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.

 

“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.

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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.  

Developing Incentives to Combat IUU Fishing & Fisheries Crime

Global marine ecosystems are collapsing. Of the 600 marine fish stocks monitored by the UN Food and Agricultural Organization (FAO), the vast majority are in bad shape.  Over 75% of these stocks are “fully exploited,” “overexploited,” or “depleted.”  These stats are from the FAO, hardly an alarmist organization.  Many scientists believe the situation is far worse, noting that the FAO methodology overlooks many stocks and fails to account for certain forms of fishing.

In the meantime, fish consumption is four times higher than in 1950, and global fishing fleet capacity has more than doubled since 1970.  The math is simple and terrifying.  It is an equation of destruction.

The most troubling part:  Despite all our laws and international agreements, illegal, unreported, and unregulated (IUU) fishing – as well as fisheries crime – continues to occur on a massive scale.  IUU fishing can take many forms:  permitted vessels exceeding their quotas (and criminally covering up the excess); vessels fishing in sanctuaries or during closed seasons; vessels flying flags of convenience (FOCs) to avoid meaningful regulation by the flag state; and, most brazenly, vessels flying no flags at all and plundering the seas at will.

The deplorable practice of IUU fishing is extremely lucrative.  It is also extremely difficult to monitor.

An IUU vessel plies the ocean. Photo credit: NMFS

An IUU vessel plies the ocean. Photo credit: NMFS

IUU fishing is not simply the product of rogue fishermen – it is also facilitated by the action and inaction of flag states and other governmental actors. Marine vessels are regulated primarily by the nation whose flag they bear. Some states demand environmental, labor, and safety compliance  – other states -FOCs- allow almost any vessel to fly their flag for a fee. A significant amount of IUU fishing is performed by ships flying FOCs, as ship owners expect lax inspections and unenforced fishing rules. Resultant economic losses may exceed $23.5 billion annually. There are 34 national registries deemed FOCs, with approximately 10,000 vessels flagged by Panama, Liberia and the Marshall Islands.  Together, these three nations account for approximately 40% of the world’s fleet in terms of dead-weight tonnage. Lack of enforcement by these and other flag states is extremely problematic.

Although lack of enforcement by flag states absolutely deserves some of the blame–we find that a lack of resources and misaligned incentives are leading causes of the IUU phenomenon.  While poor flag states cannot be faulted for failing to deploy resources that they do not possess, many flag states are wealthy and compound fishery depletion through fleet subsidies.

International law has, unfortunately, played an enabling role in the bloating of fleets.  In 1982, the UN Convention on the Law of the Sea (UNCLOS) formalized the concept of the “Exclusive Economic Zone” (EEZ), granting coastal states sovereign rights over living marine resources within the area stretching 200 nautical miles from the coast.  Ironically, this move to allocate property rights–a classic response to combat the tragedy of the commons–backfired.  The new regime set off a race by wealthier nations to ensure that they had the capacity to harvest all the fish in their respective EEZs.  Subsidies of all types were rolled out to fuel this expansion. As politicians everywhere know, once handed out, subsidies are incredibly difficult to eliminate.  Even today, researchers estimate that the U.S. alone grants over $700 million per year in fishing subsidies.  Now, with crashing fish stocks, we are left with far too many boats chasing far too few fish.  Some of these boats inevitably pivot to IUU fishing.

Coastal states also have failed in their responsibility to protect fisheries. Here too, part of the problem lies with international law.  International law generally assigns coastal states the primary responsibility to manage and conserve fisheries within their EEZs. So far, so good.  Here’s the rub: International law simultaneously incentivizes coastal states to set catch limits at unsustainable levels.  Under UNCLOS and related agreements, coastal states lacking the capacity to harvest their total allowable catch (TAC) are required to allow fishing by vessels from other states (in return for a fee, of course).  Thus, poorer nations desperate for resources have a very strong incentive to set the TAC high and sell the excess rights to foreign fleets.  The dire situation off the coast of West Africa is largely a product of this phenomenon, combined with rampant IUU fishing.  Notably, these states lack even minimal enforcement resources.

To combat IUU fishing and fisheries crime (and pick up the slack for unable or unwilling authorities), citizens have taken to the seas. A prime example is the Sea Shepherd Conservation Society. In early 2015, Sea Shepherd tracked a toothfish poacher for 110 days, covering 10,000 nautical miles, before the poaching crew apparently scuttled their ship in an attempt to destroy the evidence. Sea Shepherd was able to recover poached fish and other evidence before the vessel sank, leading to historic convictions in São Tomé and Príncipe. This is an outstanding outcome with a disturbing truth: enforcement of rules is so weak that the action of a citizen group has been the only effective check on IUU fishing.

Fisheries crime – as distinguished from simply IUU fishing operations – can also take a harrowing toll on humanity. The human trafficking element of fisheries crime exploits desperate migrants. Lured by false promises, poor migrants become slaves, forced to engage in IUU fishing for years on end. Enslaved children are beaten and shackled; the sick are thrown overboard. Escape is virtually impossible.

Policy and legal reforms are needed to provide constructive incentives to combat IUU fishing and fisheries crime. The legal status quo provides some incentives, but those incentives are stacked against conservation and, without immediate reform, will result in the decimation of a multitude of species and further collapse of marine ecosystems.  To address this, SSL is launching a program to map out the options and propose solutions.  Stay tuned for updates.  We are in this one for the long haul . . . .

To help support our effort to combat IUU fishing and fisheries crime, please consider a tax-deductible donation.

Sea Shepherd Legal Co-Sponsoring 2015 Latin American Prosecutors Congress in Panama

Sea Shepherd Legal (SSL) is delighted to announce that, together with the United Nations Environment Programme, it is co-sponsoring this year’s annual Congress for the Red Latinoamericana de los Ministerios Públicos Ambientales (Latin American Environmental Prosecutors’ Network, or the RED).

