Throwing Them Back: 72 Little Fishes and DEC Go to the Supreme Court

A legal case involving undersized fish has been accepted for consideration by the Supreme Court. The case has implications for Montauk fishermen and fishermen everywhere in America where people get arrested for having caught and kept fish that were not legally big enough to be allowed to be kept.

A little explanation might be in order here for those not familiar with commercial fishing laws. First of all, nobody is arguing that you should find a way for a fish that is too small to be told not to take the bait on your hook. But if a striped bass, for example, takes your hook or gets into your net and it turns out he is under a certain number of inches in length, you cannot keep him. You have to throw him back.

This has nothing to do with trauma a young undersized fish might endure by being caught. Instead it is about whether the fish is deemed having a long future as a procreator of more fish, an activity considered valuable to man’s continuing accounting of the number of fish in the ocean of particular species in order to see there were enough for future people to eat and also to keep that species off the endangered fish list, which everybody agrees is a good idea.

The case of the itty bitty fish going to the Supreme Court begins on a commercial fishing boat named Miss Katie, which was trolling its nets off the west coast of Florida captained by John L. Yates. Yates was attempting to bring in lots and lots of red groupers.

An officer for the Florida Fish and Wildlife Conservation Commission, John Jones, aboard a separate boat, decided to motor over to the Miss Katie to do an inspection. There were a lot of undersized red groupers swimming around in the sea at that time.

John Jones, who had been deputized to enforce federal fisheries laws, said he found 72 undersized groupers among Captain Yates’ catch, set those 72 fish aside in wooden crates on the Miss Katie and told Yates to take them to port for seizure. Jones left Captain Yates’ boat and motored off.

On his way to port, Yates instructed his crew members—one of whom later tattled to the authorities—to throw overboard the undersized fish and replace them with larger fish. They did that. But in their apparent haste—were they fearful the feds might see them doing this?—they must not have done a very good job.

When they got to shore, the authorities discovered that instead of 72 undersized fish in the crates, there were 69 undersized fish below the 20-inch minimum.

Suspicious, the authorities questioned the crew. And that’s when one of them coughed up the story. At a trial in Florida, Captain Yates was sentenced to 30 days in jail—plus three years of supervised release—for trying to conduct this ruse. He appealed, however, and he went about his business while waiting for the appeals court to rule, which it finally did, against him. He then asked his attorneys to appeal the above matter to the United States Supreme Court.

The court could choose to not hear the case of the 69 undersized fishes and the other fishes that the authorities said were illegally returned to their families. They listened to lawyers for both sides.

Yates’s original defense at his Florida trial in 2007 was that the 2002 law he had been told he’d violated was not meant to include fish. It was a law, he said, designed to prevent white-collar crime. That law says, in part, that it is a crime to destroy or conceal “any record, document or tangible object with the intent to impede, obstruct or influence a federal investigation.”

His lawyers at the time of the trial noted that the title of the law read DESTRUCTION, ALTERATION OR FALSIFICATION OF RECORDS IN FEDERAL INVESTIGATIONS AND BANKRUPTCY.

However, a month ago, trying to persuade the Supreme Court NOT to take the case, the prosecution, headed up by Solicitor General Donald B. Verrilli Jr., argued that this law has been upheld as being applied to computer hard drives, compact discs, cocaine and a cement mixer, and so certainly it could be applied to fish.

In response, Captain Yates’s lawyers said having it applied to a little crime about a little fish was a stretch. They used the term “over-criminalization” in their brief. This was a case, they argued, where federal criminal law was being used in an overly aggressive manner.

The Solicitor General responded by saying that “the Supreme Court does not pass judgment on the wisdom of the scope of criminal law.”

You can see that this is going back and forth.

Finally, after that hearing one month ago, the Supreme Court did comment that indeed the 2002 law clearly was in place to “safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron,” which had just happened a short time before the law was created. And so yes, maybe it could be argued that it didn’t apply to fish.

And so it was that a couple weeks ago, the Supreme Court decided to take this case of Captain John L. Yates of Miss Katie, the captain a commercial fisherman in Florida who, seven years ago, was convicted of throwing fish back into the water that he was not supposed to throw back into the water. It is now on their docket, for the term that begins in October, and after due deliberations, probably over a course of months, there will be a decision finally putting an end to this short story.

This thing does bring to mind a time three years ago when a NY State Department of Environmental Conservation (DEC) officer confiscated some porgies and flukes from the home of the family of a commercial fisherman. I had been by this home on Abraham’s Path in East Hampton many times and had bought fish there, leaving money in a box alongside the cooler.

Anyway, this DEC agent—the DEC regulates state waters inside the 12 mile limit and the feds outside that—testified that he saw a sign for shellfish for sale out in front of the house and, when nobody answered his knock at the door, he went around the back, where he saw what he determined was an amount of fish over the legal commercial limit and confiscated it.

He took the fish out to his truck and then it to Stuart’s Seafood Market about a half-mile away, where he sold them wholesale to that store for $202.75. He got a receipt for the money and later turned the $202.75 over to his bosses.

This was a real minor league move by this agent, may believed. He should never have done what he did. At the time it was seen as just further abuse of local fishermen by one bunch of regulators or another.

It also brought to mind a Congressional investigation that had started a few years earlier that led to the man who was running the fisheries enforcement arm of the federal agency NOAA (National Oceanic and Atmospheric Administration) as if it were a rogue military unit, victimizing fisherman—particularly in the Northeast—with what the Senate called “excessively punitive and arbitrary enforcement” that not only collected exhorbitant fines for minor crimes but used some of that money for cars and boats and to go on grand vacations over the years, to the tune of millions of dollars.

That man was neither prosecuted or fired at the time. But in true bureaucratic fashion, he was reassigned to another job at the NOAA, in a Gulf of Mexico office where he couldn’t continue bothering everybody about fishing in the Northeast.

I believe they call that tenure. Or something.

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