What is the purpose of a Division of Marine Fisheries (DMF) adjudicatory hearing?
To ensure, as required by state law at M.G.L. c. 130, §§ 2 and 80, and c. 30A, a person receives a fair hearing prior to the suspension, revocation, denial of renewal or denial of transfer of a fishing permit by DMF. In situations where a person has already been issued a permit by DMF, the above statutory provisions ensure that the permit holder is provided notice and an opportunity to be heard and to challenge (1) any proposed or requested sanctions to the permit in response to charges filed by the Massachusetts Environmental Police or DMF alleging violations of marine fishery laws, or (2) DMF's denial of a request by a commercial fishing permit holder to transfer the permit to another person.
How does a DMF adjudicatory proceeding begin?
The administrative hearing process is initiated in most cases in one of the following two ways:
First, an Environmental Police Officer or other officer authorized to enforce the marine fisheries laws of the Commonwealth may file a Notice of Claim for an Adjudicatory Proceeding with the DMF Administrative Law Clerk. The Notice of Claim contains a law enforcement report explaining the fishery law(s) that was allegedly violated during the use of any DMF permit, including all documents, photos, citations, statements, names, addresses, maps or any other relevant evidentiary material supporting the Notice of Claim.
Second, based on reasonable cause to believe that marine fishery law(s) has been violated by a permit holder, DMF may issue a Notice of Proposed Agency Action and an accompanying Order to Show Cause. This Notice explains what action is being proposed by DMF and the basis for the proposed action. DMF's proposed actions may include suspending, revoking or not renewing or transferring a commercial fishing permit.
Included with both of the above enforcement-related Notices will be an Order to Show Cause or a Show Cause Notice. These documents inform the respondent permit holder that he or she has the right to a hearing to determine the validity of the charges contained therein. The Order also includes the date, time and location of the hearing; whereas the Notice informs the Respondent that they have twenty-one (21) days to submit a written request for a hearing to DMF or a default judgement will be entered in favor of the petitioner.
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.
How does DMF provide notice to a permit holder of an adjudicatory proceeding?
The Administrative Law Clerk will typically send those documents that initiate an adjudicatory proceeding by UPS second day mail to the permit holder’s address of record with DMF. If the documents are not sent by UPS second day mail, then they are hand delivered to the permit holder. The documents will include the Notice of Claim for an Adjudicatory Proceeding or the Notice of Proposed Agency Action; the Order to Show Cause or the Show Cause Notice; or the Notice of Proposed Denial of a Permit Transfer. With regards to denials of permit transfers, DMF will typically engages in follow-up conversations with the permit holder to answer any questions and this interaction often resolves the matter informally.
How does the adjudicatory proceeding end?
The adjudicatory proceeding process ends when the Director issues a Final Decision. The Final Decision is based on a full and complete review of the entire administrative record of the proceeding and on the Recommended Final Decision of the Magistrate. The Recommended Final Decision of the Magistrate may adjudicate a proceeding by granting as a matter of law a motion to dismiss, a motion for summary judgment, a motion on the pleadings or at the close of the adjudicatory hearing by containing findings of fact, conclusions of law and a recommendation in accordance with G.L. c.30A, §11(7) and 801 CMR §§1.01 and 1.03.
If the intent of the parties is to resolve all of the issues identified for adjudication without a hearing they may do so by a signed written settlement agreement filed with the Clerk. Written settlement agreements designed to resolve all of the issues identified for adjudication must include a waiver by the permit holder of his or her right to a hearing. The Magistrate shall review the terms of the written settlement agreement in addition to the administrative record. Based on such review, the Magistrate shall determine whether or not the written settlement agreement provides sufficient remedial measures of the issues identified for adjudication and if the remedial measures can be lawfully implemented. If the Director approves the written settlement agreement as a resolution of the adjudicatory proceeding, his Final Decision shall incorporate the terms of the written settlement agreement and a waiver by the parties of judicial review.
Is there a fee for the adjudicatory proceeding?
No, there is no fee for an adjudicatory proceeding.
Who are the Massachusetts Environmental Police?
The mission of the Office of Law Enforcement (OLE), within the Executive Office of Energy and Environmental Affairs, also known as the Massachusetts Environmental Police, is to protect the environment and natural resources - including marine fish and fisheries of the Commonwealth - through enforcement, education, and public outreach. The Office is further charged with protecting the health, safety, and individual rights of the public and preserving our environment for future generations.
