Official Intervened in Friend’s Sentencing

California Fish and Game Commission President James W. Kellogg intervened in the criminal sentencing of a San Francisco Bay herring fisherman, telling authorities in a letter that his “good friend” has “suffered enough and that no additional punishment is warranted at this time.”

The intervention of Kellogg, a Concord-based labor-union negotiator who was appointed two years ago by former Gov. Gray Davis, was unsuccessful. But it has increased tensions between the rule-making commission and the state Department of Fish and Game, which carries out those rules and underlying state laws.

The misdemeanor case involves the San Francisco Bay’s troubled herring fishery, which department biologists say has become so overworked that the department has tried repeatedly to shut it down, only to have Kellogg and other commissioners reject it out of concern for fishermen’s livelihoods.

Kellogg, while presiding over a commission meeting last fall, announced that he didn’t “believe science” over the experience of herring fisherman. He dismissed the department’s biologists, saying, “I know a little bit about science and I know certainly how to hire scientists to say what I want to say.”

In November, after that meeting, he wrote to officials of a Marin County court that was deciding the sentence of his friend, Salvatore “Uncle Sammy” Papetti Sr., who had been convicted of using illegally sized fishing nets.

Kellogg, who represents plumbers and pipe fitters, has not returned phone calls this week. Papetti, a former union steward, said he was a longtime friend of Kellogg, and that the two had gotten to know each other at union functions in Concord.

In the Nov. 16 letter on union stationary that misspelled “herring,” Kellogg vouched for Papetti’s character as “a man of the highest integrity and credibility” and added that it’s “a shame that he has been caught up in this situation.”

“As the current President of the State of California Fish & Game Commission I can assure you that as the rule making body for fishing and hunting regulations we are cleaning up the discrepancies in the San Francisco Bay Hearing Fishery Laws so that there will no longer be the type of confusion that exists in this case,” Kellogg wrote.

Specifically, he wrote, the commission has directed the department to evaluate switching to an alternate net size that would have nullified Papetti’s case and to “adopt a fair way of measuring nets that everybody will understand.”

Geoff Iida, a Marin County deputy district attorney who prosecuted Papetti, said he considered Kellogg’s letter inappropriate, given that Kellogg represented himself as speaking for the five-member commission that sets California’s fishing rules.

Iida said the letter didn’t appear to influence the outcome of the sentencing. Papetti, 83, and his fishing partner, Robert Scardina, 55, were both convicted during a four-day jury trial last year of fishing with a net that was too long, and with mesh too narrow to allow smaller, juvenile fish to escape. The judge followed the prosecutor’s recommendation that both men be fined $1,000 and placed on six months’ probation.

“I don’t think there is confusion on how the nets should be measured,” Iida said. “The defense raised that argument and the jury rejected it. It’s laid out very specifically in the code of regulations.”

Lt. Don Kelly, who supervises fish and game wardens from San Francisco to Monterey, called Kellogg’s letter “unethical” and part of a disturbing pattern on the part of the state’s top fish and game policymaker. “When I was testifying [before the commission] he said to me, ‘I don’t care about the science. I care about the people.’ That’s absolutely inappropriate for a man who is supposed to be weighing all factors in protecting the natural resources of California.”

The main issue in the case was the mesh size in the gill nets, which fishermen set in the shallows of San Francisco Bay to serve as underwater curtains to catch the herring as they return from the ocean every winter to spawn. The fishermen sell the herring eggs, or roe, as an export to sushi bars in Japan.

The bay’s herring have declined by about 80% of their historic populations, scientists say, and every year state fish authorities limit the total catch, restrict the length of the season and limit net mesh size to 2 1/8 inches or larger, so that smaller, younger fish can slip through and spawn at least once before being caught.

Mesh size has grown increasingly contentious as the older, larger herring have been caught, leaving mostly the smaller, younger fish that pass through legal-sized nets. Some herring fishermen said they began using nets with slightly tighter mesh, anticipating the nets would stretch to the legal size when wet. A small difference in mesh size, they say, can mean a big haul of fish, or nothing.

Fish and game wardens noticed that some nets were laden with fish and others next to them empty, Kelly said. “That prompted us to check more of these nets and find that they were undersized,” resulting in more than half a dozen misdemeanor cases.

“We are not trying to create antagonistic circumstances or disrupt anyone’s business,” Kelly said. “It’s an unfair business practice for someone to use undersized gear, and the next guy who is playing by the rules is getting cheated.”

Sam Liberati, a retired herring fishermen and cousin of Papetti, asked Kellogg and other commissioners last year to reduce the mesh size to 2 inches. Kellogg supported the idea and his fellow commissioners joined him to instruct the department to study the impact of the smaller mesh on herring populations. The study has not been finished.

The jury didn’t understand the significance of the commission vote, or didn’t want to understand, said Ilson New, Papetti’s defense attorney.

“The Marin County jury, which had more tree huggers than a board meeting of the Sierra Club, found him guilty,” New said.

Meanwhile, Papetti and Scardina were back on the bay Wednesday, fishing with a mesh with a legal size of 2 1/8 inches. “It’s like not fishing at all,” Scardina said, saying that most fish pass through their nets.