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 — NEW BEDFORD, Mass. — Judge William Young didn’t waste any time denying the United States’ motion for reconsideration in the case of Carlos Rafael.
The government filed the reconsideration on Wednesday, the same day Young filed his judgment.
The government sought Young to reconsider the forfeitability of Rafael’s vessels and permits.
Young ordered four vessels and the accompanying permits to be forfeited on Oct. 11. U.S. Marshals seized the vessels the Lady Patricia, Olivia & Rafaela and the Southern Crusader II on Oct. 18.
The reconsideration stated, “the court may correct a sentence that resulted from arithmetical, technical or other clerical error” within 14 days. The government, again, is seeking Rafael to forfeit all 13 vessels and permits associated with his guilty plea to 28 counts of falsifying fishing quota, bulk cash smuggling and tax evasion.
Read the full story at the New Bedford Standard-Times
October 24, 2017 — NEW BEDFORD, Mass. — New Bedford’s Marine Commerce Terminal (MCT), one of the world’s most perfectly tailored offshore wind hubs, is still waiting for its first big break in the sector.
But with developers now preparing to file bids in December for Massachusetts’ first offshore wind tender, worth up to 800MW, the MCT finally looks set to pay off as the race for offshore wind jobs heats up in the US.
As Massachusetts has long known, and other states are quickly realizing, it’s a race in which an early lead could solidify into decades-long benefits.
“New Bedford is very explicit in its goal of becoming the epicentre of the North American offshore wind industry,” says Stephen Pike, chief executive of the Massachusetts Clean Energy Center (MassCEC), the state-funded agency which built the MCT — with $113m of public funds — and operates it.
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 — A federal judge sentenced a former Bristol County sheriff’s deputy Thursday to a year in prison and three years of supervised release for smuggling thousands of dollars in profits to Portugal for a Massachusetts fishing magnate who was trying to dodge fishing rules, prosecutors said.
Antonio Freitas, a longtime task force officer with US Immigration and Customs Enforcement, smuggled $17,500 through airport security in February 2016, according to a statement from the US attorney’s office in Boston. Freitas, according to the statement, later deposited that money in a Portuguese bank account belonging to Carlos Rafael, a New Bedford commercial fishing mogul known as the “Codfather.”
Read the full story at the Boston Globe
October 20, 2017 — Federal authorities physically seized Carlos Rafael’s four fishing vessels on Wednesday, one of the final steps in the criminal proceedings against the New Bedford fishing mogul before he reports to jail on Nov. 5.
While Rafael readies himself to begin serving his 46-month sentence in federal prison, the focus of the rest of the Northeast multispecies groundfish fishery and environmentalists remains on what civil penalties NOAA Fisheries may impose on Rafael and his fishing sector, and how it will dispose of the forfeited vessels and ultimately distribute their fishing permits.
The New England Fishery Management Council, in a vote at its September meeting in Gloucester, urged NOAA Fisheries to take disciplinary action against Northeast Fishing Sector IX for allowing years of rampant misreportings of Rafael’s landings that was at the heart of his scam.
But the council refrained from voting on any specific measures on permit redistribution, saying it was waiting for the conclusion of the criminal case and a sense from NOAA Fisheries as to what comes next.
The council, according to Chairman John Quinn, remains in limbo.
Read the full story at the Gloucester Daily Times
October 16, 2017 — Ed Anthes-Washburn wants to make what is already the United States’ most valuable commercial fishing port even larger.
For the second consecutive year the director of the Port of New Bedford, Massachusetts, has submitted an application for a grant from the US Department of Transportation’s (DOT) Transportation Investment Generating Economic Recovery (TIGER) program to add 600-feet of bulkhead and dredge areas that are now unusable at only three- to four-feet deep.
The changes, which would increase depths in those areas to 18- to 30-feet, would grow the number of berthing areas, allowing the port to expand from about 300 fishing vessels to more than 360. It would invite fishing companies that currently operate outside of New Bedford to make it their new base of operation or to simply offload there, and harvesters already using the port could overcome some frustrations and even grow their fleets, Anthes-Washburn told Undercurrent News.
“There are a minimum of three boats [rafted next to each other] at every dock, and in some cases there are five,” Michael Quinn, operations manager for Quinn Fisheries, said of the crowded situation in New Bedford. “When you have to climb across five boats, it takes all day to get [a boat] out.”
