Over the past few weeks, Carlos Rafael, New Bedford’s
infamous “Codfather,” has been back in the news.
This time, it wasn’t for the
illegal landings and tax evasion that ultimately put him in jail.
There was some mention of the National
Marine Fisheries Service’s efforts to revoke 38 of Rafael’s fishing permits and
assess a civil penalty of nearly $1 million because of those unlawful acts. There were a few blurbs about one
of his scallop boats, supposedly unconnected with illegal doings, found with
contraband shellfish on board. But
that wasn’t the big news.
Instead most of the stories didn’t directly involve Rafael
himself, but instead NMFS’ decision to suspend the groundfish allocations
assigned to “Sector IX,” the sector of the New England groundfish fishery to
which Rafael belonged.
For those not familiar with that New England fishery, groundfish—or,
more properly, fish managed under the Northeast Multispecies fishery management
plan, which includes cod and related species, various flatfish and a handful of
other things such as ocean pout, Acadian redfish and spotted wolfish—are managed
under a unique hybrid system.
About
55% of the fishing vessels participate in a catch share program, which
assigns a defined percentage of the landings to vessels that have voluntarily grouped
into 17 separate “sectors”. Vessels
within a sector are subject to less day-to-day regulation, in terms of trip
limits, etc., but such vessels must stop fishing when their sector harvests its
share of the fish (unless it can purchase or lease additional quota from
another sector). The remainder of the
vessels participate in a traditional derby fishery, targeting the “common pool”
of fish that remains once quotas are awarded to the catch share vessels. Common pool vessels’ harvests are governed not by individual or sector quotas, but by
trip limits, limits on the days that may be spent at sea, etc.
Sectors were generally established by fishermen from the
same part of the coast, who shared a common gear type and targeted the same
species. According to the
final environmental assessment that preceded the creation of Rafael’s sector,
Sector IX,
“Members of [Sector IX] would primarily land their catch in
New Bedford, Massachusetts, and secondary ports would include Provincetown,
Massachusetts and Point Judith and Newport, Rhode Island. The primary fishing activity would occur on
Georges Bank…and inshore southern New England waters…Some fishing, on a limited
basis, could also take place within statistical areas in the Gulf of Maine…The
primary gear for [Sector IX] would be trawl gear, although a limited amount of
gillnets (<10 percent) may also be utilized. [Sector IX] would consist of 51 permits, however,
it is anticipated that only 22 active vessels would fish these permits.”
In reality, almost all of those 51 permits were assigned to
vessels owned by Carlos Rafael.
“sector members may be held jointly liable for violations of
the following requirements: Annual Catch
Entitlement (ACE) overages, discarding of legal-sized fish, and misreporting of
catch (including landings and discards)."
If there is an overage,
“The overage(s) would be deducted from the next fishing year’s
allocation(s) for those stock(s) for which the overage(s) occurred. Because sectors are required not to exceed
their quota, a sector that does so could be subject to enforcement penalties.
NMFS also requires each sector to file an operations plan,
and have it approved by the agency, before it may begin fishing each year.
That being the case, and given both Rafael’s dominance of
Sector IX and the extent of his illegal activities, it’s hardly surprising that,
late last year, NMFS withdrew its approval of Sector IX’s 2017 and 2018
operations plans and ordered all Sector IX vessels back to port. In
taking such action, NMFS explained that
“The Regional Administrator determined that the sector and
its participants have not complied with the requirements of their approved
operations plan, and that the continuation of the Sector IX operations plan
will undermine achievement of the conservation and management objections of the
Northeast Multispecies Fishery Management Plan.
This action follows the guilty plea and sentencing of Mr. Carlos Rafael,
a major participant in Sector IX, who admitted to falsely reporting catch
information.”
It all would seem reasonable and in accord with the
law. However, a lot of people disagreed. Virginia
Martins, the president of Sector IX, reportedly called NMFS’ decision “surprising
and troubling,” telling NMFS that
“Sector IX strongly believes that your initial determination
was based upon incomplete information and respectfully asks that you reconsider
your position.”
That’s sort of a puzzling statement, as there is no doubt
that Rafael both overfished multiple sector quotas and intentionally misreported
his landings. And NMFS made it clear
years ago that all members of a sector would be held jointly responsible should
any sector member engage in such conduct.
