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.
As noted in a
2011 article entitled, “The Gloucester Fish War,” which appeared in Bloomberg
Businessweek magazine,
“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"
That seems more than a little ironic
given that after Agger Fish
Company was fined $750,000 in 2006 for trading in 300,000 pounds of shark meat
without a permit and illegally possessing fins from seven different protected
species, Agger reportedly
“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.
In the meantime, Rodgers
has, through Assemblyman Fred Thiele, convinced the New York State Inspector
General to investigate the DEC’s law enforcement activities.
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...
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