Legislation that would eliminate the state’s blanket authority to seize fish or fishing gear without a warrant may be introduced in the New York State Assembly as soon as this week, according to the office of State Assemblyman Fred W. Thiele Jr.
The legislation would require an independent magistrate to determine if there is probable cause for seizure in some instances, Mr. Thiele explained on Friday. “We’re giving away the special treatment” that the New York State Department of Environmental Conservation has enjoyed in the past, he said.
The assemblyman’s move follows the seizure and sale of fish last summer when Paul and Kelly Lester were charged with possession of illegal fish and operating an illegal clam stand in Amagansett. The Lesters were found not guilty in East Hampton Town Justice Court in October, and they are seeking restitution for the confiscated fish, which was sold at Stuart’s Seafood by a DEC officer.
Their attorney, Daniel G. Rodgers of Riverhead, has filed a demand for payment of $202.25 for the sale of fluke and scup, which were paid for with a check to the DEC despite the protests of Mr. Lester at the fish market.
“Under the current process, the DEC is the police, the prosecutor, the judge and jury, all before the case ever gets to court,” said a statement from Mr. Thiele’s office,” echoing an argument Mr. Rodgers had made during the Lesters’ trial last fall.
“They used these funds to help fund their operation, so there’s a clear conflict of interest here,” Mr. Rodgers said of the DEC. “This is the type of thing that has been going on for years.”
Mr. Thiele’s statement said the legislation would not hinder the prosecution of illegal activity, “but would insure that the rights of fishermen are protected.” He also said there would continue to be circumstances in which a warrant would not be needed for seizures as part of enforcement actions.
“The DEC is like a lone cowboy out there,” said Mr. Rodgers, who defended the Lesters for free. “It becomes a due process question when the state takes your property without due process of law,” he said. “The fact is that the definition of larceny in New York State is taking their property without their permission.”
He credited the Lesters with having taken their case to court. “That’s kind of scary, when you make your living fishing, to stand up to the DEC,” he said.
Mr. Thiele’s bill has been drafted and more sponsors are being sought, according to Lisa Lombardo at the assemblyman’s office in Albany. “There’s a lot of interest” in the legislation, she said on Monday, adding that it may be introduced this week.
“This is really a big deal,” Mr. Rodgers said. He added that if the legislation goes through, “the new law completely changes the landscape, especially for the small fisherman.”