Over the drone of an outboard motor and the sound of water slapping the bottom of the Lesters’ green skiff, Kelly Lester of Amagansett half shouted, “I’d like to prove that Paul and I did nothing wrong.”
Less than an hour had passed since she and her brother stood before Justice Lisa R. Rana in East Hampton Town Justice Court on July 8 on charges that they had broken state law and sold fish illegally.
Mr. Lester steered the boat standing as it headed for one of two traps to be lifted east of Napeague Harbor. Ms. Lester sat amidships in orange oilers. Louis Arceri, known as L.J., sat hunched in the bow behind stacks of plastic bushel baskets and the three dip nets they would use to bail fish from the box portion of the traps.
Arguably the oldest fishing method in these parts, the traps are net fences hung from white oak stakes. The leader section of net runs offshore and leads the fish through an inner pound to the box where they collect. The box is like the cod end of a dragnet. It is net all round including the bottom, which can be raised. The system works by taking advantage of a school’s natural instinct to head offshore when it meets an obstacle, in this case the net fence.
A serious legal obstacle was what the Lesters faced earlier that day, one that brought a number of supporters to the courthouse including Dan Rodgers from Riverhead, their lawyer, fellow baymen, and the Rev. Steven E. Howarth of the Amagansett Presbyterian Church, who led the group in prayer. The prayer included a petition for the fair enforcement of fishing laws.
Mr. Rodgers said that what happened on July 8 was not only unfair, but a violation of civil rights, and he intended to prove it. Mr. Rodgers had defended the Lesters last year when Paul Lester and his brother, Dan Lester, accepted a plea arrangement with the state prosecutor stemming from two felony and five misdemeanor charges for taking fish out of season and without commercial licenses back in 2008 and 2009.
“This time they’ve gone too far, with Kelly in particular,” Mr. Rodgers told supporters. “She is trying to make a living, a mother, and she’s charged with a crime for having a self-serve clam stand.”
“People around the country are trying to make ends meet, an honest living. We have every intention of going to trial. We will not be interested in a plea bargain. Either this is dismissed or we’ll take it to the Supreme Court of the United States,” the lawyer said before entering the court to ask that the case be set for trial as soon as possible.
On July 8, an enforcement officer from the State Department of Environmental Conservation wrote three summonses. One was to Ms. Lester, alleging that she was selling shellfish without the proper permit. She keeps a roadside clam and egg stand in front of her house on Abraham’s Path in East Hampton.
Two other tickets were written to her brother Paul Lester for allegedly having an untagged carton of fish and being in ossession of fish beyond the daily quota. Neither Lester was home at the time the summonses were written. Ms. Lester said she was out picking up her young son.
According to Mr. Rodgers, the conservation officer seized the untagged box of fish from the Lesters’ backyard and took it to Stuart’s Seafood Shop nearby, where it was sold — the check made out to the state.
Mr. Rodgers said on Monday that the D.E.C. officer had searched the Lester properly illegally. “If he’d waited they could have explained. Two boxes had the proper tags. The third box belonged to another fisherman who has a legal fishing license. The tag was on the ground next to the box. He took the third box, assumed they were Paul’s, and cited him for being over the limit.”
The lawyer said that state conservation police had extraordinary powers to seize fish thought to be illegally harvested or for sale contrary to the law. However, they did not have the right to search private property without probable cause. “It’s a due process question,” Mr. Rodgers said.
He said that while at Stuart’s, the conservation officer was shown that the tag had someone else’s name on it, but he was reported as saying, “it’s too late.”
According to the Lesters’ lawyer, the officer added to the box that had been found nearby in a separate container. Ms. Lester said they were fish that a friend was filleting for her dinner. “These were not fish for commercial consumption. They were not going to the market.”
The fish caught in the traps after the arraignment last Thursday were going to market, however.
The trappers ducked as the skiff entered the spider web of lines that hold the trap stakes in place. The skiff was brought broadside to the box section. The clove hitches that held up the working side of the net box were untied from opposing stakes. That section of net was brought into the boat. The three trappers hauled it toward the surface along with its catch.
The first trap held a number of mackerel and a few dozen sea robins, orange wings spread wide. There was a fluke that Mr. Arceri put in a basket where he kept a few fish to take to people at the senior center.
Mr. Lester said the trap had caught a few butterfish in recent days, a sign that “things were moving,” the season was progressing through its normal rotation of species. He said it was a mystery why bluefish were dying in the trap. Unusual. A few skates flapped around the box. “We could wing ’em,” Ms. Lester said, meaning harvest them for their wings, worth about $1.50 per pound. They were tossed over the side.
About a bushel of porgies was taken before the floor of the box was lowered, its side lifted, clove hitches retied. On to the next.
What a difference a trap makes. The second trap was west of the first by several hundred yards. Once the boat was broadside to the box, Mr. Arceri let out a cry. The box was filled with porgies. Let the bailing begin. Once the daily limit was reached by a conservative read of the bushel baskets, the remaining porgies were left in the trap and the skiff headed back to the Napeague launching ramp and the trucks that would take the fish to market.
En route, brother and sister discussed what appeared to be confusion at the arraignment. Justice Rana had told their attorney and the prosecutors that the original ticket was defective, and an attempt had been made to cross out and correct the charges as originally written. She told them a corrected “long-form” version had been supplied to the court.
Mr. Rodgers later explained that the original tickets had charged the two with misdemeanor crimes, but that the long-form version of the summons listed the infractions as merely violations of state law. Mr. Rodgers said he thought it odd that no one from the D.E.C.’s enforcement arm had attended the arraignment — “They always appear.”
On Tuesday, a spokesman for the D.E.C. confirmed that the ticketing officer had entered the Lesters’ property and “walked around back to observe a building designed to process seafood,” where boxes of fish were found. A man was there filleting fish and identified the boxes of fish as belonging to Paul Lester. The number of fish was over the limit, he said. The spokesman confirmed the reduction in Ms. Lester’s charges because she later obtained the proper permit. That Paul Lester’s alleged infractions were downgraded could not be confirmed, however.
Mr. Rodgers said he intended to defend the fishermen against the original criminal charge. “There’s no doubt they’re out to harass the Lester family. It’s horse hooey,” Mr. Rodgers said.