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Ore, Matthew - Ruling, December 19, 1995

Ruling, December 19, 1995

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

the Suspension of the Shellfish Transplant - Hand Harvester's Permit issued to

Matthew Ore
9 Acorn Avenue
Farmingville, NY 11738

PERMITTEE

RULING ON ISSUES FOR HEARING

This ruling comes after a conference call held on December 12, 1995 with members of the Department Staff and Matthew Ore (the Permittee) to discuss the Department's decision to suspend Mr. Ore from participating in the Department's Shellfish Transplant - Hand Harvest Program. During the conference call, Kenneth Koetzner, Chief of the Bureau of Shellfisheries, and Debra Barnes, Supervisor of the Transplant Program represented the Department. Mr. Ore represented himself.

The Department's Transplant Program

Based on the conference call, the following is a summary of my understanding of the Department's Shellfish Transplant - Hand Harvest Program (the transplant program) which is regulated pursuant to 6 NYCRR Part 45 (Transplanting of Shellfish). For the past 7 years, the Department has undertaken a program where shellfish are harvested from uncertified waters around Staten Island and then transplanted in certified waters off eastern Long Island. The transplanted shellfish may be harvested and sold for public consumption after the shellfish have remained at the transplant site for at least 21 consecutive days where the water temperature during that period has been at least 50F. The transplant program extends from April 1 to about October 10. The intent of the transplant program is to protect the State's shellfish resource and to assure the public health of those who consume shellfish.

To participate in the transplant program, a digger must first have a permit, issued pursuant to Part 42 (Sanitary Control Over Shellfish), to harvest shellfish. The digger must then temporarily surrender the Part 42 shellfish permit to receive a Shellfish Transplant - Hand Harvest Permit (a transplant permit) which the Department issues pursuant to Part 45. While participating in the transplant program, a digger may not harvest clams from certified waters according to the conditions of the transplant permit. When the transplant season ends, the Department returns the Part 42 shellfish permit to the digger who may then harvest clams from certified waters.

Diggers in the transplant program work in crews of ten boats with two persons assigned to each boat. The Department assigns a monitor to supervise each crew to ensure that the diggers comply with the terms of the transplant permit. When harvesting clams, all crew members must go out together with their assigned monitor and return together.

Each crew has a designated transporter who pays the diggers for the clams that are harvested. Under the supervision of the Department's monitors, the transporters take the clams harvested from the uncertified waters to the designated transplant site.

The transplant permit requires the diggers to work only with their assigned crew members, and to sell their clams only to their assigned transporter. Consequently, the only way that diggers earn a living while participating in the transplant program is to dig clams with their crews, and to sell the clams they harvest to their assigned transporter.

The Department's Position

The Department issued Shellfish Transplant - Hand Harvester's Permit No. 76 to the Permittee for the 1995 transplant season. The Department suspended Mr. Ore's transplant plant permit, however, on September 13, 1995. By letter dated October 19, 1995, the Department confirmed the suspension and provided the following reasons.

As described above, the transplant permit requires the diggers to work only with their assigned crew members, and to sell their clams only to their assigned transporter. Nevertheless, Mr. Ore allegedly violated the conditions of his transplant permit on September 13, 1995 when he continued to harvest clams after the monitor and the rest of Mr. Ore's crew returned to the Port Atlantic Marina in Tottenville. In addition, Mr. Ore allegedly violated the conditions of his transplant permit on September 13, 1995 when he sold the shellfish harvested according to the circumstances described above to a digger from another crew.

The permit conditions that Mr. Ore allegedly violated are Nos. 5, 11 and 12 of the Shellfish Transplant - Hand Harvester's Permit No. 76, as well as Nos. 2C, 6A, 14A and Addendum C of the Shellfish Transplant Permit No. 95-TR-10. Since the Department issued the latter permit to Mr. Ore's transporter, it is not clear how Mr. Ore violated the terms of the latter permit.

In addition to the violations that allegedly occurred on September 13, 1995, the Department contends that Mr. Ore was suspended from the transplant program in 1991 during the Lemon Creek Project, and in 1994 during the Tottenville Project.

The Permittee's Position

In a letter dated October 31, 1995, Mr. Ore explained that, on September 13, 1995, his other crew members and monitor returned to port early without any clams, and consequently cancelled the transport truck assigned to the Permittee's crew. Mr. Ore stated that before his crew returned to port, he had dug about $100.00 worth of clams. Although his assigned transport truck had been cancelled because his other crew members had not harvested any clams, Mr. Ore said that he wanted to get paid for his work, rather than throw back the clams that he had dug.

