NWSEO responds to allegations that NOAA enforcement attorneys
in the Northeast have engaged in selective or vindictive prosecution
or have assessed excessive penalties
As a result of a February 2009 letter of complaint from several Massachusetts state lawmakers (including one whose law firm has defended the fishing industry in NOAA enforcement proceedings), and a subsequent letter from several members of the Massachusetts Congressional delegation complaining of “excessive penalties” and “large fines” assessed against commercial fishing interests who have broken the law, the Department of Commerce Inspector General initiated an investigation into NOAA’s
Fisheries Enforcement Programs. This review is now focused on the professional conduct of three enforcement attorneys employed by NOAA in Gloucester who are represented by NWSEO. For the following reasons, the allegations under investigation are baseless:
The NOAA enforcement attorneys in the Northeast Region have been following agency policy rather than acting as rogue agents as has been alleged by disgruntledelements of the commercial fishing industry who have been found in violation of the
Magnuson-Stevens Fishery Conservation Act, and their defense lawyers.
- The enforcement attorneys do not have unfettered discretion to determine what penalties to assess for violations of the Act. They follow a publically available penalty schedule established by NOAA and can be found at http://www.gc.noaa.gov/docs.html#gcel
- Their enforcement activities have been reviewed by their supervisors in Washington, DC through bi-weekly national telephone calls and through quarterly written reports.
- Since 2002, these three enforcement attorneys have received 38 performance awards, totaling over $44,000, for their efforts in enforcement actions. This has included awards for cases in which their conduct is now under investigation, such as the multiple enforcement actions against the Gloucester Seafood Display Auction.
Congress itself has authorized, by statute, what the fishing industry - and some Members of Congress - now characterize as “excessive penalties.”
- The Magnuson-Stevens Act, 16 U.S.C. § 1858, authorizes up to a $140,000 fine for a single violation of fishery regulations, or for every day of a continuing violation. Congress raised this penalty from $25,000 to $100,000 per violation in 1990, and it is now indexed for inflation.
- Congress has given NOAA wide latitude in assessing a penalty in a particular case, stating only that it should “take into account the nature, circumstances, extent, and gravity of the prohibited act. . . the degree of culpability, any history of prior offense, and such other matters as justice may require.” Congress should not grant such broad discretion to an agency and then complain when it is exercised.
If the fines and penalties in the Northeast Region are disproportionate or inconsistent with the assessments in other regions, it may be because the value of the fisheries in the NE Region are greater than in other regions, and because NOAA
management has established different penalty schedules for each region.
- In his January, 2010 report, the Inspector General claims that initial fine assessments in the Northeast Region are two-and-a-half times greater than in any other region. This analysis is faulty on its face; according to the data in the Report, at 14, the Alaska Region has settled its cases for a quarter of a million dollars more than the fines originally sought over the five year period examined, which is an impossibility. The NOAA Office of General Counsel has informed Rep. Bordallo that it has “been unable to replicate the comparison provided by the Inspector General in his report, even using the raw data that was provided to the Inspector General.”
- The Inspector General’s analysis does not take into account the varying number of permitted fishermen in each region; that the degree of regulation varies with each region depending on the species and health of the fishery; or that the total value of the catch that lands in ports in the Northeast region exceeds that of any other region.
- Assuming the that the enforcement attorneys in the Northeast Region assessed greater fines and penalties than their colleagues in other regions, it may be because the penalty schedules established by NOAA management and which are relied upon by the enforcement attorneys vary by region,and the penalty schedule for the Northeast region establishes a significantly higher range of fines and penalties for similar violationswhen compared to other regions. http://www.gc.noaa.gov/docs.html#gcel.
- Greater fines and penalties are warranted in the Northeast Region because the value of some of the fisheries (the catch) is greater than in other regions, and there needs to be a greater financial disincentive to violate the law.
Since 1995, NOAA enforcement attorneys in Gloucester have been calling upon management of the agency to replace an antiquated database (the “Enforcement Management Information System”) so that they could have ready access to the
penalties assessed or settlements agreed to in other cases, in order to ensure a degree of consistency among similar cases and offenders,
To the extent that there has been any inconsistent treatment of similar cases, this is not the fault of individual enforcement attorneys. The Inspector General found that the failure to provide the enforcement attorneys with reliable data and an effective information system “reflects a lack of appropriate attention by NMFS and NOAA leadership to provide effective oversight of the agency’s enforcement program.”
Rather than being “excessive,” the penalties assessed in the Northeast Region may be too low to ensure compliance with the Act, and may result in a total collapse of the fisheries stocks in the Northeast.
- A recent scientific report demonstrates that, despite the alleged “overzealous” enforcement efforts, the penalties assessed in the Northeast region are not large enough to deter systemic over-fishing. D. King and J. Sutinen, “Rational Noncompliance and the Liquidation of Northeast Groundfish Resources,” Marine Policy 34:7-21 (2009).
- “The deterrence effect of the existing enforcement system in the NEGF fishery is weak because economic gains from violating fishing regulations are nearly five times the economic value of expected penalties. For example, by fishing illegally a midsize trawler in the NEGF fishery is estimated to increase expected earnings per trip by $5,500. Fishing violations have a 32.5% probability of being detected, and enforcement data
- show that a detected violation has a 33.1% probability of being prosecuted and resulting in a penalty. The average penalty assessed for a violation is $20,455 and the settlement amount averages 53% of the assessed penalty. The expected cost of a violation, therefore, is $1,166. When compared with the illegal gain, the economic incentive not to comply is $4,334 per trip.”
- According to King and Sutinen, the percent of total harvest taken illegally in the Northeast region has risen from estimates of 6% to 14% in the 1980s to 12% to 24% today.
- According to King and Sutinen, “one third of fishermen in the fishery believe illegal fishing is already significant enough to prevent them from ever benefitting from fish stock rebuilding programs. From the perspective of these fishermen, the most ‘sustainable’ strategy is to earn as much income as possible from fishing as soon as possible before the fishery collapse or is shut down.”
The Inspector General’s investigation into the enforcement attorneys’ professional conduct is biased and lacks integrity because he is under pressure to appease elected officials and their constituents by finding scapegoats for unpopular fisheries policies
approved by Congress and adopted by successive Administrations.
- On three separate occasions, investigators from the Office of the Inspector General told two of the enforcement attorneys that there was an unusual level of interest from Congress, unprecedented political interest in the investigation, or “a lot of outside pressure.”
- One enforcement attorney was told by an investigator that if the Inspector General did not find wrongdoing, the industry would claim that the investigation was a “whitewash.”
- State Representative Ann-Margaret Ferrante, whose law firm has represented fishing interests in Gloucester, is one of the state officials whose letter of complaint to the Massachusetts Congressional delegation was responsible for the initiation of this investigation. Not only has Rep. Ferrante misused her elected office for the benefit of her private clients, she previously made false allegations against one of the enforcement attorneys who she accused of threatening, during a July 2009 meeting, members of
- the industry who cooperated with the IG’s investigation. The Inspector General rejected this complaint when the notes of the meeting taken by Rep. Ferrante’s own secretary failed to corroborate her allegations.
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