[HISTORY: Adopted by the Town Council of the Town of Cumberland 5-24-2004, as amended
through 11-28-2011. Subsequent
amendments noted where applicable.]
This chapter shall be known and cited as the "Shellfish Conservation
Ordinance of the Town of Cumberland, Maine."
This chapter is enacted in accordance with 12 M.R.S.A. § 6671,
as amended from time to time.
The purpose of this chapter is to establish a shellfish conservation
program for the Town of Cumberland which will ensure the protection
and optimum utilization of shellfish resources within its limits.
These goals will be achieved by means which may include:
It is hereby determined as follows:
A.
The tidal mud flats of the Town are a very valuable shellfish resource
which is important to the local economy.
[Amended 5-14-2019]
B.
These tidal mud flats are not an inexhaustible resource, and therefore
they must be prudently managed in order to remain viable.
[Amended 5-14-2019]
C.
As part of the management process, it may be necessary to restrict
the taking of shellfish by limiting the number of shellfish licenses,
restrict the size and quantity of shellfish which may be harvested,
and take other measures as outlined in this chapter.
As used in this chapter, the following terms shall have the
meanings indicated:
One guest shall be permitted to assist a licensed recreational
shellfish harvester to harvest one peck of shellfish per day. The
license holder and guest combined may possess no more than one peck
of shellfish per day.
[Amended 5-14-2019]
The shores, flats, or other land below the high water mark
and above subtidal lands.[1]
[Added 5-14-2019]
The total number of shellfish in a bulk pile. Where shellfish
are in a box, barrel or other container, the contents of each box,
barrel or other container constitutes a separate lot.
[Amended 5-14-2019]
The Town of Cumberland, Maine.
Anyone not qualified as a resident under this chapter.
For consumption or use by oneself, by members of the immediate
family or by invited guests.
To have in one's custody or control, either personally or
by another who is under one's control.
A person who has been domiciled in this municipality for
at least 180 days prior to the time his or her claim of such residence
is made or a person who has paid property taxes on property located
in the Town of Cumberland in the calendar year preceding the year
in which the license is being issued.
Resident and nonresident licenses shall be issued to persons
at least 70 years of age as available.
[Amended 10-10-2023]
Soft-shell clams (Mya arenaria), quahogs/hard-shell clams
(Mercenaria mercenaria), American/Eastern oysters (Crassostrea virginica),
European oysters (Ostrea edulis), razor clams (Ensis directus), and
surf/hen clams (Spisula solidissima), and includes shellstock and
shucked shellfish. State law shall apply to mussels.
[Amended 5-14-2019]
Shellfish which have not been removed from their shells.
[Added 5-14-2019]
The owner of real estate located in the Town of Cumberland.
The Town of Cumberland, Maine.
A tidal mud flat or tidal mud flats closed pursuant to § 223-17 of this chapter.
[Amended 5-14-2019]
A person who participates in any of the activities of the
Shellfish Conservation Commission.
[1]
Editor's Note: The former definition of "junior license,"
which immediately followed, was repealed 10-10-2023.
A.
A municipal shellfish license is required. It is unlawful for any person to dig or take shellfish from the shores and flats of this municipality without having a current, valid license issued by this municipality as provided by this chapter. Individuals who are 16 years of age or older are eligible for a shellfish license, if available, as outlined in this chapter. Individuals who are under 16 years of age may accompany a license holder as outlined in § 223-8B(1) below.
[Amended 10-10-2023]
B.
No person shall be issued a municipal shellfish license who, upon
the time of request, has failed to appear in court for a shellfish
violation or has failed to pay any outstanding shellfish violation
fines.
A.
The harvesting of shellfish within the Town of Cumberland is permitted
only during those hours starting 1/2 hour before sunrise and ending
1/2 hour after sunset. It is unlawful to harvest shellfish during
the time starting 1/2 hour after sunset to 1/2 hour before sunrise.
B.
As appropriate, the Shellfish Conservation Commission may designate
areas in Cumberland to be open to commercial digging. Notice shall
be published in a local paper and notice shall be provided to those
who have submitted completed notification forms by January 5 each
year.
[Amended 12-12-2016[1]]
[1]
Editor's Note: This amendment also repealed former Subsection
B and redesignated former Subsection D as Subsection B.
