Enforcement

Julie Wormser, EDF's New England Oceans Regional Director, issued the following statement on NOAA Law Enforcement and the report of the Commerce Department Inspector General. Boston, MA (September 27, 2010) – “A strong, effective and fair law enforcement program is essential to the success of, and public support for, any natural resource management program like marine fisheries management. With Commerce Secretary Locke’s visit to our region today and his stated commitment to law enforcement reform, the Northeast is on a path to better relations between fishermen and law enforcement.

The latest set of remedial actions on law enforcement announced by Secretary Locke are to be applauded and should be implemented promptly. They demonstrate that the Department of Commerce and NOAA are taking the investigation and recommendations of the Inspector General seriously and are working in good faith to reestablish public confidence in NOAA's law enforcement program in the Northeast.”

NEW BEDFORD — A scathing report by the U.S. Commerce Department's inspector general has prompted Commerce Secretary Gary Locke to order a review of questionable fines slapped on fishermen in the Northeast during the past decade.

Locke, who met with a New Bedford and Northeast fishing industry and congressional delegation Thursday, said he will appoint a special master to review the worst cases identified by the inspector general, who issued his final report in mid-afternoon.

The move follows years of complaints from Northeast fishermen about heavy-handed tactics used by the law enforcement division of the National Oceanic and Atmospheric Administration. Parts of it were released earlier this year; the final report focuses on the Northeast office in particular.

Read the complete story from The South Coast Today [subscription site]

 

 

 

 

 

 

In 2002, Warren Kremin lost a third-generation family fish dealership, $1 million in legal fees and fines, and a business partner after being hit with what he says were fabricated charges of failing to file proper fish-purchase reports in 1999.

His private practice lawyer, a former top fisheries lawyer, advised him not to fight the case, Kremin said. “He said, ‘You cannot win. You will lose. It’s a fix.’ ”

On Thursday, investigators for the U.S. Commerce Department’s Office of Inspector General released the latest in aseries of reports finding fisheries lawyers and enforcement officers abused their power in prosecuting fishermen and dealers like Kremin, who lives in Rockland County. Among the most recent charges were cases of excessive fines and prosecutions that all but mandated costly settlements.

Read the complete story from Newsday here.

 

 

 

 

 

 

 

 

NEW BEDFORD — U.S. Commerce Secretary Gary Locke will go to Beacon Hill on Monday for a meeting with lawmakers and with fishermen prosecuted by the Northeast fisheries enforcement office.

Locke on Thursday decided to appoint a special master to review the cases examined this year by Inspector General Todd J. Zinser. His scathing report supported a decade of complaints by Northeast fishermen that the fisheries law enforcers were often vindictive and excessive, issuing threats and slapping heavy fines even for minor first-time violations.

Meanwhile, one of the attorneys whose actions were sharply criticized in the probe lashed out at Zinser.

Charles "Chuck" Julian, speaking through a NOAA employees' union, wrote in an open letter: "I wish to state, unequivocally, that I have always based my charging, and settlement, decisions in individual cases on the strength of the evidence in the case file, the enforcement history of the accused party, the seriousness of the offense and other relevant factors. I have never chosen a proposed penalty level based upon my personal feelings toward the accused or his lawyer. Any claims to the contrary are baseless and constitute an unwarranted attack on my character."

To which Larry Yacubian, a former New Bedford scalloper who was forced out of the business by Julian's prosecution, responded, "He's a horrible human being."

Yacubian said Friday in a telephone interview that Julian seemed to take delight in punishing him for a first-time violation of a closed area. "It was sheer gloating and amusement," he said. "I got the death sentence on my first charge."

Read the complete story from The South Coast Today [subscription site]

 

 

 

 

 

 

"The union's position is that (Juliand) is being hung out to dry by higher ups" in the department, the IG's office, and members of Congress who wrote the Magnuson-Stevens Act, which was reauthorized in 2006 and contains language allowing fines of $140,000 per count for violations, said Richard Hirn, a Washington lawyer for the National Weather Service Employees Organization.

Two leading industry lawyers, Stephen Ouellette and Pamela Lafreniere, while stopping short of exonerating Juliand for his role in imposing harsh sentences for minor violations, joined Juliand in pointing the finger of greater responsibility farther up the NOAA chain of command.

A New Bedford lawyer, Pamela Lafreniere said the IG's report was "a great beginning," but added that "none of these people acted alone and an entire system had to be complicit for this kind of activity to occur."

"The real problem here is NOAA's unfettered ability to issue fines, the basis of which is non-discoverable, and under the administrative law system, non-reviewable," Gloucester attorney Steve Ouellette wrote. "The penalties imposed have no relation to the 'harm' caused, nor do they take into account the actual economics of the fishery."

Ouellette said the focus should be on NOAA's top leadership which "sat by complacently over the last decade, in the face of explicit and well documented complaints while this abuse was inflicted on hardworking citizens of this nation."

"The current leadership at NOAA is hostile to the fishing industry — enforcement abuses are but one manifestation of this attitude," Oullette said. "NOAA's overly restrictive and anti-industry interpretation of statutory language has resulted in excessive restrictions … loss of jobs and waste of our natural fishery resources."

