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He became a poster child for the confused prosecution of fishermen.
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Rockport commercial fisherman Bill Lee made a personal appeal yesterday to the top official for federal fisheries law enforcement for peace, reason and better legal writing to prevent the reoccurrence of an ongoing string of fines for technical violations.
Lee met for about 40 minutes with Dale Jones, the director of law enforcement for fisheries, at the Silver Spring, Md., headquarters of the National Oceanic and Atmos- pheric Administration, the parent agency of the National Marine Fisheries Service. James Balsiger, NMFS’ acting administrator, who facilitated the meeting, was present for most of the time that Lee spent in Jones’ office.
Richard Mannix, a NMFS lawyer, was also present for the meeting. Lee called the civil cases based on catching yellowtail flounder in 2004-06 without a letter of authorization a ‘black eye’ for the National Marine Fisheries Service, and said the hard feelings and prosecutions based on the misunderstood letter drove the fishermen and NMFS into a kind of cold war with each other.
“The letter of authorization happened; it just can't happen again,” Lee said in a telephone interview soon after the meeting ended.
Jones did not return phone calls. Balsiger did. He called the meeting “a step” in the direction of “improved communications.” He deferred to Jones on law enforcement issues. ‘We were at war, and now we have a truce,’ said Lee, who is a well-known fisherman and professional underwater photographer. He happened into the role of unofficial ombudsman for the fishing fleet during a frenetic winter as a boat sunk, charges were levied for violations based on the letter, NMFS came under pressure to communicate more effectively, and lawmakers petitioned for relief from prosecutorial misconduct.
In early January, the fishing vessel Patriot sank some 15 miles from its Gloucester port, killing the crew of two. In the immediate aftermath of the sinking, the Coast Guard conceded the start of its search and rescue effort was delayed in part because an inability to quickly access the VMS or ‘vessel monitoring system’ that is a primary tool for locating fishing boats in illegal activities and a secondary resource in search-and-rescue.
Lee was one of many fishermen to have seen first hand how effectively NMFS and its contracted law enforcement partner used VMS to find violators. He also became a poster child for the confused prosecution of fishermen for not having a yellowtail authorization letter.
In 2006, his Ocean Reporter was boarded by the Coast Guard and written up for having an illegal fillet of a flounder and having caught flounder without having the requisite authorization letter, which was available at no cost and could be obtained by making a call to NMFS regional offices in Gloucester.
The violations were negated months later, after the Coast Guard conceded the yellowtail authorization letter had been rescinded and the fillet Lee had made from a mangled fish had always been legal.
Also last winter, the U.S. Inspector General chastised NMFS for a failure to mount an effective communications operation in its tense relations with the fishermen. And the leaders of the Massachusetts Legislature petitioned Congress for relief from ‘vindictive’ and ‘overzealous’ prosecutions. Last week, Lee became at least the sixth fisherman to receive a notice of violation and assessment of a $19,588 fine for other catches without the authorization letter and sale of the technically illegal fish through the Gloucester Seafood Display Auction.
As many as 24 fishing boats are expected to face similar charges to those levied against Lee in a pattern that is clearly aimed directly at the auction.
NMFS’ enforcement lawyer Charles Juliand, who prosecuted the previous case against the auction, which remains unresolved and headed into the federal court system, denied any improprieties. “We don’t do anything improper around here,” he said in a telephone interview. “I have nothing personal against (the auction). It’s nothing personal. I’m hoping everybody’s clean. You look at someone, if there’s nothing there, we’re happy.”
The hearing judge broomed Juliand’s entire case, but NMFS appealed to the Secretary of Commerce, who directed a finding against the auction. A second judge slashed the penalties dramatically and last month, NOAA administrator Jane Lubchenco declined to alter the finding. The Ciulla family that owns the auction is appealing from the Coast Guard's administrative law system into the federal court system.
NMFS contracts with the Coast Guard to use its administrative law system for its cases for violations of the Magnuson-Stevens Act. Lee said the first thing he told Jones and Balsiger was that he was not in Silver Spring to advocate for himself, but for the industry.
The Gloucester auction in February was charged with 59 counts of brokering illegally caught fish, charges that came with a $335,200 file and an order for a 120-day closing. That case was brought by Diedre Casey, a colleague of Juliand’s. The majority of the charges are built on the theory that otherwise legal catches were illegal because the boat did not have a valid yellowtail authorization letter
Lee said he proposed that NMFS try to publish its regulations in more comprehensible language. He said he advised the officials that with a radically new business and regulatory model scheduled for implementation in June 2010, a system based on voluntary fishing cooperatives known as sectors, the need for clarity was heightened.
“With sectors coming,” he said by phone, “they have to get it right.” “If they make a mistake, fishermen suffer,” Lee added. “If fishermen make a mistake, fishermen suffer.”
[Copyright 2009 Gloucester Daily Times (Massachusetts)] By Richard Gaines - April 30, 2009
