United States v. Jeff Mulkey, et al., Civ No. 97-234 MA; Response of the United States to Public Comments Concerning the Proposed Consent Decree

DEPARTMENT OF JUSTICE

Antritrust Divsion

United States v. Jeff Mulkey, et al., Civ No. 97-234 MA; Response

of the United States to Public Comments Concerning the Proposed Consent

Decree

Pursuant to Section 2(d) of the Antritrust Procedures and Penalties

Act, 15 U.S.C. Sec. 16(d), the United States publishes below the

written comments received on the proposed Consent Decree in United

States v. Jeff Mulkey, et al., Civil Action No. 97-234 (MA), United

States District Court for Oregon, together with its response thereto.

Copies of the written comments and the response are available for

inspection and copying in Room 3235 of the Antitrust Division, United

States Department of Justice, Tenth Street and Constitution Avenue,

N.W., Washington, D.C. 20530 (telephone 202/514/2481) and for

inspection at the Office of the Clerk of the United States District

Court for the District of Oregon, United States Courthouse, Madison &

Broadway, Portland, Oregon.

Rebecca P. Dick,

Deputy Director of Operations.

In the United States District Court for the District of Oregon

State of Oregon, ex rel.., Attorney General Hardy Myers State of

Washington, ex rel., Attorney General Christine O. Gregorie, State

of California, ex rel., Attorney General Daniel Lungren, United

States of America, Plaintiffs, v. Jeff Mulkey, Jerry Hampel, Todd

Whaley, Brad Pettinger, Joseph Speir, Thomas Timmer, Richard

Sheldon, Dennis Sturgell, Allan Gann and Russell Smotherman,

Defendants. Civil Action No. CV 97 234-MA United States' Response to

Public Comments Filed: May, 1997.

I. Background

On February 11, 1997 the United States jointly filed with the

states or Oregon, California and Washington a complaint to prevent and

restrain the defendants from violating Section One of the Sherman Act

(15 U.S.C. Sec. 1). At the same time, a Stipulation was filed in which

the parties agreed that the Consent Decree, lodged with the Court in

conjunction with the filing of the Stipulation, may be filed and

entered by the Court at any time after the expiration of the sixty (60)

day period for public comment provided by the Antitrust Procedures and

Penalties Act, 15 U.S.C. Sec. 16 (b)-(h). The sixty day public comment

period terminated on April 25, 1997.

Under the Antitrust Procedures and Penalties Act notices were

published in the Federal Register and the Portland Oregonian directing

anyone who wished to comment on the Consent Decree to send their

comments to the United States Department of Justice Antitrust

Division's San Francisco Office. The Antitrust Division has received

comments from the following:

1. Peter G. Heckes--Oysterville, Washington.

2. T.J. Lindbloom--Roseburg, Oregon.

3. Lyle Hartzell--Westlake, Oregon.

4. Dorothy Nicholson--Florence, Oregon.

5. Rita J. Sellers--Reedsport, Oregon.

6. Katy Ellis--Roseburg, Oregon.

7. Debbie Coffman--Eugene, Oregon.

8. Travis Wolf--Florence, Oregon.

9. Bill Bradbury--Bandon, Oregon.

10. Jim Edson--South Beach, Oregon.

11. Nick Furman--Coos Bay, Oregon.

The United States Department of Justice's Antitrust Division has

carefully reviewed the comments from the above individuals and has

prepared this response to address issues raised in those comments.

II. Response to Public Comments

The Comments fall into two principal categories: (1) There was

insufficient evidence to support the allegations in the Complaint; and

(2) it was not fair for the plaintiffs to name only the defendants in

this matter since there were hundreds of other fishermen who

participated in the alleged tie-up and this type of conduct has long

been commonplace in the industry. The comments criticize the actions

and behavior of the plaintiffs in bringing this case. None of the

comments discuss the terms or impacts of the decree and, thus, do not

discuss whether entry of the Consent Decree is in the public interest.

Collectively, they indicate that commercial crab fishermen have

violated the antitrust laws for more than just the charged 1995-96

season. In short, they support, rather than attack, a finding that

entry of the Consent Decree is in the public interest.

The comments reflect in part a misunderstanding of the antitrust

laws and the limited exemptions granted fishermen from the antitrust

laws by the Fishermen's Collective Marketing Act (``FCMA'') (15 U.S.C.

