September 25, 2010
NOAA's Law Enforcement Behaving BadlyBy Mike Johnson
Almost every one of the 172 law enforcement officers of the National Oceanographic and Atmospheric Administration's (NOAA's) Fisheries Service has a take-home vehicle -- sort of, but not exactly, a perk. The cars are not part of the job description; they are a derived benefit, bought and paid for with the monies gathered by punishing fishermen.
Does NOAA's OLE (Office of Law Enforcement) policy allow take-home cars? Not exactly. To be precise, there is no policy. Does NOAA's OLE policy permit the purchase of vehicles outright? No; policy is to lease or rent. How, then, were they allowed to buy some two hundred cars ($4.6M)? Lack of adult supervision.
The people we count on to protect our industry, preserve our environment, and manage our fisheries cannot even manage themselves.
OLE policy does not permit vessel purchases, but OLE has purchased 22 vessels at a cost of $2.7M using funds from fines and seizures. The vessels are used for random boardings of working fishing boats. Probable cause? How quaint.
International travel? Nice work if you can get it. Fishermen's fines paid for some $600K of international travel expenses, $500K of which was not covered by NOAA's OLE policy.
Backup is provided in a scathing July 2010 Inspector General (IG) report on the NOAA law enforcement Asset Forfeiture Fund (AFF), made up of the money realized by fines and forfeitures from fishermen. From January 2005 through June 2009, the AFF received some $96M, spent $49M, and had a balance of $8.4M. My arithmetic suggests that $40M is missing. The IG's report describes NOAA's management of the AFF as an "abstract concept" and as "susceptible to both error and abuse." You think?
The IG relates industry's complaints that "fines were excessive, constituting a form of bounty, partly because of NOAA's ability to retain and use proceeds from its enforcement cases." The potential certainly exists for OLE agents to inflate fines so as to grow the AFF faster and to treat the AFF as a perquisite slush fund.
As described in a January 2010 IG Report, fisheries management has not only a police force, but also an office of prosecutors, the General Counsel for Enforcement and Litigation (GCEL), and their own court system, administrative but powerful -- judges, no juries, no meaningful appeal, and a presumption of guilt. The great American Star Chamber, not unlike many other regulatory offices in our benevolent government, except for the lack of management oversight endemic within NOAA.
It cannot be shown that the NOAA OLE agents and the GCEL prosecutors proactively engage in expanding the AFF. Anecdotal evidence abounds of threats, coercions, extortion, and other hardball interrogation and collection techniques, but these are not evidence. Still, the IG found several anecdotes sufficiently credible to include in his January report. Watch the linked video of a fisherman testifying before a congressional subcommittee. This is sworn testimony, much stronger than a simple anecdote. Early in the tape, the fisherman tells of being grilled on his personal finances. As the tape goes on, the fisherman describes being fined some $27K and being threatened -- coerced -- with an increase to $125K if he insisted on going before the NOAA administrative judge. Further into his testimony, the fisherman relates an incident when he and one of his captains were offered full relief from a fine -- extortion -- if they would drop the dime on another target of the OLE.
In 2006, a Rhode Island fisherman's boat was randomly boarded by OLE agents. They found $2,500 worth of monkfish for which he did not have a permit. They seized the fish and fined the fisherman $50K. Twenty dollars per pound seems excessive to me, but what do I know? I'm just a rocket scientist. The fisherman lost his appeal and had to pay the fine. The government refused his request for payment terms and insisted on payment in full, saying, "[H]e has more than enough equity in his residence and (probably) in his vessels to secure a loan [to cover his fine]." The government would have the fisherman mortgage his home and sell his vessels -- his means of livelihood -- to get paid quickly. Was our government running out of money? Or was the AFF slush fund in need of a transfusion?
The NOAA law enforcement structure employs a consultant to perform financial background checks and to appear as an expert witness at trial. This in and of itself troubles me, but there's more. The consultant has attended international fishing law enforcement meetings with OLE and GCEL personnel on a least two occasions, Kuala Lumpur (2005) and Norway (2008). The AFF paid for the OLE and GCEL attendees. It is unclear if the AFF also picked up the tab for the consultant.
I have trouble with the government seeking private financial information in setting their fines. I am more troubled by the appearance that fines are set towards the top limit of a victim's ability to pay.
Overly vigorous enforcement of the fisheries regulations is not a partisan problem. It goes back to Clinton's administration and perhaps farther.
Obama's anointed head of NOAA, Dr. Lubchenco, asked the IG to investigate the problem at the behest of the Massachusetts congressional delegation. NOAA has stated that they take the IG reports seriously and are looking forward, not backwards. This translates into no plans for disciplining the overly zealous enforcers and no plans for redress of the victims. The fines drive fishermen out of business, and that is consistent with Dr. Lubchenco's goal of industry consolidation.
NOAA and Dr. Lubchenco conducted a National Enforcement Summit in August. The acting Director of OLE gave a presentation at the summit based on Appendix 6 to Dr. Lubchenco's March 2010 response to the IG. The acting director will be the person to implement any cultural changes directed by upper management. His presentation was pure bureaucratese -- you know, like he took a paragraph from the Lewis Carroll column, one from George Orwell, and one from Saul Alinsky. The subject of the presentation was -- drum roll, please -- a plan to develop a procedure to identify priorities. If that does not send a tingle up your leg, the priorities will be identified by October 2011. Timely. And there is no indication that the priorities will change from the current priority of fining the fishermen into oblivion.
Dr. Lubchenco will not be replaced by Obama, so Obama must be voted out of office before serious reforms will occur.
Of longer-term concern is the march of big government. We have discussed a presumption of guilt, search and seizure without probable cause, and punishment that fits the pocketbook, not the crime. The ugly truth is that these counter-constitutional manifestations of big government are all legal under our Constitution. The lazy and gutless Congress writes sloppy laws, and the ever-encroaching Executive takes full advantage by filling in the blanks with autocratic regulations. "Vote the bums out" may slow the process, but it will not resolve the root cause. We need to revisit the Constitution to, among other things, limit the carte blanche rulemaking ability of the two branches of Congress and to include provisions that regulatory and other bureaucracies are formulated within the principles of the Constitution.
Mike Johnson is a concerned citizen, a small-government conservative, and a live-free-or-die resident of New Hampshire. E-mail: firstname.lastname@example.org