January 20, 2014 — On November 25, 2013 a Federal District Court ruled that two men from North Carolina were not guilty of finning sharks as presumed under a federal fishing law. The case is interesting not only because of what it produced by way of the district court’s decision, but also, and perhaps more importantly, because of the long history that ultimately spawned the government’s prosecution of these particular men and the political environment in which it occurred.
The highly politicized agencies of the federal government are most to blame here, in this case National Marine Fisheries Service (NMFS) and its parents National Oceanic and Atmospheric Administration (NOAA), and the U.S. Department of Commerce. For an industry accustomed to bad news and neverending harassment by the very agency established to promote and protect it, the temptation might be to view this court victory in a vacuum and attach far too much optimism to its outcome. While there is certainly cause for celebration, it is important to understand the historic underpinnings of this case and the devastating impact federal agencies often have on the private sector when left unchallenged and undisciplined by those charged with their oversight, i.e. members of Congress and, in this case, the Administrative Law Court System (ALC).
National Marine Fisheries Service would be averse to adjudicating many of their cases if it were not for the abdication of responsibilities and duties by Administrative Law Judges (ALJ) who are far too willing to show deference to government agencies even when it is clear those agencies are not operating in good faith. NMFS understands it will more than likely prevail in an environment where the arbiter of disputes is likely to validate government actions under a cozy if not suspect relationship. For example, according to published reports, early in 2000 ALJ Parlen McKenna attended a workshop in Kuala Lumpur, Hawaii with NOAA prosecuting attorneys, Charles Juliand and Mitch MacDonald who had a case before McKenna. According to Special Master Charles B. Swartwood III, who was charged with following upon an Inspector General’s report highly critical of the Agency, this "presented an actual conflict of interest," or, at the least, "created the appearance of a conflict”. McKenna was the ALJ in the Etheridge/Cordeiro case referenced here.
The bottom line is this case should never have been brought but for the overzealousness of bureaucratswho are schooled inrevenge and possess little, if any, of civilized society’s respect for the rule of law and decency. They also know there is little if any down side to prosecuting in a court system (ALC) rigged to find for the Agency. Today, as a result of this and myriad other cases, lives and businesses have been ruined, and a once thriving shark industry barely exists save a few fishermen who operate at the complete whims and wishes of the National Marine Fisheries Service. Interestingly, when appeals wind up in federal court, and the veil of secrecy and inside dealing is exposed by the scrupulous eye of a judge who actually wants to find truth, the results are often quite different.
Sean McKeon was the president of the North Carolina Fisheries Association during the Etheridge/Cordeiro hearings and appeals
Read the full opinion piece here