Sunday, October 12, 2014


A few days ago, I stopped down at a local marina and, as often happens, started talking about fish.

This time, the conversation kicked off when one of the guys said “It looks bad for striped bass.”  We exchanged some technical babble about benchmark stock assessments and the young-of-the-year trends, and then he noted “But what’s really bad is the poaching.”

He went on to talk about supposedly “recreational” folks going out, coming back with an illegal load of stripers that they sell to local markets and restaurants. 

From that point, the conversation broadened to include the folks who killed too many school bluefin, then sold them illegally to the same sort of places, the wealthy folks with the 50-foot battlewagons who come in from the canyons with 40-pound yellowfin that they “need” to market for $1 per pound and, perhaps worst of all, the live-fish poachers that have decimated our blackfish (you might call them “tautog”) stocks.

And what got the folks down at the dock angrier than anything else was that on the rare occasions that someone actually got caught, the fines were completely disproportionate to the crime, amounting to a mere slap on the wrist.

Someone said that fines should be punitive. 

“Make the first illegal fish $500, $1,000 for two, and just keep going until it starts getting really expensive.  And take the boat, too.  After it happens a couple of times, people will start thinking that it’s not worth the risk of losing a $300,000 boat to sell $300 of fish.”
At that point, I interjected that, as nice as such penalties would be, the trend is headed in the opposite direction.  In another sad example of the inmates running the asylum, the folks who break our fisheries laws now have now taken control of the debate, and have fisheries enforcement folks on the defensive.

At both the federal and state level, the folks charged with protecting our natural resources are having to justify fining poachers and making fishermen to play by the rules, while everyone else stands around ignoring the fact that the folks righteously criticizing law enforcement them stand on the wrong side of the law themselves.

It started up in New England, as a lot of the bad things in fisheries do, when a volatile combination of fishermen who were hostile to, and often violated, federal fisheries regulations faced off against federal law enforcement officers who aggressively pursued those violators.  A tense situation exploded into public controversy after agents from the National Marine Fisheries Service raided the Gloucester Seafood Display Auction. 

The agents were seeking evidence that the Auction was dealing in illegally-caught cod, and served a warrant demanding possession of its business records.

All day the agents checked in with their boss, Andy Cohen, the man responsible for policing NOAA’s northeastern fisheries. Cohen was at a fish farming conference in Connecticut, but even from a distance he sensed that things might not work out the way he had hoped. Several local politicians had shown up at the auction house. The Ciullas’ friends were bringing the family sandwiches. The Gloucester mayor sent a veteran police detective to watch over the feds. A representative from Democratic U.S. Representative John Tierney’s office had stopped by for half an hour.
Cohen knew that fishing was the business of Gloucester, but the next five years would reveal just how powerful the industry could be. The battle between Cohen and Ciulla had begun many years earlier and would end this past summer with NOAA’s enforcement powers severely compromised and with Cohen out of a job. Starting that day in Gloucester, much would be revealed about the balance between the world’s fisheries and the businesses that harvest them. ‘I don’t think the fishing industry is ever going to be the same,’ says Cohen.”
The politics of the situation, along with some overly-aggressive tactics on the part of the enforcement agents, quickly overshadowed the fact that members of the Gloucester fishing community often opted to break the law.

As the Buisnessweek story reported,

The Gloucester community had its share of habitual offenders, but the low likelihood of getting caught made it more tempting for otherwise honest fishermen struggling to profit from depleted stocks. ‘There’s a fine line when it comes to breaking the law,’ says Jack Lakeman, whose family has owned and fished from dozens of boats over the years. ‘You’re trying to make a living.’”
An academic paper entitled “Rational noncompliance and the liquidation of Northeast groundfish resources,” published in 2009 by Dennis M. King of the University of Maryland and John C. Sutinen of the University of Rhode Island, stated that

“The results of a 2007 survey of fishers, managers, scientists and enforcement officials indicate that noncompliance is a significant problem in the Northeast multispecies groundfish (NEGF) fishery, as it has been for at least 20 years.  The percent of total harvest estimated to be taken illegally is 12-24%…
“The deterrence effect of the existing enforcement system in the NEGF fishery is weak because economic gains from violating fishing regulations are nearly 5 times the economic value of expected penalties.  For example, by fishing illegally a midsize trawler in the NEGF fishery is estimated to increase expected earnings per trip by $5,500.  Fishing violations have a 32.5% probability of being detected, and enforcement data show that detected violations have a 33.1% probability of being prosecuted and resulting in a penalty.  The average penalty assessed for a violation is $20,455 and the settlement amount averages 53% of the assessed penalty.  The expected cost of a violation, therefore, is $1,166.  When compared to the illegal gain, the economic incentive not to comply is $4,334 per trip.
“…normative factors favoring compliance in the NEGF fishery are weak because many fishers believe recent fishery management decisions were not justified and that planned stock rebuilding targets and schedules are arbitrary and unfair.  Until this situation changes, more enforcement and more certain and meaningful penalties will be needed to improve compliance.  Fishing restrictions will need to be tightened to achieve new legally mandated stock rebuilding targets.  This will increase economic incentives for noncompliance in the fishery and require even more enforcement and more significant penalties to achieve adequate compliance rates.  [emphasis added]”
People might think that such a rational analysis, made by qualified and disinterested persons, should have had a significant influence on policymakers.  

