Sunday, April 2, 2017
Owning It
Put-in, 3 loons, 8 red-breasted mergansers, 5 long-tail ducks, Welch's Point, 13 buffleheads, 10 brants, Gulf Pond, 8 red-breasted mergansers, 30 buffleheads, 2 osprey, 2 great blue herons, 2 great egrets, 20 Canada geese, Indian River, great egret, plastic garbage can, shopping cart, milk crate, 6 Canada geese, 1 Canada goose on nest, bunch of red-wing blackbirds, 1 osprey.
A calm enough day, at least to start out. The sound is old glass smooth - rippled but reflecting the colors of the sky, and birds can be seen quite far away. Five clam boats work their dredges in their nearest allotted beds not too far out from shore. In the quiet, the engines thrum at the low throttle setting used for dredging.
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| loons going dramatic |
I see three loons before getting to Welch's Point, their colors becoming more dramatic as spring comes. Just short of the point, five birds identify themselves with the now familiar call of the long-tailed duck. They too are changing colors, although in the reverse of other waterfowl, they are brilliantly colored in winter and are going more drab at this time. After the point, I find buffleheads and brants, about a dozen each.
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| long-tails going drab |
The timing of the tide makes Indian River possible and I head that way, almost another two miles, half here in the sound and half in Gulf Pond. The backed up flood tide squirts me through the gap created by the narrow railroad bridge and I stop to retrieve a plastic garbage can, filling it while I am at it.
I told my friend, P, that I had not found my artistic rhythm, yet, and that I was a bit surprised that it was taking more time and effort than I had thought it would. Perhaps it was that I did not own my place of work, that I was just visiting. Today, I remove a canoe load of plastic trash from the Indian River. It is not much, yet, but now I own a piece of this place. But, it is not ownership in the dry and often mean-spirited and spiritless legal sense, whose purpose is not much more than taxation, trespassing, and development. That is a one-way ownership, an owning of commodity. I begin to own the Indian River through a small act of stewardship. And stewardship is not a one-way deal, not at all, because in this contract, the Indian River now owns a piece of me. Perhaps, that is what has been missing.
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| First goose nest of the spring - in the phragmites of the Indian River |
Monday, February 27, 2017
Its not about the grouper it wasnt even square Yates v Feds
A short summary of what happened is as follows. Mr Yates and and his crew were fishing for Red Grouper offshore when his vessel was boarded by a Florida Fish & Wildlife officer. The officer had been deputized to operate in Federal waters where the vessel was located. The officer found some of the 1700 pounds of Red Grouper frozen in the hold were undersized. 72 of them to be exact.
I just want to interject a couple of notes here regarding some of Mr. Yates defense arguments. He alleges that the officer did not follow Federal statutes (50 C.F.R. § 622.2) regarding how to measure fish. I will save you some of the pain of grinding through the document, and now you will know how to measure a fish.
The second argument he tendered is fish when frozen, which is critical in the hot Florida temperatures, are shorter than when thawed. I have talked with local fishermen, and they agree. Not in exactly how much smaller, but all say a frozen bent fish is hard to measure in the first place.
This in the end, is also no longer important either. To continue the story, 72 undersized fish are put in a container and Mr. Yates is ordered to retain them until he reaches port for inspection by the National Marine Fisheries Service. Before returning to port Mr. Yates ordered the crew to dump the fish and replace them with fish of nearly the correct size. Are you ready?
Most of us have seen The Deadliest Catch on TV. They use a handheld gauge to measure the crab's shell. When you watch them sorting a catch, they can spot the obviously large ones and they go straight to the tank. The questionable ones get measured. I think in every large haul in the quest to get things done quickly occasionally a few that are slightly undersized will get through. I also think the phrase "Close enough for government work" is in play."
When the boat reaches port the container has only 69 slightly undersized fish. Three are missing. A crew member later admits that sequestered fish had been dumped overboard and replaced. This is the real start of the story.
Like the crab fishermen, if you you're caught with undersized fish, you get a penalty. It's a civil matter like a parking ticket. And in this case Mr. Yates was cited and penalized. The matter was put to bed.
