Fishing Industry Alerts

There are new data on menhaden that potentially contradicts its overfishing designation, showing that the population may be twice as high as current estimates.

WASHINGTON (Saving Seafood) August 28, 2012 — The Atlantic States Marine Fisheries Commission (ASMFC) is currently considering potentially drastic cuts to the Atlantic menhaden harvest, as a result of a 2010 assessment that showed overfishing. Not much data are available on the current state of the fishery, as the most recently available assessment from 2012 was deemed severely flawed by the ASMFC’s Menhaden Technical Committee, and is an unreliable gauge of the health of the menhaden stock. Outside of the 2012 stock assessment, there are new data on menhaden that potentially contradicts the overfishing designation, showing that the population may be twice as high as current estimates. There is precedent for regulatory agencies to consider such data, most notably in the late 1990s with the scallop fishery and in the early 2000s with the monkfish fishery.
 
The additional data, an aerial survey of the North Atlantic conducted by fish stock survey expert Dr. James Sulikowski of the University of New England, showed a significant number of menhaden in northern waters, areas menhaden are known to inhabit but for which little data were previously available. The survey results were analyzed by Dr. Doug Butterworth, a world-renowned stock assessment scientist from the University of Cape Town in South Africa, and Dr. Alexia Morgan, who has consulted with organizations such as the New England Aquarium, the Blue Ocean Institute, and the Pew Environment Group. The results of the North Atlantic aerial survey were compared with contemporaneous aerial observations made by spotter pilots in the southern portion of the menhaden fishery’s range.  Based on these comparisons, Drs. Butterworth and Morgan found that menhaden stock biomass may be twice as high as measured in the currently-used 2010 assessment, which found that overfishing is occurring but that menhaden are not overfished.

Using single-year, non-peer-reviewed data to temper the extent of new regulations is not unprecedented in fisheries management. In 1998, harvest cuts were enacted that would have been drastic enough to effectively shut down most of the New England scallop fishing fleet. Before the cuts in fishing opportunities scheduled for 1999 went into effect, the University of Massachusetts, Dartmouth Center for Marine Science and Technology (now SMAST), the Fisheries Survival Fund, and NMFS collaborated on a scallop survey in areas that were then off-limits to fishing. The study revealed high scallop abundance in the closed areas and, as a result, the New England Fishery Management Council (NEFMC) decided to keep the fishery at status quo through successive framework actions over the next few years.

Similarly, in 1999, after years of poor surveys, regulators developed a four-year plan to reduce overfishing and rebuild the Atlantic monkfish stock that was to have resulted in a zero possession limit in year four. Concerned for their livelihood and believing the stock to be in much better shaped than apparent in the NMFS annual survey, Brooklyn-based monkfish processor Marc Agger formed with other members of the industry the Monkfish Defense Fund (MDF). The MDF retained an independent scientific advisor, Dr. J. J. Maguire, who helped design and implement a cooperative trawl survey, which, according to Monkfish Framework 1, “provided a wealth of new information and allowed a more complete assessment of the monkfish resource than had been previously possible.”

Although the survey methodology and results had not been peer reviewed, the information gathered was used in the January 2002 Stock Assessment Workshop, which concluded the stock was in much better shape than previously thought. The industry survey’s results were also used to justify a one-year postponement of the fourth-year harvest reduction until more information was collected to get a complete picture of the health of the monkfish population. The monkfish survey sponsored by the MDF was conducted two subsequent times, with each survey showing consistently higher estimates than the official trawl survey.

The ASMFC recognizes the inadequacies of the existing menhaden stock assessment data. The Menhaden Technical Committee, the arm of the ASMFC that reviews menhaden stock assessments, concluded that the 2012 menhaden assessment is not a suitable guide for management decisions. Most notable among the flaws identified by the Technical Committee is the appearance of a retrospective pattern, meaning that the estimates in previous population assessments contradict the population estimates in the most recent assessment, and need to be revised in order to fit the more current data. The appearance of a retrospective pattern in a stock assessment indicates that some of the assumptions that are built into the assessment model are incorrect. It is a sign the model is no longer working and needs to be revised.

