Extended fishing probe eyes 66 cases

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January 15, 2012

Extended fishing probe eyes 66 cases

By Richard Gaines Staff Writer The Gloucester Daily Times Sun Jan 15, 2012, 10:18 PM EST

The special federal judicial master whose initial probe into law enforcement excesses led to a Cabinet-level apology and reparations last spring to eight badly harmed fishing industry businesses has taken on a "much wider pool of cases."

The master, retired U.S. Magistrate Charles B. Swartwood III, had 66 complaints under investigation, as of Dec. 6, the date of a letter updating Commerce Secretary John Bryson. And of the 66 complaints, Swartwood wrote that he and his staff had produced "provisional" reports or "findings of facts" in 45 investigations.

But under an approach somewhat less formal than used in the initial investigation during 2010 and 2011, Swartwood, with Bryson's approval, sent his provisional findings to NOAA for written response, and as of the Dec. 6 letter, he had received 21 responses, expecting the rest "sometime this month (December)."

During the first phase of the investigation — which ended in a 236-page report that validated the systemic, chronic complaints emanating from Atlantic ports, especially Gloucester's, for more than a decade — interviews with government officials were done "under oath and recorded," as were those with the complainants.

But the Dec. 6 letter and one from Oct. 14 indicated that agents, litigators and other employees of the National Marine Fisheries Service were asked to respond to the detailed provisional findings in writing, but not under oath.

Swartwood declined to comment, deferring to the Commerce Department. Bryson's spokesman Justin Kenney said in an email that Swartwood "from the beginning has designed the process."

In neither letter updating Bryson did Swartwood suggest he had forsworn the option of putting NOAA and government respondents under oath.

Swartwood's initial commission via his employer, JAMS, a dispute resolution company, was issued by Bryson's predecessor, Gary Locke, now the ambassador to China.

Locke then extended Swartwood's commission even before he had submitted his initial set of findings. As he noted in his Dec. 6 letter to Bryson, Swartwood wrote that on March 16, "Secretary Locke determined that review of a wider pool of cases was merited and established an application process."

He went on to say that by "rough estimate," he hoped to have his case studies resolved together with findings, conclusions and recommendations by March 15.

Swartwood's original report covered 53 "cases," but because some of these were actually chapters in highly complex cases — such as the one aimed by NOAA enforcement at the now-defunct Gloucester Seafood Display Auction — his report dealt with about 30 distinct episodes.

Locke redacted significant portions interrupting Swartwood's narrative of key events, but when he released the redacted report in May last year, Locke did so while admitting that eight businesses — including the Auction — were sufficiently mistreated by the National Oceanic and Atmospheric Administration to warrant a federal apology, and the reparation of fines.

Legal claims to court costs remain active strands of the auction actions and the government's prosecution of a New Bedford scalloper, Larry Yacubian. He received $400,000 in reparations, somewhat more than the $330,000 recommended by Swartwood.

Yet, the Yacubian case also produced fury all around.

Industry lawyers were aggravated and suspicious that, below the text of a redacted email, Swartwood wrote that "money was the government's motivating objective" in the prosecution of the case.

NOAA and especially the Coast Guard administrative law judge system, then under contract with NOAA to hear its cases, took umbrage with Swartwood's conclusion that the presiding judge in the Yacubian case had created, at the minimum, "the appearance of a conflict of interest" by going off to an international fisheries law enforcement conference in Kuala Lumpur, Malaysia — where the NOAA prosecutors also were heading — after the case was settled.

Swartwood's initial commission through JAMS was based on cases scrutinized by Inspector General Todd Zinser.

Zinser also remains actively involved in investigating NOAA, but this time, based on an exchange of letters with members of Congress, his focus is the administration — the ways in which decisions are made and the influences on those decisions — not the enforcement of the law.

Zinser's original investigation began focusing on the abuse of the rights of fishermen subject to the scrutiny of NOAA law enforcers. But his work eventually exposed abuses of the Asset Forfeiture Fund and a law enforcement cadre headed by then-NOAA police chief Dale J. Jones operating with virtual impunity.

"Agents and lawyers were left on their own with unbridled discretion and insufficient guidance," Locke reiterated his May 2011 memorandum. "In almost every instance, in which Judge Swartwood finds overly aggressive or unfair enforcement conduct, there was little meaningful management or supervision."

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