FEDERAL COURTS (UNLIKE NEW YORK'S) TAKE FISHERIES OFFENCES SERIOUSLY

 

Last Thursday, a federal judge of the United States District Court for the Eastern District of New York sentenced a Montauk commercial fisherman, convicted of multiple charges after landing illegal summer flounder ("fluke") and black sea bass on many different occasions, to 30 months in federal prison.

According to the New York Times,

“The man, Chris Winkler, 64, who helms a 45-foot trawler called the New Age, was convicted by a Long Island jury in October on federal charges of hauling too many fish from the sea.  The jury also found him guilty of falsifying records and selling his illegal catch to partners at Gosman’s Dock, a waterfront mall and restaurant complex in Montauk, and to dealers at the Fulton Fish Market in the Bronx…

“Mr. Winkler’s case concerns fishing trips between 2014 and 2017 during which he harvested at least 200,000 pounds of fluke and 20,000 pounds of black sea bass beyond the limit, prosecutors said.  Mr. Winkler then fudged records to conceal the excess catch, they said.

“…Prosecutors said the over-quota fish was worth nearly $900,000 on the wholesale market.”

It was not the first time that federal prosecutors on Long Island came down hard on commercial poachers.  The Times noted that

“The federal government has increasingly used criminal prosecution to enforce fishing regulations, and Mr. Winkler’s case was among several similar cases brought by the Justice Department’s Environment and Natural Resources division in the past decade.  Two such cases, against other Long Island fishermen charged with overfishing fluke, ended with prison sentences.”

Nor is federal fisheries enforcement limited to the commercial sector.  In November 2012, the Justice Department shook up Virginia's salt water angling community when it brought charges against five local charter boat captains who were routinely violating federal law by targeting striped bass in federal waters more than three miles from shore.

At the time, both private and charter boats chronically violated the prohibition on striped bass fishing in the EEZ off Virginia, and the charter boats seemed to feel entitled to do so.  The local fishing website Tidal Fish often featured threads discussing the issue, and when one participant on the site’s chat boards chose to warn others about the regulation back in 2010—about the time when the indicted charter boat operators were committing their violations—he received a hostile and vaguely threatening response:

“Messin with Livelyhoods is Not recommended.. I don’t turn my back to Law Breakers. If I see a Violation Off Water that requires a Call to the Law then I do so.  Out on the Big Pond however holding a Video Camera pointing it at Boats that have Crossed the line.. 1st Not sure how you can Prove where you are on Film, 2nd you have Numbers on your Boat that pretty much identifies you.. All Im saying is Be careful …..Your Messin with things You may Not Comprehend.. It’s a Hard Life making a Living as a Charter Boat Capt.. Don’t make it that Much harder when there are Enforcements out there already… You Ready to be the Star Witness..  Not me Brother..”

Clearly, things had gotten far out of hand.

However, the Justice Department quickly put them back in order, with a substantial assist from the courts, which came down hard on the habitually poaching captains. 

All five were found guilty, and the punishments fit the crimes.

One captain was fined $5,600, plus another $1,900 in restitution payments.  He

“was also sentenced to three years’ probation with special conditions prohibiting [him] from engaging in either the charter or commercial fishing industries, anywhere in the world, in any capacity, during the term of his probation.  [He] 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.”

Another was sentenced to 30 days’ in jail and 12 months supervised probation, during which time he was not permitted to engage in the charter boat fishery in any capacity.  In addition, he was required to surrender his captain’s license to the Coast Guard, under the condition that he never be reinstated as a licensed captain.

The other three captains received fines, were placed on three years’ probation, and were required to install vessel monitoring systems on any vessel that they might operate during the probation period.

Violating the prohibition on bass fishing in the EEZ no longer seen as merely a risk one took when doing business.  From everything that I’ve heard since, there are far fewer EEZ violations taking place off Virginia these days.

That demonstrates why federal judges who are willing to pass down tough sentences are one of the keys to successful fisheries management.  According to the New York Times, the judge in the Winkler case appreciated the negative impact that poaching has on fish stocks.

“’I consider this a serious crime,’ said Judge Azrack, who called the trial ‘illuminating, educational and disturbing.’  Mr. Winkler, she said, ‘undermined then integrity of the whole fisheries management program.’”

Unfortunately, if the matter had been tried in a state, rather than a federal, court, the outcome would probably have been very different.  It is extremely likely that the poacher would have escaped with a trivial fine that could easily be written off as just another cost of doing business, for most of New York's state and local judges, unlike Judge Azrack, seem to consider fisheries violations as of no meaningful importanc.  It is a situation that continues to frustrate the Department of Environmental Conservation’s law enforcement officers.

Take, for example, a situation that I reported on a little over two years ago.

It seems that, on November 7, 2021, the crew of a DEC police boat

“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, and 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 for the fish illegally aboard the vessel was $388.02.”

While such violation might not have been in the same league as illegally taking 200,000 pounds of summer flounder and 20,000 pounds of black sea bass, it was still a misdemeanor-level transgression, committed by fishermen who admitted that they knew very well that they would be engaged in illegal activity even before they set out for the day.  Yet in this case, the punishment definitely did not fit the crime.

Instead of facing fines that might have deterred future illegal activities—fines at least greater than the value of the illegal fish they had landed—it turned out that

“On 1/5, in East Hampton Town Court, the captain pled to a violation, with a $100 fine and $75 surcharge; all other charges were dismissed.”

Having to pay just $175—less than half the value of the illegally-take fish—with no other penalties imposed, is hardly a deterrent to either the captain who poached the fish or to anyone following the outcome of the matter.  Such fines really are just a cost of doing business to those involved.

Of course, over the years, East Hampton Town Court has proven to be a poacher’s paradise, allowing those taking illegal fish to escape with a slap on the wrist.  That’s the sort of thing that happens when poachers are part of the fabric of the local community that elects the town justices and is home to the attorney prosecuting the crimes.

Still, the state courts rarely provide better results.  Many judges view fisheries violations as minor issues compared to the larcenies, assaults, rapes, and murders that they deal with on a regular basis, and are all too fast to let poachers go home essentially unpunished; similarly, members of the district attorneys’ staffs always have more work than they do time, and so have a tendency to put fisheries violations at or near the bottom of their priority lists.

It's an unfortunate situation, and one that makes it extremely difficult to properly enforce, and build respect for, state fisheries laws.

Yet the federal courts, including those here on Long Island, have already blazed a trail toward effective fisheries enforcement.  It is now up to New York’s courts and New York’s prosecutors to follow the path that they’ve made.