Since 1994, lawyers Stephen Ouellette and Pamela Lafreniere have watched as the fines levied by the National Oceanic and Atmospheric Administration against commercial fishermen in the Northeast inched upward. But a decade ago, the fines began to race. A $75,000 fine for fishing in a closed area, $270,000 for an error in permit paperwork, $180,000 for a broken vessel-monitoring system.
The fines were imposed by NOAA against Northeastern cod, haddock, and yellowtail fishermen whose boats earn, on average, $260,000, according to the Northeast Fisheries Science Center. Ouellette and Lafreniere, of Gloucester and New Bedford, Massachusetts, respectively, challenged these fines in front of U.S. Coast Guard administrative law judges. Generally, the fines were reduced, but NOAA attorneys typically fought any motion for discovery that Ouellette and Lafreniere filed. "We could never get an explanation of why fines were so high. We'd ask how they derived a specific penalty, and they'd object. They'd say that [reasoning behind the penalty] was work product and based on a 'mental impression,' " says Lafreniere, a solo practitioner.
For a decade, the plaintiffs lawyers fought the agency on behalf of clients like monkfish fisherman Richard Burgess, an Ouellette client, who has been fishing off the shores of Gloucester since 1976. In 2008, Burgess was fined $27,000 and had his catch and vessel seized by NOAA for allegedly exceeding his days-at-sea allotment. He paid $25,000. Last year, he was fined $58,700 for what NOAA described as a paperwork violation. For that violation, he gave up 28 days at sea, which he values at $1,600 a day.
Ouellette and Lafreniere also petitioned members of Congress to investigate NOAA's law enforcement. The lawyers didn't make any headway until June 2009 when, at the urging of the Massachusetts delegation, the U.S. Department of Commerce's inspector general's office began a probe of NOAA, in conjunction with accounting firm KPMG LLP. The IG report released its seven-month review of NOAA's fisheries enforcement program and operations in January 2010; a follow-up audit of the administration's asset forfeiture fund was made public in July.
The report revealed that 99 percent of all nonsalary operating expenses for NOAA enforcement and litigation lawyers–about $1 million a year–were covered by fines levied against fishermen. The audit also found that from January 2005 until June 2009, the asset forfeiture fund took in approximately $96 million. NOAA law enforcement personnel spent $49 million of that total in a four-year period on 82,000 transactions, including the purchase of 200 vehicles for 172 agents, plus a $300,000 undercover vessel that the manufacturer described as "luxurious" with a "beautifully appointed cabin," according to the IG report. "I don't think it's a leap to say they were tailoring fines to fit their budget," says Ouellette, of Ouellette & Smith, a maritime firm based in Gloucester, the town of about 30,000 from where the ship sailed in The Perfect Storm .
The IG also found that NOAA agents and attorneys had unrestricted access to the asset forfeiture fund, and that the fund had never been audited. KPMG could not determine the current balance of the asset forfeiture fund –which NOAA had estimated to be around $8.4 million–because "NOAA did not have a consistent definition of the AFF, and indicated the AFF was more of an abstract concept than a tangible entity," according to the IG's review.
Members of Congress representing states along the Eastern seaboard are outraged by the IG's findings. Senator Charles Schumer of New York called on NOAA to sell the items it purchased without authorization and to return that money to fishermen who were unjustly fined. Representatives John Tierney of Massachusetts and Walter Jones of North Carolina called for NOAA head Jane Lubchenco to resign.
In a statement released the same day as the findings of the asset forfeiture fund audit, NOAA said it had already taken action to "improve policies, management processes, and internal controls of the fund." Later in July, NOAA released a "corrective action plan" for the fund to ensure "that monies collected from fisheries enforcement penalties are properly accounted for and used."
The IG report has already cost one NOAA official his job. Dale Jones was removed from his post as director of law enforcement after the IG alleged that Jones had ordered the destruction of official documents during the ongoing investigation. A NOAA spokesperson says Jones is not currently assigned to a position but is still employed by NOAA and awaiting reassignment.
For Ouellette and Lafreniere, who spent years urging Congress to investigate NOAA, the IG's findings serve as vindication, but the fight is ongoing. They both want to see retroactive justice, as do their clients. "The money should be returned to every single fishermen," says Burgess, who employs eight other full-time fishermen and owns four boats that gross about $800,000 total. He's been called to testify in front of the IG twice since the investigation began. "The last few years have been torturous," he says. "I'm standing up for what few rights I have left."
At a summit NOAA hosted in early August to address the IG's recommendations, Lubchenco spoke of the importance of effective fishing enforcement, but gave no hint of reexamining past cases. The IG is now investigating individual cases, but the findings had not been released as of press time and no fines had been refunded. "My clients paid to run that office for years," says Lafreniere. "We're not relenting until there's true reform."
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