November 1, 2017 (Saving Seafood) — The government prosecution in the Carlos Rafael case has filed notice that they are appealing Judge Young’s decision on forfeiture to the United States Court of Appeals for the First Circuit, as well as Judge Young’s memorandum denying the government’s motion for reconsideration.
For more information on the Carlos Rafael verdict:
Judge denies feds’ motion for Carlos Rafael to forfeit more vessels, permits
October 26, 2017 (Saving Seafood) — The horrific practice of shark finning has been illegal in U.S. waters since 2000, and is vehemently opposed by all U.S. shark fisheries and participants in those fisheries. The Office of Law Enforcement at NOAA Fisheries is enforcing the current finning prohibition; US fishermen are in full compliance with the law. There are very few incidents of this terrible practice on record in the United States.
On August 1, 2017, U.S. Senator Dan Sullivan (R-Alaska) chaired a hearing of the Senate Commerce, Science and Transportation Subcommittee on Oceans, Atmosphere, Fisheries, & Coast Guard regarding the reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). During the hearing, Senator Cory Booker (D-New Jersey) asked Chris Oliver, NOAA Assistant Administrator for Fisheries and head of the National Marine Fisheries Service, to keep him informed on NOAA investigations of shark finning allegations. Sen. Booker introduced a bill earlier this year designed to prevent people from possessing or selling shark fins in America.
Leading up to his question, Senator Booker stated the following. “You know that shark finning was first outlawed in U.S. waters in 2000. And a loophole in that original law was closed by the Shark Conservation Act of 2009. I recently asked your office how many shark-finning investigations NOAA has opened since January 1, 2010. I was shocked to find out that since 2010, NOAA has investigated over 500 incidences of alleged shark finning. As of April, there were seven shark finning cases that were open but not yet charged.”
Sen. Booker’s statement, that NOAA advised him of over 500 instances of alleged shark finning immediately sparked incredulity in the commercial fishing industry, because in June 2016, in an article by Ally Rogers, a communications specialist for NOAA’s Office of Law Enforcement (OLE), entitled OLE Working Hard To Identify, Prevent Incidents of Shark Finning, Illegal Shark Fishing, NOAA stated that during the ten year period from 2006-2016, 40% of the “nearly 80 shark-related incidents” referred to “fins that were not naturally attached to the shark carcasses.” That works out to fewer than 32 incidents involving shark fins in a decade, or on average no more than 3.16 per year.
Saving Seafood asked NOAA how it could be that the agency told Senator Booker that they had “investigated over 500 incidences of alleged shark finning” in the past 7.5 years.
While the information NOAA provided in response to Senator Booker’s staff was not entirely inaccurate, a footnote was attached to the wrong sentence, making it possible for a reader to misinterpret the over-inclusive information provided.
In the NOAA case management system, there were 526 reports that contained the word “shark” in some form or another. This could include a number of legal and illegal activities including inspections, boardings, a legal or illegal take of a shark, by-catch, harvesting sharks during a closed season, and unpermitted shark fishing activities, to name a few. Any report that came into NOAA with the word “shark” in it, would have appeared as an incident in the numbers provided to Senator Booker.
In fact, of those 526 reports, only 85 were incidents that referred to “shark fins” or “shark finning”. Of those 85 incidents, only 26 resulted in charges that could be a criminal complaint, a summary settlement, a written warning, or a Notice of Violation and Assessment (NOVA). So, in the past 7.5 years, with an annual average of 2.6 million pounds landed sustainably from Federally managed shark fisheries, there has been on average just 3.5 incidents per year resulting in charges. And that is consistent with the earlier data.
