Enforcement

A federal judge today barred the National Oceanic and Atmospheric Administration from forcing a shutdown of the Gloucester Seafood Display Auction before final adjudication of the allegation in U.S. District Court.

NOAA law enforcement had announced the intended 10-day shutdown in June and trumpeted the action as if it were a fait accompli, based on the NOAA chief administrator’s upholding of the agency’s own finding through its administrative legal system.

The ruling leaves the auction, the linchpin business for the Gloucester and Gulf of Maine fishing industries, free to remain open in the foreseeable future, but does nothing to affect three different allegations which together could force the business to shutdown for close to six months down the line.

Read the complete story at The Gloucester Daily Times.

See also: Gloucester seafood auction wins reprieve from 10-day closure.

 

A federal judge today granted the injunction request sought by the Gloucester Seafood Display Auction, effectively saying the auction will not be facing a government-forced shutdown or other penalties in the immediate future — and that the National Oceanic and Atmospheric Administration cannot enforce penalties it sought last month until the auction’s appeal of a prior violations charge is heard and resolved in U.S. District Court.

Federal District Court Judge Douglas Woodlock also chastised NOAA officials for their handling of the auction case, and for suggesting NOAA chief administrator Jane Lubchenco’s upholding of a guilty finding by the Coast Guard Administrative Law System against the auction was sufficient to treat that as a guilty finding on the violation charges while the auction’s appeal was still pending in U.S. District Court.

The judge, however, also noted that, if the auction is ultimately found guilty of the violations central to the case, any penalties to be served would have to be served consecutively, not concurrently.

Read the complete story at The Gloucester Daily Times.

The National Oceanic and Atmospheric Administration’s enforcement oflaws meant to protect wild fish stocks is on trial today in federalDistrict Court in Boston, where a judge may rule on the government’sdecade-long prosecution of the Gloucester Seafood Display Auction.

At issue is whether NOAA’s efforts to close theauction for 10 days on a probation violation is a valid application ofa six-year-old settlement or an act of after-the fact retributionagainst a business that has repeatedly declared its innocence andaccused NOAA of vindictive behavior — and drawn extensive support frompublic officials from here to the State House and the halls of the U.S.Senate.

If the auction wins and its punishment is thrown out,settlements with fishermen from coast to coast will be called intoquestion, weakening the federal government’s ability to enforce the lawand stop overfishing, the assistant U.S. attorney representing NOAA hassaid in court documents.

Read the complete story at The Gloucester Daily Times.

Responding to a federal judge’s full disclosure order, the regional chief of federal fisheries law enforcement admitted in a sworn affidavit yesterday he briefed the The Boston Globe about a legal action aimed at closing the Gloucester Seafood Display Auction four hours before the auction itself was notified.

The nature and circumstances surrounding the media relations conducted by Special Agent Andrew Cohen and other law enforcement and communications officials of the National Oceanic and Atmospheric Administration to get out the word about a NOAA-planned temporary shutdown of the Gloucester Seafood Display Auction last month triggered the judicial inquiry into allegations of vindictive motives.

The case against the auction and the inquiry into NOAA law enforcement’s motives are docketed for arguments and possible resolution Monday in the courtroom of U.S. District Judge Douglas Woodlock.

Read the complete story at The Gloucester Daily Times.

Andrew Cohen, Special Agent in Charge of NOAA Fisheries Office of Law Enforcement’s Northeast Enforcement Division has filed an affidavit in Gloucester Fish Exchange v. Gary Locke et al in response to U.S. District Judge Douglas Woodlock’s demandfor affidavits to explain NOAA enforcement’s media campaign regardingits move last month to try to force the auction to close for 10 days.

Read the affidavit and related documents.

(Please note that while the date on the exhibit and in Mr. Cohen’s signature are obviously incorrect, the documents’ validity has been confirmed.)

Related stories:

Judge Demands NOAA Explain Gloucester Auction Closure Publicity.

NOAA enforcer admits tipping Globe of action before auction.

The National Oceanic and Atmospheric Administration projects that the Gloucester Seafood Display Auction has "no likelihood" of winning its federal court appeal of a 10-day shutdown order "on the merits," so NOAA is urging a federal judge not to put off imposing the penalty.

NOAA’s opposition to the auction’s motion for a preliminary injuction was expected. It was filed Friday in a swirl of events including a judicial inquiry into federal government anti-auction publicity and an inspector general’s investigation into claims of vindictive motivation for legal action against the auction.

But the events appear to be accelerating toward a scheduled showdown next week in NOAA’s decade-long and oft-frustrated effort to punish the auction for alleged violations of the Magnuson Act, the federal fishery conservation and management law.

Read the complete story at The Gloucester Daily Times.

A day after hundreds packed Gloucester City Hall at a vigil in supportof the fishing industry, area fishermen yesterday met with investigators from the U.S. Commerce Department examining complaints of improper and vindictive enforcement tactics by fisheries regulators.

