Enforcement

According to a report in the Gloucester (Mass.) Daily Times by staff writer Richard Gaines, Gloucester Seafood Display Auction President Larry Ciulla learned while waiting to testify before a Senate subcommittee in Boston on Monday that despite an apology from the Secretary of Commerce for inappropriate behavior by NOAA Enforcement staff, his business would still be ordered shut down for 15 days.

GLOUCESTER, Mass. — June 22, 2011– Barely a month after the Ciulla family was issued a public apology and paid reparations for a decade of relentless federal fisheries enforcement harassment at their fish auction that uncovered "no credible evidence," NOAA administrator Jane Lubchenco has now ordered the business to close for 15 days.

The decision, based on an interpretation of a March 1, 2010, settlement of the three cases which interlocked, was transmitted to Paul Muniz, attorney for the Gloucester Seafood Display Auction, via email Monday — while he and auction President Larry Ciulla were in Boston's Faneuil Hall.

Invited to speak to a Senate subcommittee, Ciulla, as the region's primary target of law enforcement zeal and excess, was about to testify along four other industry representatives when the email arrived on Muniz' smart phone.

The message came, Ciulla said, just as Eric Schwaab, who heads the National Marine Fisheries Service, was explaining how NOAA had turned the corner and was reforming the law enforcement system that helped debilitate and demoralize the fleet.

Lubchenco's order is based on a provision of an opinion by Commerce Secretary Gary Locke that an agreement in the March 1, 2010, settlement for the auction to close non-consecutively for 35 days as part of the price for a clean record could not be revisited.

Locke's opinion was based on the findings of a special judicial master whose report on the most egregious cases of miscarried justice prompted a joint apology to the Ciullas during an extraordinary joint teleconference by Locke and Lubchenco that was podcast from Gloucester on May 16.

In her letter, Lubchenco wrote that she was enforcing Locke's decision to follow that part of Special Master Charles B. Swartwood III's recommendation to reinstate the remaining portion of the penalty in the omnibus settlement, which was intended to close the book on the government's campaign against the auction, holding it free of any lingering legal liabilities.

"I won, but they couldn't accept it," Ciulla told the Times in a telephone interview this afternoon. "It's almost like double jeopardy. What am I going to do about it? I haven't got a clue."

He said any lost day of business would be costly and disruptive to the boats and the buyers who have made the auction at the tip of Harbor Loop the No. 1 platform for the sale of seafood from the Gulf of Maine.

NOAA did not immediately respond to a series of questions about Lubchenco's order, or a request for an interview.

Read the complete story from The Gloucester Times.

Read the letter from NOAA Administrator Jane Lubchenco to the attorney for the Gloucester Auction.

 

 

 

 

A December 14, 2010 report by the Commerce Department Inspector General to NOAA Administrator Jane Lubchenco entitled "General Counsel for Enforcement and Litigation Performance Management and Other Issues" found three issues the IG believed important to call to the Administrator's attention:

1. Significant weaknesses in the process for evaluating GCEL enforcement attorney performance.

2. A problematic statement and questionable timing for an award issued to a Northeast Region employee.

3. Safety-related concerns voiced by a Northeast Region senior GCEL attorney.

Read the IG's report.

 

 

 

 

 

BOSTON — Personnel management in NOAA's Office of the General Counsel for Enforcement and Litigation (GCEL) has been lax and ineffective, thwarted by union resistance, according to a report to NOAA obtained by the U.S. Senate from the Commerce Department inspector general.

But where CGEL was aggressive, giving an attorney a $2,000 bonus while in the midst of completing a case that shattered — improperly, according to a special judicial master's review — the New Bedford scalloping business of Larry Yacubian, the IG questioned the action.

The study looked at the period of 2005 through the fall of 2009, after the Obama administration had filled the top position at the National Oceanic and Atmospheric Administration with Jane Lubchenco.

"We found GCEL's process for evaluating the performances of its enforcement attorneys to be essentially pro forma," and involved "fundamental inattention to the basic requirements for completing appraisals … reflecting a lack of proper care and regard for this important performance management function," the report said.

Dated Dec. 14, 2010, the report was sent to Lubchenco by IG Todd Zinser.

Read the IG report.

 

 

 

 

 

Boston – June 21, 2011 – (Boston Globe) For more than four decades fishing was Lawrence Yacubian's job, a way to put food on the table, pay bills, and support his family. But after being hit with $430,000 in fines for repeatedly crossing over a federally designated fishing zone, the New Bedford scalloper says he was forced to sell off most of his assets, including his boat, to pay the penalty.

