ELR Citation: ELR 21151
No(s). 1:93-CV-26RR (S.D. Miss. Mar 16, 1994)

The court upholds two $12,000 civil penalties that the National Oceanic and Atmospheric Administration (NOAA) assessed against a shrimp trawler under §11(a) of the Endangered Species Act for knowingly failing to use turtle excluder devices that federal regulations require. In two separate cases, NOAA sent the trawler a notice of violation and assessment (NOVA) informing him of his violation and penalty and advising him that he had 30 days to respond, after which the allegations and penalties would be taken as admitted. The court first holds that because the trawler did not request a hearing in a timely manner, the civil penalty assessments became final agency actions. The court next holds that §11(a) expressly limits review of the penalty assessments to the administrative record. The court next holds that the trawler was not wrongfully denied a hearing in the first case. The trawler did not respond to the NOVA until 116 days after receipt, and failed to respond adequately to the administrative law judge's (ALJ's) subsequent order that he show cause why he should be granted a hearing. The letter his representative sent in reply to the show cause order was not responsive to the scope of the order, but was rather an untimely hearing request that was properly rejected by the ALJ. The court next holds that the United States was not required to conduct a hearing to determine if the trawler's conduct was intentional before assessing the penalties. A hearing under 15 C.F.R. pt. 904 is only necessary if timely requested and is not otherwise a prerequisite to assessment of civil penalties. The court next holds that despite the absence of docket numbers on some of the documents in the administrative record, the record is sufficient to support a finding that the penalties are supported by substantial evidence. All the necessary documents are included, and the trawler does not challenge their authenticity or relevance. Finally, the court holds that the penalties are due and owing, and orders the trawler to pay $24,000 plus any statutory assessments or costs.

Counsel for Plaintiff
Stephen R. Graben, Ass't U.S. Attorney
U.S. Attorney's Office
P.O. Box 1417, Biloxi MS 39533
(601) 432-5521

Counsel for Defendant
Ben Bagert
Bagert & Trinchard
Pan-American Life Ctr.
601 Poydras St., Ste. 2075, New Orleans LA 70130
(504) 523-1118