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."