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`Case 1:20-cv-01532 Document 1 Filed 06/11/20 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
`
`
`CENTER FOR BIOLOGICAL DIVERSITY,
`378 N. Main Avenue
`Tucson, AZ 85701,
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`ANIMAL WELFARE INSTITUTE,
`900 Pennsylvania Avenue SE
`Washington, DC 20003,
`
`Plaintiffs,
`
`v.
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`DAVID BERNHARDT, in his official
`capacity as Secretary of the U.S. Department
`of the Interior,
`1849 C Street NW
`Washington, DC 20240,
`
`U.S. DEPARTMENT OF THE INTERIOR,
`1849 C Street NW
`Washington, DC 20240,
`
`Defendants.
`
`
` Case No. 1:20-cv-1532
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`
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`
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`INTRODUCTION
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`1.
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`Plaintiffs Center for Biological Diversity and Animal Welfare Institute
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`(collectively “Plaintiffs”) challenge the failure of Secretary of the Interior David Bernhardt and
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`the Department of the Interior (“Defendants”) to respond to a 2014 petition (“the Petition”) filed
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`pursuant to the Administrative Procedure Act (“APA”). The Petition requested that Defendants
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`“certify” Mexico under the U.S. Pelly Amendment for Mexico’s ongoing failure to halt illegal
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`fishing of and international trade in endangered totoaba fish. See 22 U.S.C. § 1978(a)(2). This
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`take and trade violates and “diminishes the effectiveness” of the Convention on International
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`Trade in Endangered Species of Fauna and Flora (“CITES”) and is contributing to the imminent
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`extinction of the vaquita, a critically endangered porpoise. Id.
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`2.
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`Likely only 10 vaquita remain on Earth. Vaquita face a single threat: they become
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`entangled and drown in fishing gear, including in gear set illegally to catch totoaba, a giant,
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`endangered fish. Totoaba are traded on the black market from Mexico to China, where the
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`totoaba’s swim bladder is believed to have medicinal properties.
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`3.
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`Totoaba and vaquita are both protected under CITES as Appendix-I species, and
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`thus international, commercial trade in both species is prohibited. Mexican law also prohibits
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`totoaba fishing.
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`4.
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`Yet for years, Mexico has failed to enforce these bans on totoaba fishing and
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`trade, and as a result, the vaquita population has plummeted. If Mexico does not take serious,
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`immediate, and concerted action to increase enforcement, the vaquita may be extinct by next
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`year.
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`5.
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`Under the Pelly Amendment, if “the Secretary of the Interior . . . finds that
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`nationals of a foreign country, directly or indirectly, are engaging in trade or taking which
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`diminishes the effectiveness of any international program for endangered or threatened species,
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`the Secretary . . . shall certify such fact to the President.” 22 U.S.C. § 1978(a)(2). Upon the
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`Secretary’s certification of a nation, the President is authorized to direct the Department of
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`Treasury “to prohibit . . . the importation into the United States of any products from the
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`offending country.” Id. § 1978(a)(5).
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`6.
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`The Petition, filed September 29, 2014, requested that the Secretary of the Interior
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`certify Mexico for trade and taking of totoaba that “diminishes the effectiveness” of CITES,
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`pursuant to the APA and the Pelly Amendment. 5 U.S.C. § 553(e); 22 U.S.C. § 1978(a)(2).
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`7.
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`Defendants have not made a final determination on the Petition as of the date of
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`this Complaint’s filing.
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`8.
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`Defendants’ delay in responding to the 2014 Petition is unlawful, unreasonable,
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`and violates the APA. 5 U.S.C. §§ 555(b), 706(1). More than five years have passed since the
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`Petition’s filing, and during this time, Mexico’s totoaba taking, trade, and violations of CITES
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`has continued, as the vaquita’s population has declined precipitously.
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`9.
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` Plaintiffs file this Complaint pursuant to the APA seeking a declaratory judgment
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`and injunctive relief to compel Defendants to respond substantively to the Petition by a date
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`certain, as well as Plaintiffs’ fees and costs associated with the litigation.
