MTN 76:25-30 Legal Briefs

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LEGAL BRIEFS

MONGOLIA JOINS CITES -- Mongolia acceded to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) on 5 January 1996 (effective 4 April 1996), bringing the total number of CITES parties to 132. Source: CITES Memorandum, 29 April 1996 [in TRAFFIC(USA), 1996, 15(3):15].

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JUDGE STRENGTHENS U.S. SHRIMP EMBARGO -- The Court of International Trade (CIT) ruled this week to uphold and strengthen its previous ruling, hailed by environmental and animal protection organizations as one of the all-time greatest conservation victories for sea turtles, which had led to a 1 May 1996 embargo of wild-caught shrimp from over 40 countries which do not have in place sea turtle conservation measures comparable to those required in the U.S. This new ruling closes a regulatory loophole created by the U.S. State Department which was permitting shrimp products to enter the U.S. on a shipment-by-shipment basis from countries which had supposedly been embargoed.

When plaintiffs Earth Island Institute, its Sea Turtle Restoration Project Director Todd Steiner, American Society for the Prevention of Cruelty to Animals, The Humane Society of the United States, and the Sierra Club learned of the State Department's side-stepping of the embargo, they appealed to Judge Thomas J. Aqualino of the CIT. Plaintiffs submitted that the intent of the law was to embargo shrimp imports on a nation-by-nation basis, in order to motivate countries to come into compliance and save sea turtles from drowning in shrimp nets. On October 8 the judge ruled in favor of plaintiffs, stating:

"In view of the foregoing, and given the record developed to date in this case, the embargo enacted by Congress [in 1989] in Public Law No. 101-162... and affirmed by the court's final judgment dated April 10, 1996 may not be, and therefore shall not be, enforced by the defendants and their officials, employees, servants, sureties and assigns in such a manner as to allow entry into the United States of any shrimp or products from shrimp harvested by citizens or vessels of nations which have not certified in accordance with Public Law No. 101-162." "This new decision will greatly accelerate the process by which nations come into compliance, ending the largest killing of endangered species occurring in the world right now," stated Todd Steiner, Director of Earth Island Institute's Sea Turtle Restoration Project. Steiner, a biologist, estimates that at least 124,000 turtles may be captured and killed every year in the nets of foreign shrimp boats.

Nations can come into compliance [with Public Law No. 101-162] and be unembargoed quite simply by passing legislation requiring the installation of TEDs on all shrimping vessels that fish in waters shared with sea turtles, as has been done by the U.S. fleet. TEDs are inexpensive metal grids that are sewn into shrimp nets and guide sea turtles out an escape hatch. The devices cost US$ 50-400 per net. TEDs have been required on most U.S. shrimp trawlers since 1989. Foreign vessels were required to reduce turtle mortality to levels comparable to the U.S. shrimp fleet as of 1 May 1991 under a provision of the Endangered Species Act (P.L. 101-162, section 609) passed by Congress in 1989. The December 1995 CIT decision was the result of six years of litigation, brought by plaintiffs in order to force the U.S. government to enforce this law.

"Industry lobbyists have claimed for years that if U.S. shrimpers were forced to use TEDs, they would go out of business. In fact, since TEDs became mandatory, U.S. shrimp catches have increased. Experience shows using TEDs is simple, effective and inexpensive. The American public will be able to eat shrimp without worrying that the blood of these shy, gentle endangered species was sacrificed for their shrimp cocktail. And we will have a healthier marine ecosystem on which we all depend," Steiner noted. Source: excerpted from Earth Island Institute Press Release, 10 October 1996. The CIT opinion and order was issued October 8, 1996 (slip op. 96 - 165, Court No. 94-06-00321).

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WTO CHALLENGE LAUNCHED AGAINST U.S. ENDANGERED SPECIES ACT -- Four Asian nations have requested consultations with the U.S. concerning a provision of the United States Endangered Species Act (ESA) which requires all nations who export shrimp to the U.S. to have in place sea turtle protection measures comparable to those required in the U.S. The request, filed by India, Malaysia, Pakistan and Thailand under Article 22 of the World Trade Organization (WTO) dispute settlement understanding, begins the process of a formal challenge at the WTO which could force the U.S. to overturn parts of the ESA or pay hundreds of millions of dollars to compensate shrimp fishing nations that are prevented from selling their shrimp in the U. S. The four countries charged that U.S. restrictions on shrimp exports violate Articles I, III and VIII of the General Agreements on Tariffs and Trade (GATT).

