Audit Backs Commercial Fishermens’ Complaints Against NOAA/NMFS OLE
We’ll start by saying this site has nothing but respect for NOAA and their law enforcement officers. That said, OIG reports have a way of bringing bad decisions, made primarily on the back end but also on the front lines, into the public spotlight. The below report outlines the results of two recent Department of Commerce Inspector General investigations into the National Oceanic & Atmospheric Administration’s (NOAA) National Marine Fisheries Service Office of Law Enforcement (OLE) and General Counsel for Enforcement and Litigation (GCEL). Investigations into both NOAA components were initiated after members of Congress and elected state officials raised concerns about heavy handed and unfair enforcement of provisions of the Magnuson-Stevens Fishery Conservation and Management Act, particularly in NOAA’s Northeast Region. The OIG found faults in the agency’s enforcement process across the board, including heavy handed and unfair civil penalties and major accounting errors with its Asset Forfeiture Fund.
NOAA OLE’s enforcement process is near identical to the US Coast Guard’s, with NOAA even contracting USCG Administrative Law Judges to make final decisions on their civil penalty cases. A major difference between the two systems however is that NOAA keeps the fines and revenue from seized assets. Both OIG reports are damaging, not necessarily to the ALJ’s making the final decision, but to NOAA OLE’s criminal investigative standpoint on mostly civil fishery cases and the agency’s process for determining the amount to fine and how that money is later accounted for.
At least one member of Montauk, New York’s commercial fishing community said he feels vindicated by the findings of recent investigations into the practices of the National Marine Fisheries Service’s enforcement division — vindicated, angry, and “guardedly optimistic.” Capt. Dave Aripotch was reached on his dragger last week while it was towing for squid. “I could go catch whiting, but they’re getting a little cheap. There’s a bunch of Canadian whiting hitting the market,” he explained before launching into a minor tirade about recent disclosures about enforcement excesses within the National Marine Fisheries Service. “Hell, yes, I’m going to go after them to get my $61,000 back, but how do I get paid for the four-month tie-up?” said Captain Aripotch, the owner and operator of a Montauk-based dragger, the Caitlin Mairead. In 2001, he was fined $61,000 for having false logbook entries, a civil offense. In addition to the fine, the punishment meted out by the fisheries service required that his boat remain at the dock for four months. He was not permitted to use the downtime for maintenance. He was not permitted to go aboard. After having 10 years’ worth of his logbooks scrutinized, Captain Aripotch was charged with four counts of under-reporting his catches, the discrepancy between his logbook entries and actual landings adding up to about 3,000 pounds over two years beginning in 1996. “They wanted $85,000 and a six-month tie-up,” he said. The fisherman said he decided to admit guilt and settle because “if you fought it, you wound up paying the full price. Should you decide not to settle, you were given 30 days to request a hearing before a Coast Guard administrative law judge. The judge is not bound by the government’s settlement offer and you can wind up with a fine of up to $110,000 on each count, the statutory maximum,” Captain Aripotch said. He added that government prosecutors offered reduced punishment if fishermen provided the names of others they knew or suspected were breaking the law.
The fact that the enforcement wing of the regional office of the fisheries service has compiled a 90-percent conviction rate over the past decade, acbe surprising, Captain Aripotch said, given the agency’s hardball tactics. Industry complaints about hardball tactics and overharsh punishments are not new, but it was only after six members of Congress demanded an investigation that the matter was looked into. Under pressure, at this time last year, Jane Lubchenco, the administrator of the National Oceanic and Atmospheric Administration, asked the Commerce Department’s inspector general’s office to look into the complaints. At the time, Andrew Cohen, a special agent in charge of NOAA’s northeast office of law enforcement, said he welcomed the scrutiny because it would reveal that his office was “professional and evenhanded. The vast majority are in compliance and they are upset with those who are not in compliance and they’re happy with the job we’re doing,” Mr. Cohen was reported as saying about fishermen. “We don’t feel defensive. We actually feel like we’re part of the community.”
Last month the initial findings began to trickle out. Mr. Cohen is no longer at his post. Audits conducted by the inspector general’s office found that fines in the Northeast region were substantially higher — as much as 500 percent in some cases — than elsewhere in the country. The audits also found that a portion of $96 million in fines, or “forfeiture funds,” had been used for unauthorized purchases such as cars (202), boats (22), including one that cost $300,000, and international travel, according to published reports. The investigation concluded that regional offices were acting autonomously in imposing fines that were way out of line with those levied in other regions. On July 12, it was revealed that the investigation found that the fines were also used to pay the salaries of the Coast Guard judges who heard the cases in question. The same day, Senator Charles Schumer of New York called for NOAA, which is the fisheries service’s parent agency, to sell all unauthorized assets. The proceeds, he said, should be used to reimburse fishermen found to have been excessively fined, and to otherwise help fishermen in the Northeast whose fishing seasons were cut short. Mr. Schumer called the forfeiture fund “a slush fund for excess.”
The revelations caused Representative Barney Frank of Massachusetts to call for the resignation of Ms. Lubchenco. Last week, however, Mr. Frank said he took back his demand after being promised that the White House was taking his complaints seriously. The Senate Appropriations Committee has approved a measure that would freeze the fisheries enforcement fund until a full audit is produced. The investigators have only looked at the years 2004 through 2009, although Captain Aripotch and others said that heavy-handed enforcement had been the norm for much longer. Representative John Tierney of Massachusetts said there was a “perverse incentive” for NOAA police to fine fishermen since they then control the money that is collected.
Captain Aripotch said he felt a degree of optimism because the story was out. There have been recent increases in the government’s estimates of some Northeastern fish populations — evidence for which fishermen have been trying to provide the fisheries service for years. That, combined with the recent findings about enforcement, he said, might improve relations between fishermen and managers.
