GloucesterTimes.com, Gloucester, MA

September 24, 2012

Second NOAA abuse report remains tabled

By Richard Gaines
Staff Writer

---- — Approximately six months have passed since Special Master Charles B. Swartwood III’s second volume of case studies into alleged violations of fishermen’s rights by NOAA law enforcement was completed and submitted to the Department of Commerce for redacting non-public information, deciding on reparations and making the document public.

But still, there is no Swartwood II, and no clear explanation for the refusal to bring out the retired federal magistrate’s study. Swartwood reviewed 66 cases. Some date from the 1990s; others are recent.

The Commerce Department did not respond last week and Monday to calls and emails questioning the delay. A department spokeswoman in July attributed the delay to the range of time covered by the cases and the need for Acting Commerce Secretary Rebecca Black to get up to speed.

But former Commerce Secretary John Bryson had been in office significantly less time than Black had been near the top of the agency when he passed out behind the wheel of his car, Ambien in his system, following a series of afternoon traffic accidents, and resigned.

Swartwood’s first volume was turned around in a month before its publication in May 2011 landed with fireworks, confirming the most serious allegations against the federal fisheries law enforcement system, found to have been motivated by venal, vindictive and predatory motives in clear sight of top management.

A Cabinet-level apology and more than $650,000 in reparations to 11 of the businesses hurt worst by abuse of the badge came with the release of Swartwood I.

But there would never have been a Swartwood I if administrator Jane Lubchenco and her chief counsel Lois Schiffer of the National Oceanic and Atmospheric Administration had had their way in 2010.

Schiffer, who joined Lubchenco’s senior staff, had written a memo to her describing an approach, which Lubchenco quietly adopted, to ignore fixable miscarriages of justice and build a reformed enforcement system without looking back. An environmental activist, Schiffer’s reputation for executive privilege dates from her time with the Justice Department in the Clinton administration.

U.S. Sens. John Kerry and Scott Brown, Congressman John Tierney, Barney Frank and their North Carolina colleague, Walter Jones, protested that the idea was callous, unethical, and implicitly un-American. All of them, except Kerry, said they’d lost any confidence in Lubchenco and asked — unsuccessfully — for her dismissal.

But, in 2010, then Commerce Secretary Gary Locke, expecting nomination to be ambassador to China, pulled rank on Lubchenco and Schiffer, and reversed their approach to bygones.

Locke gave JAMS, the legal consulting firm that employed Swartwood, a $500,000 contract to conduct case studies into the most problematic instances of potential law enforcement excesses, come to light via a series of explosively broad policy investigations by the Commerce Department Inspector General.

Inspector General Todd Zinser testified to Congress that NOAA’s longtime director of law enforcement, Dale Jones, ordered most of the official documents in his possession destroyed before they could be examined by the IG’s teams; that agents and litigators built a gigantic asset forfeiture fund by fining fishermen huge sums for technical violations; and, especially in New England, operated as if they were above the law.

In April 2011, Locke released Swartwood I after about one month of review, redacting and policy formulation. In its 236 pages was found a harsh indictment of a legal system that had sacrificed any respect from the industry through years of manipulation and boundless prosecutorial zeal.

The system, Swartwood wrote, was rigged to disenfranchise the accused. “It is clear from my several month investigation that a vast majority of fishermen, fishing businesses and the lawyers that represent them have no confidence that any sort of justice would prevail by appealing (from the write-up phase) to a Coast Guard administrative law judge,” Swartwood wrote.

He also found that in one case, which drove a New Bedford scalloper out of business, a redacted email contained “credible evidence that money was NOAA’s motivating objective ...”

Locke apologized to the victim, Larry Yacubian, and paid him $400,000 in reparations.

Richard Hirn, attorney for the National Weather Services Employees Association, which represents NOAA lawyers, has insisted repeatedly that the lawyers, who along with the agents were accused of unsupervised behavior by the inspector general, had in fact been supervised, given clear directives and acted with the knowledge and approval of superiors.

The bonuses and special awards to leaders of the most notorious cases was evidence cited by Hirn.

In any event, Lubchenco, to whom the agents report up a chain of command, and Schiffer, head of the legal section, chose not to move against anyone and instead shifted the highest profile names into different positions with roughly equal pay.

Schlffer’s belief in executive privilege was documented in the official history of the House Energy and Commerce Committee’s Subcommittee on Oversight and Investigations.

In a dense narrative about the Executive Branch’s refusal to produce documents sought by Congress, the history noted that “... it ultimately was necessary for the subcommittee to issue and serve subpoenas on the attorney general and the acting attorney general — Lois Schiffer — for environmental and natural resources because of ... lack of cooperation.”

Schiffer did not respond to multiple requests for comment.

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