H.R. 2706 BILLFISH CONSERVATION ACT vs THE LACEY ACT: What these laws could mean for the Sea of Cortes if they were enforced.
The date was October 5th of 2012 when President Obama singed into law a new piece of legislation that in theory could have a huge impact on sport fisheries through out the pacific ocean and that includes little old San Carlos in the Sea of Cortes. This legislation was brought into the senate by David Vitter (R-LA) and co-sponsored by Bill Nelson (D-FL) as well as John MaCain (R-AZ) and Sheldon Whitehouse (D-RI). In the house the legislation was sponsored by the Congressional Sportsmen’s Caucus Co-Chair Representative Jeff Miller (R-FL) and Mike Ross (D-AR). Now in America, just as in Mexico since 1984 via Mexico’s Article 68 of the general law of fisheries , it is illegal to sell sail fish or marlin. America finally caught up to Mexico. The only problem is that Mexico does not enforce its own laws regarding sail fish and marlin. But America is a different country and H.R. 2706 is the new law of the land. The question remains will it be enforced?
Several big name NGO’s promoted the new legislation such as the National Coalition for Marine Conservation (NCMC) and the International Game Fish Association (IGFA) among other recreational fishing organizations.
“there was bipartisan support but every other day it seemed like it could get killed or you know mutated in some kind of way, Obviously Hawaii was against it in its initial form before we had a carve out for harvest and sale there and once we did that it seemed to quiet them down quite a bit.” Said Jason Shratwieser Conservation director for IGFA. As I researched this article I found Jason’s comments very accurate, there were no less than 5 versions of the bill before it passed.
There is actually a common misperception on what H.R. 2706 actually states. Even one of the NGO’s who heavily lobbied for the legislation has it slightly wrong on their web site. IGFA states, The Billfish Conservation Act of 2011 (H.R. 2706), introduced into Congress on July 29, would close U.S. commercial markets to Pacific billfish, preventing their sale and importation (excluding Hawaii and Pacific Insular Island Area). Technically that is not correct, Here is the Bill in its entirety.
H.R.2706 — Billfish Conservation Act of 2012 (Received in Senate – RDS)
H. R. 2706
IN THE SENATE OF THE UNITED STATES
September 11, 2012
To prohibit the sale of billfish.
•Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
•This Act may be cited as the `Billfish Conservation Act of 2012′.
Section 2. Finding’s
•Congress finds the following:
?(1) The United States carefully regulates its domestic fisheries for billfish and participates in international fishery management bodies in the Atlantic and Pacific.
?(2) Global billfish populations have declined significantly, however, because of overfishing primarily through retention of bycatch by non-United States commercial fishing fleets.
?(3) Ending the importation of foreign-caught billfish for sale in the United States aligns with U.S. management measures of billfish and protects the significant economic benefits to the U.S. economy of recreational fishing and marine commerce and the traditional cultural fisheries.
SEC. 4. PROHIBITION ON SALE OF BILLFISH.
•(a) Prohibition- No person shall offer for sale, sell, or have custody, control, or possession of for purposes of offering for sale or selling billfish or products containing billfish.
•(b) Penalty- For purposes of section 308(a) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1858(a)), a violation of this section shall be treated as an act prohibited by section 307 of that Act (16 U.S.C. 1857).
•(c) Exemptions for Traditional Fisheries and Markets-
?(1) Subsection (a) does not apply to billfish caught by US fishing vessels and landed in the State of Hawaii or Pacific Insular Areas as defined in section 3(35) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802(35)).
?(2) Subsection (a) does not apply to billfish landed by foreign fishing vessels in the Pacific Insular Areas when the foreign caught billfish is exported to non-US markets or retained within Hawaii and the Pacific Insular Areas for local consumption.
•(d) Billfish Defined- In this section the term `billfish’–
?(1) means any fish of the species–
?(A) Makaira nigricans (blue marlin);
?(B) Kajikia audax (striped marlin);
?(C) Istiompax indica (black marlin);
?(D) Istiophorus platypterus (sailfish);
?(E) Tetrapturus angustirostris (shortbill spearfish);
?(F) Kajikia albida (white marlin);
?(G) Tetrapturus georgii (roundscale spearfish);
?(H) Tetrapturus belone (Mediterranean spearfish); and
?(I) Tetrapturus pfluegeri (longbill spearfish); and
?(2) does not include the species Xiphias gladius (swordfish).
