Tierney targets NOAA criminalization tactics

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May 25, 2012

Tierney targets NOAA criminalization tactics

By Richard Gaines Staff Writer The Gloucester Daily Times Fri May 25, 2012, 05:56 AM EDT

Congressman John Tierney has asked the federal Commerce Department Inspector General to investigate whether the National Oceanic and Atmospheric Administration "may be proactively pursuing the criminal prosecution of fishermen under seldom-invoked laws."

Tierney's Wednesday letter to Inspector General Todd Zinser was accompanied by a copies of criminal indictments or bills of particulars for alleged violations that according to a redacted message from an attorney have previously been handled as civil cases under the provisions of the Magnuson-Stevens Act, the overriding statute for the nation's fisheries.

In his letter to Zinser, Tierney wrote that the spate of criminal cases for fishing violations seemed to reflect a change in policy. The congressman, a former Essex County district attorney, noted that statistics provided by NOAA indicate that over the three years ending 2009, out of 1,589 cases investigated under Magnuson, 1,546 (or 97 percent) were handled as civil complaints.

In addition, Tierney sent the IG a copy of a June 15, 2010, letter from a high Justice Department official to NOAA Administrator Jane Lubchenco proposing a conference with a single-subject agenda — "(building) on the successful work we have done together, particularly in the area of criminal enforcement."

That meeting was held, according to copies of an internal email and an exchange between NOAA and Justice Department functionaries, shortly after NOAA in September 2010 hired Benjamin Friedman away from the Justice Department to become assistant general counsel for enforcement and litigation.

The email proposing the conference to Lubchenco was written by Gary Grindler, then the acting deputy attorney general, now Attorney General Eric Holder's chief of staff. Grindler did not return phone calls Thursday.

Six U.S. attorneys, including Carmen Ortiz for the office in Boston, and two assistant attorneys general were listed in an email to NOAA as planning to attend.

Beginning in January 2010 and extending through the year, NOAA's prosecutors and an enforcement division of mostly criminal agents were exposed in a series of reports from the inspector general's office for having treated fishermen as if they were criminals for technical or minor violations of the Magnuson-Stevens Act.

NOAA General Counsel Lois Schiffer and Eric Schwaab, then NOAA's National Marine Fishery Service administrator, now an acting Undersecretary of Commerce, wrote to Lubchenco on March 18, 2010, that they intended to reform the system without looking back to correct miscarriages of justice.

That position, when discovered in a lengthy memo and reported by the Times, brought a chorus of condemnation from Tierney as well as U.S. Sens. John Kerry and Scott Brown, and Congressmen Barney Frank, whose district includes New Bedford, and Walter Jones, whose district includes the Outer Banks of North Carolina.

Tierney, Kerry and Frank are Democrats, Brown and Jones, Republicans.

In May 2011, then Commerce Secretary Gary Locke and Lubchenco issued a public apology to eight victims of justice miscarried and distributed more than $600,000 in reparations for excessive or improper fines, in what were entirely civil cases brought under the Magnuson-Stevens.

Included in the package that Tierney sent to Zinser was a link to a videotaped conference at Roger Williams Law School in Rhode Island in November 2010 at which Schiffer, in answer to a question, explained that she believed that NOAA needed a "modern enforcement package (including) criminal enforcement opportunities.

"Speaking for myself, not for the agency," Schiffer said she believes that "Magnuson is limited, I would change it."

The substance of the message from the unidentified attorney summarized cases that were brought in criminal courts.

"I am attaching a complaint filed in New Jersey against a number of fishermen where the AUSA (assistant U.S. attorney) reported based on a direct (request) from NOAA, Office of General Counsel (believed to be a personal request from Lois Schiffer) has charged fishermen with Lacey and conspiracy felonies for exceeding scallop limits," the attorney wrote.

"The allegations are pretty bad, but still Magnuson violations, where at most are misdemeanors. They are pursuing them as felonies.

"I note NOAA has charged two fishermen criminally for observer issues and two fishermen for whale issues — in one case a gillnetter trying to free a whale from his gear," the attorney continued. "There is presently a grand jury investigating into fishermen from Long Island who participated in a research set-aside program."

Dozens of boats and the now-defunct Gloucester Seafood Display Auction were cited in 2009. However, since the IG's findings and the work, still ongoing, of a special judicial master, looking at the worst miscarriages, local cases have all but disappeared.

"I do not recall having a client receive a (civil citation) since the issuance of the Inspector General and (special judicial master's) reports," said New Bedford attorney Pamela Lafreniere.

Richard Gaines can be reached at 978-238-7000 x3464, or rgainesa@gloucestertimes.com.