In 2016, just ahead of the Discovery Channel’s “Shark Week,” Senator Booker, and House Foreign Affairs Committee Chairman Ed Royce (R-California) joined with actor Morgan Freeman and the environmental group Oceana to introduce the Shark Fin Trade Elimination Act (S. 793/H.R. 1456, in the current Congress). The ban is opposed by leading shark scientists David Shiffman of Simon Fraser University in British Columbia and Robert Hueter, Director of the Center for Shark Research at Mote Marine Laboratory in Sarasota, Florida. Delegate Gregorio Kilili Camacho Sablan (I- Northern Mariana Islands), and Senator Shelley Moore Capito (R-West Virginia) are also original co-sponsors.
Oceana, the Humane Society International, Wild Aid, and COARE have used the inaccurate information in support of the shark fin ban, erroneously arguing that even “in U.S. waters, our anti-finning law does not effectively stop shark finning.” In a recent blog post, Lora Snyder, Campaign Director at Oceana, Iris Ho, Wildlife Program Manager at Humane Society International, Peter Knights, Executive Director at WildAid and Christopher Chin, Executive Director at COARE, reference “government records cited during recent Congressional testimony” to make the claim that “more than 500 alleged shark finning incidents… have taken place in U.S. waters since January 2010.” They go on to extrapolate from that number, stating “That is approximately five cases every month.”
In fact, over the past decade, there have been fewer than four incidents per year.
Oceana hired The McGrath Group, headed by six-term former Congressman and President of the National Republican Club Ray McGrath to lobby for the bills, spending $20,000 with the GOP firm between July 1 and Sept 31 this year.
October 20, 2017 — SEAFOOD NEWS — What happens next with Carlos Rafael’s fishing permits for all 13 vessels, including those that were not forfeited under the courts order, will be determined in a civil proceeding by NOAA with an administrative law judge.
The criminal proceeding led to forfeit of 34 permits. NOAA will have to address what will be done with these. But the remaining nine vessels owned by Rafael have dozens, perhaps over 100 individual fishing permits. If NOAA revokes these permits in an administrative proceeding, the value of the vessels themselves will fall substantially.
Prior precedent, and a full review of NOAA enforcement actions in 2012 by a Special Master, Charles Swartwood, suggests that NOAA is fully entitled to permanently revoke all fishing permits associated with the 13 vessels where Carlos Rafael has pled guilty to deliberately falsifying catch records.
Prior to Rafael, the largest fisheries fraud case in New England involved James and Peter Spalt.
In 1995 NOAA charged that the two brothers directed the illegal fishing on the five vessels they owned, purchased the illegally harvested fish and scallops through their fish dealership, and then continued to hide the illegal activity by routinely falsifying the mandatory reports they submitted to federal fisheries authorities.
Altogether six companies, five vessels and 12 individual vessel captains were involved in the scheme.
NOAA sought more than $5 million in civil penalties, and the complete revocation of all fish permits. This was a civil case, without a criminal component.
The administrative law judge upheld a combined civil penalty of $4,325,000. and revoked the dealer permit of Cape Spray Fisheries, and ALL federal fishing permits of the five vessels involved in the scheme.
The Spalt brothers appealed the case to the NOAA administrator, who upheld the decision.
They then appealed to the US District Court, and his lawyers filed complaints that NOAA enforcement violated the Fourth, Fifth, and Ninth Amendments of the United States Constitution of Liberty Food Corporation, Cape Spray Fisheries, and James, Kristen, and Peter Spalt.
The case was finally settled prior to a final judgement by the US district attorney’s office in 1998. The settlements stipulated first, that Atlantic Spray Corporation and Hudson Corporation would surrender all of their federal vessel permits and sell the vessels involved to pay a settlement. A second settlement involving seizure of scallops stipulated that they also agreed to cease all federal and state fishing permits on all their corporations and vessels, including the latent permits owned by Albatross Corporation and Dutchman Corporation. The Spalts also relinquished their federal operator permits and must cease commercial fishing entirely in state and federal waters
The settlement did lead to a substantial reduction in the administrative fine, from NOAA’s final offer of $2.5 million to about $1.5 million, but NOAA’s proceeds from the sale of seized scallops were retained as well.
