Law

A federal judge Thursday put a lawsuit challenging the Obama administration's New England groundfishery regulatory scheme on a tight schedule, and left the door open to an extraordinary request for discovery that could put top officials under oath to determine if the new system rooted in fishermen's catch shares was honorably chosen.

New Bedford Mayor Scott Lang said the unusual request for discovery in an administrative law case was essential to allow the plaintiffs to learn whether influence on the government by green groups with an anti-fishing agenda and a zealous faith in catch shares improperly helped shape the regulatory regimen.

"We don't believe they (the government officials) were honest," Lang said in an interview with the industry news Web site SavingSeafood.com. He has long-contended that Environmental Defense Fund played a pivotal role in the shaping of the re-engineered system.

NOAA administrator Jane Lubchenco was vice chairwoman of EDF when she was nominated by President Obama to take control of the oceans and fisheries. EDF also has a paid senior staffer, Sally McGee, on the New England Fishery Management Council, while the council's chairman, John Pappalardo, now heads an organization of Cape Cod fishermen and lobbyists closely allied with EDF and other green groups.

Lang said the best news of the day was the judge's willingness to consider the request for discovery that would allow deposing officials.

"The only win was that the judiciary has begun to look under the hood," said Lang. "They don't follow the law, and the judge is going to find that out."

Gloucester Mayor Carolyn Kirk said she was encouraged by the judge's effort to take a quick read on the impact of the regulatory system, which has brought consolidation and left many boats tied to the docks due to the small allocations.

"We emphasized the urgency of moving quickly," said Kirk. "Every day that goes by fishing families are being hurt.

(Judge Zobel) was tenacious," Kirk said. "She dogged the lawyers time and again."

Read the story in the Gloucester Times

Three North Carolina fish house dealers were recently found guilty of buying protected red drum without reporting the transactions to the state, according to the NC Division of Marine Fisheries (DMF).

Convicted of buying red drum without recording the transactions on a trip ticket were Donald Carlisle Gilgo of Coastal Seafood in Sea Level, William Jerry Warren of Fresh Ketch in Grantsboro and Floyd Shelton Cuthrell of S&S Seafood in Aurora.

Red drum are North Carolina’s state saltwater fish. NC is one of the few states left which has a red drum population but still permits commercial fishermen to catch and sell them, so transactions between fish house and commercial fishermen are closely monitored.

Read the complete story from The Examiner.

 

 

 

 

 

The head of NOAA on Friday announced an overhaul of the agency's asset forfeiture fund but made no mention of restitution or discipline of officials who were found to have been using the money as a slush fund.

Jane Lubchenco wrote to Todd Zinser, the inspector general who earlier this year uncovered not only the trouble with the trust fund but a law enforcement unit that was virtually out of control, especially in New England.

She spelled out the steps that she and her subordinates are taking to clean up the mess in the fund, which is so severe that the investigation couldn't even determine how much money is in it or what exactly defines it.

Pamela Lafreniere, a New Bedford attorney who represents the fishing industry, sharply criticized Lubchenco's letter.

For one thing, she said, there is no mention of returning some of the seized assets to the fishermen who were prosecuted by a vindictive, unsupervised law enforcement office, according to the inspector general's report.

There is no discussion about ending the practice of funding the law enforcement division (apart from salaries) with seized assets. And the wording suggests that NOAA will set a budget and then try to meet it with asset forfeitures, she said.

"They need to go to Congress for their funding," she said. "They should get an appropriation to do what they need to do, and answer to Congress."

Lafreniere noted that there is no mention of Dale Jones, the former head of law enforcement who was found to be shredding documents during the inspector general's investigation and later disappeared from his job. Despite the talk of transparency and building trust, Lafreniere said, no explanation has ever been made about Jones or anyone else in his office.

She also criticized NOAA for still not having a legal document spelling out what can and can't be done with the asset fund. The inquiry found that NOAA was using the money to buy cars for everyone, a luxury ($300,000) undercover boat, and trips to Europe for conferences.

"It's going to be Sept. 30 before you have a legal definition of the fund," Lafreniere said.

"If you have this fund and you don't even know how to legally use it, I think it shows you shouldn't have it."

The inspector general of the National Oceanic and Atmospheric Administration estimated that $8 million remains in the fund, and his report suggests that upward of $40 million is unaccounted for.

"I think it's pretty clear that they are just not capable as an agency of having the fund. Congress should take it from them," Lafreniere said.

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

 

 

 

 

 

NEWARK, N.J. – July 27, 2010–  Thomas George, the former Chief Executive Officer of Sterling Seafood Corporation, was sentenced today to 22 months in prison for importing falsely labeled fish from Vietnam and evading over $60 million in federal tariffs, as well as selling over $500,000 in similarly misbranded fish purchased from another importer, United States Attorney Paul J. Fishman announced. George, 61, of Old Tappan, New Jersey, pleaded guilty before United States Magistrate Judge Patty Shwartz on January 26, 2010, to an Information charging him with one count of importing falsely labeled goods into the United States and one count of selling falsely labeled fish in the United States with the intent to defraud. United States District Judge Faith S. Hochberg imposed the sentence today in Newark federal court.