Secs. 521-522). As pointed out in the Competitive Impact Statement

filed in this matter, the FCMA provides protection from the antitrust

laws only if fishermen jointly make marketing decisions as members of a

fish marketing association formed pursuant to the terms of the FCMA.

The FCMA does not protect fishermen who are not members of a fish

marketing association and it does not protect fish marketing

association members who

[[Page 25654]]

enter into marketing agreements with non-members.

The comments also demonstrate a lack of appreciation for the

reasons we as a nation have adopted and enforce antitrust laws. When

sellers work collectively, they can raise their prices to artificially

high levels. Above-market prices inevitably reduce overall production,

restricting the nation's output of goods and services; on a more

personal level, they can directly harm individual consumers. These

harms are sufficiently serious that price agreements among sellers are

usually punished criminally. Our economic strength, which ultimately

benefits us all, results in no small measure from our consistent

refusal to tolerate price-fixing in any sector of the economy.

The Complaint alleges and the plaintiffs were prepared to prove at

trial that the defendants entered into agreements to market crab and

either were not members of a fish marketing association that had

authority to market their crab or, if they were members of such an

association, entered into agreements with non-members to market crab.

In addition, they used threats, coercion and intimidation to enforce

the agreements. Such agreements and conduct are not protected by the

FCMA and are violations of Section One of the Sherman Act. As noted,

the United States Department of Justice normally prosecutes conduct of

this type criminally. The United States chose not to proceed criminally

in this matter because some of the defendants mistakenly believed that

their conduct was not a violation of the Sherman Act.

The United States joined this action in order to give notice that

the defendants' alleged conduct is not permitted under federal law. The

United States attempted to deter such conduct in the early 1980's when

it filed civil actions and obtained entry of Consent Decrees against

two northwest fish marketing associations in United States v. All Coast

Fisherman's Marketing Association, Inc., Civ. #82-233 (Oregon 1982) and

United States v. Del Norte Fishermen's Marketing Association, Inc.,

Civ. #82-3355 (N.D. Calif. 1984). Under the terms of those Consent

Decrees the defendant associations held meetings in Crescent City,

California and Charleston, Oregon, attended by their members and other

interested fishermen, at which attorneys explained the applicability of

federal antitrust laws to the marketing of seafood by commercial

fishermen.

The United States hopes that by bringing this action against

individual fishermen, it will succeed in accomplishing what those

actions sought to accomplish--deterring illegal conduct in the future.

The Consent Decree provides the defendants, as well as all the other

fishermen that may have participated in illegal marketing agreements

with them, with a guide as to what is not permissible under the Sherman

Act. It is hoped that in the future any defendants and other fishermen

who wish to jointly market their crab will take steps to determine how

they can do so legally.

III. Conclusion

The conduct alleged in the Complaint violates the Sherman Act. The

Consent Decree was proposed and agreed to in order to deter such

conduct in the future and ensure compliance with the law. It helps to

ensure price competition among commercial crab fishermen. None of the

comments have addressed the terms of the Consent Decree or demonstrated

that its entry is not in the public interest. Thus, entry of the

Consent Decree is in the public interest.

Dated: May , 1997.

Respectfully Submitted,

Christopher S. Crook,

Richard B. Cohen,

Attorneys, Antitrust Division, U.S. Department of Justice.

March 16, 1997.

Mr. Christopher Crook, Acting Chief, U.S. Department of Justice

Anti-Trust Division, Box 36046, 450 Golden Gate Ave., San Francisco,

CA 94102.

Dear Mr. Cook: As one who's involvement in Oregon's crab

industry dates back to 1975 when I first set foot on a crab boat as

a college student working to cover tuition costs, I find both the

official ``spin'' and accompanying media coverage of the anti-trust

investigation and pending cases quite disturbing. If a person were

to take all that has been written and reported on the subject at

face value, it would lead them to believe that those targeted

individuals are the commercial fishing industry's equivalent of

``mafioso's'' and close relatives of the Gotti family.

To imply that twelve individuals ``illegally conspired'',

``coerced'', ``intimidated'' and ``threatened'', using ``strong-

armed tactics'' and ``violence'' to ``fix prices'' and hold the

entire West Coast crab industry hostage, is grossly unfair and fails

to take into consideration that the historical nature of the fishery

and dynamics involved. To conclude that these twelve individuals

alone had enough influence to keep upwards of 1000 fishermen and

their vessels tied to the dock in fear of reprisal is simply

ludicrous.

