Key fisheries lawyers push for NOAA changes

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July 13, 2012

Key fisheries lawyers push for NOAA changes

By Richard Gaines, Staff Writer Gloucester Daily Times The Gloucester Daily Times Fri Jul 13, 2012, 12:00 AM EDT

Nationally prominent attorneys James P. “Bud” Walsh and Eldon C.V. Greenberg have petitioned the National Oceanic and Atmospheric Administration to undertake a suite of reforms needed to make its federal fisheries law enforcement system “more fair and balanced.”

A key element in the proposal would rein in enforcement attorneys who, wrote Walsh, a partner in the San Francisco firm Davis Wright Tremaine and a former deputy NOAA administrator, continue to “wield inordinate power.”

The excessive liberties allowed NOAA lawyers and litigators was the first item in the initial report on NOAA fisheries enforcement excesses, in January 2010, by Commerce Department Inspector General Todd Zinser.

“Lack of management attention, direction and oversight has led to regional enforcement elements operating autonomously,” Zinser wrote.

Zinser was called in by NOAA Administrator Jane Lubchenco after she received a strongly worded letter by members of the Massachusetts congressional delegation; it urged an independent evaluation of chronic complaints of law enforcement excesses including the settling of grudges against fishermen. The epicenter of the complaints was the Gloucester Display Auction, then owned and operated by the Ciulla family.

In May 2011, responding to multiple reports by the inspector general and an encyclopedic set of case studies by a special judicial master retained by then Commerce Secretary Gary Locke (now the ambassador to China), 11 of the victims of the most egregious cases of injustice were given a cabinet level apology along with more than $600,000 in reparations.

Before he left Commerce to become ambassador to China, Locke authorized the master, Charles B. Swartwood III, to take on a new batch of more than 60 cases for review to determine whether rights were violated by NOAA agents and lawyers. Swartwood delivered his report to then-Commerce Secretary John Bryson in early May. Bryson, however, resigned June 21 after being involved two weeks earlier in a bizarre air of highway crashes outside of Los Angeles, and never acted on the second Swartwood report.

The initial report was redacted and released in little more than a month. No explanation for the delay on the new report has been offered by Commerce Department Chief Counsel Cameron Kerry – Sen. John Kerry’s brother – or NOAA Chief Counsel Lois Schiffer.

Walsh’s letter to Lubchenco cited the inspector general and Swartwood’s work on law enforcement failings, adding, “It is time that NOAA’s civil penalty procedural regulations were significantly changed to provide more balance to the process and a greater degree of fairness for those charged with civil violations.” Walsh identified his co-petitioners as Greenberg, who hedadswner of the Washington, D.C., firm Garvey Schubert Barer, and Michael Stanley, a former NOAA enforcement attorney.

Walsh and Greenberg are among the nation’s most prominent practitioners of environmental and natural resource law.

”The issues raised in the letter have been voiced by members of the bar who deal with NOAA issues,” said Gloucester attorney Stephen Ouellette. In letters to Congress beginning more than a decade ago, Ouellette exposed many of the failings and legal traps set for fishermen in the evolution of the NOAA enforcement system.

”What is refreshing about the letter is that it now comes from former NOAA personnel who have traditionally worked within and not openly challenged the system,” Ouellette wrote in an email to the Times. “Greenberg’s experience as NOAA general counsel during the formulation of Magnuson (in 1976) is significant; he is generally the voice of reason and balance in dealing with the agency.and would evoke a proper response from most agencies.

”But,” Ouellette wrote, “I suspect NOAA will continue to keep the blinders on.”

Boston attorney Paul Muniz, a partner at Burns & Levenson, said that “the amendments to NOAA’s procedural regulations proposed by Attorney Walsh, if adopted by Dr. Lubchenco, would certainly go a long way toward providing greater fairness to the regulated community, enhancing the quality of Agency decisions, increasing transparency and facilitating the cost-effective resolution of alleged regulatory violations.”

Muniz led the defense for the Gloucester Seafood Display Auction, which won a favorable settlement, an apology and reparations, before it sought bankruptcy protection last year.

Greenberg, a former general counsel at NOAA, helped write the amicus brief for Reps. Barney Frank and John Tierney in support of an appeal of Amendment 16, the re-engineering of the New England groundfishery in 2010 through the so-called catch share management system.

At issue in that case is whether the catch share system needed to be put to industry referendum as the Magnuson-Stevens Act required. Lubchenco who had come to office with catch shares at the forefront of her agenda, and steered the system into place for New England’s groundfishery in May 2010. The system, which leads to concentrating more quota in the hands of larger and better-capitalized businesses, making it difficult for smaller, independent boats and businesses to stay afloat, was largely blamed for driving 21 of Gloucester’s then 95 boats out of the industry in its first year alone.

Walsh, meanwhile, was a deputy administrator of NOAA in the Carter Administration and staff counsel and general counsel, U.S. Senate Commerce Committee. His letter to Lubchenco illuminated a series of ways that current NOAA enforcement policies put fishermen at unfair disadvantage.

In 2009, Walsh along with a colleague at his firm, wrote critically of Lubchenco’s support and praise for President George W. Bush’s decision to use the U.S. Antiquities Act (bypassing Congress) to create a gigantic trio of marine protected areas, together about 335,000 square miles, over the objections of the government of the the Commonwealth of the Northern Marianas, the U.S.’s westernmost reach.

Lubchenco wrote that Bush had earned a “blue legacy,” but Walsh wrote that the action was probably illegal.