The Atlantic menhaden fishery currently faces a situation similar to those previously faced by the scallop and monkfish fisheries. Regulators are currently dealing with a data-poor situation and are considering large cuts to the menhaden harvest, while recently available data suggests that these cuts might not be necessary, or might not need to be as large. In previous cases, non-peer-reviewed data from a single year was used to delay potentially drastic management decisions. Adopting a similarly cautious approach could provide time to allow the ASMFC to acquire more comprehensive information on the health of Atlantic menhaden.

 
Additional resources

Areas of Concern in the ASMFC's 2012 Atlantic Menhaden Assessment Update

For a definition of "retrospective pattern", see our glossary.

 

 

At a public meeting today, New Bedford Mayor John Mitchell presented a letter he and Gloucester Mayor Carolyn Kirk authored asking that no changes be made to catch limits.

BOSTON (Saving Seafood) August 24, 2012 — At a public meeting today of the New England Fishery Management Council's (NEFMC) Scientific and Statistical Committee (SSC), New Bedford Mayor John Mitchell presented a letter he and Gloucester Mayor Carolyn Kirk jointly authored asking the SSC to recommend to the New England Fisheries Management Council that no changes be made to current Annual Catch Limits (ACL) until there is confidence in the accuracy of the stock assessments.

New Bedford is the nation's most profitable fishing port, Gloucester is the nation's oldest.

After reading the letter, Mayor Mitchell expressed concern that the SSC was not considering the economic impact of their decisions. He urged that, "the SSC put the breaks on the train," adding, "if things remain in motion as they appear to be, we will lose those jobs, we will devastate fishing communities, and we will put families out of business for a long time."

On August 2, NOAA and the NEFMC estimated that several stocks in the Northeast multispecies fishery would face ACL cuts of 45% to 73% for the 2013 fishing year.  
 
According to the mayors' letter,  potential cuts to species such as cod and yellowtail flounder, are based on stock assessments that are methodologically flawed, and that there is a great amount of uncertainty regarding the health of the groundfish stocks. The Mayors recommend that the SSC keep the current ACLs in place while they conduct an end-to-end stock assessment review, looking at issues such as the data collection process, population models, reference points, and other uncertainties. The letter adds that keeping ACLs constant while the stock assessment process is reviewed is consistent with National Standard 8 of the Magnuson-Stevens Act, "which requires that conservation and management measures take into account economic and social data in order to provide for the sustained participation of, and to minimize adverse economic impacts on, fishing communities."
 
The Mayors also state that if the estimated ACL cuts go through, they would have a devastating effect on the economies of New Bedford and Gloucester. Each port records groundfish revenues over $20 million, and the letter estimates that, "the groundfish industry is worth a combined total of $141 million to New Bedford and Gloucester alone." In addition to affecting revenue directly from groundfish, the ACL cuts would also impact the nation's most valuable fishery, that of Atlantic scallops, which catches yellowtail flounder as bycatch. According to the mayors, the scallop industry is annually responsible for $400 million in revenue and $1.2 billion in economic activity.
 
Because the resulting economic damage from the ACL cuts would, "deal a crippling blow to the groundfish and scallop industries," the letter urges that the SSC, "recommend to the Council a pause before any changes are made to the status quo, allowing time for scientific uncertainties to be resolved."
 
Drew Minkiewicz, of the Fisheries Survival Fund, an industry group that includes the majority of full-time, limited-access scallop permit holders, questioned the suitability of the assessment models to be able to provide worthwhile management advice. "We all agree that having a proper assessment based on a working model is the best way to go, but we don't have that now," he said. "We need to accept that this model is not acceptable. We need to set a standard and say there is a level below which a model cannot go." 
 
Rodney Avilla, a commercial fisherman and a former member of the New England Fishery Management Council, expressed similar concerns, "when we make decisions, we always seem to go on the side of the fish," reminding the SSC that, " all the advice you give to the Council affects human lives."
 
