January 27, 2015 Meeting of the Virginia Marine Resource Commission
REPEAT OFFENDERS: The Commission revoked ten commercial watermen’s licenses and tidal fishing privileges for their court convictions of harvesting oysters from polluted waters. However, the Commission suspended the revocations of nine of those watermen and put them on probation for a year. Any natural resources violations during that probation period will result in the automatic loss of their commercial fishing licenses and fishing privileges for up to two years. [ audio ]
Virginia law calls for administrative sanctions to be taken against those license holders who have been found guilty of violation law regarding harvesting fish, oysters and crabs; particularly those who are repeat offenders
David Turner, not present, not represented by Ann Sullivan, Turner has a 2015 license, on July 14, 2014 on the boat Lucy Annette was found 268 feet into the condemned area along Newport News shoreline in the James River and was issued a summons under the health code. He was convicted in Newport News General District Court and assessed a penalty of $300 and costs for that violation. He was also cited for scraping private ground without a permit and convicted on July 3, 2014. $250 fine plus costs for the second violation. Staff testified that Turner was cited for the violations while he was already on probation for prior offenses.
“We are looking at human-born pathogens that can cause series human illnesses, it would not necessarily be known which part of a fisheries area that the source of the problem and could seriously affect all over fishermen’s income. It is unknown until the cases turn up.”
Staff recommends the Commission revoke his licenses for two years from Jan. 27, 2015 to Jan. 27, 2017.
“The boats have been on the property of Mr. Green and the commission has shown Mr. Green where the condemned line runs through his ground. The reason we were watching this area is because of numerous complaints from those who thought that boats were working the condemned area. The tide runs up and down the river and the tide would not wash the boats one way or another other than a few yards, the wind was not a factor. This particular boat was 268 feet into the condemned area. He stated he was not in a condemned area, he stated he was on private ground and did not a license, the permit he had was in his mate’s name, but unfortunately he was caught in the condemned area.”
Keith Skyles of the Health Department: “We extend a lot of effort to draw the lines where we believe the health concerns lie, a lot of these issues have long incubation periods, it could be sixty days later when someone gets sick. This area has been closed because of the sewage treatment plant outfall. We have known for a long time that contaminated oysters can get you sick. The recall would be taken from the label of where the oysters were taken from and if the label said ‘James River’ we would close the entire James River. It has a huge impact on the public which hears that shellfish caused an illness and then they simply stop buying regardless of where the illness originated so it has a huge impact.”
After the testimony of the staff and the health officer the Commission discussed and made the motion and passed the penalty of two year revocation for David Turner. Passed unanimously.
Ann Sullivan: “I am here today with full recognition we are not here to reconsider their conviction in lower court where I did not represent them and they acknowledged they let their time period for an appeal of that conviction. Mr. Breen is here to testify. He was notified that Mr. Mike Morris was going to go to this oyster ground and give tickets to those who were working the oyster grounds. Mr. Morris went out with names written on his hand that he intended to get these men who had been reported to him. Mr. Breen called each of the other captains and gave them the heads up to be sure they are working within the designated areas. They are all men who have very good records and no violations. Each of them said they are not working in the condemned area and he refused to check their coordinates and he simply called in the violations. He ordered them to put the condemned oysters in the sanctuary and didn’t mark them. Instead of putting the oysters back in the area it came from he put them in the sanctuary. One boat, the West boat, blew into the condemned area due to a mechanical problem and he admits his boat went into the area but was not dredging and was simply attempting to fix his boat while was pushed into the area by the wind. Calls made by the captains to Commission staff protesting the actions of Morris were shunned and no one came to supervise the actions of Morris. To a man they contend they were innocent of the charges of which they have been convicted. The weather was dreadful that day and charges of they left the dock before daylight were thrown out.
“This Commission has taken the position at the Virginia Court of Appeals is that the guidelines are not mandatory.
“All of these men are commercial fishermen and this is how they support their families. You have the power to revoke all their privileges and you have the power to revoke all their privileges, which you are not required to do and their is an avenue for you to sign a lesser penalty.”
