Sea Shepherd Legal Lands in South Africa for CITES CoP 17

The Sea Shepherd Legal team has landed in Johannesburg, South Africa, as an official NGO observer of the 17th meeting of the Conference of the Parties (CoP) to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).  Over the next two weeks, we will be advocating for greater protection for endangered marine wildlife.  Along the way, we will be posting daily recaps, calls to action, and important developments.

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CITES is a global environmental treaty regulating international trade in endangered species.  While trade in elephant ivory and rhino horn grabs many of the headlines, CITES also plays a critical role in trade related to marine wildlife.

Unfortunately, marine species have often receive short shrift under CITES.  This is especially true for species targeted by commercial fisheries, as many parties have insisted that regional fisheries management organizations (RFMOs) serve as the proper vehicles for governance.

Yet, it is undisputed that CITES was designed to target trade in all threatened and endangered species.  The treaty makes no distinction between marine and terrestrial wildlife, and the presence of other governance instruments (like RFMOs) neither logically nor legally precludes CITES protection.

Building on the successes of the 16th CoP in Thailand — where the parties agreed to list five species of sharks and all species of manta rays in Appendix II  — Sea Shepherd Legal will be pushing for further listings for marine wildlife.

Proposals this year include the silky shark (Carcharhinus falciformis), thresher sharks (Alopias spp.), and devil rays (Mobula spp.), along with nautilus species (Nautilidae spp.) and two species of reef fish (Pterapogon kauderni and Holacanthus clarionensis).

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The silky shark is taken in large numbers in target and by-catch fisheries.  By 2013, the proportion of silky fins in the international market had increased to levels as high as 7.47%.

In addition to pushing for the adoption of these proposals — hardly a guaranteed outcome, unfortunately — we will be highlighting the key role of enforcement, including Sea Shepherd’s collaborative efforts with government forces to combat Illegal, Unreported and Unregulated fishing, as well as to protect the critically endangered vaquita and totoaba, both of which are listed in CITES Appendix I.

Stay tuned to this blog for updates, and consider making a donation to support our work to leverage CITES in favor of marine wildlife.

 

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NMFS Adopts Sea Shepherd Legal’s Recommendation to Eliminate Exemption for “Highly Processed Fish Products” from MMPA Import Rule

Yesterday, the National Marine Fisheries Service (NMFS) announced a final rule implementing the import provisions of the Marine Mammal Protection Act (MMPA).  As we reported in a November 2015 blog post, Sea Shepherd Legal (SSL) submitted an extensive set of comments on the proposed rule.  Although the final rule leaves much to be desired, we are pleased to see that NMFS adopted at least one of our recommendations:  elimination of the proposed exemption for “highly processed fish products” (e.g., fish sauce and fish sticks).

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What you don’t see at the supermarket. Photo credit: AP/Wide World Photos.

Why does this matter?  To grasp the importance of this rule—and the significance of the elimination of the exemption for highly processed fish products—it is helpful to understand the purposes and history of the MMPA.

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In 1972, Congress passed the MMPA.  Just as it had with the Clean Water Act—also passed in 1972—the Congress of that era designed the MMPA to respond aggressively to the destruction of nature.  To that end, the MMPA prohibits the “taking” of marine mammals in U.S. waters and by U.S. nationals abroad, as well as trade in parts or products of marine mammals.  With a notable and lamentable exception—the killing of sea lions, ostensibly to protect endangered salmon runs—this moratorium has been a consistent bulwark against the intentional killing of marine mammals in U.S. waters or by U.S. nationals.

So far, so good.  But what about incidental killing and other forms of non-intentional take?  Does the MMPA contain any provisions addressing these problems?

Answer:  Yes.  When Congress enacted the MMPA, it recognized bycatch as a major threat to marine mammals.  Accordingly, Congress included language requiring U.S. fisheries to drastically reduce bycatch.

In addition, given the amount of foreign-caught seafood sold in the U.S., Congress included a provision requiring similar bycatch performance by foreign fisheries importing to the U.S.  Unfortunately, for want of implementing regulations, that provision has collected dust for over 40 years.

Now, finally, that provision will have some teeth.  The import rule announced yesterday will make significant progress toward reducing marine mammal bycacth associated with foreign-caught fish entering the U.S. market.

We are extremely disappointed by NMFS’ failure to incorporate several of our suggestions.  Without any convincing justification, NMFS has maintained a generous grace period for compliance, failed to incorporate a complete ban on fish from nations involved in the intentional killing of marine mammals (e.g., salmon from Scotland, where farmers intentionally kill pinnipeds), failed to adequately impose bycatch standards applicable to U.S. fisheries (e.g., the goal of reducing incidental mortality and serious injury of marine mammals to insignificant levels approaching zero), and maintained weak comparability standards.  Nevertheless, in our line of work, partial victories must be celebrated.

By heeding our suggestion to eliminate the exemption for highly processed fish products, NMFS has tacitly acknowledged that this exemption would have encoded a massive loophole.  The exemption would have allowed fisheries that supply the enormous market for things like fish sauce, fish paste, and fish sticks to be entirely free of bycatch requirements.  Failing to include these products would preserve importing fisheries’ ability to take marine mammals in large quantities, all while unfairly subsidizing fisheries specializing in these products.