Three long years later Mr. Yates was charged by Federal Prosecutors under, hold your breath now, 18 U.S.C. 1519 - DESTRUCTION, ALTERATION, OR FALSIFICATION OF RECORDS IN FEDERAL INVESTIGATIONS AND BANKRUPTCY, TITLE 18 - CRIMES AND CRIMINAL PROCEDURE, CHAPTER 73 - OBSTRUCTION OF JUSTICE, SEC. 1519 - DESTRUCTION, ALTERATION, OR FALSIFICATION OF RECORDS IN FEDERAL INVESTIGATIONS AND BANKRUPTCY, which reads as follows:
"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both." The highlighted words "Tangible Object," that's the three missing Red Grouper.
This law is more colloquially known as the Sarbanes–Oxley act and or Sarbox. The section of the law above is known as the anti-shredding provision. This was legislation that arose out of the collapse of Enron, Tyco Int'l, Worldcom and others. In simple words the intent of this piece of legislation was to make it illegal to shred or destroy documents, computer records and similar materials that were required for a Federal investigation of a corporation's activities. I don't know about anyone else, but the intent seems clear, and I can't see how at any practical level that it can be construed to now apply to a fisherman and some missing grouper.
Mr. Yates has two other Federal charges added to the above, goes to court, and loses on two of three charges. The judge buys the Federal Prosecutors argument that a "tangible object" as described in the Sarbanes–Oxley act can be a fish. Since a fish is now a tangible object, and it was destroyed by dumping it overboard, Mr Yates loses the case and is sentenced to 30 days in prison. It could have been much worse, the penalty can be up to 20 years in prison. He appeals his conviction and now the Supremes get to decide what a "Tangible Object" really is.
One of the other defences Mr. Yates argues is "Lack of Fair Notice." What this means is there is no way he could have reasonably, or possibly known that his act of discarding the said three grouper was a Federal crime as it was applied to Sarbox. I certainly didn't know this was possible, and I think few if any readers know this either.
This court case and conversation is in part about the subject of "Over criminalization." Today there are over 4500 Federal laws governing criminal behavior. Add to this the about 300,000 criminal Federal regulations. These are estimates because of the difficulty involved in even trying to count them. Mix well, and add a dash of Sarbox out of context. You have just provided Federal Prosecutors with almost limitless ways to make anyone they want a criminal. The application of the Sarbanes–Oxley act anti-shredding provision is the icing on what could be a very onerous cake for the public.
The Government's case is the words "Tangible Object" means anything solid, and would most likely include things not quite so tangible like oxygen gas. The term they apply is "Natural Meaning", and they argue the context in which "Tangible Object" is used in the Sarbox legislation has no bearing. A law is a law, if it looks like a duck....
The defense is saying two things. The application of the Sarbanes–Oxley act was inappropriate, and not the law's purpose or intent, and the use of "Tangible Object" should be placed in context with the other words used in the description like record, document et al. Hard drive, computer disks, thumb drives and the ilk fit the "Tangible Object" context well. Fish, not so much.
My take is if the original writers of the legislation had added fish to the list they would have laughed later about it over a beer, and removed it promptly before anyone saw it. I would suggest to the Justices they should do this and see how well it seems to fit the the intent. Here is what is looks like.
"Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, fish or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction....."
Hmmm... when you do that, fish seems out of context and not inline with the purpose of the act. This doesn't appear to be rocket science!
The real crime here wasn't the undersized grouper, but the unfathomable and unbelievably inane, and bordering on cruelty behavior of the prosecutors who used Federal law, and huge sums of the publics money to pursue this minor infraction in the first place. They must have been too busy working on this case when the bankers and their collective greed caused the near collapse of the US economy and the recession. Few involved with that were ever prosecuted. I guess the ones who made hundreds of millions of dollars peddling bad mortgages wore expensive suits and seemed be be nice folks, unlike a weathered fisherman in Cortez Florida.
"It will be of little avail to the people if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood" James Madison
This is one of the many amicus curiae briefs filed on behalf of Mr. Yates
Saturday, October 8, 2016
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Sunday, August 28, 2016
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Friday, August 12, 2016
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Thursday, July 21, 2016
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