Judge eyes NOAA fight on messages

The National Oceanic and Atmospheric Administration has been ordered to produce for judicial review hundreds of internal documents the counsel's office has resisted turning over to the Gloucester Seafood Display Auction as it prepares for a March 2 trial date.

The case helped trigger a federal Inspector General's national investigation into policing and prosecutorial misconduct on the part of NOAA enforcement.

Among the approximately 350 documents held back on various theories of "privilege" by NOAA regional counsel are a series that seemingly track an operations plan ("ops plan") over the months leading up to a raid by armed NOAA enforcement agents of the auction in December 2006 for reporting failures of fish deliveries.

Another document NOAA refuses to surrender is believed to relate to an illegal entry of the auction a month before the raid, based on negotiations in a catalogue of disputed documents produced by NOAA attorney Dierdre L. Casey for the court. Casey did not return phone calls seeking reaction to this story yesterday.

Hundreds of other documents were given to lawyers for the auction after the judge's initial order last September.

The reported forced entry into the auction by a number of NOAA enforcement agents took place on Nov. 2, 2006. A Gloucester police report citing "possible trespass by federal agent" was filed Nov. 11.

Three days later, on Nov. 14, there was an e-mail between special agents Todd Dubois and Andy Cohen, the special agent in charge of the Gloucester office, about the "GSDA Incident," according to the government log presented to auction lawyers and administrative law Judge Walter J. Brudzinski.

From Cohen's Blackburn Industrial Park headquarters, agents enforce federal fishery laws along the entire New England and Mid-Atlantic coasts. The Gloucester office was identified in the Inspector General's report as the epicenter of improper action.

The legal basis behind keeping from the auction — and from public view — the multiple documents chronicling the elaborate buildup to the raid is listed as "attorney/client privilege." The raid was ultimately carried out by an armed team wearing bulletproof vests.

The auction lawyers argued in a brief that the e-mails and documents would document claims of "retaliatory and selective prosecution, and are extremely likely to provide certain impeachment evidence."

Judge Brudzinski on Thursday ordered Casey to give him the contested documents by next Wednesday.

The case is scheduled for trial in Boston on March 2 — the same date a House subcommittee is scheduled to hold a hearing into findings by the U.S. Commerce Department's Inspector General that NOAA agents based in Gloucester had been operating "autonomously" and imposing penalties that were far more severe than those in other parts of the country.

The IG's report last month noted that the actions taken by agents acting as criminal, rather than administrative, investigators made the subjects of any such allegations feel as if they were criminals — a longtime complaints of fishermen and their advocates who have decried NOAA's heavy- handed tactics.

Another House subcommittee previously announced a hearing for March 3 in Washington, with that session to be nationally Webcast from the House Natural Resources Committee Web site.

The December 2006 NOAA enforcement raiding team confiscated reams of documents from the auction which had been automatically submitting dealer reports to NOAA, recording details of catches off loaded at the dock at Harbor Loop for sale at auction.

The Gloucester Fish Exchange, the name of the business in the legal papers, is the largest broker of fish from the Gulf of Maine — about $20 million a year in sales — and the linchpin of the local port economy.

The auction has been fighting off government efforts for its entire life — more than a decade.

The auction's appeal of a 10-day shutdown that was announced via a press release last year and leaked to the Boston Globe as if the closure was imminent also remains before a federal judge in Boston. With the auction appealing its sanctions, the business has never been shut down.

In that case, Judge Douglas Woodlock lectured agent Cohen for telling the newspaper about the order to close before he told the auction. The judge also expressed incredulity at NOAA's argument in court that it had a right to shut down the auction while its appeal of the sanction was active.

Inspector General Todd Zinser noted that his teams' six-month study of NOAA law enforcement practices found reason to delve further into allegations of selective prosecution and vindictive actions against the auction — the only business identified by name in the 26-page report released late last month.

Most of the contested documents listed in the catalogue for the judge's consideration to be handed over relate, in some way, to the long gestation period for the case that Cohen, Casey and her legal colleagues had constructed against the business the Ciulla family owns and operates.

The case that grew from the raid involved 59 counts, many of them based on the failure of fishing boats to be carrying a "yellowtail authorization letter," which was first required in 2004 and withdrawn late in 2006. The Notice of Violation and Assessment sought to close the auction for 120 days and take $335,200 as a fine.

The yellowtail letter was available at no cost and could be obtained with a phone call. It overlayed the groundfish permits boats needed and indicated where the boat intended to fish for yellowtail.

Many boats were charged with failing to have such letters. But nearly all of the cases have been settled for a small fraction of the amounts sought, and the IG's report noted that fishermen landing their catch even in New Bedford were not assessed penalties for failing to have a yellowtail letter, while those in Gloucester were. Many of the contested documents the judge ordered NOAA to give him relate to the letter.

One early memo that NOAA has refused to release to the court was from Dale J. Jones, the head of NOAA law enforcement, to Cohen, dated June 25, 2004.

Another contested document is "approval of a final rule to correct and clarify the final rules implementing Amendment 13" from 2005. That was the basic regulatory framework, and the message went from William Hogarth, the then-administrator of the National Marine Fisheries Service, to Patricia Kurkul, NMFS' Gloucester-based regional administrator.

"It is understandable that the agency would not want to produce what are likely to be some very candid conversation between and amongst agents," wrote the auction lawyers, Jeffrey R. Martin and Paul T. Muniz. "However, the agency has failed to advance any persuasive reason that it cannot, and should not, be required to meet its fundamental obligation of production of relevant documents.

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

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