GloucesterTimes.com, Gloucester, MA

October 13, 2012

Tierney pushes for shielded NOAA report

By Richard Gaines Staff Writer
Gloucester Daily Times

---- — Congressman John Tierney Friday pressed Acting Commerce Secretary Rebecca Blank to release what is widely believed within industry and legal circles to be an explosive set of 66 case studies into possible law enforcement abuses of the fishing industry completed and delivered by a special judicial master nearly seven months ago.

But neither Blank, Cameron Kerry, general counsel for the Commerce Department, NOAA Administrator Jane Lubchenco nor her chief counsel Lois Schiffer responded to telephone and email queries from the Times for comment on the delay in releasing the second report completed by Special Master Charles B. Swartwood III.

“The livelihood of many fishermen will be seriously impacted by the information gathered and analyzed in the special master’s report, as the fines issued by the Offi e of Law Enforcement have already limited the ability of many fishermen to continue fishing,” wrote Tierney, whose district includes Cape Ann.

The letter indicates it closely follows a telephone conversation between the two.

The refusal of the administration to issue the second Swartwood report has added to the alienation and cynicism of the fishing industry, which won vindication for years of complaints in the earlier Swartwood report. But even after a Cabinet level apology to 11 of the most abused victims of law enforcement excess and the payment of more than $650,000 in reparations, the government continued to be perceived as arrogant and patronizing. And the decision by Lubchenco to protect the careers of all those involved in the abuse of fishermen’s rights helped reinforce the alienation.

Also Friday, former New Bedford Mayor Scott Lang, who helped convince then Commerce Secretary Gary Locke to authorize a second set of case studies by Swartwood, compared the government’s unexplained, unreleased report to an “abscess” that grows in pressure and pain until lanced.

“This is troubling to say the least,” said Lang, who left office last year and now is practicing law in New Bedford. “This is the same agency that, when I did a F.O.I.A. (Freedom of Information Request), they sent us one tenth of the eligible material and came up with every possible explanation for why they could not (comply).

”The idea that they would sit on (the latest Swartwood report) for this amount of time, it must be controversial and possibly damning,” Lang said in a telephone interview.

Lang and attorney Pamela Lafreniere, a New Bedford attorney who has a number of clients with cases studied in Swartwood II, said they have no theory for the delay.

”I can’t give you a reason, it’s very troubling,” said Lang.

”I have no plausible theory,” Lafreniere added in a telephone interview.

On Oct. 1, Marni Goldberg, Commerce Department press secretary, issued a statement saying Blank has asked her staff “to gather more information regarding issues identified in the second Swartwood report,” and will “use that information to finalize her decision memorandum.” But what information is being gathered — and to what use it might be put — remains a mystery.

Under Locke’s commission, Swartwood was assigned to choose case studies from a pool of complainants and determine and explain errors the government law enforcement made and what redress he recommends. Locke, now the ambassador to China, supervised reductions — some highly controversial — and authorized reparations from the initial report.

Although Swartwood II, which covers about the same number of cases as his first report, is twice as long, it was turned in to Locke’s successor John Bryson in March. In April and May 2011, it took barely a month for Swartwood’s first report for Commerce and NOAA to redact personal information and provocative elements and make the report public.

But Bryson resigned in June after he was found slumped over the steering wheel with Ambien in his system following a scandalous afternoon of driving with multiple accidents in suburban Los Angeles. President Obama has not nominated a successor, leaving Blank — a member of the career senior executive service — in nominal charge.

Until overruled by Locke, then in line for the ambassadorship to China, Lubchenco and Schiffer planned to respond to a series of exposes by the Commerce Department inspector general to move forward with reforms without reviewing any past but fixable miscarriages of justice.

The Swartwood I report scandalized the NOAA law enforcement system, exposing agents and litigators’ unprofessional behavior, extra legal efforts to nail fishermen with huge fines for minor or trumped up violations and, in one instance, discussed in detail what amounted to a vendetta against the Gloucester Seafood Display Auction — replete with an illegal entry and a search warrant obtained by submitting false information.

Including former Director of Law Enforcement Dale Jones, none of the law enforcers found to have abused their authority or tarnished the badge —identified in a series of reports by the Commerce Department inspector general in 2010 and later by Swartwood I — have been punished. Jones, who was hired away from the Hagerstown, Md., police force where he had been an inland chief, was made a fisheries analyst and kept nearly all of his $155,000 salary.

A week ago, a spokeswoman for Sen. John Kerry said he “has been assured” the administration is working to bring out Swartwood II out at the earliest possible date” after making sure it is “comprehensive.”

Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.