Thursday, October 21, 2010
By Douglas Watts
Friends of Sebago Lake
On October 5, 2010, Maine Inland Fisheries & Wildlife Commissioner Roland 'Danny' Martin made history. He is the first Maine fisheries commissioner since 1875 to use his powers under the State of Maine's fishway law to order a fishway built on a dam on the Presumpscot River, the outlet of Sebago Lake, Maine's deepest and second largest freshwater body.
Martin signed the Department's Final Order requiring S.D. Warren Company to build fishways at their Cumberland Mills Dam on the Presumpscot River in Westbrook, Maine. The passageways must be operational for the spring 2013 run of migrating fish. This Order is under the State of Maine's Fishway Law.
View Larger Map
While the passageways could be ready by spring 2012 (with construction in 2011), the job is indeed complex because, as the photo above shows, the falls at the dam have been extensively altered and steepened by blasting during the past 150 years and the site of the fishway is directly underneath the S.D. Warren mill buildings, making the use of the heavy equipment at the falls a challenge. The falls, by the way, are called Ammoncongin.
For Friends of Sebago Lake, this decision is a vindication for a long, independent advocacy effort we undertook with Friends of Merrymeeting Bay in 2007-2008 when the State of Maine and S.D. Warren and two conservation groups, Friends of the Presumpscot River and American Rivers, secretly negotiated in 2007 a disastrous agreement which would have taken back most of the hard-won fishway requirements at the five Warren dams above the mill in exchange for Warren voluntarily providing fish passage at the Cumberland Mills Dam by 2012-2013.
Upon hearing of this secret agreement in summer 2007, FOSL expressed to State officials its deep concerns about the legality and wisdom of the deal. The State did not respond, so FOSL published an open letter in the Portland Press-Herald on Thankgiving Day, 2007 demanding a public hearing be held. 
In Jan. 2008 we and Friends of Merrymeeting Bay met with key state staff in Augusta to discuss our concerns. At this meeting, Maine's assistant Attorney General, Jan McClintock, told Dept. of Marine Resources Commissioner, George Lapointe that the state had to conduct a public meeting under state law about the secret settlement agreement.
The State agreed to hold a public hearing in South Portland in Feb. 2008. While FOSL publicized the meeting, the State did not, and didn't even publish a public notice for the meeting. Nobody in the general public knew about the meeting. Clearly, the State didn't really want to hold the public hearing and didn't really want the general public to even know about the meeting. We informed the State of this by letter on March 7, 2008. To make matters worse, the State provided only a seven day public comment period on their plan, guaranteeing they would receive no public comments. Weirdly, we noted, the same year the State had published a draft plan for restoring the same fish species on the Penobscot River and conducted widely publicized meetings on it, with a generous public comment period. Why the stark difference?
At the public meeting, FOSL and FOMB members told the State the proper course of action was for the State to use its legal rights to require S.D. Warren to build fishways at the dam pursuant to the State's fishway law. By doing this, we argued, there was no reason for the State to give back the key fish passage requirements at the next five dams in order to secure Warren's voluntary agreement to build a fishway at Cumberland Mills. Our message to the State was: your job is to make S. D. Warren obey the law.
At this meeting, the State and FOPR representatives repeatedly warned that if the State enforced the fishway law, Warren would sue and the case would be tied up in court for years. Therefore, the 'compromise' was the only viable solution. FOSL responded by demonstrating through a timeline that even if Warren appealed a fishway ruling to the Maine Supreme Court the fishway would be delayed at most by 2-3 years, meaning the fishway would be in operation by 2012-2013, which is exactly the timeline their own 'compromise' plan hoped for.
FOSL member Ted Tibbals told the State it was sending a terrible message to private, corporate dam owners, and to the people who own Maine's rivers (the public): if the State is afraid to enforce its own laws just because the dam owner might sue, these corporations will lose all respect for the law. Ted Tibbals called it what it was, a backroom shakedown by a multi-billion dollar corporation in the face of a cowering, weak-kneed State government. We asked: where is the spine?
Our concerns were summarized in formal comments submitted to the State in March, 2008.
