L.I. Fishermen and Officials Call DEC Tactics Unconstitutional

Sidney Smith's boat, Merit, at sea
Sidney Smith's boat, Merit, at sea.

Decades of alleged abuses to local commercial fishermen, including the withholding of vital permits and possible misappropriation of confiscated assets by the New York State Department of Environmental Conservation, may finally be coming to an end.

Last week, the DEC sent restitution checks to one North Fork fisherman and a Hamptons fishing family for fish that was confiscated and sold before they were proven not guilty of felony charges back in 2011.

Greenport fisherman Sidney Smith received $8,333, and Amagansett’s Lester clan got a check for $202.25. Both parties stood accused of possessing and selling fish without proper permits, and both cases were either reduced or thrown out of court, but after the DEC had sold the confiscated fish.

These particular fishermen received reimbursement (two years later), but the cases are just two of many, and it appears the state agency may soon have to answer for years of alleged abuses to fishermen, including searches and seizures without warrants and enforcement that has gone almost completely unchecked and without due process.

After hearing about the Lesters’ plight, State Assemblyman Fred Thiele began looking into the problem and did not like what he found. In May of 2012, Thiele and Senators Ken LaValle and Lee Zeldin drafted a letter to the State Inspector General requesting an investigation into current DEC practice and procedure. At the same time, the men began drafting legislation aimed at curbing these enforcement policies, which “may be adversely impacting an important segment of the State’s economy.”

The complaint, sent to Acting State Inspector General Catherine Leahy Scott, asked for strict enforcement of laws relating to fish and wildlife resources, “where fishermen as a class cannot be denied the same protections afforded under the Constitution to citizens.” In it, Thiele cited the Lester’s case, in which a DEC officer entered the Lester’s property in July 2011 to inspect a self-serve clam stand and storage cooler on their front lawn. Without benefit of warrant or consent, the officer opened and searched boxes on the premises while no one was home, seized the fish and sold it at a local market for $202.25, paid directly to the DEC and placed in the agency’s Marine Resources Account of the State Conservation Fund. The Lesters were acquitted of all charges in October 2011, yet the DEC failed to respond to the family’s claim for restitution. The agency argued it had to be sold immediately, the Lesters’ attorney Dan Rodgers explained, because the seized evidence was perishable, adding, “So are dead bodies in homicides… We find a way to freeze them.” Rodgers also noted that the money went into DEC coffers when it should have been held in escrow.

It was only after the Inspector General (IG) was alerted to the issue that any effort was made to give money back to the Lesters. The complaint further asks for a full accounting of funds from the sale of fish seized from New York fishermen over the past five fiscal years and for what purpose the funds were disbursed, as well as a clarification of the procedure for restitution when property has been wrongfully seized by the DEC.

“It’s a step in the right direction that the fishermen are being reimbursed,” Thiele said, noting that the Inspector General’s report is “imminent,” and should be released within a couple months. Once the report is revealed, the next step is to legislate according to the findings, the Assemblyman said.

“We think it’s going to be a very thorough report,” said Rodgers, who is also representing Smith and numerous others pro-bono against the DEC. The attorney said the IG’s report would have been finished by now, but his case continues to grow as more and more complainants step forward. “We’re up to dozens and dozens of fishermen and seafood stores,” he said, adding, “These complaints that fishermen are making go back for decades.”

Rodgers painted a picture of an agency that has operated completely without checks and balances, and a community of fishermen that has been afraid to speak up or stand up. This is the first time anyone has taken a hard look at the DEC, he explained. “Everyone has just been afraid of these guys,” Rodgers said. “You’re talking about an agency that can completely shut down your business, refuse permits, take equipment, jail you—all without benefit of due process or probable cause.”

Shortly after receiving his check from the DEC, Smith said he was glad to have the money, but he was clearly still frustrated with the system. The third-generation local fisherman has been forced to fish in Rhode Island since the DEC seizure. By not issuing him a $10 permit to fish here, even though he was cleared of the felony charges, New York has ostensibly exiled Smith from working in his own state.

“I went through three lawyers,” he said, noting that it took two years and a minimum of 25 visits to lawyers’ offices to finally get his money back. “That’s days off work,” Smith said, pointing out that he lost more than the money the DEC eventually returned. “It’s not like they paid me interest.” Smith acknowledged that he could sue for rights violations and more, but  “there’s no point fighting the state, because they’ll out-resource you.”

At the same time, the DEC budget gets cut every year, so more and more of its funding depends on fines, fees and the seizure and resale of property, Rodgers said, remarking, “It’s become a bounty system.”

And that system depends on fishermen who would rather just plead to lower charges, pay a $5,000 fine and get back to fishing, Rodgers said, noting that it took years to finally get a real case going because very few dare risk their livelihood by tangling with an agency they feel so powerless against.

He described the DEC as an “enormous bureaucracy” with layer upon layer of departments and subsections, and a host of moratoriums and regulations that no longer make sense in the state. “It goes on forever,” Rodgers said.

“It’s crazy to think this actually happened in this country.”

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