A family with a long and law-abiding fishing history has appealed an administrative judge's ruling to Dr. Jane Lubchenco, the head of the National Oceanic and Atmospheric Administration — even though the ruling suspended much of the $270,000 fine and one-year shutdown of their two-boat business sought by NOAA enforcement for technical reporting violations.
The fishermen, who drew salaries of between $33,000 and $66,000 a year even after the ruling faced a fine of $54,000.
Judge Devine suspended all but $54,000 of the fine and one month of the shutdown for the two boats sought by Gloucester-based NOAA attorney Charles Juliand in the case. In his finding, Devine wrote on Dec. 8 that the level of penalties sought by Juliand did not fit the violations, which were oversights and without motive and did not benefit the family.
Still, Stephen Ouellette, the Gloucester attorney who specializes in fishery issues, said he advised the Axelssons to appeal to Jane Lubchenco, the NOAA administrator who serves as the appellate authority in the administrative law system. That's because of the fine that remained even in Devine's pared-down ruling — and the potential for the rest of the $270,000 fine and shutdown to be levied should the government find a way to allege additional violations.
Read the complete story at The Gloucester Daily Times.
EDITOR'S NOTE:
The decision in this case is made available in its entirety on Saving Seafood so that readers might make up their own minds.
Here are the facts taken directly from the decision text.
Attorney Charles Juliand appeared on behalf of NOAA.
Mr. Juliand, arguing for NOAA asserted that if after "consideration of a respondent's ability to pay" it is determined that "bankruptcy or other discontinuation of the respondent's business" might occur, that does not preclude NOAA from imposing such a bankrupting or business-destroying penalty.
The decision notes numerous instances where fishing reports were filed late. Specifically, the judge determined that the Respondents committed twenty-seven separate violations of the Magnuston-Stevens Act by failing to timely fine herring catch and fishing trip reports.
However, the judge determined that "The reporting violations did not result in over-fishing nor did Respondents obtain increased economic gains. The evidence shows Respondents negligently failed to accurately comply with the regulations but did not intentionally attempt to circumvent fishery limits."
The judge found that "While H & L Axelsson has substantial assets on paper, its repeated net profit losses during the last several years have resulted in financial difficulties and its main equity exist in vessels which have very little actual market value. H&L Axellson's employees, to include Respondents Lars and Dan Axelsson, have reported modest incomes derived from commercial fishing."
NOAA's counsel Mr. Juliand noted that "neither Lars nor Dan Axellson have sufficient cash reserves on-hand to pay the penalty" that NOAA requested, but he stated that "the penalties were assessed jointly and severally and H & L Axelsson could pay the entire fine."
Mr. Juliand asserted that "Even if the paying of the penalty may result in the bankruptcy of Respondents, consideration of a respondent's ability to pay does not preclude an assessment of a penalty in an amount that would cause or contribute to the bankruptcy or other discontinuation of the respondent's business. Attorney Juliand made the case that the Agency is correct that per the regulations, a penalty that bankrupts a respondent does not necessarily preclude the imposition of such a penalty.
Read the earlier story on this matter