Passed the House of Representatives September 10, 2012.
KAREN L. HAAS,
There is nothing about prohibiting importation in the language of the bill. Technically you can still import billfish from the pacific ocean. You simply can not offer it for sale. I think this is what Jason Shratwieser from IGFA meant when he said it could be mutated in some way. Does the wording of this law seem odd? If you really wanted to protect billfish from the Pacific Ocean then why didn’t you just simply ban its importation all together like they did for Atlantic caught bill fish several years earlier? You could still ban importation and keep the exemption for U.S. commercial fisherman in tact.
The question remains now how might NOAA, the National Oceans and Atmospheric Administration, go about the daunting task of stopping the 1300 metric tons, (30,000 individual fish) imported into the United States each year cold turkey. “What they are doing now at NOAA fishers is looking at how to interpret the law, they are going through a rule making process to actually enact it” said Shratwieser.
What will H.R. 2706 do for sport fishing in the Sea of Cortes? Directly The Billfish Conservation Act will not do much on it’s own yet indirectly it could lead to helping Mexico strengthen it’s already existing laws on the protection of sport fishing species.
“I don’t think it is going to affect my life.” Said Pam Bolles, owner and operator of Baja Big Fish Company in Loreto, Baja California Sur. Bolles has lived in Loreto for 14 years and has been an outspoken activist/critic on a wide range of topics regarding the Sea of Cortes, especially fisheries.
“I just don’t think they are going to enforce it, and you know my opinion comes from the performance of the Lacey Act and the fact that they have done nothing on the dorado issue, which is very close to my heart, its how I make my living. I have seen cases where the Lacey act was selectively enforced and I just see more of the same.” Said Bolles.
Enforcement has always been a big issue in regards to conservation of marine fisheries. In March we were able to speak with Allan Risenhoover, the head fish cop in the U.S., on how NOAA was going to go about enforcement of H.R. 2706.
“The act was effective in October of 2012 so the first thing we are doing is trying to work with the industry on what the law says. What we have been trying to do is work through our sea food inspection program which has a good relationship with a lot of the exporters just to answer their questions right now. If I have cans (of sailfish or Marlin) on the shelf what do I do, if I have a shipment coming in what do I do? There have been a whole range of questions we have gotten over the last few months.”
“The second thing were doing is we are looking at in the future how do we manage this or regulate it so what we are looking at is probably going out with a general kind of advance notice to the public that says, hey the Billfish conservation act is out, here are the provisions of it, what does the public think? Get that input and then move forward with management in the future.” Said Risenhoover.
In other words enforcement of H.R. 2706 is going to take some time. Many of us in the Sea of Cortes are well familiar with that kind of wording and far to familiar with the amount of time it takes to get government to enforce any law, let alone a new one. This is were the Lacey Act that Pam Bolles was talking about enters from stage right.
The Lacey Act is the little enforced often forgotten great great grandfather of the Billfish Conservation Act. To paraphrase the Lacey Act; if something is illegal to harvest in one country then it is automatically illegal to import into the U.S.A. For example, lets say you have a product like totoaba air bladders. Totoaba (Cynoscion macdonaldi) is a large fish in the croaker family that resides in the upper gulf of California by the small town of San Felipe. Back in the day, the early 20’s, the average totoaba weighed in at around 100 pounds with records of specimens reaching over 300 pounds being recorded up to the late 50’s. After years of over fishing with gill nets and dynamite, not to mention the destruction of habitat from the damning of the Colorado river along with commercial shrimping trawl nets, by 1975 the viability of totoaba as a commercial and sport fishery ended. By 1979 Totoaba was placed on Fish & Wild Life’s endangered species list and it is currently illegal to fish totoaba in Mexico. It is important to mention that almost all of the meat or air bladders taken from the totoaba fishery ended up going through the United States in one way or another.
Thus now a days if you should catch a totoaba and cut out the air bladder and then try to take it across the border to the U.S. and you are caught you can be prosecuted under the Lacy act and other laws dealing with the illegal trafficking of wild life products. That is exactly what happened at the end of April when the Feds busted up an illegal totoaba air bladder smuggling operation worth millions of dollars in the small town of Calexico, 100 miles east of San Diego.
It is important to mention that the illegal totoaba fishery is directly related to the imminent extinction of the vaquita, a small porpoise that resides within the same habitat zone as the totoaba and is now the most endangered marine mammal on the planet.