That being the case, the only “incomplete information” likely to bear on
a question is an incomplete accounting of Rafael’s illegal landings. His vessels might have poached a lot more
fish than NMFS realizes right now…
But that’s not the way people are thinking up in New Bedford.
The
city’s mayor has traveled to Washington, D.C., where he asked NMFS to allow
Sector IX vessels to go back to catching groundfish. In an interview, he stated that
“The tying up of these vessels will deprive crew members
opportunities to earn a living and it will eat into the revenues of shoreside
businesses that support the industry.”
Such concerns might be valid, had such crew members been
free of guilt. However, it’s hard not to
believe that they were Rafael’s willing co-conspirators, and were fully aware
that
something illegal was going on.
As
the New York Times recently reported,
Rafael was a larger-than-life figure on New Bedford’s waterfront, and he
admitted that he’s been illegally harvesting fish for “over 30 years.” It’s naïve to believe that no one knew what
he was doing. He didn’t earn the
nickname “Codfather” by consistently obeying the law…
“Carlos Rafael has been well known in the commercial fishing
industry for 30 years. And for almost as
long, federal law enforcement has heard rumors and concerns about Rafael acting
illegally.”
If federal law enforcement had heard that kind of rumors for
so many years, you can be sure that the facts behind the rumors were well-known,
and well-discussed, on the docks and in the bars of New Bedford. The fishermen, the ice houses and the other
waterfront businesses knew just what sort of man they were dealing with, but
they were willing to keep on dealing, and ignore his illegal activities, in
order to share in the revenues that tons of poached groundfish brought to the
port.
As the New York Times
observed,
“Some people in New Bedford saw Mr. Rafael far differently—as
a Robin Hood of sorts, with a pack of cigarettes and a dinged-up Silvarado.”
And so they looked the other way when their latter-day Robin
Hood stole fish from the “rich” federal government and shared them with the “poor”
fishermen. But now that the Sheriff has
Robin Hood locked up in his prison, the poor are asking him to overlook their
complicity.
And yes, they were complicit. The New York Times tells us,
“Mr. Rafael told the undercover agents that the captains knew
of his schemes; Mr. Lelling, the prosecutor, said a decision was made to go
after Mr. Rafael, and not the fishermen working for them.”
Had that decision gone the other way, at least some of those
fishermen could have joined Rafael behind bars.
So it’s hard to feel any sympathy for folks who should be
happy that they’re not sitting in jail, even if they’re not currently on the
water.
It’s hard to feel sorry for anyone in any fishery,
commercial or recreational, who sees something wrong going on, and just looks
the other way. Such folks like to say
that it’s none of their business but, in truth, it is.
Fish are a public resource, and every fish that we harvest—or
catch and release—comes from the same resource pool. When someone fishes illegally, taking more or
smaller fish than the law allows, it does harm to that pool and so ultimately affects us all.
We might not be as clearly and directly affected as the
folks in New Bedford, who benefitted from Rafael’s industrial-scale poaching,
and have since suffered from federal regulators shutting off the flow of
illegal cash, and forcing Sector IX to account for the damage it has done. But we still suffer, as illegal harvest
drives down the abundance of important fish stocks, and regulators must impose
strict management measures that ultimately hold legitimate fishermen, who
follow the rules, accountable for the poachers’ sins.
So we have to be careful to know who’s at fault. Poachers aren’t our Robin Hoods, stealing
NMFS’ riches on the public’s behalf.
They’re just resource pirates, out for themselves.
Back
in the sailing ship days, pirates were deemed hostis humani generis, the enemy of all mankind, and could legally
be apprehended, imprisoned and even summarily executed by anyone who
encountered them, even if they had not suffered any loss at their hands.
In the same way poachers are the enemy of all legitimate
fishermen, whether recreational or commercial.
While summary execution would be a little extreme, and more than a
little illegal--we should never make the mistake of thinking them friends.
Providing state and federal law enforcement agencies with
the information they need to take poachers down is, in the end, the right thing
to do.
And as the fishermen in New Bedford have learned, looking
the other way, and letting them continue to follow their illegal ways, is not just
wrong. It can prove personally costly as
well.
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