By Richard Gaines
Federal oceans administrator Jane Lubchenco yesterday acted to regain control of fisheries law enforcement whose activities — notably in the Northeast and with the Gloucester fleet — have been criticized in a scathing report by the U.S. Commerce Department's Inspector General.
In her first active response to the report of U.S. Commerce Department Inspector General Todd Zinser — released two weeks ago — Lubchenco acknowledged "longstanding deficiencies" and asserted that fixing the problems would take some time.
But she vowed to fix National Oceanic and Atmospheric Administration's law enforcement arm, which has tarnished the first year of an administration that began with Lubchenco's admission at her confirmation hearing that the agency's relationship with the fishing industry was "dysfunctional."
The action by Lubchenco comes three months after a protest by hundreds of fishermen in Gloucester and three weeks before a national protest at the U.S. Capitol in Washington.
Her announcement yesterday included immediate changes and initiatives for the creation of standards and policies to fill a vacuum that the Inspector General cited repeatedly as troubling.
Zinser reported a disconnect between the head of law enforcement and the agents that allowed, if not encouraged, them to think of themselves as crimebusters and act "autonomously."
"I take this report very seriously," Lubchenco wrote to Lois J. Schiffer, general counsel for the agency, and James Balsiger, the acting assistant administrator for fisheries, in a joint memo, "and I am committed to addressing the problems identified."
Zinser's preliminary report — he vowed to bore into and report on notorious cases — drew angry denunciations of NOAA law enforcement last month from a congressional chorus spread between North Carolina and Maine.
But as recently as December, Dale J. Jones — the former city police chief from Hagerstown, Md., who has headed NOAA's law enforcement wing since 1999 — visited his officers in the Atlantic regional office in Gloucester to buck up their spirits. Later, from Silver Spring, Md., he claimed in an internal memo that "we really have nothing to fear."
Yesterday, Lubchenco directed that control of an $8.5 million Asset Forfeiture Fund be shifted from the law enforcement office of the National Marine Fisheries Service to the controller of the parent NOAA agency, over which she presides.
Lubchenco also directed that "charging decisions, penalties and permit sanctions" be reviewed independently of the Office of General Counsel.
U.S. Sen. Olympia Snowe, R-Maine, yesterday called Lubchenco's action a "step in the right direction."
"As fishermen know all too well, the Inspector General's report shed light on a deep-rooted problem, and a sustained, concerted effort will be required to get NOAA's law enforcement branch back on track," Snowe added in her prepared statement. "I remain deeply troubled by the systemic problems exposed by the Inspector General's Report."
"It's a good start," added state Rep. Ann-Margaret Ferrante. "However, there should be sensitivity training for offices who need to know the rights that citizens have under the Constitution. There needs to be some accountability for anyone who thought it was OK to abuse their office."
Ferrante also said she believes NOAA should acknowledge past mistreatments and compensate those who have been wrongly treated.
That element was also not lost yesterday on Larry Ciulla, the owner and president of the Gloucester Seafood Display Auction whose business was wrongfully entered after hours and without permission by NOAA enforcement agents in 29006, according to a Gloucester Police report obtained by the Times.
"What about the people who were victimized by overzealous prosecutions for small — or even no violations?" Ciulla said yesterday, reacting to Lubchenco's actions. "I feel as though they're getting lost in the wash."
The IG's investigation was sparked in large part by Ferrante, who enlisted the leadership of the Massachusetts Legislature to petition the state's congressional for IG's intervention.
And the cause celebre for the industry has been an effort by Jones' investigators in Gloucester to close down the Seafood Display Auction.
The auction, the linchpin of the port economy and the No. 1 platform for the brokering of seafood from the Gulf of Maine, was already fighting an earlier administrative allegation when it was hit last February with a 59 count Notice of Violation and Assessment that carried a 120 day shutdown and $335,500 fine for paperwork and other technical violations formed out of computer transaction reports.
The auction and the agency are set to go to trial on March 1 on that NOVA in an administrative court in Boston.
Last June, Andy Cohen, the agent in charge of the Gloucester regional office, also used a press release to suggest that the auction was about to be shut down for 10 days based on a disputed and later overturned legal theory.
In fact, the auction was already appealing the contested sanction, and has never had to shut down. U.S. District Judge Douglas Woodlock chastised Cohen and NOAA law enforcement for attempting to impose the penalty in an active case, and gave the auction the injunction it sought against NOAA law enforcement.
Zinser's report found that penalties assessed by the Gloucester office throughout the Northeast region, from Maine through the Carolinas, were on average 250 percent greater than the next highest region and more than five times the national average.
Zinser expressed special concern about the nature of the forfeiture fund and announced that he would put it through a forensic audit.
Yesterday, Lubchenco said she was "ordering an immediate shift in oversight of the forfeiture fund from NMFS to the NOAA controller."
"This immediate step will begin to address the IG's criticism that internal controls over this fund are lacking and that efforts are required to ensure proper use and verification of the funds," she wrote to Schiffer and Balsiger.
Among other immediate steps ordered by Lubchenco were freezing the hiring of any criminal investigators pending a workforce analysis. The IG found that while the vast majority of the cases were administrative, the Jones administration of justice had filled the offices with criminal investigators who confused the assignment, but were paid a premium for their criminal background. Fishermen and others in the industry have long claimed that NOAA enforcers have treated them like "criminals."
Lubchenco also noted the special problems created by law enforcement in the Northeast, and directed an effort to improve communications on enforcement issues "particularly in the Northeast."
As she did on the day the IG's report was issued, Lubchenco yesterday said a summit on law enforcement practices will be organized and held no later than June 30, 2010.
"The summit will provide a venue to develop forward thinking approaches to enforcement efforts within NOAA to address these concerns," she said, "and to assist leadership in formulating long-range policies for properly executing NOAA's enforcement actions to protect living marine resources."
In addition, Lubchenco directed the agency to eliminate the "system inefficiencies and data integrity issues" that the IG found endemic throughout NOAA law enforcement, with an eye toward creating rational enforcement priorities and rewriting the penalty schedule.
Attorney Stephen Ouellette, who has been documenting the law enforcement excesses for many years, was unimpressed by the statement from Lubchenco.
"The administrator's response barely addresses the most basic issue raised by fishermen and confirmed by the IG's investigation," Ouellette said.
That, he said, is the fact "that despite the dizzying array of constantly changing, complex rules, NOAA Law Enforcement aggressively targets hardworking fishermen, treating them like criminals, and in turn the Office of General Counsel levies excessive fines and imposes excessive sanction, even in the case of minor, understandable paperwork violations.
"Fishermen honestly believe, and the IG's report confirms, that they are being abused by and live in virtual terror of a governmental agency out of control that can, and does, use simple paperwork errors to justify taking a fishermen's permit, boat, livelihood and home."
Richard Gaines can be reached at 978-283-7000, x3464, or via e-mail at rgaines@gloucestertimes.com.
