Missed Opportunity

Is the vaquita’s plight linked to the US government’s failure to take advantage of one of its most powerful wildlife crime-fighting tools?

ANNA HALL COUNTS HERSELF among a fortunate few. In 2008 the Canadian marine biologist saw a vaquita in the wild — in fact, she saw 35 of the elusive creatures in a single afternoon. That was highly improbable. The doll-faced porpoises — the world’s smallest cetaceans — are notoriously shy, avoiding boats and barely breaking the surface when they rise for air, as they must every three to four minutes. And at the time, there were likely just 245 vaquitas left in the world.

Such a sighting would be impossible today. According to Hall, no more than 15 vaquitas may now remain in the northern Gulf of California, their exclusive home range. (The last official estimate, from 2016, put the number at around 30.) Many fishermen in the Gulf — a 750-mile inlet located between Baja California and the Mexican mainland that, despite the name, is part of Mexico — have never seen one, and some regard the vaquita as something of a mythical creature, like an elf.

Vaquita numbers have nosedived — by nearly 50 percent annually during the past six years — due to illegal fishing. “They’re unintended bycatch,” Hall explains. “Gillnets are the culprit. They’re designed to entangle fish and not let them go. Hundreds of vaquita have drowned silently, and the world just didn’t know.” Despite best efforts to protect them, it’s possible — even likely — that the critically endangered porpoise may be extinct within a year or two.

Even though the vaquitas’ habitat has been designated a no-commercial-fishing zone since 2005, fishermen persist. Local economies along the Gulf are built largely around the fishing industry and many fishermen are after the valuable totoaba, an endangered giant sea bass found only in the central and northern portions of the Gulf of California. Totoaba swim bladders (a buoyancy organ possessed by most bony fish) are coveted in China, where they’re turned into a soup believed to enhance fertility and benefit general health.

Typically, the bladders, which the Chinese call “gold coin fish maw,” used to be sourced from the giant yellow croaker, a large fish local to the Yangtze River basin. But by the mid-twentieth century, that fish had been hunted close to extinction and the bladders began to be sourced from the somewhat similar Mexican totoaba.

Wealthy Chinese have used fish bladders for centuries, but demand for the bladders has increased dramatically during the past decade as the country’s economy has grown and its citizens have more disposable income.

close up of vaquita
Unintened victims of illegal fishing operations in marine protected areas within Mexico’s Gulf of California, vaquitas are on the brink of extinction. There are only about 15 of these shy porpoises left in the world. Photo by Save the Whales.

The black-market trade in the bladders is lucrative. A pound of totoaba bladder sells for more than the price of cocaine in Mexico, according to Lorenzo Rojas-Bracho, coordinator for marine mammal research and conservation at Mexico’s National Commission for Natural Protected Areas. In China the bladders can sell for nearly nine times as much as they do in Mexico — a single bladder can fetch upwards of $10,000 there. In the Gulf of California, where the average fisherman earns roughly $400 to $500 a month, the financial incentive to catch the rare fish is high. Unfortunately, Vaquitas often get trapped in nets intended for totoabas.

Some blame Mexico for the vaquita’s collapse. But Stephen Kohn, a Washington, DC-based attorney and the executive director of the National Whistleblower Center, argues that the United States also bears a large measure of responsibility. That’s because totoaba bladders are often smuggled through the US on their way to China.

According to Kohn, the best way to fight wildlife crime is to tap informants within trafficking groups — the poachers or the middlemen who transport illegal wildlife parts to a final destination — to help bust crime rings preying on endangered species. Enlisting whistleblowers in the Gulf and across totoaba smuggling routes, he believes, could have helped law enforcement break up what he calls the “totoaba cartel.”

Considering the vaquita’s catastrophic slide during the past decade, Kohn wonders why the US hadn’t used its powerful whistleblower laws that have helped bring down presidents, Big Tobacco, and the FBI, to this end. “There is now a growing consensus that incentivizing whistleblowers is a key to enforcing wildlife trafficking laws,” says Kohn, who adds that insider whistleblower information has historically been a key element in prosecutions conducted by the Department of Justice, the Internal Revenue Service, and the Securities and Exchange Commission.

The aim of a wildlife whistleblower program, he says, would be to make it more lucrative for potential poachers and traffickers to provide intelligence to law enforcement than to kill endangered animals. The illegal wildlife trade is a multibillion-dollar industry, and demand for everything from elephant ivory to pangolin scales has resulted in the destruction of hundreds of millions of animals around the globe. The US is believed to be the second largest consumer of illegal wildlife products in the world, and China the first.

Moved by the vaquita’s plight, Kohn applied for a $150,000 prize from the US Agency for International Development to design a program that would encourage wildlife whistleblowers around the world to offer critical information to US law enforcement. He was awarded the funds in 2016, and the National Whistleblower Center used the money to set up a website that would serve as a clearinghouse for potential informants.

