GloucesterTimes.com, Gloucester, MA

June 15, 2011

NOAA chief's claim of innocence proven false

By Richard Gaines
Staff Writer

In her teleconference here a month ago today — held to apologize to members of the fishing industry for an era of abusive law enforcement actions — NOAA Administrator Jane Lubchenco sought to insulate herself from culpability.

She did this by proclaiming she had made "fair and effective enforcement a top priority" from her "first day in office," March 20, 2009.

But the earliest action by Lubchenco, according to a chronological log prepared by her office for the Times, didn't come until June 2009, three months later, when, already under pressure from Congress, she called in the Commerce Department inspector general.

In the interval, she was provided briefs and ruled on the middle case of three brought by the agency against the Gloucester Seafood Display Auction, which had become the epicenter of law enforcement intensity and resistance.

Lubchenco's decision to let stand the reinstated case and penalties gave the National Oceanic and Atmospheric Administration's law enforcement arm the justification for issuing a highly publicized shutdown order, which exploded in absurdity — with leaks to the press before the auction had been notified of what proved an illegal action.

When a U.S. District Court judge chastised the agency for attempting to impose penalty on the business while Lubchenco's finding was on appeal to federal court, the public saw some of the first evidence of complaints that NOAA agents and lawyers had been pursuing a "vendetta" against the auction, owned by the Ciulla family.

The underlying agency scandal had been building rapidly around Lubchenco, beginning in February when the agency dropped a giant 59 count case seeking a 120 day shutdown and a fine of more than $300,000.

But it was built on weak and spurious theories — according to the report last month of a special judicial master who concluded that this, the third case was bogus, as were satellite cases against fishermen built on exaggerated evidence.

Their "crime" was refusing to implicate the auction in violations that had occurred only in the imagination of the agents and government litigators, as the master, retired U.S. District Judge Charles B. Swartwood III, wrote to Commerce Secretary Gary Locke. At best, he wrote, the cases were based on technical violations.

It was after Locke redacted key sections of the report and made it public that Lubchenco came to Gloucester, and hooked up in a call with Locke to apologize to the Ciullas and the fishermen entrapped with them, along with a handful of businesses in the region that had been broken or debilitated by false accusations and exorbitant penalties now documented by the Inspector General's office.

The industry and its allies were unimpressed by the apologies — and disdainful of the claim that Lubchenco had made law enforcement reform a top priority.

The response of Paul Muniz, of the Boston firm, Burns and Levenson, attorney for the Ciullas and the auction, was typical.

"While reform of NOAA's law enforcement activities may now be a top priority Dr. Lubchenco," Muniz said in an email, "it does not appear to me that such reform became a priority until she felt compelled to make it a priority."

It was in May 2009 that five members of the congressional delegation — echoing sentiments in a letter to them 85 days earlier by the state legislative leadership and fishing industry caucus organized by state Rep. Ann-Margaret Ferrante — petitioned Lubchenco for an independent investigation into chronic and persistent allegations of excessive penalties and retaliatory actions.

Lubchenco passed on the request to the IG in a terse email.

Almost immediately, Commerce Department Inspector General Todd Zinser organized a nationwide study of NOAA law enforcement actions that was centered here, the base for agents and litigators for the federal waters from Maine to the Carolinas.

And in January 2010, after six months in the field, in his first written report to Lubchenco and the public, Zinser explicitly noted that law enforcement still did not seem to be a priority at NOAA.

Referring to an August 2009 "guidance memorandum," the IG wrote that "NOAA leadership plans identifying the most pressing fishery and conservation issues do not include enforcement priorities or strategies."

He also pointed out — without naming Lubchenco — that she had only recently appointed a chief counsel, Lois Schiffer, who oversees the enforcement litigators, and had yet to appoint an administrator of the National Marine Fisheries Service, who oversees the Office of Law Enforcement.

These two sides of the enforcement branch were found to have been left largely to their own devices — a freedom that allowed "elements" of the agency to operate "autonomously," especially in the Northeast region, enforcing with an unmatched passion against the Gloucester fishing industry.

Until Lubchenco emailed Zinser asking for a national investigation, she did not discuss the growing cold war against the industry, but enunciated a strong commitment to accelerating the privatization of fisheries through her catch share management system.

Last week, Lubchenco rejected the request of the Senate Subcommittee on Federal Financial Assistance, Government Information, Federal Services and International Security that she testify at a Boston hearing Monday about the law enforcement breakdown and catch share regimen that together have fueled a fierce struggle and set off a bipartisan reaction in Congress, which has barred an funding for new catch share programs in the fiscal 2011 budget cycle, which runs through Sept. 30.

Instead, she agreed to send Eric Schwaab, whom she appointed to head NMFS soon after the IG observed that the unfilled position — then held by an acting administrator — had contributed to the chaos in law enforcement.

Based on advice from Schwaab and her newly minted chief counsel Lois Schiffer, Lubchenco decided last year to attempt to reform the agency without attending to the miscarriages of justice that were correctable. It was Locke, looking forward to Senate confirmation hearings to become ambassador to China, who reversed that policy last fall.

He hired Swartwood to tie up the many loose ends in the widespread scandal and recommend compensation for the harm done. Lubchenco and Locke, however, announced less than $700,000 in reparations while apologizing to the damaged fishermen and businesses.

"This (event) marks a major turning point with fishermen," Lubchenco proclaimed with hope.

Across the congressional delegation and the port where the miscarriages were most concentrated, the decision to punish, discipline or dismiss no one left an angry, empty feeling.

"It may well be that Dr. Lubchenco believes in her own mind that she has made law enforcement reform 'a top priority ... from day one," said Congressman John Tierney of Salem who represents Gloucester, "but while she has taken a number of actions to address some of the concerns evidenced in hearings and reports covering past egregious behavior in NOAA, there continues to be a failure within NOAA to respect the fishing community and to treat its grievances with the urgency and responsiveness dictated by the situation at hand.

"The critical issues facing our fishing community, including the poor treatment our fishermen suffered at the hands of NOAA law enforcement officers, have yet to be adequately addressed," Tierney added. "I continue to believe that Dr. Lubchenco is the wrong person to lead NOAA in a new direction and find solutions to the outstanding issues at the agency."

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