DEC to pay back over $8G for fish seizures

Kelly Lester at her clam stand on Abrahams Kelly Lester at her clam stand on Abrahams Path in Amagansett (Aug. 20, 2011) Photo Credit: Doug Kuntz

advertisement | advertise on newsday

The state Department of Environmental Conservation said Thursday that it will return more than $8,000 to two East End fishermen who were subjected to DEC property seizures in cases in which they or family members were later found not guilty.

The reimbursements, which the DEC confirmed in an email, follow a series of stories in Newsday in which fishermen and fish dealers complained the agency had confiscated fish or fish-sale proceeds without any legal assurances that they could ever reclaim the property if they were found not guilty.

Advocates for fishermen had argued that the DEC deprives them of their right to due process when it confiscates and sells fish before a trial, keeping the proceeds in its Conservation Fund even if defendants are found not guilty or plead to significantly lesser charges. Riverhead lawyer Dan Rodgers, who represents the fishermen, called the practice unconstitutional.

The DEC in July suspended the practice, citing an internal review of its procedures. The state inspector general this year began an investigation into that and other DEC enforcement practices.

Paul and Kelly Lester, siblings from Amagansett whose family has fished local waters for hundreds of years, had been charged by DEC agents in the summer of 2011 with operating an illegal clam stand and possession of fish beyond state limits; more than $200 in fish were seized from their yard. They were found not guilty in East Hampton Justice Court in October.

Sidney Smith, a Greenport fisherman, said the DEC intercepted a check for $8,333 from his fish dealer after charging him with possessing fish beyond the state limit. He said the action was the result of his failure to send an email alerting authorities to the start of a fishing trip, but he later pleaded guilty to two lesser charges.

"DEC has reviewed the matters and determined that because the Lesters were acquitted after trial and Smith's plea bargain agreement did not include forfeiture as part of the terms, these defendants are entitled to the return of the seized evidence in their cases," spokeswoman Lisa King said in an email.

In the Lester case, the check will be sent to the Lesters' uncle, James Lester, who had a license to possess fluke and porgies that were confiscated from their yard. "We will be returning the seized assets to James Lester for $202.25 and to Sid Smith for $8,333.05," King said.

"It's about time," said Daniel Lester, a spokesman for the family, adding that he hopes the DEC would end the seizure practice permanently.

Smith spoke from a dock in Rhode Island, where he now largely operates because the enforcement action resulted in the loss of a needed permit. "I'm thankful," he said, "but to me, this was about more than losing the money."

Assemb. Fred Thiele Jr. (I-Sag Harbor) in March introduced legislation that would limit the DEC's power to seize fish and other property in enforcement actions without a warrant. The action is stalled pending the inspector general's investigation. Thiele applauded the reimbursement but said, "We need to still ensure that due process and property rights are not denied to commercial fishermen in the future."

Rodgers, who represents Smith and the Lesters, said, "Obviously we're pleased they're getting their money back, but at the end of the day, this is a constitutional issue and I think you're talking about the only police agency I know of that is seizing evidence, summarily liquidating it and then keeping the proceeds."

The quote in this story from Lisa King has been revised by the DEC to reflect the correct disposition of Smith's case, which was incorrectly characterized by the DEC.

You also may be interested in: