Sunday, September 17, 2017


Ten or twelve years ago, I was down in Islamorada, and jumped aboard a local party boat for the day.

It wasn’t peak season.  

On the plus side, that meant that there weren’t many people on board the boat, and we didn’t have to jostle for a favored stern spot.  On the downside, one of the reason that there weren’t many anglers was that there weren’t too many fish, at least compared to other times of the year, and while the fishing was great, the catching was a little slow.

The boat anchored uptide of a patch reef, and tossed over a few balls of chum.  It wasn’t long before the water a few dozen yards astern began to take on a shimmering, golden hue as a swarm of yellowtail snapper, responding to the chum, rose up off the bottom.

They weren’t big fish.  Patch-reef yellowtail, living on pieces of bottom near popular ports, are fished pretty hard.  “Flag” yellowtail, as the big fish are called, are almost impossible to find there; most are a couple of inches above or below the minimum legal size.

Considering the conditions, we started out OK.  The first yellowtail of the morning are always naïve, and I was able to put a couple of half-decent fish on ice before the panicked struggles of our hooked snapper started making the rest of the school spooky.  Cero mackerel passed by, and some of them came aboard.  But as the morning wore on, the fishing inevitably slowed.

And what happened then was, perhaps, inevitable as well.

A tourist in the starboard stern corner caught an undersized yellowtail snapper.

That, in itself, was nothing new; we had been catching shorts all morning, and had been quickly dropping them back over the side.  But the tourist wasn’t following the program.  Instead of releasing his fish, he was walking it over to the cooler.

And that’s when the captain of the boat got involved.

“Where are you going with that fish?  It’s too small.  Put it back.”
That didn’t go over too well with the tourist, who responded, in the unmistakable accent of the New York Metro region,

“It’s my fish, and I can do what I want with it.”
The fact that keeping the fish was illegal seemed to be lost on the tourist, but not on the captain, who was beginning to get a little annoyed.

“I’m not going to lose my license over your fish.  Put it back in the water.”
Which led to the immediate response of

“I paid to be on this boat, and I can do what I want with my fish.”
At that point, the captain pulled out his wallet, took out the amount of the tourist’s fare, and said

“Here’s your money.  Get off the deck.  Go sit in the cabin, and never come out on this boat again.”
Because that’s how they do it down South.  I’ve fished for snapper on various party boats in the Keys and the Gulf of Mexico, and have found that the captains and mates down there take pains to obey the laws, largely because the boat can be in legal jeopardy if they do not.  And the snapper-grouper management plans don’t permit fish to be filleted at sea; nothing gets cut until it’s back at the dock, making undersized fish a lot easier for law enforcement officers to find.

It’s a little different up here.

That was illustrated recently when enforcement officers from the New York State Department of Environmental Conservation boarded the party boat Fin Chaser at the dock at Star Island Marina in Montauk.

“One of Montauk’s headboats pulled into the slip on Thursday to be greeted by a couple of guys in the green uniforms of the DEC.  They boarded the boat and started to inspect the anglers’ coolers, finding that the first one had 96 seabass, which is 93 over the legal limit.  As they continued the inspection on the starboard side, there was a massive fish kill on the port side, with dead seabass floating all over the place, and anglers who had not caught anything during the trip filing off.  After the dust cleared, there were over a dozen coolers left with no owners that held over a thousand seabass.  Since no one claimed them, ownership appeared to belong to the captain and owner of the boat.  Stay tuned.”
Those who kept up with the story soon discovered the critical nuance.  An article that appeared about a week after Capt. Kelly’s report, in the Easthampton Star, noted that

“The party boat’s customers were cited for possessing too many black sea bass and porgies, undersized black sea bass and summer flounder, and for failure to stop dumping [fish overboard] upon command.
“[The captain was] issued a violation for an incomplete trip report.  Seven other violations, each carrying a penalty of up to $250, were issued, as well as a misdemeanor charge of failure to stop dumping upon command, for which the penalty is up to $1,000 and imprisonment of up to one year.
“Environmental conservation law does not hold the owner or captain responsible for the actions of anglers on his vessel, the [Department of Environmental Conservation] spokesman said, unless officers witness them assisting with or taking responsibility for what is occurring.”
And that’s a problem, because as my story from Islamorada demonstrates, a conscientious captain is the fish’s first line of defense; he or she is the person best positioned to ensure that fishery laws are obeyed.

The problem is, the captain is always torn between conflicting motivations.  He may be a decent guy, who honestly doesn’t like to see fares poaching fish.  He may be perceptive enough to realize that overharvesting fish today may very well hurt his business in the future.  At the same time, there is a very good chance that if customers, such as the tourist and would-be poacher down in Islamorada, are told that they have to release a fish that they want to keep, they’re not going to come back on the boat any more.  And that’s a threat to future business, too.

Thus, you have the situation that a party boat mate out of Freeport, New York threw in my face one evening, when I questioned why he and the rest of his crew allowed passengers to chronically overfish the small bluefish that were than crowding into the bay.

“You think that I’m going to tell some [racial epithet deleted] that he can’t keep more than 10 fish?  That’s the difference between me making $20 and $200 in tips in a night!”
So it’s pretty clear that if regulators want the captains and crews to stop letting their passengers ignore the law, they’re going to have to give those folks some sort of incentive.

