State AG backs auction in court fight

By Patrick Anderson
Staff Writer

July 11, 2009 12:01 am

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Massachusetts Attorney General Martha Coakley has sided with the Gloucester Seafood Display Auction in its request for a restraining order barring federal fisheries regulators from shuttering the Harbor Loop fish brokerage for 10 days this summer.

Joining a legal battle between the auction and National Oceanic and Atmospheric Administration that's come to symbolize tensions between fishermen and their regulators, Coakley has now called for any sanction against the auction to be stayed until a pending U.S. District Court appeal of its violations is resolved.

To close the auction, the sales hub of the Gulf of Maine fishery, during its busiest season "would substantially harm the fishing and associated industries in Gloucester and the commonwealth," Coakley wrote in a "friend-of-the-court" brief filed Wednesday.

Coakley writes that the brief does not intend to address the auction's ultimate guilt or innocence, but it says complaints of vindictive enforcement from fishermen nationwide, an internal U.S. Commerce Department investigation of NOAA, and previously successful appeals of penalties by the auction give reason to believe it has a good chance of success in its case.

"Finally, the court should stay imposition of the sanction in light of (the auction's) serious allegations that NOAA is engaged in retaliatory conduct," the brief says, "allegations that have spawned an internal investigation into NOAA's law enforcement practices in the Northeast."

A hearing on the auction's request for a temporary restraining order is scheduled for July 20.

Coakley's involvement in the increasingly controversial enforcement of regulations meant to rebuild the country's ocean fish stocks comes with increasing interest in the issue from politicians in coastal states and federal investigators interviewing fishermen and local politicians in Gloucester, Boston and elsewhere in Massachusetts this week.

Legal counsel for the auction declined yesterday to comment on the case, and the assistant U.S. attorney representing NOAA refused to speak to the Times.

The issue at the heart of the potential 10-day shutdown is an alleged violation of a six-year-old settlement agreement between the auction and NOAA stemming from infractions the auction was cited for in 2000.

The settlement included a one-year probation period, which NOAA claims the auction violated in the winter of 2004 when it mislabeled a tote of cod.

But that 2004 violation, which initially came with a 90-day suspension and $120,000 fine, has been the subject of repeated appeals, once resulting in the charge being thrown out by an administrative law judge and later being reinstated by NOAA itself with a vastly reduced penalty.

In April, NOAA chief administrator Jane Lubchenko declined to review the issue further, prompting the auction to launch an appeal in U.S. District Court. Last month, National Maine Fisheries Service's law enforcement arm used Lubchenko's decision to declare a probation violation and order a 10-day shutdown to begin before Monday, July 13.

In its request for a temporary restraining order, the auction argued Lubchenko's ruling this year on the alleged 2004 infraction placed it outside the one-year probation period set in 2003.

In a deposition filed with the restraining order request, auction owner Larry Ciulla accuses NOAA of seeking retribution against the auction for its appeals, a perception echoed by many other fishermen struggling under increasingly strict and Byzantine federal rules and catch restrictions.

After members of Massachusetts congressional and Cape Ann's state legislative delegations called for an investigation into complaints about improper enforcement tactics by NOAA, Coakley visited the auction in May and came away with the impression that "something is wrong."

In her friend-of-the-court brief, Coakley calls the decision to order the shutdown in July "precipitous and premature," with a negative "ripple effect" throughout the coastal economy that could never be reclaimed if the auction's appeal is later upheld.

Those negatively affected would include the owners and crews of over 300 commercial fishing boats from Maine to Rhode Island, direct buyers including Whole Foods and Legal Seafoods, indirect buyers including restaurants, markets and their customers, truck drivers, dock workers, the holders of auction and fishing-related mortgages, as well as employees of the auction itself.

"NOAA should be prevented from imposing a sanction when there is the greatest likelihood of substantial harm to the public," the brief says. "The defendants (NOAA) have articulated no reason why the sanction must be imposed now, and why its imposition cannot await the orderly judicial review of the underlying offenses."

But Coakley doesn't limit the brief to justifying a decision to hold punishment until the conclusion of appeal; she comments on the substance of the auction's complaints, pointing to the Inspector General's investigation, questions about retaliatory law enforcement action from numerous politicians and the administrative law judge's earlier decision to throw out the 2004 violation.

On top of the legal challenge to the closure itself, the auction has questioned NOAA's apparent decision to notify the Boston Globe about the decision to sanction the business before informing its management.

Judge Douglas Woodlock, who is presiding over the auction's request for injunction, asked the counsel representing NOAA to prepare a brief describing how and when the media was notified of the penalty, as well as why.

That brief was due yesterday, but as of 5 p.m., had not appeared in the federal court system's online record system.

Patrick Anderson can be reached at panderson@gloucestertimes.com

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