Caught in Net Civil Penalties under Marine Mammal Protection Act, 0319 SCBJ, SC Lawyer, March 2019, #34

• Author: By Charles E. Hill.
• Position: Vol. 30 Issue 5 Pg. 34

Caught in the Net Civil Penalties under the Marine Mammal Protection Act

Vol. 30 Issue 5 Pg. 34

South Carolina BAR Journal

March, 2019

          By Charles E. Hill.

         C. P. Mincey, a retired farmer, enjoyed fishing in the Atlantic surf in front of his beach house at Garden City. He frequently used a gill net, a vertical curtain of nylon weave suspended in the water by a float line on the top and a lead line on the bottom. Left deployed overnight, it reliably captured pan fish such as blues, spots, and mullets. In the morning, Mincey would retrieve the catch from the net, tossing unwanted species like small sharks back into the ocean. He would clean the fish and fry them with his propane cooker. Good eating for his family and friends.

         Shortly after daybreak on November 3, 2013, Mincey descended the steps from his house to check the net. To his surprise, a small dolphin was in it, with a piece of netting caught on its dorsal fin. The dolphin was dead. With the assistance of his grandson, Mincey rolled the carcass out of the net, and it floated away in the ocean. Then they gathered up the fish.

         A beachcomber, walking his dog along the shore, happened by. Having some knowledge about dolphin Strandings, he made a call on his cellophane to a friend, who in turn called the South Carolina Marine Mammal Stranding Network. The chain of notifications proceeded to the South Carolina Department of Natural Resources (DNR) and the National Oceanic and Atmospheric Administration (NCAA). The address of Mincey's beach house was reported to these authorities.

         Early that afternoon, armed agents from NOAA and DNR appeared at Mincey's house. They questioned him about the incident, took a signed statement from him, and seized—over his objection and without a warrant—his gill net. At about the same time, a dead dolphin washed up on the beach approximately a mile south of Mincey's house. Lacerations on the carcass were consistent with entanglement in a net.

         Two months later, Mincey received a "Notice of Violation and Assessment of Administrative Penalty" in the mail from NOAA. It charged Mincey with violating the Marine Mammal Protection Act by lethally "taking" a marine mammal. "Specifically Respondent caused the death of a bottlenose dolphin with a gill net, in violation of applicable law." Mincey was being assessed a civil penalty of $6,500. In essence, he was given three alternatives: pay the fine (NOAA offered a 10% discount if he paid within 30 days); ignore the notice, in which event a judgment would be entered against him; or contest the violation in a hearing before an administrative law judge. Mincey opted for a hearing.¹

         Marine Mammal Protection Act

         Responding to public concern over the welfare of certain species, Congress enacted the Marine Mammal Protection Act (MMPA), 16 U.S.C. § 1361 et seq., (1972). Seals were being hunted for their fur; thousands of dolphins were dying each year as incidental tuna fishery bycatch, and whales were still being harvested commercially. The legislation cited findings that "certain species and population stocks of marine mammals are, or may be, in danger of extinction or depletion as a result of man's activities," and they "should be protected and encouraged to development to the greatest extent feasible commensurate with sound policies of resource management."²

         The MMPA makes it unlawful for "any person subject to the jurisdiction of the United States or any vessel or other conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas."³ "Take" is defined as "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture or kill any marine mammal."⁴

         "Knowing" violations of the act may result, upon conviction, of a fine of up to $20,000 and/or imprisonment for one year.⁵ Otherwise, a civil penalty of up to $10,000 may be assessed for any violation.^[6] Recognizing the possibility of inadvertent takings, the statute provides a safe harbor for marine mammals "taken incidentally in the course of commercial fishing operations."⁷ However, recreational fishermen are allowed no such exemption.

         Wrong place at the wrong time

         As applied to these facts, this statutory scheme raises questions about the permissible reach of civil penalties within the concept of due process, and the wisdom of pursuing a case against a recreational fisherman in the context of the law's stated purpose.

         The civil violation portion of the law is, in essence, a no-fault provision. Mincey's use of the gill net satisfied applicable provisions of the South Carolina Marine Resources Act and salt water fishing regulations.⁸ Although he deployed the net overnight, he testified at the hearing that he checked the net periodically, was within 500 feet of it, was within hailing distance, and that he maintained visual contact as best he could during the night, all in compliance with the law.⁹ The statute and regulations do not prohibit nighttime use of a gill net. He was not charged with any violation of state law.

