Following a request last month by a group of East Hampton baymen, acting New York State Inspector General Catherine Leahy Scott has begun investigating what some fishermen view as the illegal seizure of fish and shellfish by officers of the New York State Department of Environmental Conservation (DEC).
However, the baymen’s attorney, Daniel G. Rodgers of Riverhead, said he has also asked the Inspector General’s office to investigate whether officers confiscating fish and shellfish related to cases and selling it, rather than finding a way to save it for trial, actually flies in the face of the agencies own laws.
On Monday, Rodgers — surrounded by the Lester family and fisherman Larry Keller — said he and his clients had met with investigators in the Inspector General’s office last Friday.
Rodgers’ clients have asked the state to investigate warrant-less searches and subsequent seizures of fish and shellfish by DEC officers who believe a fisherman has violated fishery law. It’s a decades-long practice they contend violates their Constitutional rights. In light of the fact that much of the seafood confiscated is sold by DEC officers to local fish markets or simply dumped off a vessel, Rodgers has also asked for a forensic audit of the proceeds of those sales. He’s also asked for the overall lose in revenue for local fisherman, particularly since some of the DEC’s cases against these individuals are later overturned.
Rodgers said because the seizures happen before any trial, and property is not returned or restitution provided to fishermen found innocent of Conservation Law violations, a full forensic inquiry by the state was necessary to restore public faith.
He has found support from local government leaders, including New York State Assemblyman Fred W. Thiele, Jr., and State Senators Ken LaValle and Lee Zeldin, who have drafted legislation that would eliminate the DEC’s ability to seize fish or equipment from fishermen without a warrant.
“The Investigator General’s Office is taking this very seriously,” said Rodgers. “And we are grateful for that.”
Rodgers said the DEC’s explanation for why they should be able to search property such as backyards, trucks and boats (though not inside baymen’s homes, which are protected), is because fish should be considered “mobile,” as in something that can get away and therefore enforcement rules need to be relaxed so DEC officers can do their jobs.
“Well, we call that Constitutional relaxation,” said Rodgers. “And everyone knows there is no such thing as Constitutional relaxation. It is a fixed document. You cannot relax the rules from one individual to another.”
Worse, said Rodgers, is he believes it is possible DEC officers are breaking their own laws by seizing fish and selling it rather than retaining it for trial.
“While DEC officials continually point to rules to search and seize properties, seemingly they do not follow the rules that require them to follow some minimal role in Constitutional restraint,” said Rodgers.
Rodgers cited New York State environmental law that specifically deals with the powers and duties of enforcement officers — the very section that gives officers the explicit authority to seize fish, shellfish, game or plumage without a warrant. In that section of law, Rodgers said it demands that if officers seize fish or shellfish without a warrant they must retain custody of that property until the determination of any prosecution in which it is being held for evidence.
“DEC officers have been violating their own rules by illegally converting that property of fisherman and paying [the department] with the proceeds,” said Rodgers. “Fisherman are getting ripped off, possibly in the many thousands of dollars.”
Rodgers said he immediately brought this to the attention of the Inspector General, and hopes it will be added to the overall investigation into the DEC’s regulation of East Hampton baymen.
“Part of the argument is, what is the alternative,” noted Rodgers. “If any officer attempts to confiscate fish, shellfish, lobsters or any other food fish how will they keep it for trial? Well, frankly, that is not my problem. If you are going to confiscate someone’s fish as evidence for trial in a criminal case, the law says you must keep it safe until a determination is made by court. That is called due process.”
Many baymen and fisherman, added Rodgers, have had to watch for years as their livelihood was seized, knowing it would be sold or thrown back into the water before their guilt was ever determined.
Two of Rodgers’ many clients, siblings Paul and Kelly Lester, had a case against them dismissed last summer by East Hampton Town Justice Lisa Rana. They were charged with possession of untagged fluke, for having fluke over the daily catch limit and for not having a permit to sell shellfish from a roadside stand in front of their Amagansett homes.
According to Rodgers, in that case the DEC came onto the Lester’s property without a warrant and seized the fish, selling it to a nearby fish market.
Despite attempts, no restitution for the $200 in fish has been offered by the DEC.
“A drunk driver has a vehicle seized if he has more than one conviction in New York State,” said Rodgers, a criminal defense attorney by trade. “A drunk driver has more due process rights in getting a vehicle back than a fisherman in trying to get back the fish they worked hard all day to catch.”
“That is how crazy this system is,” he added. “A drunk driver has more due process rights. They are entitled to a hearing, they are entitled to notice, they are entitled to a lawyer and are actually heard on whether or not their vehicle should be taken from them. The fishermen get squat, they get nothing and I think that is part of the inherent unfairness of this system.”
Image: Riverhead attorney Daniel Rodgers with a group of East Hampton baymen and fishermen on Monday evening. Rodgers is helping the group fight for the end of what they call illegal searches and seizures of their fish and shellfish.