Town vs. Taxpayers Lobstermen in Cutler at odds with harbor masters

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In Cutler, a serene community of 640 in Down East Maine, fishermen ready their traps for the coming lobster season, but tension belies the picture-perfect waterfront.

Ordinarily a rite of spring, the setting of moorings in Cutler Harbor became an exercise in taking sides this year.

Some lobstermen videotaped other lobstermen setting their moorings in March and then gave the tapes to the town’s three harbor masters as “evidence” of harbor ordinance violations.

The town’s harbor committee, inactive since 1993, found reason to reconvene last year. Last month committee members decided to gate and padlock access to the public boat landing at the harbor. The eight locks lasted one day before other residents asserted their rights and asked to have them removed.

One harbor master, John Drouin, resigned April 7, saying his children were being harassed at school by children of Cutler residents who support opening up the harbor to more moorings. He said he doesn’t want town issues affecting his family.

Brothers Michael and Dale Griffin, two nonresident lobstermen who own waterfront property in town and want to fish out of Cutler, have been denied moorings in the harbor repeatedly. They have filed a civil lawsuit against the town and its harbor masters.

The town recently ordered another lobsterman to remove the boat tied to his mooring or see his mooring cut and the boat go adrift. He complied.

Things were never this bad here, said Robert A. Cates, the newest of the harbor masters. Brilliant sunshine spilled around him as he sat on his private deck overlooking the harbor in early April.

He should know. His family has been living and fishing in Cutler for more than 100 years. The original Robert Cates was one of the town’s settlers.

“Someone from out of town doesn’t run the town,” Cates said, referring to the Griffins. “Hopefully, they will find that out.”

The Griffins family roots also stretch back 100 years in Cutler, but Michael Griffin now lives in Edmunds Township and Dale Griffin lives in Whiting, both just north of Cutler. Michael Griffin drives about 20 miles to where the brothers keep their traps in Cutler. Dale Griffin comes from just over the Whiting-Cutler line along Route 191.

The two say they have no interest in running the town.

“All we want to do is fish for a living,” said Michael Griffin, noting that the brothers lost as much as $50,000 worth of lobster traps last summer when their lines were cut more than once.

When the harbor masters reviewed the Griffins’ recent new applications for moorings, the brothers were turned down again. As owners of waterfront property, they are entitled by state statute to moorings in front of their land, if not in a more practical place.

But the Cutler harbor masters said the portion of waterfront near the brothers’ land is a mud flat and moorings there were “impractical.”

Cates said the differences between the town and the Griffins should not be perceived as personal. He said the harbor masters are merely enforcing the town’s harbor ordinance.

Personal or professional, the situation has simmered for more than a year.

A Cutler fisherman friendly with the Griffins reported finding a hangman’s noose left in his bait bucket.

The town has engaged three attorneys to counter the Griffins’ lawsuit.

Among ordinary fishermen, conversations these days tend to include references to Title 38, the portion of Maine statutory law dealing with ports and harbors.

John Drouin, the harbor master who resigned for his family’s sake April 7, said the matter is about the law, not about “sides.”

“I’m not against the Griffins. I don’t know the Griffins,” Drouin said in an interview. “This isn’t about sides. It’s about the availability of moorings to nonresidents, and our decisions are based on state law and on asking what other harbor masters do.”

Lobster wars filled with hostilities and harassment are legendary along Maine’s coast from Portland to Matinicus to Deer Isle.

Cutler’s harbor provides the only access to prime lobster grounds between Bucks Harbor to the west and Lubec to the east. Lobstermen who have fished there for generations have proprietary attitudes about their harbor and the lobster beds beyond it.

The Griffins spent 20 years harvesting timber before turning back to lobstering a year ago this spring.

Unable to acquire moorings in Cutler last May, they borrowed permitted moorings from other local lobstermen to keep their boats and fish.

Renting a mooring without a permit from the town is a violation of the harbor ordinance. But the Griffins haven’t been renting. A father-son pair of lobstermen, the McGuires, helped out their friends by letting them use their assigned moorings.

A year ago the Griffins put out 1,500 traps between them. They established relationships with a lobster dealer in Cutler, only to have the dealer threatened. The harbor masters told the Griffins to remove their boats and business from the harbor.

Last June they took the step of buying 70 acres of undeveloped shorefront that had been in their family forever. But the harbor masters told them in July that merely becoming taxpayers in Cutler does not make them eligible for a mooring.

“It’s not like they moved in from Alaska,” said Mark McGuire Jr.

At a special town meeting last July, the harbor masters led residents in adopting harbor ordinance revisions, effectively making nonresident commercial users even more restricted in the harbor.

The brothers believe that town officials are determined to protect their harbor and lobster territory from nonresidents.

Michael Griffin found his 18-foot skiff cut loose and floating in the harbor one day last summer. The harbor masters were unresponsive in tracking down the culprits, he said.

Damage and untoward deeds have occurred without a trace of responsibility, and there have been few public words on the matter of the Griffins gaining access to the harbor.

The brothers said they are discouraged, but remain as determined as those who side with the town on harbor access issues.

“Before I give up,” Dale Griffin declared recently, “I’ll be leaving here in a pine box.”

The Griffins have retained a lawyer, Ralph Dyer of Portland.

While the purpose of the town’s old and amended harbor ordinances is to maximize the number of moorings in the harbor, the Griffins’ lawsuit contends that the town has not kept an accurate record of the number of mooring sites available at any time the Griffins’ have sought one.

Harbor master Cates said during an interview he did not know the precise number of men and women who make their living fishing out of Cutler Harbor. “I don’t know,” he said. “Forty, 50 … maybe 60 or 70.”

The town’s annual report, published last August in time for Cutler’s town meeting, indicated 38 moorings were for residents and five for nonresidents.