         Further, Mincey did nothing to attract a dolphin. There was no bait in his net. He had no purpose or intent to ensnare a dolphin. He could not have foreseen that this would occur. He testified that in some 40 years of fishing at Garden City, he had never seen a dolphin close to the shore.

         The MMPA does not make the violation of a fishing regulation an essential element of a civil charge. All the government has to prove is that there was a "taking." Accident, inadvertence, lack of intent, and coincidence are inconsequential. Under this statute, if a marine mammal happens into a legally-set net and is captured or dies, the owner is liable. Compliance with state law, best practices and common sense are no defense.

         Of course, NOAA could have opted to bring a criminal case against Mincey. But that would have required proof that he "knowingly" violated the law.¹⁰ By pursuing a civil charge instead, the government avoided a jury trial and could take advantage of relaxed procedural rules.¹¹

         The Endangered Species Act (ESA), enacted a year after the MMPA, contains a similar definition of "take."¹² Under the ESA, the term means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."¹³ The act contains an exception for a taking that is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity"¹⁴ However, the statute requires a permit for any anticipated incidental taking.^[15]

         There are also "safe harbor agreements"^[16] and "no surprise"¹⁷ rules under the ESA.¹⁸ This act is more complex and far reaching than the MMPA, and a discussion of its provisions is beyond the scope of this article. It is pertinent to note, however, that the ESA can excuse an incidental take occurring in the context of lawful activity¹⁹

         Possibly because cases involving civil penalties are rarely significant enough to attain appellate review, there is little reported case law exploring whether it is constitutionally permissible to make such an assessment based on no- fault liability.²⁰

         In Babbitt v. Sweet Home Chapter of Cmty for a Great Oregon, the court considered the definitions of "take" and "harm" under the ESA.²¹ The majority held that harm can include "significant habitat modification or degradation where it actually kills or injures wildlife."²² Concurring, Justice O'Connor raised the concepts of proximate causation and foreseeability²³ Dissenting, Justice Scalia observed that the regulation did not take into consideration unforeseeable and unintended consequences.^[24]

         Setting a gill net in the surf, as concerns dolphins, hardly arises to the level of "significant habitat modification or degradation."²⁵ It is a completely passive activity. Based on his observation of dolphin behavior during several decades of fishing in the area, Mincey could not have foreseen that one of these mammals would encounter his net.

         Given the opinions in Babbit, whether knowledge is required to support the civil charge of a "take" is less than clear. The NOAA's interpretation of the term, as demonstrated in the case against Mincey, is so broad that wholly innocent activities can result in a penalty.

         A potential fine of $10,000²⁶ is not an insignificant sum. To Mincey, the amount at stake, $6,500, was substantial, as it would be to many recreational fishermen. Environmental laws proliferated in the 1970s, and it is not known how many of them incorporate civil penalties and procedural limitations such as those found in the MMPA.²⁷ The facts of this case call into question whether such provisions go too far in seeking to penalize innocent, even legal, conduct.²⁸

         No person shall be deprived of "life, liberty, or property, without due process of law."²⁹ Reaching into someone's pocket for $6,500 when the person has done no wrong and is guilty of only being in the wrong place at the wrong time, begs the constitutional question. While the parameters of substantive due process are elusive, surely an effort to levy an administrative penalty on the basis of a coincidental encounter puts that concept in play. Mincey's trial counsel made repetitive due process objections, all of which were overruled by the administrative law judge (ALJ).

         Lethal taking?

         While NOAA did not have to prove that Mincey violated any fishing laws, it did have to establish a "lethal taking." It had to convince the ALJ that the dolphin was alive when it encountered the net and died as a result. NOAA went to considerable lengths to sustain this burden.

         The government sought to prove that the beached dolphin, found the same day and a mile down shore, was the same one that Mincey had flushed from his net. A NOAA research wildlife biologist conducted a necropsy and testified this specimen died of drowning³⁰ such as would occur with entrapment in a net. The post mortem showed lacerations consistent with net entanglement. These lacerations bled; if the dolphin had been dead when it entered the net, there would not have been active hemorrhaging.

         To further this theory, NOAA relied on a "drift analysis." A Coast Guard employee had developed a computerized model which purported to predict how a dead human body would drift in the ocean and whether it would sink or come ashore. On the day of the incident, a Coast Guard lieutenant advised the investigating NOAA agent of this study. Although neither the employee who developed the model nor the Coast Guard lieutenant were called as trial witnesses, the prosecuting NOAA agent relayed this information to the court as supporting the claim.

