Wronged Fisherman Larry Yacubian Forced to Sue After Commerce Department Denies Claim
Federal lawmakers express outrage at NOAA
August 13, 2012 -- Captain Larry Yacubian, a former New Bedford, Massachusetts fishermen who lost his business, his boat, his license to fish - and literally the family farm - as a result of a Federal prosecution described by the United States Secretary of Commerce as having "overstepped the bounds of propriety and fairness..." is seeking to hold the National Oceanic and Atmospheric Administration (NOAA) accountable for its actions in a recently filed lawsuit in United States District Court for the District of Massachusetts. "By forcing them to face the consequences of their actions, I hope to deter the agency from continuing its egregious conduct and to remedy the harm NOAA has done to my family and me," said Captain Yacubian.
The public filing of the lawsuit follows the denial of Captain Yacubian's administrative claim. The Department of Commerce took the full sixth months allowed to consider the claim (after six months the claim was automatically deemed denied).
Members of Congress React
"Larry Yacubian lost his home and business because NOAA abused their power and was more motivated by money than justice," said Senator Scott Brown (R-Mass.). "Rather than come clean about the enforcement managers and attorneys who broke the public trust, NOAA has kept important documents secret. I have and will continue to push for answers. NOAA's outrageous conduct in this case continues today with Dr. Lubchenco's refusal to release all relevant information about NOAA's actions against Mr. Yacubian."
"It is an embarrassment to the U.S. government that Larry Yacubian has to return to the legal system to receive fair compensation," said Congressman Barney Frank (D-Mass.). "His case was cited by the Department of Commerce's Inspector General and Judge Swartwood as the quintessential example of mistreatment by NOAA Law Enforcement. While the government apologized and returned the fines to fishermen that were harmed that figure fell well short of covering their legal fees and lost earnings. The government admitted it did Mr. Yacubian and others harm, now it should provide restitution."
"Mr. Yacubian's case underscores the detrimental effects that mistreatment by NOAA's Office of Law Enforcement has had on our local fishermen. It is ridiculous that Mr. Yacubian is still being forced to fight for fair compensation, and he is right to pursue all possible measures for recourse," Congressman John Tierney (D-Mass.) said.
"The first step toward righting the unjust penalties and fines incurred by Massachusetts fishermen at the hands of poor leadership by the Commerce Department was the remittance of those penalties to some of the businesses and fishermen, like Captain Yacubian, who were treated unlawfully," said Congressman Bill Keating (D-Mass.). "It is unacceptable that, over one year later, many of these same individuals are still fighting for restitution."
Wrongdoing at NOAA
The lawsuit comes on the heels of the first investigation and report of Special Master Charles B. Swartwood, III, which found "overzealous, abusive or arbitrary conduct by NOAA personnel which unfairly impacted the outcome of several of the reviewed cases," including Captain Yacubian's. The conduct stemmed from "a lack of supervision, oversight, and standards in the work of NOAA law enforcement."
An investigation of NOAA uncovered not only abuses in the prosecutorial process, but also in the use of fines paid by fishermen into NOAA's Asset Forfeiture Fund. The Commerce Department Inspector General found that these funds were used to purchase "luxurious" undercover vessels, buy 202 vehicles for a staff of 172, and take trips around the world. After a June 2011 Senate hearing, Senator Scott Brown observed that "These enforcement officials went on a spending spree funded by the hardworking fishermen."
A second report by Special Master Swartwood "may contain crucial additional information about victims of abuse and injustice at the hands of NOAA Law Enforcement personnel," according to a letter sent to NOAA by Senator John Kerry (D-Mass.). The second Swartwood Report was submitted to Commerce Secretary John Bryson in April 2012. Both Senator Kerry and Senator Brown have written to NOAA, repeatedly asking when this second report will be released. NOAA has not responded.
Facts of Captain Yacubian's Case
(for additional detail please see the complaint filed in Federal court)
On June 14, 2000, NOAA Enforcement Attorney Charles Juliand issued a Notice of Violation and Assessment (NOVA) and a Notice of Permit Sanction (NOPS). The NOVA accused Captain Yacubian of fishing in a restricted area and making a false statement. Special Master Swartwood found that there is "credible evidence that money was NOAA's motivating objective" for prosecuting Captain Yacubian.
In response, Captain Yacubian requested a hearing before an Administrative Law Judge (ALJ) and began to marshal evidence in his defense. A key issue in the case was the reliability of plotting data from a system known as Boatracs, which was used to track Captain Yacubian in the restricted area. Seeking to prove that the system was unreliable, Captain Yacubian's counsel asked Massachusetts Environmental Police Officer, Captain Peter Hanlon, to take pictures of two vessels, the Theresa R II (which had no engine) and the Kathy Marie, both of which were secured to the north end of the State Pier in New Bedford, Massachusetts, but were plotted by Boatracs at a point that was 1.5 miles from their actual location.
But Officer Hanlon never testified in Captain Yacubian's case because, according to the Swartwood Report, the Special Agent in Charge at NOAA "put enough pressure on Captain Hanlon to request that he be excused from testifying." Had Captain Hanlon testified, his "testimony and documentation could have challenged [the reliability of the Boatracs systems.]" Without this testimony, Captain Yacubian lost his case before the ALJ.
A series of appeals culminated for Captain Yacubian in the United States District Court for the District of Massachusetts in Boston. There, Judge Nathaniel M. Gorton vacated the ALJ's finding of a false statement by Captain Yacubian due to a lack of evidence and vacated all penalties assessed as excessive. The case was remanded to NOAA, where a new ALJ, Parlen McKenna, reinstated the false statements charge, "completely ignor[ing] the District Court Judgment," according to Special Master Swartwood. ALJ McKenna, one month later, attended a workshop in Kuala Lumpur with the NOAA prosecuting attorneys, Charles Juliand and Mitch MacDonald. According to Special Master Swartwood, this "presented an actual conflict of interest," or, at the least, "created the appearance of a conflict.
In order to pay his mounting legal fees, Captain Yacubian attempted to sell his boat. But NOAA Enforcement Attorney Charles Juliand repeatedly blocked the sale. Ultimately, Captain Yacubian's wife was instead forced to sell her family farm in Westport, Massachusetts - a farm that had been in her family for generations. But even this was not enough. Captain Yacubian could not have his case heard in Federal court again until he repeated the same legal battles before NOAA, incurring the same legal fees.
As Special Master Swartwood explained, with Captain Yacubian out of resources, the agency "coerced a settlement with Lawrence M. Yacubian by refusing to adhere to Judge Gorton's order and by seeking and relying on a questionable ruling by ALJ McKenna." The settlement was oppressive, securing a civil penalty far greater than that initially assessed and revoking Captain Yacubian's operator permit, preventing him from returning to his career as a fisherman.
The law firms of Burns & Levinson, LLP in Boston, and Hunton & Williams, LLP in Washington, DC are representing Captain Yacubian in this case.