Conservation Groups Take to CIT Over Interior's Failure to Respond to Request Over Mexican Totoaba Trade

The U.S. Department of the Interior unreasonably delayed responding to a 2014 request to certify Mexico under the Pelly Amendments to the Fishermen's Protective Act of 1967 due to Mexico's failure to stop illegal fishing of and trade in endangered totoaba, an "imperiled fish," the Center for Biological Diversity, Animal Welfare Institute and Natural Resources Defense Council argued. In a suit filed Dec. 14 at the Court of International Trade, the conservation groups said the department and Interior Secretary Deb Haaland violated the Administrative Procedure Act by failing to respond to the petition, and said the killing of the totoaba is aiding in the "imminent extinction of the vaquita porpoise" (Center for Biological Diversity v. Deb Haaland, CIT #22-00339).

"Vaquita face only one threat: they become entangled and drown in Mexican fishing gear, including in gear set illegally to catch totoaba," the complaint said. Totoaba are traded on the secondary market from Mexico to China, and like vaquita, are listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, making their trade illegal. The conservation groups said Mexico for years has failed to enforce the bans on totoaba trading, lowering the vaquita population.

Under the Pelly Amendment when the Interior secretary finds foreign nationals are engaging in a trade that dilutes the effectiveness of any international program for endangered species, the secretary "shall certify such fact to the President," after which the president can ban the importation of any goods from the offending country. The plaintiffs filed a petition in 2014 seeking to certify Mexico for diminishing the CITES' effectiveness for the trade of totoaba.

The conservation groups did not receive a formal response, leading to further letters to the agency. In 2017, the Fish and Wildlife Service responded, listing actions the service had taken involving totoaba and vaquita and declaring it expected to conclude its investigation into the Pelly petition within the next four or five months. The plaintiffs filed suit at U.S. District Court for the District of Columbia in 2020 over the defendants' "unreasonable delay." The U.S. moved to toss the case on the grounds that CIT was the proper place of jurisdiction, leading to the plaintiffs voluntarily dismissing the matter and taking it to the trade court.

"More than eight years have passed since the Pelly petition was first filed and more than five years have passed since the Service stated it would complete its investigation within a matter of months," the brief said. "Despite the APA’s requirement that an agency respond to a petition 'within a reasonable time;' despite the vaquita’s imminent extinction if illegal totoaba fishing and trade continue; and despite the Pelly Amendment’s mandate that Defendants 'shall' 'promptly investigate,' 'promptly conclude ... any investigation,' and 'certify' nations for diminishing the effectiveness of treaties, Defendants have failed to provide any substantive response to the Pelly petition. Defendants’ extraordinary delay in providing such a response is patently unreasonable and therefore unlawful."