The United States has 10 days to reply and 30 days to begin consultations. If no resolution is agreed to, the four nations can request a full dispute panel. If the ruling of such a panel goes against the United States, the U.S. could be forced to change the ESA or pay compensation to the four nations equal to the value of the lost trade. In December 1995, Earth Island Institute (EII), the Sierra Club, the Humane Society of the United States and the American Society for the Prevention of Cruelty to Animals won a lawsuit in the U.S. Court of International Trade forcing the government to enforce the turtle/shrimp provision (P.L. 101-162 section 609) of the ESA. This provision requires all nations who export shrimp to the U.S. to adopt national regulations comparable to those of the U.S., or have their shrimp products embargoed [ see "Legal Briefs", above ].

On 1 May 1996, over 40 countries were embargoed. The National Fisheries Institute, a fisheries industry trade organization, estimates the embargo to ban from import $200 to 500 million worth of shrimp annually. Josh Floum, the EII lawyer who participated in the GATT proceedings related to tuna embargoes to protect dolphins, opined that the Asian nations' challenge will fail. It is only illegal for WTO member nations to enact discriminatory trade barriers. "The WTO treaty provides for exceptions to general rules against trade barriers in the case of evenhanded wildlife preservation," explained Floum, adding that the ESA is "even-handed" as it treats domestic and foreign shrimp fleets alike.

Todd Steiner, Director of EII's Sea Turtle Restoration Project said, "These nations have chosen the wrong U.S. law to challenge. The Endangered Species Act is one of our most beloved laws, and is strongly defended by the citizens of the United States. This WTO challenge may serve to show the American public the threat these so-called free trade agreements have to our democratic process, when unelected trade bureaucrats from outside the U.S. get to determine which of our laws are legitimate in the eyes of multinational corporations who control the free trade agenda." He continued, "We will work to ensure that the Endangered Species Act is not modified to meet the needs of nations that would rather wipe out the world's endangered species than adopt simple, inexpensive technologies that allow shrimp fishing and endangered sea turtles to co-exist." Source: excerpted from Earth Island Institute Press Release, 15 October 1996.

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U.S. TED REGULATIONS STRENGTHENED -- Standing firm against pressure from powerful Congressional foes of the environment, the National Marine Fisheries Service (NMFS) is publishing new rules to protect sea turtles from being killed in shrimp nets [see "Legal Briefs", below]. The new rules will increase protection for threatened and endangered sea turtles in designated waters of the Gulf of Mexico and the South Atlantic by banning soft turtle excluder devices (TEDs) and requiring TEDs in large trynets, which are deployed behind shrimp boats to test for shrimp availability. "The National Marine Fisheries Service and its Director, Rollie Schmitten, deserve our thanks for this courageous decision," said Roger McManus, President of the Center for Marine Conservation (CMC), which championed the protection of endangered sea turtles in the U.S. and internationally for more than 15 years. "Refusing to bow to Congressional bullies, NMFS has demonstrated that it can carry out its duty under the Endangered Species Act to protect endangered sea turtles in a way that will enable shrimpers to keep fishing."

The new rules ban the use of soft TEDs, which have proven ineffective at preventing the capture and drowning of sea turtles in shrimp trawl nets. Soft TEDs will be phased out in special sea turtle conservation zones off Louisiana, Texas, Georgia and South Carolina starting 1 March 1997. Instead, shrimpers will be required to use hard TEDs (made out of metal) which are much more effective in releasing sea turtles captured in their nets. Hard TEDs will also be required in large trynets. The new rules will apply throughout the Gulf of Mexico and South Atlantic waters beginning in a year. The decision by NMFS to issue the new rules comes in the wake of a federal lawsuit filed by CMC in October 1994, after thousands of dead sea turtles washed up on beaches in Texas, Louisiana, and the southeastern Atlantic. The court granted a temporary order prohibiting soft TEDs and large trynets without TEDs, and NMFS promised the court it would adopt similar measures to protect sea turtles on a permanent basis through subsequent rulemaking.