Yesterday morning, Yacubian testified before a US Senate subcommittee hearing at Faneuil Hall, jointly led by senators Scott Brown, the ranking Republican, and Tom Carper, Democrat of Delaware and the chairman.

Yacubian and dozens of other local fishermen say they have been victims of an overzealous federal enforcement policy that levied unfair fines against them and then inappropriately used money to pay for overseas trips, boats, and vehicles for the National Oceanic and Atmospheric Administration, or NOAA.

Read the complete story from The Boston Globe.

 

 

 

 

 

 

by Christian Bourge
Special to Saving Seafood

WASHINGTON (Saving Seafood) June 19, 2011 — In a move that fishing industry legal interests said is seemingly unprecedented and raises broader questions about National Oceanic and Atmospheric Administration (NOAA) enforcement efforts, a U.S. Coast Guard Administrative Law Judge central to recent special investigation findings of improper NOAA action against New England fishermen has made a strongly worded, legally unusual, and unsolicited defense against charges of possible misconduct.

Coast Guard Administrative Law Judge (ALJ) Parlen L. McKenna argues in his unusual response to Special Master Judge Charles Swartwood III’s review of a now infamous case involving NOAA charges of overfishing in closed waters by former New Bedford, Massachusetts scallop fisherman Lawrence Yacubian, that statements made as part of the finding are “not supported by the facts or the law and constitute a reckless disregard for the truth.” This defense came in the form of an order for attorneys in an unrelated, still pending case McKenna’s overseeing to respond as to whether he should recuse himself in that matter based on his detailed response to the charges levied.

Two of the individuals whose cases were examined by Special Master Charles Swartwood III, and in which Special Master Swartwood found serious improper actions will testify on Monday at a special Senate Field Hearing at Fanueuil Hall in Boston.  The Senate Financial Management subcommittee will examine the question: "How is NOAA managing funds to protect the domestic fishing industry"?  The subcommittee is chaired by Senator Thomas Carper of Delaware. Senator Scott Brown of Massachusetts is the Ranking Member. Video of the hearing will be viewable on the subcommittee's website at 10 a.m.

Judge McKenna claims that Swartwood’s interpretation of the Yacubian case in the report released by the Commerce Department last month has resulted in “significant and lasting damage” to the Administrative Judiciary and the entire Coast Guard's adjudicative programs. He further calls the report “troubling because it impugns” his reputation and “creates an appearance of bias.”

Neither McKenna nor the counsels for the firms involved in the underlying case, Seattle, Washington-based Peter Pan Seafoods, Inc. and the Seven Seas Fishing Company, responded to requests to comment on the matter. But lawyers who specialize in NOAA enforcement issues and have previously represented defendants before McKenna described this order as more than out of the ordinary.

They said that in enforcement cases, and judicial matters in general, a judge typically only asks counsel about the possibility of a recusal when an attorney raises the issue. None of the counsels in the underlying case had raised the Swartwood report making McKenna’s ostensible motivation self-defense rather than traditional legal procedure.

When asked to review the order for her thoughts Yacubian’s New Bedford-based attorney, Pamela Lafreniere, expressed surprise at McKenna’s action as well as to the general tone and manner of his defense. She said it best compares to that heard in a church sermon.

“I’m used to getting my sermons when I am sitting in the pew of my church,” Lafreniere told Saving Seafood. “I’m not used to getting my sermons delivered from an ALJ sua sponte (of one’s own will) in an order where no request was made. In spite of this sermon, which is what it is, [the handling of NOAA cases] needs to be looked into deeper. It is not just about this [Yacubian case], it is about the entire [NOAA enforcement] program that was reviewed.”

Specifically, McKenna compared Swartwood’s “one-sided report” in his detailed 34-page order to a judge issuing an ex parte (one-sided) Initial Decision and Order without allowing input from the one party in a case.

“Indeed, most troubling of all is that Judge Swartwood only obtained information from litigants/persons with a vested interest in the outcome of the administrative hearings he reviewed,” wrote McKenna. “Specifically, he did not interview, or request interviews, with anyone at the Department of Homeland Security, the United States Coast Guard, the Coast Guard's Office of the Chief Administrative Law Judge, anyone in the Coast Guard's ALJ Program, or the undersigned concerning the outrageous allegations he leveled.”

McKenna also claims that he “complied with all federal government ethical requirements” and the American Bar Association’s code of Judicial conduct when handling the Yacubian case, although he provides no proof.

Stephen Ouellette, a Gloucester, Massachusetts lawyer who specializes in fishing industry law, agreed with Lafreniere about the peculiarity of McKenna’s defensive order, particularly since Commerce Secretary Locke recently decided that Coast Guard ALJ’s will stop overseeing NOAA enforcement cases.