OLE has divided Massachusetts coastal communities into 6 enforcement regions encompassing approximately 1,500 square miles. The additional 2,500 square miles of waters under the marine fishery jurisdiction of the Commonwealth are also subject to Environmental Police enforcement. Coastal officers monitor fishing and other activities both on land and at sea. Officers patrol coastal waters conducting investigations of illegal fishing practices, marine theft cases, and enforcement of boat registration and titling requirements. The coastal force mediates disputes between competing fishing interests such as draggers, gillnetters, lobstermen, and recreational anglers. In addition, coastal officers closely monitor fish markets, processing facilities, shellfish digging, and off-road vehicle use on beaches.
Who should I contact if I have any questions about the adjudicatory proceeding?
The written notice that you receive from DMF informing you of the adjudicatory proceeding contains the names, numbers and email addresses of the persons to contact and for what purposes. The Administrative Law Clerk should be contacted if you have any specific questions, need to change the hearing date or time of the hearing, do not understand the charges or reasons for the proposed denial of a permit transfer, would like to discuss the case with the claimant or the agency representative or have other questions on the hearing itself.
What if I do not speak English as a first or second language?
If you do not speak or understand the English language you should find a family member or friend who can help translate the documents for you. You should also contact the Administrative Law Clerk and a translator will be made available to you at the hearing at no cost.
May I represent myself or may I have an attorney or other person represent me?
You may represent yourself at any stage of the adjudicatory proceeding. You also have the right to be represented at any stage of the adjudicatory proceeding by any person of your own choosing, including an attorney. Any person you select becomes your authorized representative and must file with the Administrative Law Clerk and send to all other parties by mail, facsimile, or electronically a written Notice of Appearance containing their name, their Board of Bar Overseers (BBO) number if applicable, address, telephone number, e-mail and the name of the person who they are representing.
Can my adjudicatory proceeding be settled without a hearing?
The parties are urged to settle adjudicatory proceedings prior to the hearing. If the entire case cannot be settled then the parties should strive to settle as much of it as possible, including such matters as the issues to be adjudicated; the number of witnesses; testimony of expert witnesses, if any; the possibility of obtaining stipulations, admissions, agreements on matters already of record, or similar agreements to reduce or eliminate the need of evidentiary proof. All settlement agreements must be signed by the Petitioner, the Respondent and the Agency Representative, if the Agency Representative is not the Petitioner. Upon request of the parties, the Administrative Law Clerk and a DMF representative are available to assist in settlement discussions.
Is my adjudicatory hearing open to the public?
As a general rule adjudicatory hearings are open to the public. However, on request of a party the Administrative Law Magistrate may seclude witnesses of the opposing party during the direct testimony of the opposing party. In addition, the Administrative Law Magistrate has the discretion after appropriate warnings to have removed from the room or the building any person at the hearing if such person fails to observe the standards of proper judicial decorum or whose conduct is loud, combative, intimidating or otherwise disrupting the hearing. All documents that are filed, date stamped or made part of the administrative hearing record may be disclosed to the public in accordance with the Public Records Law, G.L. c.66 and G.L c.4, §7 ¶ 26 and otherwise consistent with any applicable federal and state privacy laws.
Can other people attend the adjudicatory hearing with me?
Family or friends may attend the hearing. Witnesses who have relevant testimony or other relevant evidence supporting your case should attend and testify as to their own personal knowledge of the issues being adjudicated. The Administrative Law Magistrate has the discretion to exclude character witnesses or testimony that involves the character of the respondent, claimant or any DMF staff.
May I use e-mail to correspond with the parties or submit legal filings?
The petitioner and respondent are welcome to correspond among themselves in any fashion they determine appropriate. The parties may use e-mail to informally correspond with the Administrative Law Clerk regarding questions of process and procedure in administrative hearings. E-mail may be used as a means to transmit to the Administrative Law Clerk or to serve on a party any legal filing or pleading such as a notice, claim or motion, as well as pre-filed written testimony of a witness. However, unless specifically authorized by the Administrative Law Magistrate, the actual legal filing, pleading or pre-filed testimony may not be in the form of an e-mail. This is because e-mails do not include all the required components of a proper filing. For example, any motion filed with Administrative Law Clerk must be on a separate piece of paper, properly captioned and contain the signature of the party or the authorized representative. Forms for the common types of legal filings are available to be downloaded from this website.
Can I speak or meet with the Administrative Law Magistrate or the Director about my adjudicatory proceeding?
No, this is considered an improper “ex-parte” communication. An ex-parte communication is one that is made in private to the Administrative Law Magistrate or the Director without notice to or participation by the other parties to the adjudicatory proceeding. This rule ensures that each party has the opportunity to hear and respond to all communications made by the other parties. Ex-parte communications include but are not limited to phone calls, personal meetings, e-mail and other written correspondences.
What if I’m unavailable on the hearing date or time scheduled by DMF?