According to documents filed in this case and statements made in court:

From January 2003 to June 2006, George maintained a business relationship through Sterling Seafood with a seafood distribution company located in Vietnam. As part of that business relationship, Sterling Seafood regularly purchased fish in the catfish family, Pangasius hypophthalmus, sometimes referred to as Vietnamese catfish. Sterling Seafood would then resell the fish in the United States.

In the interest of fairly regulating commerce in the U.S., the U.S. Department of Commerce establishes anti-dumping duties or tariffs on certain imported products – taxes imposed to increase the price of goods so they do not provide unfair complection to comparable goods produced locally. In January 2003, an anti-dumping duty or tariff was placed on all imports of Vietnamese catfish into the United States because catfish was being marketed at a significantly lower price than was market rate at that time. That initial anti-dumping order imposed a duty of up to 63.88 percent on all catfish subject to the order, and was adjusted based on market conditions.

At his plea hearing, George admitted that from 2004 to 2006, he agreed with the Vietnamese distribution company to engage in a scheme to falsely identify and declare the purchase and importation of the Vietnamese catfish in order to evade the applicable anti-dumping duties. George stated that he specifically instructed the Vietnamese company to fraudulentlyidentify the Vietnamese catfish as “grouper” on commercial contracts, purchase orders, and other documents because grouper was not subject to any anti-dumping duties. Additionally, George admitted that from 2004 to 2005, he purchased over $500,000 of similarly misbranded Vietnamese catfish that was imported from Vietnam by a Virginia corporation and then sold that misbranded Vietnamese catfish throughout the United States.

George’s 22-month sentence represents 18 months on Count One and 22 months on count two, to run concurrently. In addition to the prison term, Judge Hochberg sentenced George to a year of supervised release and ordered him to pay restitution in the amount of $64,173,839.16. George also paid a $50,000 community service payment to the National Fish and Wildlife Foundation to be expressly earmarked for research into the identification of fish and other marine organisms. This sentence does not preclude him from facing additional civil penalties.      

HYANNIS, MA – July 21, 2010 – Recreational angler and fishing advocate Patrick Paquette has succeeded in obtaining rare video footage showing activities aboard industrial Atlantic herring trawl vessels. The video was shown at a public fisheries management meeting in June 2009 and documents loopholes in the current monitoring system and bycatch being brought aboard the vessels.

On Monday, a federal judge approved final settlement of a lawsuit that ends a year-long struggle between Mr. Paquette, who represents several recreational fishing organizations in Massachusetts, including the 60-year-old Massachusetts Striped Bass Association, and the nation’s fisheries management agency. At the center of this struggle was the National Marine Fisheries Service’s (NMFS) interpretation of the Freedom of Information Act (FOIA).

“This is an important step in making sure the government properly handles requests for public information,” said Paquette. “NMFS has acknowledged that they gave me the run-around, and now they are changing their protocols so this doesn’t happen again. By law, we have a right to know.”

Read the complete story from Earth Justice.

 

 

 

 

 

 

July 23, 2010 – A federal court has ordered the National Marine Fisheries Service to reconsider a petition by a group of Port Clyde fishermen who filed a civil action lawsuit against the agency.

The lawsuit was filed in 2007 after the fisheries service denied a petition by the fishermen requesting that the agency stop trawlers from dragging their nets through federally protected groundfish spawning areas.

The fisheries service is responsible for management, conservation and protection of marine resources in waters three miles to 200 miles offshore.

According to Glenn Libby, chairman of the Port Clyde-based Midcoast Fishermen’s Association, the federal agency has designated certain areas in that zone as off-limits to most fishing to protect spawning for groundfish such as cod, haddock, pollock and flounder.

Read the complete story from The Bangor Daily News.

 

 

 

 

 

If you Google an image of a herring midwater trawler, you see a well-equipped large fishing ship. What you may not see are the massive nets that drag behind such ships – meant to capture anything in their path. No wonder local fishermen in Massachusetts are having a hard time competing. Most of their catch is being scooped up by these nets.

Well, today (7/21) Earthjustice scored big—three times over—in the struggle to keep trawling ships from continuing to deplete fisheries of groundfish (including cod, haddock, flounder and sole).

Earthjustice represented fisherman Patrick Paquette in a Freedom of Information Act lawsuit against the National Marine Fisheries Service which for months refused to release a public video of footage aboard trawl ships. The video is important because it showcases the flaws in NMFS's current monitoring system (but more on that later). On Monday a judge approved a final settlement between Paquette and NMFS and officially released the video.