Officer Morris: “On the broad statement that was just made, I take issue with the statement that I was out headhunting, I had been contacted by Dr. Wesson and by other watermen and told what was happening in the area. We took GPS readings on various stakes and we had the GPS readings for that area so we knew where they were.”
Timothy Charles Breen violation
Officer Mike Morris: “Mr. Breen was on the Lucy Annette with Mr. Turner and after watching them work and not drifting into the area, this was a deadrise boat which can work in a shoal area, he was convicted in Newport News on Sept. 25, 2014 and a fine was set of $300 and costs. He had a prior offense unculled oyster violation on Jan. 23, 2014 with a $50 fine. Mr. Turner was operating the vessel. Mr. Breen had the permit in his name”.
Ann Sullivan: “Officer Morris, did you call in coordinates of the GPS?”
Officer Mike Morris: “The Lucy Annette and the Samaria were working very closely together and at one time, the Lucy Annette went into the condemned area and that was well within the area more than 800 and some feet into the polluted area.”
The chairman interrupted Sullivan who began to cross-examine Officer Morris and restated that they were not there to retry the case, pointing out the convictions had been handed down.
Another commissioner stated that the cases had been decided and to spend time going back over the details.
“We have three provisions in the code of Virginia, evidence of repeated disregard of the laws, the officers and prior violations. ”
Staff recommends the Commissioner revoke all of Mr. Breen’s licenses for one year and to revoke his fishing privileges for one year.
APPROVAL OF AGENDA. FISHERIES CHIEF O’REILLY REQUESTED THE COMMISSION ADD AN ITEM TO THE AGENDA, ITEM 18, PERTAINING TO SUMMER FLOUNDER REGULATIONS. THE AGENDA WAS AGREED. [ audio ]
1. MINUTES of previous meeting. THE COMMISSION VOTED UNANIMOUSLY TO ADOPT THE MINUTES OF THE DECEMBER 9, 2014 MEETING. [ audio ]
2. PERMITS (Projects over $500,000 with no objections and with staff recommendation for approval). THE SO-CALLED PAGE 2 ITEM, DELINEATED BELOW AS 2A WAS UNANIMOUSLY APPROVED. [ audio ]
3. CONSENT AGENDA ITEMS. THE CONSENT AGENDA ITEM DELINEATED BELOW AS 3A WAS UNANIMOUSLY APPROVED IN ACCORDANCE WITH STAFF’S RECOMMENDATION WHICH INCLUDED AN AGREED UPON CIVIL CHARGE FROM THE PROPERTY OWNER AND THE CONTRACTOR IN THE AMOUNT OF $2,000 EACH AND A TRIPLE PERMIT FEE OF $75. [ audio ]
4. CLOSED MEETING FOR CONSULTATION WITH, OR BRIEFING BY, COUNSEL. NONE. [ audio ]
5. COTTAGE LINE CIVIC LEAGUE, #13-1899-D, NICHOLAS VANDERGRIFT, #13-1809-D, JUDITH SWYSTUN ET AL., #13-1808-D, CATHERINE McCOY, #13-1803-D, CATHERINE McCOY, #13-1804-D, THOMAS AND THELMA DRAKE, #13-1799-D. Commission review on appeal by 52 freeholders of the June 11, 2014, decision by the Norfolk Wetlands Board to approve the above-referenced applications in modified form with special conditions, to include excavating sand from the dune as proposed or to a minimum height of 14 feet, and relocating the excavated sand channelward of the existing dune face along the Ocean View shoreline adjacent to the Chesapeake Bay. Request for postponement. Continued from the July 22 and September 23, 2014, Commission meetings. THE COMMISSION UNANIMOUSLY AGREED TO POSTPONE THE REVIEW PER THE APPLICANTS’ REQUEST WITH A CONDITION THAT AT LEAST 60 DAYS NOTICE BE PROVIDED BEFORE THE MATTER IS RESCHEDULED. [ audio ]
