Auction settles case vs. NOAA

The Gloucester Seafood Display Auction avoided trial yesterday, settling a 59 count case of allegations of illegal fish brokering and threads from two cases that together provided the spark for a protest that carried to Congress and helped launch a national investigation into federal fisheries law enforcement tactics.

The settlement requires the auction to pay $85,000 in fines over a three-year period and close for 35 days non-consecutively — essentially at the discretion of the Ciulla family which owns and operates the business that brokers the bulk of fish from the Gulf of Maine.

But the settlement also gives the auction "a clean slate going forward," said its attorney, Paul Muniz. It does not require any admission of liability on the auction's part — and it sets the stage for changes within the way NOAA carries out its regulatory enforcement.

Muniz said the deal includes an agreement to work out an understanding with NOAA limiting any auction or brokerage's liability when it comes to the legality of catch brought in by boats.

Auction President Larry Ciulla said the decision to settle rather than go to trial in an administrative law court was "very hard."

"If it weren't in an administrative law court, we'd have won hands down," he said. "We know from past experience that even if we'd won, we'd have had a good chance of losing."

Winning in trial only to lose after an appeal to the NOAA administrator is what happened to the auction in the second of the three cases that were tied up and sealed for all time by yesterday's agreement.

"The problem it became was a business decision," Ciulla said. "It was not prudent to spend that much money on litigation."

The settlement marks a new course for NOAA law enforcement. The negotiations were taken out of the hands of Charles Juliand, who heads the Gloucester office, and Deirdre Casey, who built the case against the auction. Instead, the talks were removed to NOAA headquarters where Lois Schiffer was recently installed as chief counsel.

"We are pleased to reach a settlement in this long-standing case and we are optimistic that we've entered a more constructive relationship going forward," said Charles Green, NOAA deputy assistant general counsel for Enforcement and Litigation. "NOAA will continue to work with the New England fishing community to build a sustainable fishery that maximizes benefits to coastal communities and the nation."

Green said the closure "will be coordinated in order to minimize economic hardship and customer burden."

In 2006, while attempting to build a case against the auction, agents first undertook a forced entry to the business and weeks later descended with weapons to confiscate records even though the auction had been automatically sending to NOAA computer reports of all transactions with boats delivering for brokering.

The 59-count Notice of Violation and Assessment was promoted by NOAA agent-in-charge Andrew Cohen. It alleged that the business was liable for knowing and not refusing for sale illegally caught fish. Much of the stock cited as illegal was technically in violation of a highly complex regulatory overlay scheme based on a requirement that boats have a yellowtail authorization letter. These letters were available by telephone at no cost.

Cohen and his agents have pressed hard to penalize or close the auction.

Many fishermen told the Times last year that Cohen's agents had offered them immunity for "ratting out the auction."

At a U.S. House subcommittee hearing in Gloucester yesterday, those allegations were reprised.

Meanwhile, Inspector General Todd Zinser's findings included that, while fishermen landing fish at the Gloucester auction were targeted and penalized for failing to have the yellowtail letter, those landing fish elsewhere — including in New Bedford — were not.

Ciulla and his family have theorized that the government simply didn't hanker for a fishing business that refused to accept and swallow citations. The auction was unique in Gloucester, and unusual along the entire Atlantic coast for its stubborn determination to fight off cases.

They fought and won at trial in an earlier case that alleged intentional acceptance of overweight cod totes. But the trial judge's verdict was overturned by the former NOAA administrator, who directed that penalties should be imposed.

A judge cut the penalties to the minimum, and the auction's appeal of that case was in federal district court.

Last summer, Cohen attempted to punish the auction by publishing a press release announcing a pending 10-day closing. Cohen leaked the story to The Boston Globe, whose reporter and photographer arrived to report on the pending "closing" before auction officials even received notification.

But, with the case still pending, the auction was never shut down. Later, U.S. District Judge Douglas Woodlock, hearing the auction's appeal of the closing, chastised Cohen and NOAA for attempting to impose punishment while the case was on appeal.

The beginning of the 59-count case that was scheduled for trial yesterday in an administrative law court in Boston had sparked waves of protest. Those came to involve the leadership of the Massachusetts legislature, Senate President Therese Murray and House Speaker Robert DeLeo, the coastal caucus, and the state's congressional delegation, which appealed last spring to NOAA administrator Jane Lubchenco for an independent investigation.

IG Zinser's six-month probe yielded findings last month that confirmed many of the claims by the fishing industry that NOAA agents operated as if they were crime busters instead of administrative law enforcers and treated the fishermen as if they were criminals.

"We settled this because we had to, if we had the money, we'd have fought it all the way," said Ciulla.

NOAA's statement about the auction case linked to an earlier announcement of a new effort at transparency and enlightened law enforcement.

"Rebuilding our fisheries and sustaining the jobs and coastal communities that depend on them is a goal we share with the fishing public," said Lubchenco.

"As fishermen know, having an enforcement program that is transparent and perceived as fair and accountable is central to sustainable fishery management," she said. "This nationwide review shows that we can do a better job in this regard.

"We will take steps to improve the system and to reinforce confidence in the system — in the interest of the fisheries resource and all who are dependent upon its viability."

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

Fishing Industry Stories

Search Results

Related Photos

Discussion

Agreement includes penalties, but no admission of liability by Ciulla

Site Map

Contact Us