But he soon discovered that the US already has several laws on the books that enable a variety of federal agencies responsible for enforcing federal wildlife laws, including the Fish and Wildlife Service (FWS), to offer payments in exchange for information that can be used to prosecute wildlife criminals. What’s more the FWS had been receiving federal funding for such payments for years, but Kohn and his legal team discovered that it didn’t seem to be paying informants.

This then is a story of missed opportunities — and loss. Many law enforcement officers and conservationists have been struggling, against the odds and sometimes at great personal risk, to save countless endangered creatures, including the vaquita. The failure to protect the vaquita points to the US government’s larger failure to take advantage of perhaps the most powerful tool in the fight against wildlife crime: paying people to provide agents with information.

IN 1987, CONGRESS DIRECTED the Fish and Wildlife Service to set up a whistleblower program for wildlife crime informants under the Fish and Wildlife Improvement Act. And according to Julia Malleck, a researcher in Kohn’s office, since 1988 the US Congress has provided the Fish and Wildlife Service with $400,000 a year — a total of roughly $13 million over the past three decades — for a so-called Special Funds Account to pay whistleblowers for useful information before a case is brought to trial, irrespective of whether it leads to a successful prosecution. The FWS has no proactive whistleblower program despite receiving $13 million in federal funds for one. Informants’ identities are not to be publicly revealed, protecting them from retribution.

In theory, the rewards under this program could be generous — potentially a windfall to informants. “A fisherman in Mexico, say, gets $10,000 right off the bat for providing useful tips,” Kohn says. “If the information leads to a prosecution that brings down a smuggling ring, he can earn tens, maybe hundreds of thousands more if the court grants [him] 10 percent of the settlement money, as often happens in such cases. Now that would be hard to resist!” (Those who are convicted of wildlife crimes are sometimes ordered to pay large fines, in addition to serving jail time.)

The only proviso for the whistleblower payments, Kohn notes, is that there be a good chance that the information obtained relates to wildlife or wildlife parts that eventually might make their way to the US. That condition is rarely hard to meet, Kohn says. While the full scope of the domestic trade is not known, a report published by the organization Defenders of Wildlife in 2015 said that “the United States is generally accepted as one of the largest consumers of illegal wildlife and wildlife products worldwide.” Untold billions of dollars’ worth of smuggled wildlife products from all over the world enters the country yearly — everything from elephant ivory to illegal seafood and totoaba bladders — some of it for sale within the US, some of it on its way to other nations.

Kohn calls the whistleblower program “a beautiful thing” adding that “no wildlife criminal anywhere is beyond the reach of US law.”

A great law on the books, perhaps, but unfortunately it has not yet been implemented. To find out how the Special Funds Account to pay whistleblowers was being used in practice, Kohn filed a Freedom of Information Act (FOIA) request for funding during a recent period, from 2003 to 2016, which he shared with Earth Island Journal. The records obtained from this request reveal that the Fish and Wildlife Service can only account for $13,704 of the $5.6 million given to the agency during that period. The FOIA did not cover the money allocated from 1987 to 2003, and Fish and Wildlife Service did not respond to questions about how the funds from that period were spent.

fishing trawlers in the Gulf of Califorina with a vaquita in the foreground
A rare image from 2008 of a vaquita in the foreground with fishing boats in the background within a natural protected area in the Gulf of California. The Mexican government recently distributed vaquita-safe nets to 150 fishers througout the region as part of an effort to prevent bycatch. Photo Paula Olson/NOAA.

In response to Kohn’s FOIA request, the FWS acknowledged that they have no record of how the rest of the whistleblower money it received from 2003 to 2016 was spent. The service also conceded that it has no “proactive” whistleblower program in place, despite the congressional mandate that they set one up and the earmarked funds the agency has been receiving annually.

Kohn has filed an appeal with the Secretary of the Interior to find out how the missing money was used, but has not yet received a response from the agency. “It just seems unbelievable,” he says, that the FWS would have no record of where the funds went. “If the money wasn’t spent to pay awards, it had to go somewhere.”

The Fish and Wildlife Service “never publicized the program, they never implemented it, they don’t even know where the money went,” Kohn says. “It’s just crazy. If they used those funds as Congress mandated, to cultivate sources for information on wildlife crime, we’d have a whole different situation, not just with the vaquita but with rhino horn, with elephant ivory — with everything.”

When asked about the missing program, agency heads in the Obama administration who were active during the past disastrous decade for the vaquita said that they didn’t know anything about the whistleblower funds.

“I was never aware that there was a program to pay whistleblowers in the field,” former Secretary of the Interior Sally Jewell said in a phone interview. “We did what we could with the limited resources that we had. Our priority was to put special investigators in several foreign countries to work with local wildlife officials.”