As we explained to NMFS in our initial comments:

“[B]y 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.  However, NMFS offers no facts to back up this hunch, and the agency’s position is contradicted by the rule’s proposed approach to intentional-kill fisheries.  If exporting and U.S. authorities are capable of distinguishing between salmon accompanied by intentional kills and salmon free of intentional kills, they should also be capable of policing the fisheries that feed into sauces and sticks.  In any case, nothing in the statute allows this exception.”

NMFS has responded as follows:

“NMFS is modifying the rule to remove language excluding highly processed products from the definition of fish and fish products.”

Yes, comments can make a difference.  While the final rule is far from ideal, we are pleased to have moved the needle in favor of greater protection for marine mammals around the globe.

Help support our work to improve the MMPA and other conservation laws by making a tax-deductible donation.

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For those interested in more details, here is how we framed the issue in our comments:

The proposed rule excludes from its reach “highly processed fish products” (fish oil, slurry, sauces, sticks, balls, cakes, pudding and other similar highly processed fish products).[1]  NMFS has made little effort to justify this exclusion, which is perhaps understandable:  The exclusion is at cross-purposes with the broader rule and the MMPA as a whole.

Highly processed fish products make up a significant share of the market.  Failing to include these products will preserve importing fisheries’ ability to take marine mammals in large quantities, all while unfairly subsidizing fisheries specializing in these products.  It would be incredibly difficult to justify this exception even in the face of explicit statutory authorization.  Here, NMFS is conjuring the exception out of thin air.  Not only is the exemption of highly-processed fish products unwise, it is statutorily impermissible.

To understand the imprudence of this exception, we must first grasp the size of the market for imports of highly-processed fish products. Fortunately, NMFS maintains telling statistics on these products.[2]  At just a glance, it is obvious that these products are big business.

For instance, in 2014, the U.S. imported over 20,000 metric tons of fish sticks with a value of nearly $100 million.[3]  As for “pastes and sauces,” foreign fisheries shipped in over 22,000 metric tons with a value north of $36 million.[4]  Imports of “fish balls, cakes, and puddings”—another category that NMFS proposes to exclude—weighed in at over 17,000 metric tons with a value of nearly $70 million.[5]

Not only do these products arrive in substantial quantities; their production wreaks havoc on marine mammals along the way.  It would be one thing, perhaps, if the involved fisheries were not associated with bycatch of marine mammals.  But that is just not the case—not by a long shot.

Fish sauce, for instance, is primarily made up of anchovies.   Global anchovy fisheries are associated with both high overall bycatch—grouped together by the FAO for statistical purposes, anchovies, herring, and sardines together yield over 1 million metric tons of annual bycatch[6]—and significant impact on marine mammals.  Anchovy fisheries off the coast of Argentina, for example, have been associated with bycatch of the dusky and common dolphin.[7]

Fish sticks tend to be made from groundfish species, primarily cod, pollock, and haddock.  Many techniques are employed to catch these fish, including gillnets and bottom trawls.  Although data is lacking, evidence from U.S. groundfish operations suggests that bycatch of marine mammals is a significant concern.  For instance, harbor porpoise kills in the Gulf of Maine sink gillnet fishery for groundfish have been alarmingly high—at least equal to and perhaps greater than the rate of replacement.[8]

Given the size of the market for highly processed fish products—and the correspondent impact on marine mammals—why has NMFS chosen to grant such a major exception?  According to NMFS, it is not really a choice but rather a matter of necessity.  The agency claims that these products “cannot be tracked back to one species of fish or a specific commercial fishing operation.”[9]  There are two problems with this statement: the premise and the conclusion.

Starting with the premise, why does it matter whether a product can be “tracked back to one species of fish or a specific commercial fishing operation”?  If two species of fish or several fishing operations feed into a certain brand of fish sauce, is NMFS suggesting that it would be inappropriate to regulate those fisheries because they are two or more rather than one?  That cannot be the case.  After all, the proposed rule as a default encompasses all fisheries and species.

Instead, NMFS seems to be suggesting that regulation is inappropriate because it would be too difficult to determine which fisheries or species—regardless of number—feed into a particular product.  What evidence has NMFS furnished to support this position?  None.  NMFS has not even cited data to suggest that these products tend to be an amalgam of several species and fisheries, let alone evidence to support the claim that it would be overly burdensome to untangle the production chain.

At the very least, NMFS must explain itself.  This explanation should include an analysis of the various regulatory options and the burdens associated with those options.  Unless NMFS can demonstrate that effective regulation would be practically impossible, it is under a statutory obligation to regulate these products.[10]  The MMPA commands NMFS to “ban the importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards.”[11]  Nothing in the statute authorizes NMFS to except certain fish products.  To the contrary, the statute is written as all-encompassing.

One obvious route would be for NMFS could to regulate imports of highly processed fish products by requiring the ultimate importer to report the feedstock fisheries.  This would shift much of the burden to the ultimate importer.  NMFS would obviously need to vet the proposed means of implementation and monitor the importer (or importing nation) for compliance, but this is always the case.

