Kelly and Paul Lester are vowing to fight the fishery violations lodged against them stemming from a raid at their Amagansett clam stand in July, and are expected to plead not guilty in East Hampton Town Justice Court on Thursday.
On July 8, the State Department of Environmental Conservation raided the brother and sister's property, when they were not present, and shut down the clam stand on their property, confiscated fish, and sold them to the local fish market.
Kelly was charged with a misdemeanor for the alleged sale of shellfish to the public without a permit. Paul was charged with possession of untagged fluke and possession of over the limit fluke, which are violations, not considered a criminal offense under the statute.
Their defense is that the Dongan Patent of 1686, a royal writ that has been upheld in state court, gives them rights, as town residents, to fish without a state license.
"It is our position that the officers of the DEC have gone too far in this situation," their attorney Daniel G. Rodgers said. "They quite literally entered the property illegally and confiscated fish that were being prepared for their dinner that night and sold it," he said.
Rodgers said that over the next 10 days their fishing boats were boarded three times by DEC officers, who reportedly found no violations.
This isn't the first scrape the Lester family has had with the DEC.
Last year, Paul and his brother Daniel, a former East Hampton Town harbormaster, were charged with not complying with commercial fishing permit licenses in 2008 and 2009. "It was our belief that the state does not have jurisdiction to charge residents fishing in local waters under the Dongan Patent," said Rodgers on Wednesday.
"The problem we ran into, was the fact that the DEC charged under felony statutes," he said. "If we had continued to fight and taken the case to trial, there existed the possibility, however slight, that we could lose." He said the Lesters ran the risk of a felony conviction and permanent loss of their fishing license.
"This is their livelihood," he said. They negotiated a plea to one misdemeanor count each. They were fined $5,000 each, Rodgers said, adding it was "very expensive for fisherman who essentially fish from the beach, hoping fish enter their nets."
The Lester family has been fishing East Hampton for hundreds of years, Rodgers said. In fact, their late father Calvin Lester was also arrested by DEC officers in the early 1990s for a similar offense.
In the current case, Kelly Lester was charged with a misdemeanor, a criminal offense under the law, "but Kelly feels quite adamantly that she will fight this charge at trial," Rodgers said.
"This could be a test case for the Dongan Patent," he said, adding that Stuart Vorphal, who has long been fighting on behalf of the patent's viability, is assisting the Lesters.
There will be no plea bargain, Rodgers said. "If necessary this important and possibly historic case will be defended to the Supreme Court of the United States."
Following the arraignments on Thursday, there will be a gathering and prayer vigil outside of the courthouse, as there was last year for the brothers.