By Richard Gaines
Staff Writer
July 03, 2009 05:50 am A leading fishing industry lawyer due to meet next week with the Inspector General's investigators probing the alleged heavy-handed tactics of federal fishery enforcement says the Inspector General's office already has two key reports he's prepared detailing how the aggressive enforcement and judicial system hovering over the industry is rigged to drive fishermen out of business. Attorney Steve Ouellette said yesterday that the law enforcement system imposed on the industry — while constantly monitoring fishing vessels and making cheating nearly impossible — also leaves fishermen open to unintentional violations of nearly incomprehensible, layered and often contradictory rules. And these unintentional violations, the fishing industry and admiralty lawyer said, are prosecuted with zero tolerance and inflexible zeal, bankrupting and impoverishing fishermen driving them out of the industry. Ouellette stopped short of alleging that the heavy handed enforcement was intended to cull the industry — a longstanding, expressed policy goal of the National Oceanic and Atmospheric Administration, which it is pursuing via the effort control system of limited days at sea and trip limits. This policy also created enormous volumes of regulations due to the requirement of boats to fish against a clock and in an ocean that is divided into physically invisible blocks where catch limits differ. But "whether by design and ineptitude," he said, "they know it's happening, the little guys can't comply (with the penalties)." The effect of these practices, which include heavy fines is to "chase longtime participants out of the fishery." He said the fear of prosecution has convinced many fishermen to cease fishing, and instead lease days at sea to active boats. The nature of the industry is about to change. Based on votes taken last week by the New England Fishery Management Council, the common resource conception of the fishery with permits' value expressed in days of fishing that are allowed will give way to a system that values permits in a "catch share" — a quota of fish they authorize the owner to catch. The negotiable nature of the permits in the new model effectively creates a commodities future market and encourages speculation in permits. Fund managers have already begun trolling for permits. At a conference of fund managers and bankers last spring, an official of the Environmental Defense Fund, which promoted the catch share system, advised investors to buy catch shares and predicted quick and large profits. Ouellette spoke to the Times as he and many fishermen — including non-clients — prepared to present their grievances next week in private interviews with a team from the Department of Commerce's Inspector General's office. Inspector General Todd Zinser last month organized a national review of federal fishery law enforcement practices in response to waves of protest over the feds' handling of alleged regulatory issues at the Gloucester Seafood Display Auction. The auction, the No. 1 platform for the sale of fish caught in the Gulf of Maine, is fighting two overlapping actions brought by the NOAA general counsel's office, and a threatened shutdown order emanating from an alleged "probation" violation from a third earlier case. The first case dates from events nine years ago, and was settled with a stipulation that the owners of the auction, the Ciulla family, were unaware that an employee was leveling weights — that is, transferring overages to tallies that were short of the limits. The NOAA general counsel's office filed, lost, appealed, and then obtained a limited finding against the auction in the second case that is now on appeal in U.S. District Court. Two weeks ago, the office put out a press release and advanced the notice to the Boston Globe, asserting that the auction was about to be closed for 10 days even though the events cited for the closure were in an appeal to the U.S. District Court in Boston. Together Tuesday, the sides asked and got a continuance until later in the month. The auction remains open pending the federal court action. Ouellette maintains a practice with fishing-based clients all along the Atlantic Coast. And while he is not associated with the auction now, he has in the past had the auction as a client as well. He said he will meet with the IG's team on Tuesday. But he said they already have two lengthy reports of his on NOAA law enforcement excesses, one written in 2001 for Sen. Edward M. Kennedy, the other from 2008, written for U.S. Rep. John Tierney. Kennedy led a group of five senators and congressmen that petitioned NOAA administrator Jane Lubchenco for an independent investigation into the methods and motives of the fishery enforcement. Other complaints have been filed from North Carolina, New York, New Jersey and Pennsylvania. Lubchenco asked Zinser to initiate the review in a brief memo last month. Zinser has said his team will work without a deadline. The first interviews with fishermen are scheduled for Monday. Ouellette cited as an example of the absurdity of the approach to fishery regulation the history of the so-called "yellowtail" letter, a bureaucratic add-on requirement announced by NOAA regulators in 2003. It was withdrawn in 2006. The purpose of requiring fishermen to obtain the letter — at no cost, essentially for the asking — was to specify where they intended to fish for yellowtail flounder: either in the Gulf of Maine or far to the south in George's Bank of Southern New England. For the day-boaters that make up the bulk of the Gloucester fleet, fishing in the Gulf is the only option, so many day boaters did not think they needed to have the letter; their permit authorized them to catch 250 pounds of yellowtail in a day's fishing trip. The letter was all but forgotten for more than two years, until this past winter, when NOAA initiated a 59-count complaint against the auction and up to two dozen partial parallel complaints against fishermen for catching and selling yellowtail without the letter in 2004-2006. "My belief is that the letter had no purpose except another layer of complexity," said Ouellette. "It was a contrived series of violations targetting the auction for the most technical of violations." During the investigation that led to the most recent Notice of Violation and Assessment or NOVA against the auction, a number of fishermen told the Times they were encouraged to "rat out" the auction with offers of reduced or dropped charges against them. In Ouellette's first letter, to Kennedy dated Feb. 7, 2001, Ouellette wrote that an enforcement agent has "indicated to other fishermen accused of wrongdoing that if they can implicate the auction, he will see to it that (NOAA) 'goes lighter on them.'" Richard Gaines can be reached at rgaines@gloucestertimes.com
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