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`JURISDICTION AND VENUE
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`10.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
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`§ 1331 (actions arising under the laws of the United States), 28 U.S.C. § 1346 (action against the
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`United States), 28 U.S.C. § 1361 (power to issue writs of mandamus), 28 U.S.C. §§ 2201–02
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`(power to issue declaratory judgments and injunctive relief in cases of actual controversy), and 5
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`U.S.C. § 702 (APA jurisdiction for those adversely affected by agency action).
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`11.
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`This lawsuit is brought pursuant to the APA. 5 U.S.C. §§ 551–559, 701–706.
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`Plaintiffs seek judicial review under the APA. Id. § 706(1). The requested relief is authorized
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`under 28 U.S.C. § 2201 (declaratory relief), 28 U.S.C. § 2202 (injunctive relief), 5 U.S.C. § 706
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`(APA), and the Court’s equitable powers.
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`12.
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`Venue properly lies in this District under 28 U.S.C. § 1391(e)(1), as this civil
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`action is brought against an agency of the United States and an officer and employee of the
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`United States acting in his official capacity; Defendants reside and are headquartered in the
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`District of Columbia; and a substantial part of the events and omissions giving rise to the claim
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`occurred in the District of Columbia.
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`13.
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`The APA provides waiver of the federal government’s sovereign immunity. 5
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`U.S.C. § 702.
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`PARTIES
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`14.
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`Plaintiff Center for Biological Diversity (“the Center”) is a 501(c)(3) nonprofit
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`corporation incorporated in the State of California that maintains offices across the country,
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`including in Washington, DC, California, Arizona, Florida, New York, Oregon, and Washington
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`State, and in Baja California Sur, Mexico. The Center works through science and environmental
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`law to advocate for the protection of endangered, threatened, and rare species and their habitats
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`both in the United States and abroad. The Center has over 74,000 active members and around 1.7
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`million online activists.
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`15.
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`The Center and its members have a strong and longstanding interest in protecting
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`imperiled marine mammals and fish like the vaquita and the totoaba. Through its International
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`and Oceans Programs, the Center has worked for years to protect marine mammals within the
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`United States and abroad that are threatened by unsustainable or harmful fishing practices,
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`including through advocacy, litigation, and participation as appointed members of five take
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`reduction teams under the Marine Mammal Protection Act. The Center has a long history of
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`actively advocating for protection of the imperiled vaquita and the totoaba within the United
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`States, in Mexico, and at numerous international forums.
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`16. Members of the Center reside throughout the United States, in Mexico, and in
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`other countries. The Center has members who have visited and have specific plans to return to
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`the vaquita’s habitat in Mexico’s Upper Gulf of California. For example, Mr. Brett Hartl, a
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`member who resides in Arizona, lived in the Upper Gulf in 2003 for ten weeks and traveled
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`extensively in the area. He visited San Felipe, near the vaquita’s habitat, in 2009 and 2018 and
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`attempted to view, study, and photograph the vaquita. Mr. Hartl had planned to return to the
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`Upper Gulf this September to again attempt to view the vaquita, but these plans have been
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`postponed because of the coronavirus pandemic. He now plans to return to the Upper Gulf to
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`attempt to view vaquita in May or June of 2021, assuming it is safe to travel at that time due to
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`COVID-19. Another Center member, Mr. Taylor McKinnon, has been visiting the Upper Gulf
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`regularly since childhood. He has visited San Felipe and the surrounding coast six times,
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`including in 2016, 2017, and 2018, kayaking, taking photos, and looking for vaquita. He plans to
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`take the same trip in October of 2020, if allowed and safe given COVID-19 recommendations,
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`and to continue such annual trips in the future, as he has done in the past. Mr. Alejandro Olivera
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`is a Center member who resides in California Baja Sur, Mexico and regularly visits the Upper
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`Gulf and the vaquita’s habitat, including six trips over the past 11 years. Each time Mr. Olivera
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`visits the Upper Gulf, he attempts to view a vaquita, including from on the water, and he has also
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`seen gillnets being used near San Felipe. Mr. Olivera planned to return to the vaquita’s habitat to
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`attempt to see the vaquita and evaluate on-the-water enforcement by Mexican officials in April
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`of this year, including booking travel; however, he cancelled those plans due to the coronavirus
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`pandemic. Mr. Olivera has rescheduled his trip and now plans to visit the vaquita habitat in the
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`fall of 2020, if permissible under COVID restrictions, and will continue to return to the Gulf
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`regularly in the future, as he has in the past.
