GloucesterTimes.com, Gloucester, MA

February 9, 2013

Probe cites wrongs by NOAA prosecutors

By Richard Gaines
Staff Writer

---- — The special investigator commissioned by the Department of Commerce has concluded that the same two attorneys in NOAA’s Gloucester office who extracted an excessive settlement from a New Bedford scallop fishing business owner in 2005 did the same thing years earlier to a pair of New Bedford fish processors using coercive methods “with an intention to intimidate.”

A detailed narrative of how NOAA’s Gloucester-based enforcement and litigation attorneys Charles R. “Chuck” Juliand and James “Mitch” MacDonald improperly manipulated the system of fisheries enforcement law to drive Thomas R. F. Riley and his partner, Dennis Saluti, in Sea Rich Seafoods and another company to pay a $1 million cash penalty plus the loss of business licenses and fishing permits for what were found to be exaggerated charges is detailed in the 554-page report to the acting commerce secretary by special investigator Charles B. Swartwood III.

In releasing a redacted version of Swartwood’s second set of case studies into allegations of NOAA Fisheries law enforcement excesses, Acting Commerce Secretary Rebecca Blank on Dec. 14 made reparations to Riley and Saluti of $373,500, the amount recommended by Swartwood.

According to the report, the abuse and manipulation of the law in the prosecution of the Sea Rich case occurred in 1997. But Riley and Saluti’s complaint of proprietorial misconduct came to light only with the decision by then Commerce Secretary Gary Locke, based on Swartwood’s initial report in May 2011, to commission an additional study of industry complaints that NOAA law enforcers harassed and intimidated fishermen and shore-side businesses.

Juliand and MacDonald were also the enforcement attorneys in the prosecution of New Bedford scalloper Larry Yacubian, a case that extended from 2000-2005 and ended only after Yacubian and his wife divested themselves of most of their assets including her ancestral farm to pay a $430,000 fine and legal fees.

The amount of the fine assessed by an administrative law judge was deemed excessive by a U.S. district court judge and by Swartwood, himself a retired federal magistrate.

In releasing the first Swartwood report — with formal Cabinet-level apologies to the 11 businesses put in duress by wrongful actions of NOAA litigators and agents — Locke, now the ambassador to China, made more than $650,000 in reparations including $400,000 to Yacubian. Blank, who has been acting commerce secretary since last June, issued no apology but distributed $564,794 to Riley and Saluti and 13 other businesses, while also forgiving debts of $161,266.66 owed by two other businesses.

Together, Swartwood’s two sets of case studies generated $2,375,587.66 returned by the government to settle the penalty score with the fishing industry. Swartwood was retained by Locke to investigate the threads of complaints left by the inspector general for the Commerce Department, Todd Zinser.

Juliand, who had been the senior attorney in the Gloucester office which polices waters from Maine to North Carolina, was reassigned to be senior councilor for natural resources, while MacDonald was reassigned to be an attorney advisor to the deputy general counsel at NOAA. Both continue to work from Gloucester.

Reached by phone, Juliand declined comment to the Times for this story; efforts to reach MacDonald were unsuccessful.

State Rep. Ann Margaret Ferrante, who triggered the pressure for the inspector general’s investigation by enlisting the support of the state legislative leadership, assailed the enforcement actions cited in the report.

“These instances continue to remind us that NOAA believes that there are two sets of rules that apply to two different sets of people: a set for those who work at NOAA and a set for those who do not,” she said Thursday. “Never was government contemplated ... as a means by which to intimidate, coerce, and punish with bankruptcy and imprisonment, the misdemeanors of those who unintentionally make mistakes in an over regulated, overwhelming, and highly burdensome industry.”

In reviewing the case against Riley and Saludi, Swartwood wrote that, in seeking a $4.74 million penalty, Juliand and MacDonald intervened with a prospective buyer of their businesses; they also charged Riley and Saludi a penalty 17 times for a single allegation of “interference” with law enforcement — a charge that Swartwood dismissed as false. Once they learned of the potential sale, they immediately wrote up the huge penalty and contacted the buyer, actions Swartwood concluded involved “an intention to intimidate.”

“As a result of a NOAA press release,” Swartwood wrote, “the potential sale of the company and the companies’ credit line were jeopardized,” while NOAA also threatened to seek an “interim” order that would have shuttered the company and prevented the sale.”

He wrote that under the circumstances, the businessmen “had no options” but to settle the case for $1 million plus permits

Underpinning the actions of NOAA’s agents and litigators was a long history and widespread knowledge that the U.S. Coast Guard administrative law judges would side with NOAA.

In his December report on the case, Swartwood notes that Juliand told an attorney for the businessmen that “he should not be too sure about his assessment of the case and that he believed he could get whatever assessment he sought” from the judges. The report states that Juliand confirmed that in his interviews with Swartwood.

Swartwood’s study of the Yacubian case also contains the statement that a redacted email covering five lines was “credible evidence that money was NOAA’s motivating objective.”

Spurred by letters from the state’s legislative leadership to Congress, and from Congress to NOAA Administrator Jane Lubchenco, who passed them on, Zinser undertook a series of broad investigations into the NOAA law enforcement system in 2009. Among other findings, they produced evidence that a mass of documents — potential evidence — was shredded during the active phase of the probe, and that fines paid by fishermen and deposited into an asset forfeiture fund were used to buy a fleet of more vehicles than NOAA had agents, and a pleasure boat used for partying by agents in the Seattle office.

Although most of the misconduct by agents and litigators was done before Lubchenco’s tenure began in 2009, she nonetheless has resisted congressional and industry demands to fire or penalize participants in the manipulation of the administrative law judge system underpinning the enforcement process. That system presumes the guilt of the accused, and was predicated on the U.S. Coast Guard Administrative Law Judge system upholding the allegations and upping the penalties of defendants and respondants who declined to settle their cases out of court.

In the revelations from the inspector general, Dale J. Jones Jr., NOAA’s director of law enforcement beginning in 1999, was reassigned as a fisheries program specialist in the Office of Science and Technology, and kept his pay above $150,000.

Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.