Read the mayors' letter
 
Listen to Mayor Jon Mitchell, Drew Minkiewicz and Rodney Avila speak during the public comment period

 

 

 

 

In a report to the House and Senate Appropriations Committees, NOAA concluded that the potential costs of relocating its Northeast Regional Office (NERO) in Gloucester to the Washington, DC area would outweigh the potential benefits.

Relocating the NERO office to the Washington, DC area would improve communications and operations with NOAA headquarters in Silver Spring, MD, and Mid-Atlantic-based fisheries, but at the expense of making operations in New England less effective, according to the report. If NERO were operating out of Washington, the report finds that Mid-Atlantic state governments and fishermen would have easier access to NERO staff and services, and that relocation to the area, "would afford the opportunity for frequent personal contact between NERO and NMFS [National Marine Fisheries Service] headquarters leadership." Similarly, it finds that NERO field offices in the region would benefit from easier internal communications with NERO headquarters, and the relocation would allow for better coordination with the Mid-Atlantic Fishery Management Council (MAFMC) in Delaware.

However, the report also finds, "for members of the fishing industry in the New England portion of the region, the move would complicate access to NERO." The New England region accounts for 72 percent of the fishing vessels, 63 percent of the dealers, and 66 percent of the operators under NERO's jurisdiction, and the report notes, "at its current location, NERO is accessible to many members of the fishing industry and many walk-in services are provided." The report concludes that moving the headquarters from Gloucester would make communications between NERO and its New England field offices and staff more difficult, and that, "responsiveness to their respective states and constituencies may be affected." The move would also impair work and communications with the New England Fisheries Management Council (NEFMC), which the report finds "frequently necessitate face-to-face interactions."

The report found that keeping the office in Gloucester would cost the government the least amount of money. In 2008, NMFS signed a lease for a new building in Gloucester to house NERO, costing 1.8 million dollars per year. This lease is not set to expire until September 2023, and terminating the lease prior to this date would force the government to either agree to the negotiated terms of vacating the premises, or pay the rent for the remainder of the lease.

A financial outline of all relocation scenarios is provided in the report. It gives a detailed breakdown of the total cost of moving the office to the Washington, DC area within the next three years (with the lease buy-out or the remaining payments), remaining at status quo, or moving the office when the Gloucester lease expires in 2023. This financial analysis shows that between the moving costs, change of station costs, recruitment costs, new building costs, and the lease on the Gloucester building, keeping the building in Gloucester is the best option financially. The report states, "a minimum 21 million dollar investment would be needed to relocate the office in the first year, and the costs in the out years would be higher under any relocation scenario, than under the status quo."
 

 Read the full report here.

 

 

Today, U.S. Senators John Kerry and Scott Brown, along with Congressmen Barney Frank, John Tierney, and William Keating, sent a letter imploring President Obama to act on a disaster declaration for New England fishing communities.

WASHINGTON– August 15, 2012 — Today, U.S. Senators John Kerry and Scott Brown, along with Congressmen Barney Frank, John Tierney, and William Keating, sent a letter imploring President Obama to act on a disaster declaration for New England fishing communities that face a growing crisis due to federal fishing regulations. Over the past two years, federal fishing regulators have stalled similar disaster declaration requests from New England states.

The request comes after the White House this week announced millions of dollars in aid for agricultural producers, but again neglected to address the dire situation faced by fishermen.

The delegation's letter is as follows:

President Barack Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Dear Mr. President,

We are concerned that recent efforts by your administration to provide disaster relief for agricultural producers, including catfish farmers, affected by drought throughout the United States did not include assistance for the hardworking fishermen and fishing communities in New England.

In light of the deepening disaster faced by Massachusetts fishing communities, we write today to again express our support for a disaster declaration and federal assistance for New England fishermen.