C.
Rules shall be promulgated annually by the Shellfish Conservation
Commission. The rules shall include areas for harvesting as well as
a recommendation for the number of licenses to be issued each year
in each category of license.
[Amended 12-12-2016[2]]
[2]
Editor's Note: This amendment also repealed former Subsection
C and redesignated former Subsection E as Subsection C.
A.
Commercial licenses.
(1)
Annual resident commercial shellfish license. This license is available to residents and/or taxpayers of the Town of Cumberland and entitles the holder to dig and take two bushels of shellfish per day from the shores and flats of this municipality and reciprocating municipalities in the areas to be designated pursuant to § 223-7 of this chapter. The licensee will maintain an accurate log of the days harvested commercially in his or her required shellfish harvesting log, which is due by June 30 each year to the office of the Town Clerk.
(2)
Annual nonresident commercial shellfish license. This license is available to nonresidents of this municipality and entitles the holder to dig and take two bushels of shellfish per day from the areas designated pursuant to § 223-7. The licensee will maintain an accurate log of the days harvested commercially in his or her required shellfish harvesting log, which is due by June 30 of each year to the office of the Town Clerk.
(3)
Qualifications specific to commercial shellfish licenses.
(a)
The Shellfish Conservation Commission may specifically designate
the period of validity as well as the areas open to commercial harvesting
each year.
(b)
Commercial shellfish license holders are supplied with, and
required to keep, a shellfish harvesting log, which must be submitted
to the Town Clerk by June 30 of each year. The log will include the
license holder's name and address and will show the date, location,
and number of bushels harvested during each tide. Commercial license
holders who do not submit harvesting logs as required will not be
eligible for a commercial license during the next period of issuance
of commercial licenses.
(c)
A shellfish license must be on your person when harvesting shellfish.
B.
Recreational shellfish licenses. A person holding a recreational
shellfish license may not engage in the wholesale or retail sale of
any shellfish harvested under that license. Recreational shellfish
licenses are not available and not valid for a person who holds a
shellfish license issued by the Maine State Commissioner of Marine
Resources. Resident commercial or recreational licenses may be held
by a resident of either the Town of Chebeague Island or the Town of
Cumberland as per the July 1, 2007, State Legislature Act of Separation.
Cumberland and Chebeague Island residents will be eligible for resident
licenses in either or both communities. Maine-certified shellfish
wardens of the Town of Cumberland shall be issued a recreational shellfish
license.
[Amended 5-14-2019]
(1)
Guest. One guest shall be permitted to assist a licensed recreational
shellfish harvester to harvest one peck of soft-shell clams, razor
clams, oysters, or quahogs or one bushel of hen or surf clams per
day. The license holder and guest combined may possess no more than
one peck of soft-shell clams, razor clams, oysters, or quahogs or
one bushel of hen or surf clams per day.
(2)
Annual resident recreational shellfish license. This license is available
to residents and/or taxpayers of the Town and entitles the holder
to dig and take no more than one peck of soft-shell clams, razor clams,
oysters, or quahogs or one bushel of hen or surf clams per day for
his or her personal use. A shellfish license must be on your person
when harvesting shellfish.
[Amended 10-10-2023]
(3)
Annual nonresident recreational shellfish license. This license is
available to nonresidents of the Town and entitles the holder to dig
and take no more than one peck of soft-shell clams, oysters, or quahogs
or one bushel of hen or surf clams per day for his or her personal
use. A shellfish license must be on your person when harvesting shellfish.
[Amended 10-10-2023]
(4)
Annual senior resident recreational shellfish license. This license
is available to residents and/or taxpayers of the Town and entitles
the holder to dig and take no more than one peck combined or soft-shell
clams, razor clams, oysters, quahogs or one bushel of surf clams per
day for his or her personal use. A shellfish license must be on your
person when harvesting shellfish.
[Amended 10-10-2023]
(5)
Annual senior nonresident recreational shellfish license. This license
is available to nonresidents of the Town and entitles the holder to
dig and take no more than one peck combined or soft-shell clams, razor
clams, oysters, quahogs or one bushel of surf clams per day for his
or her personal use. A shellfish license must be on your person when
harvesting shellfish.