Ouellette and Lafreniere are also co-authors of a U.S. District Court suit with multiple industry plaintiffs up and down the Atlantic Coast challenging the legality and constitutionality of the method of managing the New England groundfishery created over more than three years around transforming the commonly held resources of the sea into shares of a regulated commodities market designed to attract external investment.

Their amended complaint contends the new regimen "imposes overly restrictive limits on a fishery that is substantially rebuilt" devalues permits in violation of the Fourth Amendment which bars "unreasonable search and seizures" and gave illegal preferential treatment to sub groups including one that has a business partnership with the Environmental Defense Fund, which has been the number one advocate of catch shares.

Read the complete story from The Gloucester Times.

 

 

 

 

 

 

 

 

WASHINGTON – September 23, 2010 – The Department of Commerce Inspector General’s recent investigation into NOAA’s Fisheries Enforcement Program is flawed and politically motivated, according to NWSEO. The most recent investigation focuses on the professional conduct of three enforcement attorneys employed by NOAA in Gloucester who are represented by NWSEO.

“The attorneys did their jobs. They enforced the laws, assessed penalties according to NOAA’s guidelines and received awards and recognition for their work,” said Dan Sobien, president of the NWSEO. “Now they are being used as scapegoats because lawbreakers are unhappy with the enforcement of a law that Congress passed.”

The IG investigation is the result of a complaint from several Massachusetts state lawmakers, including one whose firm has defended the fishing industry in NOAA enforcement proceedings, and a letter from several members of the Massachusetts Congressional delegation complaining of excessive penalties assessed against commercial fishing interests who have broken the law.

The NOAA enforcement attorneys, who have received a combined total of 38 performance awards for their enforcement actions since 2002, follow agency guidelines and the penalty schedule established by NOAA found at http://www.gc.noaa.gov/docs.html#gcel. The performance awards include cases which are part of the IG investigation, such as the multiple enforcement actions against the Gloucester Seafood Display Auction.

Rather than being excessive, penalties assessed in the Northeast Region may still be too low to enforce the law. Recent scientific reports show that despite enforcement efforts, penalties in the northeast region are not large enough to deter systemic over-fishing (“Rational Noncompliance and the Liquidation of Northeast Groundfish Resources” by D. King and J. Sutinen). Economic gains from violating fishing regulations are nearly five times the economic value of expected penalties. According to the report, up to 24 percent of the total harvest in the northeast region is taken illegally. For commercial fisheries that do break the law, the fines have become a small cost of doing business.

“I have adhered strictly to the statutes, regulations and agency policies governing the prosecution of marine resource violators. In my 28 years of service, I have never had a single negative review from the NOAA management attorneys for whom I work. Further, I have earned some of the highest honors bestowed upon people who prosecute federal fisheries cases,” said Charles Juliand, one of the attorneys under investigation, and recipient of the Department of Commerce’s Gold Medal Award “for distinguished achievement in the federal service.”

Click here for NWSEO’s complete response to the Inspector General’s report.

Statement from NOAA Enforcement Attorney Charles Juliand.

 

 

 

 

 

 

In a statement released by the National Weather Service Employees Organization,Charles Juliand, a NOAA attorney whose practices have been sharply criticized by the Department of Commerce Inspector General, called the efforts by Congress and Industry to seek examination of NOAA Fisheries Enforcement practices a "smear campaign in which false unsubstantiated charges have been made."

Read Mr. Juliand's statement.

 

 

 

 

 

 

WASHINGTON – September 24, 2010 – Shortly after arriving in office 17 months ago, I heard troubling complaints about NOAA’s enforcement programs nationwide, and I decided that an investigation was warranted. I requested that the IG conduct a thorough investigation to identify the problems, so that we could take appropriate action. I am fully committed to addressing any and all problems identified.  Fair and effective enforcement is essential to our ability to rebuild and protect the public’s fisheries and other natural resources.

Complementing steps NOAA has already taken, Secretary Locke today announced additional strong actions, including the appointment of a Special Master to review complaints identified by the IG. I join Secretary Locke in wanting to get to the bottom of the questions surrounding these enforcement actions. NOAA will take corrective actions if the Special Master and the Secretary determine they are warranted.  And we will continue to reform NOAA’s enforcement program.

Background

NOAA has acted quickly and aggressively to implement changes in response to the issues identified in the first three IG reports, and we will do the same with the most recent findings. As the IG states in today’s report, “some issues implicated by particular complaints may be resolved or mitigated by measures taken by NOAA to date in key areas, such as leadership and management; policy, process, and regulations; workforce structure; and communications and outreach.”

Since problems were first identified by the IG, NOAA has listened to concerns and ideas from the fishing community and other partners. NOAA's recent National Enforcement Summit provided helpful additional suggestions for improving compliance and enforcement, while building confidence among our stakeholders. 

Read the complete story from NOAA News.