Over the past two years, federal fishing regulators have stalled similar disaster declaration requests from New England states. It was at an October 2011 Congressional hearing that NOAA Administrator Jane Lubchenco promised to put Massachusetts Governor Deval Patrick's disaster declaration request on the "fast track."  Since then other New England states have filed similar requests.

Earlier this month, we again urged the Department of Commerce and NOAA to declare a disaster and put together a plan to provide meaningful relief. The Massachusetts fishing industry has been devastated in recent years and the situation for our fishing communities is becoming increasingly desperate. According to recent estimates, annual catch limits for several important groundfish species next year could be reduced by between 45 percent and 73 percent. This unwelcome news comes at a time when the fleet size has already been decimated by NOAA regulations that have smaller independent operators and fishing communities struggling to survive. More than a third of the New England fleet stands idle and a centuries-old industry is at risk of collapse.

Before you took office, our hardworking fishermen and fishing businesses faced inflated fines and enforcement tactics that violated American standards for decent government conduct.  An independent investigator hired by the Department of Commerce found that some of NOAA's misconduct was motivated by a thirst for monetary fines.  The proceeds of these fines were used for travel to exotic locations, and the unnecessary purchase of boats for the personal use of NOAA employees.

While the focus continues to be on the situation facing our farmers and ranchers, the lack of recognition and corresponding help for New England fails to recognize our fishermen who endure harsh conditions and put their personal safety at risk to put food on our tables.

We urge you to intervene with the Department of Commerce and NOAA to provide disaster relief for the New England fishery. After two years, now is not the time for more delay.

Sincerely,

John Kerry
United States Senator

Scott Brown                                                   
United States Senator

Barney Frank
Member of Congress

John Tierney
Member of Congress

William Keating                                                          
Member of Congress

Read the original letter here

 

 

Governor Deval Patrick has written to Rebecca Blank, the Acting Secretary of Commerce, requesting immediate action by the Commerce Department on the Commonwealth of Massachusetts' request for economic relief for the Massachusetts groundfish fleet.

Gov. Patrick originally requested the fishery disaster declaration in November 2011.  Seven months ago, in January 2012, NOAA Administrator Jane Lubchenco wrote to Gov. Patrick, stating that the Commerce Department would have an answer on the request "soon."
 
Gov. Patrick writes that, in its initial request, "the Commonwealth documented significant financial losses and dramatic consolidation in the Massachusetts-based groundfish fleet and NOAA Administrator Jane Lubchenco promised rapid evaluation of my request." Since the initial request was made, the National Marine Fisheries Service (NMFS) has released preliminary estimates of cuts to the groundfishery for the 2013 fishing year ranging from 43 to 73 percent. Gov. Patrick requested that Secretary Blank use her authority under the Magnuson-Stevens Act to issue a disaster declaration for the fishery to allow for economic aid to be available to the fleet before the cuts are implemented.

Gov. Patrick also emphasized that the current crisis with the groundfish resource, "is not the fault of our fisherman who have been following the federal fisheries management plans". It is becoming increasingly understood that the health of the fishery is influenced by factors other than pressure from the commercial fishery. When NOAA and the New England Fishery Management Council released their estimates for 2013 catch limits, the Northeast Seafood Coalition pointed out, "Year after year, industry has complied with everything the science and management have asked for; but ultimately, the status of several core stocks continues to decline. There are much larger forces at work in the Gulf of Maine and on Georges Bank than just controlling fishing mortality or preventing overfishing on an instantaneous basis."

This echoes a sentiment expressed earlier by Sam Rauch, NOAA's Acting Assistant Administrator for Fisheries, who, in a January 2012 letter to New England Fishery Management Council Chair C.M. "Rip" Cunningham, wrote, in reference to Gulf of Maine cod, "this lack of adequate progress [on rebuilding groundfish stocks] was not due to any failure on the part of the New England Fishery Management Council to take necessary action to meet the requirements of the Magnuson-Stevens Act, nor was it due to any failure on the part of fishery participants to act in compliance with applicable regulatory measures. Rather, the lack of adequate progress is due to a new and significantly revised understanding of the condition of the stock since the 2008 assessment was completed."

