Is Rio’s Guiana Dolphin the Next Vaquita? A Moment of Hope in Brazilian Prosecutors’ Fight to Save an Icon

As we have mentioned several times in the past, the iconic Guiana dolphin (Sotalia guianensis), or “boto-cinza” in Portuguese, may soon disappear from Rio’s waters.  The region’s two populations — in Guanabara Bay and Sepetiba Bay, respectively — are on a collision course with extirpation.

Since 2003, Rio’s Guiana dolphin numbers have dropped precipitously.  Nearly 10 Guiana dolphins are killed every month in fishing nets in Sepetiba Bay.  A decade ago, Septebia Bay was home to some 2,000 individuals.  Today, there are fewer than 800 remaining, and the Guiana dolphin may become a memory in just a few short years.

Additional threats include pollution, depletion of prey and habitat, ship traffic, port development and other coastal impacts.

“What we are fighting for here is to ensure that the Guiana dolphin doesn’t go the way of Mexico’s vaquita porpoise –- a species moments away from extinction due to some of the same threats,” explained Sea Shepherd Legal’s Executive Director, Catherine Pruett. Scientists recently concluded that just 60 vaquita are left.  (For information on Sea Shepherd Conservation Society’s latest efforts to protect the vaquita, click here.)

The good news:  Brazilian prosecutors have shown that they are willing and able to bring the fight to the illegal fishermen who are pushing the Guiana dolphin to the brink.

Early this week, the Ministério Público Federal for the State of Rio de Janeiro (Ministério Público) filed 15 civil actions against a total of 31 defendants for illegal, industrial-scale fishing in Sepetiba Bay.  The Ministério Público is a body of independent public prosecutors in Brazil.  Although technically a part of the executive branch, federal prosecutors in Brazil form an independent institution.  Thus, unlike the U.S. Attorney General and U.S. Attorneys, government officers subject to presidential appointment and removal, prosecutors within the Ministério Public are not beholden to such clear political control.

This latest series of filings is part of the Ministério Público’s broader campaign to crack down on illegal activity harming the Guiana dolphin.  Thanks to one of our Brazilian colleagues, we were able to translate the official press release into English.  The translated document is available here: baia-de-sepetiba.  The original (in Portuguese) can be accessed here.

ministerio_publico_estadual_riodejaneiro

boto-cinza-ameacas-2

As the press release explains, one of the major culprits is purse-seining for “bait fish” (e.g., sardines), which are then used to catch tuna.  Given the sensitive coastal environment and presence of the boto-cinza, fishing with purse seines has been illegal in Sepetiba Bay since 1993.  But in the absence of adequate enforcement, it still occurs.

We are happy to see Brazil’s prosecutors doing their part to confront this existential threat.  The Ministério Público clearly understands the gravity of the situation, observing as follows:  “If the percentage of mortality remains high, the species is expected to disappear from Sepetiba Bay in eight years.”

In many nations — certainly in the U.S. — federal prosecutors are loathe to call out the federal government for contributing to an environmental problem.  The Ministério Público’s willlingness to do so is especially encouraging.

In this case, the offending vessels have actually benefited from government largess in the form of diesel subsidies.  The Ministério Público makes no bones about it:  These subsidies must stop, and they must stop now.  Federal prosecutor Monique Checker strikes to the heart of the matter:  “If the Union [the government of Brazil] financially helps environmental offenders, it is itself participating in the criminal practice.”

Well said, Monique.  We stand firmly with you.

Advertisements

Take Action Alert: Stop the Killing Contests in Chesapeake Bay — Cownose Rays Need Your Help!

Mahatma Gandhi famously stated that “the greatness of a nation can be judged by the way its animals are treated.”  Under this standard, the United States, and Maryland in particular, should be judged very harshly for the inhumane treatment of cownose rays.

For some time now, summer on the Chesapeake Bay has meant slaughter for cownose rays.  Attracted by organized killing “contests,” bowmen pack up their gear, hit the water in their boats, and let arrows fly in an orgy of bloodlust.  After shooting the rays, often point-blank, with arrows, the “contestants” drag them out of the water by hooks, beat them mercilessly with metal clubs, and then toss them into boxes where they slowly suffocate to death.  The rays are then dumped into the river like garbage.  Untold numbers  of rays are brutally killed every year — many of which are pregnant females.

cownoseray_dying-570x321

This undercover video, captured by Showing Animals Respect and Kindness (SHARK), reveals a level of depravity that defies description.

Because this horrific “competition” is judged based on the weight of the catch, pregnant rays are an attractive option.  At the same time, though, these pregnant mothers present a challenge:  How to keep the pups inside during the weigh-in?