It is also worth noting that many highly-processed fish products tend to be higher in fat and cholesterol and lower in nutritional value.[12]  Many brands of fish sticks, for instance, contain trans fats.  By exempting these products from the rule’s scope, NMFS is giving them a regulatory advantage in the marketplace.  Yet, if anything, these products merit more regulation, not less.[13]

[1] 80 Fed. Reg. at 48,192 (col. 2) (setting forth language of proposed modification to 50 CFR 216.3).

[2] NOAA Fisheries, U.S. Foreign Trade, Commercial Fisheries Statistics, at http://www.st.nmfs.noaa.gov/commercial-fisheries/foreign-trade/.

[3] NOAA Fisheries, Imports and Exports of Fishery Products, Annual Summary, 2014, available at http://www.st.nmfs.noaa.gov/commercial-fisheries/foreign-trade/.

[4] Id.

[5] Id.

[6] FAO, Estimates of Global Fishery Bycatch and Discards, Table 6, available at http://www.fao.org/docrep/003/t4890e/t4890e03.htm.

[7] E.a. Crespo et al., “incidental catch of dolphins in mid-water trawls for southern anchovy off patagonia,” Journal of Cetacean Research and Management 2 (2000): 11-16; S.l. Dans, “incidental catch of dolphins in trawling fisheries off patagonia, argentina: Can populations persist?” Ecological Applications 13, no. 3 (2003): 754-762.

[8] Waring, G.T., Palka, D.L., Clapham, P.J., Swartz, S., Rossman, M.C., Cole, T.V.N., Bisack, K.D., and Hansen, L.J.  1999.  U.S. Atlantic Marine Mammal Stock Assessments – 1998. NOAA Technical Memorandum NMFS-NE-116: 151-159.

[9] 80 Fed. Reg. at 48,174 (col. 2).

[10] Abramowitz v. EPA, 832 F.2d 1071, 1079 (9th Cir. 1987) (“Although the Agency’s task may be difficult, it must nevertheless comply with its legislative mandate.”) (superseded by statute on other grounds).

[11] 16 U.S.C. 1371(a)(2).

[12] Id.

[13] In this regard, NMFS’ approach is at cross-purposes with the FDA’s push to exclude trans fats from the domestic marketplace.  FDA, The FDA Takes Steps to Remove Artificial Trans Fats in Processed Foods, at http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm451237.htm (June 16, 2015).

“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.

 

Brazilian Prosecutors Fight to Save the Guiana Dolphin

The Guiana dolphin (Sotalia guianensis), or “boto-cinza” in Portuguese, is a symbol of Rio de Janeiro — literally.  The city flag features a pair of red, stylized Guiana dolphins cradling Rio’s coat of arms.

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Rio’s flag. Credit: Google Images.

 

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Guiana dolphins (a.k.a. boto-cinza). Credit: Google Images.

Federal prosecutors in Brazil are fighting to make sure this species remains more than just an image on a flag.  Like so many cetaceans, the Guiana dolphin is under siege from multiple angles, absorbing attacks from overfishing (depleting the dolphins’ source of food), by-catch, and habitat modification.  The coastal Guiana dolphin (there is also a freshwater variant) is listed in Appendix II of the Convention on the Conservation of Migratory Species of Wild Animals (CMS).  Its listing in Appendix II signifies that it has an unfavourable conservation status and would benefit significantly from international co-operation.  This determination is echoed in Brazlian wildlife law, where the dolphin is listed as “vulnerable.”

On February 10, the Brazilian federal prosecutors’ office (Federal Prosecution Service or Ministério Público Federal, in Portuguese) issued a document detailing the critical state of affairs and requesting immediate action by public and private actors.

In coordination with the prosecutors’ office, Sea Shepherd Legal has agreed to disseminate this document and its central message:  Absent significant and rapid change, the Guiana dolphin could well disappear from the Baia de Sepetiba/Ilha Grande region in southern Rio de Janeiro.  (Scroll to the bottom of this post for a link to the document, in Portuguese.)

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Map of the state of Rio de Janeiro, with Baia de Sepetiba/Ilha Grande in the lower left-hand corner, near the border with Sao Paulo. Credit: Google Images.

The highest number of Guiana dolphins registered in Brazil — and in the world — is found between the cities of Itaguai, Mangaratiba, and Angra dos Reis, all three of which hug the Baia de Sepetiba.

Yet, as the Ministério Público Federal explains, the Guiana dolphins in Baia de Sepetiba/Ilha Grande have been decimated in recent years.   In 2002/2003, a population study identified approximately 1,300 individuals.  Today, there are fewer than 800   That’s a drop of roughly 40% in just over a decade.

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Percentage of carcasses recovered in Baia de Sepetiba, by year (2005-2015).                      Credit: Instituto Boto Cinza.

 

Why is the local population crashing?  The causes are manifold.  Here are a few of the more important factors (per the Ministério Público Federal):

  • Overfishing of prey species
  • Incidental capture (by both commercial and artisanal fishermen)
  • Pollution
  • Decreased habitat
  • Increased boat traffic
  • Port development
  • Other industrial and urban development in coastal regions

The combined harm from all these sources has produced a scenario where the Guiana dolphin may be entirely wiped out from Baia de Sepetiba/Ilha Grande — and all of Rio state — in ten years’ time.

