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.

 

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

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

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

Fish at market. Photo credit: NMFS.

Fish at market. Photo credit: NMFS.

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

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

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

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

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

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

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

NMFS Should Define “Area” with Specificity

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

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

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

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

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

NMFS Should Include a More Rigorous Inspection Scheme

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

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

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

The Proposed Rule Is Consistent with International Trade Law

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

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

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

SSL Backs Effort to Secure ESA Listing for the Oceanic Whitetip

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

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

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

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

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

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

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

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

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

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

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

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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Out of Sight, Out of Mind: Bycatch in Global Fisheries

Bycatch is one of the most insidious problems facing marine wildlife.  By its very nature, bycatch tends to fly under the radar of the average citizen–even of the average concerned citizen.

Unlike shark finning or fishing for threatened or endangered species, the damage caused through bycatch does not visibly register in the ultimate “product.”  When people buy shark fins, they are forced to recognize at some level the grisly process that undergirds the market.  But when people buy shrimp or swordfish, they may never think beyond the animal purchased.

Although global fisheries take an incredible toll on non-target species–millions of birds, marine mammals, sharks, sea turtles, and non-target fish are bycaught every year–this havoc is not obvious to the casual consumer.

For many, it is out of sight and out of mind.

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

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

In comments submitted to the National Marine Fisheries Service, we encouraged the federal government to strengthen a proposed rule that would limit imports from foreign fisheries operating with high levels of marine-mammal bycatch.  While we will dedicate a future post to the details of the proposed rule and our response, it is first necessary to get a sense of the gravity of the bycatch problem.

The statistics are nothing less than mind-blowing.  A full accounting is the stuff of books–and even then to be served with a jar of salt given the unknown multiplier associated with IUU fishing–but just a few numbers should suffice to get you hopping mad.

  • 650,000 — The number of marine mammals that are killed or seriously injured every year after being hooked or caught in nets and other fishing gear.
  • 31 billion — The dollar-value of fish products imported to the United States in 2012.
  • 6 — The number of nations that import over $1 billion of fish to the U.S. every year (China, Canada, Chile, Indonesia, Vietnam, and Thailand).
  • 93%, 83%, 82%, 57%, and 100% — The respective percentage of marine mammals known to suffer from bycatch (93% of baleen whales; 83% of phocid seals; 82% of toothed whales, including dolphins; 57% of otariid seals and sea lions; and 100% of sirenians, which include manatees and their relatives).
  • 40+ — The number of years that the import provision of the Marine Mammal Protection Act has collected dust for want of effective regulation.  Without a regulation to give teeth to the import provision, the vast majority of foreign-caught fish products have been entering the U.S. market in violation of national law.

Help us use the law to fight bycatch by making a donation.

Silence is Golden: SSL Opposes Seismic Surveys in the Atlantic Ocean

In 1953, Jacques Cousteau referred to our oceans as “the silent world.”  While that may have been the case around mid-century, the situation today is just the opposite.  According to Christopher Clark, director of the Bioacoustics Research Program at Cornell University, “If you could lay down under the shipping lanes at Great South Channel (off Cape Cod) and spend the day there, you would get the impression of being on the tarmac at Logan Airport.”  For marine mammals, this amount of noise pollution produces shocking effects.

Marine mammals have evolved over millions of years to thrive in our oceans.  Until recently, the marine environment has been characterized by a certain class and degree of natural sounds.  Marine mammals evolved against this background, developing acute hearing, communication skills, and echo-location abilities attuned to natural sound levels.  In the past several decades, we have cranked up the volume to deafening levels.  For instance, low-frequency background noise in the ocean has increased 32-fold since the 1950’s.  This is hardly surprising:  Since 1950, the worldwide commercial fleet has also grown exponentially, in terms of number of vessels and especially in terms of gross tonnage.  When we add offshore drilling and mining to the mix, marine habitats have suddenly become host to a racket of block-party proportions.

For marine mammals, this noise has tragic consequences.  The impacts include:

  • Drowning out social communications used to find mates or identify predators;
  • Temporary and permanent hearing loss or impairment;
  • Displacement from preferred habitat;
  • Disruption of feeding, breeding, and nursing;
  • Mass strandings; and
  • Death and serious injury from hemorrhaging and tissue trauma
One of twelve sperm whales that beached and died on Karekare beach in New Zealand in late 2003. Credit: iStockphoto

One of twelve sperm whales that beached and died on Karekare beach in New Zealand in late 2003. Credit: iStockphoto

With this in mind, SSL has taken a firm stand against proposed seismic surveys in the Atlantic Ocean.  In comments submitted to NMFS (available here: SSL Comments in Response to Applications for Incidental Harassment Authorization Re Geophysical Survey Activity Atlantic Ocean_Final_2), SSL urged the agency to reject applications by oil and gas companies seeking permission to “incidentally harass” marine mammals while conducting seismic surveys.

