Background on adjudicatory proceedings before the Division of Marine Fisheries
Provisions of state law at G.L. c. 130, §§ 2 and 80, and G.L c.30A § 13 require that the Division of Marine Fisheries (DMF) provide permit holders with a fair hearing before an impartial Administrative Law Magistrate prior to suspending, revoking, not renewing or denying the transfer of any permit, license or certificate, including any regulated fishery permit endorsement issued by DMF's Director. M.G.L. c. 130, § 80 also authorizes the Director in certain circumstances to immediately suspend a license, permit or certificate pending the outcome of a hearing if the Director has reasonable cause to believe that a permit holder has violated any rule or regulation of the Director or of any provision of § 80 or § 75, or upon a change in the facts and conditions set forth in such permit.
This administrative law process, also known as an adjudicatory proceeding, is initiated in most cases in one of the following two ways:
- DMF may issue a Notice of Proposed Agency Action and accompanying Show Cause Order to the holder of a commercial fishing permit notifying the permit holder that DMF has reasonable cause to believe the permit holder has violated a marine fishery law, including any directives, advisories, orders, permit conditions or restrictions made by the Director; or
- Any Environmental Police Officer of the Massachusetts Office of Law Enforcement, Coastal Enforcement Bureau (OLE) or any other officer or official authorized to enforce the marine fishery laws of the Commonwealth may file a Notice of Claim for a hearing before DMF asserting that a permit holder has violated a marine fishery law, including any directives, advisories, orders, permit conditions or restrictions made by the Director.
Finally, there are instances where DMF denies a request by a commercial fishing permit holder to transfer the permit to another person. When that happens, DMF will send a letter to the permit holder explaining the reasons for its determination. This letter will also let the permit holder know that he or she may request a hearing within thirty (30) days from the date of the letter. However, as a matter of practice, DMF typically engages in follow-up conversations with the permit holder to answer any questions about its determination, and this interaction often resolves the matter informally.
Work of the administrative law section in DMF
DMF's Administrative Law Section is responsible for conducting a fair hearing in accordance with the requirements of G.L. c. 130, §§ 2 and 80, G.L. c. 30A and 801 CMR 1.00 (Standard Rules of Adjudicatory Practice and Procedure). In order to facilitate the adjudicatory proceeding process, DMF has designated staff to serve as the Administrative Law Clerk and the Administrative Law Magistrate respectively.
All Notices of Proposed Agency Action and accompanying Orders to Show Cause, Notices of Claim, and Notices of Proposed Denial of Permit Transfer issued pursuant to a DMF adjudicatory proceeding are provided to the Administrative Law Clerk who then date stamps the document, assigns a docket number to the matter and creates a hearing folder. Once these administrative steps are taken, the Administrative Law Clerk ensures that the permit holder is properly served with the applicable notice by an Environmental Police Officer or via UPS second day mail.
The Administrative Law Clerk also coordinates the scheduling of hearing times, dates and hearing locations, and is responsible for maintaining the administrative record associated with the DMF hearing case; ensuring the proper issuance, transmission and service of all written submittals filed by the parties with the Administrative Law Magistrate; and assists the parties by answering any questions or by participating in pre-hearing discussions, meetings, telephone conferences and settlement discussions.
The Administrative Law Magistrate is responsible for conducing all adjudicatory proceedings in accordance with the Standard Rules of Adjudicatory Practice and Procedure at 801 CMR §§1.01 and 1.03, including the power to issue Orders to Show, Tentative Decisions, Recommended Final Decisions, Notices of Agency Action and determining the issues to be adjudicated at the hearing. The Magistrate has the authority to issue subpoenas; order the respondent to file an answer; order the parties to attend pre-hearing conferences to explore the possibility of case settlement on any or all of the issues to be adjudicated; order the parties to draft a more definite statement in support of their position; decide certain preliminary matters raised by the parties or the Magistrate; identify, clarify or further define the issues to be adjudicated; rule on motions and other dispositive pleadings; require that the parties file pre-hearing testimony from their witnesses prior to the hearing; dismiss any claim or portion of a claim for cause or find for the claimant based on respondents failure to defend, failure to appear at the hearing or failure to comply with any order, ruling, decision or otherwise by default. The Magistrate conducts the hearing and determines the content and scope of the adjudicatory hearing record.
|Administrative Law Clerk