Former FWS Director Dan Ashe echoed Jewell. “I simply have no knowledge of that,” he said of the whistleblower fund, adding that the loss of the vaquita needs to serve as a wake-up call. “We simply have to find better ways, better tools, wherever we can find them.”

Greg Sheehan, the current head of Fish and Wildlife Service, did not respond to a request for comment. A spokeswoman for the service sent a statement that does not address the lack of a whistleblower program but details efforts by US government agencies “to identify and disrupt the illegal wildlife trade,” including the trade in totoaba swim bladders that is imperiling the vaquita.

THE MEXICAN GOVERNMENT has made several attempts over the past few decades to reduce threats to the vaquita. The latest efforts include designation of an exclusion zone in 2015, encompassing the nearly 100 square miles of ocean most frequented by the porpoise, where fishing and boat navigation are banned, along with a permanent ban on use of gillnets for most fisheries in 2017. This past spring, the government also distributed new vaquita-safe nets to 150 gulf fishermen. However, enforcement of these regulations has been spotty at best, and there have been reports that some local authorities have been paid by the totoaba cartel to look the other way when illegal fishing takes place.

“Mexico has partially banned gill nets, but they still allow them for gulf corvina, shrimp, and Spanish mackerel inside the vaquita’s range,” says Giulia Good Stefani, a staff attorney with the Natural Resources Defense Council (NRDC). (Corvina are a threatened species also known as weakfish.) “As long as those fisheries are allowed, it provides cover for the illegal totoaba fishery and impedes enforcement,” Stefani says.

In addition, Stefani says, a critical piece of legislation — the Marine Animal Protection Act — isn’t being enforced by the United States, to the detriment of the vaquita. This law prohibits the import of any fish into the US whose capture results in significant bycatch of marine mammals. In March, the NRDC joined forces with the Center for Biological Diversity and the Animal Welfare Institute to sue the Trump administration for failing to ban gillnet-caught seafood imports from the Gulf of California, as required by the act due the significant bycatch of vaquita and other non-target species in the area. She hopes the suit will require the US to tighten its enforcement and prompt Mexico to ban the harmful fishing practices. The suit is a Hail Mary pass to save the vaquita.

Other last-ditch efforts are taking place at sea. Last year, a joint US-Mexican team attempted to capture all remaining vaquitas, the idea being to move them to a sanctuary until gillnets were entirely phased-out. After the first captured porpoise quickly died in captivity due to stress, the team aborted the mission. The Mexican navy also teamed up with the environmental action group Sea Shepherd to patrol the vaquita’s home range. Since initiating patrols in 2016, they’ve recovered more than 62 miles of illegal gill nets from the gulf, says Carolina Castro, Sea Shepherd’s media coordinator. Castro, who served a stint on one of the group’s refurbished patrol boats, says the work has become increasingly militarized. Poachers fire weapons or lob Molotov cocktails at their vessels and shoot down the thermal-vision-equipped drones they use to locate the nets.

“It’s heartbreaking work,” she says. Occasionally the patrol team hauls in a dead vaquita, as well as “nets full of whales, dolphins, great white sharks, hammerhead sharks, sea turtles.” Very rarely, they rescue a sea creature that’s still alive. “US efforts to stem the totoaba trade have been nearly as lackluster as China’s.” But never any vaquitas, which drown quickly when caught in nets: As Castro points out, the seemingly insurmountable challenge of saving the vaquita is reflected in the project’s name: Operation Milagro — milagro being Spanish for “miracle.”

Confiscating nets or catching the occasional fisherman in the act may not accomplish much if the criminal networks that employ the poachers are left intact, says Andrea Crosta, executive director of the Los Angeles-based Elephant Action League, which does undercover investigations into the illegal wildlife trade. The organization issued a report this summer that traces totoaba trafficking routes between Mexico and Asia. It shared a list of several dozen individuals who, Crosta says, are suspected of helping to smuggle the bladders into China with Mexican, US, and Chinese authorities. These names were not released publicly.

Rafael Pacchiano Alamán, Mexico’s secretary of the Department of Environment and Natural Resources, said that his government’s efforts to control the totoaba trade have been hamstrung to a degree by lack of action in China. “The network that is trafficking totoaba is also trafficking humans,” he said. “We’re dealing with a very powerful enemy here. As long as these criminals are paying what they are paying for the bladders, we won’t be able to fully eradicate the problem. We desperately need the cooperation of the Chinese government.”