The meetings, held at a harborside location in Gloucester after an earlier round of interviews were conducted in Wakefield, featured testimony from at least nine people, according to a source familiar with the investigation.

The meeting site and identities of those who spoke to investigators were not made public because of concerns of retribution from fisheries enforcers, the source said.

Read the complete story at The Gloucester Daily Times.

Greg Duckworth became a fisherman after earning a business management degree from the University of Rhode Island.  He participated in NMFS observer programs before becoming the subject of NMFS Office of Law Enforcement actions.  He made the following statement describing his experience in meeting with investigators from the Office of the Inspector General.

Terry Mulvey, Jerry Carvalho and I met with Office of Inspector General investigators for over five hours, from 1 p.m.- 6:15 p.m. on Tuesday. 

The investigators we met were Gregory Sebben and Jennifer Nobles. They were very professional and caring individuals who seemed genuinely interested in what has happened. I felt we were dealing with honest people who cared. I never ever got that feeling when dealing with NMFS enforcement or OLE. 

Terry and I told our stories of being victims of excessive fines — issued for what we perceived to be malicious and selective prosecution. We enumerated what we believed to be wrong, and provided documentation to support our claims.  I also provided the investigators with the affidavit of Administrative Law Judge Jeffie Massey. The investigators tasked us with a "homework assignment" of drafting a time line of events and weaving thedocumentation into it. 

In my case, the NOAA General Counsel Office for Enforcement and Litigation (GCEL) employee who negotiated in bad faith, issued a million dollar fine, withheld exculpatory evidence, violated rules of professional conduct, filed false legal motions, violated the constitution and lied to me outright, was not allowed to be put on the stand at my hearing.   NOAA GCEL employees are exempt from being questioned about their actions. Little wonder why things are so bad.  I could add violation of due process to my list of grievances. But that should be obvious to everyone who has read the affidavit of Administrative Law Judge Massey.

I attended the Gloucester vigil last night. It was a great feeling to be among intelligent, caring people who understand the corruption and lack of fairness in the present federal fisheries enforcement system. I usually have to explain to people how this dysfunctional system operates to destroy fishermen and their families, It was refreshing, for once, to not have to do that. The people who spoke understood how wrong the present enforcement scheme is.

I hope all the officials who have engaged in wrongdoing will be held accountable for their actions.

I would fully recommend that anyone with a “story of abuse” should talk to the Inspector General’s team.

 

Mr. Duckworth can be contacted at truetwistreap@yahoo.com

The Office of the Inspector General can be reached at NOAAFisheriesReview@oig.doc.gov or 202-482-4661. 

Affidavit of former Judge Jeffie Massey

Certificate of Recognition given by the Commerce Department to Mr. Duckworth

 

Related Articles

Fishermen Challenged to Come Forward and Speak to Inspector General’s Team

Inspector General Zinser’s description of the investigation

 

 

The imagery suggested a tragedy more than an industry’s struggles with arcane federal regulations.

But for the hundreds marching with candles from the steps of City Hall to the sea last night, the Byzantine federal efforts to control the fishing industry have risen to that level.

"I saw this as a civil rights issue," state Rep. Ann Margaret Ferrante, the co-organizer of the fishermen’s vigil, told those packing City Hall. "What we have done is start to build a movement."

"It never should have gotten this far," said state Sen. Bruce Tarr. "But when there is an injustice and we are bold enough and strong enough, it will be eradicated."

Read the complete story at The Gloucester Daily Times.

Both North Carolina Senators and seven Members of Congress have written to NOAA Administrator Lubchenco to express their view that  "’allegations of excessive penalties and retaliatory actions by the (NMFS) Office of Law Enforcement’ are by no means isolated to the Northeast".

 Last May, fourteen members of the North Carolina state legislature wrote to the their representatives in Congress expressing their concern about "questionable actions by the Enforcement Division" of NOAA and NMFS.  The legislators state that "over the past several years" they have received complaints from "local elected officials"and industry members about "overzealous and intimidating enforcement practices" and the belief that the Administrative Law Judge System has "a decided bias".

Read the letter from the North Carolina legislators.

 In response to the concerns and request of the state legislators, nine members of the North Carolina congressional delegation, led by Congressman Walter Jones and Senators Richard Burr and Kay Hagan, thanked NOAA Administrator Jane Lubchenco for her commitment to Massachusetts congressmen and senators "to request an Inspector General review of NOAA’s commercial fishing industry enforcement practices" and told her that the "’allegations of excessive penalties and retaliatory actions by the Office of Law Enforcement’ are by no means isolated to the Northeast".

 The senators and congressional representatives stated that the Coast Guard Administrative Law Judge court system "warrants consideration" as evidenced by the "97% success rate" of Coast Guard Prosecutors. "Faced with the near certain odds of a guilty verdict and a steep penalty, innocent fishermen may have little choice but to settle, even if settling will do great damage to their reputation, their career and their ability to provide for their family."

Read the letter from North Carolina Senators and Congressional Representatives to Dr. Lubchenco.