As this list of factors suggests, this truly is a “death by a thousand cuts” scenario for the dolphins.  But some cuts go deeper than others — and, perhaps ironically, some of the deepest cuts also seem to be the most preventable.  For instance, the federal government plans to double the size of the channel that runs through the heart of the dolphins’ habitat in Baia de Sepetiba.  Vessel traffic will double from approximately 1,800 vessels per year to 3,600 vessels per year.  The vessel traffic displaces dolphins, which then die in fishing nets.  The noise interferes with echolocation.  And this is to say nothing of the harm produced by dredging and explosions associated with the project in the first instance.

As bad as that is, the harm is compounded by the activities of artisanal, commercial, and illegal fishing operations, mainly targeting tuna.  The increased vessel traffic through the channel is displacing dolphins and fisherman, corralling them into a smaller region.  This has resulted in increased human-dolphin interactions and extremely high by-catch and mortality.

What’s more, according to the federal prosecutors’ office, fisheries enforcement in the Baia de Sepetiba/Ilha Grande region is “practically zero.”  Even if the vessel traffic remained constant, effective fisheries enforcement could at least reduce by-catch by limiting illegal fishing, fishing with prohibited gear, and so forth.  As is, the token enforcement efforts have not reduced dolphin mortality one bit.

Besides all this, there are slews of vessels that anchor right in the middle of the dolphins’ favored areas of concentration. This is yet one more controllable factor that is displacing the dolphins toward fishing nets, toward death.

All this bad news notwithstanding, there is reason for hope.  The federal prosecutors’ office has made this issue a priority and is putting pressure on the major players — public and private alike — to avert disaster.  Among other measures, the prosecutors’ office is calling for:

(1) The creation of a coalition police force to monitor and respond to illegal and excessive fishing, with mandatory patrols in the bay every week.

(2) The preparation of a technical study by the Brazilian Institute of Environment and Renewable Natural Resources (IBAMA) to verify the need for changes in fishing practices and regulations in the Baia de Sepetiba/Ilha Grande region.

(3) The formation of a new group under the auspices of the State Environmental Institute (INEA) — the primary body involved in project licensing in the bay — with the task of reassessing mitigation measures to improve conditions for conservation.  To add credibility to this group, the federal prosecutors have requested the participation of the Instituto Boto Cinza.

(4) The creation of a new plan by INEA to promote community-based tourism as an alternative source of income for local fishermen.

(5) The immediate cessation of any additional licensing by INEA that could cause harm to the dolphins and their habitat, pending additional scientific study.

(6) The prohibition, by the port authority in Rio de Janeiro, of anchoring in the dolphins’ favored areas of concentration.

The prosecutors’ office has given the relevant public authorities 10 days to respond to its report and recommendations for policy changes.  We will be following the story and will keep our readers abreast of important developments.

In closing, we congratulate the Ministério Público Federal for its brave and important efforts to save these beautiful creatures.   Sea Shepherd Legal looks forward to assisting this campaign in any way it can.  Keep up the good fight!

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Link to document from Brazil’s Ministério Público Federal: Recomendação 5-2016 – diversas autoridades – Boto-Cinza – IC 153-2014-17

From Panama to the Netherlands – Sea Shepherd Legal on the Global Campaign Trail

Sea Shepherd Legal spent the past month on the campaign trail forging relationships with officials globally to protect marine wildlife and habitats.  These in-person meetings set the stage for a great start to 2016.  Here are a few of the highlights:

RESOUNDING SUCCESS IN PANAMA

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In November, SSL arrived in Panama for the Seventh Annual Congress of the Red Latinoamericana de Ministerio Público Ambiental (Latin American Environmental Prosecutors’ Network, or “the Red”).  The Red is a forum through which 300+ state and federal environmental prosecutors across Latin America share ideas and collaborate regarding effective methods to combat environmental crimes ranging from illegal logging to wildlife trafficking.

SSL’s goal in attending was to highlight the plight of the oceans and the critical need to develop and enforce marine protective laws throughout the region.  We received an overwhelmingly positive response, reflected in (1) an official declaration stating that Red is dedicated to working with SSL; and (2) the establishment of a marine subcommittee to help facilitate immediate and active collaboration between Red and SSL.

COALITION-BUILDING IN STRASBOURG, FRANCE

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SSL participated as an official observer at the annual meeting of the Standing Committee to the Convention on the Conservation of European Wildlife and Natural Habitats (the Bern Convention).  The meeting was held at the Council of Europe’s Palais de l’Europe in Strasbourg.

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Attending this meeting was key to SSL’s effort to leverage the Bern Convention to protect pilot whales and other small cetaceans.  These creatures are being brutally slaughtered each year in the Faroe Islands, a self-governing overseas administrative division of Denmark.  Pilot whales are listed in Appendix II of the Bern Convention.  As such, state parties, like Denmark, are required to heed the Convention’s prohibition against “all forms of . . . deliberate killing.”