In short, the ``tie-up'' at the start of the 1995/96 crab season

(legal or otherwise from an anti-trust standpoint) was a direct

result of excessive frozen inventories and prevailing market

conditions, and not the conspiratorial actions of anyone, fisherman

or otherwise. Right or wrong, the process of crabbers collectively

establishing an ``asking price'' prior to setting their gear, with

buyers responding accordingly, has been going on for decades and

actually helps to bring a certain amount of stability and order to a

situation that can by nature, be intensely chaotic. Once fishing has

commenced, stock abundance and consumer demand ultimately determine

whether the starting price will hold, increase, or even drop as it

has in some years.

Crabbers coast wide have always held these pre-season meetings

publicly and in broad daylight, with no attempt to ``plot secretly''

as Webster's definition of conspiracy and the accusations associated

with this case would suggest. On the contrary, all one has to do is

go back and read the early December issues of any of the coastal

newspapers during times of ``soft'' markets, to find reported

accounts of meetings, conference calls, price impasses, and yes,

even strikes. One can only wonder why, after all these years, is

this process suddenly deemed worthy of the scrutiny and attention it

has recently received, to the detriment of the entire industry.

In conclusion, let me say that violent acts associated with any

activity should be vigorously investigated and prosecuted

accordingly. It's unfortunate that in this case, it is the anti-

trust laws that are being vigorously applied to a situation that

resulted from an entire industry's lack of a clear understanding of

those laws as they related to their collective activity.

Sincerely,

Nick Furman,

P.O. Box 403, Coos Bay, OR 97420.

Note: Newspaper and magazine article notices have not been

reprinted here, however they may be inspected in Room 3229,

Department of Justice, Washington, DC and at the Office of the Clerk

of the United States District Court for the District of Oregon.

March 21, 1997.

Jim Edson, P.O. Box 518, South Beach, OR 97366.

Christopher S. Crook, U.S. Department of Justice, 450 Golden Gate

Ave, Box 36046, San Francisco, CA 94102.

Dear Mr. Cook: I am outraged at what is happening to the

crabbing industry. Thanks to the Justice Departments, we crab

fishermen will no longer be able to negotiate a fair price for crab.

The charges that were brought against the infamous 12 fisherman were

very unnecessary and the fact that they were threatened and

intimidated into paying for something they did not do is criminal.

The Oregon Dept. of Justice has handled this investigation in a very

despicable manner and we want these charges dropped against all

these men.

The Attorney Generals Office recently investigated the crab

industry on charges of price fixing and coercion. Apparently, they

found that 12 out of over 400 crab fishermen were involved.

Actually, all 400+ fishermen were equally guilty of all trying

to negotiate a fair price.

Now, the AG's Office is allowing the 12 villains to pick up the

tab for their botched inquiry.

[[Page 25655]]

Since the A.G. doesn't have a clue to who the bad guys are, it

might be wise to diagnose the problem. Maybe there are no bad guys,

just problems.

Fortunately for all of us, 2 of the villains, Scott and Charlie

have enough wherewithal and fortitude to challenge these bogus

charges.

There is something very wrong in a system that would punish

qualities such as honesty, integrity, and hard work, All qualities I

have personally observed in Charlie Schuttpelz and Scott Hartzell.

Jim Edson,

Commercial Fisherman, South Beach, OR, 541-867-3107.

Bill Bradbury, P.O. Box 1499, Bandon, Oregon 97411, 541-347-9377.

Mr. Christopher S. Crook, Acting Chief, U.S. Department of Justice

Anti-trust Division, Box 36046, 450 Golden Gate Ave, San Francisco,

CA 94102.

Re: Consent Decree regarding Commercial Crab Fleet

Dear Mr. Crook: From 1980 until 1995, I represented the South

Coast of Oregon in the Oregon Legislature, serving as a State

Representative and State Senator. During my tenure I became quite

familiar with the operations and challenges of the commercial

fishing industry of Oregon.

When I learned that 12 crab fishermen had been selected to bear

responsibility for the delay in the 1995-96 crab season, I was

outraged.

My outrage stems from the following. First, the practice of

delaying the season until a price is established between the

fishermen and the processors has been going on for over 30 years.

