Neither Grace Nor Gravy

by Bruce McEwen, July 1, 2009

The abalone fillet sizzled in a pan of seasoned butter. The wine was so cold the bottle sweated. A dash of brandy went into the pan, the alcohol caught and the chef flipped the fillet in a cloudlet of flame. An auspicious aroma escaped into the dining room where the tables were spread with linen, china, silver, crystal, candles, flowers…

Not hardly.

These defendants were accused of shucking the abalone and gobbling them raw as they stood knee deep in a tidepool, tossing the abs down with neither grace nor gravy.

Defense attorney Bart Kronfeld was incredulous.

“Guts and all?” he exclaimed.

“They pulled the guts off and threw them away,” Fish and Game warden Don Powers clarified.

The judge was as amazed as defense attorney Kronfeld.
“They didn't trim off the black edge or cut away the foot?”

“No,” Powers said.

“But isn't the foot… rather tough?”

“There was a lot of chewing involved,” the game warden replied drily.

Judge Lehan was clearly beguiled.

His Honor asked the warden to describe this freshest of fresh food dining experience in more detail.

“They just shucked the ab out of the shell with an ab bar, pulled off the guts and ate it,” said Powers.

The judge's forefinger curled thoughtfully in front of his lip. “Really?” he said. “How?”

“Well, you know. They just bit into it.”

“They just took a bite?”

“They were small. They were under the limit. I saw them measure the abs with the ab gauge, and they were way too small.”

Warden Powers said he watched the two defendants last November as they stood rock-picking in a low tide in the Dehaven Creek area of Westport on the very edge of the Pacific Ocean, two sushi gourmets prying tiny delectables from their undersize shells and eating them fresh plucked from ancient, briney boulders

Mr. Kronfeld asked the game warden to remember the weather that day.

“It was dry and overcast,” Powers said.

“It was also a drippy, foggy day, was it not?” Kronfeld suggested.

“Yes, it was.”

“And that fog didn't obscure your visibility?”

“No, it didn't.”

“How long were you there watching the defendants?”

“A couple of hours, at least.”

“Why didn't you take steps to stop the crime?”

Powers shrugged, knowing the question had no answer except a wrong one.

Defense attorney Kronfeld persisted.

“You say you're protecting a valuable resource and yet you sit and watch for two hours allowing the illegal action to occur without taking steps to protect a valuable resource? That's what you do? Watch people violate Fish and Game laws?”

“That's what I do,” Warden Powers replied in the voice of a man who refused to play When Did You Stop Beating Your Wife.

Mr. Kronfeld called his witnesses, the defendants, who were two Koreans accompanied and their interpreter, also a Korean.

The Koreans said they weren't eating abalone. They said they were eating sea urchin roe which, like caviar, is generally eaten raw, although one suspects most consumers of sea urchin parts exit the surf before downing them.

Warden Powers was called back to the stand. Could he have mistaken a sea urchin for an abalone?

“Not a chance,”Powers said.

Mr. Stoen asked, “Do you keep notes when you are watching people rock-picking abalone?”

“Yes.”

“And later you record the notes in your report?”

“Yes.”

Powers was allowed to consult his report regarding this episode as Kronfeld pointed out that the warden was asserting he observed different people doing different things at the same time, and Kronfeld doubted Powers' skill at multi-tasking.

But Powers assured the defense attorney that a minute was a long time in such circumstances and that all the people in question were in his field of view – mostly, he said, they were within the sight picture of his binoculars.

Stoen asked Powers how far he was from the two rock-pickers.

“About 50 yards.”

“And how far apart were these individuals from one another?”

“They were no more then 15-20 feet apart and mostly in view, except when going behind a wash rock.”

“What is a wash rock?”

“It's a rock in the intertidal area you can see at high tide.”

Mr. Stoen began his closing argument by flattering Kronfeld as an adroit and sophisticated attorney, but quickly moved to the heart of the dispute.

“But let's take the big picture,” Stoen said. “The warden got close enough to the people to clearly distinguish between an abalone and a sea urchin. He takes notes by the minute and when asked for details he has a very credible response. This case boils down to whether we can take the word of the warden over the defendants, and the defendents, well, they have a personal interest, whereas the warden is protecting a valuable resource. I would submit that the evidence supports a guilty charge and ask for the standard fine.”

Mr. Kronfeld rose to rebut. He ignored Stoen’s flattery and reminded the court that all witnesses were sworn to tell the truth. He said that Powers was a professional witness and that Powers, too, had a personal interest in defending the accuracy of his report.

“Mr. Stoen says over and over that the warden’s only interest is in protecting a valuable resource. And yet he spends two hours watching – rather than stopping – the taking of this valuable resource, if that's really what's going on.”

Judge Lehan was unpersuaded at Kronfeld's attempt to make the game warden the criminal. He found the two tide pool gourmets guilty and imposed the standard fines, forfeitures, and probations.

After the trial I ran into a couple of homeless dudes. They said the Fort Bragg Food Bank had just gotten a bunch of abalones. I called the Food Bank and, yes, the Fish and Game Department donated a hundred abs. The food bank will host an abalone dinner on August 8 at 4pm at the Catholic Church in Fort Bragg. It's a fund-raising event.

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