         The ALJ was not persuaded. In a thorough 24 page order, she rejected this analysis. The computer program was modeled on a human body not that of a dolphin. "The anatomical structure of a human being and a dolphin are vastly different, and presumably these differences would yield different results when interacting with water currents."^[31] While she allowed hearsay and unauthenticated expert opinion into evidence, as permitted by the applicable procedural rules, in the order she chided the NOAA for not producing these witnesses in person. Also notable was that an eyewitness at the scene of Mincey's net that morning estimated the dead dolphin to be six feet in length; the necropsied dolphin was seven and a half feet long.³²

         The order concluded, "The preponderance of the evidence does not establish that Respondent engaged in the lethal 'taking' of a marine mammal..."

         This case demonstrates the difficulty of obtaining a clear judicial resolution of the substantive due process issue. The decision point was failure of the burden of proof, a routine disposition. Probably few civil penalty charges reach the trial stage, so an opportunity to have a ruling and appellate review seems remote. With little threat of a judicial reprimand, NOAA can impose civil penalties with impunity if it chooses to do so, and fishermen put a net in the surf at their peril.

         While Mincey was exonerated, the wisdom of this undertaking is questionable. With no evidence of misconduct, a minimal fine would have been sufficient. Mincey said afterwards he would have paid $200 just to be done with it. But, according to Mincey's counsel, NOAA refused to negotiate from the $6,500 assessment.³³

         To try the case, NOAA dispatched two attorneys, one from St. Petersburg, Florida, and another from Maryland. The ALJ came from the Environmental Protection Agency in Washington. The hearing was held at the Georgetown County Judicial Center and took two days. The government called five witnesses. It is difficult to understand this effort and cost to prosecute what was less than a misdemeanor.³⁴ Based on his research, author William Walker estimated that the government spent $25,000 to prosecute the case. Private defense attorneys might have cost Mincey as much as $35,000.^[35]

         The enactment of the MMPA was instigated by concern of the danger posed by commercial activity. Large scale fishing and hunting were threatening the very existence of marine mammals. Recreational fishermen, even armed with a gill net, are hardly a menace to species survival.

         At the time of the incident, Mincey was 86 years old and had lived an exemplary life. A World War II veteran, he had risen from humble origins to become a prosperous farmer and businessman. He was a well-respected citizen in his community and active in his church. But this charge made him feel that he was being branded a criminal and that his good name was tarnished. His bona fides would not be relevant if there were grounds for a legitimate criminal charge. But for a chance, inadvertent encounter? As Walker phrases the question, "Is anyone home at NOAA?"^[36]

         Mincey was supported throughout the ordeal by family and friends from his hometown of Nichols, the tiny Marion County community now known for the devastating floods of 2016 and 2018. When the matter was ended, the "Nichols crowd" held a celebration. Mincey's grandson, John Lane, presented Mincey with a sign to use the next time he sets a gill net in front of his beach house: "Dolphins go around."³⁷

         Charles Hill retired from Turner, Padget, Graham & Laney in 2013 after 39 years with the firm. His practice included defending medical and legal malpractice cases.

---

Notes:

[1] South Carolina author William S. Walker tells the story of that hearing in his new book, The Farmer and The Dolphin, subtitled "How A WWII Navy Vet and a Country Lawyer Whipped the U.S. Government in Court. William S. Walker, The Farmer and The Dolphin (Dog Ear Publishing, 2018). Walker weaves excerpts from the hearing transcript with behind-the-scenes observations of the defense team to create an entertaining account of this David vs. Goliath confrontation.

[2] 16 U.S.C. § 1361(1), (6) (2012).

[3] 16 U.S.G. § 1372(a)(1) (2012).

[4] 16 U.S.C. § 1362 (13) (2012). Marine mammals include whales, porpoises, seals, sea lions, and manatees, as well as dolphins.

[5] 16 U.S.C.§ 1375 (a)(2)(b) (2012).

[6]

Id. at (a)(1).

[7] U.S.C. § 1371 (a)(2) (2012).

[8] S.C. Code Ann. § 50-5-505 (A) (2018).

[9]

Id.

[10] 16 U.S.C. § 1375(b) (2012).