 “I’ve never quite seen a judge go out and essentially make a case in defense of himself without responding to something,” said Ouellette. “He’s not supposed to really just get up and make a statement. Normally you would expect him to come up and say this issue had been raised by the parties (involved in the case) and if so (say) ‘I will make a ruling’. He’s saying, ‘I’m going to make a ruling in a vacuum.’ Judges are not supposed to render decisions unless an issue is before you.”

Judge McKenna’s actions under fire

Swartwood’s report led to last month’s apology from Commerce Secretary Locke and NOAA administrator Jane Lubchenco to those found wronged, including Yacubian. In total, Swartwood found 13 separate miscarriages of justice in his NOAA investigation, including multiple actions on the part of NOAA as well as McKenna that led to Yacubian losing his fishing vessel, business and his home after NOAA “extracted”  $430,000 in “oppressive” fines for over fishing charges that went to the agency’s Asset Forfeiture Fund. An agency Inspector General found in a separate 2010 enforcement review that over $100 million went into that fund over a four and a half year period in which enforcement agents and litigators purchased more vehicles than officials in the office and traveled on the funds.

In reviewing the Yacubian case record Swartwood found the appearance and possibility of a conflict of interest between McKenna and the regulatory enforcement counsels in NOAA’s Gloucester office. He charges that McKenna failed to disclose plans made prior to his receiving the Yacubian case on remand from a higher court for him to travel to a fishing conference in Kuala Lumpur, Malaysia with the Yacubian’s prosecutor Charles Juliand and fellow NOAA prosecutor Mitch McDonald. The trip occurred after the Yacubian case was settled and was paid for with Asset Forfeiture Fund dollars.

For his part, McKenna provides a detailed chronological outline of the planning for that trip, noting that he did not receive notice that Juliand and McDonald would be attending the Malaysian conference until after Yacubian settled his case with NOAA enforcement. He also writes that he was not even sure he would be attending the conference until after the Yacubian case was on his docket. In addition, McKenna writes that he did not attend the conference with the NOAA prosecutors, although they flew on the same flight.

Swartwood also found that McKenna intentionally flouted the 2004 reversal findings of a higher U.S. District Court judge in 2005 by reinstating the penalties of the first ALJ who oversaw the Yacubian case. After U.S. District Judge Nathaniel Gorton vacated the penalties sought by NOAA prosecutor Juliand and imposed by the original ALJ on appeal as “arbitrary and capricious”, McKenna disregarded Judge Gorton’s order by applying the exact same penalty in his secondary review.

In his defensive order, McKenna takes issue with a host of issues in Swartwood’s findings in the case, calling the characterization of his reinstating of penalties reversed by the higher federal circuit court “false” because he was bound by the original NOAA enforcement findings and fees sought against Yacubian.

Lafreniere said she accepts McKenna’s explanation of the Malaysian trip timeline.

“I don’t have any animus toward [McKenna] personally,” said Lafreniere. “I think he is just defending himself. I take him at his word that that is how the events unfolded.”

Nevertheless, she argued that several of McKenna’s responses to Swartwood’s findings about his handling the case are incorrect. Most important in her mind is McKenna’s argument that he was bound by NOAA’s recommendations in the Yacubian case.

She noted that the NOAA penalty orders he claims to have been bound to enforce were, legally speaking, no longer applicable to the case. Both the government and Yacubian agreed in the very first ALJ hearing that NOAA’s original enforcement orders and penalty findings were not an issue because the judge would assess penalties. Lafreniere added that Swartwood’s findings are at least partially based in the fact that McKenna reinstated those NOAA enforcement documents that the record showed were non-biding and served as some of the basis for the higher court’s remand of the case for a completely new review.

“The parties had mutually agreed that the [first] judge would assess penalties,” said Lafreniere. “When I say he’s inaccurate, he (McKenna) argues he is bound by agency findings but not if there is no (applicable) notice of violation.”

The Special Master’s report is not the first time McKenna has run into problems as an administrative law judge. In burnishing his legal experience in the order, he cites his role as International Chief Counsel of the Civil Aeronautics Board, Vice President and General Counsel of an Airline Holding Company, and Senior Trial Counsel for AT&T prior to becoming a judge twenty-five years ago. He also notes his past roles Conference Chair and Secretary of the Judicial Division of the American Bar Association, Conference Chair of the ABA’s Ethics and Judicial Committee as well as his former role as an appointed member of the Administrative Conference of the United States.

Nevertheless, McKenna did not reference his rocky three year tenure as the Chief ALJ for the Department of the Interior which ended with his unsuccessful suit through the US Merit System Protection Board claiming whistleblower status after his position was eliminated in a restructuring.