Therefore, Mr. Ore gave the clams to a digger in another crew with the understanding that this digger would sell the clams harvested by Mr. Ore to that digger's assigned transporter. Later this digger would pay Mr. Ore for the clams that he had given to the other digger. The identity of the other digger is not known, and it is not known whether the Department suspended this digger from the transplant program for these actions.

During the conference, Mr. Ore provided additional information about the events that occurred on September 13, 1995 as well as the circumstances concerning his suspensions from the transplant program in 1991 and 1994. As discussed further below, Mr. Ore will have an opportunity to present evidence about the events of September 13, 1995 and the circumstances of his earlier suspensions.

Relief

The Department wants to suspend Mr. Ore from the transplant program for 3 to 5 years. According to the Department, the Permittee's actions have threatened the integrity of the transplant program and endangered the public health. Based on the discussion during the conference, suspending Mr. Ore from the transplant program would not effect Mr. Ore's ability to harvest shellfish from certified waters according to the terms of his Part 42 shellfish permit.

During the conference, the Department could not confirm or deny whether Mr. Ore has ever violated the terms of his shellfish permit issued pursuant to Part 42. With a memorandum dated December 14, 1995, the Department provided me with a record of Mr. Ore's violations. Since there is no indication that the Department sent a copy of this memorandum to Mr. Ore, I have enclosed a copy for his information.

During the conference, Mr. Ore stated that he would agree to a one year suspension from the transplant program. Mr. Ore promised not to violate the terms of the transplant permit again, and has made arrangements to work with other participants in the transplant program for 1996. Mr. Ore expects that his future crew would want to work more frequently than this year's crew. By working in another crew, Mr. Ore hopes to have a more steady income during the transplant season.

Ruling

Although some undisputed facts were identified during the conference, the discussion also identified factual disputes for hearing. Resolving these factual disputes at hearing is necessary to determine how long Mr. Ore should be suspended from the transplant program.

The Parties do not dispute the following. Mr. Ore did not return to port with his crew on September 13, 1995. On that same date, Mr. Ore sold the clams he had harvested to another digger.

Since the purpose of the conference was to determine what the hearing issues are, it would be inappropriate for me to make any additional factual determinations based on what was discussed during the conference. Consequently, a hearing is necessary to develop a record about what happened on September 13, 1995, as well as the circumstances surrounding Mr. Ore's earlier suspensions from the transplant program.

At the hearing, Mr. Ore will have an opportunity to testify and to present any additional evidence about what happened on September 13, 1995, and about the circumstances that led to his suspension from the transplant program in 1991 and 1994.

The Department also will have an opportunity to present more fully the evidence that supports the decision to suspend Mr. Ore as outlined in the Department's October 19, 1995 letter. The Department will be able to present any evidence it has about the Permittee's suspensions from the transplant program in 1991 and 1994.

In addition to the direct evidence that the Parties may present, each Party will have an opportunity to examine the other Party's evidence. Any Party may present argument about the circumstances of this case including, for example, the appropriate length of the suspension.

Further Proceedings

The hearing will begin at 10:00 A.M. on January 9, 1995 at the Division of Marine Resources Offices, 205 Belle Meade Road in East Setauket. The procedures provided in 6 NYCRR Part 622 will be used for the hearing. I am enclosing a copy of these regulations for Mr. Ore. I will exercise my discretion as provided by these regulations to resolve this matter in an efficient manner while ensuring the Parties' due process rights.

The Parties may present opening statements. The Department will then present its direct case first, and Mr. Ore will have an opportunity to cross examine the Department's witnesses. After Mr. Ore presents his direct case, the Department will have an opportunity to cross examine Mr. Ore's witnesses. The Parties will be expected to present their closing arguments orally on the record after all evidence has been presented.

With a memorandum dated December 13, 1995, the Department has sent copies of the Shellfish Transplant - Hand Harvester's Permit No. 76, and the Shellfish Transplant Permit No. 95-TR-10 with Addenda as I requested during the conference.

Mr. Ore stated that he had retained legal counsel. I explained that he should provide me with the name and address of his attorney as soon as possible. Mr. Ore may send me this information or telephone. My address and phone number are provided on the attached Service List dated December 15, 1995. Upon receipt of this information from Mr. Ore, I will update the Service List and forward a copy of this ruling to the Permittee's attorney.

The proceedings will be tape recorded. Therefore, the Parties are encouraged to prepare a written narrative of their witnesses' direct testimony.

Finally, I direct the Parties to try to work out a length of time where Mr. Ore would be suspended from the transplant program that would settle this matter without a hearing.

_____________/s/_____________
Daniel P. O'Connell
Administrative Law Judge

Dated: Albany, New York
December 19, 1995

To: Attached Service List dated December 15, 1995

Attachments

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