Zinser to testify at fisheries hearing

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May 22, 2011

Zinser to testify at fisheries hearing

By Richard Gaines Staff Writer The Gloucester Daily Times Mon May 23, 2011, 12:03 AM EDT

U.S. Commerce Department Inspector General Todd Zinser has accepted an invitation to testify at a Senate subcommittee hearing about the federal fisheries law enforcement system, whose misdeeds — documented by his investigation — brought a sub-cabinet level contingent to Gloucester last week to issue an apology and distribute cash reparations.

Zinser's acceptance was confirmed to the Times by the office of U.S. Sen. Scott Brown, who — together with Sen. Thomas R. Carper, D-Delaware — organized the hearing of the Subcommittee on Federal Financial Management, Government Information, Federal Services and International Security.

Carper, a Democrat, chairs the subcommittee, while Brown, is the ranking Republican.

The hearing will be held in Boston's historic Faneuil Hall on Monday, June 20 at 10 a.m., and the panel has called NOAA chief administrator Jane Lubchenco to testify. As of the weekend, Lubchenco had not yet responded to her invitation by the subcommittee.

Other invitees, while unconfirmed, are expected to include some of the victims of the predatory law enforcement actions which date back more than a decade as well as political and legal advocates for the New England fishing industry.

Lubchenco traveled to Gloucester last Tuesday to apologize to fishermen and join U.S. Commerce Secretary Gary Locke, who did not make the trip, in announcing the decision to distribute $649,527 in repayments of fines wrongfully from 11 fishermen and businesses in Gloucester, New Bedford and New York City, according to a landmark report on the NOAA law enforcement system by a retired federal judge.

Lubchenco, under pressure from lawmakers and the fishing industry, had called for the six-month investigation by Zinser's inspector general's office in June 2009.

But it was Locke who took the extraordinary step of retaining the services of retired U.S, District Judge Charles B. Swartwood III, the chairman of the Massachusetts Ethics Commission, to undertake detailed investigations of the most egregious miscarriages of justice visited upon fishing industry businesses.

In deciding to undertake a redress of the worst excesses by NOAA's Office of Law Enforcement and the Office of General Counsel for Enforcement and Litigation, Locke overruled Lubchenco's policy decision to begin reforming the enforcement side of the agency without a backward glance.

That approach had also been recommended by two of Lubchenco's top hires, chief counsel Lois Schiffer and Eric Schwaab, who heads the National Marine Fisheries Service.

Zinser's revelations, the detailed findings by Swartwood in a 236 page narrative report on how the law enforcement system went badly off track — including the improper influence of witnesses, trumped up charges to gain leverage over other witnesses, illegal entry, falsifying affidavits — and the apologies by Locke and Lubchenco last week all gave the industry a sense of vindication.

But the decision announced by Locke to not fire, sanction or punish anyone left a sour taste nearly everywhere outside the Commerce Department. Sens. Brown and John Kerry struck a similar chord in expressing the expectation that responsibility needed to be affixed for closure to even begin.

Many fishermen and their lawyers noted that the settlements did not come close to restoring the losses.

Three businesses that were targeted, a scalloper in New Bedford and auctions in New York City and Gloucester, reported to the Times spending more than $1.5 million in legal fees over the years' long effort ward off the feds' cases, which proved either overblown or without merit, according to the findings in Swartwood's report.

Locke, who took a month to redact the Swartwood report, creating uncertainty about key decisions and decision makers in the dubious investigations, and decide on the reparations, issued a report of his own. Both were released Tuesday after a tele-news conference.

The subcommittee issued its invitations to Zinser and Lubchenco simultaneously on Tuesday.

The main focus of the hearing, according to the letters of invitation, will be the Asset Forfeiture Fund, the repository of nearly $100 million over a four a half year period gathered from fishing fines, and the use of federal funds appropriated to help the fishing industry cope with the social and economic dislocations associated with the catch share system.

Advocated by Lubchenco but rejected by Congress, catch shares of an allocated resource, traded in a commodity market system encouraging external investment, overturns a centuries' old approach developed around commonly owned resources.

The catch share system produces rapid consolidation — a smaller number of bigger businesses — which is underway in New England, with more than $40 million in federal subsidies.

Richard Gaines can be reached at 9780-283-7000, x3464, or at rgaine@gloucestertimes.com.