Maine's State Heritage Fish Law: Where We Were in 2005

A remote State Heritage Fish pond in Somerset County, Maine.

A remote State Heritage Fish pond in Somerset County, Maine.

To protect this population from further degradation, everything possible should be done to avoid future stockings, over harvest by anglers, and the deliberate or accidental introduction of competing fish species - Bob Mallard, 2005

Maine's State Heritage Fish Law: Where We Were in 2005

Bob Mallard, NFC National Vice Chair

Covering more than 580 waters, Maine’s State Heritage Fish (SHF) law is the largest and most important wild native brook trout initiative in the nation. The program prohibits stocking and the use of live fish as bait. And it is a binding law, not a non-binding policy.

Initiated by Sportsman’s Alliance of Maine and supported by the now defunct Dud Dean Angling Society (DDAS), the law was enacted in 2005 and amended in 2007, 2009, and again in 2013. Waters have been added to the program annually since then. And a few have been removed.

The original SHF law applied to brook trout and never-stocked lakes and ponds only. In 2007, DDAS got Arctic charr added to the law. In 2009 the law was amended to allow for restoration stocking on Big Reed Pond. In 2013, waters that had not been stocked in twenty-five years or more were added, roughly doubling the number of waters so designated.

While talking to a friend who had been involved in the SHF law since the start recently, I asked if he had the numbers we presented at the original hearings. He responded by sending me a copy of my 2005 legislative testimony. I had not seen the document in over a decade and no longer had a copy. Going back through what I had written at the time was both interesting and frustrating.

It took the threat of legislative action to finally get an accurate list of these irreplaceable natural resources from those in charge of protecting them. This has been a moving target since at least 1993. How can we protect what we cannot properly identify? - Bob Mallard, 2005

Fourteen years after this landmark native fish legislation passed there seems to be a lot of confusion as to what was done and why, and even by who. Worse there are some people who are or have challenged whether the law was necessary, or even useful, including some employed by Maine Department of Inland Fisheries and Wildlife (MDIFW).

Background

While most of the recent activity and discussion associated with the SHF law has centered around the use of live fish as bait, this was actually a secondary concern at the time the bill was submitted. The primary reason folks took this to the legislature was actually to stop stocking over never-stocked populations.

While significant actual damage had been done in regard to first-time stockings in the last twenty years, including at least one water lost to hatchery hybrid splake, administrative actions by Maine Department of Fish and Wildlife further reduced the list.

With the swipe of a pen the state of Maine (and arguably the nation) just lost roughly 35% of our ‘native’ [never-stocked] brook trout ponds. Specifically, 158 of the 454 ponds listed as native since 1996 are no longer classified as such by the DIF&W. - Bob Mallard, 2005

Using turn-of-the-century microfiche federal stocking records and indirect stocking, MDIFW reclassified numerous waters removing them from consideration, and without confirmation that the populations genetics had in fact been compromised.

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To be clear, while the use of live fish as bait and nonnative fish in general is now the biggest threat to Maine’s wild native brook trout and Arctic charr, this was not always the case. At the time the SHF bill was submitted, we were actually losing more waters to stocking than nonnative fish. Unfortunately, while our primary concern has been addressed to a large degree, our secondary concern has worsened.

We knew the use of live fish as bait was a problem then and we know it is a problem today. But many who were not intimately involved are unaware of how much of a problem it was pre-SHF.

At the time we went to the legislature many of Maine’s remaining never-stocked brook trout lakes and ponds were still open to the use of live fish as bait. The following numbers were pulled from my testimony. They are public record and were uncontested:

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While you can debate the impact of the use of worms and other forms of non-fish bait on wild trout populations, and even ignore the high incidental mortality rate associated with it which is tenfold what it is with lures and flies, you cannot deny the impact of using live fish as bait.

To be specific, using bait means losing bait, and in this case that bait is live minnows. Lose enough and it can result in the establishment of nonnative minnow species, many of which are highly invasive to wild brook trout, especially the two most commonly used species: Smelts and golden shiners.

The reason we are stocking in the first place is our inability to maintain a ‘viable fishery’ under the current management philosophies. - Bob Mallard 2005

And while admittedly not the threat that live fish as bait is, and not something we tried to change at the time, angler exploitation was and still is a problem, and at the root of many harmful stocking programs. The following numbers were pulled from my testimony, they were presented to provide a baseline for how our never-stocked brook trout lakes and ponds were being managed:

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To say the law was unnecessary when you consider the numbers presented above is inaccurate, unfair, and dangerous. It was absolutely necessary when you consider that nearly half our remaining never-stocked brook trout lakes and ponds were still open to the dangerous use of live fish as bait, and many never-stocked waters had been stocked in the last ten or so years.

Where We Are Today

Sadly, getting new waters added to the SHF list has proven difficult due to ambiguous language in the law.

