THE LACEY ACT ADVANTAGE

Ask serious anglers here in New York what frustrates them most, and more than anything else, they’ll tell you it’s poaching.

Anglers are just sick and tired of seeing other fishermen abusing the resource, taking too many fish, undersized fish and fish out of season.  They’re tired of commercial boats killing too many fluke, and party boat captains who don’t say a word when their customers ignore regulations.

They want to see the Department of Environmental Conservation hire enough enforcement folks to make a dent in the number of bad guys, and they want to see those folks paid a good enough wage to let them stay on the coast and not transfer upstate where their salaries go quite a bit farther.

But most of all, they want to see judges give poachers penalties matching their crimes, fines and, yes, jail time onerous enough that they can’t be dismissed as mere business expenses.

Because that, in the end, is the most frustrating part of the process—watching DEC enforcement make a good case against a bad actor, and then watching the judge let the guy off with a slap on the wrist.  Yet that happens much of the time.

If you look at the Department of Environmental Conservation’s marine law enforcement reports, some of which are available on the website of New York’s Marine Resources Advisory Council, you notice the names of some violators—mostly, but not exclusively, for-hire vessels—coming up more than once, yet no meaningful action is taken to stop them from fishing.

The problem isn’t unique to New York.

Recently, a poacher down in Delaware pled guilty to exceeding the annual individual commercial quota of striped bass; he was fined a mere $112 and given no further penalty by a Sussex County court!

With penalties like that, it’s not surprising that poaching is common.

But a little farther south, the law is fighting back.  And it’s fighting back hard.

When violations occur in state waters, and the fish remain within the state where they’re caught, there’s only a limited amount that the enforcement folks can do.  However, when violations touch upon federal waters, much stiffer penalties can often be imposed.

That’s because the Lacey Act, the first federal law ever enacted to protect fish and wildlife, provides federal law enforcement agents with a very powerful tool to go after poachers engaged in interstate commerce.  Although the act was passed 115 years ago, it remains one of the most effective means to combat the abuse of America’s marine resources

.

The Lacey Act makes it a federal crime

“to import, export, transport, sell, receive, acquire or purchase any fish or wildlife or plant taken, possessed, transported or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law…

“to import, export, transport, sell, receive, acquire or purchase in interstate or foreign commerce…any fish or wildlife taken, possessed, transported or sold in violation of any law or regulation of any State…”

and

“within the special maritime and territorial jurisdiction of the United States…to possess any fish or wildlife taken, possessed, transported or sold in violation of any law or regulation of any State …”

And it doesn’t stop there.

The concepts of “sale” and “purchase” can be a little slippery in the case of recreational violations on for-hire vessels.  So the act includes two very valuable definitions which state that

“It is deemed to be a sale of fish or wildlife in violation of this chapter for a person for money or other consideration to offer or provide…guiding, outfitting or other services…for the illegal taking, acquiring, receiving, transporting, or possessing of fish and wildlife,”

and

“It is deemed to be a purchase of fish or wildlife in violation of this chapter for a person to obtain for money or other consideration…guiding, outfitting or other services…for the illegal taking, acquiring, receiving, transporting, or possessing of fish and wildlife.”

The Lacey Act also provides for significant civil and criminal penalties. 

Civil penalties may be as high as $10,000 per violation—far higher than normally provided in state laws.  

Criminal penalties are much more severe; the illegal purchase or sale of fish, wildlife and plants worth more than $350 may be punished by a fine of up to $20,000 and/or 5 years in jail for each violation.  For lesser violations of the act, courts may impose a fine of up to $10,000 and/or a prison sentence of up to 1 year.

In addition, in the case of any felony conviction involving the purchase and sale of fish, wildlife or plants, any vessels, vehicles and other equipment used to aid the commission of the crime is subject to forfeiture.

Now, that’s a deterrent.

We can certainly see that deterrent at work in recreational fisheries.

For many years, Virginia supported a very active winter fishery for big striped bass.  Tourism and tournaments thrived, and a lot of the biggest, most valuable females—fish that exceeded 50 and sometimes even 60 pounds—were tossed dead on the docks.

It was good for the charter boat business, but the only problem was that a lot of the fish were taken in federal waters, where no striped bass fishing was allowed.  For a long time, federal law was largely ignored by the fishermen, who worked together to frustrate the efforts of federal enforcement agents.

However, a joint enforcement effort, involving NOAA’s Office of Law Enforcement, the Virginia Marine Police and other federal agencies finally managed to bag five charter boat operators for Lacey Act violations connected with illegal striped bass fishing in federal waters.

Some of the violations were described in a NOAA release announcing the convictions of two of the charter boat captains, Jefferey S. Adams and David Dwayne Scott.