6. ISLE OF WIGHT COUNTY, #14-1236, requests authorization to construct a 15-foot wide pedestrian/bicycle bridge over approximately 210 linear feet of Jones Creek, a tributary to the Pagan River in Isle of Wight County. The bridge structure is associated with a proposed 10-foot wide shared-use trail from the Town of Smithfield to the Carrollton Nike Park. The application is protested by adjacent property owners. Tabled from the December 9, 2014, Commission meeting. THE COMMISSION CONTINUED THEIR REVIEW OF THIS MATTER AND VOTED UNANIMOUSLY TO APPROVE THE PROJECT AS PROPOSED WITH A TIME OF YEAR RESTRICTION ON IN-WATER CONSTRUCTION ACTIVITIES BETWEEN FEBRUARY 15 AND JUNE 30 OF ANY YEAR TO PROTECT ANADROMOUS FISH SPECIES. [ audio ]
7. PUBLIC HEARING: To set-aside, not to be leased, approximately 805 acres of unassigned State bottom in Cobb Bay adjacent to and south of Public Ground #13, and approximately 963 acres in South Bay adjacent to and east of Public Ground #30, in Northampton County. The areas are identified as suitable for Submerged Aquatic Vegetation (SAV) growth and restoration. THE COMMISSION VOTED 6 TO 1 (COMMISSION MEMBER NEILL OPPOSED) TO APPROVE TWO OF THE FOUR REQUESTED SAV SET-ASIDE AREAS FOR A PERIOD OF FIVE YEARS (AREA ONE IN COBB BAY ENCOMPASSING 805 ACRES AND AREA TWO IN SOUTH BAY ENCOMPASSING 544 ACRES). THE COMMISSION ALSO REQUESTED Virginia Institute of Marine Science (VIMS), IN THEIR ANNUAL SAV REPORT TO THE COMMISSION, TO NOTE ANY INCREASES OR DECREASES IN SAV DENSITY IN THE SET-ASIDE AREAS ON THE SEASIDE OF THE EASTERN SHORE. [ audio ]
8. REQUEST FOR PUBLIC HEARING: Removal of a portion of Additional Clam Grounds as previously set aside by the Commission in 1930, within the Ware River, in response to an application to lease oyster planting ground. THE COMMISSION UNANIMOUSLY APPROVED THE REQUEST FOR A PUBLIC HEARING. [ audio ]
9. PLAINS MARKETING, LP, request for adoption of a resolution to approve the execution of permanent easements and right-of-ways for 3.694 acres of submerged land in the York River as authorized by Chapter 368 of the 2014 Acts of Assembly. THE COMMISSION UNANIMOUSLY VOTED TO ADOPT THE RESOLUTION TO APPROVE EXECUTION OF THE PERMANENT EASEMENT. [ audio ]
10. PUBLIC COMMENT. MR. JOSEPH STEPHENSON REQUESTED AN EXCEPTION TO MAINTAIN HIS COMMERCIAL HOOK-AND-LINE LICENSE. HE FAILED TO MEET THE ELIGIBILITY REQUIREMENTS TO MAINTAIN HIS LICENSE FOR THE 2015 YEAR. THE COMMISSION DENIED HIS EXCEPTION BECAUSE THE REGULATION ONLY ALLOWS FOR MEDICAL OR ACTIVE-DUTY MILITARY EXCEPTIONS, AND THE COMMISSION DID NOT HAVE ANY DOCUMENTATION OF EITHER CIRCUMSTANCE. [ audio ]
