The Volokh Conspiracy
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Oysters Aren't Drugs or Cars, Even on Wednesdays: A Very Massachusetts Case
From Commonwealth v. One (1) Check in the Amount of $480.00 for 1,600 Pieces of Wild Oysters (Crassostrea Virginica), decided Friday by Massachusetts Appeals Court Justice Joseph Ditkoff, joined by Justices Kenneth Desmond Jr. and John Englander:
This case involves the civil forfeiture of wild oysters …. The fisherman and claimant, Cheenulka Pocknett, holds a valid commercial shellfishing permit issued by the Division of Marine Fisheries (DMF). He is also a member of the Mashpee Wampanoag Tribe and, as such, has certain rights to fish for sustenance.
On Wednesday, December 4, 2019, Pocknett and a friend took a large number of wild oysters from Green Pond in Falmouth. Green Pond is closed to commercial fishing on Wednesdays (as well as Sundays, Mondays, and Fridays). See Chapter 275, Article II, § 15(D) of the Code of Falmouth. See also [Mass. Gen. Laws]. c. 130, § 52, par. 1 (authorizing municipalities to regulate shellfish fisheries). {The town of Falmouth created the Green Pond oyster fishery through aquaculture, and the restrictions are presumably to prevent overfishing.}
Pocknett kept some oysters for personal consumption; the Commonwealth took no action regarding those oysters and appears to recognize Pocknett's right to take oysters for personal consumption. Pocknett placed 1,600 oysters in containers and affixed the containers with "DMF-required shellfish tags with [his] name[ ], [his] DMF issued permit number, as well as the date, time and location of the harvest." He then sold those oysters to Big Rock Oysters in Harwich, a licensed wholesale shellfish dealer.
The same day, the Falmouth harbormaster contacted the Massachusetts Environmental Police to report unlawful shellfishing in Green Pond. The next day, an environmental police officer went to Big Rock Oysters and inspected the DMF shellfish tags that stated that the oysters were taken by Pocknett from Green Pond on a Wednesday. The officer told Big Rock Oysters that it should not have accepted those oysters. He instructed Big Rock Oysters to sell the oysters but that the state would be seizing the proceeds. The officer then called Pocknett and orally advised him of the seizure and that he would be filing an action in libel (the term used in the statute)….
Three days later, the same officer issued Pocknett a warning citation for possession of shellfish from an area closed to commercial harvest, in violation of 322 Code Mass. Regs. § 16.09(2) (2019). {That regulation makes it unlawful for a "[c]ommercial fisherman to harvest, attempt to harvest, sell, or attempt to sell any shellfish from any growing area, or part thereof, that is not open to commercial harvest by the [DMF] or the municipality that regulates commercial harvest."}
[Not drugs.] On December 16, 2019, the officer filed a complaint in libel in District Court for forfeiture of a check for $480, which appears to be the wholesale proceeds of the oysters….
In the District Court and the Appellate Division, the Commonwealth repeatedly asserted that the special civil forfeiture provisions relating to drug forfeitures apply to [forfeitures] under G. L. c. 257, thus dramatically lowering the Commonwealth's burden of proof. Under G. L. c. 94C, § 47 (d), the Commonwealth seeking to forfeit proceeds or certain instrumentalities of drug transactions need show only probable cause. The "claimant shall then have the burden of proving that the property is not forfeitable" or that another exception applies.
By its own terms, G. L. c. 94C, § 47, applies only to controlled substances and certain items related to the distribution or manufacture of controlled substances. Its unusual burdens of proof and procedural requirements apply only in that context….
Rather, we repair to the general rule that the [government] bears the burden to prove, by a preponderance of the evidence, that the property is forfeitable. Presumably, the claimant bears the burden of proving any affirmative defense by a preponderance of the evidence….
[Not cars.] Citing G. L. c. 90C, § 2 (the "no-fix" statute), Pocknett argues that the libel was barred by the warning citation issued by the environmental police officer. Under that statute, a police officer must issue a citation for a motor vehicle violation at the time and place of the violation. Failure to do so "shall constitute a defense in any court proceeding for such violation," unless one of several exceptions applies.
Consistent with the theme of this opinion, the unusual citation procedures for motor vehicle violations cannot be imported into the realm of marine fishery regulation. The "no-fix" statute does not reflect a generally applicable concept of law, but rather reflects a particular legislative solution "to replace the old system, where the decision whether to issue a warning was made over a three-day period, because that created the 'opportunity for subsequent maneuvering or pressure' in favor of the well connected." It is a sui generis system, designed to correct a problem particular to the enforcement of motor vehicle violations….
[Wednesdays.] Because it is uncontested that the oysters were taken from Green Pond on a Wednesday, that Green Pond was closed to commercial fishing on Wednesdays, and that the oysters were sold to Big Rock Oysters, the only remaining question is whether Pocknett was acting as a commercial fisherman or instead exercising his rights as a member of the Mashpee Wampanoag Tribe to fish for sustenance.
In this regard, it is important to recall that the Commonwealth did not seize the oysters that Pocknett kept for personal consumption or to share with his friends and family. Rather, the Commonwealth seized only the oysters that Pocknett sold to Big Rock Oysters. Pocknett admits that he personally affixed DMF shellfish tags to these oysters with his DMF commercial fisherman permit number. As a licensed wholesaler, Big Rock Oysters was required to obtain the fisherman's name and DMF number from any person who sold it fish. Furthermore, it could not "accept any species of fish from persons not commercially permitted by DMF."
In short, it was only by acting as a commercial fisherman that Pocknett was able to sell the oysters in question to Big Rock Oysters. Accordingly, there is no genuine issue of material fact and it is established as a matter of law that Pocknett was acting as a licensed commercial fisherman in taking these particular oysters and holding them for sale to Big Rock Oysters….
