O P I N I O N

NOAA vs. The Codfather

by Niaz Dorry, NAMA

At the time of this writing the sentencing of Carlos Rafael – who self identifies as the Codfather – was scheduled for Monday and Tuesday, September 25th & 26th, 2017. The judge may have already decided on a fine and jail time in regards to the criminal charges brought against him during the IRS-led sting operation last year. There is another sentence coming, though, that of NOAA’s decision about what to do with Carlos Rafael’s fishing assets – if anything. Question is whether NOAA will let Mr. Rafael get away with a slap on the wrist or will the agency do the right thing.

If you haven’t yet heard about the case of the biggest permit owner, fleet operator, and controller of the seafood system in the North East, I encourage you to check out this in-depth piece in Mother Jones Magazine and this short piece on NPR’s Morning Edition.

Although Mr. Rafael has admitted to fisheries violations going back 30 years, the crimes he was arrested for last year involve more recent incidences. He has pled guilty to 27 felony counts including misreporting fish, quota manipulations, money laundering, and more. Thirteen of his groundfish permits – what he needs to catch fish like Atlantic cod, haddock, flounders, pollock, etc. – are involved in his illegal activities and are actually still fishing. Yes. You read that right. More on that below.

Even though he has a longer trail of violations, what makes his recent crimes interesting is they occurred during the period of time that the Catch Share policy for New England groundfish has been in effect. Since the 2010 implementation of Catch Shares, Mr. Rafael has been able to amass more and more control of the region’s groundfish quota and permits because the system adopted by NOAA set no boundaries for how much power any one entity could have. From the NOAA chart below you can see that fewer entities were controlling more of the groundfish pie as time under Catch Shares went on. By 2013 just 11 entities controlled 50% of all groundfish revenue. In fact, by 2013 the codfather alone controlled 25%.

NOAA is complicit in Mr. Rafael’s crimes because they made some huge mistakes along the way. As I lay out below, they have a chance to redeem themselves. But first, let’s walk through what NOAA did or didn't do that brings us to today.

First, NOAA’s decision to not put any limits in place around how much anyone entity can control was in direct rejection of public comments and fishermen’s advice that such a free-for-anyone-who-can-pay-for-it approach to quota management would put the fishery in the hands of a few, and some of those few may have other priorities than the health of the ocean and all fishermen.

Instead we heard from NOAA, some in the environmental community, and others in the fishing industry who were positioning themselves to get a big piece of a newly privatized fishery was that who owns the rights to fish is not critical to achieving ecological outcomes. As long as someone owns those rights we are to believe that there is an implicit guarantee that they’ll be better stewards of the fish they “own.” Yeah... right...

NOAA could’ve fixed things by adopting tight restrictions around consolidation in their recent ruling to amend the Catch Share policies. They didn’t. They left the door wide open for others like Mr. Rafael – and Rafael himself – to keep amassing power at the expense of the fish and fishermen.

Once Mr. Rafael was arrested, NOAA could’ve suspended all his fishing rights, if not taken them away all together. They have taken similar measures and sometimes more for infractions that pale in comparison of what Mr. Rafael admitted to committing. But NOAA had an out: they needed proof.

When Mr. Rafael pled guilty to his crimes, NOAA had their proof. But they didn’t stop his permits from fishing. Believe it or not, the 13 permits implicated in the IRS sting operation are still owned by Mr. Rafael AND still fishing under the Sector 9 of the Catch Share program.

NOAA has one more opportunity to save face, this time as part of Mr. Rafael’s sentencing. Hopefully, the court will ensure maximum fine and jail time. As for NOAA’s responsibility, nothing short of complete seizure of Mr. Rafael’s assets are acceptable if NOAA expects fishermen – and the rest of us – to take their authority and concern for the ocean seriously.

In our victim’s statement submitted to the court two weeks ago, in addition to maximum fine and jail time, we made the following restitution recommendations that NOAA needs to take to heart:

Mr. Rafael should be barred from any future involvement in fisheries.

Restitution of all Mr. Rafael’s assets will be considered on a New England-wide basis, not just New Bedford. The impact and harm caused by his crimes affects every fisherman who has held a groundfish and/or scallop permit and therefore they should receive restitution.

Restitution of Mr. Rafael’s groundfish quota should exclude any entities currently controlling an excessive share of groundfish quota (2% or higher for any species identified under the Northeast multispecies fisheries management plan).

Restitution of Mr. Rafael’s groundfish quota and scallop permits should provide a right-of-first-refusal to the fishermen who were put out of business or effectively removed from the groundfish and scallop fisheries due to Mr. Rafael's actions.

Of course, we would also like Congress to prohibit any new Catch Share policies during their Fish Bill reauthorization deliberations, and in the meanwhile NOAA to stop any Catch Share programs that lead to excessive consolidation and the privatization of our public resource.

Nothing short of these actions will be enough. NOAA can save face, if they are ready to be bold and brave.

Are they up for it? I’m not sure. Maybe you can give them a nudge by sending an email directly to the head of NOAA, Chris Oliver.

A couple of final thoughts:

To those in the fishing industry who believe we shouldn’t attack another fisherman, keep in mind that Mr. Rafael is no more a fisherman at this point than Don Tyson is a chicken farmer. They have both used their power, privilege, and money to control their respective industries and the policies that are supposed to keep them in check. Sure each may contribute to their respective community’s non-profit organizations and do what appears to show they care, but it doesn't change the stronghold they have on the system.

And, finally, to the environmental community who thinks everything will be fine as long as we just have more monitors... Really? Yes, monitors may address some issues of misreporting, which is important. But they do not address the root causes of a too-big-to-fail entity that was emboldened by policy and dominated the system. Until we hold the policies as equally accountable as those who abuse them, it won’t matter how much monitoring we put in place. Unless of course we want to monitor excessive consolidation, power, and control. In which case, we are all for it.