Contestants try everything from zip ties (“They put a tie strap on it so she can’t spit her babies out before they get back”) to pushing the babies back inside with their hands.  One clip even shows a contestant who tied the baby to its mother with a string, the pup simply dangling in the air.  

But here is the most shocking part:  Killing cownose rays for entertainment through inhumane contests is currently legal in Maryland.  

To protect these native migratory rays, and to preserve the Chesapeake Bay’s ecosystem, Maryland must prohibit such cruel and unnecessary contests.  In the past, proponents have attempted to justify the killing as necessary for the protection of the local shellfish industry.  However, recent scientific studies have shown that cownose rays are not to blame for shellfish losses.  In fact, these rays have low reproductive rates and are, therefore, incapable of rapid population increases — making them particularly vulnerable to overfishing.

Together with SHARK, Fish Feel, Maryland Votes for Animals, the Center for Biological Diversity, Last Chance for Animals, and other groups, Sea Shepherd Legal is pushing for an end to this legally sanctioned slaughter.

Take Action: Tell your state legislators and Governor Hogan to support proposed legislation that will stop these inhumane, cownose ray killing contests.

Write or call Governor Hogan:

Maryland Governor Larry Hogan
Call: 410-974-3901 or 1-800-811-8336
Online at: http://governor.maryland.gov/mail/default.asp

Sign the online petition.

Sea Shepherd Legal Packs the House in Johannesburg, Calling for CITES Protections for Sharks, Rays, and Other Marine Species

In just a few days, the international community will have a rare opportunity to give sharks, rays, and other marine species a measure of the protection they deserve.  Early next week, the parties to CITES will decide whether to list the silky shark, all species of thresher sharks, all species of mobula rays, the bangaii cardinalfish, the clarion angelfish, and the nautilus.  If successful, these listings will create serious legal obstacles to unchecked international trade — trade that is pushing these species to the brink.  It’s not enough, but it’s a significant step in the right direction.

ssl-questions

Last night, Sea Shepherd Legal held a panel discussion, calling for parties to do the right thing by supporting the proposals in favor of greater protections for marine species.  Featuring a compelling presentation by a distinguished biologist and stirring endorsements by official delegates from Brazil and the Philippines, the event galvanized support ahead of next week’s critical votes.

Vaquita.jpg

The parties are informed.  The world is watching.  Should the CITES community fail to respond, they will have no excuses to offer.  Parties:  Do the right thing.  Vote “yes.”

 

Giving Teeth to Toothfish Protections: CITES Listing Is a Must

This is the third entry in a series live from CITES CoP 17 in Johannesburg, South Africa

Known as “white gold” among illegal fishermen, Patagonian and Antarctic toothfish can fetch as much as $US 83 million for the catch from a single vessel.  In the face of this lucrative market, toothfish populations have experienced precipitous declines throughout their range.  Some of the only protections against the overharvest of toothfish are provided by the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR or Convention).

Here’s the problem:  CCAMLR is legally binding on only a small fraction of the world’s nations.  CCAMLR boasts but 25 Members and 11 Acceding States.  That means that only 36 nations, or approximately 18% of the world’s countries, have agreed to bind themselves to CCAMLR’s conservation measures.

So what?, you might be thinking.  Not every nation targets toothfish.  As long as the fishing nations are bound to the Convention, who cares?  And the really bad guys — pirate ships, like the Thunder — ignore laws entirely.   

The second thought may be right.  Extreme scofflaws are only deterred by stiff enforcement, which is where Sea Shepherd vessels like the Sam Simon and Steve Irwin come into play.  But the first thought — that CCAMLR is good enough as far as the law is concerned — fails to account for the complexities of the problem.

news-150410-1-1-gg-matze-flag-line-pile-9s1a9133-1000w

The Sam Simon hauls in miles of illegal gillnet abandoned by the Thunder.

Unfortunately, CCAMLR does not cover all nations whose vessels ply the Southern Ocean for toothfish.  Over the past decade, a number of nations that are not CCAMLR signatories have reportedly flagged vessels identified as engaging in illegal, unreported, and unregulated fishing in Convention waters.  Moreover, CCAMLR’s reach does not extend to the many nations that import toothfish in international trade.  These nations fuel the  burgeoning demand for toothfish in international trade.

Bottom line:  We have a slew of nations not bound by CCAMLR that either (A) flag vessels that harvest toothfish, or (B) import toothfish.

Enter CITES.  Where CCAMLR suffers from limited membership, CITES boasts a nearly universal membership.  Out of 196 nations, 183 are parties to CITES.

If toothfish were listed under CITES Appendix I, commercial trade between CITES parties (the vast majority of the world) would be banned.  If, more realistically, toothfish were listed under CITES Appendix II, commercial trade could still occur, but non-CCAMLR states involved in fishing would face serious procedural hurdles designed to prevent fishing “detrimental” to the survival of the targeted toothfish species.

