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A show of force for 3 Dabs, fillet

USCG, NMFS cases spotlight government's fishing tactics

By Richard Gaines
Staff Writer
Published: February 24, 2009

Coast Guard Station Gloucester's flagship, the 110-foot cutter Grand Isle, steamed from its mooring at Jodrey State Fish Pier for another routine day of enforcement activity — looking for violators of byzantine federal fishing regulations.

Sure enough, on this day, Nov. 1, 2006, violations were found — three flounder and a fillet off another flounder that were believed to be illegal.

Not five miles east of Cape Ann's rocky shoreline, a handful of Gloucester day boats, including Bill Lee's well-known, 43-foot Ocean Reporter, congregated to take their day's limit of the mix of groundfish — cod, yellowtail flounder, haddock and other white-fleshed species — from the fish-rich inshore waters that are part of Gloucester's great natural gift.

Maneuvering near the fishing boats, the Grand Isle's crew of about 10 launched what Lee — a Vietnam veteran, boat builder, documented and celebrated lifesaver, underwater photographer and solo fisherman — calls "rubber ducks." In the yellow inflatables, teams of four and five Coasties came aboard about a half dozen boats, including Russell Sherman's Lady Jane and the Ocean Reporter, according to interviews with fishermen who were there that day.

The Coast Guard is practiced at the art of boarding and checking fishing boats from aboard the imposing Grand Isle, an Island-class patrol boat with a range of 3,380 nautical miles. Built in the late 1980s, it can maintain speeds of 28 to 30 knots, armed with one 35 mm cannon and two .50-caliber machine guns.

While the service was shifted from the U.S. Department of Transportation to the newly created Homeland Security Department in 2003 — and continues to hold search-and-rescue as its sacred mission — the Coast Guard's role throughout District Boston, which covers the southern and eastern coastal waters of New England, centers on enforcing the fishing controls promulgated by the National Marine Fisheries Service. And the enforcement actions of the Coast Guard and NMFS are coming under increased fire from the fishing industry, which has muttered quietly for years about what many believe are heavy-handed tactics.

The NMFS-Coast Guard's interlocking relationship parallels that of the district attorney's office and the police on the television show "Law and Order."

Seeking 'targets'

"We prioritize the Coast Guard patrols and what fisheries are open and where we suspect they will find violations," said Andy Cohen, NMFS' chief regional law enforcement official based in a new $12.5 million complex in Gloucester's Blackburn Industrial Park. "We provide them with targets from a variety of sources."

NMFS also deputizes the Massachusetts Environmental Police for investigative and enforcement work. Connie Terrell, a Coast Guard Sector Boston public information officer, referred questions about its enforcement activities to NMFS law enforcement.

Most fishermen estimate they average four to five boardings a year, plus what they describe as at least one "once over" at the Gloucester Seafood Display Auction landing dock where, in service to NMFS, Coasties, acting like drug and border patrol officers, conduct exhaustive boat searches for potential violations.

For years, visits by both agencies — along with NMFS' own special agents — have been common occurrences at the auction, which last week itself was charged with more than 50 counts of violations of the Magnuson-Stevens relating to handling illegal fish.

Auction President Larry Ciulla has said his family, which owns and operates the auction, the primary distribution platform for the fleet based here and in New Hampshire, intends to fight the charges which were considered serious enough to warrant a $355,200 penalty and a 120-day shutdown of the business. But NMFS' enforcement move against the auction — coming at a time when a federal judge has issued three rulings suggesting NMFS has overstepped its regulatory hand — has drawn cries of foul throughout the industry.

NMFS is still fighting to salvage an earlier effort to prosecute the auction, which was exonerated at a trial-like hearing before a Coast Guard administrative law judge.

NMFS has kept the case alive with an appeal to the U.S. Secretary of Commerce, whose agency contains NMFS and its parent, the National Oceanic and Atmospheric Administration. The actual remand letter was signed by Conrad Lautenbacher, then the undersecretary of Commerce for oceans and atmosphere.

The administrative law system used to prosecute NMFS' cases is the Coast Guard's.

NMFS' enforcement chief Cohen grates at suggestions the system tilts toward the parent and parent-partner agencies.

'Rule for the Coast Guard'

But a 2007 investigative series in The Baltimore Sun suggested there is reason for skepticism.