All DMF hearings are scheduled and held on a Friday from 2:00 to 5:00 P.M., unless otherwise ordered by the Administrative Law Magistrate. No later than forty-eight (48) hours before the hearing, a party or the party’s authorized representative may file a motion or written request to continue the hearing date for good cause shown as fully described by written affidavit. A motion or request to continue shall be filed with the Administrative Law Clerk and sent to all other parties by mail, facsimile, or electronically. If a party or witness for a party is going to be late to the hearing the Administrative Law Clerk should be called and informed of this fact as soon as possible. It is recommended that all motions and requests for continuances be made jointly by agreement of the parties. A continuance may be granted for thirty days unless otherwise ordered by the Administrative Law Magistrate.
How long does the average adjudicatory proceeding take?
DMF seeks to conclude adjudicatory proceedings within eight to ten months after Notice of the proceeding has been provided to the permit holder. However, some proceedings may take longer. Proceedings that involve a written settlement agreement of the parties are typically concluded in a shorter timeframe. Also, in matters where DMF immediately suspends a permit to protect the public health, welfare and safety, the hearing will be held and the DMF Director strives to issue a final decision on a more expedited basis.
Is the adjudicatory hearing recorded?
The hearing is electronically recorded. Upon motion or request of any party, a certified copy of the cassette or CD disc will be provided at no charge. Any party may request that a stenographer be present to record the hearing or that the electronic recording of the hearing be transcribed. The requesting party shall bear the cost of a written transcript and provide a copy of the written transcript to DMF and all other parties at no charge.
Does DMF make adjudicatory hearing records and decisions available to the public?
The Final Decisions and agency actions of adjudicatory hearings that are not concluded through a settlement agreement are published on this website. As a general rule the administrative hearing record, including the docket sheet and the Initial and Final decisions for all adjudicatory hearings are available to the public pursuant to a public records request. However, all such public records requests are subject to the Commonwealth’s laws on public information and personal privacy including the public records law, G.L. c. 66; the definition of public records, G.L. c. 4, s. §7, ¶26; the fair information practices act, G.L. c. 66A; privacy statutes, G.L. c. 214, §1B; regulations safeguarding personal information, 940 CMR § 27.00; and the collection and dissemination of personal information, Executive Order 504.
What is an Initial Decision?
An Initial Decision is the Magistrate’s written decision issued after hearing the testimony the evidence, documents and testimony allowed at the hearing or filing of a written settlement agreement. The Initial Decision contains the Magistrate’s findings of fact, conclusions of law, and recommendation for the Director’s consideration that is based on the administrative hearing record. Within thirty (30) days after receipt of the Initial Decision, the parties may file written comments and objections, including supporting briefs. Parties may also file responses to objections within twenty (20) days of receipt of a copy of the objections. Upon motion or request of any party the Magistrate has discretion to allow oral argument on written comments or objections.
What is a Final Decision?
The DMF Director may affirm and adopt the Administrative Law Magistrate’s Initial Decision in whole, in part, or recommit the Initial Decision to the Magistrate for further findings. If the Director does not accept the whole of the Initial Decision, he shall provide an adequate reason for rejecting those portions he does not affirm and adopt. The Director’s Final Decision shall be based on the administrative record compiled at the hearing, the Administrative Law Magistrate’s Initial Decision and any objections or comments filed by the parties. The Director’s Final Decision constitutes final administrative action of DMF and is not subject to further agency review.
May a party appeal the Director’s Final Decision?
Any party to the adjudicatory proceeding who has been “aggrieved” (i.e., adversely affected) by the Director’s Final Decision may seek judicial review of the Final Decision and final DMF administrative action by filing a complaint in a court of competent jurisdiction pursuant to G.L. c. 30A, §14.
Where can I find the procedural rules that are used for adjudicatory proceedings?
DMF uses the Standard Rules of Adjudicatory Practice and Procedure codified at 801 CMR 1.00, et. seq. These rules are applicable to agencies that conduct adjudicatory proceedings and are promulgated by the Executive Office of Administration and Finance.
Where can I find other laws, regulations or actions relevant to the use of DMF permits and adjudicatory proceedings governing the suspension, revocation or non-renewal of DMF permits?
DMF's enabling statutes and regulations are found at G.L. c.130, and 322 CMR §§ 1.00 - 16.00 respectively. All legal advisories, notices, orders, directives, determinations of fishery quotas, closures and other legal actions taken by the DMF Director with respect to permits issued by DMF are found on its website. Additionally, there are regulations of the Massachusetts Department of Public Health (DPH) as well as applicable Special Acts of the Legislature (e.g., the Commonwealth’s annual operating budget) that may contain legal requirements or provisions that are applicable or relevant to activities regulated by DMF. All of the above sources of information can be found in the related links provided in this section.