A POACHER, NOT A VICTIM

 

On October 4, a jury found the captain of a Montauk commercial fishing boat guilty of five federal charges related to his illegal landings of summer flounder and black sea bass, worth nearly $900,000. 

The crimes were completely straightforward.  As explained by the U.S. Justice Department after his conviction,

“On at least 200 fishing trips, Winkler targeted summer flounder (fluke) and black sea bass and harvested those fish in excess of quotas and state trip limits.  He also falsified Fishing Vessel Trip Reports (FVTRs) for those trips.  His co-conspirators falsified corresponding dealer reports.  Both sets of false documents were used to cover up fish that Winkler took in excess of quotas…

“The entire scam netted an overharvest of approximately 200,000 pounds of fluke and black sea bass, valued conservatively at least at $750,000 (wholesale).  [Other sources suggest that the $750,000 applied solely to the 200,000 pounds of fluke, and that the 20,000 pounds of black sea bass illegally landed by Winkler was worth an additional $85,000.]”

There was nothing accidental about the overharvest.  The fishermen regularly landed more fish than the law allowed.  He deliberately falsified his catch reports.  Heconspired with one of the biggest fish buyers in Montauk to not only help himconceal his illegal landings, but even to provide warning when the Coast Guardmight be around and able to inspect his catch.  And he continued his illegal activities over the course of four years, 2014 through 2017, amassing at least three-quarters of a million dollars in illegal revenues, so his misconduct went far beyond a single act of bad judgment. 

Although Winkler’s attorney decried the “waste” of fish returned dead to the water, mandated by current regulations imposing relatively small trip limits, Winkler himself apparently had no qualms about dumping excess fish overboard when faced with an imminent Coast Guard boarding and inspection.

Yet there are people trying to turn this serial poacher into an innocent victim.

Yesterday, Fox News ran a piece on its website titled

“Small town fisherman harpooned on federal charges for catch that’s legal in other states:  lawyer.”

The article sets up the story by beginning,

“The 63-year-old captain of a Montauk, New York, fishing trawler has been convicted of federal conspiracy and fraud charges for violating local fishing rules that his lawyers say are outdated, wasteful and wouldn’t be a crime in other states.

“A federal jury found Christopher Winkler, who owns the 45-foot trawler named New Age that is based on Long Island’s East End, guilty of five counts last week—two each of mail fraud and obstruction of justice and one more for criminal conspiracy for an overfishing plot that racked up nearly $1 million in proceeds.

“The problem is, according to his defense, if Winkler had caught the fish in neighboring New Jersey, there likely wouldn’t have been a crime at all.”

It quotes one of the fisherman’s attorneys, who argued

“The principal culprits here…are the antiquated fish landing quotas, particularly those for fluke that haven’t changed in some 30 years, which cheat New York fishermen out of their livelihoods even as New York’s fluke population has been increasing.

“If Mr. Winkler had caught and landed the same fish in New Jersey, where the landing limits are inexplicably often as much as 10 times those in New York, there likely would not have been a prosecution.  As it is, New York fishermen, if they catch above their trip limits, are supposed to throw the fish back into the water even though those fish are dead and, therefore, wasted.”

Such clear appeals for sympathy might certainly tug at some folks’ emotions, but any sympathy would be misguided.

To understand why, we first ought to look at the charges underlying the convictions.

The fisherman was not charged with or convicted for catching too many fish, although his overages would certainly have supported state law charges.  Instead, he was charged with crimes relating to his knowing participation in an ongoing criminal enterprise:  mail fraud, obstruction of justice, and criminal conspiracy.

Contrary to his lawyer’s assertions, doing that sort of thing is illegal everywhere, even in New Jersey.

After all, this wasn’t a situation where the fishermen happened to make an unexpectedly productive tow, catching and killing an unusually large number of fish in a single haul of his net.  If that had happened, and if he then hustled around The Hamptons, just that one time, trying to sell his excess and illegal catch through the back doors of restaurants and markets in an effort to avoid wasting the fish, a little sympathy might be called for.

But that’s not what happened here.

This was a case of a fisherman planning, and conspiring with other people, to intentionally violate the law on a continuing basis, and to cover up his poaching with a false paper trail.  It was for that, and not merely for landing a few extra fish, that he was convicted.

And hid poaching wasn’t exactly a victimless crime.

Right now, the summer flounder population is hardly thriving.  While Winkler’s counsel speaks of “New York’s fluke population,” such comment is misleading, as the summer flounder caught off New York are part of a single stock of fish that engage in annual onshore and offshore migrations and move between multiple states' waters.  There is no New York-specific population of fluke, and the overall summer flounder population appears to be in a slow decline.

