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Jun 10, 2019 2:35 PMPublication: The Southampton Press

Shinnecock Tribal Member Found Guilty Of Fishing Without A Commercial Fishing License

Taobi SIlva was found guilty of fishing for eels without a commercial license. GREG WEHNER
Jun 11, 2019 12:43 PM

A former Shinnecock Indian Nation leader who was ticketed by State Department of Environmental Conservation agents for being in possession of undersized eels taken from disputed tribal waters two years ago was found guilty of fishing without a commercial license last week—but walked away with just a $250 fine.

In April 2017, undercover DEC agents ticketed David Taobi Silva, 43, for being in possession of juvenile eels. State law mandates that it is illegal to possess eels less than 9 inches long, commonly referred to as juvenile eels, “elvers” or “glass eels.”

Juvenile eels are highly valued in Asian markets, where they are considered a delicacy—the DEC’s website states that glass eels have been known to fetch as much as $1,136 per pound. State officials worry that the high price could result in depletion of the state’s juvenile eel fisheries.

At the time, Mr. Silva was fishing specifically for the eels in Taylor Creek, which is located just east of the Shinnecock Indian Reservation.

Southampton Town Justice Gary Weber issued his decision on the matter on Wednesday, June 5.

At the trial, Lieutenant Sean Reilly of the DEC said he asked DEC Officers Evan Laczi and Brian Farrish to drive an unmarked vehicle to the location of a possible illegal net near Halsey Neck Road and Meadow Lane in Taylor Creek, and to wear civilian clothes so that they did not scare anyone away from the net.

At approximately 6 a.m., a vehicle pulled up, and the undercover officers saw Mr. Silva get out and go to the net. A short time later, the officers approached Mr. Silva, who had a bucket.

Officer Laczi said he and Officer Farrish asked what was in the bucket, and Mr. Silva said it was bait. When asked if they could take a look inside the bucket, Officer Laczi said during testimony, Mr. Silva said he was in a hurry and had to leave.

Up until that point, the men had not identified themselves as DEC officers. But when they did, they asked Mr. Silva what was in the bucket and he answered, “elvers,” and allowed the agents to see 247 eels in the 2-inch size range.

Mr. Silva, officers reported, gave a voluntary statement. Then, the officers confiscated the bucket of eels along with a 40-foot fyke net that he used to catch the eels. The net contained an additional 98 undersized eels, Mr. Laczi said during the trial.

Mr. Silva told the agents he was going to take the eels back to the reservation to try to farm them, according to Officer Farrish.

During the trial, Mr. Silva’s argument largely focused on the fact that tribe members were exempt from the state’s fishing laws and regulations, because, as the original inhabitants of the region, the Nation should have the right to continue to hunt and fish on land formerly held by the tribe. When the land was sold, he said, the fishing and hunting rights stayed with the tribe.

But his argument did not hold water in court.

The sole town tax assessor, Lisa Goree, was called to the stand during the trial and confirmed that the area Mr. Silva was fishing was outside of the reservation’s boundaries.

Shinnecock Tribal Trustee Bryan Polite also testified, and said, “The official position of the Shinnecock Nation is, the Shinnecock Nation has never relinquished their rights to the bay.”

But when asked if the place Mr. Silva was fishing was part of Southampton Village—and not the reservation—he confirmed that it was.

“The court understands that tribal lore and tradition does not lend itself easily to the imposition of mapped boundaries, especially in dealing with the traditional Native American understanding of hunting and fishing rights, which from all accounts gave scant attention to the mapped boundaries that the European colonists relied on so heavily,” Justice Weber said in his decision.

“The world around us has changed, and this court is without the power to alter the legally established boundaries of the Shinnecock Nation or of the State of New York. Even if the court had such authority, on this record at least, no other conclusion can be drawn except that the subject fyke net was, in fact, placed not on waters or land belonging to the Shinnecock Nation, but on territory within the jurisdiction of the State of New York, acting through its DEC.”

Unless a person holds a food fish license, they are not permitted to use a fyke net larger than 40 feet.

When Mr. Silva took the eels from the net, Justice Weber said, he “clearly was maintaining, operating or using the net.”

But he said the prosecution failed to prove that Mr. Silva was ever in possession of the 98 elvers found in the net when the DEC officers confiscated it, after he was ticketed and left the scene. The prosecution also was unable to prove how or when the 247 eels in the bucket entered the net. Justice Weber dropped all charges pertaining to the possession of undersized eels.

Instead, Mr. Silva was charged only with failing to have a marine commercial fishing license and the use of a fyke net.

“I was told something like a few months of jail time and $80,00 to $90,000 in fines was possible,” Mr. Silva said in an email last week. “The state threw a lot of resources at this and only walked away with a $250 fine out of me. Considering the month-long, 250-square-mile manhunt they were looking for me, I can’t imagine the state is satisfied.”

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