Although Denmark entered a reservation to except the Faroes from the Convention’s reach, it is SSL’s position that the slaughter in the Faroes is nevertheless illegal.  Without a doubt, Denmark’s participation in the slaughter most certainly violates the Convention.  Toward that end, SSL met with representatives of multiple European Union member states and other Standing Committee members, garnering support for an action against Denmark.

KEEPING OCEANS ON THE COP 21 AGENDA IN PARIS

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Following the meeting in Strasbourg, SSL headed west to attend Oceans Day and other events at COP 21 in Paris.  We were both pleased and disappointed by what we experienced.

The primary event we attended was Oceans Day – a forum designed “to advance the oceans and climate change agenda at COP 21 and beyond.”  We listened to multiple world leaders speak about how climate change impacts our oceans, livelihoods and small island states.  Some leaders, including the Prince of Monaco and President of Palau, provided examples of efforts underway to mitigate these impacts.  We were pleased by the awareness, but were disappointed by the following glaring incongruities:

Talking the talk, but not walking the walk  .  .  .

Again, this was the OCEANS DAY forum.  So, what are some of the biggest threats to ocean health?  Climate change, overfishing, and plastics pollution.  Yet, what did the event organizers serve to the participants?

  • Plastic water bottles and plastic cups!  Not only does the production of plastic exacerbate global warming, but a huge amount of plastics from water bottles end up in our oceans.  With 200+ attendees at Ocean Day (not to mention the 40,000+ attendees at COP 21 as a whole, who also were served plastic), just imagine the potential impact.

 plastic at cop21

Stats at a glance: Meeting the annual demand for bottled water in the United States alone requires more than 17 million barrels of oil annually, enough to fuel 1.3 million cars for a year.  Less than ¼ of plastic water bottles are ever recycled.  Notably, the recycling process also produces greenhouse gases. Why use them?  Why serve them?    

  • Fish and chips!   This is not a joke.  Fish and chips were top menu items for purchase at the Oceans Day event.  It seems obvious that If we want to protect our oceans, we need to decrease demand.  Decreasing demand on our oceans was never mentioned at the Oceans Day event.

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Stats at a glance: Marine fisheries are collapsing around the world.  Approximately 85% of global fish stocks are over-exploited, depleted, fully exploited, or in recovery from exploitation.  Scientists warn that we may be the last generation to harvest wild-caught fish in significant numbers. Despite these trends, global demand for fish continues to rise, with per-capita consumption now four times higher than it was in 1950.

  • Hamburgers and sliced meats!  Hamburgers were one of the first things to sell out at the Ocean’s Day café, while complimentary samplings of salami and other sliced meats were passed around to registered participants (to go along with wine served in plastic cups).  Surely, everyone knows by now that the production of livestock contributes significantly to climate change. 

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Stats at a glace: It is estimated that animal agriculture is responsible for 18 percent of greenhouse gas emissions, more than the combined exhaust from all transportation.  Cows produce 150 billion gallons of methane – a potent greenhouse gas – per day.  Emissions from agriculture are projected to increase 80% by 2050.

SSL commends the organizers of COP 21 for focusing an entire day on oceans, and for using sustainable products in some aspects of the Paris climate summit.  In the future, we hope to work with organizers to ensure that events we attend are planned in a mindful manner that lessens the impact on marine wildlife and environments.

Oceans- Deserving of a full-day forum, yet merely a passing thought in the final climate agreement 

At COP 21, SSL pushed for due respect for oceans in the new climate agreement.  The agreement took on multiple iterations throughout its development – many of which failed to even include the word “oceans.”  This despite the fact that the world’s oceans provide 50% of our oxygen and absorb 1/3 of our CO2 emissions.  Concerned about the progress of the agreement, SSL circulated an emergency petition to ensure that oceans remain a focus of the landmark agreement.

Ultimately, the word “oceans” at least made it in the preamble, where the Parties “not[ed] the importance of ensuring the integrity of all ecosystems, including oceans, . . . when taking action to address climate change[.]”

As a colleague reminds us, “the word game is the long game.”  Even if oceans are not included in the operative provisions of the agreement, the preambular language is meaningful and pregnant with potential.  SSL will do everything it can to make the most of this clause.

COLLABORATING WITH OUR SEA SHEPHERD COMRADES IN THE NETHERLANDS

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Our trip would not have been complete without a campaign trail stop at the Sea Shepherd Global headquarters in Amsterdam.  SSL is dedicated to upholding the overarching mission of Sea Shepherd to “end the destruction of habitat and slaughter of wildlife in the world’s oceans in order to conserve and protect ecosystems and species.”

SSL is developing multiple legal campaigns that complement the amazing work of the superheroes at Sea Shepherd Global.  Together, we look forward to a strong and successful 2016!   Stay tuned for future blogs and publications.

Please donate to support our work to protect marine wildlife and ecosystems – visit our secure donation link at www.seashepherdlegal.org.  

SSL Works to Improve the Marine Mammal Protection Act

In our last post, we shared some of the alarming statistics regarding bycatch of marine mammals in global fisheries.  This week, we describe what we are doing about it.