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`17.
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`Plaintiff Animal Welfare Institute (“AWI”) is a non-profit animal advocacy
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`organization with its principal place of business in Washington, DC. Since its founding in 1951,
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`AWI’s mission has been to end human-inflicted animal suffering and exploitation by vigorously
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`defending animals’ interests through the law. AWI has a longstanding and well-established
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`interest in protecting the lives and habitats of wildlife, including marine wildlife, from
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`harassment, encroachment, and destruction. AWI’s wildlife advocacy department works
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`diligently to protect all fauna—terrestrial and marine—from suffering caused by people; to
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`conserve and recover threatened and endangered species; and to secure protections for animals
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`by engaging with policymakers, scientists, and industry at state, federal, and international levels.
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`18.
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`AWI advocates for the protection of marine wildlife, including cetaceans, in
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`Mexico and across the globe. Its advocacy efforts include speaking on behalf of marine species
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`in international forums such as the International Whaling Commission (“IWC,” including its
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`Scientific Committee), the Convention on Biological Diversity, CITES, and the World Heritage
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`Convention; educating constituents and members about cetaceans and the threats they face; and
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`monitoring legislation and research activities that may affect their well-being.
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`19.
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`AWI promotes increased protections of marine mammals from unsustainable
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`fishing practices around the globe, especially those practices that cause death due to
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`entanglement in fishing gear. AWI is a member of the IWC’s Bycatch Mitigation Initiative
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`Standing Working Group and frequently comments on Marine Stewardship Council fisheries
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`assessments on the impacts of fisheries on cetaceans. AWI seeks an end to the indiscriminate use
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`of gillnets, which are responsible for the deaths of hundreds of thousands of marine mammals
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`each year and have driven the critically endangered vaquita to the edge of extinction. In its
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`efforts to save the vaquita, AWI has expended considerable time and organizational resources to
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`meet with government officials in Mexico and the United States and to advocate for the species
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`in various international forums, organized and participated in events to educate governmental
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`delegates to international meetings about the species and its threats, and collaborated with other
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`international and non-governmental organizations on projects to promote the protection and
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`recovery of the species.
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`20.
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`AWI has nearly 26,000 members worldwide, including members in Mexico and
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`the southwest United States who reside near the Upper Gulf of California. AWI members
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`strongly desire to increase protections for the vaquita and its habitat in order to increase the
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`vaquita’s likelihood of recovery. AWI members live near or have traveled to the Upper Gulf of
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`California and have specific plans to return to try to observe vaquita. For example, AWI member
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`Kate O’Connell traveled to the Upper Gulf several times in the 1990s, including attending the
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`official designation of the Biosphere Reserve in 1993. She visited Puerto Peñasco and Guaymas
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`in Sonora in 1993 and 1994 and San Felipe in Baja California Norte in 1995 and 1999. During
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`her 1995 trip to San Felipe, Ms. O’Connell was fortunate enough to catch a fleeting glimpse of
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`two live vaquita from a small boat. Ms. O’Connell visited the Upper Gulf of California
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`Biosphere Reserve, Golfo Santa Clara, and Puerto Peñasco in 2018 and spoke with fishers and
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`tour operators about the vaquita. Ms. O’Connell had planned to visit the Upper Gulf this
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`September to again attempt to view vaquita, but these plans have been postponed due to the
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`coronavirus pandemic. She now plans on returning to the Upper Gulf to attempt to view vaquita
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`in the spring of 2021 when it is safe to travel. Another AWI member lives in the region near the
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`vaquita’s habitat and has a longstanding interest in the vaquita’s conservation. The member
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`regularly views the vaquita’s habitat and has witnessed illegal fishing there.