Not only would these “surveys” — a dangerous euphemism if one ever existed — wreak havoc on cetaceans and other marine life, they would also directly violate the Marine Mammal Protection Act’s (MMPA) prohibition against anything beyond “negligible impact.”  Pursuant to Sections 101(a)(5)(A) and (D) of the MMPA, the Secretary of Commerce may allow the incidental, but not intentional, take of small numbers of marine mammals.  To permit incidental take, NMFS must find that proposed take will have only a “negligible impact” on the species or stocks. “Negligible impact” is defined in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

Here, all the evidence suggests that the contemplated “surveys”  —  involving the incessant firing of huge arrays of underwater air guns — will have far more than a “negligible impact.”  For threatened and endangered species such as the fin whale, humpback whale, North Atlantic right whale, sei whale, sperm whale, and West Indian manatee, these surveys would push them one step closer to extinction.  For the North Atlantic right whale, the situation is particularly dire.  This species numbers only 455 individuals.  As NMFS has acknowledged, “the loss of even a single individual [North Atlantic right whale] may contribute to the extinction of the species.”  See 69 Fed. Reg. 30,857, 30,858 (June 1, 2004); see also 73 Fed. Reg. 60,173, 60,173 (Oct. 10, 2008); 72 Fed. Reg. 34,632, 34,632 (June 25, 2007); 66 Fed. Reg. 50,390, 50,392 (Oct. 3, 2001).

Of course, the exploratory surveys would be but a prelude to drilling.  The ultimate goal (extraction) would simply increase the pressure on these species, all while exacerbating climate change.

Help us fight marine noise pollution by making a tax-deductible donation.

Sea Shepherd Legal Submits Comments Encouraging NMFS To List the Smooth Hammerhead and Bigeye Thresher under the ESA

Sea Shepherd Legal (SSL), together with Friends of Animals and Turtle Island Restoration Network, recently submitted comments encouraging the National Marine Fisheries Service (NMFS) to list the smooth hammerhead and bigeye thresher sharks as endangered or threatened species under the Endangered Species Act.  SSL’s comments are available here and here.

smooth-hammerhead-shark-head

The smooth hammerhead (Sphyrna zygaena) is targeted for its fins and suffers from a high rate of by-catch mortality.

ca. 1990-2002, Cocos Island National Park, Puntarenas Province, Costa Rica --- Bigeye Thresher Shark's Head --- Image by © Jeffrey L. Rotman/Corbis

Bigeye Thresher Shark’ — Photo credit: Jeffrey L. Rotman/Corbis

The smooth hammerhead and bigeye thresher are targeted primarily for their fins.  At its worst — and at its most typical — finning involves hacking off the shark’s fins and throwing back the carcass — while the sharks are alive.  (For a glimpse of this horrific practice, see https://www.youtube.com/watch?v=C2UKgLsOhRM.)  The process is as irresponsible as it is barbaric.  Shark populations, including populations of these two species, are crashing at alarming rates around the world.

The threat presented by shark finning is magnified by the inadequacy of existing regulatory mechanisms at the global scale.  Despite the intense fishing pressure on these sharks—from directed commercial, artisanal, and recreational fishing, exacerbated via indiscriminate by-catch—laws protecting these species are anemic.  International agreements on sharks are few and far between.  Where they exist, these agreements lack regulatory teeth and enforcement power.  Laws at the national level are not much better.  Indeed, some of the biggest shark-fishing nations (e.g. Pakistan) lack any laws specific to sharks.  Other nations lack any meaningful capacity to enforce laws on the books.  Even the nations that seem to boast the combination of tailored legislation and enforcement power—like members of the European Union—wither under scrutiny.  Their laws are rife with loopholes and enforcement of even basic catch limits is grossly inadequate.

In short, existing regulatory mechanisms are part of the problem.  Laws are failing sharks in all corners of the world.

Help us protect sharks like the smooth hammerhead and bigeye thresher by donating now.

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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.

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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.

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