 

 

 

 

 

 

Andrew Cohen, the former federal fisheries agent in charge of law enforcement for the Northeast working out of Gloucester, continues to receive his annual salary of at least $123,000 after being relieved of virtually all previous duties, according to official communications.

Cohen remains at his "duty station in Gloucester," but reports "directly" to Acting Law Enforcement Director Alan Risenhoover in Silver Spring, Md., where the National Oceanic and Atmospheric Administration is based.

That and other e-mails from Risenhoover's office did not specify Cohen's role, but made clear that he is "in a non-supervisory position that does not include direct involvement with any enforcement actions in the Northeast."

Read the complete story from The Gloucester Times.

 

 

 

 

 

 

WASHINGTON – Sept. 23, 2010 – The following is the text of a Commerce Department fact sheet on the reforms instutued by Secretary Gary Locke on Fisheries Enforcement. Secretary Locke to Appoint Special Master to Review NOAA Law Enforcement Cases, Restricts Use of the Asset Forfeiture Fund  

U.S. Commerce Secretary Locke announced today sweeping reforms to increase accountability and transparency and strengthen the public’s trust in NOAA’s Office of Law Enforcement and the General Counsel for Enforcement and Litigation.

Enforcement Cases

Secretary Locke, invoking his authority under the Magnuson-Stevens Act, announced he will appoint the Honorable Charles B. Swartwood, III to serve as Special Master to review enforcement cases the Commerce Department’s Inspector General identified in its most recent report as problematic, some dating as far back as 2001. Judge Swartwood will make recommendations to Locke on whether to take action to modify or remit the penalties.

Asset Forfeiture Fund

Under provisions of the Magnuson-Stevens Act, NOAA has authority to retain proceeds from the civil penalties imposed and collected by the agency, as well as the proceeds from the sale of seized fish and vessels, to pay for “expenses directly related to investigations and civil or criminal enforcement proceedings.”

Secretary Locke announced significant restrictions in the use of the Asset Forfeiture Fund (AFF) to prevent abuse and increase transparency. The new policy now prohibits 50 percent of the Fund’s historical uses, including the purchase of vehicles and vessels; paying for travel that is not related to investigations, proceedings or training; or paying for training unrelated to an integral part of an employee’s job. In addition to the travel and training restrictions, other prohibited uses in the policy are:

·Funding for any NOAA employee labor, benefits or awards;

·Funding for any vehicle or vessel purchases or leases, or associated equipment, upgrades, modification or maintenance of current vehicles or vessels;

·Funding for the purchase of any equipment that is not directly related to a specific investigation or enforcement proceedings.

The new policy also includes a number of authorized uses as well as a new section aimed at improving and expanding NOAA’s compliance assistance, collaboration and outreach activities.  Activities will include:

·Expanding the use of regional enforcement workshops and training sessions to bring together and educate stakeholders on regulations and other requirements;

·Educating and involving fishermen in the development of potential solutions to regional and national enforcement issues;

·Improving communications with regulated communities and the general public on enforcement issues through improved websites, easy-to-understand compliance guides and timely electronic or other notifications of changes in regulations.

The Department of Commerce is seeking public comment on the proposed guidance, and will work with the Marine Fisheries Advisory Committee to develop proposals for activities or program enhancements that will improve compliance with all marine resource statute.

 

Compliance Assistance

In addition to these reforms, Secretary Locke announced that NOAA will hire eight new enforcement officers to increase NOAA’s presence on the docks to assist fishermen on compliance with laws and to reduce enforcement actions and prosecutions.  The Department will also initiate a compliance pilot program in New England, including hiring a compliance assistance liaison and a communications person to enhance outreach to the fishing industry.

Previous Activities to Address the IG’s Recommendations

In addition to the new policy, NOAA has also systematically addressed the IG’s recommendations from earlier reports, including:

·Transferring oversight of the Asset Forfeiture Fund, which holds fines imposed by NOAA, from NOAA Fisheries to the NOAA Comptroller.

·Requiring justification and approval from the NOAA comptroller for any expenditure from the Asset Forfeiture Fund over $1,000.

·Reassigning Alan Risenhoover, director of NOAA’s Office of Sustainable Fisheries, to serve as acting director of NOAA’s Office of Law Enforcement.

·Hiring Benjamin Friedman as the new Assistant General Counsel for Enforcement and Litigation.

·Freezing the hiring of criminal investigators until a work force analysis is completed to determine the appropriate mix of criminal investigators and civil enforcement officers.

·Implementing a new rule to place the burden of justifying a particular civil penalty or permit sanction on NOAA rather than the respondent in cases before administrative law judges.

·Developing a process to set enforcement priorities at the national and regional level.

·Requiring high level legal review of all charging and settlement decisions.

·Providing enforcement charging information to the public.

NOAA continues to work towards other improvements, including:

·Developing a new penalty policy that will be more specific and have narrower penalty ranges and will be made available for public comment.

·Reviewing and revising NOAA law enforcement and general counsel operations manuals.

·Developing a communications plan to provide greater outreach to fishermen and fishing communities, and other fisheries stakeholders.