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`21.
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`Plaintiffs and their members derive aesthetic, recreational, scientific, educational,
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`conservation, and other benefits from the existence of the vaquita in the wild. These interests
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`have been, are, and will be directly, adversely, and irreparably affected by Defendants’ violation
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`of the law. As the vaquita population declines, Plaintiffs’ members are less likely to view the
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`vaquita in the wild. Further, these members’ enjoyment of viewing the vaquita’s marine habitat
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`is decreased by observing vaquita-killing gillnets in the vaquita’s waters.
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`22.
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`Plaintiffs’ members will continue to be prejudiced by Defendants’ unlawful
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`actions unless and until this Court provides the relief prayed for in this Complaint.
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`23.
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`Defendant David Bernhardt is the Secretary of the U.S. Department of the
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`Interior. In this capacity, Secretary Bernhardt directs all business of the Department of the
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`Interior. Under the Pelly Amendment, Secretary Bernhardt is responsible for determining
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`whether to “certify” nations if taking or trade by foreign nationals is diminishing the
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`effectiveness of international agreements for endangered species. In his official capacity,
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`Secretary Bernhardt is responsible for the violations alleged in this Complaint.
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`24.
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`Defendant U.S. Department of the Interior is the agency led by the Secretary of
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`the Interior. The U.S. Department of the Interior is responsible for the violations alleged in this
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`Complaint.
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`A.
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`25.
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`LEGAL BACKGROUND
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`The Convention on International Trade in Endangered Species
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`CITES is a multilateral treaty governing trade in imperiled species. CITES,
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`opened for signature March 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243 (entered into force July
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`1, 1975). CITES recognizes that “wild fauna and flora in their many beautiful and varied forms
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`are an irreplaceable part of the natural systems” and that “international co-operation is essential
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`for the protection of [these] species . . . against over-exploitation through international trade.”
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`Id., Preamble.
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`26.
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`To receive protection under CITES, species must be included on one of CITES’
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`three Appendices, and each Appendix offers a different level of protection.
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`27.
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`Species included on CITES Appendix I are “threatened with extinction” and are
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`thus “subject to particularly strict regulation in order not to endanger further their survival.”
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`CITES, art. II(1). CITES strictly bans all commercial, international trade in Appendix-I species.
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`Id., art. III(1), (3).
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`28.
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`CITES further requires that each Party “shall take appropriate measures to enforce
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`the provisions of [CITES] and to prohibit trade in specimens in violation thereof.” CITES, art.
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`VIII(1).
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`29.
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`B.
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`30.
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`The United States, Mexico, and 181 other nations are Parties to CITES.
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`The Pelly Amendment
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`Enacted in 1971 and amended in 1978, the Pelly Amendment to the Fishermen’s
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`Protective Act (“the Pelly Amendment”) provides the United States leverage to prompt other
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`nations’ compliance with international conservation agreements through trade restrictions.
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`31.
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`The Pelly Amendment requires that:
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`When . . . the Secretary of the Interior, in consultation with the Secretary of State,
`finds that nationals of a foreign country, directly or indirectly, are engaging in trade
`or taking which diminishes the effectiveness of any international program for
`endangered or threatened species, the Secretary . . . shall certify such fact to the
`President.
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`22 U.S.C. § 1978(a)(2).
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`32.
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`The Pelly Amendment further requires the Secretary to: (A) “periodically
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`monitor” activities of foreign nationals that may affect international programs; (B) “promptly
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`investigate any activity that . . . may be cause for certification;” and (C) “promptly conclude; and
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`reach a decision with respect to; any [such] investigation.” 22 U.S.C. § 1978(a)(3). A citizen may
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`petition for a Pelly certification.
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`33.