The Sun didn't track the success rate of NMFS' cases in the Coast Guard system. But the newspaper found that, in the Coast Guard system, mariners prevailed in only 14 out of 6,300 cases over the previous eight years. In a sworn statement, one administrative judge said she was told by the chief judge, "I should always rule for the Coast Guard."

The Coast Guard's inspection of the Ocean Reporter uncovered two violations serious enough to be written up. The yellow "enforcement action report" obtained by the Times provided details of the two counts of violations.

According to the report, Lee violated the Magnuson-Stevens Fishery Conservation and Management Act in two ways.

First, he was in "possession of yellowtail flounder without an exemption letter." Second, he was in "possession of a filleted dab (flounder)."

Lee said the first count referred to what he remembers as three flounder that were on the deck; the second referred to a fillet that weighed an estimated one-third of a pound.

As far as he knew, Lee said in an interview, he had been legally catching flounder under his multispecies permit which authorized 250 pounds a day. As for the fillet, he said a fine-looking dab was mangled in the gear, so he filleted it to take home for dinner.

Exemption letter

Recalling the incident, he described himself as nonplussed by the pronouncement by the leader of the boarding team, known to him only as "Lt. Kennedy," that the boarding party had discovered illegal fish and an illegal fillet.

He recalled the conversation:

"What's that?"

"A dab fillet."

"You're not supposed to have fillets on board." "Where's your yellowtail exemption letter? You need a letter."

"I don't think so."

A commercial fisherman for 37 years, Lee built his own boat, which he uses for NMFS and Coast Guard research and underwater photography. He was authorized by the service to do the initial remote photography last month of the Patriot, which went down under still-unexplained reasons about 10 miles from where the Grand Isle boarded his boat.

He said he repeated that he didn't need the authorization letter, and when he called NMFS in Gloucester, he was told, "No, you don't need to have one."

Yet the Coast Guard made its own call, and confirmed to Lee that he needed the authorization letter. He said he made a second call to a different NMFS officer who told him he didn't need the letter. "But they said I'll fax one to you anyway." It arrived five minutes later.

The confusion was understandable. For one thing, the conditions delineated in the letter were inordinately complex, covering nearly two single-spaced pages. For another, whether the letter actually applied was subject to distant developments that were not easily tracked.

The ninth, final and only underlined paragraph illustrates the problems. It read:

"The authorization is no longer valid once notice is provided to affected vessels that measures implemented by Framework 42 Adjustment and temporarily suspended have been reinstated by Court Order or have been superseded by other regulations."

The authorization letters, which were obtainable by phone or fax and cost nothing, were introduced as a supplemental form of regulation in 2004 — and were superseded by the implementation of the regulatory scheme, Framework 42, at the end of November 2006.

The boarding of the Ocean Reporter occurred at the start of that month.

Further, as Lee noted, if the letter was necessary, why wasn't he sanctioned in 2004, 2005 or earlier in 2006 for catching yellowtail without the letter?

Key to Auction case

Like Lee, most fishermen interviewed by the Times said they were essentially unaware of the applicability or even the existence of the authorization letter — a letter that plays a central role in the case NMFS has assembled against the auction.

In all, 41 of the 59 counts — representing $154,350 of the $335,200 in penalties sought — are tied to the alleged sale by the auction of yellowtail flounder from boats that did not have the authorization letter, which gave the holder permission to land 250 pounds of yellowtail a day.

Six counts identified Lee's Ocean Reporter. Yet, in each count, the amount noted is less than 250 pounds. NMFS' Cohen has said that 24 boats will also be charged — though, as of yesterday, no such charges had been filed.

Six months after the Coast Guard boarded Lee's Ocean Reporter and wrote him up, he received the first of two exoneration letters.

"Unfortunately," the March 28, 2007 letter said, "one fishery violation was mistakenly issued for possession of yellowtail flounder without a yellowtail landing authorization letter on board. Since the authorization letter is no longer required, I have rescinded the aforementioned violation."

The second letter was dated July 17, 2007. It cleared him of the charge he had a dab fillet on board. "Upon further research," Cmdr. E.J. Marohn, chief of fisheries enforcement, explained, "each person aboard a vessel issued ... multispecies permit ... may possess up to 25 pounds of fillets that measure less than the minimum size of the fish, and are not intended for sale, trade or barter."

Eight months after having his boat boarded from an armed 110-foot Coast Guard cutter, and charged with having illegal flounder and a fillet, Lee and his boat had been exonerated.

Richard Gaines can be reached at rgaines@gloucestertimes.com.

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