When it appeared the State was determined to continue with its illegal 'compromise' agreement, FOSL made a formal notice under the Maine Right to Know Law for all public documents regarding the agreement including how it was negotiated. After much balking by the State, it agreed to turn over the documents in the spring of 2008. Simultaneously, FOSL circulated a lawsuit draft to the State in which we threatened to sue the State for violating state law for conducting these secret negotiations and to ask the court to throw out the negotiated settlement as illegally approved by the State Marine Resources Commissioner.
At the same time, FOSL researched the full legal ramifications of the 'compromise' agreement. It called for re-writing all five of the federal licenses and state permits issued to Warren for its five hydro dams on the river which had been issued in 2003. The agreement removed all of the hard and fast requirements at the dams and totally removed any requirements for fish passage ever at the Dundee Falls Dam, thus preventing any fish passage ever to Sebago Lake. As written, the agreement would have made it nearly impossible to ever get fish passage at Warren's dams above Saccarappa, which is only one mile above Cumberland Mills.
FOSL and FOPR had fought hard for these license requirements from 1998-2002, and they were already highly compromised by not including removal of any of the five dams (we both had requested Warren's three lowermost low-power dams be removed to restore critical habitat for native Atlantic salmon).
So now the State and FOPR were 'compromising a compromise' -- with Warren getting all the benefits and the river and public getting nothing. Same old story. Big corporation threatens the State, the State backs down, and the public, whom it works for is left high and dry. Not to mention the fish, who get nothing.
Then we learned we held a potent poison pill. Under the U.S. Clean Water Act, the State must issue "water quality certifications" when hydrodams are relicensed. These certifications were issued by the State for Warren's dams in 2003 and contain good, but not great, fish passage deadlines at Warren's five hydrodams on the Presumpscot. But at least they are well-defined and legally enforceable.
From 2003-2006, Warren challenged these state orders all the way to the Maine Supreme Court and then to the U.S. Supreme Court and lost every time. We even got a 9-0 decision from the U.S. Supreme Court. And now the State wanted to throw all of these winning decisions away. Allowing companies to break one law to cajole them to obey another law is not good public policy. But this was the path the State had embarked upon.
FOSL then realized that for the State's 'compromise' deal with Warren to go through, the State would have to re-write all of these water quality certification orders and we could appeal them to the Maine Board of Environmental Protection and the Maine Superior Court. The original orders were already on shaky legal ground under the Clean Water Act for being far too weak; and the changes the State wanted to make were totally illegal. Who said? The State said in 2003 when it issued the original orders requiring time-specific fish passage deadlines at all five dams. The State was now taking the same position S.D. Warren had in 2003 -- that there was no 'real' legal requirement for fish passage at S.D. Warren's Presumpscot River Dams. The State was forcing itself into a position of arguing with itself: a common occurrence at Sebago Lake.
So FOSL decided to pull the trigger. We told the State that if they continued to pursue their compromise settlement with S.D. Warren we would challenge any revision to the state water quality certifications issued in 2003 and would go to court if necessary. We knew this would kaibosh the State's secret sweetheart deal with Warren because they all knew what they were doing was illegal. 
In late spring of 2008, S.D. Warren announced without explanation it was abandoning the negotiated agreement.
This forced the State back to Square One: using its powers under the State fishway law to compel Warren to let fish go past its dam at its expense. Last year the State ruled it had the authority to order Warren to build fishways; and on Oct. 5 of this year the State issued its final Order for Warren to build the fishways. Warren has said they will abide by the ruling.
So for all that rigamarole, FOSL turned out to be right. By the State doing its job of enforcing the laws on the books, Warren buckled, since it knew all along that it could not succeed in a court challenge. All the time, Warren was bluffing the State and the State, for a while, was willing to buckle until FOSL said no. Now, the Cumberland Mills Dam will have fish passage on the exact same time schedule as would have been provided by the State's plan of giving away to Warren all of the hard-fought gains the State had made in fishway requirements at the next five dams. We saved the State from itself.
So What About the Fish?
The Oct. 5, 2010 State Final Order says a fishway is required to be operational at Cumberland Mills Dam by May 1, 2013. The fishway is slated to be a "Denil" fishway which, according to our research, is a design that may not be easily used by American shad. 