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`Under the Pelly Amendment, an “international program for endangered or
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`threatened species” is “any ban, restriction, regulation, or other measures in effect pursuant to a
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`multilateral agreement which is in force with respect to the United States, the purpose of which
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`is to protect endangered or threatened species of animals.” 22 U.S.C. § 1978(h)(4).
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`34.
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`The Pelly Amendment defines “taking” to include “harm[ing], . . . kill[ing],
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`trap[ping,] [or] collect[ing]” an animal or attempting to do so. 22 U.S.C. § 1978(h)(5).
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`35.
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`Upon receiving a Pelly certification from the Secretary, the President is
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`authorized “to direct the Secretary of the Treasury to prohibit . . . the importation into the United
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`States of any products from the offending country.” 22 U.S.C. § 1978(a)(5). Further, the
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`President “shall” notify Congress of his decision within 60 days of the Secretary’s certification,
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`and if the President “fails” to prohibit importation or does not prohibit “all fish . . . or wildlife
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`products” from the certified country, the President “shall” inform Congress of the reasons. Id.
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`§ 1978(b).
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`36.
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`Once products are prohibited, the Pelly Amendment makes any subsequent
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`importation illegal. 22 U.S.C. § 1978(c).
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`C.
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`37.
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`The Administrative Procedure Act
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`The Administrative Procedure Act requires that “[e]ach agency shall give an
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`interested person the right to petition for the issuance, amendment, or repeal of a rule.” 5 U.S.C.
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`§ 553(e). The APA further requires that “within a reasonable time, each agency shall proceed to
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`conclude a matter presented to it,” id. § 555(b), and that agencies give “prompt notice” if they
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`deny a petition, providing “a brief statement of the grounds for denial,” id. § 555(e).
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`38.
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`The APA provides a cause of action to any “person suffering legal wrong because
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`of agency action, or adversely affected or aggrieved by agency action within the meaning of a
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`relevant statute.” 5 U.S.C. § 702. Under the APA, an agency action includes an agency’s “failure
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`to act.” Id. § 551(13). The APA requires a reviewing court to “compel agency action unlawfully
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`withheld or unreasonably delayed.” Id. § 706(1).
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`FACTUAL BACKGROUND
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`A.
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`39.
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`Totoaba Fishing and Trade and the Vaquita’s Perilous Decline
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`The vaquita (Phocoena sinus) is the world’s smallest porpoise, reaching around
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`five feet in length, with dark grey patches around its eyes and mouth. Vaquita inhabit only one
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`place in the world: Mexico’s Upper Gulf of California.
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`40.
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`Vaquita are critically endangered. The CITES Parties included the vaquita on
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`Appendix I of CITES in 1979. The United States listed the vaquita under its Endangered Species
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`Act (“ESA”) in 1985. 50 Fed. Reg. 1056 (Jan. 9, 1985) (listing Phocoena sinus).
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`41.
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`The vaquita’s sole threat is entanglement in gillnet gear. Gillnets are a type of
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`non-selective fishing gear hung vertically in the water column sometimes for hours or even days.
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`In addition to capturing target fish, gillnets also often capture and kill non-target fish and other
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`marine life, including marine mammals and turtles that drown once entangled.
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`42.
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`The vaquita’s population has declined due to entanglement in gillnet gear set in
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`the region’s totoaba, shrimp, curvina, sierra, and chano fisheries.
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`43.
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`Totoaba (Totoaba macdonaldi) are large, schooling marine fish that inhabit the
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`Gulf of California and grow to around five feet in length. A portion of the totoaba’s annual
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`spawning habitat overlaps the vaquita’s habitat in the Upper Gulf.
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`44.
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`The totoaba’s swim bladder, also referred to as “maw,” is in high demand in
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`China, as it resembles the bladder of a now-nearly-extinct Chinese fish called the bahaba. A
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`swim bladder is a gas-filled organ that controls the fish’s buoyancy. Totoaba swim bladders are
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`believed by some to have medicinal properties, including curing arthritis, boosting fertility,
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`improving skin and circulation, and slowing bleeding. Large swim bladders are also purchased
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`for investment purposes, collectables, or as gifts. Totoaba swim bladders can sell for $46,000 per
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`kilogram.
