Thursday, January 17, 2019

MID-ATLANTIC COUNCIL LOOKS AT FOR-HIRE POACHING



Views on the issue vary widely, with boat owners largely disclaiming responsibility for their fares’ transgressions.  Others, including some members of the law enforcement community, disagree.

Both sides have made reasonable cases to support their positions.  

On one hand, boat owners have argued that they can’t be held responsible for the actions of people not under their direct control.  They point out that they have no law enforcement authority to search anglers’ coolers, and note that if they tried to do so, they could be met with a violent response.

On the other hand, there is no doubt that they reap a financial benefit from the illegal fishery, as some percentage of their customers would not venture out, or would board less diligent vessels, if some for-hire operators made an aggressive effort to ensure that their customers obeyed the law.


The report has value.  Although it doesn’t contain any surprising revelations, it does provide insight into the boat owners’ concerns, and clears up some of the issues that have been debated for the past year or more.

Attendees agreed on a number of points. 

There was a general consensus that the National Marine Fisheries Service, the Atlantic States Marine Fisheries Commission and representatives of the for-hire community should work together to develop “best management practices” that would promote compliance with existing rules.  Vessel operators who prominently posted current regulations on their vessels, frequently reminded their passengers of the regulations over the course of the fishing day, provided customers with rulers and/or other means to measure their fish when they are caught, and promoted personal accountability by providing each customer with containers for their catch and individual measuring devices would be going a long way toward meeting that goal.

There was also general agreement that there should be more communication between law enforcement and the for-hire fleet, so that members of that fleet could better understand their responsibility under state and federal regulations, along with general agreement that federal and state law enforcement personnel should meet with for-hire operators to review practices and procedures related to enforcement and compliance.  And there was consensus that regulators should consider the difference between the charter and party boat fisheries when putting rules in place.

Those are all topics that deserve some follow-up, but they did not dispose of some of the most basic questions, including the most important one of all:  Can the operator of a party or charter boat be held legally responsible for illegal fish taken by a vessel’s fares?

In most jurisdictions, the answer to that question seems to be “Yes," at least part of the time.

Operators can certainly be held liable when customers breach federal regulations.  In answer to the awkwardly-worded question

“If the operator does his due diligence at the start of a fishing trip in announcing of regulations, providing posted regulations and measuring devices sufficient for an operator to do to place the burden of compliance on a customer?  [sic]”
a federal law enforcement representative responded

“Under federal regulations 50 CFR part 648, violations on board a vessel carrying more than one person may be attributed to the owner and operator of the vessel.”
A number of examples from regulations governing various Mid-Atlantic species were provided.

At the state level, the operator’s level of responsibility for customers’ violations varies widely. 

In Maine, a licensed guide (which can include a for-hire captain) who assists a customer violate the law is also deemed responsible.  If a guide knows that a customer violated the law, but didn’t actively provide assistance, is required to notify law enforcement of such violation within 24 hours; failure to do so constitutes a violation on the part of the guide.

That is probably the most stringent rule, although other states also will charge the vessel operator under many circumstances.  A South Carolina representative informed the workshop that

“If we check a charter (6-pack for hire) and find violations we charge the Captain of the vessel.  This has held up in court for us on numerous occasions.  On a head boat we have charged individuals, mates and/or Captains for violations and this has held up in court for officers as well.  These charges have held up for us in the different courts we have along our region as with any case some require getting statements from the paying customers (patrons) in order to assist our prosecution.”
In Rhode Island,

“In any instance when there is a violation of the size, possession, or daily limit on board a vessel carrying more than one person when the catch is commingled, the violation shall be deemed to have been committed by the owner of the vessel, or the operator of the vessel, if the owner is not on board.  [emphasis added]”
Virginia, like Rhode Island, limits operators’ liability to fish held in a common container.

A plurality of states appear to give law enforcement officers discretion to place responsibility on the individual angler, based on the circumstances of each case.  New Hampshire limits legal liability for another’s violation to anyone

“who counsels, aids or assists in [such] violation.”
Other states apply a similar standard, even if it isn’t as clearly expressed in a statute.  Massachusetts’ regulation clearly invites law enforcement officers to exercise their judgment in deciding who to charge, saying

“an individual patron, as well as the named for-hire permit holder or for-hire vessel operator, may each be held liable for any violation of recreational size, possession or daily bag limits…that are attributable to the patron…In enforcing this provision, law enforcement officers may exercise their discretion on whether to cite the named for-hire permit holder or for-hire vessel operator [if such permit holder or operator has made a reasonable effort to ensure passenger compliance].”
The Massachusetts rule has proven to be a reasonably effective tool to police that state’s recreational scup and black sea bass fishery, which has been prone to flagrant poaching on some for-hire boats, and is the same fishery that gave rise to New York’s more infamous violations.  Massachusetts provided information to the workshop that noted that the regulation

“resulted in multiple incidents involving gross non-compliance on for-hire vessels.  Three of those incidents have resulted in…adjudicatory proceedings to revoke or suspend for-hire permits.”
 In one of those proceedings

“The settlement in the Matter of Forsberg (Viking Starship) required the operation to:  (1) provide trip tickets to all patrons informing them of the various rules governing the target species; (2) provide conspicuously posted signs of applicable rules and regulations throughout the vessel; and (3) frequently announce said rules to patrons over their loud speaker.  Additionally, Forsberg volunteered to not retain the crew involved in the incident and hire a new crew, which would include an additional crew member dedicated to monitoring the patron’s catch.”
In another proceeding,

“The settlement in the Matter of Faltus (Captain Leroy) contained similar requirements regarding the conspicuous posting of signs and frequent announcements to remind patrons of the rules.  Additionally, it required that the operation maintain a list of all anglers onboard the vessel and provide each angler with a marked bag that corresponded to the name on the list.  Lastly, crew were prohibited from conducting fishing activity beyond assisting patrons handle and remove catch and if they observed non-compliance they were to alert the [Massachusetts Environmental Police].”
So yes, it can be done.  For-hire vessels can be held responsible for tolerating “gross non-compliance” by their patrons.  And it’s in the cases of such “gross non-compliance” where holding operators responsible makes sense, because it’s unlikely that significant violations go unnoticed by the folks on deck.

On the other hand it doesn’t make much sense, in the real world, to try to hold the boat and crew legally liable when someone takes just a fish or two over the limit, or tries to stash a short under the ice and untapped Budweiser cans.

Yet some state’s laws make holding the vessel operator liable very difficult, even when it’s clear that “willful ignorance” is involved.  New York law enforcement informed the workshop that

“Our regulation refers to the fisher and does not put liability on the charter operator or crew.  Anyone aiding in illegal take is guilty as well…If crew fillets, takes direct possession for storage, or is observed dehooking and placing into container for fare, we will write the crew member of captain if he chooses to take responsibility for the crew’s action.  We generally don’t treat the operating the charter [sic] as aiding or knowingly proceeding from the fare’s illegal take.”
Such a regulation makes it difficult for officers to enforce the law, even in the case of “gross non-compliance,” because the odds are good that there was no law enforcement officer on board the vessel to observe whether the crew aided in illegal take, making it impossible to cite anyone besides the angler once the boat is back to the dock. 

It may help to explain why some of the most blatant examples of customer non-compliance occurred in Montauk.

It also explains why some sort of coastwide standard is badly needed, so that all states are compelled to adopt minimum standards for vessel operators and crew.

That being the case, we can only hope that the members of the Mid-Atlantic Fishery Management Council, as well as the commissioners at ASMFC, take action to establish such standards, and so help to reduce illegal harvest in the for-hire fleet.



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