In 1972, Congress passed the Marine Mammal Protection Act (MMPA).  Just as it had with the Clean Water Act—also passed in 1972—the Congress of that era designed the MMPA to respond aggressively to the destruction of nature.  To that end, the MMPA prohibits the “taking” of marine mammals in U.S. waters and by U.S. nationals abroad, as well as trade in parts or products.  With a notable exception —the killing of sea lions, ostensibly to protect endangered salmon runs (more on this in a future post) —this moratorium has been a consistent bulwark against the intentional killing of marine mammals in U.S. waters or by U.S. nationals.

 

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So far, so good.  But what about incidental killing and other forms of non-intentional take?  Does the MMPA contain any provisions addressing problems?

Answer:  Yes.  When Congress enacted the MMPA, it recognized bycatch as a major threat to marine mammals.  Accordingly, Congress included language requiring U.S. fisheries to drastically reduce bycatch.

In addition, given the amount of foreign-caught seafood sold in the U.S., Congress included a provision requiring similar bycatch performance by foreign fisheries importing to the U.S. Unfortunately, for want of implementing regulations, that provision has collected dust for over 40 years.

The good news:  The National Marine Fisheries Service (NMFS) has finally proposed a rule to implement the import provision of the MMPA.  More good news: on its own initiative, NMFS also added a prohibition on intentional killings in foreign fisheries. This inclusion is significant because it would not make sense to place restrictions on bycatch mortality without also prohibiting the intentional removal of marine mammals.

The bad news:  The rule is far too forgiving and builds in opportunities for abuse by irresponsible fisheries.

To address these shortcomings, SSL has filed extensive comments with NMFS encouraging the agency to adopt a stronger rule consistent with the spirit and text of the MMPA.  The following excerpt contains a summary of SSL’s major arguments:

The United States plays host to one of the world’s largest seafood markets. In 2013, the U.S. imported approximately 2.5 million metric tons of “edible” fishery products, valued at $18 billion.[1] These numbers are just the latest in a trend of increasing seafood imports. This market share gives NMFS incredible leverage to protect marine mammals affected by foreign fisheries. NMFS is finally proposing a rule to apply this leverage.

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. First, with its five-year grace period, the rule stumbles out of the gate. Marine mammals are left helpless for half a decade while exporting nations—many if not all of which could comply in short order—are given a free pass. The carnage is then compounded by NMFS’ generosity in verifying continued compliance only once every four years.

Second, the proposed rule takes only a half-step toward eliminating the intentional killing of marine mammals. NMFS allows exporting nations to continue to intentionally kill marine mammals in commercial fishing operations (e.g. the Scottish practice of sniping seals in salmon farms) so long as they are able to segregate fish products destined for the U.S. This will be both difficult to police and of no benefit to the marine mammals that continue to be killed for export to other markets (with, it should be noted, the blessing of NMFS).

Third, the proposed rule disregards the precautionary principle in abandoning the “Zero Mortality Rate Goal,” which requires the reduction of incidental mortality or serious injury of marine mammals in the course of commercial fishing operations to insignificant levels approaching zero—a goal central to the MMPA’s conservation purpose. In its place, the rule substitutes an approach that focuses exclusively on the maximum number of individuals that can be killed without compromising the viability of the population as a whole—the Potential Biological Removal rate (PBR). Significantly, the accuracy of the PBR-based approach is only as reliable as the underlying data supporting it. Moreover, PBR only accounts for direct human-caused mortality of marine mammals. Thus, even if rigorously applied (which is doubtful given the vagaries of data collection and analysis on an international scale), the PBR-based approach fails to account for harmful indirect effects on marine mammal populations and other effects such as climate change.

Fourth, the proposed rule is weakened by its provisions governing comparability findings.  Boiled down to the essentials, under these provisions, if a foreign fishery yields more marine-mammal bycatch than allowed under U.S. law (thus, not “comparable”), products from that fishery are not allowed to enter the U.S. market.[2]  A positive comparability finding, on the other hand, unlocks the door to the U.S. market. If NMFS is too quick to hand out the key, then the whole scheme is for naught. Unfortunately, the proposed rule comes dangerously close to doing just that. In addition to completely overlooking illegal, unreported, and unregulated (IUU) fishing (both as a proxy for weak enforcement of bycatch limits and for bycatch directly associated with IUU operations), the regulation as written calls for NMFS to assess comparability on the basis of suspect information, including untrustworthy data from Regional Fisheries Management Organizations and distorted calculations of PBR. Indeed, the proposed rule even goes so far as to authorize a comparability finding where a nation has done none of the following: (1) conduct a marine mammal stock assessment; (2) estimate bycatch; or (3) calculate a bycatch limit. The MMPA commands NMFS to assess comparability on the basis of “reasonable proof.”[3]

Fifth, 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. However, NMFS offers no facts to back up this hunch, and the agency’s position is contradicted by the rule’s proposed approach to intentional-kill fisheries. If exporting and U.S. authorities are capable of distinguishing between salmon accompanied by intentional kills and salmon free of intentional kills, they should also be capable of policing the fisheries that feed into sauces and sticks. In any case, nothing in the statute allows this exception.

