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Appeals court hears libel in rem over oysters as attorneys debate ‘sustenance’ and commercial fishing
Summary
In 24P0507 the panel considered whether mussel/oyster forfeiture (a libel in rem) can be defended by asserted Aboriginal/sustenance rights and whether the facts show commercial activity; the record includes disputed facts about harvest location, dealer handling, and a $480 check tied to 1,600 oysters.
The panel considered 24P0507, Commonwealth of Massachusetts v. Pockney, an in‑rem libel proceeding concerning oysters seized by environmental police, and debated whether the defendant’s asserted tribal/aboriginal “sustenance” rights or his conduct as a licensed commercial fisherman controlled the outcome.
Appellant counsel Jeffrey Loeb argued that the word “sustenance,” historically used in references to Aboriginal harvesting rights, should not be read narrowly and that the statutory and historical record supports recognition of subsistence activities beyond immediate personal consumption. Loeb asked the court to view the record facts about which oysters were kept for family use and which were sold through a dealer in that light.
The Commonwealth’s attorney (assistant AG counsel in argument) and the environmental police record show Sergeant Opie inspected a dealer (Big Rock Oyster), located baggedand‑tagged oysters with a harvester tag tied to Pockney’s DMF number, and proceeded with a libel in rem; the record reflects 1,600 oysters associated with a $480 check, and the libel named the oysters as the res. The Commonwealth argued that Pockney presented the oysters to a licensed dealer and the circumstances—bagging, tagging, and attempted dealer sale—bring the transaction into the commercial regulatory scheme rather than into a pure subsistence exemption.
Argument ranged over whether the district court correctly adjudicated the libel on the summary‑judgment record, whether the libel procedure required trial to resolve the defendant’s factual claim that he was harvesting for personal/aboriginal use rather than commercial sale, and whether the Commonwealth properly pursued the in‑rem forfeiture without pursuing further actions against the dealer who resold the product.
Why it matters: The appeals court’s treatment of the factual record and the legal meaning of any Aboriginal‑sustenance exemption could inform enforcement and permitting practices for coastal indigenous harvesters and dealers.
The panel took the matter under advisement after argument.