Second, during the delay, the processors were either not buying crab

or they offered a price below the fishermen's cost. The facts of

this case could easily be interpreted as a ``lock out'' by the

processors, not a ``tie up'' by the fishermen. Third, over 95% of

the vessels on the coast did not go fishing; to select out 12 people

for doing what 300 other fishermen also did seems grossly unfair.

The state may characterize the ones selected as the leaders,

however, more prominent leaders, especially in Newport where a coast

wide meeting was organized and held, were not named in this case.

The only common characteristic of the fishermen selected is that

they catch a lot of crab.

I request that you question closely the advisability of entry of

a consent decree that is unfairly selective of the defendants, is

widely perceived as unfair and that ignores the liability of the

processors in creating the situation in which the fishermen found

themselves.

My best,

Bill Bradbury.

March 19, 1997.

Christopher S. Crook, Acting Chief, U.S. Department of Justice

Antitrust Div., San Francisco, Ca 94102.

Dear Sir: In regard to the ten crab fishermen who have been

charged by the Oregon Attorney General's Office with price fixing

and who have agreed to pay a $9,100 fine and sign a consent decree.

As you may know, Oregon's anti-trust laws are more stringent than

Washington, California and the Federal Government's. There is a bill

before the senate sponsored by Rep. Terry Thompson, Newport (HB

2659) that would exempt Fishermen's marketing and trade

association's from Oregon's anti-trust laws. This would put Oregon

in line with Washington, California and the Federal Government. If

this passes and the Oregon Attorney General has stated he will not

oppose it, than the charges brought against the crab fishermen would

not be illegal and all charges should be dropped.

I am sending a copy of notes from the chairman of the Oregon

Crab Commodity Commission about his meetings and discussions in 1994

with the Oregon Assistant Attorney General Andrew Aubertine. It

looks as if he was just waiting for an opportunity to bring charges

against the top producers in the industry. Most if not all of the

crabbers charged are members of marketing associations. Please give

this your serious consideration.

Sincerely,

Travis Wolf,

88359 Hwy 101 N, Florence, Or 97439.

Nick Furman's Notes Regarding Meetings with Aubertine

Summary of Initial Contact/meeting With A. Aubertine--AG's Office

Oct.-Nov. 1994

10/12/94--Received call from Port Orford-area crabber with

question--Can/how can fishermen legally negotiate/establish ex-

vessel price with processors in a timely and orderly fashion prior

to the start of the season? Responded that I would check with an

attorney available to ODCC through AG's office, and get back with an

answer.

10/13--Was discussing an assessment-related collections issue

with Dan Rosenhouse (AG's office) on behalf of the ODCC, and posed

the fisherman's question to him. Dan said he wasn't comfortable

providing an answer on that type of issue, but he would contact a

colleague in Salem who might be better versed with that aspect of

the law.

10/17--Received a call from Andy Aubertine from the AG's office.

Stated that he wanted to set up meeting in Salem to discuss issue

further. Asked about the ODCC's role in preseason price process.

Explained role as a Commodity Commission, stating that we produced

an informational market summary and disseminated to the industry. No

additional role in process.

10/25--Aubertine called again, saying that ``Dept. of Justice

was on-board, and that they had a `game plan'.'' Wanted to meet on

11/3 in Salem with his superiors.

10/26--Aubertine called to confirm meeting and informed me to

bring ODCC documents (i.e. minutes, market reports).

10/31--Aubertine called again and scheduled the meeting for the

2nd.

11/2--Salem: Met with Aubertine and subordinate at 3 pm. in his

office. Immediately made to feel uncomfortable by his demeanor and

authoritative style. Was obviously on a ``fishing expedition'' and

had no interest in responding to my initial question. Asked a lot of

questions about the industry in an attempt to play ``catch-up''. Was

curious about the role of Eureka FMA and had never heard about All

Coast FMA. Summarized law by saying that only legal way to establish

price was ``one on one'' between fisherman and processor. Didn't

know the process of establishing a legal entity such as an

association, and wasn't in a position to offer free legal advise.

Couldn't help industry with problem and suggested that fishermen

hire a lawyer to answer question in more detail. Stated that Ag's

role was that of enforcement. Indicated that he would summarize our

conversation in writing, for a fee, if he received a written

request. Time is billed at $78/hr and $28/hr for an attorney and

assistant, accordingly.

