February 11, 2013 (Saving Seafood) — The Gloucester Daily Times published an investigative piece on February 9th which looked into the findings of Special Master Charles Swartwood regarding NOAA enforcement actions against Thomas R. F. Reilly and his partner, Dennis Saluti, of Sea Rich Seafoods. Judge Swartwood found that NOAA charged excessive penalties "in a manner that unfairly forced settlement, that NOAA exercised its broad and powerful authority to force a settlement and that NOAA personnel were arbitrary and capricious…"
The Special Master found that when NOAA attorneys learned of a planned sale of Sea Rich Seafoods they moved quickly to issue a 113 count Notice of Violation seeking a $4.74 million dollar penalty, and that "as a result of a NOAA press release, the potential sale of the company and the companies' credit line were jeopardized…" He concluded that Mr.Reilly and Mr. Saluti "were coerced into an unfavorable settlement in which they lost the true value of their interest in Sea Rich and Atlantic Gem."
A search of the NOAA employee database shows the attorneys cited by Judge Swartwood as the perpetrators of this prosecution, Charles Juliand and J. Mitch MacDonald, remain employed by NOAA.
February 9, 2013 (Gloucester Times) — The special investigator commissioned by the Department of Commerce has concluded that the same two attorneys in NOAA’s Gloucester office who extracted an excessive settlement from a New Bedford scallop fishing business owner in 2005 did the same thing years earlier to a pair of New Bedford fish processors using coercive methods “with an intention to intimidate.”
A detailed narrative of how NOAA’s Gloucester-based enforcement and litigation attorneys Charles R. “Chuck” Juliand and James “Mitch” MacDonald improperly manipulated the system of fisheries enforcement law to drive Thomas R. F. Reilly and his partner, Dennis Saluti, in Sea Rich Seafoods and another company to pay a $1 million cash penalty plus the loss of business licenses and fishing permits for what were found to be exaggerated charges is detailed in the 554-page report to the acting commerce secretary by special investigator Charles B. Swartwood III.
In releasing a redacted version of Swartwood’s second set of case studies into allegations of NOAA Fisheries law enforcement excesses, Acting Commerce Secretary Rebecca Blank on Dec. 14 made reparations to Reilly and Saluti of $373,500, the amount recommended by Swartwood.
According to the report, the abuse and manipulation of the law in the prosecution of the Sea Rich case occurred in 1997. But Reilly and Saluti’s complaint of proprietorial misconduct came to light only with the decision by then Commerce Secretary Gary Locke, based on Swartwood’s initial report in May 2011, to commission an additional study of industry complaints that NOAA law enforcers harassed and intimidated fishermen and shore-side businesses.
Juliand and MacDonald were also the enforcement attorneys in the prosecution of New Bedford scalloper Larry Yacubian, a case that extended from 2000-2005 and ended only after Yacubian and his wife divested themselves of most of their assets including her ancestral farm to pay a $430,000 fine and legal fees.
The amount of the fine assessed by an administrative law judge was deemed excessive by a U.S. district court judge and by Swartwood, himself a retired federal magistrate.
In releasing the first Swartwood report — with formal Cabinet-level apologies to the 11 businesses put in duress by wrongful actions of NOAA litigators and agents — Locke, now the ambassador to China, made more than $650,000 in reparations including $400,000 to Yacubian. Blank, who has been acting commerce secretary since last June, issued no apology but distributed $564,794 to Reilly and Saluti and 13 other businesses, while also forgiving debts of $161,266.66 owed by two other businesses.
In reviewing the case against Reilly and Saluti, Swartwood wrote that, in seeking a $4.74 million penalty, Juliand and MacDonald intervened with a prospective buyer of their businesses; they also charged Reilly and Saluti a penalty 17 times for a single allegation of “interference” with law enforcement — a charge that Swartwood dismissed as false. Once they learned of the potential sale, they immediately wrote up the huge penalty and contacted the buyer, actions Swartwood concluded involved “an intention to intimidate.”
“As a result of a NOAA press release,” Swartwood wrote, “the potential sale of the company and the companies’ credit line were jeopardized,” while NOAA also threatened to seek an “interim” order that would have shuttered the company and prevented the sale.”
He wrote that under the circumstances, the businessmen “had no options” but to settle the case for $1 million plus permits
Underpinning the actions of NOAA’s agents and litigators was a long history and widespread knowledge that the U.S. Coast Guard administrative law judges would side with NOAA.
In his December report on the case, Swartwood notes that Juliand told an attorney for the businessmen that “he should not be too sure about his assessment of the case and that he believed he could get whatever assessment he sought” from the judges. The report states that Juliand confirmed that in his interviews with Swartwood.
Swartwood’s study of the Yacubian case also contains the statement that a redacted email covering five lines was “credible evidence that money was NOAA’s motivating objective.”
Read the full story at the Gloucester Times
Read Judge Swartwood's report on the case of Mr. Reilly and Mr. Saluti