January 20, 2011

Fishing and the IG's report, one year later
By Richard Gaines
Staff Writer The Gloucester Daily Times Thu Jan 20, 2011, 11:23 PM EST


It was a year ago today that a federal inspector general exposed how a law enforcement bureau inside the National Oceanic and Atmospheric Administration had, for many years, been using the badge to extract exorbitant fines and weaken the commercial fishing fleet.

Yet, while key NOAA enforcement officials have been removed from their roles, no one has been punished, and a number of those at the center of the scandal have been shifted to different positions, to the consternation of fishing industry backers and lawmakers alike.

"This is a civics lesson for all Americans," said attorney Stephen Ouellette, who documented the problems in a letter to Congress that went unheeded a decade ago.

At the center of the case was Dale J. Jones, the longtime director of law enforcement for the National Oceanic and Atmospheric Administration, and the policing and litigation offices of the agency here in Gloucester where the offenses were concentrated.

Subsequent reports from Commerce Department Inspector General Todd Zinser in March and September brought more clear evidence that the agents together with the litigators were using and enjoying the ill-gotten gains.

Proceeds from NOAA's Asset Forfeiture Fund — nearly $50 million over 41/2 years — was accumulated and used without clear accounting or oversight, to purchase a fleet of boats and vehicles, finance overseas travel to exotic destinations, Kuala Lumpur, Mozambique, Trondheim, Norway, for international fisheries conventions and fund the day-to-day operations of the Office of Enforcement and Litigation.

Pressure from Gloucester

NOAA administrator Jane Lubchenco, who inherited the system, asked the IG to undertake the investigation only under pressure from lawmakers and the industry that sprung from Gloucester at the auction house owned by the Ciulla family.

So onerous were the most egregious IG's findings — including the near obsession with legally beating into submission the Gloucester Seafood Display Auction — that Commerce Secretary Gary Locke last September countermanded the strategic approach of Lubchenco and her colleagues to move forward without looking back. Locke recruited retired federal judge Charles B. Swartwood III, the chairman of the Massachusetts State Ethics Commission, to undertake a broad and open-ended review of miscarriages to determine if reparations were warranted, and make recommendations to the secretary.

But NOAA has still not provided a coherent theory for how a federal police force transformed into a free-wheeling band that, as documented by the IG's report, intimidated targets into paying heavy fines for minor or even technical offenses.

Shifting places

Dale Jones, the former chief of law enforcement, was shifted to work on the Gulf oil spill clean up, and Charles Juliand, unnamed but identified by the IG for a pattern of "animus" to fishermen and abuse of the badge "unbecoming" an official, was also transferred.

Andrew Cohen, chastised by a federal judge for attempting the smear the reputation of the auction insinuating it was being closed for violations when it wasn't, resigned. A purported NOAA study of whether he had violated any rule or law by using his government issue cell phone to operate an eBay business for years was left hanging.

Requests over the months to interview Lubchenco or Lois Schiffer — NOAA's chief counsel, who crafted the short-lived plan to make reforms without reviewing past cases of excessive action against fishermen — have been ignored. Again, Thursday, requests for a narrative of what happened or an accounting of any punishment meted out to any of the principals in the decade long pattern of excessive enforcement were ignored.

Instead, through the press office, NOAA released a statement to the Times.

"NOAA has worked diligently to address the problems and create a more fair and effective enforcement program and we have accomplished a great deal in the year since the first IG report was released," said NOAA spokesman Scott Smullen.

"Transformational changes are beginning in the way NOAA conducts its enforcement work. These changes will lead to greater national consistency, greater transparency, and increased emphasis on compliance.

"New internal controls have been established that improve management, oversight, and accountability within NOAA's enforcement programs," the statement continued. "New policies are in place to more accurately track funds and expenses and we will soon finalize a formal policy that guides how we use the Asset Forfeiture Fund."

Mayor decries 'arrogance'

But there is little sense of optimism within the industry or Congress.

"It is clear that NOAA has been left to investigate and sanction itself," said Gloucester Mayor Carolyn Kirk. "We have seen the result — which is arrogance from NOAA officials, a disregard for justice, and disdain for the public and most egregiously, the working people who have been hurt by their actions."

"Not much has changed," added Ouellete, who was recognized in the IG's report for having documented and objected to the full panoply of NOAA law enforcement abuses in a 15-page single-spaced letter to the Congressional delegation in 2001

"There has been some attempt to improve transparency in the assessment of fines," Ouellette said, but the agency has announced a revised regimen with "higher fines than previously and they are now doing so on a national basis."

Ouellette also said he believed NOAA did not recognize that the law enforcement approach was wrong or destructive.

He noted that NOAA had given Juliand bonuses for his aggressive work charging fishing businesses. The National Weather Service Employees Union, which represents NOAA litigators, made the same point, and insisted that Juliand was in line with NOAA goals and values.

'A scary message'

"Those people remain unchanged," Ouellette said. "There are within the government people who pursue their bureaucratic jobs without concern for the impact on people. This is a sad and scary message. Two years from now they will have returned to their old ways."

Area state and federal lawmakers echoed those concerns.

"It is disappointing that not much has changed in light of the Inspector General's report, hopefully, the review of (Special master) Judge Swartwood will move Secretary Locke to effective and deliberative action in favor of our community," said state Rep. Ann-Margaret Ferrante, who sparked the chain of protest events that led to the letter from Congress that eventually moved Lubchenco to ask the IG to step in.

The resistance drew together a bipartisan, bicameral coalition from Maine to North Carolina, the range of law enforcers based in Gloucester.

"One year later, it is unacceptable that these egregious abuses of power by NOAA personnel have gone unpunished and uncorrected," said U.S. Sen. Scott Brown, who was elected a year ago this week to complete the term of the late Sen. Edward M. Kennedy. Kennedy had been the lead advocate of the industry and a signer of the letter to Lubchenco for investigation of NOAA law enforcement.

"We must focus on reducing government overregulation that's hurting the fishing industry and costing us jobs," Brown said.

Many fishermen and their advocates said they see the law enforcement campaign against the industry as strategically directed to weaken the fleet while regulatory policies work to reduce the number of boats.

Many elected officials and industry representatives see the law enforcement problem as part of a larger effort to weaken and reduce the size of the working fleet. They note Lubchenco's stated goal, to see a "sizeable fraction" of the fleet eliminated, and the thrust of the catch share regimen in its first year to shift fishing capacity from the many weaker businesses to the wealthy few.

A federal law suit by fishing interests and the cities of Gloucester and New Bedford has challenged the legality and constitutionality of the regimen.

Tierney 'disappointed'

"I am disappointed that the fishermen in our area continue to struggle and lack the economic opportunities they deserve," said Congressman John Tierney, whose district includes Gloucester. "I look forward to reviewing the results of the Special Master's investigation and remain committed to exploring all avenues to take emergency action to increase catch limits."

"It may prove to be helpful that most of the people responsible for the problems are no longer in a position to abuse fisherman, but it is outrageous for them not to be held accountable for their actions," said Congressman Walter Jones, a North Carolina Republican and a leading NOAA watchdog whose district includes the Outer Banks.

"The actions of the secretary thus far were long overdue but represent critical steps in the right direction, including his appointment of a special master to reopen cases against fishermen found by the Inspector General to have been tainted by improper action on the part of NOAA," said Sen. Olympia Snowe, a Maine Republican.

Richard Gaines