Finally, the proposed rule inappropriately authorizes partial certifications under two circumstances. First, it envisions a situation where a nation could have two or more fisheries for the same species, but where only one of those fisheries receives certification. Despite the obvious potential for intermixing—fraudulent and innocent alike—NMFS provides nothing in the way of safeguards. Second, NMFS would allow an intermediary nation (in the supply chain) to receive fish from a banned fishery and then export the same species of fish to the United States —and NMFS would do so without (again) articulating any concrete measures to prevent intermixing.

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 MMPA, all while creating major channels for what should be unlawful importation, opportunities for abuse, and a false sense of security. Marine mammals and the American public deserve better.

[1] NOAA Fisheries, Imports and Exports of Fishery Products, Annual Summary, 2013, available at http://www.st.nmfs.noaa.gov/commercial-fisheries/foreign-trade/index.

[2] MMPA, Sec. 101(a)(2).

[3] MMPA, Sec. 101(a)(2)(A).

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SSL Obtains Provisional Observer Status to the Bern Convention’s Standing Committee

Sea Shepherd Legal (SSL) is delighted to announce that it has been granted provisional observer status to the Standing Committee to the Convention on the Conservation of European Wildlife and Natural Habitats (the Bern Convention).  Absent any objections, SSL will become an observer on November 1 and attend the December 1-4 Standing Committee meeting in Strasbourg.

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Obtaining observer status to the Bern Convention is critical to SSL’s mission to protect marine wildlife and habitat.  The Bern Convention is a binding legal instrument that covers most of Europe and even some states in Africa.  Unlike many multilateral environmental agreements, the Bern Convention contains a compliance mechanism that allows non-state actors to file complaints — indeed, it welcomes claims brought by NGOs.

Support our efforts to play a leading role in the enhancement and application of international environmental law.

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Sea Shepherd Legal (SSL) se complace en anunciar que se ha obtenido la condición de observador provisional al Comité Permanente de la Convención sobre la Conservación de la Vida Silvestre y del Medio Natural (Convenio de Berna). En ausencia de objeciones, SSL se convertirá en un observador el 1 de noviembre y asistir a la reunión annual del Comité Permanente en Estrasburgo el 1 de diciembre.o

La obtención de la condición de observador en la Convención de Berna es fundamental para la misión de SSL para proteger la fauna marina y el hábitat. El Convenio de Berna es un instrumento jurídico que cubre la mayor parte de Europa, e incluso algunos estados en África. A diferencia de muchos acuerdos ambientales multilaterales, el Convenio de Berna contiene un mecanismo de cumplimiento que permite a los actores no estatales para presentar quejas de hecho, da la bienvenida a las reclamaciones presentadas por organizaciones no gubernamentales.

SSL Takes a Stand for Gray Whales

Sea Shepherd Legal (SSL) is opposed to hunting for whales under any and all circumstances.  A whale’s right to exist trumps any competing claim.  Its right to swim, breed, and exist in the wild is certainly not governed by alleged human “cultural” imperatives, even those ensconced in treaty “rights” or justified by claimed “traditions” spanning centuries.  We have not tolerated such abominations as slavery on the basis of these empty justifications.  Nor should we tolerate the killing of these highly intelligent beings.  SSL will continue to pursue legal avenues to combat the slaughter of any cetaceans wherever they may occur — whether in the Faroe Islands or in U.S. waters.

With this in mind, SSL has not hesitated to push back against the Makah Tribe’s request to hunt Eastern North Pacific (ENP) gray whales off the coast of Washington State.  In addition to needless slaughter, such a hunt would fly in the face of the Marine Mammal Protection Act (MMPA) and the International Convention for the Regulation of Whaling (ICRW) and would be in significant tension with the Endangered Species (ESA) and the National Environmental Policy Act (NEPA).

Gray whale (Eschrichtius robustus) feeding in sand at Anacapa Island, California, USA

Gray whale (Eschrichtius robustus) feeding in sand at Anacapa Island, California, USA

In comments submitted to the National Marine Fisheries Service (NMFS), the agency in charge of evaluating the permit request, SSL made the case for denial.   NMFS had prepared a Draft Environmental Impact Statement (DEIS) to evaluate the request; NMFS’ analysis was littered with errors and characterized by a cavalier approach to federal and international conservation law.

SSL made the following observations (among many others):