The new rules are based on government studies which demonstrated that soft TEDs and trynets without TEDs were largely responsible for massive sea turtle deaths in 1994. Studies also showed soft TEDs make it more difficult to catch shrimp, wear out more frequently, and are difficult to install and maintain properly. NMFS received more than 5,600 comments, including those from CMC and more than 5,200 organizations and individuals urging it to strengthen the rules to protect sea turtles.

The new rules were stubbornly opposed despite extraordinary efforts by NMFS to address concerns raised by some elements of the shrimp fishing industry and their supporters in the Louisiana Congressional delegation. NMFS held 10 public hearings, issued five biological opinions, and convened a sea turtle expert working group with industry representatives, all confirming the need to take additional conservation measures to protect endangered sea turtles. Nevertheless, funding for NMFS was threatened, and NMFS personnel were pressured not to issue the new rules in meetings with staff for Louisiana Representative Bob Livingston, Chairman of the House Appropriations Committee, and Louisiana Representative Wilbert J. "Billy" Tauzin, an implacable opponent of endangered species. Despite this pressure, NMFS ultimately decided to issue the new rules. Source: Center for Marine Conservation Press Release, 18 December 1996.

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FINAL RULE TO AMEND SEA TURTLE CONSERVATION REGULATIONS -- The National Marine Fisheries Service (NMFS) has filed for public inspection at the Federal Register a final rule to amend the regulations protecting sea turtles. The final rule establishes Shrimp Fishery Sea Turtle Conservation Areas (SFSTCAs) in the western Gulf and in the Atlantic along the coast of Georgia and South Carolina. Within the SFSTCAs, effective 1 March 1997, the rule will require TEDs to be installed in trynets with a headrope length greater than 12 ft or a footrope length greater than 15 ft, will prohibit the use of soft TEDs, and will modify the requirements for bottom-opening hard TEDs. Outside of the SFSTCAs, effective 19 December 1997, TEDs will be required in trynets with a headrope length greater than 12 ft or a footrope length greater than 15 ft, and soft TEDs will be prohibited (if improvements or modifications can be and are made to any of the soft TED designs so that they exclude turtles effectively, NMFS will institute a rulemaking to continue or reinstate the approval of any such soft TEDs as improved or modified). This final rule is necessary to enhance the effectiveness of the regulations protecting sea turtles in reducing sea turtle mortality resulting from shrimp trawling in the Atlantic and Gulf Areas in the southeastern United States. Source: National Marine Fisheries Service Press Release, 16 December 1996.

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MEXICANS WAYLAY UNPROTECTED TURTLES -- A Mexican ecology group charged Friday that judicial police were involved in the poaching of sea turtle eggs, despite government protection for the species in effect since 1990. The environmentalist Group 100 [Grupo de los Cien] said several police agents were escorting a truck detained this week in southern Oaxaca state, loaded with more than half a million turtle eggs [allegedly from the Morra Ayutla beach, near the resort town of Puerto Escondido]. "According to those detained, the turtle egg dealers paid federal agents between $2000 and $2600 for protection of each shipment," according to a Group of 100 statement. The traffickers were reportedly going to sell the sea turtle eggs, the largest number seized to date, in markets from Oaxaca to Mexico City, promoting their supposed aphrodisiac effects.

Poaching was particularly damaging this year because Mexican soldiers and game wardens who normally guard the beaches were withdrawn in August after guerrillas of the Popular Revolutionary Army staged a wave of attacks on police and military targets in the state. Poachers took advantage of their absence to dig up millions of eggs at the nearby Escobilla Beach in early September, activists charge. The guards have since returned. Source: excerpted from a United Press International (UPI) Press Release, 18 October 1996.

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NICARAGUAN SMUGGLER CONVICTED -- William A. Keefer, U. S. Attorney for the Southern District of Florida, announced that Estrella Hernandez de Benitez was sentenced to 15 months imprisonment today in United States District Court for illegally importing over 1,800 sea turtle eggs from Nicaragua into Miami International Airport in September, 1994, in violation of the Endangered Species Act, and for failure to appear for sentencing on that prior conviction. The Honorable Donald L. Graham, U. S. District Court Judge, who also presided over the earlier case, imposed sentence on Benitez with respect to both cases, and further ordered her deportation upon completion of the prison term.

