By Richard Gaines
Staff Writer
—
The special judicial master whose initial investigation into NOAA enforcement action against the fishing industry yielded a Cabinet-level apology and reparations is believed to have completed and filed with Commerce Secretary John Bryson a second and final report.
The report is expected to document additional violations of fishermen's rights.
The initial report was submitted to Bryson's predecessor Gary Locke — now ambassador to China — on April 14, 2011, and, after extensive redacting, made public on May 17, 2011.
Bryson's communications office did not respond to telephone calls and emails Monday, but Pamela LaFreniere, a New Bedford attorney, said she believes Special Master Charles B. Swartwood III has completed his work and submitted it to Bryson.
One of Lafreniere's clients, former scallop fisherman Larry Yacubian, was given $400,000 in reparations last May, and she said Swartwood had delved into the complaints of more than an additional dozen of her clients in the still unresolved package.
In a letter updating Bryson last December, Swartwood said he was looking into 66 separate claims of justice miscarried by agents and litigators at the National Oceanic and Atmospheric Administration.
In that letter, Swartwood said he hoped to have his case studies, together with finds, conclusions and recommendations resolved by March 15. But about then, he also told the Times in a telephone interview that he was not close to finished.
A retired federal magistrate and chairman of the Massachusetts Ethics Commission, Swartwood did not return phone calls seeking comment Monday, and a spokeswoman for JAMS — the arbitration, mediation and judicial mastering service that employs Swartwood and has the Commerce Department contract for his services — said it had no information on the status of the second report.
But in a greeting recorded for the Boston area telephone number he used in his work for two commerce secretaries, Swartwood said he was "no longer taking messages" and referred callers to JAMS' Boston switchboard.
Swartwood was retained originally by Locke to pursue threads from a series of explosive but more general investigative reports into the NOAA law enforcement system published in early 2010 by Todd Zinser, inspector general for the Department of Commerce.
Zinser in January began a new investigation into alleged undo influences on NOAA's rule-making, requested by Reps. John Tierney, whose district includes Cape Ann, and Barney Frank who represents New Bedford. The new probe is believed to focus on whether environmental non-government organizations — notably the Environmental Defense Fund, with its multi-million-dollar ties to the Wal-Mart-rooted Walton Foundation and other partners — improperly influenced the decisions of the regional fishery management councils and the parent agency.
The first round of investigations by Zinser focused on events that largely preceded the Obama administration, but the present investigation is clearly focused in the present and recent past since President Obama named Jane Lubchenco, a former official at EDF, to head NOAA.
Zinser found that NOAA, in the decade-long tenure of Law Enforcement Director Dale Jones, had attempted to extract excessive penalties from targeted industry representatives, and abused the Asset Forfeiture Fund made up of fines.
Zinser augmented his office's reports with congressional testimony that Jones had authorized a mass shredding of his official papers, setting off a series of transfers but no reported discipline of Jones or others involved in mishandling administrative violations. Jones' salary remains above $150,000 a year despite a transfer from law enforcement chief to fisheries analyst.
The epicenter of the worst violations against the industry was here in Gloucester, where the National Marine Fisheries Service's Northeast Regional Offices are located.
Swartwood's case study of the Yacubian case brought howls for different reasons from the Coast Guard's Administrative Law Judge system that tried the case, and from NOAA critics due to redactions in it.
The judges objected to Swartwood's finding that the trial judge had ignored a federal court judge's directive and in attending an overseas conference that also included the prosecutors of the case left the impression of a possible conflict of interest. Swartwood also noted that it was a nearly universal belief that fairness could not be gotten in trials presided over by the Coast Guard judges.
Secretary Locke's redactions of Swartwood's case study blanked out lines in a paragraph that ended with conclusion that the motive for exaggerating the penalty charged was "money."
In an effort to reset the relationship with the industry, Locke chose to phase out the use of the Coast Guard Administrative Law Judge system and shift new cases to the Environmental Protection Agency's Administrative Law Judge System.
Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.