Interior’s associate solicitor at the time, Lisa Farringer, dismissed McKenna as a “disgruntled employee” in a 1991 letter to ABA Journal magazine after they wrote of his allegations. According to a follow up 1992 article, McKenna claimed he was fired because he testified in favor of judges he supervised at a complaint hearing and petitioned Congress in order to “insulate [his office] from political intrigue”.

But the judge in his whistleblower claim case, Edward J. Reidy, found that while McKenna’s supervisors “bore some hostility” toward him and “had an aversion to him as a person and were jealous of his independent status as an AJL” the restructuring that resulted in his job loss was part of a legal effort to streamline Interior’s ALJ division.

 
 
Unusual defense points to broader NOAA enforcement issues

Coast Guard administrative law judges have been under fire for quite some time, especially from litigants about their actions in cases. McKenna obliquely refers to such complaints in the last section of his order in a discussion based around the fact that the 1976 Magnuson-Stevens Fishery Conservation Act is supposed to balance domestic, commercial, and recreational fishing with “conserving fishing resources endangered by overfishing.”

Lafreniere and other attorneys who deal with ALJ’s across the federal sphere and consulted for this article said there have long been concerns about an unbalanced ALJ process. The fact that ALJ’s are charged with applying the law but work for federal agencies – in some cases the very agencies seeking to impose regulatory fines on individuals and companies in the cases they review – has long fueled concerns about conflicts of interest.

For his part, McKenna appears to recognize the inherent conflicts between ALJ’s enforcing the law and being limited by the very codes they are supposed to enforce. He notes in his order that the law overseeing NOAA enforcement, regulations, and agency precedent are based on “presumptions disfavoring the fishermen.” He adds that, “16 U.S.C. § 1860(e)(1) provides “a presumption that all fish found on board a vessel deemed to be committing a violation of the [Magnuson-Stevens] Act will be presumed to have been taken in violation of the Act.”

Lafreniere argues that when McKenna lays out his augments about his handling of the case and the incorrect blame they receive regarding the role of ALJ’s in the NOAA enforcement process; he demonstrates a propensity toward not fully distinguishing between himself and the agency whose cases he’s charged with overseeing.

 “When you have instances like this where an ALJ continues to lump the ALJ and agency together as the same unit, there is a fundamental problem,” said Lafreniere.

Ouellette acknowledged that many ALJ’s have long argued, like McKenna in his order, that their hands are tied by the law when it comes to determining the outcome of NOAA regulatory cases. Nevertheless, he added that he has seen McKenna disregard that logic in favor of the facts presented in an individual case even though ALJ’s overall tend to generally avoid such efforts.

He also noted McKenna’s propensity to defend himself in the face of concerns about the ALJ role in the NOAA enforcement. Citing one case he had before him, Ouellette detailed how McKenna pulled out the NOAA Inspector General’s 2010 enforcement reviewreport and made a statement on the record that the Coast Guard ALJ’s had been absolved of allegations of bias.

 “[McKenna] has in the past gone to great pains to point out his impartiality from the investigation into the Coast Guard ALJ process, although you have to look at each individual case to see if they are given a fair shake,” said Ouellette. “Unfortunately, administration law cases tend to be fairly one-sided.”
 
In the end, Lafreniere argued that the issues surrounding the handling of the Yacubian case represent broader problems in how the federal government handles fishery regulatory enforcement matters. She argued that Secretary Locke made his recent decision to apologize based on the totality of cases reviewed by Swartwood and his finding that fair and impartial hearings were not given to all facing enforcement action.
 
“It is not my intention to single out any particular ALJ,” she said. “It’s the entire ALJ program that resulted in all of these [Swartwood] findings. What would have been appropriate, and we would not be at this place, is if the ALJ programs in total had given fair and impartial hearings to all of the fisherman. This isn’t about one man, it isn’t about one judge. It is about the entire program. This about NOAA.”

Read the "Order to show cause following release of Special Master Swartwood's Report" 
 
 

 

 

 

 

 

 

 

Statement from Maureen Wylie, NOAA Chief Financial Officer:

Washington –June 16, 2011— “We are pleased to report that the accounting firm Clifton Gunderson, LLP, conducted an independent audit of NOAA’s Asset Forfeiture Fund and the fund’s audited financial statements received an unqualified (clean) opinion, or the best type of audit opinion one can receive.

“The unqualified opinion means that NOAA’s accounting for the fund’s balance and the transactions for the year ending March 31, 2011 are presented fairly in accordance with general accounting principles. The audit confirmed that the fund’s balance is $7.5 million as of then.