Similarly, John Bullard, the new head of NMFS' Northeast Regional Office, noted in a Saving Seafood radio interview, "the numbers of fish are depressed not just because of fishing effort, there's something else going on else there beside fishing effort. It's environmental factors." Bullard added, "I don't know whether it's global warming or temperature changes, or chemistry, but it's not due just to fishing effort,

The Governor calls on Secretary Blank to provide aid to the fishing fleet, "much as the federal government rightly comes to the aid of America's farmers during times of crisis." The US Senate has acted on similar lines, with two amendments focused on fisheries relief recently added to the 2012 Farm Bill. The amendments' sponsor, Massachusetts Senator John Kerry, who said, upon passage of the amendments, that his goal was to make the point, "fishermen from the Northeast who risk their lives to put food on our tables needed to be treated with the same respect as farmers in the Midwest."

The text of Governor Patrick's letter follows:

Office of the Governor
Commonwealth Of Massachusetts
State House
Boston, Ma 02133
 
The Honorable Rebecca Blank
Acting Secretary
United States Department of Commerce
1401 Constitution Avenue, NW Washington, DC 20230

Dear Acting Secretary Blank:

I am writing to urgently request that the Department of Commerce take immediate action on the Commonwealth's November 2011 renewed disaster request for direct economic relief for the Massachusetts groundfish fleet. At that time, the Commonwealth documented significant financial losses and dramatic consolidation in the Massachusetts-based groundfish fleet and NOAA Administrator Jane Lubchenco promised rapid evaluation of my request. Now, the need for a disaster declaration is more critical than ever given the recent preliminary report from the National Marine Fisheries Service (NMFS) forecasting potentially devastating cuts to the New England groundfishery in 2013.

NMFS' preliminary numbers suggest groundfish cuts between 43 to 73 percent across multiple stocks, putting the very viability of the historic and economically vital New England fishing fleet at risk. We must take immediate action to prevent a massive consolidation of the fleet and to protect the thousands of fishermen and their families who depend on this industry for their livelihood.

I ask for your leadership now to utilize the authority granted under the Magnuson-Stevenson Act to declare a disaster declaration for the groundfishery so that direct economic relief can be provided to fishermen in Massachusetts. I also urge you to act quickly to ensure that relief is available before any potential cuts in allocation are implemented next year. Without this advance and proactive action, I fear for the viability of our fleet, and the communities and shore-side businesses that depend on the industry. 
 
In addition, it is now clear that this resource disaster is not the fault of our fishermen who have been following the federal fisheries management plans, and I urge you to continue to improve fisheries science to allow for more accurate fisheries management decisions in the future. 
 
Much as the federal government rightly comes to the aid of America's farmers during times of crisis, so too must the federal government support fishermen, who are working hard to put nutritious food on the table of Americans, during this crisis.

I look forward to working with you, fishermen, the Massachusetts Congressional delegation, and the New England Fishery Management Council on this important challenge, and I stand ready to assist you to ensure our fishermen are provided the economic relief they so desperately need.

Sincerely,

Deval Patrick
 
Read the full letter here.

 

 

Mr. Bullard would like to hear from regional seafood dealers and processors about the major issues currently facing the fishing industry and thoughts on how a successful industry could be structured.

he following is being distributed by Saving Seafood at the request of NOAA Fisheries Service Northeast Regional Office. Please note, other meetings are being planned throughout Administrator Bullard's region of responsibility. Contact Olivia Rugo at 978-281-2167 to get information on future meetings.

August 13, 2012 — Please join NOAA Fisheries for an informal discussion with John Bullard, the new Regional Administrator for the Northeast Region. Mr. Bullard would like to hear from regional seafood dealers and processors about the major issues currently facing the fishing industry and thoughts on how a successful industry could be structured.