Quinn believes his family’s scallop fishing operation, which keeps six vessels at the port, would benefit by as much as $160,000 per year by the reduced costs and added efficiencies and revenue that could be created.
Having expanded dock space would allow Quinn Fisheries and others to bring in mobile cranes to load and unload, he said. Excess dock space also could be rented to a number of other vessel owners who are clamoring to get in.
Additionally, the changes – which also would include the expansion of roadways and connections to rail lines — would eliminate congestion and allow for direct vessel to truck and rail transfers of fresh seafood, Anthes-Washburn said.
October 16, 2017 — NEW BEDFORD, Mass. — Bob Scammon lived out the words of the medical training. Michael Oliveira experienced the man overboard training in reality.
Scammon, a commercial fishing captain for more than three decades, tried to help a man on board suffering from a heart attack aboard one of his vessels years ago. Oliveira woke up to the news that someone on board the Miss Shauna had fallen overboard in July.
In both situations, the crew dealt with death at sea.
“All that mayday stuff, that is very, very important how to do it,” Oliveira said. “Everything that we’ve learned today is definitely to our benefit. I do think every fisherman, everybody that’s a seaman, needs to know this stuff.”
The Fishing Partnership, a nonprofit organization geared toward improving the health and safety of fishermen, provided a safety training day at UMass Dartmouth SMAST on Friday. Safety experts offered tips and training on medical emergencies, man overboard, getting into a lifesuit and using it in the water, fire safety, damage control, life raft information and flare use.
“Fishing is the most dangerous job in the country,” J.J. Bartlett, president of the Fishing Partnership, said. “And New England’s waters are the deadliest in the country. Without programs like this fishermen wouldn’t have access to lifesaving safety training.”
NOAA has yet to determine fines and penalties in civil case involving Carlos Rafael
October 16, 2017 — So far, New Bedford fishing mogul Carlos Rafael has lost a fraction of his fishing empire after pleading guilty to 23 counts of false labeling and identification of fish, as well as cash smuggling, conspiracy, falsifying federal records and tax evasion. He was found guilty and sentenced to nearly four years in jail last month.
But there could be millions more in fines and penalties as the National Oceanic and Atmospheric Administration decides what civil measures to impose on Rafael. Fishermen and environmental groups have been lobbying for that money to go toward restoring the fishery, and many would like to see it pay for better monitoring of what fishermen catch at sea and land on shore.
“We’re looking ahead to the civil phase and hope there will be some visibility (public input),” said Johanna Thomas, a senior director for the Environmental Defense Fund. “We agree that the money from (criminal) and civil cases go to funding the monitoring system.”
But how that happens is still a bit of a mystery.
At the time of his sentencing, U.S. District Court Judge William Young required that Rafael pay a $200,000 fine and $108,929 in restitution to the U.S. Treasury for the smuggled money and tax evasion. This past week, Young also determined that Rafael would forfeit four fishing vessels that participated in Rafael’s scheme to get around a lack of quota in certain species. Rafael also forfeited 34 of what Young termed “permits.”
October 13, 2017 — NEW BEDFORD, Mass. — Judge William Young’s judgment filed Wednesday appeared to be the finish line to Carlos Rafael’s case. Young, though, by ordering the forfeiture of four vessels and every permit associated with the Bull Dog, the Olivia and Rafaela, the Lady Patricia and the Southern Crusader II began a new ripple effect throughout the commercial fishing industry revealing some questions but very little answers.
It’s likely NOAA will take center stage now that the Department of Justice has closed its case. NOAA can bring civil penalties to Rafael.
The Environmental Defense Fund released a statement after Young’s ruling calling for NOAA to “pursue civil remedies to further aid the victims of Carlos Rafael’s crimes.”
They can range from fines to indefinite bans within commercial fishing.
NOAA issued indefinite bans to James G. Spalt and Peter Spalt, former Cape Cod scallopers, in 1996 to go with a more than $4 million fine. More than 20 years later, they remain outside the industry with no way to return.
The allegations levied toward the Spalt brothers included some of the same offenses Rafael pleaded guilty to, but also expanded beyond falsifying fishing quotas.