Two Santa Barbara brothers accused of violating federal laws related to a no-fishing zone off San Miguel Island beat the charges in late August when a federal judge determined that the government presented insufficient evidence to prove the crime. The decision highlighted deficiencies in the vessel monitoring system (VMS) used by the National Oceanic and Atmospheric Administration (NOAA) to watch fishing boats and enforce the rules surrounding marine protected areas (MPAs), prompting an ongoing review of the system with changes likely on the way.
For longtime fishermen Jason and Shane Robinson, the decision saved them from paying more than $17,000 in fines, which is a relatively low amount compared to other penalties, in part because they were only charged with idling in an MPA too long, not for fishing there, which can bring fines of up to $140,000. But the case also revealed what they believe is an unfair culture of guilty until proved innocent when it comes to commercial fishing laws. “They threaten you based on the fact that it costs more to fight these than to accept a settlement,” said Jason. “That’s what they told me, and that’s how they did it. In my mind, this is their ATM machine. … It feels like extortion.”
The brothers were only able to fight the charges, which date back to a fishing trip they took on May 17, 2010, because attorney Rusty Brace of the Santa Barbara firm Hollister & Brace took on the case pro bono. Had he been tallying his time on this complicated matter, which he says the feds fought tooth-and-nail despite no hard evidence, the bill would have far exceeded the fines, costing perhaps as much as $80,000 when all was said and done.
Brace said that this was the first time he could find where the feds based their arguments solely on the VMS, which sends one signal per hour from every boat working the commercial groundfisheries of the West Coast to NOAA. Usually, said Brace, NOAA presents a witness or other evidence to bolster its charges. In this case, the Robinsons weren’t alerted to the fact that NOAA was going to charge them until 10 months after the alleged crime; at that point, they could not recall what they had been doing, but now believe they were probably crossing the MPA back and forth over the four- to five-hour period in question as they waited for their fishing gear to soak.
“It’s impossible to say what they did,” said Brace, which is basically what the judge determined, as well. Brace appreciates how difficult it must be for the government to watch the entire West Coast and the roughly 1,000 boats working the groundfisheries (the area close to the bottom where many fish swim), and he understands how VMS makes the monitoring somewhat possible, even if he finds the constant tracking somewhat oppressive. “It’s a great way to identify suspect behavior, but it’s not a viable way to prove a case,” said Brace. “You have to have other corroborating evidence.”
The government, meanwhile, is standing by its case. “NOAA believes it presented sufficient evidence to find by a preponderance of the evidence that the respondent committed the violations charged, but accepts the Administrative Law Judge’s finding to the contrary,” explained John Thibodeau, a communications specialist in NOAA’s Office of Law Enforcement. “Neither NMFS [National Marine Fisheries Service] nor its enforcement partners have the resources to effectively monitor the various restricted fishing areas off the California coast, so we must rely on the data provided by VMS to determine the activity of fishing vessels at sea.”
Due to the judgment, adjustments may be on the way. “NMFS is currently reviewing what changes, if any, will be required in light of the Initial Decision,” Thibodeau explained in an email. One idea, which will be discussed at the next Pacific Fishery Management Council meeting in November in Costa Mesa, is to increase the frequency of the VMS signaling to every 15 minutes rather than once an hour. The increased costs would likely be passed down to fishermen, though, who already pay about $50 a month for the VMS and could see that cost multiplied with the additional signals. “That could go up to $150 or $200 a month,” said Jason, who plans to speak at the upcoming hearing. “That’s pretty significant for us.”
Though he’s happy to have prevailed, Jason described the whole situation as “disheartening” and believes he would have been “steamrolled by the government” if it weren’t for the unpaid efforts of Brace, who has known the brothers’ father for years. “My brother and I spend a great deal of time researching the ever-changing regulations and have no intention of violating any regulations made,” said Jason. “There is no one out there who wants a healthy viable resource more then the people who depend on it to feed their family.”