The commissioner may adopt rules to amend the list established under subsection 1 to add a lake or pond if that lake or pond meets criteria established by the commissioner for classifying a lake or pond as a state heritage fish water. - Maine Statute

And building on what we started has not occurred to the level we had all hoped. In fact, two recent attempts to amend the SHF law to prohibit the use of live fish as bait on tributaries to SHF waters, and make it easier to add new waters failed to pass.

While little progress has been made regarding adding waters, it is possible that we may actually gain more protection for the tributaries of SHF waters than we asked for if a pending “concept” to prohibit live fish as bait in northern Maine by rule not exception becomes a reality. But again, this would not have happened had folks not brought it to the legislature in a failed attempt to amend the law.

Hindsight is 20-20

Looking back fourteen years, while there are a few things I would have proposed differently if I could do it over, most of what I said then is still applicable today.

Unfortunately, much of what I recommended at the time was never implemented. Like the law itself, this will unfortunately likely take legislative action to get done as much of what I wrote then has been proposed by myself and others a number of times since.

While I would change the order and put tackle above bag and length limits, the rules noted below are as applicable today than they were then:

Before a Regional Biologist can request to stock a “native” pond they should go through the following steps and provide data showing that they have done so:

  • Reduce bag limits (e.g., from 2 to 1) and increase length limits (or impose a slot)

  • Change the tackle restrictions (e.g., from ALO to FFO, etc.)

  • Impose Catch-and-Release (for at least 3 years)

  • Close the pond to fishing (for at least 3 years)

And while I proposed the following fourteen years ago, these reasonable and I believe valid suggestions are no closer to becoming a reality than they were then. Just substitute the word “native” for “State Heritage Fish” as we had no formal designation at the time:

  • In addition to requiring legislative approval to stock a “native” BKT pond, we need to protect these ponds from the out-migration of stocked fish from other ponds, rivers and streams within the watershed.

  • A ban on bait (including worms) on ponds smaller than 50 acres should be imposed to minimize incidental mortality and control harvest. The incidental mortality associated with the use of bait is unacceptably high and as such a risk to the resource.

  • Add a section to the Open Water rule book that explains what the “native” BKT ponds are, why they are so important, and what is expected of you (i.e., the rules). This section should include a conservation message encouraging anglers to release their fish.

  • Create an S-Code for “native” BKT ponds which refers to the section noted above and identify each applicable pond in the county exception section of the Open Water Fishing Regulations book.

  • Impose “double fines” for all fishing violations associated with “native” BKT ponds (using live fish as bait should be treated the same as deliberately stocking an invasive species).

  • Create a “Brook Trout” license plate with the proceeds targeted for “native” (or “wild”) BKT management.

  • Create a “Wild Trout” stamp that entitles the angler to fish in waters designated as “native” BKT water. The stamp should cost $10 with the proceeds targeted for wild BKT management.

  • Develop a marketing campaign around the “native” BKT program which includes a book listing the waters, hats, t-shirts, decals, etc.

  • While not a way to raise money per say, the DIF&W needs to develop a program by which volunteers can help in the management of our resources. As any who have tried can attest to, this has been extremely difficult.

  • Like our neighbor to the west (NH), our “native” BKT policy must include small streams and rivers where remnant populations of “native” brook trout still exist. Failure to address this could put the whole project at risk environmentally and financially (we need to sell licenses to raise money!).

One suggestion did become a reality, albeit thirteen years after I suggested it, thanks to the efforts of the Maine chapter of Native Fish Coalition:

  • Create a standard sign for “native” BKT ponds which tells the angler that the fish in that water are pure strain. This should include a conservation message encouraging anglers to release their fish.

Conclusion

Maine is not Massachusetts, Connecticut, or Rhode Island which have all but lost their wild native brook trout. In fact it’s not even New Hampshire or Vermont which while they still have wild native brook trout have lost their lake and pond and large river populations.

Maine is the last stronghold for wild native brook trout and home to 90% or more of the lake and pond large river and coastal stream populations. Maine is critical to the long-term survival of the species and must be therefore be held to a higher standard.

Was Maine’s State Heritage Fish law necessary? Absolutely. Was legislative action the way to get it done? Based on the failure to get it done voluntarily at the time and the lack of progress since, again, absolutely. Will more legislature be required to strengthen and expand it? Most likely.

Nothing did more to help stop the bleeding in regard to the last wild native brook trout lakes and ponds in the nation than Maine’s State Heritage Fish law. I am proud to have played a small role in it.

NFC National Vice Chair and Maine board member, and early proponent of Maine’s State Heritage Fish law, Bob Mallard standing under the first State Heritage Fish sign posted as part of an initiative undertaken by Maine NFC in 2018, thirteen years after first presenting the idea to the powers that be.

NFC National Vice Chair and Maine board member, and early proponent of Maine’s State Heritage Fish law, Bob Mallard standing under the first State Heritage Fish sign posted as part of an initiative undertaken by Maine NFC in 2018, thirteen years after first presenting the idea to the powers that be.

If you would like to help NFC post informational signs on Maine’s State Heritage Fish waters click here.

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