[11] 1115 C.F.R. § 904.251 (2018) provides, " All evidence that is relevant, material, reliable, and probative, and not unduly repetitious or cumulative, is admissible at the hearing. Formal rules of evidence do not necessarily apply to the administrative proceedings, and hearsay evidence is not inadmissible as such." Citing this regulation, the administrative law judge freely admitted hearsay and allowed introduction of unauthenticated expert testimony.

[12] U.S.C. § 1532 (19) (2012).

[13]

Id.

[14] 16 U.S.C. § 1539 (a)(1)(B) (2012).

[15]

Id. at (a).

[16] Final Safe Harbor Policy, 64 Fed.Reg. 32717 (Jun. 17, 1999).

[17] Habitat Conservation Plan Assurances ("No Surprises") Rule, 63 Fed.Reg. 8859 (Feb. 23, 1998).

[18] 50 C.F.R. §§ 17.22(b), 17.32(b)

[19] Endangered Species Act Incidental Take Permit Revocation Regulations, 69 FR 71723 (December 10, 2004).

[20] In a notable criminal case arising under the MMPA, the court held that a fisherman's act of firing rifle shots into the water behind porpoises, in an effort to divert them away from his fishing line, could not be the basis for a conviction. The conduct was not significant enough to constitute a criminal "taking." U.S. v. Hayashi, 22 F.3d 859 (9^th Cir. 1993).

[21]

Babbitt v. Sweet Home Chapter of Comty, For a Great Oregon, 515 U.S. 687, 115 S.Ct. 2407 (1995).

[22]

Id. at 690. The species of concern were the red-cockaded woodpecker and the northern spotted owl.

[23]

Id. at 704.

[24]

Id.

[25]

Id. at 691.

[26] 16 US.C.§ 1375(a)(1) (2012).

[27] At the time of the MMPAs enactment, no federal wildlife law had used such a broad understanding of "taking." Marc. A. Yaggi, United States v. Hayashi: Taking Aim at the Marine Mammal Protection Act, 14 Pace Envtl. L.Rev. 409, 416 (1996) (discussing the lack of the broad understanding of "taking" at the time of MMPAs enactment).

[28]

Id.

[29] U.S. Const, amend. V.

[30] 16 U.S.C.§ 1389 (b)(1) (West law through PL. 115-281).

[31] Initial Decision and Order, In re Charles Mincey, Jr., U.S. Department of Commerce, National Oceanic and Atmospheric Administration, Docket No. SE 1305037, Jan. 21, 2105, p. 21.

[32] On the second day of the trial, the prosecuting NOAA attorney voluntarily admitted to the court that the NOAA agent had no authority to seize, without a warrant, Mincey's gill net. As a result, the ALJ struck the net and all testimonial references to it from the evidentiary record. While the net itself was not a crucial bit of evidence, this concession did nothing to enhance the government's case.

[33] Factors the NOAA is to consider in assessing a civil penalty include the "nature, circumstances, extent, and gravity of the alleged violation; the respondent's degree of culpability, any history of prior violations, and ability to pay." 15 CFR Section 904.108.

[34] To try to find out why the government chose to pursue this seemingly insignificant case to the ultimate extent, Walker sought to interview the individuals involved—the government's lead trial counsel, the NOAA and DNR agents who initiated the charge and testified at the trial, and the biologist whose testimony sought to prove that the dead dolphin found in Mincey's net was the same one that later floated ashore. All either declined to be interviewed, or were made unavailable by the agency. Walker also submitted a list of fourteen questions to NOAA's Office of Law Enforcement. It declined to answer them.

[35] William S. Walker, The Farmer and The Dolphin, 162 (Dog Ear Publishing, 2018)

[36]

Id. at 146

[37] If NOAA's purpose was to make an example of someone, it picked the wrong guy. Mincey's son in law, LaFon LeGette, was an experienced trial attorney; he and Alan Berry handled the case without charge. Mincey's nephew is a writer who recognized a good story when he saw one. Bill Walker is a journalist, scholar, aviator, outdoors man and farmer. After a career with the Stars and Stripes in Europe, arising to the role of worldwide executive editor, he returned to South Carolina. His books include Doom the Little Pee Dee: Paddling South Carolina's Legendary Blacfeiuater Riuer, and Alaska Highway Flight Log: South Carolina to Fairbanks in a 1956 Cessna. These titles and The Farmer And The Dolphin are available via www.wswbooks.comg

---------