  • Conservation Takes Highest Priority under the MMPA:  Absent a permit from NMFS, the MMPA prohibits “takes” of marine mammals.  The statute, legislative history, and decisional law make it abundantly clear that these permits are not to be granted lightly.  The burden of proof is borne by any party proposing to take marine mammals, or take actions contrary to the MMPA.  This “is by no means a light burden.”  The intent behind the MMPA’s “set of requirements is to insist that the management of the animal populations be carried out with the interests of the animals as the prime consideration.”  Yet, in its DEIS, NMFS gave this intent short shrift.
  • The Makah Do Not Have a Valid Subsistence Right to Hunt Whales:  In 1982, the International Whaling Commission (IWC) issued a moratorium on commercial whaling.  A recognized exception to the moratorium is “Aboriginal Subsistence Whaling” (ASW), which allows qualifying indigenous peoples to hunt a small number of whales for legitimate aboriginal subsistence needs.  NMFS claims that the Makah qualify for this exception.  They do not.  The IWC — the only entity authorized to officially recognize subsistence rights in support of a whaling quota allotment — denied the request for a Makah quota.  And for good reason:  The Makah do not meet the ASW criteria.  The Makah possess neither a nutritional nor subsistence need to whale.  Likewise, the Makah do not possess a “continuing traditional dependence on whaling and on the use of whales.”  While whaling may have been a regular part of the Makah culture over 150 years ago,  any “dependence” on whaling had nearly completely died out by 1860.
  • There Are Alternatives that Would Simultaneously Honor Makah Cultural Traditions and Protect Whales:  A purely ceremonial hunt — without the bloodshed, without the risk of extirpation of whole whale populations, and without the certain ensuing public outcry against the Makah — could readily supplant and restore the associated traditional practices.  NMFS did not seriously consider this alternative.  Other tribes, such as the Quileute Tribe in Washington and groups making up the First Nations Environmental Network in Canada, are opposed to the hunt and have taken different approaches to revering these extraordinary creatures.
  • If Permitted, the Hunt Would Set a Dangerous Precedent:  If NMFS were to approve the Makah hunt, it would in effect be creating a brand-new and broad-ranging exception for whaling based on “cultural need.”   As held by the Ninth Circuit, any expansion of the carefully limited ASW exception could be used by other nations to expand whaling rights for indigenous communities within their borders who claim a right to whale on the basis of alleged longstanding “tradition.”  Indeed, efforts to this effect are already in the works.  In fact, to bolster the claims of these communities, nations such as Japan have been lobbying Pacific Coast tribes for years in an effort to encourage the development of the “cultural whaling” exception.
  • If Permitted, the Hunt Would Doom the Pacific Coast Feeding Group (PCFG) to Certain Extinction:  In its DEIS, NMFS repeatedly (but dismissively) acknowledges the risks to a small population of resident Eastern Pacific gray whales — known as the Pacific Coast Feeding Group (PCFG) — occasioned by any degree of whale hunting and admits that a great deal of uncertainty remains as to whether PCFG whales are within their optimal sustainable population range, which is the bellwether of cetacean protection under the MMPA.  Despite this uncertainty, NMFS appears all too ready to authorize hunts of PCFG whales.  This error is compounded by NFMS’ decision to proceed with this DEIS without first determining whether the PCFG should be designated as a stock under the MMPA.  Throughout the DEIS, the agency repeatedly notes that it “does not recognize the PCFG as a ‘population stock’ as [it] interpret[s] that term under the MMPA, but [it] [has] stated that the PCFG seems to be a distinct feeding aggregation and may warrant consideration as a distinct stock in the future.”  U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Services, Northwest Region, Draft Environmental Impact Statement on the Makah Tribe Request to Hunt Gray Whales (2015), at 5 -1, 3-36, 3-130, & 5-36  By its own admission, NMFS’ analysis of the Makah permit is flawed.
  • NMFS’ Analysis of Western North Pacific (WNP) Gray Whales is Fatally Deficient:  The population of the WNP gray whale stock is extremely small – numbering no more (and likely less) than 140 animals.  The WNP stock is also listed as “endangered” under the ESA and as “depleted” under the MMPA.  Despite these dire circumstances, NMFS provides very little analysis in the DEIS of the potential effects of hunt alternatives on the WNP stock.  NMFS’ abject failure to meaningfully address WNP whales is especially troubling given its admissions that the WNP stock is present in the Makah area and will likely be negatively affected by the proposed hunt.  Moreover, NMFS has acknowledged that Makah hunters would likely mistakenly pursue a WNP whale, and further admitted that “[t]he loss of a single whale, particularly if it were a reproductive female, would be a conservation concern for this small stock.”  What additional evidence does NMFS need to take the next logical step to conclude that, in light of the WNP stock’s precarious biological status and the high likelihood of, at the very least, extremely stressful encounters with the Makah hunters, absolutely no hunting should be permitted?  The answer is of course that the agency has preordained that tribal whaling, in one form or another, will take place.  This amounts to unlawful agency action.
  • NMFS Discounted and Overlooked Cumulative Impacts:  Under NEPA, it is not enough for NMFS to simply consider the impacts of the proposed hunt.  Rather, NMFS must also consider the “impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.”  NMFS failed to consider  a multitude of cumulative impacts, including, for example, (1) military exercises, (2) marine energy and coastal development (e.g., a proposed phosphate mine near a critical nursery off Baja California), and (3) climate change.  When the impacts of these activities and phenomena are added to the baseline – as they must be under NEPA – the impacts of the Makah hunt become much more serious.

For these reasons and more, SSL strongly urged NMFS to reverse its apparent course and to approve the “No Action Alternative” (i.e. deny the request to hunt).  If the No Action Alternative receives approval, the WNP and PCFG gray whales will be permitted to continue feeding, playing and rearing their young in their ancestral waters without being chased, harpooned and shot.  These small populations of magnificent, social and highly intelligent beings will be given the gift, sought by all sentient life on the planet, to live out their lives in peace.  SSL cannot conceive of a better outcome.

Help fund our work to protect gray whales and other cetaceans.

Nota: Una traducción al español estará disponible muy pronto.