However, anyone believing that would merely be demonstrating a profound ignorance of the fisheries arena, where politics, emotion and well-motivated greed will usually trump science, sound policy and reason.

In the real world, the Secretary of Commerce felt politically obligated to appoint a “Special Master,” in the form of a retired federal judge, to look into the fishermen’s claims of overly aggressive enforcement efforts.  From all reports, such Special Master did an admirable job of digging into the allegations and interviewing witnesses, and he did find situations where search warrants may have been faulty and agents were truly overzealous.

Unfortunately, he seemed to lack a true understanding of the fishery described in King and Sutinen’s paper, and instead was clearly sympathetic to the fishermen, saying in his Report and Recommendation of the Special Master Concerning NOAA Enforcement Action of Certain Designated Cases

“[T]here is a siege mentality throughout the fishing industry.  Fishermen and fish dealers believe they are treated like criminals.  It is an ‘us against them’ mentality.  The regulations are complex, complicated, constantly changing, and in some cases, contradictory.  Fishermen are paranoid every time that they come ashore to offload their catch that they will be met at the dock by a Special Agent who will look for and find a violation of some obscure or even well known regulation.  They feel that the offloading of their catch is fraught with peril…
“The regulators have recently suffered a similar plight as their past actions in enforcing the fishing regulations are under public attack.  The Special Agents and Enforcement Attorneys feel that they are now under siege because in their minds they are being punished for merely doing their job.  However, as the pendulum of public opinion swings away from them to the fishermen and fish dealers, they should recognize that in some cases, their past actions may have precipitated their current plight…”
As a result of his investigation, the Special Master rebated or reduced a number of the penalties previously imposed, and seemed to side with some folks who clearly and willfully violated the law.

One example of that occurred right here in New York, which is described in the Report as follows

“A Coast Guard officer noticed a false bulkhead made of foam in the aft part of the fish hold.  Mr. Kokell stated that there were fuel tanks behind the bulkhead.  Further inspection of the area revealed several boxes of summer flounder.  There were a total of seventeen (17) boxes, of which two (2) contained monkfish and fifteen (15) contained summer flounder.  When asked how long he had had the compartment, Mr. Kokell could not provide an exact date, but he stated that he had made no more than three (3) or four (4) trips with that compartment…
“Mr. Kokell admitted that he knew that the summer flounder season had ended.  Finally, Mr. Kokell told the agents to ‘take his boat because he refuses to provide any additional information regarding his previous illegal actions.’”
The fisherman eventually settled for a $65,000 fine and a 6.5-month suspension of his federal fishing permits.  However, after three years, he only paid about half of the fine; NOAA ultimately wrote of the remaining $30,000 of the penalty.  Freed from that financial burden and with his fishing permits restored, the fisherman then had the temerity to complain to the Special Master that he was not being allowed to participate in the Research Set-Aside Program!

(Readers of this blog may recall that the Mid-Atlantic Fishery Management Council suspended the Research Set-Aside Program last August after some other fishermen disguised hundreds of thousands of pounds of illegal summer flounder as RSA landings, noting

One of the chief concerns about the RSA program is that its current design makes it vulnerable to abuse through under-reporting and non-reporting of catch. Two recent investigations in New York by NOAA’s Office of Law Enforcement revealed that significant quantities of summer flounder were being taken illegally under the cover of quota acquired through the RSA program.”)
The fallout of the Special Master’s report echoed far from Gloucester.  Long Island, New York based Newsday reported that, after the Commerce Department declined to review additional incidents of claimed enforcement abuse,

Fishermen, wholesalers and U.S. Sen. Charles Schumer urged Locke to reconsider his decision, saying excessive enforcement and fines over more than a decade devastated lives and drove some fishermen off the water.

“Bonnie Brady, executive director of the Long Island Commercial Fishing Association, said Locke's decision denies local fishermen ‘closure.’

"’You need to look back at the past in order to move forward,’ she said, adding that denying them right to review bolsters the perception that the system is corrupt. ‘Bottom line: The fix is in.’"

But if you follow up on some of the comments made in that Newsday article, you come to realize that it’s not “the system” that needs some attention—or who “the fix” really favors.

For Newsday went on to report the reactions of people in the fishing business to the Commerce Department’s decision.

