Kristen M. Fletcher, J.D., LL.M.,

and Elizabeth B. Speaker, 3L

In carrying out their mandate to enforce fisheries laws and regulations in the Gulf of Mexico, the United States Coast Guard (USCG) and the National Marine Fisheries Service (NMFS) have cited numerous fisheries violations in recent years, resulting in both fines and imprisonment for fishers and seafood dealers. The violations cover a broad scope of activities from falsifying permitting documents to fishing in a prohibited area. With millions of fishers in the Gulf each year, investigating and executing the various laws can be a daunting task. But, NMFS Special Agent Gene Proulx explains that the laws are "no more or less difficult to enforce [than other laws] . . . if you have the hours to devote to prosecution." ¹ The agencies have stepped up enforcement activities to meet the challenge inherent in rebuilding fish stocks and other marine species in the Gulf.

Gear Restrictions

This year, enforcement activities have targeted gear violations in shrimp trawls because 1998 is the first year that NMFS has required shrimp trawls to use both turtle excluder devices (TEDs) and bycatch reduction devices (BRDs). Designed to allow sea turtles and finfish out of the shrimp trawl nets, improper installation or sabotaging the gear renders them useless in protecting these non-target species.

After numerous sea turtle deaths and strandings in March, the USCG and NMFS increased enforcement activities including surprise night boardings of shrimp boats. Generally, the officers found high compliance. But, in an investigation off the Texas coast, USCG officers found a trawler with several TEDs that were sewn shut, purposefully blocking the escape hatches that allow sea turtles to go free. The NMFS assessed a $10,000 penalty and forfeiture of the shrimp and other fish seized during the investigation. Shortly thereafter, while conducting routine boardings, the USCG caught a Louisiana man trawling Lake Pontchartrain with the TED wired shut. The officials' clue was the sea turtle struggling in the trawl while the net was tied up to the boat. NMFS spokesperson Chris Smith admitted, "It's pretty rare. But, this guy had the whole nine yards: a TED sewn shut with a turtle in it, and it was a Kemp's ridley, the rarest of the rare sea turtles."² The investigation resulted in a $6,000 fine.

Actually finding a sea turtle stuck in a trawl certainly makes investigations less difficult. Often, sea turtles are found washed up on shore, dead or maimed. In some instances, the heads and limbs of the turtles have been cut off, presumably cut from fish and shrimp nets. In March, the NMFS and the Texas Department of Parks and Wildlife increased rewards offered for information about parties responsible for these mutilations.³ But, they are quick to note that such occurrences are not indictments of the shrimping industry as a whole. Generally, compliance with gear regulations has been high: USCG officers have boarded over 2,000 shrimp boats this year along the Gulf shore from Florida to Texas and found less than 30 TED violations.

However, investigators admit that this may not be an accurate accounting of violations. According to officials, investigating gear violations is difficult because of a "network" of fishers or shrimpers that communicate by radio that the Coast Guard is in the area to board and investigate vessels. Comparing it to motorists that flash their lights at other motorists after passing a speed trap, USCG enforcement officer John Sherlock explained that "[o]nce you do one boarding, the word is out." ⁴
 

Illegal Smuggling & Trafficking

While a communication network may work against agencies in gear investigations, it can help when a network of seafood dealers tips the agency that illegal trafficking is occurring. As a result of such a complaint, the NMFS levied its highest fine yet in the Gulf region last July. It fined a Pensacola, Florida, seafood dealer $1.26 million for a red snapper trafficking scheme and banned him from dealing in federally managed fish for three years. Investigators charged that the red snapper were illegally bought from recreational fishers, then shipped to Manhattan to be sold on the country's largest seafood market.⁵ Investigators found that the dealer dumped more than 30,000 pounds of red snapper onto the black market in a two-year period, surprising and disappointing investigators at this level of organized criminal activity which required purchase from possibly hundreds of recreational fishers. The scheme violated both the Magnuson Act, that protects red snapper as a federally managed fish, and the Lacey Act, that prohibits the interstate sale of illegally obtained wildlife.

Under the Magnuson Act and the Reef Fish Fishery Management Plan that manages the red snapper stock, red snapper caught by commercial fishers may be sold but those caught by recreational fishers may not. While the commercial season was closed, the dealer illegally bought red snapper caught by recreational fishers for about $2 a pound. He purchased these fish without a federal dealer's permit and then falsified records to cover his scheme. After the purchase, the dealer shipped the illegally obtained fish across state lines for a price of $3 to $4 a pound. This illegal shipment, coupled with false labeling of the shipments, constituted a violation of the nation's oldest wildlife protection statute, the Lacey Act.6 Officials continue to investigate the seafood market, transporters, and recreational fishers who supplied the red snapper.

