Fishery managers, along with citizens concerned about effective fishery management, spend a lot of time trying to see that effective laws and regulations are put in place, in order to regulate harvest and help to ensure the long-term sustainability of marine fish stocks.
The very existence of such laws and regulations is enough to
keep most fishermen honest, although not everyone complies with the laws. There are some who believe that the mere fact that
they spent money on fuel and bait entitles them to bring some fish home,
whether or not such fish are of legal size or caught within the legal season.
Other anglers feel that the likelihood of being caught poaching
fish is slim enough that they can ignore the laws, take what they please, and
accept any fine that they receive, if they get caught, as a small price to pay
for all of the illegal fish they’ve put on their tables. Unethical commercial fishermen, who can
generate substantial profits from illegal harvest, essentially view such fines
as a cost of doing business, an expense far smaller than the revenues generated
by illicitly landed seafood.
Unfortunately, such cynical views can be justified by courts’
lenient treatment of poachers.
I belong to the Suffolk Alliance
of Sportsman, my county’s fish and game federation, and write a
saltwater fisheries column for the organization’s newsletter. One of the other columns is written by an
officer of New York’s Department of Environmental Conservation’s Police unit. While perusing the newsletter’s March issue, I
began reading the officer’s column, and came across a disturbing report,
that ran under the heading of “Boat Patrol to Montauk.”
“On 11/7, ECOs Ike Bobseine, Landon Simmons and Taylor Della
Rocco took the 31’ Safeboat to patrol the Atlantic Ocean. After several compliant recreational vessel checks,
the crew observed a vessel in the Atlantic Ocean south of Montauk. On board, 2 persons were hauling up a gill
net, both commercially permitted fishermen.
On board, in a cooler, were 11 tagged
striped bass, all using allocation tags issued to another fisherman, who was
not on board. They had, also, an additional
82 unused striped bass tags. An additional
5 untagged striped bass were found, hidden, on board, which were all under the
26” minimum size for commercially harvested striped bass.
“The captain admitted that he was out of striped bass tags
for the year, and knew that it was illegal to fish using someone else’s tags…The
fishermen were each charged with a misdemeanor, for the illegal
commercialization of fish, plus a separate violation for possessing undersized
fish and illegal use of tags. In total, each
fisherman faced penalties of up to $800 for the 16 illegal fish and an
additional penalty of $5,000, based on the current market value of the fish. The current market value of the fish illegally
on board the vessel was $388.02…
“On 1/5, in East Hampton Town Court, the captain pled
to a violation, with a $100 fine and a $75 surcharge; all other charges were
dismissed. [emphasis added]”
The way the disposition of the charges was described, with
the captain of the offending vessel pleading guilty to a single violation, and
all other charges being dropped, very strongly suggests that the prosecutor
chose to accept a slap-on-the-wrist plea deal rather than go through the
trouble of trying the case.
While it’s easy shrug off such an outcome because it
happened in the East Hampton Town Court, a historically poacher-friendly venue,
the sad fact is that such outcomes aren’t unusual even in places where
commercial fishing, and commercial poaching, aren’t woven into the fabric of
the community.
Up in Connecticut, where commercial striped bass fishing has
been illegal for well over half a century, prosecutors have proven equally reluctant
to prosecute anglers' striped bass violations.
Many years ago, in response to the striped bass collapse of
the late 1970s and early 1980s, Connecticut legislators passed a law that made
any breach of striped bass regulations a misdemeanor. Poachers were subject to fines of up to $100
per fish for their first violation, $200 per fish for their second violation,
and $500 per fish, and/or imprisonment for up to 30 days, for any subsequent
violations.
Those are the sort of fines one often hears ethical anglers call for these days, in order to deter anglers from poaching, but the Connecticut law had the opposite effect, because prosecuting a misdemeanor case takes a lot of work.
When I practiced some criminal law in Connecticut many years ago—in fact, during the heart of the striped bass collapse—prosecuting a routine misdemeanor required the state’s attorney to prepare a charging document called an “information,” meet with the accused’s attorney to try to negotiate a disposition of the case, and then appear in court to present the information, at which point the judge would take the defendant’s plea. If the defendant pled not guilty, the state’s attorney would schedule the case for trial, then hold a “pre-trial conference,” which was a formalized plea-bargaining session. If that led to naught, the state’s attorney would have to interview witnesses, assemble the evidence, and otherwise prepare the case for trial, all the time holding plea bargain discussions, before finally trying the case, which might well involve jury selection and all that entails.
