“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.

 

SSL Backs Effort to Secure ESA Listing for the Oceanic Whitetip

Run a Google search for the oceanic whitetip shark (Carcharhinus longimanus), and you’ll be inundated with sites describing how “dangerous” this shark is.  Tales of the whitetip preying on shipwrecked sailors have given it a reputation as a “menace” with a “bad attitude.”  One site, ostensibly dedicated to the dissemination of objective information, analogizes the whitetip to a calculating criminal:  “The oceanic whitetip may only have seven unprovoked attacks and two fatalities on the books, but that’s because it might be getting away with many of its crimes by not leaving any evidence.”

Amidst all the sensationalism, there is a grain of truth:  The oceanic whitetip is associated with crime, violence, and death.  Unfortunately for the shark (and for journalists looking for sexy headlines), the whitetip is the victim, not the perpetrator.

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The oceanic whitetip shark. Photo credit: Joe Romeiro (2010).

As with so many other sharks, the oceanic whitetip is being devastated by the combined forces of targeted shark-fishing (including for the fin trade), by-catch, and habitat degradation.  Population studies reveal an alarming trend:  This most “dangerous” of sharks is being wiped out by people, and it’s happening at a dizzying pace.

In 2006, the International Union for the Conservation of Nature (IUCN) listed the oceanic whitetip as “vulnerable” worldwide.  The IUCN came to this conclusion based on rigorous population studies, finding, inter alia, that the oceanic whitetip had: (1) suffered a population reduction of greater than or equal to 30% over the last 10 years or three generations, and (2) that a population reduction of greater than or equal to 30% was projected or suspected to be met within the next 10 years or three generations based on actual or potential levels of exploitation.  Those are big, frightening numbers — and the problem has only grown worse since the IUCN made its determination in 2006.

The good news is that international and domestic law contain provisions to protect species facing extinction or a threat thereof.  Internationally, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) serves as a bulwark against cross-border trade that exacerbates the risk of extinction.  Domestically, the Endangered Species Act (ESA) provides additional protections.

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In 2013, responding to a proposal co-sponsored by the United States, the Conference of the Parties agreed to list the oceanic whitetip in CITES Appendix II.  Appendix II contains species that are not necessarily now threatened with extinction but that may become so unless trade is closely controlled.  Accordingly, international trade in Appendix II species requires a permit issued by the nation of export.  Under CITES, the exporting nation shall not issue a permit unless it has determined that trade will not be detrimental to survival of the species in the wild.   Although Appendix II protections are not as robust as the protections afforded under Appendix I (which, among other things, requires an import permit in addition to an export permit, building in a second layer of control), the 2013 CITES listing certainly represents progress for the oceanic whitetip.

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Now it’s time for the ESA to get into the mix.  Although CITES plays a key role in protecting species from threats related to international trade, many of the activities harming the oceanic whitetip fall outside of the CITES framework.  By-catch is perhaps the best example.  If tuna fleets incidentally catch sharks — throwing them back in the water dead or dying, as is usually the case — CITES has little to say about that.  Again, the convention only covers international trade.  Likewise, if nationals of a given country harvest oceanic whitetip for sale in the domestic markets of that same country, CITES is not implicated.  The ESA, on the other hand, starts to pick up the slack, covering  important non-trade-related activities (subject, of course, to jurisdictional limitations).

Good tidings may be on the way:  the National Marine Fisheries Service (NMFS) recently made a positive 90-day finding on a petition to list the oceanic whitetip as endangered or threatened under the ESA.  The petition, filed by Defenders of Wildlife (Defenders), provided overwhelming evidence of the need for listing.  In its  90-day finding, NMFS made the threshold determination that the petition “present[ed] substantial scientific or commercial information indicating that the petitioned action of listing the oceanic whitetip shark worldwide as threatened or endangered may be warranted.”  81 Fed. Reg. at 1385.  The next step is a 12-month finding, wherein NMFS will determine whether listing is in fact warranted.  (Short of a worldwide listing, NMFS could also list “distinct population segments” of the oceanic whitetip.)

In the meantime, Defenders has not let up.  On Monday, Defenders filed comments on the positive 90-day finding, providing new scientific evidence of the whitetip’s plight and a variety of other information to encourage NMFS to make the right call.  Sea Shepherd Legal was honored to join these comments, standing alongside Defenders and several other prominent groups (including Animal Welfare Institute, Center for Biological Diversity, Humane Society International, the Humane Society of the United States, and WildEarth Guardians) to demand protection for this imperiled species.  Please click here to view the comments in their entirety.

To help support our legal work to save sharks and other marine species, please consider making a tax-deductible donation or contacting us for volunteer opportunities (info@seashepherdlegal.org).