He hasn’t gotten his state license back, but a Greenport fisherman charged with falsifying catch records last year can chalk up a significant financial victory in his battle with the state Department of Environmental Conservation.
The DEC has agreed to pay Sidney Smith, owner and operator of the 63-foot fishing boat Merit, $8,333.05, which represents the market value of the fish he brought to the dock in Greenport in June 2011. The DEC confiscated the money after Mr. Smith sold his catch of scup, fluke and black sea bass.
At the time, he was charged with two felonies for possessing more than 1,000 pounds over the state limit of fluke and 5,870 pounds over the limit of scup, more commonly known as porgies, above state limits. A similar charge regarding the sea bass brought a misdemeanor.
Earlier this year Mr. Smith pleaded guilty to reduced charges in Southold Justice Court. Since his plea bargain did not include his forfeiting the proceeds from his catch, the DEC agreed to reimburse him, said Lori Severino, a DEC spokeswoman in Albany.
“This has not occurred yet, but the DEC’s attorney has made arrangements with their attorney,” Ms. Severino said.
Although pleased with the decision, Mr. Smith’s attorney, Dan Rodgers of Riverhead, said the DEC has yet to reinstate his client’s special permit to fish in New York waters, forcing Mr. Smith to fish in Rhode Island.
“They’ll give him his money, but not the ability to pursue his livelihood,” said Mr. Rodgers. “They’re really sticking it to him. They’re making it impossible for him to make a living.”
Before his run-in with the DEC, Mr. Smith took part in the Research Set Aside program created by the Mid-Atlantic Fishery Management Council and run by the National Oceanic and Atmospheric Administration’s fisheries service. With a special permit costing $10 issued through that program, fishermen can increase their catch limits. In charging Mr. Smith, the DEC claimed he was not following the program’s procedures and so standard catch limits applied.
His attorney claims the case was based on a single missing email.
Mr. Smith reported his intention to head out into the ocean for several days of fishing, the attorney said. Early on, he came across a shoal of squid and after boating it brought the catch to dock in Shinnecock and then headed out again. But because he returned to Shinnecock, any additional fishing was considered a separate trip requiring new notification, Mr. Rodgers said.
“That was a very expensive missing email and it sent me out of state,” said Mr. Smith, who is now fishing out of Newport. He returns home to Greenport — leaving the boat in Rhode Island — twice a week.
“Some fishermen would have been lazy and gone out a few miles and dumped the squid,” Mr. Rodgers said. “This is a guy who has been fishing for decades. I don’t think he was ever cited for anything, ever. I think that says something,”
The DEC, he continued, has become a rogue agency with virtually unlimited powers.
Mr. Smith sold his catch to the Joe Monani Fish Company at the Fulton Fish Market in The Bronx, said Mr. Rodgers. DEC officers appeared at the market the next day and, after learning that Mr. Smith was due the $8,333.05, demanded that the company instead pay the DEC.
“Anyone else would have been arrested and gone to jail,” the attorney said. “Nobody would put up with this kind of activity by another police agency under any circumstances. These guys have guns, they have badges and they’ll kick your door down. They have the right to search your property and they don’t need a warrant. It’s just plain unconstitutional.”
In East Hampton, the DEC confiscated 74.5 pounds of fluke and 16 pounds of scup from Kelly Lester and her brother Paul, who were charged with selling shellfish to the public without a permit. They were cleared of those charges and will receive a check for $202.25 from the DEC, said Mr. Rodgers, who also served as their attorney.
After the Lesters were cleared, South Fork Assemblyman Fred Thiele (I-Sag Harbor) introduced a bill to limit the DEC’s seizure powers, but that measure has languished in the Legislature.