Thirty months after signing the Settlement Agreement, the Spalts requested to re-enter the federal fisheries. However, NOAA declined to grant the Spalts a federal operator’s permit. The Spalts later sought relief in the United States District Court concerning the above provision. In the end, the Court held that NOAA’s denial of the Spalt’s fishing permit applications did not violate the terms of the Settlement Agreement.
The validity of this enforcement action was reviewed as part of a thorough investigation into NOAA fisheries enforcement in the Northeast by the Dept. of Commerce in 2012. The investigation involved the appointment of a special master, who reviewed all of NOAA’s enforcement actions in the Northeast.
In the review, the special master found a number of cases where NOAA unfairly pursued aggressive sanctions for fisheries violations, and also found that the enforcement branch operated what amounted to a slush fund with some of the fines and penalties assessed.
Yet in regards to the case against the Spaltz brothers, and in particular the full seizure of fishing permits and the denial of the right to get a federal fishing permit in the future, the special master found NOAA had acted appropriately.
He said “Based on an evaluation of the totality of the circumstances and evidence in this case, I cannot find by clear and convincing evidence that NOAA exercised broad and powerful enforcement authority that prejudiced the outcome, in any respect, or unfairly forced a settlement.“
The arguments by NOAA in this case were very similar to the arguments used against Rafael’s violations, in that the complete disregard for reporting and illegally taking species against a quota undermined the operations of the entire New England fishery.
The major difference between the 1990’s case and the case against Carlos Rafael is that a new management scheme is in place that allocates quota to specific coops and vessels. This has resulted in a premium value on certain choke species so that when Rafael illegally misreported his take of these ‘choke’ species, he gained an economic advantage over other fishermen who were forced to cease fishing.
In the 1990’s, the damage was to the regulation of the entire fishery, but without reference to the economic harm the Spaltz’s illegal activity did to other harvesters.
On review, the full revocation of the permits in that case was upheld through various US court proceedings, NOAA administrative proceedings, and a review by a special master who investigated possible overreach by NOAA enforcement. At no time did a competent authority assert that the full revocation of the fishing permits was excessive, undeserved, or without merit.
On balance, NOAA has a stronger case this time for a complete revocation of permits. Once again, failure to do so under its administrative powers will cripple NOAA’s ability to enforce fishery management rules in New England.
This story original appeared on Seafood News, a subscription site. It is reprinted with permission.
October 20, 2017 — National Oceanic and Atmospheric Administration (NOAA) Assistant Administrator for Fisheries Chris Oliver has called for the retraction of a scientific paper that draws the conclusion that illegal and unreported seafood caught in the United States is entering the Japanese market.
The paper, “Estimates of illegal and unreported seafood imports to Japan,” was published in Marine Policy, a scientific journal covering ocean policy. The paper made estimates that between 10 and 20 percent of Alaska pollock, salmon, and crab being exported to Japanese markets comes from illegal, unreported, and unregulated (IUU) fishing.
In a letter to Marine Policy Editor-in-Chief Hance Smith, Oliver questioned the methodology of the study and asked for an immediate retraction.
“While NOAA’s National Marine Fisheries Service generally agrees with the value of catch documentation and traceability as one of many tools available to combat IUU fishing, it strongly objects to authors’ claims regarding U.S. seafood exports to Japan and doubts the validity of the methodology used to makes such estimates,” Oliver wrote. “The allegations made in the paper absent any transparency regarding the data and assumptions supporting them are irresponsible and call into question the authors’ conclusions. Without significantly more information and transparency regarding data sources and methodologies applied, the paper should be retracted in its entirety.”
Read the full story at Seafood Source
October 16, 2017 — HAMPTON, New Hampshire — New Hampshire fishermen say temporary federal aid for at-sea monitor coverage is barely holding their industry afloat now that a court battle over the cost appears to have ended.
