SEA SHEPHERD LEGAL -Working to Secure Justice for Lolita

In early September, Sea Shepherd Legal filed an amicus (“friend of the court”) brief in the PETA v. Miami Seaquarium case.  PETA and and its allies previously filed a lawsuit against the Miami Seaquarium to protest the captivity and treatment of the orca Lolita, who has spent more than 45 years in a small tank to entertain the public.  The evidence showed that Lolita suffers from a variety of harms, including repetitive behavior due to cramped conditions, rake injuries inflicted by socially incompatible dolphins, and skin and eye damage from inadequate shade.  However, the trial court ultimately decided that these harms were insufficient to establish a violation of the Endangered Species Act (“ESA”).  PETA is appealing the decision to the 11th Circuit Court of Appeals.

lotlita

In seeking justice for Lolita, PETA enlisted Sea Shepherd Legal’s assistance.  Our brief supports PETA’s position by asserting that the trial court has ignored decades of Supreme Court case law interpreting the ESA.  Sea Shepherd Legal also emphasizes that the court’s opinion wrongly assumes captive animals like Lolita have a greater tolerance for pain and suffering than their wild counterparts.

We are hopeful that, by adding our voice to the fight, we will convince the appellate court to arrive at the best decision for Lolita.

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).

Sea Shepherd Legal Enlists Public’s Help to Save the Imperiled Guiana Dolphin

On the eve of the 2016 Rio Olympics, Sea Shepherd Legal launches a worldwide online petition to compel the government of Brazil to protect the last remaining Guiana dolphins in Rio de Janeiro before they go extinct.

The Guiana dolphin looks similar to the bottlenose dolphin but smaller. More inconspicuous than its counterparts, these cetaceans prefer to live in small groups of about two to 10 individuals.

Since 2003, Rio’s Guiana dolphin numbers have dropped by 40%.  Nearly 10 Guiana dolphins are killed every month in fishing nets in the Bay of Sepetiba, in Rio. Today, there are less than 800 remaining and the Guiana dolphin may become extinct in just a few short years.

Additional threats include commercial illegal fishing, 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.

“With the spotlight on Rio for the summer Olympics, this represents a real opportunity for the government of Brazil to show the world that it is in tune with public sentiment and that it cares about wildlife, specifically the Guiana dolphin,” Pruett said.

Rio flag coat of arms

Ironically, the flag of the city of Rio de Janeiro is an image of its coat of arms, supported by two dolphins. This flag was adopted in 1908. Now, 118 years later, Rio’s Guiana dolphin is desperate need of its own support.

The petition is addressed to the following responsible government agencies:  the Brazilian Institute of the Environment and Renewable Natural Resources, Instituto Estadual do State Institute of the Environment, Ministry of Agriculture, Livestock and Food Supply, Federal Police – Ministry of Justice, Rio de Janeiro Port Authority, and Itacuruçá Port Authority.

This is part of a collaborative effort between Sea Shepherd Legal, two local NGOs and Brazil’s Federal Prosecutors office, which is working diligently to save the Guiana dolphin by pressing these agencies to take action.

NYT Article: New U.S.-Mexico Vaquita Protections Useless Unless China Curbs Totoaba Demand

By Andrew C. Revkin

July 27, 2016 7:30 am July 27, 2016 7:30 am

vaquitaA pair of vaquitas, a porpoise driven toward extinction by certain fishing methods, in Mexico’s Gulf of California.Credit Paula Olson / NOAA

In theory, July 9 was International Save the Vaquita Day, conceived to press Mexico to do more to protect the last few dozen members of a tiny and profoundly endangered porpoise species confined to overfished waters at the north end of the Gulf of California.

vaquita decline

A 2015 survey of the home waters of the world’s most endangered marine mammal, Mexico’s vaquita porpoise, found the population has continued to plunge.Credit International Committee for the Recovery of the Vaquita

In practice, last Friday could well have been that day. After a morning meeting at the White House, President Obama and President Enrique Peña Nieto of Mexico released a long list of new initiatives on issues of shared concern. Sorry, Donald, there’s no wall building, but the list touches on climate-friendly energy initiatives, trade and travel and — crucially for the vaquita — a strong new suite of commitments from both nations.

