By Richard Gaines
Staff Writer
—
Barely a month after the Ciulla family was issued a public apology and paid reparations for a decade of relentless federal fisheries enforcement harassment at their fish auction that uncovered "no credible evidence," NOAA administrator Jane Lubchenco has now ordered the business to close for 15 days.
The decision, based on an interpretation of a March 1, 2010, settlement of the three cases which interlocked, was transmitted to Paul Muniz, attorney for the Gloucester Seafood Display Auction, via email Monday — while he and auction President Larry Ciulla were in Boston's Faneuil Hall.
Invited to speak to a Senate subcommittee, Ciulla, as the region's primary target of law enforcement zeal and excess, was about to testify along four other industry representatives when the email arrived on Muniz' smart phone.
The message came, Ciulla said, just as Eric Schwaab, who heads the National Marine Fisheries Service, was explaining how NOAA had turned the corner and was reforming the law enforcement system that helped debilitate and demoralize the fleet. Schwaab departed the hall immediately after testifying.
Lubchenco's order is based on a provision of an opinion by Commerce Secretary Gary Locke that an agreement in the March 1, 2010, settlement for the auction to close non-consecutively for 35 days as part of the price for a clean record could not be revisited.
Locke's stand, in turn, was based on the findings of a special judicial master whose report on the most egregious cases of miscarried justice prompted a joint apology to the Ciullas and the other victims during an extraordinary joint teleconference by Locke and Lubchenco that was podcast from Gloucester on May 16.
In her letter, Lubchenco wrote that she was enforcing Locke's decision to follow that part of Special Master Charles B. Swartwood III's recommendation to reinstate the remaining portion of the penalty in the omnibus settlement, which was intended to close the book on the government's campaign against the auction, holding it free of any lingering legal liabilities.
"I won, but they couldn't accept it," Ciulla told the Times in a Wednesday telephone interview. "It's almost like double jeopardy. What am I going to do about it? I haven't got a clue."
"We don't believe that the sanction will ever be enforced in a way that will ever impact the auction," Muniz added. "It (the sanction) is inconsistent with Judge Swartwood's findings that the auction had been unjustly prosecuted."
Ciulla said any lost day of business would be costly and disruptive to the boats and the buyers who have made the auction at the tip of Harbor Loop the No. 1 platform for brokering seafood from the Gulf of Maine. Because the catch share regulatory system allows boats to fish anytime, the business is open seven days, with auctions held five times a week.
NOAA's director of communications Justin Kenney said "the letter speaks for itself."
The Ciullas' decision to fight in public to clear their name, after NOAA dropped a 59-count case on them in February 2009, sparked a political tidal wave of resistance that eventually put a letter from the congressional delegation on Lubchenco's desk in May 2009, asking for an independent investigation of law enforcement abuses.
A month later, Lubchenco called in Commerce Department Inspector General Todd Zinser, whose six month probe produced a series of reports that government agents and lawyers in Gloucester had treated technical reporting violations like crimes while nationally agents and lawyers had used a fund of fines of nearly $100 million over four and a half years to subsidize operations, pay judges, finance the purchase of fleets of vehicles and boats and pay for overseas travel.
A high-level shredding of documents during the investigation, also documented by Zinser, led to the transfer of the director of law enforcement. But at the hearing Monday, a top NOAA official reiterated that no one has been fired, or punished in any way for the violations of fishermen's rights.
When Ciulla got to the witness table Monday in Faneuil Hall, he was the second speaker after Larry Yacubian — a one-time leader of the industry in New Bedford who was driven out of business and town by a NOAA enforcement campaign that was condemned by the master, bringing another apology and reparations of $400,000.
Ciulla told the subcommittee's members — Chairman Tom Carper of Delaware and the ranking Republican, Massachusetts' Scott Brown — he was ashamed to say now that he had avoided taking Yacubian's calls for a while, "thinking he'd done something wrong."
"People did the same to me," Ciulla said.
"What did I do wrong? Nothing," Ciulla said, speaking emotionally. "I stuck up for my rights. We were abused. A branch of the U.S government raided our place of business with guns. They're doing this to justify what they did."
"Our rights of people need to be upheld," he said, sitting between Yacubian and Gloucester attorney Stephen Ouellette, who had documented to Congress in 2001 all the forms of law enforcement excess later validated by the Commerce Department inspector General and the special master over the past two years.
"We were written down as second-class citizens," Ciulla said.
The apology to the Ciullas, Yacubian and nine other victims of law enforcement excesses was delivered orally during the joint teleconference and in writing in similar form letters.
The letter to the Ciullas, also dated May 17, said Swartwood "determined that NOAA's actions overstepped the bounds of propriety and fairness in ways that had a material impact on the outcome of your case ... We are truly sorry."
The settlement reached on March 1, 2010, seemingly brought to an end an era of extreme efforts to prove the Ciullas were operating a black market for fish at the auction. But despite a nearly obsessive decade long effort, Swartwood found that "NOAA had no credible evidence that the auction was willfully violating fisheries regulations."
Among the violations in NOAA enforcement's campaign were a forced entry, a search warrant obtained based on inaccurate information, an attitude of "animus" against the business, and a series of dubious charges against fishermen — many also recognized in the apologies as being brought unsuccessfully to pressure fishermen to "rat out" the Ciullas.
But Lubchenco wrote to Muniz she was accepting Locke's earlier opinion, written into the decision memorandum that explained the settlements in the 53 separate cases examined by Swartwood.
There, Locke said he had no power to ignore the permit sanction part of the March 1, 2010, omnibus agreement to close and end the cases against the auction.
In exchange for the government's agreement to not consider the auction a violator of the Magnuson-Stevens Act, the auction agreed to make an $85,000 payment and close for 35 days, not consecutively. At the time, there were two matters pending, the 2009 case involving charges the auction had taken in illegally caught fish, and a 2005 case.
Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.
