Case Appealed

[Capt. Keith Wils]

Illegal fishing case appealed
By Jenny Lancour
POSTED: October 13, 2010 Save | Print | Email Email: "Illegal fishing case appealed"
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MANISTIQUE - A tribal hearing was held Friday in Manistique to explain the $15,214 in restitution which three men were recently ordered to pay in connection with illegal commercial fishing operations in Little Bay de Noc.

Andrew, John and Kevin Schwartz - brothers from Rapid River and members of the Sault Ste. Marie Tribe of Chippewa Indians - were sentenced last August on 79 violations of tribal rules relating to commercial fishing. The incidents occurred in early 2009 and were investigated by the Michigan Department of Natural Resources & Environment (DNRE).

The three men each had their tribal fishing rights taken away from them during their joint sentencing at the tribal center in Manistique on Aug. 20. They were assessed a total of $13,175 in fines and costs and $15,214 in restitution.

The Schwartz's defense lawyers requested the clarity hearing which took place on Friday, according to Brenda Brownlee, civil clerk for the Sault Ste. Marie Chippewa Tribal Court headquartered at Sault Ste. Marie, Mich.

Brownlee also confirmed the Schwartz's have appealed the judge's Aug. 20 order, including restitution. An appeal had to be filed within 30 days of the judgment. The paperwork was filed in tribal court on Sept. 16, she said.

The Honorable Chief Judge Jocelyn K. Fabry based restitution on the market value of the fish which the three men were found to be responsible for in the DNRE investigation during early 2009, said Conservation Officer Cpl. Shannon VanPatten.

VanPatten was the first to discover the illegal fishing after reviewing commercial fisheries records in the fall of 2008. She noticed an unusual high amount of walleye being sold in the wholesale commercial fish market over the winter months during past years. Records also showed an unexplained drop in angler harvests.

Following several hours of surveillance and information gathering, the DNRE seized 265 pounds of fish illegally harvested from Little Bay de Noc and 1,200 feet of gill nets in late February 2009. Officials estimated more than 72,000 pounds of walleye and other fish were illegally taken from the bay during a five-year period.

According to the tribal judgments handed down in August, the fines, costs and restitution against the Schwartz brothers must be paid to the court in monthly payments during the next five years. The first payment was due Oct. 1.

Andrew was ordered to pay $4,300 in fines and $800 in costs on 32 violations. John was ordered to pay $3,300 in fines and $550 in costs on 22 violations. Kevin was ordered to pay $3,600 in fines and $625 in costs on 22 violations.

In addition to the above citations, Andrew, John and Kevin were permanently revoked of their tribal subsistence fishing license for violating the following: subsistence fishermen shall be limited to 100 pounds of catch in possession; no tribal member shall allow a person without a subsistence fishing license to assist in any fishing activity; subsistence fishermen shall not sell or exchange for value any of the catch; and no subsistence fisherman shall set a gill net within 50 feet of another gill net.

According to the court judgement, Andrew was also found in violation of an additional section of the tribal fishing code: subsistence gill netting is limited to one net of 300 feet or less per vessel per day.

Property used to commit the violations and later seized during the investigation were four gills nets and four snowmobiles which remain in the possession of the tribal police, said Brownlee.

The Schwartz brothers were among six men charged with violations relating to the illegal fishing operations. Garden residents Troy and Wade Jensen, also tribal members, are wholesalers who allegedly bought the fish from the Schwartz brothers. Their case is being processed in tribal court. A non-Native from Delta County allegedly engaged in illegal fishing with the Schwartz's. The Delta County prosecutor continues to review this case.

Troy and Wade Jensen were arrested Friday in connection with an illegal commercial fishing operation dating back to 2006, added Brownlee. During a pretrial at the tribal center Friday, the two were charged with failing to comply with a recent tribal order increasing their court fees in the 2006 case. They will go to trial on the matter in December, according to Brownlee.

The Jensen's were arrested and lodged in the Schoolcraft County Jail on Friday, confirmed a jail official Tuesday morning. The charge was contempt of court for failing to pay fines and costs relating to the 2006 case when they were charged with commercial fishing without a commercial license. The Jensen's were in jail for nearly three hours before bond was posted and they were released, said the jail official.

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Jenny Lancour, (906) 786-2021, ext. 143, jlancour@dailypress.net

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[Captain Ahab]

Restitution, by definition, is a court ordered sum paid by the offender to the victim(s) to compensate for damages related to the crime.

I'm wondering if the appeal is going to center around whether the $15,000ish ordered is deemed to repair "damages" to the stocking/conservation efforts of walleye by the DNRE. If that's the case, I can foresee the argument on behalf of the convicted will be some sort of questioning of the value of fish caught. I presume they'll either question the value of the fish caught to the fishery or the cost associated with rearing walleye or managing walleye populations. In that case, the DNRE would obtain all of the restitution.

Interesting to note: The State of Michigan (obviously this is not law for Tribal Courts) does allow judges to rule restitution to third and fourth parties as "foreseen victims." The tough part is determining how far that scope goes (bait stores, motels, eateries, etc.) Then again, this can all be accomplished to a more lucrative and cost effective sum through a class action suit. Of course this would mean there would need to be enough "water in the well" to attempt to dip into the pockets of the convicted through a class action suit.

Keep your eye on this one.

-Mike

[DooFighter]

Not directly related to the appeal, but to the case...has anyone heard that Andy resigned from his rapid river coaching position? A source I consider reliable told me it was only shortly after he was reinstated, fwiw.

[hook em and cook em]

Seems like a drop in the bucket for what they must have gotten for 75,000 pounds of fish. By appealing the ruling they are denying guilt. As far as Andy resigning from the coaches position, havent heard that. Considering how blatant the crime and how arrogant the attitude, the whole schwartz crew should be run out of town.

[rockbass]

Those clowns make me want to throw up.

[grubworm]

1st of all andy did resign from coaching, after everything his players and friends did to get his job back the jerk resigned laughing the whole time the school board as a whole should all resign what a JOKE. 2nd apparently the slap on the wrist they got the first time wasnt enough c`mon really appeal i hope they end up paying more for costing the courts and the taxpayers more money what a bunch of idiots

[Mike P]

Keith . thanks for keeping this information posted here for all to see. Its important to find out just what exactly the outcome will finally be .

I would think this is an important issue to all the people these few have impacted.

Especially the people who worked year after year trying to restock the Bay , only to have these guys working
against their effort, on the sly!

Definition of appeal. An application or proceeding for review by a higher tribunal.

I guess my next question is do they think the punishment[fines} were too harsh for what they did over all these years?

[Squeezebox]

The fact that these individuals would file an appeal shows the lack of remorse for the acts they committed. It would be interesting if a group could put together a civil damages lawsuit for lost revenues, etc. I'm sure it would be alot of work but would really send a message. Clean the wallets of these arrogant people.

[Frank S]

My guess is that there will be no out-of-pocket expenses for these convicted criminals regarding the filing of the appeals. I thought the Tribal Court made a pretty strong statement in their findings, collecting any fines (or especially any restitution) will be another story. The whole BaydeNoc community suffered a loss here. The fish are one part of the loss, the hard feelings and anger are another.