U.S. — U.S. v. Bengis, No. 07-4895-CR (2d Cir. Jan 4, 2011) (ordering restitution for illegal overfishing)

To download this decision, please click on the .pdf link

Summary:

For four years, three U.S. citizens orchestrated a scheme to illegally harvest large quantities of rock lobsters off the coast of South Africa for export to the U.S.  After the scheme came to light, South African authorities could not arrest the U.S. individuals because they were beyond jurisdictional reach, and instead prosecuted the South African individuals who participated in and aided the scheme.  

U.S. authorities charged the three ringleaders with violations of the Lacey Act (the Lacey Act prohibits trafficking in illegal wildlife, fish, and plants), and the individuals served some jail time and forfeited a significant sum of money to the U.S. government.

The U.S. government also sought a restitution order to compensate the South African government for damage to the rock lobster fishery.  Although this request was denied by a lower court, the U.S. Court of Appeals for the Second Circuit overturned the lower court's decision and held that South Africa is entitled to restitution because it suffered a loss of property.  Under South African law, authorities are permitted to seize illegally harvested fish, to sell it, and to retain the proceeds; therefore, the action of concealing the overharvested rock lobsters denied revenue to the South African government.

The court also noted that calculating restitution would not be "too complex," and sanctioned a restitution formula derived from the market value of the overharvested fish.  Although the final restitution amount will be determined by a lower court, initial calculations submitted to the appeals court amounted to US$54.9 million.