If You Fish, You’re A Victim

Gloucester, MA

Photo: Boats in Gloucester harbor

By now, everyone who follows the trials and tribulations of New England’s fisheries has heard of “The Codfather,” Carlos Rafael, who recently pled guilty to falsifying landings records for hundreds of thousands of pounds of fish that was illegally harvested by Rafael’s vessels, fish that included some of the northeast’s most valuable, and most overfished, species.

Rafael owned so many boats, and harvested so many fish, that he did real harm to the New England groundfishing industry. As reported in the Cape Cod Times,

“Cape fishermen in the Georges Bank Fixed Gear Sector once heavily relied on cod and still control a lot of Georges Bank cod quota. [Eric] Hesse [a Barnstable, Massachusetts fisherman] blamed Rafael’s fleet of draggers for wiping out a lot of the cod stocks. When there was no cod left for their small boats to catch, Hesse said that they had to fish for less valuable species and lease their cod quota to larger vessels like the Rafael fleet and their sector. But Rafael and his sector continually drove the price of their cod quota down, asking for below-market rates even as they were illegally circumventing the quota system by catching cod and labeling it as haddock.”

The damage done was severe enough that affected fishermen are asking that the penalties assessed against Rafael to be somehow reinvested in the groundfish fishery. John Pappalardo, who heads the Cape Cod Commercial Fishermen’s Alliance, wrote a letter to Undercurrent News, a commercial fishing publication, in which he said

“Carlos Rafael pled guilty to running a massive criminal enterprise that stole from honest fishermen and undermined the fisheries as a whole…

“Let’s put his money to work fixing the fishery he badly damaged…

“The fish quota he owns should be redistributed to all the fishermen he harmed…

“Honest fishermen have not been playing on a level field with the likes of Carlos. We need to make sure they aren’t put in that position again.

“To do that, we must invest some of his illegal gains in fishing’s future by improving dockside monitoring, expanding electronic monitoring and increasing fishermen-scientist collaborations to get better fish counts…”

Certainly, that’s part of the answer. At the same time, up until he was caught, Rafael made a lot of money through his illegal operation. During just one six-month period, he was reportedly paid $1.2 million dollars for illegally caught fish. His net worth, when he was arrested, was allegedly about $175 million. That kind of money, some of which has already been smuggled out of the country, can easily tempt a fisherman to step outside the law, and accept any penalty as a cost of doing business.

Thus, it is important that the penalty truly fits the crime, is harsh enough to dissuade would-be violators and, when possible, provides some sort of compensation for those hurt by the illegal action. The Conservation Law Foundation (CLF), which focuses on issues affecting New England, recently addressed all of those considerations when it filed a victim impact statement with the court deciding Rafael’s fate.

The language of CLF’s victim impact statement emphasizes the extent of, and the damage done by, Rafael’s actions, and asks that the court “impose criminal penalties that are just and commensurate with the significant economic, reputational, and environmental damage Rafael inflicted on the…victims through his extensive crimes, including full forfeiture of all the vessels identified by the Department of Justice and NOAA as having played a part in this criminal enterprise.”

It notes that Rafael’s victims include New England groundfishermen, the greater groundfishing community that depends on heathy fish stocks, conservation and recreational fishing organizations that have worked to establish sustainable groundfish populations, participants in the fishery management system that had their efforts frustrated by Rafael’s actions, as well as the government, in its role as trustee of the public’s interest in the nation’s marine resources.

The victim impact statement makes a compelling argument as to why “it is critical that his term of imprisonment and other penalties send a strong signal that conduct like Rafael’s will not be tolerated in our nation’s fisheries.” It notes that, pursuant to federal statute, “restitution is mandatory in any case where a victim has directly and proximately suffered a pecuniary loss as a result of a crime,” and asks that the court “create a process by which fishing operations that believe they have been directly harmed by Rafael’s illegal actions can make a claim for restitution.”

CLF also requests that some of the proceeds from the sale of Rafael’s vessels be used to fund better monitoring of New England fisheries, observing that “Greater monitoring coverage would not only help to deter and identify illegal fishing operations like Rafael’s but also improve data collection and scientific models that have been compromised by Rafael’s illegal behavior.”

The victim impact statement makes it clear that Rafael’s punishment should be more than mere retribution for the harm that he has done; it should also provide a mechanism that will help out those harmed by Rafael’s actions, and dissuade those who might otherwise be tempted to commit similar crimes at some later date.

Hopefully, the court will be swayed by CLF’s arguments and, hopefully, similar considerations will guide the punishment of others who violate fishery laws. While Carlos Rafael may well have perpetrated the greatest fishery-related offenses, in terms of pure dollar value, ever recorded, there are plenty of other crimes committed on a regular basis, which deserve a similar disposition.

Roughly ten years ago, state and federal prosecutors announced the completion of a 4-year-long investigation into illegal striped bass landings in the Chesapeake Bay. Fifteen individuals and two fish wholesalers were convicted in a scheme that involved wholesalers falsely reporting the quantity of striped bass purchased from complicit commercial fishermen.

According to a Justice Department press release, “By under-reporting the weight of fish harvested, and over-reporting the number of fish taken, the records would make it appear that the fishermen had failed to reach the maximum poundage quota for the year, but had nonetheless run out of tags. As a result the state would issue additional tags that could be used by the fishermen allowing them to catch striped bass above their maximum poundage quota amount.”

600,000 pounds of illegal striped bass, worth about $3 million, were landed before charges were brought.

That level of overfishing, combined with the inaccurate fishery-dependent data generated by the falsified records, would have impaired regulators’ ability to properly manage the striped bass stock, and done harm to everyone who participates in or otherwise benefits from the striped bass fishery.

I represented the New York chapter of a national angling organization when the prosecutions were announced. In that role, I submitted a victim impact statement to the court hearing the matter. Other persons did the same.

It’s impossible to know what impact the victim impact statements made, but it was heartening to learn that in addition to the prison terms and fines imposed on the poachers, many of which were substantial, the court required the violators to pay more than $375,000 in restitution, which was directed to the National Fish and Wildlife Foundation’s Chesapeake Bay Striped Bass Restoration Account, as a way to help offset some of the damage done.

And no one should believe that such abuses are limited to the commercial fishery. In September 2017, two Montauk, New York party boats, carrying recreational anglers, were boarded by state enforcement agents, who found large numbers of illegal black sea bass and other fish on board.

No, neither vessel was accused of landing illegal fish in “Codfather” quantities. Not even close.

But in a recreational fishery already suffering from excessive landings, which are causing regulations to become more restrictive every day, the quantities found can still add up into a number big enough to hurt.

It is more difficult to hold the vessel operators responsible in recreational fisheries. However, if a court does hold either or both of the Montauk operators culpable, it would be nice to see them pay some sort of restitution, too—perhaps directed toward funding more black sea bass research at the state or federal level.

Because marine fish are a public resource, any time a poacher violates fishery laws, that poacher is stealing from all of us.

Whether we’re commercial fishermen, recreational fishermen, fish dealers, restaurant owners, tackle dealers, consumers or just citizens interested in maintaining a healthy, intact marine ecosystem, when someone violates fishery laws, we’re all victims.

And we should demand that real justice is done when poachers are caught.

About Charles Witek

Charles Witek is an attorney, salt water angler and blogger. Read his work at One Angler’s Voyage.

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