Summary: Decided that any further contact with this individual

would be pointless and a waste of the Commission's money. Had no

authority to go any further with this issue.

March 12, 1997.

Debbie Coffman, 35807 Willama Vista, Eugene, OR 97455, (541) 746-

4760.

Christopher Crook, U.S. Department of Justice, Box 36046, San

Francisco, CA 94102.

Dear Mr. Crook: I am writing to you in regard to the

unconstitutional treatment that has been imposed on 12 coastal

fishermen. I have read numerous articles and letters that have been

directed toward the Attorney General's Office. I am sickened at how

corrupt our government has become and even more disheartened that

Hardy Meyers has not stood up and supported the fishermen that have

been threatened, coerced, and intimidated by the Justice Department.

Andrew Aubertine has violated these fishermen's rights. Farmers

and fishermen are among the hardest working people in the business

community. Their products are so perishable, marketing them has to

be done in advance, not when they have a boat load of crab, and a

unpredictable market. Their largest threat is ``Mother Nature''.

Storms and unpredictable weather were their worst nightmare until

the Attorney Generals Office decided to take down the crab industry.

How is it that they have selected these ``12'' fishermen? Who

are the fishermen that originally called in this complaint? Are they

honorable men worthy of trust? Has their background been

investigated? Out of hundreds and hundreds of fishermen, what

criteria did they use to select the 12 fishermen that have been

targeted? Ability to pay is what I have heard. The men that have

paid the settlement of $9,100. Paid because they were afraid that

litigation would cost them their livelihood and devastate their

families. They only settled because they were threaten to do so by

the A.G.'s Office. They were not guilty of anything. They were not

even charged. They were railroaded, pure and simple.

I have lived in a coastal community for years, so I can speak

from experience when I say that fishermen are the most honest

hardworking people in America. Every time that they head out to sea,

they risk their lives. I believe if this injustice is not stopped,

the State of Oregon will be subject to a huge class action lawsuit

from the whole fishing fleet for damages to the whole crabbing

industry.

[[Page 25656]]

These fishermen's civil rights have been violated and as a concerned

citizen I ask you to please look into this investigation. I believe

the Justice Department is guilty of numerous violations, threats,

coercion, intimidation, and the most terrifying is extortion!

Sincerely,

Debbie Coffman.

March 13, 1997.

Christopher S. Crook, U.S. Department of Justice, Box 36046, San

Francisco, CA 94102.

re: crab fisherman

Dear Mr. Crook: The Attorney General didn't know which end the

crab snaps until he attacked innocent Crab fishermen. Now he can

expect to get pinched himself for his unprofessional conduct,

threats, coercion, intimidation, and extortion. Their office doesn't

have a clue to how the industry operates and can't grasp the fact

that supply and demand controls the market, NOT THE ATTORNEY

GENERAL! He is leaving a trail of more innocent victims up and down

the coast suffering from harassment and threats in order for the

department to settle their trumped up cases. Our tax dollars in

action being wasted.

In 1994 Aubertine was asked by the Crab Commission, ``How can

fishermen legally negotiate a price for crab? '' Aubertine stated,

``I am in the enforcement division.'' Instead of working with the

crab commission and the fishermen, Aubertine decided to take down

the whole crabbing industry. He claims the fishermen he has charged

with price fixing, had hurt the economy and damaged the consumer in

Oregon, Washington, and California, quite a feat for 12 independent

crab fishermen out of 1,367 from all three states. The time in

question, 1995/96 season, crab was plentiful and very reasonable to

the consumer, there were millions of pounds of crab in cold storage.

How can the Attorney General decide when and at what risk these

fishermen should take, endangering their lives to harvest crab. It

is their right to tie up their boats when ever, and for what ever

reason they choose. If they choose not to join associations, like

the A.G.'s office is coercing them to do, it is there right. Never

should association's have more rights than an individual.

It is time for the Attorney General Office to admit the witch

hunt is over and get back to work.

I would like to see all these charges dropped against these

fishermen as the Justice Department has violated these fishermen's

civil rights as well as denying them due process of the law and used

extortion, threats, and intimidation to coerce them to settle when

they claim innocence.

Sincerely,

Katy Ellis

P.O. Box 87, Roseburg, OR 97470.

