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
 
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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...

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