Read the complete story from Earth Justice.

 

 

 

 

 

 

Chatham, Mass. — Commercial fishermen have reached an agreement with the National Marine Fisheries Service (NMFS) regarding a change in a final rule for the Atlantic herring fishery issued in November 2009. The rule outlined new protocols that herring midwater trawl ships must follow in order to fish in an ocean area closed to nearly all types of fishing gear to protect groundfish nursery areas southeast of Cape Cod.

Captain Peter Taylor of Chatham, Mass., along with fellow fishermen Bob St. Pierre and Stuart Tolley, filed the suit in December 2009, requesting that the court require NMFS to reconsider a loophole that weakened the new protocols and declare the loophole illegal under the Magnuson-Stevens Act, our nation’s fisheries law.

“Groundfish fishermen have sacrificed a lot over the years to help rebuild these important fish populations,” said Taylor. “Access to groundfish closed areas requires strict oversight so closing this loophole will allow for better data on bycatch and a realistic view of what midwater trawlers are catching out there.”

Read the complete story form Earth Justice.

 

 

 

 

 

 

Fishing industry attorney Stephen Ouellette is seeking bar association and congressional inquiries into the ethics of enforcement and litigation lawyers who, according to a U.S. Inspector General's report, have covered virtually their entire operating expenses — almost $1 million a year — on inflated fines they levy against fishing boats and shoreside businesses.

Those who set the level of penalties should not benefit from those penalties, Ouellette has asserted in a lengthy letter to Lois Schiffer, chief counsel for the National Oceanic and Atmospheric Administration.

Citing the ongoing, 13-month investigation into NOAA law enforcement practices by the Commerce Department Inspector General's office, Ouellette said the probe "now reveals for the first time that the NOAA Office of General Counsel for Enforcement and Litigation not only sets the fines, but budgets for them as revenue, apparently drawing 99 percent of its non-salary operating expense from the Asset Forfeiture Fund."

He wrote to Schiffer on Sunday, informing her that he was "requesting an ethical opinion from our (Massachusetts) Board of Bar Overseers as to the propriety of agency counsel acting in the dual role of prosecutor and initial agency fact finder, including the setting of fines, while deriving economic benefit from the fines they assess and collect, as well as the practice of resisting disclosure of the basis for setting those fines."

Also on Sunday, Ouellette summarized his lengthy letter to four congressional offices at the forefront of the policy and ethics' battles with NOAA — Sen. John Kerry and Reps. Barney Frank and John Tierney, all Massachusetts Democrats, and Rep. Walter Jones, a North Carolina Republican.

The letter also openly challenges Schiffer's written plan not to look back at any miscarriages of justice by NOAA lawyers and agents. Due to Internet transmission problems, Schiffer's office could not be presented with questions about today's story until nearly deadline, so no responses were available.

Ouellette was the first lawyer to begin documenting the same catalogue of violations that Inspector General Todd Zinser has been bringing forward since March.

A 2001 Ouellette letter to the late Sen. Edward M. Kennedy complained of "adoption of penalty schedules without public input and prevention of inquiry into the basis of levies for fines … in apparent violation of the due process clause of the U.S. Constitution," and creating "an air of distrust in the industry to further its enforcement actions, which threatens to undermine the industry…."

Last Friday, CLF filed a motion to intervene as a defendant in support of Amendment 16 in a federal lawsuit challenging the new groundfishery management regulations, which went into effect on May 1, 2010. The lawsuit, brought by the cities of Gloucester and New Bedford and members of the fishing industry, broadly challenges the new fishing regulations – known as Amendment 16 – on a variety of grounds. CLF, which has long fought for a science-based, more balanced system of fisheries management to ensure a sustainable fishing industry, supports Amendment 16 as critical to ending decades of overfishing in federal waters off of New England’s coast. CLF will intervene as a defendant with the Department of Commerce and the National Oceanic and Atmospheric Administration (NOAA), the senior officials of which were both named as parties.

“The new rules introduced under Amendment 16 are game-changing,” said Peter Shelley, CLF vice president and director of its Massachusetts Advocacy Center. “They have to be to achieve the balance that is needed between the size of our fishing fleet and the amount of fish New England waters can produce, if we want a sustainable fishing industry for generations to come. Importantly, the rules also introduce unprecedented levels of flexibility into the system in an effort to help the fleet operate more efficiently and safely.”

The 2010 fishing season introduced the most sweeping set of changes to New England groundfish fisheries since the Magnuson-Stevens Act was enacted in 1976, establishing U.S. jurisdiction on fisheries within 200 miles of the coast. Amendment 16 put into place science-based catch limits and accountability measures to minimize overfishing of key groundfish, such as cod and pollock, as well as a new management system called sector allocation, designed to provide fishermen more flexibility in organizing their businesses.

Read the complete story from the Conservation Law Foundation.