"Ensuring that the fund is properly accounted and used is essential to carrying out our duties as responsible managers of federal dollars and as stewards of coastal and marine resources. Our ability to carry out these duties depends in large part upon the maintenance of proper internal controls.

“While the audit opinion is good news, NOAA remains committed to continuing to improve the oversight and the accountability of the fund. The auditors have identified areas that can and should be improved through management’s attention. This is not uncommon during an audit and we are prepared to take the necessary steps to ensure the identified areas are resolved before the next audit of the fund financial statements. NOAA is committed to developing a corrective action plan designed to address the recommendations offered by Clifton Gunderson, LLP by July 31.”

Read the full audit report.
 
Background

This audit covers the period since March 31, 2011, after numerous changes were made by the current Administration.

A forensic review of the NOAA Fisheries Asset Forfeiture Fund by KPMG conducted at the request of the Commerce Department Inspector General for the period January 1, 2005, through June 30, 2009 found numerous serious problems.

This audit was undertaken at the direction of Dr. Jane Lubchenco, under secretary of commerce for oceans and atmosphere and NOAA administrator, as part of a comprehensive action plan to ensure that monies collected from fisheries enforcement penalties are properly accounted for and used. The audit is one of a number of significant steps that NOAA has taken to improve transparency and accountability in its enforcement program.

A full timeline of NOAA Enforcement program improvements since March 2009 is available by clicking here.

 

 

 

 

 

June 15, 2011 – GLOUCESTER, Mass – In her teleconference here a month ago today — held to apologize to members of the fishing industry for an era of abusive law enforcement actions — NOAA Administrator Jane Lubchenco sought to insulate herself from culpability.

She did this by proclaiming she had made "fair and effective enforcement a top priority" from her "first day in office," March 20, 2009.

But the earliest action by Lubchenco, according to a chronological log prepared by her office for the Gloucester Times, didn't come until June 2009, three months later, when, already under pressure from Congress, she called in the Commerce Department inspector general.

In the interval, she was provided briefs and ruled on the middle case of three brought by the agency against the Gloucester Seafood Display Auction, which had become the epicenter of law enforcement intensity and resistance.

Read the complete story from The Gloucester Times.

 

 

 

 

 

BOSTON—A Connecticut man is facing federal charges of trafficking and falsifying records for illegally harvested Atlantic striped bass.

An indictment filed Wednesday in U.S. District Court in Boston says Daniel Birkbeck, of North Stonington, harvested striped bass in Rhode Island waters after the state commercial fishing season closed. The indictment says the 46-year-old, a licensed commercial fisherman in Rhode Island and Massachusetts, then transported those fish to a fish dealer in Massachusetts for sale during the 2009 and 2010 commercial fishing seasons.

Read the complete story by The AP at The Boston Globe.

 

 

 

 

 

 

 

NEW BEDFORD — What happened to David McKinney?

That's what some members of Congress wanted to know following a letter from a NOAA official responding to their request for names and educational backgrounds of the past three directors of the office of law enforcement.

The issue arose when the National Oceanic and Atmospheric Administration eliminated the degree requirement in the job posting for the vacancy, raising questions about its motives and suggestions the posting was being custom-tailored for a predetermined winner. Now questions have arisen over the accuracy of NOAA's responses.

Eric Schwaab, director of the National Marine Fisheries Service, answered U.S. Reps. Barney Frank, D-Mass., John Tierney, D-Mass., and Walter Jones, R-N.C., in mid-May. After informing them that the Office of Personnel Management sets no educational threshold for the law enforcement job, Schwaab listed the past three directors, all of whom had at least a bachelor's degree despite there being no formal requirement.

Read the complete story from The South Coast Today.

 

 

 

 

 

Of the 13 sets of rights so severely trampled by NOAA fisheries law enforcement agents and litigators that their actions drew cabinet-level apologies and some remittals of fines last week, none matched the length, intensity, creativity and ultimate futility of the federal government's campaign against the Gloucester Seafood Display Auction.

Now, that campaigned is outlined extensively in the report of a retired U.S. District Court judge.

Retained as a special master by U.S. Commerce Secretary Gary Locke, Judge Charles B. Swartwood III delivered a 236-page, redacted review of the worst behavior by the cadre of NOAA agents and litigators based in the Northeast regional office here in Gloucester, and concluded that — despite a Herculean effort over many years, amounting to "selective enforcement," — "NOAA had no credible evidence that the Gloucester Seafood Display Auction was willfully violating fisheries regulations."

The government's empty net was not for the lack of trying.

Read the complete story from The Gloucester Times.