The National Oceanic and Atmospheric Administration is currently covering 60 percent of the cost for third-party at-sea monitors to observe commercial groundfishermen’s compliance with federal regulations. That coverage is projected to end May 1, 2018, when fishermen will be expected to cover the entire cost, according to NOAA spokeswoman Allison Ferreira. Groundfish include New England seafood staples like cod and haddock.
Hampton fisherman David Goethel said he would probably sell his boat and stop fishing if NOAA stops funding its portion of the cost. He and other fishermen filed a federal suit arguing it was unfair for fishermen to pay for monitors required by NOAA. Judges at the district and circuit court levels ruled the fishermen filed the suit too late to be considered on its merits, and the U.S. Supreme Court denied a petition to have the case heard this month.
September 18, 2017 — PORTLAND, Maine (AP) — Maine’s U.S. senators are signing on to a request to keep the National Sea Grant College Program funded at least at its current level.
President Donald Trump has proposed to eliminate the program, which funds science that’s beneficial to commercial fisheries, conservation and coastal businesses. It has existed for about a half century.
Read the full story from the Associated Press at NH1
September 8, 2017 — Think back to those times when we could do big things. When nothing was outside our grasp. When that young president asked us to do something for our country. When he inspired us with science. When science was a wonderful thing that brought the moon within reach.
Boy, could we use a president like that now. One not concerned about crowd size, but with the empathy to see and respond to the apprehensive and anxious victims in the crowd. One who understands the science behind the large storms and floods that now threaten our nation, and with the vision to be on the forefront of a new worldwide green economy rooted in science. One who can inspire us with a future of hope and aspiration.
There is an opportunity right now, in the teeth of the storm, for real leadership to do and inspire us to do great things.
Leaders can call the American people to do great things, but they have to ask. They have to describe the challenge and why it is important. They have to inspire confidence that, to borrow from FDR, “We will gain the inevitable victory.” And, importantly, they have to ask for our personal participation. Yes, you have to join in. You have to be in the arena helping out, just as so many of the people of Texas are doing right now. You have to be willing to work for it. As JFK said, “because it is hard.” No guts, no glory.
We celebrated science and technology when they were used to predict the eclipse. We love science and technology when they cure disease. We are grateful to science and technology when they are used by NOAA to forecast the path Harvey or Irma will take and how much rain will fall. Why, when scientists predict what will happen with climate change, does everyone get all political and talk about their “beliefs”? It’s not about what you believe. It’s natural laws. Like gravity. Nature doesn’t care what any of us “believes.” Nature just works. If we keep putting more CO2 in the atmosphere, we can expect more Houstons.
Our hearts go out to the people of Texas, and now those in the path of Irma. In the state of Texas, which produces more wind energy than the next three states combined, does it really have to be that way? Or, with real leadership from the top, could the American people show us once again that we can “make this effort, to solve these mysteries, to solve them for the good of all men”?
Read the full opinion piece at the Boston Globe
September 8, 2017 — There hasn’t been a large enough quota for fishermen to intentionally catch cod for four years, said Vito Giacalone, policy director for the Gloucester-based Northeast Seafood Coalition, which contends the federal limits on groundfish such as cod and flounder contradict what commercial fishermen are finding. The coalition has launched an effort to have input into the research done by the federal government as it sets the regulations.
“We’ve been seeing it for the past two decades, but more so in the past seven or eight years, especially on the [flounder and cod],” Giacalone said. “What we’ve seen in the last seven or eight years is that you can catch any fish you want at any time. That’s how available it is. So, we’re certain that the government estimates are wrong.”
Giacalone noted that scientists have a huge area to cover, and variables such as fish behavior — sometimes swimming near the top, sometimes the bottom, or abandoning certain geographic areas that are still included in the surveys — can influence the results.
