DEC Takes the Bait, Will Cast Out Cash to Fishermen

The state agency will pay back just over $10,000 to Amagansett and Greenport fishermen, in a move the fishermen say is a long-time coming.

Aggrieved East End fishermen are getting back some money that they say was stolen by the government agency that regulates their industry.

Sidney Smith, a dragger fisherman from Greenport, will receive $8,333.05 and the Lester family, baymen from Amagansett, will receive $202.25.

Daniel G. Rodgers, an attorney representing a dozen fishermen who pushed for an investigation into what they call "unconstitutional" conduct by the state Department of Environmental Conservation, said he had been negotiating with DEC attorneys since the summer about the funds, as well as $1,000 Amagansett fishermen Stuart Vorpahl felt he was owed.

Smith, the captain of the Greenport fishing vessel Merit, was charged with felonies and misdemeanor charges related to alleged illegal commercialization of marine fish after the DEC inspected his boat in 2011.

But, Rodgers said the DEC waited until Smith paid to ship his catch to the Fulton Fish Market, then went there and demanded Smith's payment be torn up and a new one be made out to the DEC, something Rodgers said amounted to theft. "Typically, people get arrested for that," he said.

In an interview by phone Friday morning, Smith said he had the proper permits — he is a participant in the Research Set Aside program, a cooperative research program set up in 2002 by the Mid-Atlantic Fishery Management Council and run by NOAA’s Fisheries Service, which allows him to purchase fisheries quota that has been set aside to help pay for research and to harvest more fish than might normally be allowed in a day. But, the DEC claimed that Smith was not following the strict requirements and procedures for the program, therefore he was held responsible for normal fishing rules.

Smith said he was following proper protocol. “There were two boxes of fish on the boat that day that were over the limit,” Smith said during a phone interview Friday morning. “But I was allowed to have those fish with the set aside permit.”

Smith, who said that he’s never so much gotten a ticket in 40 years of fishing New York waters, described the procedure of participating in the set-aside program and said the DEC jumped the gun over a technicality last June.

“You have to call the feds up whenever you start a trip, then you get a confirmation number, and you are supposed to also fax or email the state about where you are going and when you are coming back. When I left, I sent an email,” he said. “But I had dropped off 2,500 pounds of squid at the Shinnecock dock, and because I didn’t resend the email to the state after that, that was the reason they boarded my boat — we’re talking about one email here — it’s a pretty stiff punishment over one email.”

Smith said he really lost about $17,000 total because of the DEC charges — “I lost 7,000 pounds of set-aside fish — those are fish I have to pay for,” he said. For the past year Smith has fished out of Rhode Island, another state that participates in the set-aside program and a state where Smith has a permit to fish. Smith said he took a plea agreement that includes not being able to obtain a New York State fishing permit for a year.

Rodgers represented Kelly Lester and her brother Paul Lester at a bench-trial in East Hampton Town Justice Court in Oct. 2011, where they were cleared of all charges stemming from a raid at their Amagansett clam stand and home that summer.

Kelly Lester was initially charged with a misdemeanor for the alleged sale of shellfish to the public without a permit, but the charge was later dropped to a violation at arraignment. Paul was charged with possession of untagged fluke and possession of over the limit fluke, which are violations.

DEC officers went to the Lesters' property on Abraham's Path, confiscated 74.5 pounds of fluke and 16 pounds of scup and sold it to a local fish market. After their acquittal, Rodgers sent a bill for $202.25 — how much the fish, some of which was being prepared for supper, was worth. "That's their dinner. You're paying," Rodgers said.

DEC Press Officer Lori Severino confirmed the Lesters and Smith will receive checks. In an email on Friday afternoon, she wrote that the "DEC has reviewed the matters and determined that because the Lesters were acquitted after trial and Smith's plea bargain agreement did not include forfeiture as part of the terms, these defendants are entitled to the return of the seized evidence in their cases."

Kelly, Paul and Danny Lester's uncle, James Lester will actually receive the check. They said it was actually his fish that was confiscated after he went out for a day of fishing with them.

Speaking for the family, Danny Lester said, "It's about time, let's put it that way. They've been pulling that stuff for the last 20 years." He added, "We just finally stepped up to the plate." He said he hopes the battle they've waged will make a difference.

In the meantime, the inspector general's office is conducting an investigation, according to Rodgers, who said many fishermen and fish market owners from New York City to Montauk have been interviewed. He said there has been an informal suspension of seizures from fishermen during the investigation.

Also, Rodgers filed an ethics complaint with the New York State Ethics Commission in June for practices he calls an ethical breach. "When the DEC takes Kelly Lester's fish and sells it to Stuart's, they are competing with other fishermen," he said. He also claims it is unethical for an agency to take money from a commercial entity it regulates.