Chrispopher Crook, Acting Chief, San Francisco Office, Anti-trust

Division, Department of Justice, San Francisco, CA 94102.

Dear Sir: I am writing to you concerning the alleged price

fixing by The West Coast Commercial Crab Fishermen. My interest has

risen daily from reading the many public editorials and watchdogs

newspaper accounts. Somehow I don't think the Oregon Attorney

General's Office is doing justice, the more information I receive.

First of all I would like to know how the Fishermen were price

fixing crab at $1.25#, when their fellow West Coast Crabbers were

getting the same price or more during the time frame in question.

Please check these facts for yourself, Central California Dec. 1995

crab price was $1.50#, Puget Sound Washington Dec. 1995 price was

$1.25, British Columbia late fall 1995 price was $1.40 U.S. and

Washington tribal price Dec. 1995 was $1.25#.

The only thing I could find illegal so far from the alleged

boycott, was the apparent sabotage of a delivery truck in Brookings,

Or. If this incident really happened then someone should have been

criminally charged. As far as I know no one has been.

Now the Oregon Department of Justice is saying this

investigation has cost hundreds of thousands of dollars. I ask

myself is this taxpayers money well spent. After just reading that

Lawrence Singleton struck again and O.J. Simpson purchased a mansion

in Florida perhaps there is more injustice than justice in our legal

system.

The message that I am getting from the newspaper articles is

that perhaps Oregon Assistant Attorney General Andrew Aubertine

would have fit better in another era. Seem's to me that I have read

about his type before, during the Roman's persecution of the

Christians and the 17th century witch hunts.

In closing I would like to ask that the U.S. Department of

Justice immediately dismiss this case, and then see that Andrew

Aubertine is reprimanded for his vindictive investigation of

independent fishermen.

The current price paid to the fishermen for dungeness crab is

$2.50 a pound. I don't think it takes a rocket scientist to figure

out that supply and demand control the market.

Sincerely,

Dorothy Nicholson,

1525 West 20th, Florence, OR 97439, Ph. 541-997-3149.

March 6, 1997.

Christopher Crook, Acting Chief, San Francisco Office, Anti-trust

Division, Department of Justice, San Francisco, CA 94102.

Dear Sir: The charges of price fixing by the commercial Crabbers

seems to me to be an uncalled for attack on a few hard working

fishermen.

There are 1363 fisherman in Ore., Cal., and Washington. Why have

only 12 of these men been singled out and accused? Could 12 men have

possibly stopped all of these fisherman from taking their boats out

during the 1995-96 crabbing season? I think not.

Ten of these men have agreed to pay the fines imposed on them in

order to avoid further harassment by the Attorney Generals office.

Scott Hartzell and Charley Schuttpelz have refused to pay off and

admit guilt for something they are not guilty of.

Almost every year in my memory, the fishermen and the processors

have haggled over what a fair price for crabs should be. After a few

days a price is set by the processors and the Crabbers go out to

risk life and limb to bring in the crabs, and hopefully made a

decent living at it.

Why should these fisherman have to pay fines to pay the expenses

incurred in a lawsuit that never should have been started?

Perhaps the people in the Attorney Generals office that stared

this investigation should have to dig into their own pocket and pay

for their own mistakes. Unfortunately, it will be paid for by we,

the taxpayers.

Sincerely,

Rita J. Sellars,

908 Fir Ave., Reedsport, Ore. 97467.

March 1, 1997.

Christopher Crook, Acting Chief Anti-trust Div., U.S. Depart. Of

Justice, San Francisco, California.

Dear Sir: The Oregon Department of Justice led by Assistant

Attorney General Andrew Aubertine has conducted a witch hunt

investigation of crabbers. Apparently once he started he felt he

could not stop until he made some pay for his investigation. He has

coerced and intimidated the fisherman he has interviewed. The

statements that have come out of the Oregon Attorney Generals office

by spokeswoman Jan Margosian have always said more fishermen may be

charged. With this hanging over their heads and leading questions

some fishermen have been coerced into saying what Mr. Aubertine and

his other investigators wanted to hear. The Oregon Department of

Justice has made a mountain out of a molehill. This whole

miscarriage of justice by an over-zealous assistant attorney general

should be dropped. The ten fishermen who have signed the consent

decree and paid the fines, did so not because they had done anything

wrong but because of the huge attorney fee's they would be faced

with.