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The RED is a cross-border collaborative of prosecutors fighting environmental crimes throughout Latin America.  The annual Congress is an opportunity for these prosecutors to share initiatives and ideas for enforcement and improvement of environmental laws.  SSL is honored to participate in this year’s RED Congress.  While there, we will present details about SSL’s work, and what role SSL can play in a concerted regulatory effort to protect marine wildlife and ecosystems within the region.  As part of this initiative, SSL is also working with the RED to form a subcommittee of prosecutors interested in focusing efforts on marine wildlife crimes and the protection of marine environments.

Help fund this project!

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Sea Shepherd Legal (SSL) tiene el gran honor de poder anunciar que, junto con el Programa de las Naciones Unidas para el Medio Ambiente, vamos a copatrocinar el Congreso de este año para la Red Latinoamericana de los Ministerios Públicos Ambientales (La RED).

La RED es una colaboración transfronteriza de los fiscales que luchan contra delitos ambientales en toda América Latina. El Congreso anual es una oportunidad para estos fiscales de compartir iniciativas e ideas para mejorar el derecho ambiental y su aplicación.  SSL tiene el honor de participar en el Congreso RED de este año. Una vez allí, vamos a presentar detalles sobre el trabajo de SSL, y qué papel podemos jugar para proteger la vida silvestre y los ecosistemas marinos de la region mediante el derecho y la regulacion.  Como parte de esta iniciativa, SSL también está trabajando con la RED para formar un subcomité de fiscales interesados en concentrar los esfuerzos en los crímenes de la fauna marina y la protección de los ambientes marinos.

SSL Pushes Back on Plan to Gut the ESA Petition Process

The Endangered Species Act (ESA) is known as the heavyweight champion of species protection.  The ESA’s reputation is well deserved — 99% of the plants and animals under the Act’s protection have been saved from extinction.  If a species is listed as “threatened” or “endangered,” Section 9 of the ESA prohibits any person (including state and federal actors) from “taking” a member of that species.   The United Supreme Court famously upheld an extremely broad interpretation of “take”:  It includes not only more traditional forms of take (like capturing or pursuing a species) but also habitat destruction.

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For all its potential punch, however, the ESA is only effective if a species is listed.  Without that action, this prize fighter stays in its corner.

Listing can happen in two ways: The federal agencies in charge of administering the ESA — U.S. Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) — can propose a listing, or citizens can file a petition.  With limited resources, political pressures, and the ever-present specter of regulatory capture, FWS and NMFS have not always done their jobs.  Indeed, “[m]ost controversial listings have been initiated through the citizen petition process rather than by agency action.”  Holly Doremus, Preserving Citizen Participation in the Era of Reinvention: The Endangered Species Act Example, 25 Ecology L. Q. 707, 709 (1999).  It is citizens—without a strong economic stake in the status quo—who have demanded implementation of the statutory agenda.

Unfortunately, FWS and NMFS have proposed changes to the petition process that would undermine citizens’ ability to achieve listings.  SSL has challenged these proposed changes.  Among other modifications, FWS and NMFS have proposed several amendments that would increase the burden on petitioners — perhaps to the point of deterring some meritorious petitions altogether — and tweak the rules in favor of interests opposed to conservation.

The following four changes stand out as particularly misguided:

  • Requirement that petitioners solicit the participation of every state agency in every state that the subject species is present (for some shark species that would include every state on the Atlantic seaboard)
  • Requirement that petitioners collect and submit prejudicial information (thereby undermining arguments in favor of listing the species)
  • Requirement that petitioners only seek listing of one species at a time (no more efficient, multi-species petitions – even when multiple species face the same threats, at the same time, in the same area)
  • Requirement that petitioners provide “substantial information” at the outset to show that a species should be listed (with the exorbitant cost associated with gathering scientific data and purchasing supporting scientific articles, this would deprive many citizens the opportunity to file for species protection; citizen petitions are a vital component of species protection under the ESA)

While NMFS and FWS claim that the proposed changes will promote efficiency in the listing process, SSL firmly believes that these changes will not only ultimately result in greater inefficiency but also significantly chill citizen-initiated petitions to the detriment of wildlife.  If changes are necessary to enhance the efficiency of the listing process, such changes ought to be outcome-neutral and based on a fair organizing principal.  Here, the changes cater almost exclusively to interests opposed to additional listings and habitat designations.  In short, far fewer species will be listed, and far more will be lost.

SSL is pushing back.  In our comments to FWS and NMFS, we described the statutory and prudential flaws that run throughout the proposed amendments to the petition process.

If congressional intent to protect species from extinction at any cost is to be respected, changes that deter petitions should be off the table altogether.  Any other result is contrary to the ESA’s purpose and legacy.

Help fund our work to improve the ESA and to protect vulnerable species.

Nota: Una traducción al español estará disponible muy pronto.

SSL Staff Named Members of IUCN’s World Commission on Environmental Law

Sea Shepherd Legal (SSL) is pleased to announce that Legal Director and Executive Director are now members of the World Commission on Environmental Law (WCEL).  The WCEL is a network of environmental law and policy experts from all regions of the world who volunteer their knowledge and services to IUCN activities, especially to those of the IUCN Law Programme. WCEL functions as an integral part of the IUCN Environmental Law Programme, which includes the Commission and the Environmental Law Centre.

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SSL plans to work with IUCN institutes and individual members to improve domestic and international law on marine wildlife and habitat.  This will build on our current efforts in Latin America.

Support our efforts here.

Nota: Una traducción al español estará disponible muy pronto.