Recognizing the benefits of a CITES listing, in 2002, Australia tabled a proposal to list toothfish under Appendix II.  Unfortunately, Australia withdrew this proposal in the face of opposition, and the CITES CoP settled for a “solution” proposed by Chile.  This “solution” requested the CITES parties to adopt and implement the CCAMLR catch document scheme.  Nevertheless, despite the apparent good intentions out of which it emerged, the 2002 compromise has been an absolute disaster.

Now, with this background, we turn to its relevance for the current CITES Conference of the Parties (CoP).  Frustrated by the failure of the 2002 compromise, CCAMLR has submitted a formal plea to the CITES Secretariat to encourage CITES parties involved in the harvest and/or trade of toothfish to adhere to their prior commitments.  In its submission, CCAMLR describes the history of blatant noncompliance with those commitments:

2. In November 2002, the CITES Conference of Parties (CoP12) adopted Resolution 12.4 on ‘Cooperation between CITES and the Commission for the Conservation of Antarctic Marine Living Resources Regarding Trade in Toothfish’ and Decisions 12.57 to 12.59 regarding the trade in toothfish.

3. Pursuant to Resolution Conf. 12.4 and Decisions 12.57 and 12.59, Parties to CITES involved in the harvest and/or trade of toothfish are requested to cooperate with CCAMLR’s Catch Documentation Scheme (CDS) for Dissostichus spp. Parties were also requested to report on the implementation of the CDS to the CITES Secretariat and for the information to be communicated to CCAMLR (CCAMLR-XXII, 2003, paragraphs 14.1 and 14.2). This document is submitted in accordance with the abovementioned resolution and decisions.

4. To date, no information has been made available to CCAMLR by the CITES Secretariat pursuant Resolution Conf. 12.4 with regard to the international trade in toothfish.

While supporting CCAMLR’s attempt to rectify this situation, we don’t belive its proposal to the CITES Secretariat goes far enough.  The history described above leads to but one conclusion:  Listing under CITES is absolutely necessary to the long-term survival of toothfish.  The 2002 compromise failed to reign in nations involved in fishing and trading in toothfish.  CITES parties that are not parties to CCAMLR have been given a chance, and they have failed.  For the sake of the toothfish — and for the sake of CITES’ credibility — toothfish species should be proposed for listing at the next CITES CoP.  Sea Shepherd Legal intends to work hard to achieve this goal.

Please support our work at CoP17 with a tax-deductible donation.

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.

SSL Logo

 

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).

shark-silky-noaa-2

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.

 

International Criminal Court Places New Emphasis on Addressing Destruction of the Environment

In what may amount to be another tool in Sea Shepherd Legal’s arsenal, the Office of the Prosecutor of the International Criminal Court (ICC) announced on Thursday a new policy to prioritize crimes “that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”

international-criminal-court

 

As the policy announcement makes clear, this shift does not create or expand the ICC’s jurisdiction.  The ICC is limited by its enabling treaty (the Rome Statute) to adjudication of four basic crimes:  genocide, crimes against humanity, war crimes, and the crime of aggression.  Similarly, the ICC is only able to investigate and prosecute such crimes where the involved nations are unable or unwilling to do so.

Nevertheless, while this policy shift is necessarily limited by the four corners of the Rome Statute, the announcement signals an important move toward greater recognition of environmental crimes.  By assigning priority to Rome Statute crimes “that are committed by means of, or that result in, . . . the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land,” the ICC points in the direction of greater parity for crimes that impact the environment and wildlife.

For too long, the environment and wildlife have played second fiddle.  Although the ICC and the Rome Statute remain primarily focused on harm to humans, yesterday’s news shows at least a partial broadening of the ICC’s perspective.  It is about time.

Please consider making a donation to support Sea Shepherd Legal and our work to fight crime against marine species.

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).

bycatch_265x181

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.

mmpa40th_logo (2)

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.

*****

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).

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

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

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

Fish at market. Photo credit: NMFS.

Fish at market. Photo credit: NMFS.

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

untitled (8)

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

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

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

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

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

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

NMFS Should Define “Area” with Specificity

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

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

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

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

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

NMFS Should Include a More Rigorous Inspection Scheme

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

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

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

The Proposed Rule Is Consistent with International Trade Law

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

*****

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

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

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.

rs_oceanic_whitetip_shark_Joe_Romeiro_5

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.

untitled (7)

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.

 untitled (2)

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).

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.

Bandeira_da_cidade_do_Rio_de_Janeiro.svg

Rio’s flag. Credit: Google Images.

 

boto_cinza

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.)

rio-de-janeiro

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.

Gráfico%20-%20Mortes%20-%20Boto-cinza

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!

 *****

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