This investigation is unique because it is the first time enforcement officials have encountered a scheme involving the legal catches of recreational fishers for out-of-season sale. But, the use of the Lacey Act in enforcing fisheries violations is not new. Investigators recognize that with the high prices and limited commercial seasons for red snapper, bootlegging illegally taken snapper has become a fairly common problem for law enforcement. In 1996, NMFS investigators followed a trailer leaking water from Louisiana to Mississippi, noticing a "fishy" smell as the trailer sat in traffic. Once reaching its destination at a Mississippi seafood dealer's business, the NMFS officials found that the red snapper inside the trailer had been obtained during the closed commercial season and illegally offered for sale. The result was three convictions by a federal court in Louisiana, with a seafood dealer assessed $17,000 and sentenced 21 months imprisonment.⁷

This year, a Louisiana seafood dealer was sentenced to 18 months in prison for conspiring to violate the Lacey Act by transporting 9,000 pounds of illegally obtained red snapper across state lines. The fish were hauled in a tractor-trailer from Grand Isle, Louisiana to Houston where game wardens from the Texas Parks and Wildlife Department found the snapper on a routine check of a seafood dealer establishment. Interestingly, the Louisiana dealer was also ordered to pay over $27,000 in restitution to the state of Louisiana for the illegal taking of the fish.
 

Location, Location, Location

With managed species, the Gulf is not necessarily open access. Rather, certain areas of the Gulf remain closed to some or all fishing to protect crucial breeding habitat, fish or shellfish species, or coral reefs. In January, after an investigation by the USCG and NMFS, the owners and operators of two Florida commercial fishing vessels were charged with illegal longline fishing in closed waters and illegal taking of reef fish and protected coral species. The waters at issue, 10 miles west of Fort Myers, Florida, had been closed since 1990 to longlining to protect the spawning habitat of red grouper and other reef fish. Fines for the illegal fishing included $36,500 and a 30-day prohibition on fishing. NMFS Special Agent Gene Proulx explained that investigations for fishing in closed waters focus on "determining how frequently these [fishers] enter the restricted area and fish illegally and how extensively vessels share information in order to remain undetected while poaching."⁸

In March, NMFS officers fined the operator of a vessel for improper use of fish traps in a protected area off the Florida coast and for disposal of the fish traps after the approach of an enforcement vessel. Investigators also remain concerned about the increasing number of cases of illegal fishing in the Tortugas Shrimp Sanctuary in Florida. State and federal enforcement officers gathered to discuss possible solutions. The agencies are considering increasing penalties or requiring a master license for shrimp vessel operators that could be revoked for multiple violations.

Permits & Catch Limits

Enforcement officials must also execute laws requiring permits and limiting catches in the Gulf. In order to fish a federally regulated stock in the Gulf of Mexico, permits are required and may be issued based on the applicant's catch from previous years. For instance, to obtain a red snapper commercial permit for the 1993 season, a fisher had to show that the vessel he or she owned or operated had landed 5,000 pounds or more of red snapper in at least two of the three years of 1990, 1991, and 1992. One owner submitted improper information, knowing that the vessel had not met this threshold in two of those years, and was convicted under the federal criminal false statement provision.⁹

Even with a permit, fishers must still observe catch limits. Last February, NMFS and USCG agents seized thousands of pounds of fish and shellfish from fishers with catches in excess of set limits. One vessel operator was cited for possessing 32 king mackerel in excess of the allowable bag limits and others for reef fish.
 

Conclusion

Recognizing that enforcement of fisheries laws will continue to be challenging, the USCG and NMFS officials hope that their efforts in the Gulf will enhance fisheries management and stock recovery. When asked about red snapper violations, Andy Kemmerer, NMFS Regional Administrator for the Southeast Region, admits there is good news and bad news. "The good news is the recovery is just beginning; the bad news is a lot of people feel that because the snapper population is recovering, that they should be allowed to fish it harder. And, red snapper is a very valuable fish, so they are going to attract people that violate the law." 10
 

NOTES

1. Telephone Interview with Gene Proulx, Special Agent, Southeast Region, National Marine Fisheries Service (September 30, 1998).

2. Brian Thevenot, Caught Red-Handed, Turtle Catcher Pays, The Times-Picayune, July 17, 1998, B4.

3. Reward Increased for Leads in Killing of Turtles in Gulf, Austin American-Statesman, April 11, 1998, B7.

4. Caught Red-Handed, Turtle Catcher Pays, at B4.

5. Brian Thevenot, Seafood Dealer Fined for Red Snapper Scheme, The Times-Picayune, July 15, 1998, A13 (quoting Gene Proulx of the Southeast Enforcement Office, National Marine Fisheries Service).

6. Lacey Act, 16 U.S.C. §§ 3371 - 3378 (1998).

7. See United States v. Collins, 1997 Westlaw 738615 (E.D. La. 1997).

8. NOAA Press Release, NOAA's NMFS Cites Commercial Fishermen in Florida West Coast Closed Area (Jan. 16, 1998).

9. See United States v. Tomeny, 144 F.3d 749 (11th Cir. 1998).

10. Seafood Dealer Fined for Red Snapper Scheme, at A13.
 
 

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