Our review of the Commissioner's May 12, 2010 preliminary Order shows some disturbing details. Most important is that the multi-page Order does not contain a single mention of the Presumpscot River's most important native fish species, the Atlantic salmon. This is odd since in 1869, Charles Atkins, Maine's first Fisheries Commissioner, selected the Presumpscot as the first river to be restored in Maine because it was such as outstanding Atlantic salmon river. The 2010 Order's failure to even mention Atlantic salmon highlights and emphasizes a continuing bias and apathy against Atlantic salmon in the Presumpscot by Maine's fisheries agencies.
The truth is that Atlantic salmon have never left the Presumpscot River, even though people have spent the last 200 years doing almost everything imaginable to make them go extinct. There are likely a few Atlantic salmon in the lower Presumpscot and its tributaries below Westbrook right now spawning. In the 1970s, Maine Atlantic salmon biologists were shocked to find spawning salmon and wild baby salmon in the Piscataqua River, a small tributary of the lower Presumpscot in Falmouth several years after the head of tide Smelt Hill Dam had been breached. During this same period, anglers in Westbrook often caught large sea-run Atlantic salmon directly below S.D. Warren's mill in Westbrook at the base of the Cumberland Mills Dam.
Atlantic salmon are highly migratory fish and will often 'stray' from one river to another out of sheer curiosity and a search for suitable spawning habitat. Because the Presumpscot is now fully accessible from Casco Bay to Cumberland Mills it is possible in any year that several or more salmon from other Maine rivers will explore the Presumpscot and, finding it to their liking, decide to stay and spawn in the fall, thus beginning the process of their natural restoration to the river.
The fishway design proposed for Cumberland Mills Dam, a Denil fishway, is well known to be capable of use by Atlantic salmon. However, the Commissioner's Order states the fishway will only be operated from May 1 to July 15 of each year. This schedule is for alewives, blueback herring and American shad. This operation schedule is perfectly suitable for these species, since they all migrate upriver in the spring and early summer and then quickly spawn and go back down to sea. But Atlantic salmon spawn in late October and November.
In Maine, salmon may migrate upriver at any time from late April to October since they do not spawn until Halloween. Under the fishway operation schedule mandated in the 2010 Order, the fishway at Cumberland Mills will be totally shutdown on July 15 of each year. This would make it impossible for Atlantic salmon coming up the Presumpscot after July 15 from getting past Cumberland Mills. They will face, as they have for over a century, a completely impassable dam.
As important, adult Atlantic salmon have a penchant for going up rivers in the spring and then swimming back to tidewater a few weeks or a month later before finally going back upriver later in the season to prepare to spawn. Nobody knows why salmon do this, except they can, and except it might be in part because they do not have to reach their spawning grounds until Halloween. This means an Atlantic salmon that passes the Cumberland Mills Dam fishway in June may swim back down river a week later and upon returning in August or September find a dry fishway and a blank, impassable wall. 
This flaw in the Commissioner's Order is important because the Order has the force of law. It spells out in great detail what the dam owner, S.D. Warren, has to do and what it does not have to do. And by the plain language of the Order,Warren can shut down the fishway on July 15th of each year and not re-opened until May 1 of the next. This could all be fixed by the Order simply stating the fishway must be operated until November, which is done on all other Maine salmon rivers including the Androscoggin, Kennebec and Penobscot.
Why this omission? The short answer is that none of the state and federal fisheries agencies, or FOPR and American Rivers, appear to have any interest in ever restoring Atlantic salmon to the Presumpscot River or even allowing those Atlantic salmon who are naturally restoring the river to have a fighting chance at succeeding. Why is this? Myopia and amnesia.
So this is a really big problem.
View Larger Map
Saccarappa dam on left, Cumberland Mills dam in upper right.
The next dam on the Presumpscot is Saccarappa, about 1.25 miles upriver. Its federal license calls for fishways to be built within two years of when passage is built at Cumberland Mills. This two-year delay is stupid, because S.D. Warren owns both dams. All fish passed at Cumberland Mills in Spring 2013 will swim up to the base of Saccarappa in about one hour, not in two years. S.D. Warren should be building fishways at Saccarappa simultaneously with Cumberland Mills. They are a multi-billion dollar company and have known this time was coming since 2003. They fought the law and the law won.