[Amended 10-10-2023]
C.
Volunteer program.
(1)
Should any resident or nonresident volunteer participate in 10 or
more hours of Shellfish Conservation Commission activities in a calendar
year, that person shall be assured a resident or nonresident recreational
license applied for in the following year (cost of the license is
the responsibility of the applicant and based on availability of licenses).
(2)
Volunteer hours are to be recorded by a designee of the Shellfish
Conservation Commission present for that activity in which the volunteer
has participated.
(3)
The
Shellfish Conservation Commission will report to the Town Clerk the
name of volunteer(s) to be granted a license prior to any lottery/issuance
of licenses.
[Added 10-10-2023]
[Amended 9-10-2012]
Fees for shellfish licenses are established by order of the
Town Council.
The licensee must sign the shellfish license to make it valid.
Applicants must submit a completed application, except as may
otherwise be required by state or federal statute, to the Town Clerk
for the licenses required by this chapter on forms provided by the
municipality.
[Amended 10-10-2023]
The application must be in the form of an affidavit and must
contain the applicant's name, current physical address, birth date,
signature, and whatever other information the municipality may require.
Any person who gives false information on a shellfish license
application will cause said shellfish license to become invalid and
void.
Each shellfish license issued under the authority of this chapter
expires at 12:00 midnight on the 31st day of December next following
date of issue, unless otherwise specified in this chapter.
Licensees from any other municipality cooperating with this
municipality on a joint shellfish management program may harvest shellfish
according to the terms of their shellfish licenses.
[Amended 5-14-2019]
Because the shellfish resources are limited and because a commercial
or recreational digger can be expected to harvest a certain volume
of shellfish 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 control:
A.
Prior to November 1 of each year, the Town Shellfish Conservation
Commission, shall make a recommendation to the Town Council of the
number of resident and nonresident commercial and recreational shellfish
licenses to be made available. Following Council approval, recommended
allocations shall be forwarded to the Commissioner of Marine Resources
for state approval.
[Amended 10-10-2023]
B.
The Shellfish Conservation Commission, in preparing a recommended
allocation of shellfish licenses, and the Town Council, in adopting
an allocation of shellfish licenses, shall provide and reserve a minimum
number of shellfish licenses for nonresidents, which shall be a number
not less than 10% of the number of shellfish licenses provided for
residents. When the number of commercial resident shellfish licenses
is fewer than 10 but more than five, at least one nonresident commercial
shellfish license shall be provided. When the number of resident commercial
shellfish licenses is five or fewer, nonresident commercial shellfish
licenses shall not be required.
[Amended 10-10-2023]
C.
The period of issuance for shellfish licenses shall be from January 1 to December 31 each year. After March 31 any remaining shellfish licenses shall be issued to residents and nonresidents on the basis of first come, first served, unless the alternative licensing procedure described in Subsection G of this section is used.
D.
At least 10 days prior to the issuance of shellfish licenses, the
Town Clerk, upon direction of the Town Council, shall provide notice
of the number of shellfish licenses, resident and nonresident, and
the procedure for application for such shellfish licenses by publishing
the same in a trade or industry publication, or in a newspaper or
combination of newspapers with general circulation which the Town
Council considers effective in reaching persons affected, and by posting
the same in the Town office until the period of issuance concludes.
E.
When the number of licenses is limited, the Town Clerk shall issue
commercial, nonresident commercial, resident recreational and nonresident
recreational shellfish licenses as allocated, through the use of a
public lottery system. Licenses issued to qualified volunteer(s) will
reduce the number of licenses issued through the lottery system.
[Amended 10-10-2023]
(1)
The Clerk shall then issue the available shellfish licenses to the
qualifying applicants, first to residents and then to nonresidents,
in the order in which their names appear on the list prepared by lottery.
That list shall establish the order of priority for the issuance of
any commercial, nonresident commercial and nonresident recreational
shellfish licenses until the next annual licensing procedure under
this chapter.
F.
A copy of this chapter shall be offered with each shellfish license
issued.
[Amended 10-10-2023]
G.