The recruitment of young flounder into the stock has been below-average for the past decade, and the population currently stands at about 83 percent of its target level.  The current overall mortality rate, combining the impacts of both fishing and natural removals, is higher that the population can sustain in the long term unless recruitment improves.  The most recent benchmark stock assessment found that summer flounder are growing more slowly than they did in the recent past, with both length and weight at any given age decreasing.

Exceeding quotas under such circumstances can cause real harm to the summer flounder stock; in addition, because catch records were falsified (and Winkler was certainly not the only person engaged in such behavior), fishery managers were provided with a distorted picture of fishing mortality, and could not set regulations that reflected the true state of the resource and might assure a sustainable fishery.  Thus, poachers like Winkler stole fish not only from fellow fishermen, and from the public as a whole, but from the future.

Finally, Winkler’s counsel took great pains to point out that New Jersey’s trip limits for summer flounder are substantially larger than those prevailing in New York.  That is true.  However, state trip limits are a reflection of the commercial summer flounder quotas awarded to each state by the National Marine Fisheries Service, acting on advice from the Mid-Atlantic Fishery Management Council, and those quotas reflect each state’s reported share of summer flounder landings during the years 1980-1989.  Such commercial allocations, which  were last revised in 2020, award New York about 7.65% of the commercial fluke quota when such quota is 9.55 million pounds or less, and a slowly increasing percentage when the quota exceeds that amount.  New Jersey’s base commercial quota, by comparison, is about 16.73% of the coastwide quota, so it is reasonable that New Jersey’s summer flounder trip limits would be higher than its neighbor’s.

New York’s commercial summer flounder fishermen have long complained about New York’s low quota, claiming that it is disproportionately low compared to the quotas of neighboring states, and doesn’t accurately reflect New York’s true summer flounder landings during the 1980-89 period.  Yet New York's fishermen have only themselves to blame.

About four years ago, the State of New York sued the Secretary of Commerce, NMFS, and NMFS’ parent agencies, seeking a larger share of the commercial summer flounder quota.  In its complaint, it made the allegation that

“During that period [used to set the state allocations], landings in New York were underreported as a result the infiltration of organized crime in the state’s fishing industry at the onshore purchase and wholesale level, which infiltration has subsequently been eradicated.”

While that, too, might make the fishermen seem like victims, a closer look at what occurred tells a very different story. 

Back in the 1980s, the Mafia controlled the Fulton Fish Market, where virtually all of the fish caught by New York’s fishermen were sold.  Unlike other states, which see fishermen sell their catch directly to dockside fish wholesalers, in New York, the dockside facilities only pack and ice the fish, and send it on to the Fulton market.  Buyers at the market would then remit payment for the fish that they purchased.

Sometimes, that payment would take the form of a check, and the fish so purchased would be recorded and reported.  At other times, the payment would come in the form of an envelope stuffed with cash, in which case there was no record of the fish landed, and no record of the payment made, which payment might never show up on a fisherman’s tax return.  Both fishermen and fish buyers seemed content with that arrangement, until the Mid-Atlantic Council began establishing state allocations for various species and New York’s commercial fleet found itself receiving an allocation that did not reflect its actual landings, because for management purposes, landings that were never recorded never really took place.

New York’s fishermen might not be pleased with the quota that resulted, but today’s courts seem completely willing to see them suffer the consequences that naturally flow from the misrepresentations they made years ago.  On Friday, October 13, the United States Court of Appeals for the 2^nd Circuit rejected New York’s claims that the state’s share of the commercial summer flounder quota was outdated, too low, or inappropriately set.  Thus, Winkler’s counsel’s comment that New York’s fluke quota, and the resultant trip limits, are “antiquated,” and “cheat New York fishermen out of their livelihoods” does not reflect the law of the land.

While the particulars of Winkler’s transgressions were very different from those of the fishermen who failed to report their landings back in the 1980s, the substance was much the same—a desire to wrongfully increase the fishermen's income by underreporting their catch.  His crimes may have been different, but his larcenous intent was not.

In the end, Assistant Attorney General Todd Kim, of the Justice Department’s Environment and Natural Resources Division, got it right:

“Fluke and black sea bass play a vital part in our marine ecosystem and quotas are designed to prevent overfishing and stabilize populations for the public good.  We will continue to seek justice against those who flout laws that protect fisheries and the fishing industry.”

Or, as Michael Henry, Acting Assistant Director for NOAA’s Office of Law Enforcement, Northeast Division, made clear,

“While most U.S. fishermen follow the law, some still feel that they are above it.  It is our job to protect honest fishermen and good actors and this verdict should serve as a reminder that those who break the rules will be held accountable.”

A jury has decided that Winkler broke the rules.  Instead of trying to turn him into a victim, all those who care about, and all those who depend upon, healthy and sustainable fisheries should wish Mr. Kim and Mr. Henry every success in their efforts to bring poachers down.