First Presumpscot Fishway Built Since 1879
The Cumberland Mills Dam fishway will be the first built on the Presumpscot River since 1879. That's a long time.
In 1875, Maine's Fisheries Commissioner reported to the Maine Legislature:
"The first fishway on the Presumpscot was built by the Cumberland Mills, and finished this last spring. The plan of the fishway was by Mr. Charles G. Atkins, after a design by Robert G. Pike, Esq. of Middletown, Conn. Of its success, one may judge from the following extract from a letter of our genial friend, Mr. Hammond: 'I had supposed your fishways were intended for fishes in the upper walks of life, such as salmon, trout &c., &c.; but I find our new fishway is used by the mudsills, the suckers, the chubs, the pouts, even the lampreys. What is to be done about?' Our reply was that the 15th Amendment admitted all!
"Our esteemed friend, Hon. George Warren, who is something of what Harriet Martineau defined Daniel Webster, viz., 'a steam engine in breeches,' has given us an admirably built fishway at Saccarappa. Two have been constructed at that village; an excellent one by the "Westbrook Manufacturing Co." A fishway after design and plan of Mr. Atkins, has been promptly built over the dam at their works, by the Oriental Powder Mills, at Windham. Four others on the Presumpscot will be completed by the month of May, by Mr. Lindsey and Messrs. Holland & Law. Messrs. Dennison and Brown are building a factory at Little Falls. These gentlemen have assured us that the fishway ordered for their place will be completed by next spring."
In 1876, the Maine Fisheries Commissioner reported:
"The Presumpscot river may now be pronounced as accessible to salmon and alewives, as far as Mallison Falls dam. Everybody ostensibly connected with that property is bankrupt. To the County Attorney is referred the decision as to what course to pursue. Of the fishways already built on the river, there was more or less departure in all from accurate obedience to the plans furnished, and some alterations will be required before we shall accept them in the name of the State."
In 1879, the Commissioner reported:
"On the Presumpscot river, within the present year the chain of fishways has at last been completed. The old fishway at Mallison Falls, that was not built according to the original design and was utterly inadequate to its purpose, has been torn down and replaced by a new and efficient fishway. Other fishways on the river have been repaired and improved, and a fishway has been constructed over the new dam at Wescott's Falls, at the head of the river .... A large number of sea-salmon were placed in the headwaters of the Presumpscot River in 1876, but from our own observations and experience, there has been no expectance of the matured fish in the river until the spring of 1880 or 1881, at which time they will find fishways provided to them over all the dams between Lake Sebago and the ocean."
In 1880, the Commissioner reported:
"There are now eight fishways upon this [Presumpscot] river, a new one having been completed at 'Wescott's falls.' to allow the fish to pass the dam at the head of the river, the outlet of Sebago Lake. So that every dam upon the Presumpscot is provided with a fishway. Some much needed improvements have been made to the fishway at Cumberland Mills, and some improvements are required at the upper dam at the head of the river."
"On the Presumpscot, at its sources on Crooked River, a very great number of unusually large fish have been taken by poachers for the two or three last years. The exceptional size and number of the fish has given increased incitement to the nefarious practice of spearing on the spawning bed. The very remarkable size of these fish and their unwonted number, warrant the conclusion that they are sea salmon planted by us in the headwaters of the river at Norway and other tributaries of Sebago in past years. The first salmon fry were planted in the Presumpscot in 1875. A large fish of thirteen pounds was taken below the dam at the outlet of Sebago last June with hook and line. A man named Paul is now under arrest for spearing a fish weighing twenty-four pounds on Crooked river the middle of October. Several others have been arrested for spearing fish and there are also many other cases which will be prosecuted in due course. We feel warranted in the conclusion that most of these fish are results of our planting sea salmon, not only from the reasons we have assigned above, but from the added fact that we have now a series of eight good fishways on the Presumpscot river from Cumberland Mills to Sebago."
In 1895 the Commissioner reported:
"During the time covered by this report, fishways have been built, improved or repaired on the following rivers: -- Presumpscot, Georges, Penobscot, Orange and Aroostook."
And here the road ends.
What Happened After 1895?