Alternative licensing procedures. In the event that the Shellfish Conservation Commission shall establish that no limit on recreational licenses shall be imposed, the following procedure shall govern the issuance of licenses notwithstanding the provisions of Subsections A through D:
(1)
Beginning on the first business day of January, the Town Clerk shall
issue resident recreational licenses to residents upon application,
said licenses to be effective that day.
(2)
On the third business day of January, the Town Clerk shall issue
nonresident recreational licenses as follows:
(a)
As defined in § 223-8C(1) (volunteer program), the Town Clerk shall issue nonresident recreational licenses to all eligible volunteers.
(b)
A lottery system as defined in Subsection E shall be used to allocate the remaining nonresidential recreational licenses. All nonresident recreational license applications in receipt by the Town Clerk on the day of the drawing shall be included in the lottery. All applicants will be assigned a number in the order they are drawn and placed on a waiting list.
[Amended 10-10-2023]
(c)
When 250 resident recreational licenses are sold, the Town Clerk
shall issue one additional nonresident recreational license to the
next waiting list applicant. Thereafter, one additional nonresident
recreational license shall be issued to the next applicant on the
waiting list upon sale of 10 additional resident recreational licenses.
(d)
Any person notified by the Town Clerk that they have been selected
from the waiting list for a nonresident recreational license shall
pay the applicable license fee within 14 business days of the mailing
of said notice of eligibility. In the event that the person fails
to make an application, qualify, or pay the license fee within the
prescribed time period, he or she shall be returned to the end of
the waiting list.
(e)
Any person making application for a nonresident recreational
license after the drawing date shall be placed at the end of the waiting
list.
(3)
Resident senior citizen licenses issued shall not be counted in the
calculation of licenses sold under this section.
(4)
Recreational licenses issued to Maine-certified shellfish wardens
of the Town of Cumberland shall not be counted in the calculation
of licenses sold under this section.
[Amended 12-12-2016]
A.
The Shellfish Conservation Commission, with the approval of the Commissioner
of Marine Resources, may open and close areas for shellfish harvesting
and designate areas and time periods for commercial or recreational
harvesting thereon. Upon concurrence of the Department of Marine Resources
area biologist that the status of the shellfish resources and other
factors bearing on sound management indicate that an area should be
opened or closed for either recreational or commercial harvesting,
the Shellfish Conservation Commission may 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 Shellfish Conservation Commission made after the
hearing shall be based on findings of fact.
B.
It shall be unlawful for any person to harvest, take or possess shellfish
from any areas closed by the town of Cumberland in accordance with
DMR Regulation, Chapter 7. Harvesting shellfish in a closed area is
a violation of this municipality's ordinance and is punishable under
MSRA Title 12 § 6671.
C.
Boundaries of conservation closures are explicitly defined in the
conservation closure application submitted by the town of Cumberland
to DMR and are part of the resulting permit issued by DMR. These permits
are posted at the town office and online: http://www.maine.gov/dmr/shellfish-sanitation-management/programs/municipal/ordinances/towninfo.html.
[Amended 5-14-2019; 10-10-2023]
A.
Pursuant to 12 M.R.S.A. §§ 6671 and 6681, as amended
from time to time, a person shall not harvest or possess soft-shell
clams which are less than two inches in the longest diameter to the
amount of not more than 10% of any lot; quahogs which are less than
one inch in at the hinge to the amount of not more than 5% of any
lot; razor clams which are less than four inches; American oysters
which are less than 2 1/2 inches along the longest axis or any
European oysters which are less than three inches in length along
the longest axis.
[Amended 5-14-2019]
A.
Soft-shell clams. Pursuant to 12 M.R.S.A. §§ 6671
and 6681, as amended from time to time, any person may possess soft-shelled
clams that are less than two inches if they comprise less than 10%
of any bulk pile. The tolerance shall be determined by numerical count
of not less than one peck or more than four pecks taken at random
from various parts of the bulk pile or by a count of the entire pile
if it contains less than one peck.
B.
Quahogs. Pursuant to Department of Marine Resources Regulations (13
188), Chapter 10, Section 10.04B, any person may possess quahogs that
are less than one inch if they comprise less than 5% of any bulk pile.
The tolerance is determined by numerical count of the bulk pile or
by a count of the entire pile if it contains less than one peck.
