GloucesterTimes.com, Gloucester, MA

October 2, 2012

Commerce head seeks 'more info' on NOAA probe

By Richard Gaines
Staff Writer

---- — Acting Commerce Secretary Roberta Blank has asked her staff “to gather more information regarding issues identified” in the 554-page report on 66 case studies into alleged abuse of the fishing industry by NOAA law enforcers, delivered about seven months about by Special Master Charles B. Swartwood III.

”The acting secretary will use that information to finalize her decision memorandum,” Blank’s press secretary, Marni Goldberg, said in an email to the Times last week.

Goldberg also said Blank is “completing her analysis” of the second Swartwood report, but she did not respond to questions about the nature of staff inquiry, nor did she indicate when the report would be published, or whether the public would be given the full report as written, altered only with redacted material considered non germane or private. That’s how the first Swartwood report arrived April 2011 along with a later Cabinet level apology and more than $650,000 in reparations for the most egregious victims of justice miscarried by NOAA agents and litigators.

The redactions of the first Swartwood report became controversial in a number of places, none more so than p. 129. There, nearly five consecutive lines of Swartwood’s narrative were redacted ahead of the final sentence of his paragraph in which he wrote: “I find this email to be credible evidence that money was NOAA’s motivating objective in this case.” The status of the latest report continued to draw questions Monday.”It’s important that the report be released at the earliest date possible,” said Jodi Seth, spokeswoman for Sen. John Kerry, whose brother Cameron Kerry is general counsel for the Commerce Department. “But it’s just as important that it be comprehensive. Sen. Kerry has been assured that the administration has been working hard to meet both those standards.”

”At this point, the question might be whether or not there will be a report released,” said Mayor Carolyn Kirk. “I don’t mind waiting as long as the report is ultimately released.” New Bedford Mayor Jon Mitchell took the issue a step farther regarding any added information the Commerce Department may include.”The routine overreaching by NOAA’s General Counsel’s Office deepened the mistrust between the government and the commercial fishing community,” Mitchell said. “The longer NOAA waits to come clean with the second Swartwood report, the more difficult it will be for NOAA to re-establish a productive dialogue with fishermen.”

Seth did not respond to questions as to whether Sen. Kerry had discussed the unreleased Swartwood II report with his brother, and Cameron Kerry has declined to respond to repeated opportunities to comment.

The nature of the research into the second Swartwood report befuddles attorneys whose clients were interviewed by the retired federal judicial magistrate employed by JAMS, the dispute resolution firm retained by then Commerce Secretary Gary Locke.

However, Swartwood altered his methodology for the second report. In the first, he took all statements under oath; for the second report, he allowed government officials to give unsworn statements, which could mean seemlessly merging additional text to Swartwood’s without clarifying the distinction.

Swartwood no longer has access to his report, which was delivered to the Department of Commerce in approximately last March.

Swartwood’s first report was commissioned by Locke before he was nominated to be ambassador to China. In retaining JAMS and Swartwood for work that would cost $500,000, investigating alleged examples of government misconduct, Locke was overruling NOAA administrator Jane Lubchenco and her chief counsel, Lois Schiffer.

In the aftermath of a series of investigative reports by the Commerce Department inspector general uncovering systemic failures of the NOAA law enforcement system overcharging fishermen for technical violations, trumping up other charges into major cases and assembling a multi-million asset forfeiture fund that was without functional oversight, Lubchenco had initially agreed to Schiffer’s plan to not revisit past miscarriages of justice while making reforms.

Swartwood was commissioned to return to the field to take up case studies that had not been presented to him during the first go-round after Locke acknowledged many possible cases of law enforcement overreach or impropriety had not surfaced due to concern by the subjects of law enforcement actions that they could become targets for retribution.

Retribution and score settling was at the center of the first calls for external independent investigation into law enforcement excesses. That came after State Rep. Ann-Margaret Ferrante convinced the legislative leadership to write to the congressional delegation, and the state’s federal lawmakers wrote to Lubchenco in the spring of 2009. It was then that Lubchenco agreed to ask IG Todd Zinser to step in.

Zinzer, who conducted a national investigation, found a pattern of uncontrolled agents, excessive charges, abuse of authority, and allegations of document shredding during the probe. The worst excesses were concentrated in the Northeast Division office in Gloucester.

No one was fired or demoted, however, and Congress failed to press the issue beyond a series of hearings at which testimony was taken but unsworn.

The case study in the first report that contained the redacted email that convinced Swartwood that money — for the asset forfeiture fund — was the motive involved penalties charged to former New Bedford scalloper Larry Yacubian more than $350,000.

That’s the amount Swartwood recommended in reparations, and Locke granted him $400,000.

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