By Richard Gaines
WASHINGTON, D.C. — U.S. Sen. John Kerry and three Massachusetts fishing coast congressmen yesterday urged a halt to all fishing industry prosecutions while an Inspector General's investigation continues into alleged misconduct by National Oceanic and Atmospheric Administration enforcement agents and prosecutors.
Kerry, along with Reps. Barney Frank, John Tierney and William Delahunt, wrote to NOAA chief administrator Jane Lubchenco, saying a delay is warranted because pending cases could be "tainted by the actual or perceived problems with the office of law enforcement or the general counsel's office."
"Given the disquieting findings of the January 2010 Department of Commerce Office of the Inspector General's review ... a hold on these cases seems warranted," the letter from Kerry and the congressmen said. "As you are aware, the IG report found troubling discrepancies in enforcement, fines, and penalties by OLE and GCEL.
"We are grateful that your office has taken a leadership role on this issue with your follow-up directives of February 3, 2010, but hope immediate action may be taken on the pending enforcement cases.
"In the interest of fairness and transparency, we respectfully request that you immediately place all pending enforcement cases on hold until further investigation by your office and the OIG."
The letter was released on the eve of an historic mass demonstration set for noon today at the U.S. Capitol by fishermen and allies from three coasts on behalf of congressional action to write some deadline flexibility into the Magnuson-Stevens Act, which regulates the nation's fisheries and now mandates that all overfished stocks be led to full recovery simultaneously.
At least 3,000 fishermen were arriving here by rail, bus and car yesterday and last night for today's demonstration, which begins at noon and is set to last for three hours.
U.S. Sen. Charles E. Schumer, D-N.Y., a sponsor of the legislation to create flexibility in the Magnuson Act, and Rep. Frank Pallone Jr., D-New Jersey, who sponsored the original bill, are among the more than two dozen sponsors scheduled to speak.
Also yesterday, the coalition added Congressman Michael Capuano, D-Somerville, to the list of signers.
Both Kerry and his newly installed Republican colleague Scott Brown are hosting private meetings with participants in the mass meeting later this afternoon.
The letter calling for the halt in prosecutions also became public less than a week before the scheduled start of a major trial of the Gloucester Seafood Display Auction, the region's leading groundfish brokerage, which was charged in February 2009 with 59 counts of processing the sales of illegally caught fish.
The administrative law trial, for a courtroom in Boston on Tuesday, primarily turns on technical failings by the boats and the auction and uses self-reported dealer submissions to NOAA to build a case of alleged violations warranting a 120 day closing and a fine of $335,200.
The announcement of the auction case triggered a series of protests that began with state Rep. Ann-Margaret Ferrante, D-Gloucester, and Sen. Bruce Tarr, R-Gloucester, gained broad support from the Massachusetts legislative leadership and rank-and-file lawmakers from fishing districts and later drew in the state's congressional delegation.
Last June, after a letter from the state's federal lawmakers, Lubchenco asked the Inspector General to begin a national study of federal fishery law enforcement practices.
IG Scott Zinser's report last month confirmed many of the allegations that had been made by industry for years, and noted that the problems were most concentrated and acute in the Northeast, the NOAA enforcement division headquartered in Gloucester.
Zinser found that penalties were inconsistent, and that those in the Northeast often far exceeded those in other areas; Zinser also reported that the agents thought of themselves as crime busters and made fishermen feel like criminals for often minor of technical violations of administrative law and regulations.
The IG also concluded that agents were hired as criminal investigators to qualify them for higher pay. And he found that the fines were put into a fund that held $8.5 million at the end of the year, but had been used casually and without supervision by agents.
Shortly after the IG's report was published, Lubchenco ordered the "forfeiture fund" removed from the Office of Law Enforcement headed by Dale J. Jones and put under the authority of the new chief counsel Lois Schiffer.
Zinser said he would continue his study of NOAA fisheries law enforcement turning to the most notorious cases that were flagged during the six-month investigation which covered all regions of the country after starting in the Northeast.
In his report on possible prosecutorial misconduct, the IG named only one business — the Gloucester Seafood Display Auction, the linchpin of the port economy and the No. 1 volume broker of fish from the Gulf of Maine.
NOAA law enforcement is also fighting an order by the judge in the pending case to release to the auction's lawyers hundreds of internal communications and e-mails. Hundreds of other documents were released in response to the order by Judge Walter J. Brudzinski.
Weeks before a raid of the business in 2006 to gather documents from the auction, a team of federal agents also forced their way into the business, according to a Gloucester police report obtained by the Times.
In a related development, a federal judge last week granted Massachusetts Attorney General Martha Coakley standing as a friend of the court to participate in a bitterly contested appeal by the auction of a 10-day shutdown order that was issued last summer before the legal dispute over the government's claim was resolved.
Today's mass rally was organized by recreational and commercial fishing groups — a first for interests that traditionally competed with and distrusted each other.
But both forms of fishing have come to see that the rigid deadlines for full recovery of the over fished stocks, when combined with another Magnuson mandate, for hard catch limits, led to allocations so small that commercial survival was made doubtful.
Recreational fishermen find themselves hamstrung, for example, by cutbacks in the allocation for summer flounder despite its powerful recovery to a 40-year high, according to Jim Hutchinson, managing director of the Recreational Fishing Alliance.
Meanwhile, despite the recovering ground fish stocks in New England, the tight deadlines for full restoration have meant allocations so small that the new catch share system beginning in May for fishing cooperatives known as sectors augers widespread failures, according to industry analysts.
Ferrante, Tarr and Gloucester Mayor Carolyn Kirk yesterday lauded the thinking in the letter seeking the hold on all NOAA prosecutions.
Ferrante said she would be in Washington today for the rally. Tarr was driving from Gloucester, and Kirk arrived yesterday by train. There was no immediate response last night from NOAA officials at the regional general counsel's office in Gloucester.
Richard Gaines can be reached at 9780-283-700, x3464, or via e-mail at rgaines@gloucestertimes.com.
