NOAA paid 'bonus' for wiping out fisherman

The senior federal fisheries enforcement lawyer in Gloucester was commended by top management and given a $2,000 bonus for bringing a precedent-setting case that cost a fisherman his business and $430,000 in fines five years ago, documents obtained by the Times show.

The case brought by Charles R. Juliand, the senior attorney for NOAA's Office of General Counsel for Enforcement and Litigation, was found by the U.S. Commerce Department inspector general last month to be a worthy subject for review.

IG Todd Zinser's final report last month noted the case Juliand and the National Oceanic and Atmospheric Administration brought against Larry Yacubian, then a New Bedford-based scallop fisherman.

While unable to reach a conclusion about allegations that Juliand's unit "unfairly delayed the sale" of Yacubian's 95-foot dragger "for two years" — causing "undue financial hardship" — the IG's report put the case in a group of 19 deemed to warrant "further review."

The commendation form signed in July 2001 by Micele Kuruc, then the acting national head of NOAA's enforcement and litigation office, and Craig R. O'Connor, then NOAA's acting general counsel, was provided to the Times by the attorney for the union that represents NOAA lawyers' and other workers.

The "special act of service" award was cited by Richard Hirn, attorney for the National Weather Service Employees Union, as evidence that in the Yacubian case — and generally in applying the Magnuson-Stevens Act against fishermen — Juliand was doing nothing more than following orders.

The IG's report, which involved hundreds of interviews over more than a year across the country, put minute attention and criticism on a single individual — Juliand — who was unnamed but unmistakably identified as a senior enforcement lawyer in the Northeast.

Based on the totality of evidence taken from interviews and case files, the IG's finding that the "senior (enforcement and litigation) attorney" — clearly Juliand — has "animus" against the industry and had acted in ways "unbecoming" a government lawyer, induced angry reactions from Juliand and the union on his behalf.

Juliand, who called the IG's report a "smear campaign" and described himself as a "scapegoat," declined to comment for this story.

"He was doing exactly what they wanted him to do," Hirn said in an e-mail to the Times. "It was Office of General Counsel management who wanted to destroy these peoples' livelihoods. They rewarded Chuck in full knowledge of the consequences of the case."

Moreover, Hirn pointed to the narrative description of Juliand's work in Kuruc's "recommendation for recognition" as further evidence that NOAA "full well knew that (the case) would ultimately put the fisherman out of business and patted Chuck on the back in very flip terms for the impact it would have."

'High-stakes game'

"It was a high-stakes game," Kuruc wrote, "and the respondent was fighting back as he stands to lose his licence, and his livelihood and be fined $250,000."

The case, the first to be based primarily on VMS — vessel monitoring system — technology required on scallop boats beginning in 1998, was triggered by a scalloping trip that Yacubian and his crew took on the Independence in December 1998, and tracked by the VMS system into closed areas of the Gulf of Maine.

"If NOAA obtains a favorable ruling on the use of VMS evidence, it will be precedent-setting worldwide," Kuruc wrote. She is now with Food and Agriculture Organization of the United Nations in Rome; efforts to reach her Monday were unsuccessful.

The bonus and commendation were given to Juliand in July 2001, just days after the trial before an administrative law judge, and months before the finding, which upheld Juliand's case.

Yacubian's attorney, Pamela Lafreniere, said she was "perplexed" by the claim that the bonus award to Juliand exonerated him.

Entire system broken?

"There is no exoneration of anyone," she said in an interview Monday. "It's a condemnation of the entire system."

Lafreniere added that the timing of the award leads to "a bigger question — Did they have a crystal ball? They're celebrating a victory before it came. How did they know it? Did they have special insights?

"They're doing a victory dance and handing out rewards before the case was decided, or was it?" she noted. "The decision wasn't written until December."

Yacubian appealed the administrative law judge's finding, which affirmed the entire case brought by Juliand, and won a partial victory in U.S. District Court in Boston. Judge Nathanial M. Gordon upheld the VMS-based evidence and charges of illegal fishing, but threw out a finding that Yacubian had made "false statements" to the Coast Guard when they boarded the Independence.

Gordon also found that "considering the nature of the offenses and other relevant circumstances, the severity of the monetary penalty and the permanent revocation of (Yacubian's) fishing permits are deemed excessive."

Sold permit

The case was settled for a higher dollar figure than the $250,000 sought because of an agreement that Yacubian would be allowed to sell his permit rather than surrender it.

Lafreniere protested to NOAA General Counsel Lois Schiffer last July about the case after the IG revealed that the office of enforcement and litigation almost entirely on fines for operating expenses. She and other industry lawyers saw conflict of interest in the hidden motive for exorbitant penalties documented by the Inspector General.

"At no time during the initial hearing when the severity of the penalty was argued at great length did (the office of enforcement and litigation) advise the court that it had a financial interest in the penalty it was assessing," Lafreniere wrote to Schiffer.

At the time, Schiffer had informed NOAA administrator Jane Lubchenco of her intention to begin reforming the system based on the IG's findings without attempting to revisit and redress miscarriages of justice.

The IG argued forcefully that reviewing such cases was essential to rebuilding trust with the industry. And last month, Commerce Secretary Gary Locke announced a plan to install a special master to review cases cited in the IG's report as well as others.

Yacubian, who now lives in Florida and uses his Coast Guard license to run charters, was invited to join a cadre of industry representatives, lawyers and members of Congress in a closed meeting with Locke in September hosted by Rep. Barney Frank to discuss NOAA's response to the IG's report.

Yacubian described the IG's report as "most gratifying."

"It produced a common thread that was obvious to the industry, but was needed to convince the outside world," he said.

Sweeping 'vendetta'

He described Juliand as conducting a vendetta against the fishing industry.

"He had the morals of an African dictator," said Yacubian.

Hirn, the NOAA union attorney, scoffed at the idea that Juliand's actions were out of line with management practices.

"This is just like the movie 'Casablanca,'" Hirn wrote to the Times, "where the prefect of police — Claude Raines — says he was 'shocked, shocked' to learn that gambling was going on in the back room of Rick's Cafe, and shut it down just as he was collecting his winnings."

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

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