Rodgers said a bill that Assemblyman Fred W. Thiele Jr., I-Sag Harbor, announced this spring, which would eliminate the practice of seizures without warrants and force the DEC to show probable cause, has been tabled until the investigation is complete.

Smith isn't completely satisfied. “They gave me some money back, but they refuse to give me a permit,” he said. “The whole point I’m trying to make is that there was no due process here, it was a shakedown — the DEC wanted my money, that’s the bottom line. And the only reason they sent the check back is because of this internal investigation.”

Rodgers, who did not represent Smith when he took the plea deal, said they are trying to negotiate a new permit.

"I think this is just the beginning," Rodgers said of the refund checks. "Today's a good day to be a fishermen."

alfred Havel September 22, 2012 at 01:32 AM
It's about time.
Carole Campolo September 22, 2012 at 02:42 AM
This is government run a mock. Fishermen have to notify the feds and the state when they are going out to fish? Are you kidding me? Hey all you people out there that bitched and moaned when the Bush administration passed the Patriot Act, in order to monitor the activities of terrorists, where are you now? Our fisherman are law biding, hard working, tax paying members of our community. And they are being treated as the worst kind of criminals. Terrorists and murderers have more rights than these guys do. Where is Tim BIshop? What has he done for these guys? And after all these years, all Fred Thiele can come up with is legislation reaffirming the due process and constitutional rights of these guys? Hey Ken LaValle, where are you? You gotta wonder what these politicians are doing all day. They should be chaining themselves in front of the DEC offices, at the Governor's office and wherever, to ensure that the constitutional and business rights of these guys is protected. If these elected officials cannot defend and protect our local fisherman, who risk their lives, to put food on our table, then why are they in office? Given their jack booted tactics, the DEC should be defunded immediately. Hey Cuomo, where are you in this fight? And Bishop, Thiele, LaValle, I hope to read or hear of your efforts to bring the out of control DEC into line.
tm September 22, 2012 at 04:01 AM
I don't really follow the first part of your post, but bravo on the rest. Everyone in office or hoping to be in office, republican or democrat, should use these cases as an example of how the way the fisheries are managed needs to be reexamined.
Steve Haweeli September 22, 2012 at 10:47 AM
I agree with Carole word for word. Incredible that commercia fishermen have to notify the fed when they go out to fish. Term limits please.
Stinker September 22, 2012 at 11:01 AM
Oh it gets better. The same people in charge of this, will be running your healthcare. Get back to me when you have to go through the fed to schedule an annual physical and God forbid you actually need something quickly.
Erin Schultz September 22, 2012 at 12:35 PM
Bob Corwin said on North Fork Patch Facebook: "About time someone is holding the DEC accountable. I'm all for policing our waters, but the shakedowns need to stop. It's been going on way too long."
Carole Campolo September 22, 2012 at 04:50 PM
The more I read this article, the more frightening and infuriating it becomes. Words from a fisherman like, "I was allowed to keep my fish." Or descriptions of government officials coming on to someone's property and confiscating their day's work and their supper, think about how far afield we have come in this country and how we have allowed government to amass this kind of power. And they pay the Lesters $200 dollars? And Smith about $8,000 when he lost more than double that? And we are all so happy that these fishermen are being paid anything? I hope they are suing the State for big sums of money just for their pain and suffering. People sue and win over much less these day. The thing that has always made the US exceptional is our form of government that exists to serve the people. Instead, our liberties are being extinguished and livelihoods are being crushed by an out of control government.
Loretta Lynch September 23, 2012 at 01:21 PM
Another example of government running our lives. Way back when, it wasn’t the American way. I believe the government forced many out of the commercial fishing business. My husband was one of them. Yes Carol, I agree 100%
Gary Quarty September 23, 2012 at 08:00 PM
Its a good thing lawyers like lobsters otherwise they would have nevr dared stood up to the omnipotent DEC
Sheila DeCosse September 23, 2012 at 08:59 PM
Carole Campolo expressed what I don't have the facts to know but feel: that the fisherman are getting hounded and that is a disgrace..
Lady L September 25, 2012 at 03:56 AM
Hurrah for the fishermen, good bye to little despots in DEC uniforms. It is way past time for us to stand up against the gestapo tactics of our government.


More »
Got a question? Something on your mind? Talk to your community, directly.
Note Article
Just a short thought to get the word out quickly about anything in your neighborhood.
Share something with your neighbors.What's on your mind?What's on your mind?Make an announcement, speak your mind, or sell somethingPost something
See more »