Bill would limit DEC fish seizure authority

A bill that would change state environmental law to bar warrantless seizures of fish and other property from fishermen is being introduced in the legislature, as a state agency said it would review the confiscation practice.

The bill, authored by Assemb. Fred Thiele Jr. (I-Sag Harbor), is aimed at complaints by fishermen and women who charge the state Department of Environmental Conservation has confiscated fish and sold proceeds during enforcement actions without giving defendants the opportunity to challenge the confiscations. Their concerns were aired in a Newsday story Monday.

"Under the current process, the DEC is the police, the prosecutor, the judge, and jury -- all before the case ever gets to court," Thiele said in a release. "There is no check on the authority of the DEC."

DEC spokeswoman Lisa King declined to comment on pending legislation. Asked if the DEC was reviewing the seizure practice and would consider restitution if it finds fishermen were denied rights, she said, "This matter is under review."

State Sen. Lee Zeldin (R-Shirley) said he was reviewing the legislation and, "Assuming it's going to take care of the problem, I would be happy to introduce it on the Senate side."

In Monday's story, 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." Lawyers for fishermen took exception with the practice.

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."

Added Zeldin, “It is an issue I applaud Assemblyman Thiele for taking a leadership role on. It obviously needs to be addressed to protect those whose rights are being violated.”

Zeldin also said he was interested in hearing from fishermen and DEC officials to probe the claims, but stopped short of saying he’d lead an investigation. He is chairman of the Senate consumer protection committee. “Sometimes big brother gets a little too involved with regards to individuals and business,” Zeldin sad.

The story told of a confiscation last year at the Amagansett home of Kelly and Paul Lester. A DEC enforcement officer raided their yard, confiscated two cartons of fish and sold it locally, they said. Charged with possessing porgies and fluke beyond the limits, they were found not guilty in East Hampton Town Justice Court last October. But proceeds of the action were not returned to them.

Their lawyer, Daniel Rodgers of Riverhead, earlier this month sent the DEC a demand-for-restitution letter seeking return of the $146 in lost fish.

Rodgers said the legislation “puts the DEC on notice that you have to respect the rights of ordinary citizens, in this case fishermen, like every other law enforcement agency.” He added, “It’s really frightening when you consider these [DEC officers] are agents of the state, they can come into your home, with guns on their hips, and can take your property.”

On Thursday, Kelly Lester applauded the proposed legislation. "It's really exciting news," she said. "This has been like a huge ordeal for every fisherman in New York State."

Bonnie Brady, executive director of the Long Island Commercial Fishing Association, an industry group, said she’d support the bill and a probe into past confiscations.

“If what I’ve read is correct, those writing the tickets are being paid their salaries from those fines,” Brady said. “Who’s overseeing the fines to make sure they are fair and [fishermen are] not being overcharged?”