord. No. 2020-10]
F.
License expiration date. Each license issued under
the authority of this chapter expires at midnight on the 30th day
of June following the date of issue.
G.
Suspension. Any shellfish licensee convicted of a
violation of this chapter shall have his/her shellfish license automatically
suspended for a period of 30 days. Any subsequent conviction shall
result in loss of shellfish license for one year.
(1)
Reapplication. A licensee whose shellfish license
has been suspended pursuant to this chapter may reapply for a license
only after the suspension period has expired.
(2)
Effective date of suspension. The suspension shall
be effective from the date of mailing of a notice of suspension by
the Town Clerk to the licensee.
[Amended 8-4-2015 by Ord.
No. 2015-02; 9-6-2022 by Ord. No. 2022-04]
The Town Council, upon the approval of the Maine
Commissioner of Marine Resources, may open and close areas for shellfish
harvest. Upon recommendation of the Marine Resources Committee and
concurrence by the Maine Department of Marine Resources area biologist
that the status of the shellfish resource and other factors bearing
on sound management indicate that an area should be opened or closed,
the Marine Resources Committee presents the recommendation to Town
Council. Town Council may vote to approve or deny the change in status
at that time, or call a public hearing on 10 days' notice published
in a newspaper having general circulation in the Town, stating the
time, place and subject matter of the hearing, and shall send a copy
of the notice to the Department of Marine Resources. The decision
of the Town Council shall be based on findings of fact. Once Council
has approved the recommended change in harvest area status, application
will be made to the Maine Department of Marine Resources for state
approval.
A.
LOT
NIGHT DIGGING
POSSESS
Definitions. As used in this section, the following
terms shall have the meanings indicated:
The total number of soft-shell clams in any bulk pile. Where
soft-shell clams are in a box, barrel or other container, the contents
of each box, barrel or other container constitutes a separate lot.
The taking of shellfish during the period from 30 minutes
after sunset to 30 minutes before sunrise.
Dig, take, harvest, ship, transport, hold, buy and sell,
retail or wholesale, soft-shell clam shell stock.
B.
Tolerance. Any person may possess soft-shell clams
that are less than two inches if they comprise less than 10% of any
lot. The tolerance shall be determined by numerical count of not less
than one peck nor more than four pecks taken at random from various
parts of the lot or by a count of the entire lot if it contains less
than one peck.
C.
Night digging. Shellfish harvesting in Bar Harbor
is limited to the period from 30 minutes before sunrise to 30 minutes
after sunset, with no night digging of soft-shell clams allowed except
by special permit.
D.
State harvest limits. For any species of shellfish with no stated
harvest limits for the town, the state limits for harvest for both
size and quantity of shellfish that can be harvested apply for any
areas open to shellfish harvest.
[Added 9-6-2022 by Ord. No. 2022-04]
A person who violates this chapter shall be
punished as provided by 12 M.R.S.A. § 6671(6-A) and (10).
This chapter has been approved by the Maine Commissioner of Marine Resources. Section 170-5B(8) of this chapter, Commercial license eligibility, shall become effective January 1, 2013, with the balance of this chapter effective 30 days following its adoption by the Town Council, provided that a certified copy of this chapter is filed with the Commissioner within 20 days of its adoption.
