GloucesterTimes.com, Gloucester, MA

December 14, 2012

Redress for NOAA law cases

14 fishing entities to split $564,794

By Richard Gaines
Staff Writer

---- — Without an apology, the Commerce Department on Friday closed the book on past violations of fishing industry rights by NOAA law enforcers with a carefully reasoned memorandum.

The memorandum adopted most but not all of the recommendations of a special judicial master whose second volume of case studies found reason for reparations or the forgiveness of unpaid fines in 18 of 63 cases.

In all, Acting Commerce Secretary Rebecca M. Blank approved $564,794 in reparations (or “remissions”) in 14 cases and forgave debts of $161,266.66 in two others.

Together with $649,527 in reparations from the first volume of case studies by the special master, Charles B. Swartwood III, in May, 2011, NOAA will have paid or forgiven $2,375,587.66 to settle the score with the fishing industry.

Blank took minute exception in a number of cases studied and analyzed in a 554-page report that was not released with the secretarial memorandum decision, which in turn was released after a press release explaining that the National Oceanic and Atmospheric Administration had fixed its law enforcement problems. The release, from the Commerce Department, which oversees NOAA, also said that the reparations and adjusted settlements demonstrated an extraordinary effort by NOAA to set things right with the fishing industry.

The announcement of the second volume of settlements was made by email in late morning, giving the press no one to question, and at least until late in the day, no access to the work product of the special master (which was posted about 5:30 p.m. Friday, too late to be studied for today’s Times).

This approach was in contrast to the news conference held in Gloucester in May 2011 by NOAA Administrator Jane Lubchenco, who was directed to meet with fishermen, issue an apology on behalf of then Commerce Secretary Gary Locke (now ambassador to China) and announce the reparations.

Blank issued no apology, and instead emphasized that the transgressions were a small minority of the cases studied by Swartwood and that NOAA had learned from the first Swartwood report, fixing the dysfunctions in law enforcement, notably agents and lawyers “left on their own with unbridled discretion and insufficient guidance.”

Blank credited Lubchenco, who on Wednesday announced her plan to leave the administration at the end of February, for initiating the work of the inspector general who found widespread failings in NOAA’s law enforcement, especially concentrated in the Northeast regional offices in Gloucester. However, Blank ignored that Lubchenco and her chief counsel, Lois Schiffer, had intended to ignore past abuses while forging ahead with reforms before being overruled by Locke.

It was Locke who authorized Swartwood to take on a new set of cases, which were the subject of the study that he submitted in April.

The largest sum, $373,500, was returned to Dennis Saluti and Thomas Reilly, employees and primary shareholders of Sea Rich Seafoods of New Bedford, who, according to Blank’s summary of Swartwood’s report, were victimized by “arbitrary and capricious” abuse of authority, exercised to exploit the knowledge that they were trying to sell the business, and so demanded excessive fines for a single incident that was exaggerated into 17 counts.

Congressional reaction to Blank’s memo was somewhat constrained by the method of the rollout of the response to Swartwood — which was not accompanied by the Swartwood report itself, which was given to the office of the secretary in early April.

Congressman John Tierney called the action “much too long overdue. While I am disappointed that it has been on the secretary’s desk for the last seven months, I expect that this report will be another important piece to understanding the full scope of NOAA’s enforcement abuses and hopefully helping to right previous wrongs ... Whether the findings and actions are believed fair and appropriate by members of the fishing community and the individuals whose cases were reviewed will no doubt depend on a much more detailed review of the whole report,” Tierney said.

“I don’t think I’ve ever seen an investigatory process like this go back 18 years to right wrongs and dig into the history of multiple administrations,” said U.S. Sen. John Kerry. “Obviously it’s again confirmed and exposed the stories so many fishermen brought to me in the first place, and while it can’t undo the damage that was done to peoples’ livelihoods, I still believe that getting the truth out and providing economic relief and reparations is key to repairing the damage in the relationship between our fishermen and enforcement authorities .... It would’ve been inexcusable to just sweep it under the carpet,” Kerry said.

“After months of unacceptable delay and stonewalling of Congress, the Commerce Department has released a report that found serious misconduct by NOAA personnel,” said U.S. Sen. Scott Brown. “Some of this misconduct happened during the current administration, yet no one has been fired or even demoted. This report provides more context to Administrator Lubchenco’s resignation and makes her planned service through February untenable.”

“Today is a bittersweet day for New England’s fishermen,” said Congressman William Keating. “ The release of the second report by Special Master Swartwood sheds further light on the abuse and mismanagement by NOAA law enforcement. For the men and women whose cases will see remission or forgiveness, this decision brings some closure. However, for the many others who suffered at the hands of NOAA Law Enforcement, this announcement does not bring justice to the victims. I find it unacceptable that this process has been over three years in the making and I do not fault those who distrust NOAA’s officials as a result.”

Richard Gaines may be contacted at 978-283-7000 x3456, or rgaines@gloucestertimes.com.