11. REPEAT OFFENDERS: The Commission revoked ten commercial watermen’s licenses and tidal fishing privileges for their court convictions of harvesting oysters from polluted waters. However, the Commission suspended the revocations of nine of those watermen and put them on probation for a year. Any natural resources violations during that probation period will result in the automatic loss of their commercial fishing licenses and fishing privileges for up to two years. [ audio ]
12. FAILURE TO REPORT: Cases involving failure to report commercial harvest, in accordance with Chapter 4VAC20-610-10 et seq., “Pertaining to Commercial Fishing and Mandatory Harvest Reporting.” THE COMMISSION HEARD ONE CASE INVOLVING FAILURE TO REPORT COMMERCIAL HARVEST. THE INDIVIDUAL WAS NOT PRESENT, AND HIS LICENSES REMAIN SUSPENDED UNTIL HE APPEARS FOR HIS HEARING. [ audio ]
13. PUBLIC HEARING: Proposed adoption of the 2015 commercial black sea bass quota as part of Chapter 4 VAC 20-950-10 et seq., “Pertaining to Black Sea Bass.” FOLLOWING THE ADOPTION OF THE DECEMBER 9, 2014 EMERGENCY REGULATION, THE NATIONAL MARINE FISHERIES SERVICE (NMFS) RELEASED A 2015 COASTWIDE COMMERCIAL BLACK SEA BASS QUOTA THAT WAS REDUCED BY 22,564 POUNDS. THIS ADJUSTED QUOTA ALLOCATED VIRGINIA A COMMERCIAL QUOTA OF 442,584 POUNDS. THE COMMISSION VOTED UNANIMOUSLY TO APPROVE STAFF RECOMMENDATION TO ESTABLISH THE 2015 BLACK SEA BASS QUOTA AS 442,584 POUNDS, WITH THE COMMERCIAL BLACK SEA BASS DIRECTED FISHERY QUOTA AS 402,584 POUNDS AND COMMERCIAL BLACK SEA BASS BYCATCH FISHERY QUOTA AS 40,000 POUNDS. [ audio ]
14. REQUEST FOR EMERGENCY AMENDMENTS: Proposed emergency amendments to Chapter 4 VAC 20-450-10 et seq., “Pertaining to the Taking of Bluefish,” to establish the 2015 commercial bluefish quota. AN EMERGENCY REGULATION WAS NEEDED TO ESTABLISH A 2015 QUOTA IN REGULATION, AND THIS EMERGENCY PERTAINS TO THE WELFARE OF THE SEAFOOD INDUSTRY BECAUSE THE INDUSTRY NEEDS A QUOTA FOR 2015 AND NEEDS TO KNOW THE 2015 QUOTA IS VERY REDUCED FROM 2014. THE COMMISSION VOTED UNANIMOUSLY TO APPROVE STAFF RECOMMENDATION TO ADOPT EMERGENCY AMENDMENTS TO ESTABLISH THE 2015 BLUEFISH QUOTA AS 608,230 POUNDS AND ADVERTISE FOR A PUBLIC HEARING AT THE FEBRUARY 24, 2015 MEETING TO ESTABLISH THE 2015 BLUEFISH COMMERCIAL QUOTA. [ audio ]
15. RECOMMENDATION OF THE RECREATIONAL FISHING ADVISORY BOARD: The Commission voted 6-1 (Associate Commissioner Neill voting no) to fund two-thirds of the cost of a recreational fishing pier on the York River in King and Queen County. [ audio ]
16. DISCUSSION: Proposed amendments to Chapter 4 VAC 20-610-10 et seq., “Pertaining to Commercial Fishing and Mandatory Harvest Reporting,” that establish requirements of authorized blue crab fishery agents. THE REGULATION IS CURRENTLY SPECIFIC TO THE 2014 SEASON, AND NEEDED TO BE AMENDED TO REMOVE THE YEAR LISTED. THE COMMISSION VOTED UNANIMOUSLY TO APPROVE STAFF RECOMMENDATION TO ADVERTISE FOR A FEBRUARY PUBLIC HEARING TO MAKE AMENDMENTS TO LIMIT AND SPECIFY THE NUMBER OF AGENTS IN THE BLUE CRAB FISHERY ANNUALLY. [ audio ]
