Confiscation – Commercial fishing – Indigenous rights
When the Commonwealth brings an action to forfeit the proceeds from the sale of shellfish that were harvested on a day when commercial fishing was not permitted, the judgment in favor of the Commonwealth must be upheld because the person who harvested the shellfish was engaged in a commercial shellfishing activity and was not acting as an individual exercising his or her inherent right to hunt and fish from To live.
“On December 4, 2019, Chenolka Pocknett (“Pocknett”), a member of the Wampanoag Indian Tribe, harvested and sold oysters valued at $480 from Green Pond in Falmouth on a day when commercial fishing was not permitted. He was issued a warning for a civil infraction In violation of 322 Collective Statutes. §16.09. The Commonwealth commenced this defamation action against the proceeds from the sale of the oysters it had seized. Bouknit claimed that, as a member of the Herring Pond Wampanoag tribe, he was entitled to indigenous rights to fish for sustenance. He claimed that The shell hunting activity in which he was engaged, which gave rise to defamation, was an exercise of those rights. After a period of discovery, the court allowed the Commonwealth’s motion for summary judgment and ruled in favor of the defamation petition. Bouknett appealed.
“Bouknett makes a lengthy historical argument in support of his Indigenous rights and recognition under Commonwealth law. Although the Commonwealth disputes some of Bouknett’s claims on this issue, including whether Green Pond is where the Herring Pond Wampanoag tribe historically practiced shellfishing For food, our determination in this appeal does not shift to resolving those issues. In fact, the court ruled that Bouknit is a member of the Herring Pond Wampanoag tribe and is entitled to Indigenous rights to fish and forage for sustenance. However, the court ruled, based on On the record before it, Bouknit engaged in the harvest here as a commercial fisherman operating under his Department of Marine Fisheries permit and in accordance with the regulations governing the commercial harvest of shellfish, and not in the exercise of Aboriginal rights. …
“…The court thus concluded that Bouknett was acting as a commercial fisherman, and not as an individual exercising his inherent right to sustenance. It is also undisputed that Bouknett harvested those oysters from Green Pond in Falmouth during the time the pond was closed for snail fishing.” Commercial. Pocknett’s activities were therefore in violation of 322 C.C. §16.09. We agree with the trial judge and the Commonwealth that sustenance in the context of exercising Aboriginal rights to harvest shellfish does not include the commercial activity in which Pocknett engaged here. …
“Bouknett also argues that since a warning has been issued for the infringement, there can be no forfeiture action. Forfeiture under GLc 257 is an action in rem and not against the person whose activity resulted in the seizure of the illegally obtained property. … Forfeiture proceedings are not dependent on criminal prosecution. … Bouknett’s argument that forfeiture proceedings should fail because he received only a warning rather than a criminal citation is without merit.
“Commonwealth v. Maxim, 429 Mass. 287 (1989) concerned the criminal prosecution of an indigenous rights claimant who harvested oysters for personal consumption, which is distinguishable from this case. … Bouknett’s attempt to shift his business in question here to Aboriginal rights to harvest oysters for his own and his family’s consumption is unconvincing.
“We agree with the proposed judge that under the law, Bouknit was engaged in a commercial shell-hunting activity and subject to the regulations governing that. We therefore find no error of law and deny the appeal.”
Commonwealth v. One Check for $480 (Attorneys Weekly No. 13-041-23) (5 pages) (Finerty, P.J.) (Southern District) A decision by Edmonds, J., was appealed in the Falmouth District Court. And Benjamin A. Goldberger, of Anderson & Krieger, for the Commonwealth; Jeffrey B. Loeb and Jonathan R. Loeb, both of Rich May, PC, for Plaintiff Chenolka Bouknit (App. Div. No. 22-ADCV-91SO) (November 20, 2023).
Click here to read the full text of the opinion.
(Marks for translation) Confiscation