The Griffins’ lawsuit contends there were more than 60 moorings in Cutler Harbor as of May 3, 2004, the first time the brothers’ applications for spots were denied.

Cutler made only two moorings available to nonresident commercial users, the lawsuit says, and since then, no additional moorings have been made available to nonresidents who may compete with Cutler residents for lobster.

The Griffins assert in their lawsuit that the town’s position is that no additional nonresident moorings will be issued until the number of resident moorings exceeds 71.

If the town is to make two more moorings available to nonresidents, 71 are needed to meet state regulations that require a minimum of 10 percent of moorings be set aside for nonresidents.

The Griffins’ attorney has reminded the town that the 10 percent is a mandated minimum, not a maximum.

But no change in the number of resident moorings has occurred in years, so until more residents ask for moorings, an opportunity for a nonresident to get one doesn’t exist.

That much is stated in the lawsuit. That much was confirmed in an affidavit provided last fall by John Drouin, the harbor master who resigned.

“I resigned due to family and health concerns, not because of turn-tail-and-run because I’m afraid of the [court] decision,” Drouin said last week.

“It’s almost a year since our original decision [on May 3, 2004] that the Griffins didn’t agree with. We stood by that. We stand by that. We went by what the law says. It’s all been researched, and we’ve asked other harbor masters.

“Everything points to the correct decision by the harbor masters. This is a frivolous lawsuit, that’s what it’s become.”

Four other nonresidents applied for moorings in Cutler Harbor in the last 18 months and were denied, Drouin said, but “they accepted our decisions and didn’t file a lawsuit like the Griffins.”

The Griffin brothers have received letters from harbor masters Cates and Patrick Feeney, citing violations of the town’s harbor ordinance.

Penalties and fines of up to $2,500 per violation per day could be imposed on the Griffins dating to March 29, when other lobstermen turned in videotape and photos of the Griffins working in the harbor. They were setting moorings alongside the McGuires with their permission.

Dale Griffin was putting his boat, Double Trouble, on a mooring belonging to Mark McGuire Sr. Michael Griffin was using a mooring belonging to Mark McGuire Jr.

The two harbor masters called an emergency meeting on April 15 to consider the Griffins’ violations with the McGuires.

The Griffin family is local. In addition to Michael, 47, and Dale, 46, another brother, Jeff, 45, lives in Dennysville. The youngest is Timmy, 43, of Pembroke.

All of the brothers, as well as Dale’s son, Brent, 25, have state-issued Zone A licenses that allow them to fish Maine’s waters from Calais to Schoodic Point in Winter Harbor.

Cutler harbor masters “don’t want to issue us two moorings because suddenly they might have five Griffins asking for moorings,” Dale Griffin said.

Mark McGuire Jr. is the one who received a letter last week from the harbor masters saying his mooring would be cut by April 29 if he didn’t remove the boat from it. The boat belongs to Michael Griffin.

“It’s more gamesmanship,” Ralph Dyer, the Griffins’ attorney, said recently. “It’s total harassment of these people.

“There is absolutely no authority in the Harbor Masters Act for any harbor master to do anything like that [threatening to cut a mooring]. It’s like police officers deciding how long someone spends in the local jail.”

The younger McGuire has some words for his colleagues in Cutler Harbor.

“We all fish the gray zone,” he said, referring to shared waters with Canada. “I would trade 10 Canadians for the local fishermen. It’s so much easier to work with them. They don’t cut your gear.”

Called with just 24 hours’ notice, an April 15 public meeting drew a roomful: 20 lobstermen, three reporters and town officials. Sally Daggett, a Portland attorney who specializes in municipal law and is working with the town in this case, was present.

The meeting opened with Feeney, one of the harbor masters, reading a statement prepared by attorney Daggett that outlined how the meeting would be conducted. Copies of the material the harbor masters were considering – all marked “draft” – were passed to all who wanted to see them.

At the end of the April 15 meeting, the harbor masters, with Daggett’s guidance, settled on the text of letters citing violations that each of the Griffins and the McGuires would receive.

Because the Griffins’ lawsuit addresses their civil rights, a town attorney has moved the case from state Superior Court in Machias to U.S. District Court in Bangor.

Portland attorney Mark Franco represents the town through its insurance carrier, the Maine Municipal Association. He filed a 20-page motion in federal court to dismiss the case. That hearing is the next step in the legal maneuverings.

Franco could not be reached by phone last week.

If the case is scheduled for trial, that likely will take place in December.

Much of the Griffins’ case rests on testimony that Drouin, the harbor master who resigned for his child’s sake, provided last fall in an affidavit.

Speaking as a town representative, Drouin told the Griffins’ attorney that the town’s position was that “this resource [the harbor] belongs to the residents, not to taxpayers,” and that the town was seeking to protect that position.

As for residents who questioned the ultimate cost to the town from litigation, Drouin had an answer for them at the annual town meeting last August. The town itself wouldn’t pay anything, he said, because “the fishermen” of Cutler would cover any costs to defend the town’s position.

The Griffins are seeking compensatory and punitive damages in their lawsuit. It cites “intentional interference” with their lobster business by the three harbor masters.

The last time a nonresident was given a mooring for Cutler Harbor was 1991, when the town instituted a permit system. The handful of nonresidents already fishing there – who still fish there – were grandfathered in.

It was 14 years ago that Cutler changed its harbor master policy to expand to a panel of three harbor masters from the traditional one.

Even with three harbor masters, the town finds itself in trouble.

“It is virtually impossible,” attorney Dyer contended last week, “under the formula for moorings that Drouin described, that any nonresident will ever get a mooring in Cutler.”

That much will be decided in court, rather than in the harbor.