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Document Fight Goes to Auction
Judge Orders Feds to Turn Over Papers, e-mails to Fish Broker by Richard Gaines
Among the documents the National Oceanic and Atmospheric Administration (NOAA) has been ordered to produce is an April 28, 1999, letter that informs the auction it cannot be prosecuted for “violations by fishermen” unless there is a conspiracy or the auction “commits a separate violation.” For that reason, the policy letter from NOAA’s then-special agent in charge, Richard C. Livingston, states that the auction did not need a “hold harmless” indemnification in the “normal course of business.” The importance of the discovery order by Administrative Law Judge Walter J. Brudzinski is the determination that a policy paper written to the Ciulla family a decade ago, soon after it organized the auction and opened for business, remains relevant to the facts of the most recent effort to punish the auction. The policy position enunciated in the letter bears on the nature of the 59-count Notice of Violation and Assessment of penalty or NOVA case announced in February — parallel prosecutions of fishing boats and the auction for processing allegedly illegal catches. The auction would be facing fines of up to $335,200 and a 120-day shutdown if the NOAA enforcement allegations were to hold. Brudzinski also granted the auction a series of disputed documents including “all e-mails” sent between offices at NOAA regarding the auction since 2004, according to J.C. Johns, the supervising attorney at the docketing center of the Coast Guard Administrative Law System in Baltimore. Virtually all the counts against the auction used computerized data filed with NOAA by the auction about the size and kinds of fish being landed, but alleged that the boats had violated administrative limits on volumes from different locations, places and times. Many boat owners have told the (Gloucester Daily) Times they were offered sweet deals or dropped prosecutions for “ratting out” the auction. Originally found in an earlier case file, the Livingston letter is part of the record in a federal district court action by the auction against an abortive June media campaign by NOAA law enforcement to compel the auction to close as punishment for an allegation that is being appealed. In July, U.S. District Court Judge Douglas Woodlock chastised the government for attempting impose punishment in a live case and issued an injunction against any additional NOAA efforts to try to shut down the auction until the case is settled. He impatiently scoffed at the claims of NOAA’s attorneys that the auction had technically violated a parole agreement when NOAA administrator Jane Lubchenco ruled against the business. To his challenge, the attorney for NOAA said the imposition of immediate sanctions against the auction was required because of “timing” and “perception.” “Timing? Not quite so,” Woodlock answered. “Getting the job done free of any review is not surely a goal to be supported. Why (should it be) that the agency gets its way even if it isn't justified?” Woodlock has not set a court date for arguments on the auction's appeal of the Lubchenco ruling, which upheld twice-reversed findings against the Gloucester business stemming from a 2005 accusation of underweighing a tote of cod. The trial judge initially broomed the case entirely, but Lubchenco's predecessor, acting as an appellant judge, reversed the finding and ordered a different judge to impose penalties. Brudzinski set Oct. 20 as the deadline for the release of documents to the auction, which has accused NOAA of carrying out a vendetta against it. That charge was primarily responsible for convincing the Inspector General of the Department of Commerce, the cabinet agency where NOAA is located, to begin an independent investigation of improper prosecutorial conduct. That exercise began in June in Massachusetts with a prong focused on activities in and around Gloucester and another aimed at New Bedford — the twin capitals of the industry fishing the Gulf of Maine and Georges Bank. Later, the IG investigators moved to New York, New Jersey, Pennsylvania and North Carolina. The investigation is believed to be continuing. It was already underway when on Friday, June 19, Andy Cohen, the agent in charge of the Gloucester office, which enforces federal fishery laws from the Canadian border through the Carolinas, began a high visibility media campaign based on the claim—which proved incorrect—that he was imposing a penalty on the auction and forcing it to close for 10 days. Responding to Judge Woodlock's full-disclosure order, Cohen admitted in a sworn affidavit that he briefed the The Boston Globe about the legal action aimed at closing the auction hours before the auction itself was notified. Cohen’s discussions with the Globe on the morning of Friday, June 19—on the impending effort to punish the business based on a disputed, 6-year old settlement agreement—came four hours before the faxed announcement was sent to the auction, and the effort began a full day earlier, according to the chronology of the events Cohen helped set in motion and that were laid out in his affidavit. Neither Cohen, nor the general counsel’s office returned phone calls yesterday. The U.S. Attorney’s office, which represents NOAA in its case against the auction, also did not respond to numerous calls. Attorneys for the auction declined comment. The letter to Rose Ciulla by special agent Livingston was written in response to her written request for clarification which was sent to NOAA’s then and still general counsel senior enforcement attorney Charles “Chuck” Juliand six weeks earlier. Much of the letter takes up procedures for seizing allegedly illegal catches, selling the disputed products and attempting to maintain a smoothly running auction around such seizures. In court filings, the auction claims to handle 85 percent of the fish volume landed in Gloucester—about 17 million to 22 million pounds a year—making it the “second largest seafood auction on the East Coast.” Livington addresses the issue of indemnification in a single paragraph in the middle of the two-page letter. “The auction, as a brokerage, provides a service in transferring ownership of fish from one individual to another, without taking title to the product,” he wrote. "Therefore, the auction has no liability in a violation committed by a fisherman, unless the auction employee commits a separate violation, or enters into a conspiracy with the violator. “A ‘hold harmless’ indemnification is therefore unnecessary during the normal course of business,” the NOAA special agent in charge informed the auction. Richard Gaines can be reached at rgaines@gloucestertimes.com. (Reprinted from the Gloucester Daily Times with the permission of Richard Gaines) |