Most important, by far, is Nieto’s presidential-level affirmation that Mexico will turn what was to be a two-year moratorium on deadly gill nets in vaquita habitat into a permanent ban. Here’s the relevant section of the joint announcement, along with my thoughts on a critical next step involving China:

– Mexico will make permanent a ban on the use of gillnets in all fisheries throughout the range of the vaquita in the upper Gulf of California;

– Both countries will increase cooperation and enforcement efforts to immediately halt the illegal fishing for and illegal trade in totoaba swim bladders;

– Both countries will redouble efforts, in collaboration with international experts, to develop alternative fishing gear to gillnets that does not result in the entanglement of vaquita and establish “vaquita-safe” fisheries;

– Both countries will establish and implement a long-term program to remove and permanently dispose of illegal and derelict fishing gear from vaquita habitat in the upper Gulf of California.

The permanent ban had been announced by fisheries officials in Mexico earlier last week, but the presidential agreement reinforces the commitment.

A 60 Minutes report in May provided a helpful fresh look at the challenging realities on the waters off San Felipe, the Mexican town where many of the fishing boats plying the vaquita’s habitat are based.

dried swim bladders

Dried swim bladders from a large endangered Mexican fish, the totoaba, for sale in Guangshou, China.Credit Environmental Investigation Agency

The report also focused on an issue I’ve written on periodically — how the vaquita death rate has been driven up by unrelenting Chinese demand for the dried swim bladder of the totoaba, a large endangered fish found in the same waters. The air-breathing marine mammals become entangled in the fine-mesh nets.

But there could be reason for hope on the demand side, as well. A fascinating 2015 feature story in Quartz by Gwynn Guilford laid out links between the global economic crisis of 2008, Chinese investment habits and the poor vaquita. Here’s an excerpt on how the “bladder bubble” built and burst:

What drove the demand was that in times of strife, Chinese households have been known to stockpile the more valuable bladders as speculative investments, on some occasions even trading them as currency.

That’s what happened after the 2008 global financial crisis hit. The Chinese government reacted with a stimulus package that sent easy money sloshing around the economy—adding up to 17.5 trillion yuan ($2.8 trillion) in 2009 and 2010 (paywall). Cash flooded into a dizzying array of speculative assets, from property and copper to modern art to pu’er tea—and totoaba bladders. Traders in Hong Kong tell of selling large bladders for HK$1 million ($130,000) in 2011 and 2012, according to a recent Greenpeace East Asia report (pdf). These merchants emphasized that buyers weren’t interested in health tonics; they were snapping up these “cash bladders,” as they call them, as investments….

The Chinese investors’ appetite for bladders, the economic slump in Mexico, and lax enforcement created a perfect storm. Signs of the totoaba slaughter began showing up in the upper Gulf of California around 2011, says Lorenzo Rojas-Bracho, head of marine mammal conservation and research for the National Institute of Ecology and Climate Change (INECC) in Mexico.

If the Chinese government cracks down on this illicit trade and speculation and, at the same time, supports efforts to educate consumers the way it did with shark fin soup, it’s conceivable that the vaquita could, by the narrowest conceivable margin, avoid extinction.

Time will tell. I created a bit of artwork to share the message in Chinese. Help pass it to friends in China.

Chinas turn to protect the vaquitaA Mexican porpoise on the verge of extinction needs immediate help from China. Credit Dot Earth

Here are some additional reactions:

Zak Smith, a senior attorney at the Natural Resources Defense Council focused on marine mammal protection, pointed hopefully to a mention of the totoaba in an agreement last month on marine conservation goals between maritime officials from China and the United States:

China has a vital role to play in saving the vaquita by aggressively rooting out the trafficking of totoaba in Hong Kong and mainland China. The illegal gill-net fishing of totoaba in the northern Gulf of California is causing the vaquita’s perilous decline. Fortunately, just last month the United States and China made important commitments to reduce the impact of wildlife trafficking on totoaba. These commitments and the additional commitments made by Mexico and the United States offer a path for vaquita survival. It is critical for all three countries to live up to their promises

Kate O’Connell, a marine wildlife consultant with the Animal Welfare Institute, reinforced how the shark fin campaign provides a template for curbing demand for totoaba bladders:

It is crucial for the Chinese government to get ahead of the trafficking in totoaba buches. [Buche is the Mexican term for the swim bladders.] Unfortunately, despite calls from both the Mexican and U.S. governments, China has barely acknowledged the conservation crisis that the demand for this high-priced fish product has caused.

Both the Chinese government and nonprofit groups need urgently to address the demand issue with well thought out public education programs. Since the government banned the use of shark fins in government banquets, for example, and celebrity-fronted campaigns such as Wild Aid’s effort with Yao Ming, it appears that demand for shark fins has dropped. If both the vaquita and totoaba are to survive, China must become part of a multi-faceted solution, rather than the major market for an illegal marine product that is helping to drive the vaquita to extinction.