WHEN:
Wednesday, August 22, 2012
2:00 – 4:00 PM

WHERE:
Exchange Conference Center Board Room 212 Northern Avenue , Boston, MA

There are 15 complimentary, reserved parking spots to the left of the Exchange Center building. There is street parking and a pay lot to the left at the entrance of the Fish Pier. The cost is $8 for 2 hours, $10 for 4 hours. Credit card only.

For more information, contact Olivia Rugo at olivia.rugo@noaa.gov or 978-675-2167

 

On his fourth day on the job, newly-appointed NOAA Fisheries Northeast Regional Administrator John Bullard joined Saving Seafood Executive Director Bob Vanasse on Saving Seafood Radio.

WASHINGTON — August 14, 2012 — John Bullard, former mayor of New Bedford, discusses his recent appointment to head the Northeast Regional Office of the National Marine Fisheries Service in Gloucester.  The region encompasses the structurally complex large marine ecosystem from the Gulf of Maine to Cape Hatteras, North Carolina.

The interview took place during the Atlantic States Marine Fisheries Commission summer meeting on August 9, 2012 in Alexandria, Virginia.

He addresses the groundfish crisis in the region, and his plan to consult stakeholders in the various fisheries problems facing the industry. He also discusses the role that such input will play as he shapes his plan for leading the office.  Other topics that Mr. Bullard discusses in this segment include the original intent of the fishery management council system as envisioned in the Magnuson-Stevens Act, as well as distrust of government science and the severely strained relationship between fishermen and regulators.

Listen to the interview here

 

 

Captain Larry Yacubian, a former New Bedford, MA fishermen who lost his business, boat, and license to fish as a result of an overzealous Federal prosecution is seeking to hold NOAA accountable in a lawsuit filed in US District Court for the District of Massachusetts.

August 13, 2012 — Captain Larry Yacubian, a former New Bedford, Massachusetts fishermen who lost his business, his boat, his license to fish – and literally the family farm – as a result of a Federal prosecution  described by the United States Secretary of Commerce as having "overstepped the bounds of propriety and fairness…" is seeking to hold the National Oceanic and Atmospheric Administration (NOAA) accountable for its actions in a recently filed lawsuit in United States District Court for the District of Massachusetts. "By forcing them to face the consequences of their actions, I hope to deter the agency from continuing its egregious conduct and to remedy the harm NOAA has done to my family and me," said Captain Yacubian.

 For background on NOAA's mistreatment of Capt. Yacubian, see this video from 'Dan Rather Reports'

 For background on the NOAA enforcement scandal, see this video from CBS Evening News with Katie Couric

The public filing of the lawsuit follows the denial of Captain Yacubian's administrative claim. The Department of Commerce took the full sixth months allowed to consider the claim (after six months the claim was automatically deemed denied).

Members of Congress React

"Larry Yacubian lost his home and business because NOAA abused their power and was more motivated by money than justice," said Senator Scott Brown (R-Mass.). "Rather than come clean about the enforcement managers and attorneys who broke the public trust, NOAA has kept important documents secret. I have and will continue to push for answers.  NOAA's outrageous conduct in this case continues today with Dr. Lubchenco's refusal to release all relevant information about NOAA's actions against Mr. Yacubian."

"It is an embarrassment to the U.S. government that Larry Yacubian has to return to the legal system to receive fair compensation," said Congressman Barney Frank (D-Mass.). "His case was cited by the Department of Commerce's Inspector General and Judge Swartwood as the quintessential example of mistreatment by NOAA Law Enforcement.  While the government apologized and returned the fines to fishermen that were harmed that figure fell well short of covering their legal fees and lost earnings. The government admitted it did Mr. Yacubian and others harm, now it should provide restitution."

"Mr. Yacubian's case underscores the detrimental effects that mistreatment by NOAA's Office of Law Enforcement has had on our local fishermen. It is ridiculous that Mr. Yacubian is still being forced to fight for fair compensation, and he is right to pursue all possible measures for recourse," Congressman John Tierney (D-Mass.) said.

