River Views

by Malcolm Macdonald, August 20, 2013

Australians call them muttonshells, but we say abalone; the term deriving from the Spanish abulón. However you say it, the flesh of the abalone is such a commodity that its reputed black market value in the Bay Area and Sacramento runs into hundreds of dollars each. California’s Department of Fish and Game has its hands full attempting to enforce the law when it comes to poachers who often arrive at secluded diving spots well before dawn. Fish and Game is so outmanned that a volunteer group, Ab Watch, has formed in recent years, to provide added eyes up and down the Mendocino Coast. Seasonal limits have been reduced, but the poaching goes on and on.

Punishment does not often completely deter criminals, but if the fines for abalone poaching reach levels that diminish the profitability of the poachers then the abalone population might have some chance of returning to something near the levels of this columnist’s childhood when diving for abs was almost unheard of because, at low tides, the mollusks could easily be picked off shoreline rocks.

In an effort to stiffen and standardize the fines for abalone violations in Fort Bragg’s Ten Mile Court the members of Mendocino Abalone Watch and the Mendocino County District Attorney’s office agreed on sentencing recommendations for the 2013 season. Essentially those standardized fines amounted to this: a one-abalone violation equals $813.50 in fines and assessments plus 12 months probation plus forfeiture of fishing gear and items seized upon arrest (meaning the abs), the surrender of fishing license and ab report cards, and eight hours of community service. The fines progress monetarily to a base fine of $1,000 per abalone when the violation rises to more than six abalone over the limit. At that level a violator also forfeits any abs taken, their fishing gear, license and ab report cards, and is placed on 24 months of probation. In addition the violator would receive 20-30 days in jail or perform 250 hours of community service.

What could possibly screw up the system? Enter Judge Clayton Brennan. At a typical June Ten Mile Court session, Brennan, without consulting the Assistant District Attorney for recommendations, reduced case after case of ab violations to infractions: a $680.50 fine with none of the other penalty provisions. In late July, with Brennan on vacation, visiting Judge Andria Richey followed the recommendations of the Assistant DA to the letter.

Something strange is going on with Judge Brennan. At some point in June he cut off the usual practice of calling the cases of private attorneys first. The bailiff could be heard whispering this information to several lawyers as well as an admonition that Judge Brennan would not enter the court until all the attorneys were seated like schoolchildren before him.

 

By the time Brennan returned from vacation in August the private attorneys were once again allowed to clear their cases first. However, Brennan’s adjudication of abalone violations was all over the place. He neglected to mention any community service provisions. He told the assembled multitude of ab violators that he must be entirely consistent in judging them, then went right ahead handing down infraction sentences for obvious misdemeanor violations. The topper came when the Assistant DA recommended a fine, in accordance with the guidelines, of more than $7,000 for a poacher caught with seven abs over the limit. Without rhyme, reason or cause Brennan reduced the fine to less than half that and again neglected to mention the 250 hours of community service that should have gone along with the monetary punishment. At that point one long time court observer was heard muttering, “What a farce!”

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