17. DISCUSSION: Proposed amendments to Chapter 4 VAC 20-270-10 et seq., “Pertaining to Crabbing,” that limits the use of fish pots by active crab pot or peeler pot fishermen. THE VMRC LAW ENFORCEMENT HAS REQUESTED STAFF TO ADDRESS DIFFICULTIES WITHIN THE COMMERCIAL BLUE CRAB FISHERY WITH HARVESTERS USING FISH POTS FOR BLUE CRAB HARVEST. CURRENTLY, THERE IS NOTHING IN REGULATION THAT PREVENTS A HARVESTER FROM FISHING THEIR LICENSED AMOUNT OF CRAB POTS AND FISH POTS IN THE SAME LOCATION. IT IS UNLAWFUL FOR ANY PERSON TO TAKE OR CATCH HARD CRABS OR PEELER CRABS FROM ANY TYPE OF POT OTHER THAN A LICENSED CRAB POT, BUT LAW ENFORCEMENT HAS DIFFICULTY DETERMINING THE TYPE OF POT THAT CRABS IN POSSESSION MAY HAVE BEEN HARVESTED FROM. STAFF DISCUSSED OPTIONS TO ADDRESS THIS ISSUE, INCLUDING LIMITING THE MAXIMUM NUMBER OF POTS THAT CAN BE SET BY FISHERMEN WITH CRAB POTS AND FISH POTS. STAFF RECOMMENDED ADVERTISING FOR A FEBRUARY PUBLIC HEARING TO CONSIDER AMENDMENTS THAT LIMIT THE USE OF FISH POTS BY ANY INDIVIDUAL WHO IS AN ACTIVE CRAB POT OR PEELER POT FISHERMEN, AND ALSO AMENDING THE TIME-PERIOD FOR THE FISH POT PROHIBITION FROM MARCH 11 THROUGH MARCH 16 TO BE FROM MARCH 12 THROUGH MARCH 16. THE COMMISSION VOTED UNANIMOUSLY TO APPROVE STAFF RECOMMENDATION. [ audio ]
18. REQUEST FOR PUBLIC HEARING: Proposed amendments to Chapter 4 VAC 20-620-10 et seq., “Pertaining to Summer Flounder,” to modify the commercial summer flounder trip limit and season dates. THIS ITEM WAS REQUESTED BY THE SEAFOOD INDUSTRY TO MAXIMIZE THE VALUE OF THE ALLOWABLE QUOTA BY SPREADING OUT THE LANDINGS. THIS IS BEING REQUESTED WITH HOPES TO YIELD THE MAXIMUM VALUE OF THE FISH BY PREVENTING A FLOODING OF THE MARKET. THE COMMISSION VOTED UNANIMOUSLY TO APPROVE STAFF RECOMMENDATION TO ADVERTISE FOR A FEBRUARY PUBLIC HEARING TO CONSIDER AMENDMENTS THAT MODIFY THE COMMERCIAL SUMMER FLOUNDER TRIP LIMIT (TO A LIMIT NOT LESS THAN 7,500 POUNDS) AND AMEND THE SEASON DATES. [ audio ]
THE FOLLOWING SO-CALLED PAGE TWO ITEMS WERE APPROVED UNANIMOUSLY:
2A. BAE SYSTEMS. #14-1716, requests authorization to install eight (8) new 6.5-inch diameter sub-surface cables across approximately 440 linear feet of State-owned submerged bottom to increase the power supply to the Titan Drydock at Pier 1 adjacent to their facility at 750 West Berkley Avenue situated on the Southern Branch of the Elizabeth River in Norfolk.
3A. STINGRAY POINT BOAT WORKS, LLC, #14-1398, requests after-the-fact authorization to retain 170 square feet of newly constructed replacement pier and a 15-foot long, vinyl sheet-pile wave screen, and authorization to install a 24-foot long by 14-foot wide floating dock and associated gangway at commercial property on Broad Creek at 19047 General Puller Highway in Deltaville, Middlesex County. The applicant and contractor, Haywood Marine, have each agreed to pay a civil charge of $2,000.00 in lieu of further enforcement action. Staff recommends approval and acceptance of the aforementioned civil charges and the payment of a triple permit fee of $75.00.