Family: DEC's fish seizures violate rights

Kelly Lester re-stocks her self-serve clam stand on Kelly Lester re-stocks her self-serve clam stand on Abrahams Path in Amagansett. (Aug. 20, 2011) Photo Credit: Doug Kuntz

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A new legal push on behalf of a longtime fishing family from Amagansett is spotlighting state seizures in marine enforcement actions that some say violate fishermen's constitutional rights.

At issue is whether fishermen have the right to a hearing when officials confiscate their fish or sale proceeds while pursuing violations of fisheries management rules -- and to restitution if they are found not guilty. The state Department of Environmental Conservation, which enforces the law in state waters, sells the perishable fish immediately and keeps the proceeds to help fund its operations.

The plaintiffs in the case are Paul and Kelly Lester, heirs to a family that has fished Long Island waters for generations. Their attorney Daniel Rodgers earlier this month filed a demand for restitution of $146 over fish confiscated from the Lesters' yard in an enforcement action in July. The Lesters had been charged with operating an illegal clam stand and possession of fish beyond state limits. They were found not guilty in East Hampton Justice Court in October.

Other fishermen and fish wholesalers say confiscations can run into the thousands of dollars, yet there is no process to contest the seizures.

Mastic Seafood owners said the store had $900 worth of lobsters seized on Dec. 23, 2010. Greenport fisherman Sidney Smith said the DEC intercepted an $8,333 payment from his wholesaler after he was charged in an enforcement action in June.

Rodgers, a former Suffolk County assistant district attorney, said the Lesters and other fishermen are denied due process when their fish are seized as an "illegal proceed."

"The problem is, how do you [the DEC] know it's an illegal proceed if they [the Lesters] have not been found guilty?" Rogers said. "The DEC comes in, takes your property, makes an assumption of guilt. They are the judge, the police and the sentencer -- all before your case even makes it to court."

In a statement, DEC spokeswoman Lisa King said Environmental Conservation Law authorizes agency officers to seize fish as evidence "without a warrant . . . whenever they have cause to believe it is being illegally possessed or evidence suggests there has been an illegal taking."

King would not say whether fishermen are given a right to hearings, but suggested a potential conflict.

"If a defendant fails to establish a claim of ownership -- because if they did in some cases, they would be admitting to illegal possession and therefore establishing their own guilt -- the proper remedy . . . is for the right of possession of the fish to pass to the state," she wrote in an email.

King said the DEC lost the Lesters' case because "the fish were never presented to belong to any of the Lesters. They were not held accountable for the fish, and they actually denied ownership of the fish in court."

Rodgers denied that, and his letter to the DEC states, "We are demanding that they be made whole for their financial loss."

Smith, a third-generation commercial fisherman from Greenport, earlier this month settled a DEC enforcement action by pleading guilty to two violations and accepting an $1,100 fine. DEC officials in June had charged him with felony falsification of reports for more than $10,000 worth of fish.

Smith said his lawyer advised him to plead guilty to the lesser charges to put the case behind him. But he questions why he was never given a hearing to make a claim for the $8,333 in proceeds from the DEC's sale of the fish. Smith said the charges arose largely from a technicality: He neglected to send a fax to fisheries managers advising them that he was using a special research permit to catch fluke and scup out of season.

King declined to comment directly about Smith's case. But she said proceeds from fines, penalties and other enforcement actions go into a conservation fund overseen by an advisory board and subject to audits by the state comptroller.

Total revenue for the fund in 2010 was $50.64 million, up from $42.24 million in fiscal 2008. The state doesn't detail how much comes from confiscations. The fund is used in part to pay for equipment and personnel in the marine resources division.

Tad Scharfenberg, an attorney who previously argued cases on behalf of the DEC in enforcement actions, said the process needs fixing.

"I think the powers they [the DEC] are given are excessive," said Scharfenberg, who now represents fishermen in enforcement actions. "There has to be a hearing before an impartial magistrate."

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