In less than a decade (1875-1880) the Presumpscot River became the first 'restored' salmon and shad river in Maine and the first large river with functioning fishways all the way to its headwaters. Sea-run Atlantic salmon swam from Casco Bay in downtown Portland to Sebago Lake and the Crooked River for the first time since the 1730s. This was the most ambitious native fish restoration project ever undertaken in the history of the United States. And it was successful.
But by 1910 this restoration project was destroyed -- due to a new fad called hydroelectric power.
During the period 1900-1915, S.D. Warren built the enormous 50 foot high Dundee Dam on the river for hydroelectricity; the North Gorham Dam was built by Central Maine Power to a great height, again for hydroelectricity. The Eel Weir Dam was built at the outlet of Sebago Lake for hydroelectricity. The old, low sawmill dams at Saccarappa, Mallison Falls, Little Falls and and Gambo Falls were all raised much higher and reconstructed with massive, concrete power canals to create hydroelectricity.
The wooden fishways which had been meticulously designed and built and repaired at the dams for the past 25 years were all dismantled and removed. The Dundee Dam was built with no fishways at all. In about 20 years, from the last Fisheries Commissioner report in in 1895 to 1915, the Presumpscot River had gone from fully passable to completely impassable.
Worse, the raising of the dams for hydropower flooded out all of the remaining free-flowing sections of the river; the short reaches between the dam spillways and the power canals were dewatered. Not a single record exists of how and why this happened.
The only witness for this destruction we have is from a man named William Converse Kendall, who wrote for the Boston Zoological Society two seminal scientific books on the salmon and trout of Maine. In 1917 Kendall wrote:
"Presumpscot River Jumper (Plate 9)
"Since the Jumper is now extinct and since salmon of similar peculiarities have been described from no other waters, it has seemed desirable to write a separate brief history of the fish.
"In the Presumpscot River, which is the outlet of Sebago Lake, the Sebago salmon used to breed and in the spring of the year, large well conditioned salmon were found in the stream. Later they disappeared. Prior to the erection of the dam at the head of the river, and later while the fishway was effective, most, if not all, of the salmon returned to the lake. In later years, the fishway having become impassible, some the fish continued to disappear, where to, no one knows. If they went to sea they doubtless would have been notice at the dams and mills lower down in the river. However, small salmon resided in the river year around. Until the new dam was built at the head of the river and the water diverted by a canal these small salmon, known as "Jumpers" were found in the upper part of the river below the dam at North Gorham.
"The large salmon were always distinguished from the so-called "Jumper." The local name 'jumper' was given to a small but very active fish of peculiar coloration., which attained a weight of at least three or four pounds, and which were also usually distinguised from the lake salmon of like size occuring in the river at the same time. Adolescent salmon, with their bright silvery scales, more pointed snout, subequal jaws, more forked tail, black crescentic and doubled X spots, and with or without red spots caught in the same locality were regarded as lake salmon.
The 'jumper' was more trout-like in form, had a blunter snout, included lower jaw, scarcely crescentic tail. It usually had no black spots but dark brown, chocolate colored and brick red or brown spots surrounded by brick red on the body, and always red spots along the side. The sides of the abdomen were usually brassy yellow. They were doubtless old fish of long-time residence in the river. They appear now to be extinct, the locality below the North Gorham dam having been more recently ruined by the erection of a dam farther down [Dundee Dam] which backs the still water nearly up to the North Gorham Dam."
Not A Single State Record Exists
Except for William Converse Kendall's description above, not a single state record exists describing what happened on the Presumpscot River when it was destroyed by a slew of new dams in the 1900-1915 era. This was confirmed by extensive historic research that I did in 2004-2005 for FOSL and FOPR at the Maine Archives and Maine Legislative Law Library while gathering legal documents to force S.D. Warren to build a fishway at the Cumberland Mills Dam.
In these archives are every law passed by Maine during this period and every single official report made by the state's Fisheries Commissioners to the Maine Legislature. After 1895 not a single mention is made of the Presumpscot River in these fisheries commissioner reports. It's as if the Presumpscot stopped flowing and fell off the map.
As part of this research, I found and tracked every iteration and revision of the state's fishway laws from 1869 to present. None of these revisions contained any amendments which exempted the Presumpscot River from the state's fishway laws. But there was a clue from 1913. Up until this year, the State of Maine required fishways to be maintained at all dams in the state on rivers native to salmon, shad and alewives. This was a mandatory requirement. In 1913 the Legislature repealed all of these laws, going back to 1869, and replaced them with a generic law stating that the State Commissioner of Fish & Game, at his discretion, could require fishways on dams. 
