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Fishermen Catch DEC Refunds, Finally

Attorney claims "enormous victory" in that the DEC has never returned money for seized assets before.

More than six months after the State Department of Environmental Conservation agreed to cut two checks to return to aggrieved fishermen the price of seized assets, the checks have arrived.

On Friday, Sidney Smith, a dragger fisherman from Greenport, received a check in the amount of $8,333.05, and the Lester family of baymen from Amagansett, received $202.25.

They've all been expecting the checks since the summer of 2012. While the wheels of justice often grind slowly, their attorney, Daniel G. Rodgers, said getting the reimbursement is a enormous victory of New York state fishermen.

"I am not aware that this has ever happened before," Rodgers said. "It's a long time coming."

Rodgers, who is representing a dozen fishermen who pushed last year for an investigation into what they call "unconstitutional" conduct by the DEC, negotiated with DEC attorneys about returning the funds. The investigation is still ongoing, and the DEC has stopped the practice of seizing fish in the meantime. "That's two things that have never happened before," he said.

Smith, the captain of the Greenport fishing vessel Merit, was charged with felonies and misdemeanor charges related to alleged illegal commercialization of marine fish after the DEC inspected his boat in 2011.

But, Rodgers said the DEC waited until Smith paid to ship his catch to the Fulton Fish Market, then went there and demanded Smith's payment be torn up and a new one be made out to the DEC — something Rodgers said amounted to theft. Smith maintained that he had the proper permits needed and was following protocol as a participant in the Research Set Aside program, a cooperative research program set up in 2002 by the Mid-Atlantic Fishery Management Council and run by NOAA’s Fisheries Service.

On Monday, Smith said receiving the check simply verifies the DEC was wrong in the first place. He called it a "stepping stone" and hopes it will help promote change within the agency.

Asked how he feels finally getting the check, he said: "It's almost forgotten about. It was so long ago. This has cost me thousands of dollars. It will never replace what was lost," he said.

Smith claims he actually lost about $17,000 in total because of the DEC charges, not to mention the added money it has cost him to fish out of Rhode Island, where he has been fishing after he took a plea agreement that includes not being able to obtain a New York State fishing permit for one year.

What is he going to do with the $8,300? "I'll probably pay some bills," he said with a laugh. "It's like it's been a very profitable winter." He said it's difficult to make ends meet with quotas and the winter weather. "No matter what you do, there's something turning around and slapping you in the face."

Meanwhile, the Lesters have been waiting for their $202 check since Kelly Lester and her brother Paul Lester were cleared of all charges stemming from a raid at their Amagansett clam stand and home after a bench-trial in East Hampton Town Justice Court in October 2011.

Kelly Lester was initially charged with a misdemeanor for the alleged sale of shellfish to the public without a permit, but the charge was later dropped to a violation at arraignment. Paul was charged with possession of untagged fluke and possession of over the limit fluke, which are violations.

DEC officers went to the Lesters' property on Abraham's Path, confiscated 74.5 pounds of fluke and 16 pounds of scup. Officers then sold it to a local fish market.

After their acquittal, Rodgers, who represented the Lesters at trial, sent the DEC a bill for $202.25 — how much the fish, some of which was being prepared for supper, was worth. It was a matter of principle, Rodgers said at the time.

Asked why he thinks it took more than six months for the checks to be sent, Rodgers said, "Honestly, I think they just dropped the ball."

"They came back with some pretty lame excuses — they wanted W2 or W9 forms filed first, then they said Sidney spelled the name of his boat wrong," Rodgers said (Smith noted that were three spelling mistakes on the check he received).

"Then suddenly out of the blue, the checks came in," Rodgers said.

In the meantime, the inspector general's office is still conducting an investigation, according to Rodgers. Also, Rodgers filed an ethics complaint with the New York State Ethics Commission against the DEC last June for practices he calls an ethical breach.

Rodgers said a bill that Assemblyman Fred W. Thiele Jr., I-Sag Harbor, announced last spring, which would eliminate the practice of seizures without warrants and force the DEC to show probable cause, has been tabled until the investigation is complete.

Are you happy to see the DEC pay Sidney Smith and the Lesters? Tell us in the comments below.

Ron Falkowski February 18, 2013 at 11:20 PM
Yes I sure am happy. According to everything I've heard and read about this it does seem like the D.E.C. does consider themselves to some degree to think they are the ones to impose sentence prior to any legal proceeding taking place. They are there to protect our environment, as they should, but should certainly not overstep their legal authority
William Swiskey sr February 19, 2013 at 12:36 AM
This while there are real violaters that go uninvestigated. Sid and Rodgers simply said we won't take it anymore Kudos to them.
pir2 February 19, 2013 at 02:06 PM
Ten years ago the DEC conducted themselves as if they were judge,jury, and executioners. They were heavy handed and a law unto themselves. A generation of DEC officials believed they could do no wrong and some of them are still there. A total review of their SOPs and the legality of their NY State charter should be conducted. Their so-called right of seizure and their lack of warrants in many of their cases could easily lead to class action suits at both the state and Federal level. I am not aware of the statue of limitations as it pertains to past cases but my guess is that they are conducting an internal review of questionable past practices, and if not they should. In my experience the present people I have interacted with at the DEC have been professional and much easier to work with. I hope recent events indicate a lessening of the heavy handed practices of the past.
Joel Hovanesian February 22, 2013 at 01:10 PM
Smith claims he actually lost about $17,000 in total because of the DEC charges, not to mention the added money it has cost him to fish out of Rhode Island, where he has been fishing after he took a plea agreement that includes not being able to obtain a New York State fishing permit for one year. This is brilliant. Drive commerce away from NY to RI. The economy in NY must really be humming along. A study should be done to find out what it cost the business's in NY that Mr. Smith used to conduct his business. Only a moron who works for the government could come up with a penalty that drives business away!!

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