 

Great white sharks in South Africa on the path to extinction, study says

Story highlights

gws

  • There are only 353 to 522 great whites left in South Africa
  • A handful of factors have contributed to their decline
  • Extinction could affect the area’s marine ecology
Johannesburg (CNN)
Great white sharks in South Africa could be nearing extinction, according to a new study.
Research from Stellenbosch University in South Africa shows there are only some 353 to 522 individual sharks left in the country’s waters.”The numbers in South Africa are extremely low. If the situation stays the same, South Africa’s great white sharks are heading for possible extinction,” said Dr. Sara Andreotti of the Department of Botany and Zoology at SU and lead author of the study.

Andreotti says that the decline in the number of sharks is due to the impact of fishing — especially the implementation of shark nets and baited hooks along the country’s eastern seaboard.
But poaching, habitat encroachment, pollution and depletion of their food sources have also contributed to the decline of great whites.

 

Shatk study
Researchers note that if the great white shark population continues to decline, it could drastically affect the ecological makeup of the marine environment.
Since the sharks feed on seals, a decrease in sharks would mean a corresponding increase in the seal population, which in turn would affect the fish population.
“The survival of South Africa’s white shark population and the ecological interactions of the coastline will be seriously compromised if urgent management measures to prevent the decline are not put in place,” Andreotti said.
The findings are based on six years of fieldwork.
It’s the largest “field research study” on South Africa’s great white sharks that’s been done to date, Stellenbosch University said.

Don’t Trust That Label – New Study Casts Doubt On “Sustainable Seafood” Certification

Dirty industries have a long and cozy relationship with information asymmetry.  It only makes sense:  If you’re in the business of selling an unhealthy product or fashioning wares that come with a side of toxic pollution, you hardly want your customers in the know.  In theory at least, informed consumers may well vote with their wallets and stop buying your goods.

Industry is hardly alone in appreciating the power of transparency.  Activists and reformers — and, yes, even government regulators –have used the power of sunlight to advance social and environmental causes.  From Upton Sinclair’s exposé of the meat industry in The Jungle to the push for health warnings on packages of cigarettes, balancing access to information — so that the consumer can make an informed decision — has been one of the more potent arrows in the reformer’s quiver.

Yet this strategy is hardly foolproof, and neither is it immune to abuse.  The rise of the “ecolabel” on foodstuffs is illustrative.  Grocery stores are chock-full of foods claiming to be organic, GMO-free, free-range, consistent with fair-trade principles, friendly to the rainforest, and so on.  Many of these claims are true.  But some of them are exaggerated or misleading.  This produces a situation where the well-meaning but rushed shopper buys a product with a false sense of security.  The more rigorous shopper may do the necessary research to vet the validity of an ecolabel, but notice the irony:  Efforts ostensibly taken to inform consumers end up spawning a new informational problem.

Case in point:  A recent study in Marine Policy shows how the problem of shoddy ecolabels is thwarting fish conservation efforts.  According to the authors, a significant percentage of the fish certified as “sustainable” by the Marine Stewardship Council (MSC) is anything but.

landscape-web-high

The authors summarize their results as follows:

This study examines the status and exploitation level of 31 northern European stocks targeted by sheries certied by the Marine Stewardship Council (MSC) as being sustainable and well managed.  In the first year of certication, 11 stocks (52% of stocks with available data) were exploited above the maximum sustainable level and four stocks (16% of stocks with available data) were outside of safe biological limits. MSC states that it certies substandard stocks because they will improve once they are in their program. However, after a duration of certication of one to ten years (average four years), no signicant changes in shing pressure or stock size were detected. In the last certied year with available data, seven stocks (44% of stocks with available data) were subject to overshing and ve stocks (21% of stocks with available data) were outside of safe biological limits. Certication should guarantee that shing quotas are set correctly and are enforced. However, in 11 stocks quotas were set 2060% above the level that shers were taking, whereas in three stocks landings exceeded quotas by 3050%.

The take-away message is simple:  You can’t trust MSC certification.  If MSC, as the leading ecolabeling organization for seafood products cannot get its facts straight, then the concept of “sustainable fisheries” should not be peddled in the marketplace.

“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.

riocongress

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.

imgp0002jpgjpeg-7374b601b36db99b

 

borneo

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.

SSL Logo

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.

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.