C.
Razor
clams. Pursuant to 12 M.R.S.A. §§ 6671 and 6681, as
amended from time to time, any person may possess razor clams less
than four inches if they comprise less than 10% of any bulk pile.
The tolerance shall be determined by numerical count of not less than
one peck or more than four pecks taken at random from various parts
of the bulk pile or by a count of the entire pile if it contains less
than one peck.
[Added 10-10-2023]
D.
American
oysters. Pursuant to 12 M.R.S.A. §§ 6671 and 6681,
as amended from time to time, any person may possess American oysters
less than 2 1/2 inches if they comprise less than 10% of any
bulk pile. The tolerance shall be determined by numerical count of
not less than one peck or more than four pecks taken at random from
various parts of the bulk pile or by a count of the entire pile if
it contains less than one peck.
[Added 10-10-2023]
E.
European
oysters. Pursuant to 12 M.R.S.A. §§ 6671 and 6681,
as amended from time to time, any person may possess European oysters
less than three inches if they comprise less than 10% of any bulk
pile. The tolerance shall be determined by numerical count of not
less than one peck or more than four pecks taken at random from various
parts of the bulk pile or by a count of the entire pile if it contains
less than one peck.
[Added 10-10-2023]
The Shellfish Conservation Program for the Town of Cumberland
will be administered by the Shellfish Conservation Commission consisting
of seven members. The Cumberland Town Council will appoint the Shellfish
Conservation Commission members. In addition, the Shellfish Conservation
Warden shall serve as an ex officio member. The Commission's responsibilities
include:
A.
Establishing, annually, in conjunction with the Department of Marine
Resources, the number of shellfish digging licenses to be issued.
B.
Surveying the tidal mud flats to maintain current information on
shellfish resources.
[Amended 5-14-2019]
C.
Submitting to the Town Council proposals for the expenditures of
funds for the purpose of shellfish conservation.
D.
Keeping this chapter under review and making recommendations for
its amendment.
E.
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.
F.
Recommending conservation closures and openings to the Town Council
in conjunction with the Department of Marine Resources.
G.
Submitting an annual report to the municipality and the Department
of Marine Resources covering the above topics and all other Commission
activities.
A.
Enforcement. The Chief of Police shall designate personnel who are
certified municipal shellfish wardens to enforce this chapter.
[Amended 5-14-2019]
B.
Penalty. A person who violates this chapter shall be punished as
provided in 12 M.R.S.A. § 6671, as amended from time to
time.
C.
Duration. This chapter shall remain in effect until amended or repealed.
It shall be unlawful and a violation of this chapter for any
person to falsify or give false information in connection with a shellfish
license application. In addition to any criminal penalties which may
result from a violation of this chapter, the shellfish license granted
to any person who gives false information on a shellfish license application
will automatically be void.
A.
Violation of this chapter. The Town Clerk shall suspend any and all
shellfish licenses issued under this chapter if the license holder
is convicted in court of violating any section of this chapter.
B.
Suspension based on conviction in a Town-closed conservation area.
The Town Clerk shall suspend any and all shellfish licenses issued
under this chapter if the license holder has been convicted in court
of possessing shellfish from a Town-closed conservation area.
C.
D.
Applicable standards. Any conviction more than three years before
last conviction shall not be counted in determining lengths of suspension.
The Town Clerk shall suspend any and all shellfish licenses
if the license holder refuses to allow inspection in the enforcement
of this chapter. This suspension may not exceed 90 days.
Any licensee whose shellfish license has been suspended shall
be entitled to a hearing before the Town Manager, upon the filing
of a written request for hearing with the Town Manager within 30 days
following the effective date of suspension. The applicant shall be
given at least seven days' prior written notice of the date, time
and place of hearing before the Town Manager. Any person aggrieved
by the Town Manager's decision may appeal to the Superior Court within
30 days from receipt of the Town Manager's written decision pursuant
to Rule 80B of the Maine Rules of Civil Procedure.
The Cumberland Police Department shall be the legal enforcement
agency for the enforcement of this chapter. The Chief of Police shall
designate an officer or officers certified by the Department of Marine
Resources to enforce violations of this chapter and conduct required
water quality sampling.