This law change was the death knell for the restoration of Presumpscot and Sebago and for rivers all over Maine. So long as the Fisheries Commissioner decided not to formally require a fishway to be built or maintained, then dams all across Maine could be impassable to fish. This change in the law allowed any dam owner to rip out the existing fishways at their dams, even if they were working perfectly. The law also 'grandfathered' in perpetuity all dams in Maine that lacked fishways. This is why there is no physical trace left of the large, carefully built timber fishways at the dams on the Presumpscot built and rebuilt between 1875 and 1895. The dam owners ripped out every shred of them once the state gave them legal license to do so in 1913.
1913 stands as the end of Maine's ambitious and highly successful 50-year effort to restore and maintain its native fisheries after the Civil War. After 1913 the State just gave up and the rivers became empty and silent.
Maine's current state fishway law is identical in substance to the 1913 law. My research, by reading every single Maine Fisheries Commissioners report from 1900 to present, found that since 1913 Maine's fisheries commissioners rarely exercised their authority under the law to require fishways be built or maintained at dams. 
Why Has The Fishway Law Never Been Used?
Julius Caesar said at the Rubicon River, the die is cast. In 1913 the Maine Legislature said the same thing. In passing this 1913 law, Maine's Fish & Game Commissioner was given sole authority to require a fishway at any dam in Maine or to require its maintenance.
Only the dam owner can appeal an adverse decision in court. Maine citizens who want a fishway have no legal right to ask for a fishway or to ask an existing one be maintained. They can only write a letter politely asking the Fisheries Commissioner to exercise his authority to require a fishway or maintain one. And if the Commissioner declines, citizens have no legal recourse. All power is vested in the Fisheries Commissioner.
The fruit of this legal change became obvious in the 20th century. After 1913, the state rarely used its authority to order fishways at dams. Not because no fishways were needed -- the 20th century marked the almost total extirpation of the last remnant runs of sea-run fish in Maine's rivers due to impassable dams and pollution. By any metric, fish passage at dams was better in the 19th century than in the 20th.
In the late 1960s, an Augusta, Maine couple, Gemma and Richard Dumont, wrote a letter asking the Maine's Fish & Game Commissioner, Rodney Speers, to use his powers under the state's fishway law to order the owners of the Edward Dam, at the head of tide on the Kennebec River, to build a fishway for salmon, shad and alewives. Mr. Speers ignored their letter. The Dumonts were not easily cowed. They hired a lawyer and filed a "Writ of Mandamus" in Kennebec County Superior Court asking the court to order Commissioner Speers to answer their letter. The court denied their request. The Dumonts took their complaint to the Maine Supreme Court.
In 1968, the Maine Supreme Court handed down one of the worst decisions it has ever written, Dumont v. Speers. In this ruling the Maine Supreme Court said the Maine Legislature had granted the Fish & Game Commissioner sole authority to decide whether or not to order a fishway at a dam. If the Commissioner decided not to order a fishway for any reason or for no reason at all, citizens like the Dumonts had no legal rights to challenge the decision. This 1968 Maine Supreme Court decision has rendered the state's fishway law non-functional. The evidence for this is that the Commissioner Martin's 2010 Order is the first time the state's fishway law has been used since before World War II.
2010: A Renaissance or Another False Hope?
It is important to closely examine what happened on the Presumpscot River from 1875 to 1900. In this just five years, the Maine Fisheries Commissioner succeeded in legally coercing all of the dam owners on the Presumpscot to build fishways at their dams. These fishways were maintained until at least 1900. Yet, even with full fish passage attained and sea-run Atlantic salmon spawning in the Crooked River for the first time since the 1730s, all of these achievements were wiped away and dashed by 1910 when all the fishways carefully designed by Charles Atkins were ripped down, new dams were built over the old dams and the river was shut off again to all of its sea-run fish.
Why should we believe Commissioner Martin's actions in 2010 will be less ephemeral than Commissioner Atkins' actions in 1875?