The management plans are written by the New England Fishery Management Council in Newburyport, with input from several sources, including stock assessments from the National Oceanic and Atmospheric Administration’s Northeast Fisheries Science Center in Woods Hole. The assessments include surveys and catch and discard numbers from the commercial fishing industry, said Teri Frady, spokeswoman for the center.
The Northeast Seafood Coalition wants to play a bigger role by providing more information from the field. To do so, it is fund-raising to hire independent scientists to develop a method of collecting information that could be shared with government officials to develop more accurate assessments of species numbers.
“What [the regulators] should be doing is using the industry’s data to come up with a relative abundance index,” Giacalone said. “We realize it’s difficult because it has to be standardized, [and] it has to be unbiased. But until they admit that they could be getting it wrong, by a lot, they’re never going to put that work in. What the coalition is trying to do is shine a light on that.”
Frady said the NOAA center in Woods Hole is interested in any input.
Read the full story at the Boston Globe
September 8, 2017 — NARRAGANSETT – Last week, the fishing vessel Karen Elizabeth docked home in Point Judith following a 10-day voyage that involved the study of flat fish populations and the methods used to catch various species. Formulated by the Northeast Trawl Advisory Panel, a group made up of fishing industry professionals, government bodies and various fishing councils, the research was examining the number of summer flounder, winter flounder and red hake off the coast of New England. The resulting data will go on to better inform catch and population estimates of each species and came about due to the collaboration of the National Oceanic and Atmospheric Administration (NOAA) and the local fishing industry.
On the NOAA side, John Manderson, a senior fisheries research biologist with specialties in field ecology, habitat ecology, fisheries ecosystem science and collaborative research working out of the organization’s Northeast Fisheries Science Center in New Jersey, served as the chief scientist on the project. Chris Roebuck, operator of the Karen Elizabeth, was representing the fishing industry. The crew onboard the vessel totaled 10 members – five researchers and five fishing professionals.
The goal of the study was to develop a quantitative understanding of two different modes of ocean-floor species surveying – one approved by the federal government and one designed by the fishing community for maximum efficacy. For this experiment, the third leg of the overall project, researchers were examining the catch rates of summer flounder, winter flounder and red hake. Previous and similar research conducted in 2015 was examining yellow-tail flounder and grey sole.
“My specialty has become collaborative research with the fishing industry,” said Manderson. “The reason for that is that at the scale of the ecosystem, experts in the fishing industry have much greater access to the ecosystem and as a result they have much better intuitions about what is going on in the ecosystem in real time, including changes in habitat occurring as a result of changes in climate, than we do. “
The fishing vessel Karen Elizabeth is a twin trawler equipped with two nets as close together as possible which can then be towed simultaneously at approximately the same speeds and for the same duration. These assets lend the boat well to research-based projects that involve comparing different survey methods literally side-by-side.
Read the full story at the Narragansett Times
September 7, 2017 — NEW BEDFORD — Within the past 10 days, the Conservation Law Foundation sent three letters to various individuals involved — either directly or indirectly — with the Carlos Rafael case.
The foundation doesn’t represent any party directly, but its goal is to “use the law, science and the market to create solutions that preserve our natural resources, build healthy communities, and sustain a vibrant economy,” according to its website.
CLF sees Rafael’s guilty plea in March to illegal fishing as infringing on its principles.
“Discovering there’s been someone who has been systematically trying to undercut management, from our perspective not only harms the fisheries but also the work we’ve done,” senior counsel for CLF Peter Shelley said.
Shelley drafted all three letters. The first, he sent Aug. 29 to the New England Fishery Management Council’s Chair John Quinn and Executive Director Thomas Nies.
The second was addressed to NOAA’s John Bullard, the regional administrator, and Joe Heckwolf, an enforcement attorney, was sent Sept. 1.
The final letter, dated Sept. 6, was addressed to Judge William Young, who presided over Rafael’s plea agreement and will sentence the New Bedford fishing giant on Sept. 25 and 26.
Read the full story at the New Bedford Standard-Times