“Who in the World Would Buy That?” Wildlife Trafficking Leaves Judges Scratching Their Heads — And Species Paying the Price

At this moment the Sea Shepherd Legal team sits in a hall filled with judges, ambassadors, prosecutors, and the leaders of the most critical international conventions that exist.  We all share a common goal:  to ensure that law promotes rather than hinders environmental protection.  The proceedings of the World Environmental Law Congress in Rio de Janeiro have left us feeling empowered.  Meanwhile, events in the Pacific Northwest leave us stunned.

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This week’s sentencing in United States v. Yeng — where District Judge Robert E. Jones ordered two wildlife traffickers to a trifling $12,500 fine and a mere six months in prison — makes for a sour stew of cognitive dissonance.  While the international community and national authorities endorse the notion that we ought to treat wildlife offenses as serious crimes, sentences like this undermine the global fight against biodiversity loss. High-level declarations, like those accomplished here at the Law Congress, mean nothing if they are not reinforced by meaningful outcomes in individual cases.

What went wrong on Wednesday?   First and most obvious is the simple fact this sentence is woefully inadequate when examined alongside the facts of the case.  The defendants, Eoin Ling Churn Yeng and Galvin Yeo Siang Ann, didn’t just have a momentary lapse of reason.  These men ran a complex smuggling ring for a full decade, marketing parts from critically endangered species, offering everything from orangutan skulls to whale bones.  They peddled their goods through an online store called Borneo Artifact, using PayPal to collect their fees.  And they knew exactly what they were doing, advising buyers to describe the wildlife parts as unsolicited gifts in response to questioning by enforcement agents.

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The maximum sentence for smuggling illegal wildlife artifacts is five years and a $250,000 fine.  The Yeng defendants walked off with a fraction of that, scoring sentences that topped out at only 1/10 of the maximum available prison time and 1/20 of the maximum available financial penalty.

But why did the judge hand down this insufficient sentence?  Yes, the defendants pleaded guilty, saving the court and prosecutor’s office the significant resources involved in a trial.  Yet this happens in most cases.  There was another dynamic, one that is all too common in wildlife cases:  the court simply failed to grasp the gravity of the defendants’ crimes.

After recounting the various specimens involved, Judge Jones asked one very telling question:  “Who in the world would buy that?”  Think about that for a moment.  Would a judge ask this question when sentencing drug traffickers?  Would this query arise in a case involving human trafficking, gun running, or any other smuggling activity?  In these contexts, judges seem to understand that there is always a buyer for vice, that market demand doesn’t end where the law says it should.

The problem is this:  When judges fail to capture the existence and extent of market demand, they tend to dismiss associated crimes as unimportant.  This in turn leads to lower sentences, sending a signal of apathy that reverberates down the line to prosecutors and enforcement agents.

This presents an enormous challenge for wildlife.  Despite estimates that wildlife trafficking is one of the most lucrative black markets, behind only the trade in drugs, arms, and humans, wildlife crime lags globally in investigations, arrests, and prosecutions.  With their position at the zenith of the justice system, judges have the ability to change all of this for the better.  But judges can’t do that if they don’t understand why these crimes happen and the havoc that they wreak.

Wildlife crime is serious crime.  Judges must begin to see it as such.  Until then, criminals will continue to exploit this soft spot in the criminal justice system.

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To respond to this void, one of Sea Shepherd Legal’s core programs involves providing capacity enhancement for judges, prosecutors and enforcement officials.   We do this globally – to protect the world’s imperiled marine wildlife and habitats.  Please help us continue in this critical work.

 

Do You Know Your Grouper’s History? Are You Even Sure It’s Grouper? SSL Tackles Traceability

In 2010, a federal judge sentenced the former CEO of Sterling Seafood Corporation, Thomas George, to 22 months in prison for importing falsely labeled fish from Vietnam.  Why import Asian catfish when you can call it grouper?  Not only does the switcheroo avoid massive anti-dumping tariffs (a savings of $60 million in the Sterling incident), but grouper sells for four times the price of Asian catfish.  Lower taxes and higher profit — it’s every businessman’s fantasy!

Although Thomas George paid a price for his crime, the 2010 incident points to a larger dynamic:  We know very little about the origin and true nature of the seafood sold in U.S. restaurants and supermarkets.  Approximately 90 percent of seafood for human and pet consumption in the U.S. is imported, and current global studies suggest that one in every five fish is harvested illegally.  Even when the fish you purchase has been caught in compliance with the law, that is no guarantee that the fish won’t be subject to misrepresentation at some point along the dark and winding path to the ultimate consumer.  Catfish from Vietnam becomes “grouper”; orange roughy  becomes “deep sea perch.”

Fish at market. Photo credit: NMFS.

Fish at market. Photo credit: NMFS.

Hands down, the only real way to protect the oceans is to stop exploiting them altogether.  Short of that, how can a nation ensure that seafood imports are not illegally caught or fraudulently labeled?   Although many factors are in play, the key lies in the concept of traceability.  Traceability refers to authorities’ capacity to trace the catch back to the point of harvest — to pin down the where, when, and how of marine fishing.  With a robust and dependable traceability system, customs and fisheries authorities can call importers’ bluffs and ensure that imports of illegal and mislabeled fish — prohibited under the Magnuson-Stevens Fishery and Conservation Management Act (MSA) — do not find a home on U.S. plates.

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To ensure that the U.S. has the strongest traceability program possible, Sea Shepherd Legal (SSL) recently submitted comments to the National Marine Fisheries Service (NMFS) on a proposed traceability and import monitoring program.

