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Oct 26, 2011 5:31 PMPublication: The East Hampton Press

DEC Charges Against Kelly And Paul Lester Dismissed In East Hampton Town Justice Court

Nov 1, 2011 4:47 PM

Kelly and Paul Lester of Amagansett were found not guilty of State Department of Environmental Conservation charges after a bench trial in East Hampton Town Justice Court on October 26. When Justice Lisa R. Rana announced that the charges were being dismissed, a crowd of about 15 of the Lesters’ supporters cheered and applauded.

On July 8, a DEC officer had cited Ms. Lester for selling clams and oysters from a self-serve cooler without a required permit. He also charged Mr. Lester, her brother, with possessing untagged fluke and porgies in excess of the legal commercial limit. In announcing her decision, Justice Rana said the prosecutor, Karen Seidler, had failed to prove either was guilty beyond reasonable doubt.

Outside the courthouse before the trial, defense attorney Daniel Rodgers said a fisherman’s prayer seeking strength in “this action that seeks to stop government intrusion into the lives of simple people who are simply trying to make a living.” Much of his case rested on what he later described as the DEC’s “sloppy work” and the fact that “it’s virtually impossible to make a living as a trap fisherman without breaking the law.” He noted that the trial came nearly 20 years after Kelly and Paul Lester’s father, Calvin, had “in effect been legislated out of” haulseining for striped bass.

Ms. Lester and a few other people wore sweatshirts bearing advice like “Eat fish,” “Eat scallops,” and “Wear Grundens” for their day in court. She had taken three fish cartons and a blue bait basket along, but they never directly came up as evidence. As the proceedings started, a stenographer double-checked how to spell “scup,” another name for porgies.

Testifying for the prosecution were Environmental Conservation Officer Richard Maggio of the DEC’s marine enforcement unit, who wrote the violations, and Susan Ritchie, a food inspector for the DEC specializing in shellfish control, who 
confirmed that Ms. Lester did not have a digger-seller’s 
permit. Although he did actually not see her sell the shellfish, Officer Maggio said, she was not permitted even to offer it for sale.

Testifying for the defense was Stuart Vorpahl of East Hampton, a longtime fisherman who for years has maintained that the colonial-era Dongan Patent, which granted unhindered access to East Hampton’s natural resources, trumps modern-day regulation of commercial fishing, particularly by the DEC. Mr. Rodgers questioned him 
about trap-fishing methods to establish that a fisherman’s haul is loaded directly into the back of a pickup from a small boat that has no clean, dry place to stash commercial tags or space for fish boxes, and thus has nowhere to process fish on the spot.

“There’s certainly no room for a desk?” he asked Mr. Vorpahl, who at first seemed puzzled by the question, then answered, “Hell no.”

Officer Maggio testified that he had knocked on the door of a house on Abraham’s Path in Amagansett after seeing coolers with a “shellfish for sale” 
sign outside. When no one answered, he went around back and saw L.J. Arceri, “a gentleman who looked like he was cutting fish.”

The officer said that two cartons of fluke, which were properly tagged for sale from Paul Lester to Gosman’s, contained a total of 140 pounds, the legal commercial limit at the time. Officer Maggio seized the remaining fish, including some in a basket, and called his lieutenant, Joseph Billotto, to see if there was a permit to sell the unattended shellfish in the coolers out front, where he had found Kelly Lester’s name. Officer Billotto told him Ms. Lester had no such permit.

Officer Maggio took the confiscated fish to Stuart’s Seafood Market in Amagansett, where he sold them in return for a check to the DEC. Mr. Rodgers said 
after the trial that the DEC would be receiving a bill for $202.75, the amount it received for the fish.

The attorney said that the house was in fact the home of Diane Lester, not her daughter Kelly, who lives next door, and that Officer Maggio’s actions at the rear of the property “in reality” constituted “illegal search and seizure.”

Mr. Rodgers said the untagged fish belonged to Jimmy Lester, Paul’s cousin, who had a tag for the 50 pounds in one carton that had fallen through a gap in a wooden pallet. The fish Mr. Arceri was filleting, using the 
blue plastic bait bucket, were for dinner, according to Mr. Rodgers.

“The DEC did not play by the same rules as everybody else,” he said later in the week. “They’re the only police agency that I know of that acts as police, prosecutor and judge,” even negotiating the number of violations as they write up the tickets. “They act like bullies: ‘If you don’t go along with this I’m going to hit you with 10 more,’” Mr. Rodgers said. “It’s crazy, these guys never ever have to go to trial.”

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Shuck Yea! What a bogus story.
By bchgrl83 (52), Westhampton Beach on Oct 26, 11 7:43 PM
Thank God! The DEC is an out of control, powerful governmental agency with no elected officials to vote out of office when they step over the line.
By bigfresh (4546), north sea on Oct 26, 11 7:52 PM
So if they didn't possess or sell them, how could they bill the DEC for them? Sounds like they just won a popularity contest, not a trial.
By lucky and aware (44), Speonk on Oct 27, 11 11:12 AM
how could there be reasonable doubt? the cooler and self serve sign are still there. drive by it all the time.
By fishy (91), East Hampton on Oct 27, 11 3:53 PM
Why would the DEC be selling Lester's fish to Stuart's Fish Market which it had confiscated? I would think it would have to held in evidence. Something sounds fishy.
By BruceB (142), Sag Harbor on Oct 27, 11 5:07 PM
1 member liked this comment
How are you going to keep fish as evidence?
By EHDiva (7), East Hampton on Oct 28, 11 10:52 PM
Spacemaker bags?
By Mr. Z (11558), North Sea on Oct 29, 11 12:05 AM
1 member liked this comment
freezer!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
By TO BAD (24), hampton bay on Oct 30, 11 1:15 AM
Should it not be TOO BAD? Good call on the freezer though.....
By ICE (1214), Southampton on Nov 3, 11 9:19 AM
finally a fisherman wins!!!!!!!!!!!!!!!!!!!!!!!!!!



By TO BAD (24), hampton bay on Oct 30, 11 1:16 AM
I "Like" it, but...
By Mr. Z (11558), North Sea on Oct 30, 11 3:25 AM
Hot Tubs,SALE, Southampton Village, SouthamptonFest weekend