Trying to make amends with the fishing industry, U.S. Commerce Secretary Gary Locke and NOAA administrator Jane Lubchenco each issued apologies Tuesday to those "who were wronged" by excessive enforcement actions, and announced decisions to return $649,527 to 11 individuals and businesses as recommended by an investigative special master, Charles Swartwood III.
In a tele-news conference — with Lubchenco visiting in Gloucester and Locke at an unstated location — each expressed hope that the action would mark a new era leading to trust between the government and the commercial fishing industry.
But in responding to questions, Locke implicitly conceded that no one who had violated the rights of the fishing industry people had been or was going to be sanctioned or punished — even those who spent years conducting countless operations against the Gloucester Seafood Display Auction including attempted entrapment, and others the investigation found were improper and excessive.
Acting on Swartwood's recommendations, Locke remitted or voided fines levied against fishermen for failing to have a "yellowtail authorization letter" which had little regulatory significance, but gave the agents to leverage to press — unsuccessfully — for evidence or testimony against the auction.
Swartwood's report also found that the auction, the epicenter of the industry's protests, was the "subject of selective enforcement" that was undertaken despite "little, if any, credible evidence to demonstrate that the (Ciulla family which owns the business) was engaged in any pattern of intentional illegal behavior."
Locke and Lubchenco Tuesday emphasized what they described as their commitment to reform.
Yet Locke directed a settlement of just over $100,000 to the auction — far less than the Ciullas' decade-long defense reportedly cost them in legal bills alone.
Locke also kept in place a 35-day forced closing from the settlement in March 2009 of the three cases, because he said he was powerless to do otherwise.
Locke took no action against the agents in the Northeast Regional Office in Gloucester for falsifying an affidavit for a search warrant of the auction business or for launching a "warrantless" entry to the premises, but he acknowledged that the agents would get special training. Those actions were also outlined in the special master's report.
The largest settlement was $400,000 to former New Bedford scallop fisherman Larry Yacubian. His complex case extended over many years, but went bad after a administrative law judge ignored the directive of a federal district court judge and reinstated an earlier penalty that the federal judge had ordered wiped away.
Soon after the action, the administrative judge left the U.S. for a conference in Kuala Lumpur, Maylasia with the government litigators who had pressed the case, the master's investigation found.
Tuesday's news conference, which was managed to limit questions to six, began before Locke's decision memo was posted online.
The underlying report of more than 200 pages written by Swartwood, a retired federal judge, was not released until after the news conference was over.
The tele-conference climaxed a complex rollout of documents and announcements in response to congressional demands for the publication of the report by Swartwood, which was delivered to Locke on April 15.
With Locke nominated by President Obama to be ambassador to China, the implications extended beyond the future of the industry's willingness to trust the National Oceanic and Atmospheric Administration's Office of Law Enforcement and Office of General Counsel for Enforcement and Litigation.
U.S. Sen. John Kerry, who chairs the Senate Foreign Relations Committee which will vet and vote on the Locke nomination, issued a statement approving the general effort, but reiterating that guilty NOAA employees must be punished.
Locke's secretarial decision memorandum discussed misdeeds, errors without malicious motives.
"In light of this systemic failing," he wrote, "I find afer legal review that none of the conduct described in the report undertaken by any individual NOAA lawyer or law enforcement officer warrants disciplinary action against any employee mentioned in Judge Swartwood's report.
"At bottom, these problems were not the product of individual bad acts, but rather the result of conduct enabled and even encouraged by the management and enforcement culture in place at the time."
Richard Gaines can be reached at 978-283-7000, x3464, or at rgaines@gloucestertimes.com.
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