“Adams and Adams Fishing Adventures, Inc., admitted that they sold a chartered Striped Bass fishing trip on January 19, 2010, for $800.  As part of that trip, Adams knowingly took his charter clients into the Exclusive Economic Zone (EEZ) to harvest striped bass, even though Adams knew that it was a violation of federal law to harvest striped bass inside the EEZ.  Adams’ clients illegally harvested 10 striped bass within the EEZ and Adams transported the illegally harvested striped bass back to Rudee Inlet in Virginia Beach, Va.  According to other documents filed in connection with the sentencing, Adams and Adams Fishing Adventures, Inc., routinely harvested striped bass illegally from within the EEZ from 2007 to 2013…

“In a statement of facts filed with Scott’s plea agreement, Scott admitted that on February 7, 2009, he took a charter fishing trip into the Exclusive Economic Zone (EEZ) to fish for striped bass and when approached by law enforcement, 19 striped bass were dumped overboard in an attempt to avoid detection by law enforcement.”

That’s pretty outrageous conduct, but also pretty typical of what had been going on.  But for once, the punishment did match the crime.  A United States Justice Department release described each poacher’s sentence.

“Agner, captain of the Flat Line…was sentenced to pay a $3,500 fine.  He and his corporation, Agner, Inc., were also placed on three years’ probation with special conditions requiring them to purchase and maintain a Vessel Monitoring System (VMS) device on any vessel that they own or operate for fishing purposes during the term of probation.
   
“…Scott, captain of the Stoney’s Kingfisher, was sentenced to a $5,600 fine and $1,900 in restitution to the National Oceanic and Atmospheric Administration (NOAA).  Scott was also sentenced to three years’ probation with special conditions prohibiting Scott from engaging in either the charter or commercial fishing industries, anywhere in the world, in any capacity, during the term of his probation.  Scott is prohibited not only from captaining a vessel, but also rendering any assistance, support, or other services, with or without compensation, for other charter or commercial fishermen. 

“…Adams, captain of the Providence II, and his corporation Adams Fishing Adventures, were sentenced to three years’ probation with special conditions requiring them to apply for and receive a Federal Fisheries permit, and to purchase and install a VMS device on any vessel that they own or operate during the term of probation.

“…Lowery, captain of the Anna Lynn, was sentenced to 30 days’ in jail, followed by 12 months of supervised release with the special conditions that Lowery surrender his captain’s license to the U.S. Coast Guard and that he not be eligible for reinstatement of that license.  Lowery is also prohibited from engaging in the charter fishing industry in any capacity during the term of his supervised release. 

“…Webb, captain of the Spider Webb, and his corporation Peake Enterprises were sentenced to pay a $3,000 fine and $1,000 restitution to NOAA.  Webb and Peake Enterprises were also sentenced to three years’ probation with special conditions requiring them to apply for and receive a Federal Fisheries permit, and to purchase and install a VMS device on any vessel that they own or operate during the term of probation.  [emphasis added]”

That’s a lot better than the slaps on the wrist that the state courts hand out.

Did those sentences have a deterrent effect?  It’s always hard to say for sure.  But consider this.

The captains were indicted in late 2012.  Since 2004, the Mid-Atlantic Rockfish Shootout, a striped bass tournament, has been run out of Virginia Beach during early January. 

For the first nine years of the tournament—through January 2012, before the indictments were handed out, tournament contestants weighted plenty of fish.  One article in a local paper noted that the tournament director

“was used to weighing in three-fish limits of more than 100 pounds.”

But in the event’s 10^th year, after the poachers had been charged, only a single 30-pound fish hit the scales after three days of fishing.  All of the other contestants, fishing on nearly 180 boats, couldn’t catch one legal striped bass between them.

And in January 2014, after the poachers had been convicted, participants didn’t catch any striped bass at all (quite a few fish were caught in the most recent event, which was moved back to December 2014, to allow anglers to fish within Chesapeake Bay rather than forcing them to seek bass in the ocean).

Was the sudden drop in weighable fish due solely to a decreasing abundance of stripers, to weather, or some other natural occurrence?

Or was it attributable to a sudden and understandable reluctance of captains to risk the penalties that they could face for violating federal law? 

(It should be noted that a tournament rule now requires all boats to have a GPS running throughout the event, to prove that they didn’t fish in the EEZ; it is not clear from the tournament website whether such rule existed prior to the 2013 event, or whether it was adopted only after the five captains were indicted.)

One can only speculate.

But still, it would be nice to see the NOAA enforcement agents apply the Lacey Act to violations here in the northeast.

Whether we’re talking about for-hire boats that knowingly enter federal waters to catch some stripers, or party boat captains who give a wink and a nod to passengers keeping coolers of black sea bass in winter when the season is closed, the imposition of a few penalties like those handed down in Virginia would go a long way to keep local folks honest.

And given the state of striped bass stocks right now, a little more honesty is just what we need.