Lubo Comes Up Short at Gloucester

by Fishermen’s Voice Staff

Fishermen who challenged federal fisheries enforcement charges and fines attended a meeting to review a judge’s report and receive an apology from the National Oceanic and Atomospheric Administration (NOAA ).

After years of waiting for a conclusion, the hastily-arranged meeting, lack of clarity and small remittances left the few fishermen there feeling short changed.

The challenge to NOAA enforcement, which began in 2006, was effectively won by the fishermen months ago. Chief Magistrate judge Charles Swartwood, of the U.S. District Court found the National Marine Fisheries Service (NMFS) Enforcement division guilty of using excessive force and leveling excessive fines.

In his report, completed in mid-April, the judge ordered some of the millions of dollars collected in fines from fishermen to be remitted. However, NMFS was not forthcoming with the restitution, and as of May, 2011, none had been returned.

Only after Massachusetts legislators Kerry, Frank, Brown and Tierney wrote a letter to Secretary of Commerce Gary Locke insisting action be taken on the completed report was a meeting with fishermen set up in Gloucester.

Fishermen in the case said they had heard nothing about the case until Monday, May 17 when they received a phone call from NOAA chief Jane Lubchenco’s office at 11 a.m. Gloucester fisherman and collaborative fisheries researcher, Bill Lee said “I got a telephone call at 11 a.m. on Monday saying there would be a meeting at 2 p.m. that day with NOAA chief Jane Lubchenco. At the meeting NOAA officials would present Swartwood’s report and offer an official NOAA apology to the fishermen named.”

Of the hundreds of fishermen fined over the years, 30 challenges were considered and 11 selected by judge Swartwood for fines to be remitted. Eight of the 11 made it to the meeting, none knew who would be repaid or how much. They arrived to find one laptop on which to read the lengthy official document containing the plaintiffs’ names and the decisions in the case. An 8-page paper summary of the report was available and Lubchenco was a half-hour late.

“It was a farce,” said Lee, “a dog and pony show.” It (the settlement) was pennies on the dollar. We had no time to understand what was in the report.”

Gloucester fisherman Paul Thierault noted Lee had to give up days at sea and sell his permit to cover excessive fines—$19,000 in Lee’s case. Fisherman Richard Burgess was fined $58,000. Those 11 fishermen who paid the fines in cash may get some of the money back, but those who traded in days at sea to cover the fine would be given nothing back, and no legal fees were repaid to anyone.

“They (NOAA) told us days at sea no longer have value,” said Thierault. “I know what value they have, I paid $200 per day for them.”

NMFS, in a presentation at the New England Fisheries Management Council meeting in Mystic, CT in April, admitted to agency failings and outlined plans to address change in the agency. The enforcement issue remains a sore spot in management-fishermen relations. Fishermen noted that NOAA admitted management failures, guilt in enforcement violations, and attended to a “roll out strategy” on Swartwood’s report rather than presenting it to the plaintiffs in a timely fashion.

At the same time NOAA was talking about ways to make relations better, the presentation of the report was poorly considered. The victims had little opportunity to understand the report as presented and the apology was therefore undermined. The following day, the 11 fishermen received a hard copy of the apology via Fed Ex.

“I tried hard to get something out of the meeting, I wish we had had more time, we need to talk with management.” said Thierault. “The meeting was a good start, but they have ignored public comment.”

The challenge to NMFS enforcement began when the Gloucester Seafood Display Auction (GSDA) defended itself, charging enforcement with forced entry raids, excessive force and excessive fines by enforcement agents.

Fines were deposited in the unregulated Asset Forfeiture Fund. The KPMG accounting firm examined the AFF books in 2009. Asked about how much was in the account, NOAA responded about $8 million. But $96 million came in and $46 million went out in 82,000 transactions. For perspective on the scale AFF funds and the effects that remittances on the fishermen who met with Lubchenco on May 17, fisherman Jay Vanderpole said “it was nice to get the money, but the $1,500 remittance equaled my legal fees.”

Attorney Paul Muniz, from Burns & Levinson, represented the GSDA. Of the settlement he said, “we have hardly been made whole.” After more than $100,000 in fines and many hundreds of thousands in legal fees the GSDA had a small percentage of what they lost returned to them.

Muniz said only after Massachusetts Attorney General Coakley and Rep. Ann-Margaret Ferrante came to Gloucester in response to an official legal complaint by the GSDA was there a response from NOAA.

“The unfair and unwarranted penalties that NOAA sought to enforce would have challenged the Gloucester Seafood Display Auction’s ability to remain a viable business, and NOAA knew it. The courage of the Ciulla family in forcing a deep review of NOAA’s unjust enforcement activities against the fishing industry has opened the door to reforms that hopefully will let this critical industry thrive under fair terms and free of attacks that were crippling the businesses within it,” said Muniz.

“Accountability and transparency are vital to ensure any industry functions well. Prior to today, this had not existed within NOAA. We are guardedly optimistic that there will be a cultural change within the agency.” said Muniz.

More about the details of this meeting, official documents, the background to the case, and legal opinions can be found at http://www.fishermensvoice.com/enforcement