I spoke with Omar Vidal the head of the World Wildlife Fund (WWF) in Mexico last March about totoaba, vaquita and the United Sates.
“The mortality from incidental by catch from legal gill net fisheries such as covina and shrimp remains problematic but was is most worrying is the data that comes from Profepa. This year has seen an explosion in the illegal totoaba fishery, hundreds if not thousands of tons, just like in the 1940’s and 50’s are being taken. The meat from the fish is not used all that is used is the air bladder. These nets are the worst type of nets that can be used and are the worst type of nets for the vaquita. The totoaba air-bladder smuggling situation is such that the U.S.A. Has an obligation to shut down the illegal exportation of Totoaba products into the United States.” Said Vidal.
Much of those air-bladders are ending up in America which makes this problem an American problem as well. Access to the American Market place by illegal totoaba fisherman and illegal smugglers is helping drive the worlds most endangered porpoise to extinction. If this sounds familiar it is with reason. Sharks have suffered a similar fate as totoaba in the Sea of Cortes and the by catch from shark fishing, marlin sailfish and dorado, is actually now via specifically designed loopholes in laws and zero enforcement the targeted catch.
In 2007 after years of over fishing shark and populations dwindling Mexico attempted to reign in the highly unregulated shark industry with a controversial new law called Shark Norma 029. Norma 029 received a lot of support from NGO’s but those in the sport fishing industry claimed that the law was simply a loop whole to fish species that are off limits to the commercial fishing industry. In Mexico Article 68 of the general law of Mexican fisheries states that there are 6 species of fish reserved solely for Mexico’s sport fishing industry. Those species are sailfish, marlin, tarpon, rooster fish, swordfish and dorado. Article 68 states that these species are protected from commercial fishing within 50 miles of the Mexican coast. Which includes most of the Sea of Cortes, thus the law was designed specifically to save the Sea of Cortes from commercial fishing of these species and promote sustainable eco tourism in the form of catch and release sport fishing. Cabo San Lucas is nothing if it is not the house that sport fishing built so it is no surprise that much of the criticism regarding Shark Norma 029 has originated in Cabo San Lucas.
“To this day, it’s not clear that the Shark Norma 029 is even legal.”
Said Minerva Saens Valenzuela. Owner of Minerva’s Baja Tackle and one of the pioneers of sport fishing charters in Cabo San Lucas. Minerva is the president of the (Sindicato de Propietarios de Embarcaciones para la Pesca Deportiva de Los Cabos (The Owners of Sport Fishing Charter Boats Union of Los Cabos).
“An agreement cannot over-ride the law. Here’s what we have, a regulation called Shark Norma 029 was created to allow commercial fishing inside the 50 mile coastline zone. The Mexican Fisheries law in article 68 clearly defines that Dorado, swordfish sailfish and marlin are exclusively destined for sportfishing and are not be commercialized within 50 miles from the coast.” Said Saens Valensuela.
It is the contention of the sport fishing industry in Mexico that Shark Norma 029 was essentially the mother of all loopholes designed to try and break the hold the tourism sector has over the 6 species of fish reserved exclusively for them. Especially dorado, in 2009 around 6000 tons of illegally caught dorado crossed the border into the U.S.A. Clearly Mexican Fisheries are not enforcing their own laws but couldn’t the Americans help?
If the americans are going to truly stop the flow of Billfish into the U.S. Via the new Billfish Conservation Act do they not also have an obligation to stop the flow of illegal dorado into the U.S. Via the old Lacy Act? If they should refuse to act on the dorado issue does that not open them up to the possibility of litigation from conservation activists? I asked that very question to NOAA head fish cop Allen Risenhoover in an interview with him back in March of 2013.
“We try to enforce everything but again we have limited resources in our enforcement office. So we try to prioritize and where we see issues that are larger than others we try and you know pursue the ones that have the largest conservation effect, so that is a balancing act that we will continue to do.”
That was a disheartening statement since just moments earlier in my conversation with Allan I had asked him if the recent budget cuts due to sequestration would have an effect on enforcement of the Billfish Conservation Act. His response was this.
“The sea food inspection program is funded by fees that are reimbursable from the industry itself so I don’t think there is going to be a significant impact on them but it is early to tell.”
