Fed review continues of NOAA fishing cases

The special investigative master who documented federal law enforcement abuses of commercial fishermen and businesses last year is continuing to review NOAA law enforcement's handling of dozens of cases, lawyers in Gloucester and New Bedford confirmed Tuesday.

Commerce Secretary John Bryson and the judicial master, retired federal magistrate Charles B. Swartwood III, did not respond immediately to questions about the continuing investigation submitted by the Times to Swartwood's employer, JAMS, the judicial, arbitration and mediation services company.

But attorneys Stephen Ouellette of Gloucester and Pamela Lafreniere independently confirmed that each had at least a dozen clients who had been interviewed by Swartwood. It was his initial followup to an Inspector General's 2009 probe that last summer brought about a Cabinet-level apology and reparations paid to New England fishermen and waterfront businesses, including the Gloucester Seafood Display Auction.

"Overzealous enforcement and unjustifiably high fines," was how Lafreniere characterized the problems described by her clients to the special master.

Ouellette agreed that his clients who had appealed to Swartwood had the "same type of problems," dating from the era that began late in the second Clinton administration with the appointment of Dale J. Jones to head ocean law enforcement.

The Jones era ended in April 2010 when the National Oceanic and Atmospheric Administration slid Jones into a non-law enforcement position in the Gulf of Mexico. Since then, agents based in Gloucester, where the problems were concentrated, were also replaced, though no one has been fired, punished or sanctioned.

Both Ouellette and Lafreniere said Tuesday they expect Swartwood to issue a report to Bryson on his second chapter of case studies sometime in March or April.

NOAA has been creating controls over law enforcement, writing protocols and hiring new leaders. Jones' successor, Bruce Buckson, was hired last July from the Florida Fish and Wildlife Conservation Commission.

JAMS has had a Commerce Department contract since January 2011 for Swartwood to pick up and more closely examine the most troubling strands of systemic failures of the past federal fisheries law enforcement administration documented by Inspector General Todd Zinser.

Zinser's investigations, together with Swartwood's case studies, validated chronic complaints from fishermen and others in the industry that NOAA law enforcement — especially the agents and litigators based at Northeast Division headquarters in Gloucester's Blackburn Industrial Park — treated fishermen as criminals, extracting fines of up to 500 percent higher than in other parts of the country for record-keeping and red tape violations.

The official reportage did not end with Swartwood's more than 230-page final report last April, released to the public after redactions in May by then Commerce Secretary Gary Locke, now ambassador to China. Instead, based on an extension of his commission by Locke, Swartwood was authorized to look into complaints by fishermen who had not spoken to Zinser.

Zinser began his national investigation in June 2009 and began issuing a series of scathing reports in January 2010.

These continued through the year and included findings that NOAA agents and litigators were using NOAA's Asset Forfeiture Fund for improper purposes, including foreign travel. Zinser, employing the global auditing giant KPMG, concluded that the Asset Forfeiture Fund had been tapped by NOAA law enforcement to purchase a luxury boat, and more vehicles than the department had agents.

The revelations about the motives for jacking up fines brought howls from industry lawyers.

In his lengthy report on the many excesses of prosecutorial perogative visited upon a former New Bedford scalloper Larry Yacubian, Swartwood began a paragraph with five lines of copy — about 70 words — that were redacted by Locke. Whatever Swartwood wrote moved him to conclude the paragraph with the statement that "I find this email to be credible evidence that money was NOAA's motivating objective in this case."

Locke explained his rationale for not punishing anyone in his May 17 "secretarial decision memorandum," which announced the reform program and issued apologies to the most egregiously harmed, with more than $600,000 in reparations.

"At bottom," Locke concluded, "these problems were not the product of individual bad acts, but rather the result of conduct enabled and even encouraged by management and enforcement culture in place at the time."

The Swartwood report, however, was denounced by the Coast Guard administrative law judge system that NOAA had been using at the time. It also drew fire from the union representing NOAA litigators and the agents, including Andrew Cohen, the disgraced agent in charge of the Gloucester office, who had helped orchestrate a campaign against the Gloucester Seafood Display Auctionthat last May was paid reparations and issued a federal apology.

Multiple congressional hearings into the law enforcement excesses have gone on for more than a year, and ricochetted through the media — with a variety of perspectives.

In November, Bloomberg Businessweek published a lengthy story ostensibly defending Cohen and his cohorts and headlined, "The Gloucester Fish War — How a small town in Massachusetts destroyed a decade of law enforcement."

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

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