One, Mark Agger, President of Agger Fish Company, said
"[The National Marine Fisheries Service is] refusing to take responsibility for their actions"
“called the case trivial and not worthy of a reply.”
When contacted by Newsday, his attorney supposedly said that
Agger didn't realize his permits were expired, because permit rules had changed. He said they agreed to the settlement in part because fines for expired permits would have been thousands of dollars more. 

"’You make one mistake and act in accordance to that mistake and the error is perpetuated,’ he said. ‘Mark wasn't told that he was missing a permit.’ 

“Addressing the prohibited fins fine, Ouellette said species are frequently added and taken off protection lists.”
Is that an example of “taking responsibility”?
Another fisherman, Charlie Wertz, was quoted by Newsday as saying that NMFS
“should give back those excessive fines. That would be the right thing to do."
It’s not clear from the article whether the “Charlie Wertz” quoted was the late Charles Wertz, Sr., a Freeport commercial fisherman, or his son, Charles Wertz, Jr.  However, a press release issued by NMFS about a year ago noted that

Charles Wertz, Jr. pled guilty in federal district court to one count of wire fraud and two counts of falsifying federal records. His company, C&C Ocean Fishery, Ltd., pled guilty to one count of wire fraud and three counts of falsifying federal records. Though the final sentence is up to the Court, the defendants have agreed to pay between $480,000 and $516,000 in combined fines and forfeitures and will undergo multiple sentence conditions, including relinquishment of federal fishing permits, a ban on participation in the RSA program, and shutting down C&C Ocean Fishery…
Wertz manipulated the system by purchasing set-asides for fluke (also known as summer flounder) but underreporting the total catch. He used C&C Ocean Fishery to file false federal dealer reports that matched what was filed from his fishing vessel. The information submitted to NOAA on catch weights and fish species was false.
“…Agents worked with the Department of Justice Environmental Crimes Section to obtain and execute search warrants leading to the documentation of more than 86,000 pounds of unreported catch worth nearly $200,000.”
Given those facts, it’s not hard to understand why the guy might have been leery of enforcement agents…  

And it’s not hard to understand what motivates the attacks on law enforcement efforts.

Still, those attacks go on.

He seems to have little concern that such restrictions would make it extremely difficult to detect and prosecute illegal harvesters, since fish can be easily moved and thus can be spirited away before any sort of court order to search the fisherman’s property can be obtained.

As in Gloucester, local lawmakers more concerned with votes than the future viability of New York’s fisheries have jumped on the bandwagon, trying to convince the state legislature to pass a “Fishermen’s Bill of Rights.”  So far, rationality has prevailed and the bill has gone nowhere.

He is also trying to prevent law enforcement from selling illegally harvested fish, and instead would require them to find some sort of storage for what could be very large quantities of seafood pending trial.

Rodgers seems to have little concern for how such a requirement would affect law enforcement efforts or the health of fish populations, commenting that

“’Part of the argument is, what is the alternative.  If any officer attempts to confiscate fish, shellfish, lobsters or any other food fish how will they keep it for trial? Well, frankly, that is not my problem. If you are going to confiscate someone’s fish as evidence for trial in a criminal case, the law says you must keep it safe until a determination is made by court. That is called due process.”

Finally, down in North Carolina, we see the same problem take on yet another face.

The North Carolina Division of Marine Fisheries is seeking to enter into a joint enforcement agreement with the National Marine Fisheries Service, which among other things, would provide the state with an additional $600,000 for fisheries enforcement and allow both state and federal enforcement agents to address fisheries violations in either state or federal waters. 

The $600,000 was included in the last state budget but

Once again, it seems that fishermen aren’t very fond of enhanced enforcement efforts, and politicians are right there to pander to their concerns.

“In the Senate, we haven’t supported the gamefish bill and the joint enforcement bill. said Sen. Bill Cook (R-Beaufort).

 “I think the federal (government) needs to get out of North Carolina . . . we need to protect our commercial fishing industry.  In 15 or 20 years, federal regulations will run them out of business.”

Once again, protecting the fish, and the public interest in healthy fish stocks, from those who violate the laws didn’t seem to be much of a consideration.

Politicians are supposed to look out for the public’s interests, not the interests of folks who abuse publicly owned fisheries resources.  But up and down the east coast, that’s not what’s happening.

Instead, politicians are looking out for the poachers, seeking to use their influence to pass legislation and intimidate regulatory agencies, to make the law enforcement effort as difficult as possible.

And it’s all going on under the radar, with most of the media, if they report the story at all, emphasizing alleged government abuses of fishermen and ignoring the fishermen’s demonstrated abuses of various fisheries.

That’s not the way that it’s supposed to be.

The first step in fixing the problem is to acknowledge that it exists...

No comments:

Post a Comment