We can't. The reason is the Maine fishway law is terribly written. If he wants, Commissioner Martin can forget or refuse to enforce his 2010 Order at any time. This is exactly what happened in 1900. The Maine Commissioner of Fisheries in 1900, for reasons unknown, lost all interest in keeping fishways maintained on the Presumpscot or on any Maine river. So the dam owners ripped the fishways out or let them fall apart. Under the Maine's fishway law and Dumont v. Speers, nobody can sue the Maine Fisheries Commissioner to enforce this new 2010 Order. But the dam owner can sue to stop it at any time. This is how bad a law it is.
With the 2010 gubernatorial election, Commissioner Roland 'Danny' Martin will be out of a job in January 2011. A new Maine IF&W Commissioner will be appointed by a new Governor. In 2011 this new Commissioner can freely ignore Danny Martin's 2010 fishway Order. Nobody can stop her. This is because the state's fishway law is still governed by Dumont v. Speers.
Atlantic salmon can swim 25 miles in one day.
The distance between Casco Bay and Sebago Lake is about 21 miles. Adult Atlantic salmon can, if motivated, swim this distance in one day. This means a Presumpscot/Sebago Lake Atlantic salmon can swim from downtown Portland, Maine to Sebago Lake in one day. Once in Sebago, the salmon can swim into the cool waters of Sebago to feed on native rainbow smelt and prepare for its autumn journey up the Crooked River to spawn in the fall. This is what happened at Sebago for 11,000 years until the 1730s, and then the 1830s, and then the 1930s and now the 2010s.
Atlantic salmon would be spawning in the Crooked River tomorrow if the State of Maine would stop letting them be blocked by artificial dams. But the State of Maine has no interest in restoring Atlantic salmon to the Presumpscot River and Sebago Lake and the Crooked River. In fact, they actively oppose it.
The State of Maine has pretended to forget the entire natural history of the Atlantic salmon in the Presumpscot River and Sebago Lake. This takes an awful lot of pretending to forget. And since the State of Maine has access to all of the historical documentation that FOSL has (we gave it to them), this pretending to forget is not by accident.
Maine Did It In 5 years in 1875 -- Why Can't We Do It In 50 Years?
In just five years, from 1875-1880, fishways were built all the way from Casco Bay to Sebago Lake; and giant Atlantic salmon swam up these fishways into Sebago Lake and into the Crooked River where they spawned. That was 130 years ago.
Today, the best and most prominent scientific and legal "experts" tell us this is absolutely impossible. There is no way it can be done. To even think of it is ludicrous.
In 1875 the telephone nor electricity nor airplanes nor light bulbs existed. But in 1875, in just five years, the Maine Fisheries Commissioners got fishways built on the Presumpscot dams so as to allow Atlantic salmon swim from Casco Bay to Sebago Lake, a distance of 21 miles.
And now, in 2010, we are told this same feat cannot be done in less than 50 years, and may never be achieved.
How dumb have we become?
1. Our outreach efforts were hampered by the editorial staff of the Portland Press-Herald, who refused for two months to print our op/ed asking the State to hold a public meeting on the plan. The PPH staff told us they didn't believe the subject was 'newsworthy.'
2. We presented a more detailed narrative of these efforts in July 2008 in a story called "Presumpscot Dam Deal is Dead."
3. See the Portland Press-Herald story here.
4. The Portland Press-Herald has not even done a news story on this. But the Westbrook American Journal did on Oct. 13, which is how FOSL learned about it.
5 . See here. And here.
6. See Baum, E.T. 1997. Maine's Atlantic Salmon: A National Treasure at 22: "To complicate this matter further, Maine's salmon do not always migrate in an upstream direction. Returning to tidewater after migrating several miles upriver earlier in the year is common for an Atlantic salmon. They may migrate back into the same (or even a different) river later in the year."
7. Public Law, Ch. 206, 1913.
8. One of the last times the State Fish & Game Commissioner used his powers to order a fishway was in 1962 on the Crooked River at Bolsters Mills. This order was successfully challenged by the dam owner to the Maine Supreme Court in Cobb v. Bolsters Mills Improvement Society. 158 Me., 199 (1962), because the Commissioner failed to specify in detail in his Order the type and size of the fishway required at the dam.
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