According to public documents and statements by the United States in Court, on September 5, 1994, the defendant arrived at Miami International Airport on a flight from Managua. A U. S. Customs inspection revealed that Benitez had concealed 1,837 sea turtle eggs within her bags. The defendant later admitted knowing it was illegal to bring the eggs into the U. S. and that she would sell them to various stores in the Miami area for human consumption. After entering a guilty plea to the earlier charges, Benitez failed to appear in December, 1994, for her scheduled sentencing before Judge Graham. Information presented in Court established that she had fled to Nicaragua. On September 29, 1996, Benitez was intercepted at Miami International Airport, trying to enter the United States from Nicaragua with a new passport and a fraudulently obtained visa, and was placed under arrest by U. S. Fish and Wildlife Service agents.

All species of sea turtles, whether alive or dead, and any recognizable part thereof, are protected under Appendix I to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, T.T.A.S. 8249 ("CITES"). Source: adapted from U. S. Department of Justice News Release, 19 December 1996.

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VISORS REQUIRED ON STADIUM LIGHTS -- A modification to stadium lights located near turtle nesting beaches on the Sandy Point National Wildlife Refuge in St. Croix, U. S. Virgin Islands, will save the lives of thousands of turtle hatchlings each year. According to U. S. Fish and Wildlife Service Southeast Regional Director Noreen K. Clough, beach lighting tends to disorient newly hatched turtles and instead of instinctively heading for the ocean, the turtles are attracted inland and perish.

The installation of visors on the stadium lights of the Paul E. Joseph Stadium in Frederiksted is being performed in connection with a Memorandum of Understating signed recently by the [Fish and Wildlife] Service and stadium owners, Virgin Islands Department of Housing, Parks and Recreation. ... [Each] year researchers have documented severe disorientation of hatchlings toward the lights of Frederiksted. Biologists found that this disorientation is especially pronounced when the lights of the Paul E. Joseph Stadium are on.

Researchers estimate that 35% of endangered leatherback hatchlings at the Sandy Point refuge are affected by the stadium lights -- approximately 4,000 to 6,000 hatchlings in any given year. Clough notes that endangered green and hawksbill sea turtles also nest on the refuge and are also likely being affected by the lights. Disorientation resulting from street, building, and stadium lights near the beach greatly increases the time the turtle hatchlings spend on the beach and makes them very vulnerable to entanglement in vegetation, predation by crabs, night herons and stray dogs, dehydration, and exhaustion. Source: adapted from U. S. Fish and Wildlife Service Press Release, 26 November 1996.

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TURTLE VIGILANCE IN SEYCHELLES -- Two men caught transporting two hawksbill turtles in a pickup [truck] in the south of Mahe are to be prosecuted, a police spokesman has said. The two have been charged with illegal possession of a protected species. They were apprehended this week, after South Mahe police based at Anse Royale received a tip-off that the men ... had taken the two turtles coming ashore at Anse Parnel (just before Anse Forbans). This is the third incident of the kind in the space of three weeks. The week before, police nabbed another person who had allegedly cut off the flippers of a green turtle on the same beach, so as to prevent it swimming off while he waited for nightfall to take it away. Further south, at Anse Forbans, two men are reported to have taken a green turtle. The incidents show that green and hawksbill turtles are still coming ashore in the south of Mahe, but equally it shows that people are still prone to taking them. What is new however is that members of the public are getting more vigilant about reporting such incidents. The publicity on the protection extended over green and hawksbill turtles may therefore be paying a dividend. Source: excerpted from Regar (Seychelles), 20 December 1996.

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COSTA RICAN LEATHERBACKS GET A BOOST -- The international effort to save the leatherback turtle (Dermochelys coriacea) from extinction in Pacific waters has been given a boost in Costa Rica this year. This country is home to the world's fourth largest colony and an important nesting ground for the huge sea creatures. Beer giant Guiness PLC has donated US$ 18,000 -- released through subsidiary Johnnie Walker's Water of Life Fund -- to a turtle conservation program led by Earthwatch Inc. and the National Geographic Society at Las Baulas National Park in Guanacaste. The money will be used to develop park infrastructure near the beach, including two information centers (one on Playa Tamarindo and another on Playa Grande) that will seek to educate the public on the needs of the nesting turtles. A project headquarters, a visitor's center, and a house for park rangers, as well as additional patrol guards are also planned. Source: excerpted from The Tico Times (Costa Rica), 4 October 1996.