A Southampton Town judge on Friday threw out charges of overfishing against Hampton Bays commercial fisherman Bill Reed because neither prosecutors nor the State Department of Environmental Conservation officers who charged him could point to a statute regulating the reporting of fish intended to be sold in other states.
Southampton Town Justice Barbara Wilson dismissed the charges against Mr. Reed after DEC officials acknowledged that a so-called “safe harbor” protocol for allowing commercial fishing boats operating under another state’s fishing rules to land their fish in a New York port if there was a weather or mechanical emergency aboard the vessel is a well-known practice but not an official statute.
The DEC officers had testified at Mr. Reed’s trial on Friday morning that the circumstances leading to Mr. Reed’s January landing of a load of fluke nearly 10 times what was allowed under New York State regulations at the time did not meet the safe harbor policy. But when the officers couldn’t point to a specific law delineating what the protocol was, Mr. Reed’s attorney, Dan Rodgers requested that the charges be dismissed—Judge Wilson obliged.
“They’re requiring this man to follow a law that isn’t even written down, it’s in their heads,” Mr. Rodgers, who has also represented East Hampton baymen Danny and Paul Lester in defense of overfishing charges brought by the DEC, said in a phone interview afterward. “I said to the officer, ‘Could you tell me where this safe harbor protocol is?’ and he said, ‘Everybody just knows … but it’s not written down.’ It was bizarre.”
Mr. Rodgers said the case against Mr. Reed had been just the latest in a long history of unfair and inconsistent enforcement of fisheries laws by the DEC. The attorney and the fishermen he represents have accused the state agency of unwarranted persecution of fishermen, claims that set off an investigation of the department’s practices by the state Inspector General’s office—the findings of which have been long delayed, without explanation by the IG’s office.
The DEC offered no comments on the outcome of Mr. Reed’s case.
Mr. Reed had been charged in January with illegally landing about 625 pounds of fluke when his boat, Providence, returned to Shinnecock Inlet from a fishing trip 50 miles south of Long Island. The fluke landing limit at the time was just 70 pounds per trip for New York State ports.
But the Providence also holds New Jersey commercial fishing permits, where it would have been permitted to land more than 2,000 pounds of fluke from the trip. Mr. Reed has claimed that he had planned to bring the Providence into New Jersey after his holds were full, but worsening weather and poor fishing had spurred him to cut the trip short and to head for the nearest port, which was Shinnecock.
Testifying on Friday, DEC officer Matt Foster said it has long been common practice for state environmental officers to allow boats fishing under another state’s permits to land fish at New York harbors in an emergency without being cited for violating state rules, according to Mr. Rodgers.
But the DEC officers cited him for landing the fish after this particular trip because, the attorney said, they thought he only came back to Shinnecock, which is the boat’s home port, because the fishing was bad, not due to the weather.
Mr. Rodgers said that when he decided to land the fish in Shinnecock, Mr. Reed notified New Jersey fisheries enforcement that he was heading in to a New York port, since he had declared that he was fishing under New Jersey permits when he embarked on the trip. The New Jersey officers notified New York State DEC that the Providence was returning to Shinnecock with a load of fish caught under New Jersey permits.
Mr. Rodgers said on Saturday that Mr. Reed had followed what had been understood to be the protocol for landing fish at an out-of-state port and hadn’t been trying to conceal anything about his trip.
He said the dismissal is a victory for commercial fishermen, more than two dozen of whom from across the East End were in the courtroom on Friday.
“The whole room jumped up and started clapping,” when Judge Wilson issued her ruling, Mr. Rodgers said. “This is an agency that has had a communication problem for decades.”