More than six months after the State Department of Environmental Conservation agreed to cut two checks to return to aggrieved fishermen the price of seized assets from two years ago, the checks have finally arrived.
On Friday, the Lester family of baymen from Amagansett received a check in the amount of $202.25 and Sidney Smith, a dragger fisherman from Greenport, received $8,333.05.
They've all been expecting the checks since the summer of 2012. While the wheels of justice often grind slowly, their attorney, Daniel G. Rodgers, said getting the reimbursement is a enormous victory of New York state fishermen.
"I am not aware that this has ever happened before," Rodgers said. "It's a long time coming."
Rodgers, who is representing a dozen fishermen who pushed last year for an investigation into what they call "unconstitutional" conduct by the DEC, negotiated with DEC attorneys about returning the funds. The investigation is still ongoing, and the DEC has stopped the practice of seizing fish in the meantime. "That's two things that have never happened before," he said.
The Lesters have been waiting for their $202 check since Kelly Lester and her brother Paul Lester were cleared of all charges stemming from a raid at their Amagansett clam stand and home after a bench-trial in East Hampton Town Justice Court in October 2011.
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. Officers then sold it to a local fish market.
After their acquittal, Rodgers, who represented the Lesters at trial, sent the DEC a bill for $202.25 — how much the fish, some of which was being prepared for supper, was worth. It was a matter of principle, Rodgers said at the time.
Kelly Lester could not be immediately reached for comment on Monday.
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. Smith maintained that he had the proper permits needed and was following protocol as 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.
On Monday, Smith said receiving the check simply verifies the DEC was wrong in the first place. He called it a "stepping stone" and hopes it will help promote change within the agency.
Asked how he feels finally getting the check, he said: "It's almost forgotten about. It was so long ago. This has cost me thousands of dollars. It will never replace what was lost," he said.
Smith claims he actually lost about $17,000 in total because of the DEC charges, not to mention the added money it has cost him to fish out of Rhode Island, where he has been fishing after he took a plea agreement that includes not being able to obtain a New York State fishing permit for one year.
What is he going to do with the $8,300? "I'll probably pay some bills," he said with a laugh. "It's like it's been a very profitable winter." He said it's difficult to make ends meet with quotas and the winter weather. "No matter what you do, there's something turning around and slapping you in the face."
Asked why he thinks it took more than six months for the checks to be sent, Rodgers said, "Honestly, I think they just dropped the ball."
"They came back with some pretty lame excuses — they wanted W2 or W9 forms filed first, then they said Sidney spelled the name of his boat wrong," Rodgers said (Smith noted that were three spelling mistakes on the check he received).
"Then suddenly out of the blue, the checks came in," Rodgers said.
In the meantime, the inspector general's office is still conducting an investigation, according to Rodgers. Also, Rodgers filed an ethics complaint with the New York State Ethics Commission against the DEC last June for practices he calls an ethical breach.
Rodgers said a bill that Assemblyman Fred W. Thiele Jr., I-Sag Harbor, announced last 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.
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