, Gloucester, MA

December 6, 2012

Demand for fishery abuse report gains steam

By Richard Gaines
Staff Writer

---- — Republican Paul Broun, chairman of a U.S. House Subcommittee on Investigations and Oversight, added his written request Thursday to one made a day earlier by Democratic Sen. John Kerry that the Commerce Department make public the second volume of case reports into alleged abuses on the part of NOAA Fisheries law enforcement authority against fishermen.

The 66-case study, which reportedly runs more than 500 pages, with recommendations by the author — special judicial investigator Charles B. Swartwood III — was submitted in final form eight months ago.

The chairman of the subcommittee of the House Committee on Science, Space and Technology, Broun also asked Acting Commerce Secretary Rebecca Blank for “a complete and unredacted” copy of the original Swartwood report into fisheries law enforcement abuses, which was released in redacted form in May 2011. Swartwood’s first report required barely a month to review and redact before its release.

Blank’s communications office did not respond to multiple requests Thursday for comment on the letters from Kerry and Broun.

Massachusetts Republican Sen. Scott Brown and Congressmen John Tierney, Barney Frank and William Keating previously and repeatedly have criticized the government for failing to release the second Swartwood report.

Referring to unauthorized budgetary manipulation at NOAA’s National Weather Service, manipulation of the procurement process by NOAA fisheries agents in Seattle to get a $300,000 luxury undercover boat for pleasure cruising, the mass shredding of documents from the office the then-director of law enforcement, and NOAA’s refusal to respond to requests dating to last April for travel records of NOAA Administrator Jane Lubchenco and a number of her top aides, Broun wrote of his concern that “of late, it appears that personnel issues at the (NOAA) seem to be commonplace.

“Yet, it is unclear to what extent, or in some cases, if at all NOAA reprimands its employees,” Broun wrote.

”The perceived delay in releasing the report (including the second volume of case studies by Swartwood) has resulted in further eroding of public trust in the agency,” Kerry said in his letter Wednesday. He said he wanted the report released “immediately, or at the very least, no later than the end of the year.”

Released in May 2011, the first volume of case studies by Swartwood, a retired federal judicial magistrate and chairman of the Massachusetts Ethics Commission whose work on these projects was commissioned by the Commerce Inspector General’s office, resulted in a Cabinet-level apology to 11 victims within the Gloucester- and New Bedford-based fishing industry. All of the cases related to law enforcement misconduct, and more than $650,000 in reparations were distributed.

The redacted first volume also brought frustration to the fishing industry by leaving tantalizing uncertainties. For example, five lines of a paragraph were redacted from the narrative by Swartwood about the case which generated the largest reparation, $400,000, paid to a former New Bedford scalloper, Larry Yacubian. The final sentence in the paragraph, which was not redacted, said, “I find this email to be credible evidence that money was NOAA’s motivating objective in this case.”

Then Commerce Secretary Gary Locke (now ambassador to China) decided to end the use by NOAA of the U.S. Coast Guard Administrative Law Judge System for adjudicating cases that could not be resolved routinely with the payment of fines assessed. An investigation by the Commerce Department inspector general Todd Zinser found that fines levied from the Northeast office in Gloucester were out of scale with those issued in other regions.

The Coast Guard judges expressed fury at Swartwood for concluding there was a widespread belief that the fishing industry could not expect fairness and justice in cases they tried, and have continued to lobby to reverse the decision to drop their services.

Other members of the congressional delegation — notably Sen. Brown and Rep. Tierney, whose district includes Cape Ann — have been more pointed in their complaints about the delay in releasing the second volume of Swartwood’s case studies than Kerry, and both of them have consistently called for the firing of NOAA Administrator Jane Lubchenco.

Lubchenco originally intended not to address cases of justice miscarried against industry businesses, which were brought to light by Commerce Department Inspector General Todd Zinser. Zinser’s investigations also revealed abuse of the asset forfeiture fund — fines paid by industry, which were found to be much heavier in the Northeast region than other regions — and document shedding by the then NOAA Law Enforcement Director Dale Jones.

Lubchenco, however, chose not to punish anyone, although Jones and the entire cadre of agents and lawyers based in Gloucester were reassigned.

Kerry wrote that he understood the second Swartwood report “may contain crucial information about victims of abuse and injustice at the hands of NOAA Office of Law Enforcement personnel.”

”I strongly believe the agency must be transparent in the transgressions that have occurred and move to resolve them quickly to begin to rebuild its relationship with our fishermen,” he added.

Kerry has maintained the most patient attitude toward Lubchenco in what has grown into a spontaneous resistance to her policies and imperious approach by the rest of the delegation and a consensus within industry.

But in that role, Kerry has exercised influence. In September, he said at a news conference in Boston that his decision whether to join Sen. Brown in asking for Lubchenco’s dismissal would be determined by whether NOAA approved the request for a disaster declaration for the region’s fishery.

Days later, Blank approved the long-delayed request of the five coastal New England states and New York.

Richard Gaines can be reached at 978-283-7000, x3464, or at