According to Crosta, US efforts to stem the totoaba trade have been nearly as lackluster as China’s. That contention is disputed by Erin Dean, the Fish and Wildlife Service’s law enforcement agent in charge of the Southern California region. Dean says her office has been in involved in multiple arrests of totoaba smugglers at the US-Mexico border and in 2013 helped uncover a totoaba “safe house” in Calexico, CA, where a US national, Song Shen Zhen, was drying 214 bladders for eventual export to China.

Fish bladders being sold at a market in China
Fish bladders being sold at a market in China. Given how lucrative the black-market trade in some animal parts is, a wildlife whistleblower program that pays informants would offer an incentive to potential poachers and traffickers to provide intelligence to law enforcement rather than kill endangered animals. photo Wikimedia user Vmenkov

Shen Zhen was sentenced to one year in federal prison. The other 13 totoaba smuggling cases that have been prosecuted in the US have resulted in shorter prison sentences or probation, Dean says, and in one case a fine of only $1,000. She fears that light penalties will do little to discourage wildlife criminals who can earn hundreds of thousands of dollars in a single transaction. “It’s very frustrating,” she says. “It’s definitely something the justice system needs to improve on. We need to make people aware of how destructive the totoaba trade is.”

Dean says no arrests have been made for totoaba smuggling during the past year or so. She speculates that the traffickers may have changed the route they use to bring the bladders into the US.

TIMELY INFORMATION ABOUT shifts in totoaba smuggling routes is precisely the kind of intelligence whistleblowers would share with law enforcement, says Mark Roberts, an international environmental lawyer and consultant. Roberts, like Kohn, believes that the US fight against wildlife crime is hobbled by the government’s failure to pursue an active whistleblower program.

“For financial crimes, for IRS violations, for defrauding the government, whistleblower provisions have been extremely effective,” Roberts says. He points out that the Fish and Wildlife Service isn’t the only government body with the authority to enact a wildlife crime whistleblower program. Multiple US agencies — including the Department of Agriculture and the Commerce Department — have legal authority to grant rewards for actionable wildlife crime information, but none of these agencies has put wildlife whistleblower programs in place. “The laws are sitting there in the statute books unused,” he says.

Stephen Kohn says the failure to formalize an effective wildlife whistleblower program in the US is all the more egregious considering how successful such programs are in other government agencies. For example, the Department of Justice gives out $450 million a year in rewards to whistleblowers all over the world under the False Claims Act, a key part of DOJ’s effort to fight fraud against federal programs. Whistleblowers receive a share of any funds recovered through successful lawsuits, so the incentive to cooperate is large. “Think of what this would have meant for wildlife crime,” Kohn says. Think of what it could have meant for the vaquita.

The existence of funds for a wildlife whistleblower program may have escaped the notice of federal officials over the years, but not that of Oregon’s Senator Ron Wyden, a Democrat. At Wyden’s request, the Government Accountability Office conducted an extensive investigation of the Fish and Wildlife Service and its sister agency, the National Oceanic and Atmospheric Administration (NOAA). The resulting report, published earlier this year, concluded that both agencies had neglected to set up effective programs to encourage informants to come forward.

NOAA is authorized to pay for information in wildlife cases involving ocean species. According to the GAO report, the agency, which has an annual budget of $68.6 million and employs 77 special agents to investigate wildlife crimes, reported paying only two whistleblower rewards, for a total of $21,000, during the past 10 years.

The report says both agencies not only failed to adequately inform the public that rewards for wildlife crime information were available but also couldn’t fully account for how the money allocated for this purpose was actually used. In its response to the accounting office’s inquiries, the FWS conceded that making more reward information available would lead to “a significant increase in the amount of information on wildlife crime” that the agency receives, but it said that processing all that extra information “could strain resources.”

“The Government Accountability Office’s investigation shows the agencies responsible for combating wildlife trafficking and protecting endangered species are simply not doing enough,” Wyden said. “At a minimum the agencies must begin using the authority Congress has given them to truly encourage whistleblowers to come forward and report illegal smuggling and harvesting at our borders and in our backyards.”

Legislators like Wyden and Representative Madeleine Z. Bordallo, Democrat from Guam, argue that the extra effort to develop critical intelligence on wildlife crime rings would be time well spent. Bordallo introduced legislation in May, co-sponsored by Representative Don Young, a Republican from Alaska, “to fully implement whistleblower authorities under current law and increase anti-trafficking enforcement at no cost to American taxpayers,” she said in an email. “There is bipartisan support in Congress to do more to tackle the global poaching crisis and crack down on wildlife traffickers.” The law has been backed by many major wildlife protection organizations, including the World Wildlife Fund. Congress is expected to take it up next year.

For Kohn, the woeful example of the vaquita sends a clear message that legislation like this can’t come soon enough. “The US government needs to get serious about enforcing its laws and incentivizing individuals to take the risk of becoming a whistleblower,” he says. “We don’t have time to waste. Extinction is forever, and the clock is ticking.”

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