D.E.C.’s Dealings Criticized

Doug Kuntz

A $1,000 check issued last month to Stuart Vorpahl, an East Hampton bayman, from the New York State Department of Environmental Conservation as reimbursement for the 1998 seizure of fluke and lobsters from his boat was closely followed by a report from the state’s inspector general’s office critical of several of the D.E.C.’s enforcement practices as they relate to the commercial fishing industry. But the report itself is also coming under fire, both for its substance and for the lengthy delay in its issuance.

The inspector general “was more interested in the reputation of the D.E.C. than . . . in the fishermen whose rights had been violated,” Assemblyman Fred W. Thiele Jr. said on Tuesday. “In a word, I was disappointed.”

The report, issued more than three and a half years after Mr. Thiele, State Senator Kenneth P. LaValle Jr., and then-State Senator Lee Zeldin requested an investigation on behalf of commercial fishermen, takes the D.E.C. to task for ineffective monitoring of the vessel trip reports commercial fishermen must file to itemize their catch, and the D.E.C.’s subsequent reissuing of permits to fishermen delinquent in their submission of reports or who had been issued violations. Also criticized is the D.E.C.’s practice of allowing its environmental conservation officers to directly negotiate plea agreements and fines with defendants, which the report said gave the appearance of impropriety and coercion.

The report also noted that, while environmental conservation officers can lawfully conduct warrantless search and seizure of a catch, the agency had failed to reimburse fishermen, like Mr. Vorpahl, who had won a court challenge or been acquitted of charges. For that matter, the report charged that the D.E.C. had no policies or procedures for the return of property following an acquittal or dismissal of charges. Mr. Vorpahl, a former town trustee, has long contended that the Dongan Patent of 1686 grants residents of East Hampton the right to fish in local waters without hindrance.

The D.E.C. issued new policies to address the inspector general’s recommendations in April 2014, placing the onus of the return of seized evidence, or its value, on the agency and not the defendant.

While Mr. Thiele acknowledged “a number of shortcomings” identified in the report, he said it did not go far enough, calling its recommendations “largely cosmetic changes in the way the D.E.C. is doing business.” The report, he said, “was written in a way to minimize outrage against the D.E.C.”

Mr. Thiele also called the three-and-a-half-year lag before the report’s issuance “almost malfeasance” by the inspector general’s office. “Watergate happened and Nixon resigned faster,” he said, adding that he and his legislative colleagues had contacted the inspector general’s office repeatedly, only to be told that the report’s release was imminent. “That it took so long is certainly something I had a lot of problems with,” he said. He and Mr. LaValle discussed the report with Marc Gerstman, the agency’s acting commissioner, on Monday.

Daniel Rodgers, an attorney and advocate for East End commercial fishermen, was unmoved by the D.E.C.’s implementation of new policies, nor did he spare the inspector general’s report. “We are mad as hell,” he said on Monday. “We had our hopes on this report being a blueprint to help reform this agency. Nobody is saying we don’t need a D.E.C., but we need one that functions. The state of affairs is such that it doesn’t.”

The report, Mr. Rodgers said, devotes far too much attention to the D.E.C.’s failure to properly maintain its database of vessel trip reports instead of the agency’s search-and-seizure policies. “The ability to search without probable cause and seize property without a warrant,” Mr. Rodgers said, is “in violation of the U.S. Constitution and the State Constitution . . . yet they’re admitting that for all these years they have been stealing the property of these people with no accountability. It could have at least come out and said it’s wrong.”

“This whole issue of warrantless searches needs to be looked at again,” Mr. Thiele said, calling the D.E.C.’s practices “basically a system where the officers were simply permitted to intimidate commercial fishermen using the enforcement process.”

A statement issued by the D.E.C. says that the agency had cooperated fully with the inspector general’s investigation and has made “significant changes to its operations” including streamlining permit and licensing processes, hiring more staff to better track licensees not in compliance, and improving internal communications between its divisions. The inspector general’s report, the statement said, “also concluded that D.E.C. law enforcement officers acted properly in carrying out searches in accordance with the law.”

Gov. Andrew M. Cuomo has tapped Basil Seggos, who has worked as his deputy secretary for the environment, to lead the agency. “We did get a commitment from the D.E.C. that the commissioner will meet with representatives of the commercial fishing industry once he is confirmed,” Mr. Thiele said. “Hopefully, that can be the beginning of trying to establish a new relationship.” 

Earlier this year, Mr. Thiele and Mr. LaValle sponsored legislation that would create a commercial fishing industry advocate within the state government, which both the Assembly and Senate have approved. The bill is awaiting Governor Cuomo’s signature. “In light of this report, it’s extremely important that the governor sign that bill,” Mr. Thiele said. “There is no one in the state bureaucracy that advocates for the commercial fishing industry. The D.E.C. certainly doesn’t.”

With Mr. LaValle, “We had been exploring a whole package of legislation regarding the commercial fishing industry,” he said. “We gave deference to the report before moving ahead. We intend to meet with commercial fishermen over the remainder of the fall and can hopefully come up with a package of legislation come January that will address some issues that didn’t get addressed” in the inspector general’s report.

Despite their disappointment with the report, Mr. Thiele said, “we’re still hoping it will be a catalyst to change the culture of the D.E.C. as they deal with the commercial fishing industry.”