Although SSL applauds NMFS for proposing this rule—and finds several aspects of the rule worthy of praise—the contemplated provisions fall short in several ways.  Here, we provide a few of the highlights.  Visit this site to view our comments in full.

NMFS Should Expand the Rule’s Reach To Cover All Species

First, NMFS takes the odd and statutorily dubious approach of limiting the monitoring program to a limited list of species. While we agree that the identified species are subject to high levels of IUU fishing and fraud—and should therefore receive coverage under the rule—inclusion of these species does not imply exclusion of everything else.   ALL species should be covered.   At the very least, we encourage NMFS to reconsider its treatment of conservation data. The correlation between species vulnerability and threats from IUU fishing is not perfect, but this does not mean that there is no correlation at all. NMFS can and should modify the proposed rule to cover species that face the dual threat of extinction and high levels of IUU fishing.

NMFS Should Expand the Rule’s Reach To Cover Highly Processed Fish Products

Second, and in a similar vein, by failing to cover highly processed fish products (like fish sauce and fish sticks), the rule contains a gaping hole. NMFS appears to believe that it would be too difficult to identify feedstock fisheries and hold them accountable. However, NMFS offers no facts to back up this hunch, a particularly dangerous proposition given the large market share held by highly processed fish products. By encoding this exception into the monitoring and traceability program, NMFS is all but inviting this sector of the market to take advantage of IUU fishing and seafood fraud. Nothing in the statute allows this exception, and common sense precludes it.

NMFS Should Define “Area” with Specificity

Third, the proposed rule is dangerously ambiguous about a key piece of information that importers would have to submit to establish traceability: the location of the catch. Although the proposed rule requires information on the “area(s) of wild-capture,” it fails to define “area” or explain what information might satisfy this requirement.  This is a major oversight. For instance, if identification of the relevant FAO “area” suffices, the requirement is essentially meaningless. Those “areas” are far too expansive to provide certainty as to the governing rules in the location of harvest, as they include multiple Exclusive Economic  Zones (EEZs) and regions covered by numerous Regional Fisheries Management Organizations. We urge NMFS to define “area,” and to do so in a way that allows traceability with precision. “Area” should mean precise coordinates of the catch.

FAO Major Fishing Area 77 stretches from Panama in the east to well past Hawaii in the west, and from 40 N to 25 S.

FAO Major Fishing Area 77 stretches from Panama in the east to well past Hawaii in the west, and from 40 N to 25 S.

NMFS Should Modify the Proposed Rule To Target All Fish from IUU Vessels

Fourth, in comparison with its counterpart in Europe (the EU IUU regulation), the proposed rule goes too light on IUU vessels. Unlike the EU IUU Regulation, the proposed rule does not contemplate prohibition of all imports of fish from known IUU vessels. Instead, the rule contemplates prohibition of imports of IUU fish (actually, to be precise, the rule proposes a traceability scheme to ensure that this prohibition can be implemented effectively). This approach creates a potential loophole for IUU vessels. To the extent that these vessels occasionally catch fish without breaking laws, such catch could conceivably be imported to the United States without running afoul of the proposed rule. Such fish would be embargoed in Europe but not in the U.S. Insofar as the proposed rule offers refuge—even limited refuge—for IUU vessels, it is bad policy. We urge NMFS to revisit its statutory authority with this in mind. The MSA is flexible enough to allow for a flat ban on all fish from known IUU vessels. Not only would this place greater pressure on IUU fleets, it would have the benefit of harmonizing the U.S. and EU approaches, creating a unified front between the two largest import markets.

NMFS Should Include a More Rigorous Inspection Scheme

Fifth, the proposed rule should include a more aggressive scheme for inspections and audits. The traceability program will not amount to much unless it is backed up with a rigorous scheme to verify the truthfulness and accuracy of the information reported. While it may be unrealistic to require physical inspections of each and every piece of cargo going forward, NMFS should consider universal inspections for at least a limited period of time to establish a baseline. If these inspections reveal minimal issues with intentionally or negligently misreported information, NMFS can then scale back inspections accordingly. To begin the program with only limited inspections and audits is to assume—ex ante and with little factual basis—that compliance will not be a major issue.

NMFS Should Integrate the Seafood Import Monitoring Program with Its Work under the Moratorium Protection Act

Sixth, we encourage NMFS to integrate the proposed seafood monitoring program with its obligations under the High Seas Driftnet Fishing Moratorium Protection Act (Moratorium Protection Act). If NMFS obtains information on attempted IUU imports in the course of administering the monitoring program, NMFS should use that information in carrying out its obligation to identify nations with vessels engaged in IUU fishing. Although we suspect NMFS already has this in mind, an explicit provision to this effect would be prudent. NMFS should make it plain—to both the regulated community and other agencies—that NMFS will use information collected under the import monitoring program to further its duties under the Moratorium Protection Act

The Proposed Rule Is Consistent with International Trade Law

Finally, we offer a brief rebuttal to the notion that the proposed rule violates trade norms under the World Trade Organization and associated agreements. The proposed rule does not discriminate between trading partners; it imposes no quantitative restrictions; and, as NMFS observes, it does not run afoul of the national-treatment obligation because “equivalent information is already being collected at the point of entry into commerce for the products of U.S. domestic fisheries pursuant to various Federal and/or State fishery management and reporting programs.”  Simply put, any claim that this rule violates international trade norms is dead on arrival.

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In sum, while the proposed rule represents a step in the right direction, it does not go far enough. The rule falls short of the basic requirements of the MSA—including its overriding focus on conservation—all while preserving major channels for what should be unlawful importation and building in opportunities for abuse. Marine wildlife and the American public deserve better.

Please consider supporting our work to combat IUU fishing and seafood fraud by making a tax-deductible donation.