The U.S. District Court for the Southern District of New York late last week ordered three individuals to pay more than USD 54 million in restitution to the South African government for illegally harvesting rock lobsters from its waters.
It is the largest penalty ever handed out for violations of the Lacey Act, which prohibits the trade of wildlife and plants that were illegally harvested, transported or sold. The ruling of the case (1:03-cr-00308-LAK-AJP) now goes to Judge Lewis A. Kaplan of the U.S. District Court for affirmation.
In 2007, Arnold Bengis, David Bengis and Jeffrey Noll were not ordered to pay restitution, but the Second Circuit Court in 2011 reversed the decision, saying South Africa has a “property right in illegally harvested lobsters” and that under that country’s laws, the government is “authorized to seize illegally harvested lobsters, sell them and retain the proceeds.” Last week's District Court decision upheld that ruling.
The Second Circuit ruled, following the Ocean and Land Resource Assessments Consultants (OLRAC) method, that restitution be calculated by multiplying the number of poached lobsters by the corresponding market price at the time of the offenses, which occurred from 1987 to 2001. The total calculated was USD 61,932,630.
The defendants, whose restitution totals USD 54,883,550 because USD 7,049,080 had already been paid to South Africa, argued the OLRAC method is not reliable. The lobsters they harvested were alleged taken when the quota had already been reached (they were also accused of overharvesting Patagonian toothfish, or Chilean sea bass). The U.S. government also contends that all of the illegally harvested lobsters were shipped to the United States, a claim the defendants denied.
“The defendants need not have personally harvested the lobsters in order to have deprived the South African government of its property right in the lobsters,” reads the ruling by U.S. Magistrate Judge Andrew J. Peck. “By smuggling the lobsters out of South Africa knowing that they had been harvested unlawfully, defendants deprived the South African government of its right to seize and sell the poached lobsters.”
Each defendant had already pleaded guilty to a conspiracy to violate the Lacey Act. Defendants Noll and Arnold Bengis, the former owner of Icebrand and Associated in New York and managing director and chairman of Hout Bay in Cape Town, South Africa, also pleaded guilty to violations of the Lacey Act. In 2004, Arnold Bengis was sentenced to 46 months in prison, while David Bengis (Arnold’s son, who operated Icebrand Seafoods in Portland, Maine, until he was forced to forfeit the USD 1.5 million sale of the facility) received 12 months and Noll received 30 months.
Karen Sack, director of international ocean conservation for the Pew Environment Group, says the decision sends a strong message to those engaged in large-scale illegal fishing.
“Pew applauds the court for recognizing the severity of this crime and appropriately ordering such a high penalty. These defendants stole an environmental asset from South Africa, and it is only fair that they pay the country back for that theft,” she said. “This unprecedented ruling shows that the U.S. can and will take concerted action to stop illegal fishing and bring those U.S. citizens engaging in it to justice, whether it has occurred within or outside of U.S. waters. Most of the illegal catch was shipped to the United States for sale.”