Sincerely,

Lyle Hartzell

05821 Canary Rd, Westlake, Or 97493.

February 19, 1997.

Box 27, Oysterville, WA, 98641.

Cristopher S. Crook, Acting Chief, San Francisco Office, U.S. Dept.

of Justice, Antitrust Div., Box 36046, Golden Gate Ave., San

Francisco, Calif., 94202.

Dear Mr. Crook: It has been very disturbing to follow the

escapades of Assistant Attorney General Aubertine in his attempts to

terrorize the west coast crab fleet by trying to hang price fixing

charges on key members of the industry. If you were to examine the

men he singled out, you would find that they are mainly guilty of

being able to pay these outrageous fines--with income other than

that of crab fishing, which has been dismal this season.

It is obvious the A.G.'s office did not want these cases to go

to trial. Could it be lack of evidence? Immediately after these

fines were levied it was made abundantly clear that to fight these

charges could be very, very expensive. If found guilty, not only

would the fishermen have to pay the fines, their lawyers, but also

the expenses of the A.G.'s office. This could easily amount to over

ten

[[Page 25657]]

times the cost of the fine. Even with a better than a 50% chance of

winning the case, the odds were so stacked against the fishermen

most of them simply signed off. With such a skewered system of

justice who could predict what might happen.

Although I haven't crabbed for several years, I have been

involved in the commercial fishing industry all my life. To ask a

fisherman not to talk about the price they expect to receive for

their catch is like asking freshmen highschool girls not to talk

about boys. Fishermen talking about price is a normal, natural

American thing to do.

Violence, intimidation and destruction of property to achieve

price goals is a different matter. Seems to me if any of this could

be proven real criminal charges should be filed--not phoney fines

with no realistic way of challenging them.

I contend that Mr. Aubertine, being fairly young, politically

ambitious and not too bright, spent a lot of state money on his

price fixing investigation in hopes of furthering his political

career. When the investigation came up short of hard evidence he

took the easy way out. He tried to recoup the money he had wasted by

singling out members of the industry by their ability to pay rather

than other reasons. He did it in such a way they had no chance to

defend themselves.

The solution is simple. If Mr. Aubertine has real evidence of

price fixing he should come forward with this evidence and file

charges. If he doesn't have this evidence he should accept the

responsibility of wasting the state's money and face the

consequences. This would include public apology to the men he

wronged and immediate disbarment proceedings.

Sincerely,

Peter G. Heckes,

Heckes Oyster Co.

Oregon Crabbers Fight To Stay Afloat

The two Oregon Crab Fishermen that have been charged with price

fixing must be mighty powerful forces to have done what they are

accused of. I have read the articles and editorials that have been

published, and have spoken with each of these fishermen.

It would appear from everything I have heard and seen that the

Department of Justice has used threats, coercion, and intimidation

to get these hard working, self employed fishermen to sign

statements saying that they are guilty when in fact they are not.

Most of these individuals simply could not afford to fight the

Attorney General on matters they didn't understand. Faced with fines

of over $100,000.00 and loss of their commercial fishing license

(their very livelihood) they simply caved in to the pressure, payed

the $9,000.00 ``settlement'' and went back to work.

It sure is odd that the Department of Justice alleges that

meetings were held to organize and enforce the conspiracy to fix

prices at $1.25 per pound when in fact they went fishing for $1.15

per pound, (which all the major fish plants were offering). If this

is price fixing then it sure went the wrong way! It would seem that

the rule of supply and demand set the prices. I should remind

everyone that since the dawn of time fishermen have had to negotiate

the best price they can for their product.

The State Attorney General Office said the lawsuit was filed

after several months of negotiations failed to produce a settlement.

What it should have said is they failed to produce a settlement

after the threats, intimidation and coercion didn't work. The

Assistant Attorney General, Andrew E. Aubertine, told these

fishermen that they would pay for this investigation, and the ones

who pay last will pay the most! I for one was unaware that this was

the way our elected officials conducted investigations. Now, you

tell me, who is guilty of coercion, threats, extortion, and

intimidation. Is it the hard working fishermen, or the overzealous

A.G.?

T.J. Lindbloom,

Roseburg, Oregon, 541-673-6047.

[FR Doc. 97-11939 Filed 5-8-97; 8:45 am]

BILLING CODE 4410-11-M