Lobster poaching – 3 must pay R293m to SA, says US court

John Harvey

A US judge has ordered three men to pay the South African government $29.5-million (R293-million) in restitution for the unlawful harvesting of Western Cape rock lobster over a 14-year period.

The order by US District Judge Lewis Kaplan in New York on Friday makes this the largest known restitution order to South Africa in terms of environmental crime.

It is also the largest restitution in a Lacey Act case in history. The Lacey Act is a federal statute that makes it a crime to import into the US any fish, wildlife or plants taken in violation of state or foreign law.

Kaplan said a credit of more than $7-million (R70-million) of the R293-million had already been paid by the men to South Africa as part of a separate criminal case.

The order, based on a recommendation by US magistrate Andrew Peck in August last year that the men be made to pay $54.8-million (R446-million at the time) in restitution, was yesterday applauded by the Department of Agriculture, Forestry and Fisheries (DAFF).

Spokeswoman Palesa Mokomele said: “We welcome this decision. It is a massive coup, not only for DAFF but the whole country, because it will send out a strong message to poachers that they will be punished if they break the law.

“It sends out a message to poachers that the authorities are watching, and action will be taken. The amount is not as much as the recommendation, but it is still highly significant.”

Between 1987 and August 2001, Arnold Bengis, 77, then managing director of Hout Bay Fishing Industries, his son David Bengis, 43, and Jeffrey Noll, 62, chairman and president of Icebrand Seafoods and Associated Sea Fisheries in Manhattan, engaged in an elaborate scheme to harvest illegally large quantities of South and West Coast rock lobster and then to export the lobster to the US.

All three are South African citizens but also hold US citizenship. The Bengis family currently lives in London, while Noll lives in Boca Raton in Florida.

The men underreported the fish harvested to South African authorities and bribed South African fisheries inspectors to help them carry out their illegal harvesting scheme.

They also submitted false export documents to South African authorities. In addition, they arranged for previously disadvantaged South African citizens who did not have valid US working permits to work for low wages at their fish processing facility in Portland, Maine, where the employees were required to process the illegal rock lobster.

The US attorney for the Southern District of New York, Preet Bharara, said on Friday: “As today’s order demonstrates, those who violate the environmental laws of another country by illegally taking fish, wildlife or plants and then import these items into the US will be required to pay back the victims of their offences.”

Wilderness Foundation head Andrew Muir was elated with the ruling.

“It [the order] is highly significant because while there is an emphasis on rhino poaching, we often lose perspective that illegal activity is also going on in other spheres, like elephant, abalone and lobster poaching … around the country.

“To my knowledge, this is the biggest environmental restitution payment to South Africa. This [order] signals that there is a global attitude towards stamping out environmental crime.”

Muir hoped South Africa would use the funds to “rebuild” the depleted rock lobster population and create effective law enforcement structures to curb poaching. “The window to save endangered species is closing unless actions like this court ruling continue to be made.”

In 2003, all three men were charged with importing illegally harvested South African South Coast and West Coast rock lobster into the US. The indictment alleged the lobster had been harvested in violation of both South African law and international convention, by being caught in amounts well in excess of the quota established by South African law or without required permits. In 2004, Arnold Bengis and Noll each pleaded guilty to one count of conspiracy to violate the Lacey Act and to commit smuggling, and three separate counts of violating the act. Arnold Bengis served 46 months, Noll 30 months and David Bengis a year.

While all men served their sentences, in January 2011, the US Court of Appeals for the Second Circuit overturned Kaplan’s 2007 ruling and held instead that South Africa had a property interest in illegally harvested rock lobster and, therefore, that the defendants had committed an “offence against property”, thereby entitling South Africa to restitution.

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