I doubt that the process has changed very much since then.
Very few state’s attorneys are willing to go through such a
process to prosecute an angler who might have been a fish or two over limit or kept a couple of short bass.
As a result, the seemingly stiff penalties were rarely if ever enforced,
as the state’s attorneys chose to nolle the charges, which is a formal way of saying that instead of having the client enter a plea, they informed the
court that they would not prosecute the alleged crime.
“The practical end result was that our officers would pursue
misdemeanor cases that would ultimately get thrown out. You’d have a situation where a guy who took
to many striped bass and got caught by our environmental conservation
police. There’s a lot of paperwork for
the officers, they would go through the whole process, and it would get thrown
out.”
The answer to the problem was counterintuitive. Connecticut’s Department of Energy and
Environmental Protection decided that enforcement of striped bass regulations would
be more effective if penalties were reduced from a misdemeanor to an
infraction, so that state’s attorneys would not need to engage in a complicated
prosecution, which they were unwilling to pursue, in order to gain a conviction.
Instead, the smaller fine connected to an infraction could
be paid by mail, if the poacher was so inclined. As Dr. Davis explained,
“It’s like when you get a speeding ticket, you might just
say, ‘I’m going to pay the ticket, then it’s done with, and I don’t have to
deal with the further hassle.’ With an
infraction you could still plead not guilty and go to court to try to get out
of the fine, but people are less likely to do that, whereas with a misdemeanor
case you’re compelling them to go to court.”
Last
year, both houses of the Connecticut legislature passed a law that reduced striped
bass violations from misdemeanors to infractions, placing them on the same
plane as other recreational finfish violations, with fines beginning at $75 per
illegal fish.
Hopefully, the speed and certainty with which fines are imposed under the new regulation will work better than higher penalties that
were rarely, if ever, imposed.
Yet, while such answer may be appropriate for minor
recreational violations, where anglers were motivated by little more than the
desire to enjoy a fish dinner, it is entirely inadequate to address commercial
poachers driven by the profit motive, and profits from illegal activity can be
very high.
Provided that the evidence was strong enough to support the
prosecution, there was no excuse for the poachers in the East Hampton case to get away with a fine that was less than half the value of
their illegal catch, particularly given the fact that they had over 80 unused,
illegal tags on their boat, which could have been used to put about $5,000 in
illegal fish on the dock. The illegal commercialization
charges should have been pursued.
However, one of the factors behind prosecutors’ reluctance
to press such charges is judges’ frequent reluctance to impose penalties
commensurate with the crimes or the work done to gain convictions. In that respect, state judges could learn
from their federal counterparts, who are far more willing to impose meaningful
penalties.
Given such charges, it’s hardly surprising that the press release announcing the conviction referred to the poacher as
“the former operator of the dragger F/V Stirs
One. [emphasis added]”
And such federal prosecutions aren’t limited to the
commercial sector.
For many years, Virginia hosted a spectacular winter striped
bass fishery, which saw numerous big fish—bass well over 40, 50, and even 60
pounds—caught by anglers and weighed in at some of the big-money tournaments
that the fishery supported. However,
there was a big, dirty secret that everyone knew, but no one publicly
admitted: Just about all of the big fish
were being taken in federal waters more than three miles of shore, where even
targeting striped bass, much less harvesting them, was illegal.
The fishery went on for many years, but in
2011, the National Marine Fisheries Service announced the conclusion of a
three-year investigation, which culminated in the seizure of GPS systems, cell
phones, and other electronics, along with documents including the client lists
of four charter boats fishing out of Virginia’s Rudee Inlet. Convictions ensued.
Two others were given lesser sentences, including 180 days
home confinement and three years probation in one case, and fines
and probation in the other. In both
cases, the poachers and their charter boat operations were required to equip their boats with vessel monitoring systems that would
allow regulators to track their movements and thus know if such vessels entered
the EEZ during the probation period.
It's easy to imagine how such penalties, if applied to
violators fishing in the northeast, might discourage poaching in the EEZ off Block Island
during the summer, or south of Fire Island and in New York Bight in the fall.
Some sort of enhanced enforcement is needed, because the
current situation, in which poachers have little fear of the law, is untenable.
The best fishery management measures are not worth very much
if people ignore them, and no matter how well enforcement folks do their
jobs, that work goes for naught if prosecutors and judges fail to follow
through once violations get into the courts.
Putting effective management measures in place is only half
of the management equation.
The other half is finding effective ways to compel
fishermen, whether commercial or recreational, to play by the rules.
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