"The first step toward righting the unjust penalties and fines incurred by Massachusetts fishermen at the hands of poor leadership by the Commerce Department was the remittance of those penalties to some of the businesses and fishermen, like Captain Yacubian, who were treated unlawfully," said Congressman Bill Keating (D-Mass.). "It is unacceptable that, over one year later, many of these same individuals are still fighting for restitution."

Wrongdoing at NOAA

The lawsuit comes on the heels of the first investigation and report of Special Master Charles B. Swartwood, III, which found "overzealous, abusive or arbitrary conduct by NOAA personnel which unfairly impacted the outcome of several of the reviewed cases," including Captain Yacubian's.  The conduct stemmed from "a lack of supervision, oversight, and standards in the work of NOAA law enforcement." 

An investigation of NOAA uncovered not only abuses in the prosecutorial process, but also in the use of fines paid by fishermen into NOAA's Asset Forfeiture Fund.  The Commerce Department Inspector General found that these funds were used to purchase "luxurious" undercover vessels, buy 202 vehicles for a staff of 172, and take trips around the world.  After a June 2011 Senate hearing, Senator Scott Brown observed that "These enforcement officials went on a spending spree funded by the hardworking fishermen."

A second report by Special Master Swartwood "may contain crucial additional information about victims of abuse and injustice at the hands of NOAA Law Enforcement personnel," according to a letter sent to NOAA by Senator John Kerry (D-Mass.). The second Swartwood Report was submitted to Commerce Secretary John Bryson in April 2012. Both Senator Kerry and Senator Brown have written to NOAA, repeatedly asking when this second report will be released.  NOAA has not responded.

Facts of Captain Yacubian's Case

(for additional detail please see the complaint filed in Federal court)

On June 14, 2000, NOAA Enforcement Attorney Charles Juliand issued a Notice of Violation and Assessment (NOVA) and a Notice of Permit Sanction (NOPS). The NOVA accused Captain Yacubian of fishing in a restricted area and making a false statement.  Special Master Swartwood found that there is "credible evidence that money was NOAA's motivating objective" for prosecuting Captain Yacubian.

In response, Captain Yacubian requested a hearing before an Administrative Law Judge (ALJ) and began to marshal evidence in his defense. A key issue in the case was the reliability of plotting data from a system known as Boatracs, which was used to track Captain Yacubian in the restricted area. Seeking to prove that the system was unreliable, Captain Yacubian's counsel asked Massachusetts Environmental Police Officer, Captain Peter Hanlon, to take pictures of two vessels, the Theresa R II (which had no engine) and the Kathy Marie, both of which were secured to the north end of the State Pier in New Bedford, Massachusetts, but were plotted by Boatracs at a point that was 1.5 miles from their actual location.

But Officer Hanlon never testified in Captain Yacubian's case because, according to the Swartwood Report, the Special Agent in Charge at NOAA "put enough pressure on Captain Hanlon to request that he be excused from testifying."  Had Captain Hanlon testified, his "testimony and documentation could have challenged [the reliability of the Boatracs systems.]" Without this testimony, Captain Yacubian lost his case before the ALJ. 

A series of appeals culminated for Captain Yacubian in the United States District Court for the District of Massachusetts in Boston. There, Judge Nathaniel M. Gorton vacated the ALJ's finding of a false statement by Captain Yacubian due to a lack of evidence and vacated all penalties assessed as excessive. The case was remanded to NOAA, where a new ALJ, Parlen McKenna, reinstated the false statements charge, "completely ignor[ing] the District Court Judgment," according to Special Master Swartwood. ALJ McKenna, one month later, attended a workshop in Kuala Lumpur with the NOAA prosecuting attorneys, Charles Juliand and Mitch MacDonald.  According to Special Master Swartwood, this "presented an actual conflict of interest," or, at the least, "created the appearance of a conflict."

In order to pay his mounting legal fees, Captain Yacubian attempted to sell his boat. But NOAA Enforcement Attorney Charles Juliand repeatedly blocked the sale. Ultimately, Captain Yacubian's wife was instead forced to sell her family farm in Westport, Massachusetts – a farm that had been in her family for generations. But even this was not enough. Captain Yacubian could not have his case heard in Federal court again until he repeated the same legal battles before NOAA, incurring the same legal fees. 