In California, for example, violations of recreational fishing regulations aboard party boats became so common that enforcement authorities conducted a year-long undercover operation targeting the captains who abetted and encouraged their passengers to violate the law.  According to the Los Angeles Times,

“Skipper Rick Powers was handcuffed by a phalanx of officers and charged with one count of felony conspiracy to violate Fish and Game laws and six misdemeanor infractions that include using illegal hooks, exceeding catch limits and keeping prohibited species…
“Later this week, state officials said, misdemeanor complaints will be filed against 13 other party boat skippers in nine counties…on a host of additional allegations that involve wounding pelicans and seals, fudging records to avoid catch limits and catching fish out of season.
“…’Wardens have been overwhelmed with complaints about party boats,’ said Warden Bob Aldrich, based in Bodega Bay.  ‘Guys who are over limit for fish get encouraged to continue fishing, and their catch is distributed to other passengers who were seasick’ or didn’t catch their limit, he said.
“No recreational anglers were targeted because they are often unaware of state regulations, officials said.  Instead, wardens went after the people who they believe should have known  better:  boat captains and crews.
“…The most troublesome violations, wardens say, include exceeding limits on the number of fish, catching undersized fish and then masking their size by filleting them before the boat returns to the dock; and [salmon-specific gear regulations].  [emphasis added]”
Some of those violations are unique to California and its particular mix of fish species, but plenty of them are going to be familiar to anyone who ever fishes from a party boat in New York or New Jersey, and some of them fit right in with the allegations arising out of the Fin Chaser incident.

If New York has a real desire to prevent such violations from occurring in its for-hire fleet, it should be making a serious effort to impose similar liability on for-hire vessels’ captains and crews.  Such liability shouldn’t be onerous—it’s practically impossible to prevent a passenger intent on poaching from secreting a couple of illegal fish into a lunch bag or other container—but if the number of illegal fish exceeds, for the sake of example, 20% of the overall catch, a presumption that the captain and crew are complicit is not unreasonable.  

After all, boats are required to submit accurate vessel trip reports for every trip made, so “I didn’t know what people caught” is not a viable excuse.

And, looking at harvest estimates provided by the National Marine Fisheries Service, it seems that such a 20% figure might cause quite a bit of grief to folks who presently consider themselves above the law. 

Using 2016 as an example, about 40% of the black sea bass harvested and sampled on party boats were less than 15 inches long—which was and still is the size limit (note that NMFS gives the measurement in terms of “fork length” and black sea bass’ tails are not forked, so it’s possible that the 40% number is a little high, depending on how the fish are measured, but even half of that would hit the theoretical 20% minimum).

That number falls to a smaller, but still significant 27% of undersized summer flounder (the same caveat on fork length applies), but jumps to 47% of scup being less than 9 inches long (the size limit is 10 inches, but scup do have forked tails, so an allowance was made for that) and then goes back down to 20% of striped bass measuring less than 26 inches (the size limit is 28 inches, but again, a generous 2-inch allowance was made for the fork in the tail, and assure that I wasn't overstating the scope of the illegal harvest).

So yes, party boats take a lot of short fish—and one has to remember that the numbers above probably reflect the minimum level of lawlessness, as anglers don’t have to let NMFS samplers measure their undersized fish, and black sea bass and scup, at least, can still be legally filleted at sea, to hide the number of illegal fish actually taken.

So making boat crews responsible for illegal activity on their vessels is a needed first step, but it is only the first one.  Requiring crews to retain the “racks,” the intact heads, tails and skeleton of filleted fish, is a good next step, to reduce the number of undersized fish filleted at sea; in New York, such rack retention is already required for striped bass and summer flounder.  Requiring all fish to be filleted on shore is an even more effective measure, that prevents racks from a previous trip to be retained to cover the inevitable shorts kept by passengers (a practice that is currently illegal but, reportedly, far from unknown).

Even so, none of the measures restricting filleting at sea would have prevented the Fin Chaser incident, as many of the illegal fish landed were still intact.  Thus, it falls back on the need to adopt rules that make violating the law too painful for the vessel and crew to risk.

Fines alone won’t do that, and in the real world, no judge is going to impose jail time for some undersized or over-limit fish, absent a long history of egregious violations.  

In the over-all scheme of things, when overworked and understaffed law enforcement agencies have difficulty covering all of the docks were violations might occur, the odds of being caught and fined are fairly remote.  That makes even a $1,000 fine just another cost of doing business.

Take the Fin Chaser as an example.  An article on the incident published in Newsday states that the boat can carry ‘more than 50 passengers” and charges each one $90 for a porgy and black sea bass trip; it was allegedly carrying 46 passengers on the day that the enforcement agents came aboard. 

But even if it only carried 40 passengers each day, the fares collected would equal $3,600—a significant sum.

Far from all of that is profit.  The boat must pay for fuel and bait, dock space, insurance and maintenance of the boat and fishing gear.  The deck crew largely works for tips, but probably also receives some fixed income to keep the boat from losing them if weather prevents sailing for a few days in a row  Even so, $1,000 spread out across the entire season—even a few fines of that size—don’t amount to much of a deterrent.

And as I note earlier, jail isn’t a realistic option .

So what is needed is a sanction that will have some teeth, and can realistically be imposed.  The answer is something that we see used far too seldom in the for-hire world, the imposition of administrative sanctions.  That basically means that, after providing the operator an opportunity to be heard, either NMFS or the State of New York—preferably both—suspend the permits the boat needs to operate for an appropriate period of time.

While a $1,000 fine might not mean very much, being tied up to the dock for two weeks during the peak of the season is going to hurt, when no income is coming in but the fixed expenses for dockage, insurance and crew are still piling up.

And the boat lying empty at the pier would provide a good example to other captains and crews thinking about crossing the line, reminding them why countenancing illegality is just not a good idea.

Right now, there’s just too much illegality going on.  It’s time for NMFS and the states to take meaningful action to get it to stop.

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