Divers challenge seizure of abalone

A group of abalone divers is challenging the confiscation of their take by a Sonoma County sheriff's deputy, who cited them for trespassing, then seized the abalone and gave it to firefighters.

"Somebody really got a hustle on that," said Jasper Monti, an attorney representing the five men, one of whom is from Sebastopol, one from Arcata and three from San Francisco.

Monti contends the deputy had no legal basis to seize the dozen mollusks, which the men harvested the morning of June 30 off the coast at The Sea Ranch.

A sheriff's spokesman disagrees, saying the men trespassed to get the abalone, therefore making their catch illegal contraband eligible to be confiscated.

According to Deputy Rich Zunino's report of the incident, he cited the men for trespassing on private land and warned them about not properly tagging their abalone or filling out their fishing cards.

The deputy responded to the coast at the behest of Sea Ranch Association security personnel, who complained that the men parked their pickup on private property.

Zunino wrote that he believed the men had crossed a picket fence that was marked "no trespassing" to get to the Galleons Reach beach.

"I observed that none of the suspects had tagged their abalone when they exited the water. They changed their cloths (sic) first," the report said. "I then observed that they did not start to tag their abalone until they observed me."

New abalone fishing rules this year require fishermen to fill out their cards and tag the abalone "immediately upon exiting the water." The men weren't cited for any fishing irregularities, only warned, according to Zunino's report and Monti.

Monti said that even if the trespassing infraction were valid -- and he claims it isn't -- that didn't give the deputy the right to take the men's abalone.

"It verges on corruption, really," he said. "If you took something else, it would be stealing. This is tantamount to stealing because you have no right to take them."

One of the men is demanding a trial on the trespassing infraction charge as a way of addressing the loss of the abalone.

Sheriff's Capt. Dave Edmonds said that just because a deputy didn't issue a citation doesn't mean it was improper to confiscate the abalone: "If a person has trespassed and got ill-gotten gains as a result of the trespass, I think it would be appropriate to seize it."

The deputy could have arrested them for misdemeanor fishing violations, Edmonds said, cited them, filed for a complaint with the District Attorney's Office or warned them. "All would reasonably include seizure."

Monti also questioned giving the seized abalone -- a prized delicacy that divers risk their lives in cold, kelp-laden waters to harvest -- to the Sea Ranch Fire Department.

Zunino wrote in his report that he "donated" the abalone, along with a fish, to the department. He wrote that some sea urchins the men had were "returned to the ocean."

Sea Ranch Fire Chief Dan Levin didn't return a call seeking comment.

"It is not an altogether uncommon practice," Edmonds said. "If abs are fresh enough to be returned to the ocean, they will be. If not, we document them and give to nonprofits or fire departments or the Coast Guard."

Monti questioned the propriety of making a gift of an item seized in connection with an alleged crime -- particularly a crime that wasn't charged.

"Even if they were dead guilty of the trespassing, it's just a trespassing citation. There's nothing in the law for seizure of their abalone," he said. "There is no legal authority to do that. Before someone takes something from somebody on a permanent basis, there has to be some due process. He's operating as the judge, jury and executioner."

"If the suspects are upset that they didn't get prosecuted for the ab violations, it is not too late for us to amend the criminal complaint to include those," Edmonds countered.

Lt. Steve Riske of the state Department of Fish and Game said his department usually freezes seized abalone until after the criminal case is adjudicated. But, he said, sometimes it is given to charitable organizations after it is photographed and a receipt issued.

Monti, on behalf of San Francisco resident August Marino, is demanding a court trial on the trespassing citation. His client doesn't want the abalone back or the value of them, he said. The other clients are Michael Rosene and Jeffrey Duerson of San Francisco, Thomas Williams of Arcata and Derek Whittington of Sebastopol.

"The fact is, somebody is getting abalone for free that they're not entitled to," he said. "My clients would like to sue to stop the practice."

You can reach Staff Writer L.A. Carter at 568-5312 or lori.carter@pressdemocrat.com.