Thursday, February 15, 2018

THE COST OF CLOSING YOUR EYES


Over the past few weeks, Carlos Rafael, New Bedford’s infamous “Codfather,” has been back in the 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 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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