So those two statements didn’t jibe for me. If the sea food inspection program is funded by the industry and all the inspectors are already in place is it not a simple task then to inform inspectors that dorado from the Sea of Cortes is illegal and can no longer be imported into the U.S.A.
At the end of our my conversation with Allan Risenhoover I mentioned to him that there has been so much frustration here in Mexico over lack of enforcement of fisheries law that I did not think it long before conservation groups might start to hire lawyers and file suit against the United States. I had no idea how fast my comment to Risenhoover would become a reality.
The Gulf of Ulloa covers roughly the northern half of the Pacific coastline of Southern Baja. This is an area of the baja that has become world famous for it’s annual migration of gray whales. It is also a very productive marine environment due to currents and upwelling. In 2012, according to the Sea Turtle Restoration Project, there was a 600% increase in dead turtles washing up on beaches. In July alone on one 40 kilometer stretch of beach 483 dead loggerhead turtles were counted. The increase in mortality is due to gill nets. That is a lot of dead turtles. So many in fact that on May 2nd the Sea Turtle Restoration Project with support from Mexican based NGO’s in conjunction the the Center for Biological Diversity (CBD) filed a legal petition with the Obama administration seeking a ban of Mexican sea food or other imports to the U.S. until Mexico reduces sea turtle mortality.
Mexico has signed a treaty with the U.S. Called the Inter-American Convention for the Protection and Conservation of Sea Turtles. Under an American law called the “Pelly Amendment” conservation groups are asking the United States to certify that Mexico is diminishing the effectiveness of this treaty. If the secretary of commerce where to agree then Obama could sanction or ban Mexican imports until sea turtle bycatch is reduced. Don’t start holding your breath anytime soon waiting for that to happen.
I spoke with Sarah Uhlemann, the Lawyer for the CBD that filed this petition with the commerce department if there had been a response.
“No they haven’t answered it and to be totally honest I don’t expect that they will answer it anytime soon, international law is very tricky.” said Uhlemann.
Actually by law the department of commerce has up to 4 years to answer the petition. Gill nets are not the only thing killing turtles in Mexico though. The illegal dorado fishery that exists in Mexico has a huge incidental turtle by catch that is well documented. Turtle by catch within the Sea of Cortes runs at 20%. That means for every 10 dorado that are caught on an illegal long line within the Sea of Cortes at least two turtles are caught along with them. This was reported from a study on long lines conducted by the Mexican research agency CIBNOR back in 2006. Juana Lopez was the lead scientist on the study.
From dead turtles off the pacific coast of the southern baja to more dead turtles inside the Sea of Cortes to the extinction of the La Vaquita porpoise up north between San Felipe and Puerto Penasco to the thousands of tons of illegal dorado shipped state side annually it is painfully obvious that Mexico is not enforcing it’s own fishing laws nor living up to the Inter-American Convention for the Protection and Conservation of Sea Turtles treaty they have signed with the United States. It is also painfully obvious that the United States is going to continue to allow thousands of tons of illegal and unsustainably caught Mexican fish to enter into the very lucrative and highly profitable sea food market that exists in the United States. It is unfortunate but it would appear that in America just as Mexico, money talks and bullshit walks.
Some in Mexico are now demanding meetings and a place at the table during those meeting’s with officials from Mexico’s department of fisheries (Conapesca) and NOAA’s department of International Affairs. America and Mexico already cooperate fully on drug interdiction between the two countries. Is it not time that they do the same thing regarding marine resources by clearly defining what is legal and what can come across the border and what can not? It is only logical that the two sides do this. Which means unless the conservation community does not demand this it most certainly will not happen. America should play the leadership role in this matter if Mexico is truly going to continue to ignore their own fishing laws and international treaties. America has an obligation to sanction Mexican sea food products if Mexico does not clean up it’s act. It the department of commerce refuses do it via petitions hat have already been submitted I suspect there are some lawyers out there who are going to get hired to be more aggressive. In stead of petitions the next step would be to file suit against the department of commerce. It may onle be a question of time before that happens.
Minerva Saenz Valenzuela summed it up in this statement.
“We have been living with a systemic lack of enforcement on both sides of the border which has completely numbed and desensitized people to the illegal fish laundering that goes on day after day after day after day. The Aquarium of the World and the precious marine life that surrounds us is screaming for enforcement and protection. I continue to be shocked more and more each day by the apathy we see, beginning with the citizens of the planet all the way to the authorities. Didn’t someone once say that we are all connected by water?”