Tag Archive | "baymen"

East End Baymen Call for Fishermens’ Bill of Rights; Consider Lawsuit

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Paul Lester and Daniel Rodgers

Standing in a Riverhead law office on Tuesday afternoon, about a dozen of East End fishermen signed a Fisherman’s Bill of Rights. It was the latest move in a months long effort by a group of East Hampton baymen to protect their industry against what they say are unreasonable practices by the state that take away their basic rights under the Constitution.

Daniel Rodgers, a Riverhead attorney who has taken up the East End fisherman’s battle against the New York State Department of Environmental Conservation (DEC), said he plans to forward the Fisherman’s Bill of Rights to Governor Andrew Cuomo and the Secretary of State.

This comes after Rodgers formally filed an ethics complaint against the DEC related to the sale of fishermen’s catch after DEC officers seized the fish.

Nassau County attorney Harry H. Kutner, Jr. also announced this week that the group is considering a federal civil rights class action lawsuit against the DEC for allegedly violating fishermen’s rights on the East End.

Rodgers has been working with baymen like the Lester family, current East Hampton Town Trustee Nat Miller and former trustee and veteran baymen Stuart Vorpahl since he took on a DEC case against the Lesters last summer. Paul and Kelly Lester were accused of violating the state’s Conservation Law after a raid of their Amagansett home and were ultimately acquitted. However, for Rodgers it opened his eyes to what he views as state law that allows DEC officers to deprive fishermen of their basic rights under the Constitution. Specifically, it allows that fishermen’s homes and boats can be searched without a warrant and fish seized and sold by DEC officers before they have been deemed guilty or innocent of any crime.

“Because it is the law of the land in the State of New York that fishermen and women as a class be treated differently than ordinary citizens of this State, we have created a Fishermen’s Bill of Rights as an Amendment to the Constitution of the State of New York,” said Rodgers in a statement on Tuesday.

Under the Fishermen’s Bill of Rights, all fishermen would be protected against warrantless searches and seizures unless an officer has probable cause. Fishermen cannot be deprived of property without due process, under the bill of rights and if they are they must be compensated. The bill of rights also aims to give fishermen equal protection under the law and protects them from excessive penalties.

Lastly, the bill of rights states that “No fisherman shall be subject to any moratorium” that deprives them of the right to work unless it is backed up by actual legislation by the state. Currently, the DEC has moratoriums against issuing fluke and striped bass permits to fisherman.

“The DEC moratoriums effectively close down fisheries,” said Rodgers on Tuesday. “It deprives fisherman the ability to make a living. Moratoriums are designed to be temporary but these have been in place for years.”

These issues, said Rodgers, will also be addressed if and when a lawsuit is filed on behalf of the fishermen against the DEC, which could happen as early as August, he said.

East Hampton Fisherman Continue Quest to End Warrantless Search & Seizures by the DEC

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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.

Attorney Hopes to Preserve Baymen’s Way of Life

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William Lester was born in 1900 and as soon as he was old enough to walk he was fishing. A bayman like his father before him, William passed the skill and tradition to his own son, who in turn shared it with his children, Daniel and Paul, brothers who now work nets in Accabonac Harbor just as their forefathers.

“As soon as my mother let me, I went fishing,” said Daniel Lester in an interview this week. “Once you do it, that is it — you are done, you are hooked. I had other jobs in my life, I have done other things, but this is it for me.”

Despite a general trend towards all things local, the life of a bayman on the East End has only gotten harder over the last two decades. Now a group of baymen are trying to build momentum to ensure a historic tradition on the East End is not lost.

And they’re armed with an attorney,

According to Lester there is an entire generation of baymen who feel so restricted by state and federal guidelines they are questioning whether this will remain a viable way of life, or if like many historic traditions it will be lost to future generations.

“We are not out to break the law,” said Daniel. “We just want to make a day’s pay and a nice living. Some of the regulations we are dealing with are out of control.”

Following a court case involving Daniel’s siblings, Paul and Kelly, who faced charges they violated the state’s Conservation Law, a group of a dozen baymen in East Hampton and Riverhead attorney Daniel Rodgers have revived a decades long battle to protect the rights of the baymen.

The pair were exonerated this past fall, but last week, in the hopes of increasing support behind the rights of the baymen, Rodgers filed a request with the Preservation League of New York State (PLNYS). He is asking the league to consider adding Long Island “baymen” to its list of historic and cultural resources in need of protection.

“Baymen are increasingly under pressure from burdensome state and federal regulations,” said Rodgers in his letter to the preservation league. “Many, particularly younger fishermen, are choosing to leave their livelihood, never to return. The unique skills of baymen are passed down from one generation to the next, in some instances over hundreds of years. They will never be replaced.”

Rodgers cited a recent decision in Maryland as a basis for his decision to reach out to the preservation league.

According to The Chesapeake Bay Journal, Preservation Maryland has placed the Maryland waterman on their 2012 Endangered Maryland list in the hopes of furthering discussion in the state about the cultural importance of the waterman.

It was veteran bayman Stuart Vorpahl who discovered the news item and encouraged Rodgers to seek the same path in New York.

On Tuesday, regional director of technical grant programs for PLNYS Erin Tobin said while the group would be interested in entertaining the concept at the end of 2013, for the 2013 and 2014 years the organization has already selected its Seven to Save for this year.

“The protection of a way of life is not something that is directly within our mission statement,” said Tobin, noting it was often historic landscapes or buildings the group focused its efforts on.

However, she said she was happy to have connected with Rodgers and added the league would look into the request in more depth come 2013.

“This is just the beginning of the conversation,” said Rodgers. “Time is on our side and we are willing to fight for this however long it takes. This is a culture that needs to be preserved.”

Rodgers said he would be reaching out to cultural and historic organizations throughout Long Island in coming weeks for support.