As Special Master Swartwood explained, with Captain Yacubian out of resources, the agency "coerced a settlement with Lawrence M. Yacubian by refusing to adhere to Judge Gorton's order and by seeking and relying on a questionable ruling by ALJ McKenna."  The settlement was oppressive, securing a civil penalty far greater than that initially assessed and revoking Captain Yacubian's operator permit, preventing him from returning to his career as a fisherman. 

Legal Representation

The law firms of Burns & Levinson, LLP in Boston, and Hunton & Williams, LLP in Washington, DC are representing Captain Yacubian in this case.

Captain Yacubian is available to members of the press for brief interviews. 
As the subject of discussion is a pending lawsuit, the scope of the interview must be limited to his reactions to the filing of the lawsuit.

Contact:

Robert B. Vanasse
202-333-2628
bob@savingseafood.org

Related Documents

Secretary of Commerce's Decision Memorandum following the Swartwood Report

Yacubian's Federal court complaint

The first Swartwood Report

The Inspector General's Report showing misuse of Asset Forfeiture Funds

AP coverage of June 2011 Senate Federal Financial Management Subcommittee hearing

Letter from Senator John Kerry to NOAA inquiring about second Swartwood report

Letter from Sen. Scott Brown to Sec. of Commerce Bryson inquiring about second Swartwood report

Letter from Senator Scott Brown to Acting Secretary of Commerce Blank inquiring about second Swartwood report

 

 

The first of three new or redesigned surveys designed to collect vital information on the operational costs and culture of commercial fishing launches Friday August 10, when an annual vessel cost survey will hit the mail.

August 10, 2012 — Saving Seafood is distributing this message at the request of NOAA's Social Sciences Branch at the Northeast Fisheries Science Center:

The first of three new or redesigned surveys designed to collect vital information on the operational costs and culture of commercial fishing launches Friday August 10, when an annual vessel cost survey will hit the mail.

Tammy Murphy of NOAA's Social Sciences Branch at the Northeast Fisheries Science Center is the point person on the multi-year effort. "Telling us more about your situation will be voluntary and your responses are confidential," says Murphy, an economist. "Collecting this information is absolutely essential to showing how fisheries, fishermen, and fishing communities are faring as management and fishery stock conditions change."
 
The annual vessel cost survey, last conducted in 2009, has been significantly redesigned with the help of fishermen. About 1700 vessel owners will receive a 2012 survey. Although that's not every owner, the pool covers all the fisheries, gear types, and vessel sizes in the Northeast, to capture how these costs may vary.
 
Collected over time, these economic data will be used to evaluate proposed changes to fishery management plans, provide a more complete picture of economic impacts from regulatory actions in the fisheries.
 
Vessel owners can return the survey by postage paid envelope, or complete it online. The surveys are also available in Portuguese or Spanish. Survey responses are confidential data, just like vessel trip, observer, and dealer reports.
 
The second survey effort will start this fall using two different approaches: for vessel owners and one for crew members. "We have limited information from vessel owners and really none from crew members on how fishery regulations affect their everyday lives as individuals, as well as the lives of their family and communities," says Murphy, "This effort is intended to start filling in those gaps."
 
In early fall 2012, about 800 permit holders will get the owner's survey, which will be sent by mail. It will be available in English, Spanish, and Portuguese, and may be returned by postage paid envelope or filled out online. The crew survey will be conducted face-to-face on the docks in fifteen ports in the Northeast and Mid-Atlantic, with about 1300 willing participants. It will continue for a year, to capture seasonality and port diversity.
 
Much of the data collection is new, so Murphy is aiming for a high return rate. "The more responses we get, the more accurate our results can be. We want to capture differences across regions, fisheries, gear types and vessel sizes, and that means we need to hear from every fisherman that is asked to participate in these survey efforts" she said.

View the original message on the NOAA website.