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`45.
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`The totoaba population declined due to overfishing, and in 1975, Mexico banned
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`totoaba fishing.
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`46.
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`In 1977, the CITES Parties included totoaba on Appendix I of the treaty. Totoaba
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`remains on CITES Appendix I today. As a result, CITES bans commercial trade in totoaba and
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`totoaba parts and derivatives.
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`47.
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`In 1979, the National Marine Fisheries Service (“NMFS”) listed totoaba as
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`endangered under the ESA. 44 Fed. Reg. 29,478 (May 21, 1979) (listing Cynoscion macdonaldi,
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`a taxonomic synonym of Totoaba macdonaldi). Totoaba remain listed as endangered today. 50
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`C.F.R. § 17.11(h).
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`48.
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`Totoaba has also been assessed as “Critically Endangered” by the International
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`Union for the Conservation of Nature. See https://www.iucnredlist.org/species/22003/9346099.
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`49.
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`Around 2010, when an estimated 200 vaquita remained, illegal totoaba fishing
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`within the vaquita’s habitat surged, due to “increased demand in Chinese markets for the
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`[totoaba’s] swim bladder.” Report of the Fifth Meeting of the International Committee for the
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`Recovery of the Vaquita. Ensenada, Baja California, July 8-10, 2014, at 15 (“CIRVA-5”).
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`50.
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`Accordingly, in 2014, the international vaquita expert group CIRVA (the Comité
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`Internacional para la Recuperación de la Vaquita) formally recommended “that all available
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`enforcement tools, both within and outside Mexico, be applied to stopping illegal fishing,
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`especially the capture of totoabas and the trade in their products.” CIRVA-5, at 2.
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`51.
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`Yet Mexico failed to enforce both its own domestic ban on totoaba fishing and
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`CITES’ ban on totoaba trade, and the vaquita population plummeted.
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`52.
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`In 2016, CIRVA reported “extensive evidence of totoaba poaching,” including
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`retrieval of 42 illegal gillnets in the Upper Gulf and three dead vaquita due to entanglement.
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`Seventh Meeting of the Comité Internacional para la Recuperación de la Vaquita. Ensenada, BC,
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`May 10-13, 2016, at 5, 4. The vaquita population fell to around 60 individuals. Id. at 4. CIRVA
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`stated that “the vaquita will soon be extinct” “unless enforcement and prosecution efforts
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`succeed in preventing illegal fishing.” Eighth Meeting of the Comité Internacional para la
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`Recuperación de la Vaquita, La Jolla, CA, Nov. 29-30, 2016.
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`53.
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`In spring of 2017, five more vaquita were found dead, and net removal teams
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`found 150 active totoaba nets in the Upper Gulf. Report of the Ninth Meeting of the Comité
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`Internacional para la Recuperación de la Vaquita. La Jolla, CA, April 25-26, 2017, at 4. CIRVA
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`reported that “[i]llegal fishing activity for totoaba ha[d] continued at a very high level and
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`poachers [we]re operating openly both day and night in the Upper Gulf.” Id. CIRVA
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`recommended that the Mexican government “launch – with the utmost urgency – intelligence-led
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`enforcement operations to dismantle illegal fishing operations as well as the organized criminal
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`syndicates driving the international trade in totoaba.” Id. at 12. CIRVA reported the vaquita had
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`declined to around 30 individuals. Id.
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`54.
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`Illegal fishing and the vaquita’s decline continued unabated. In 2018, CIRVA
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`wrote to the Mexican government with alarm, stating that “only about 10 vaquitas remained alive
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`in 2018.” Report of the Eleventh Meeting of the Comité Internacional para la Recuperación de la
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`Vaquita. La Jolla, CA, Feb. 19-21, 2019, at 5 (“CIRVA-11”). CIRVA explained that “[e]ach
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`year, half of the remaining vaquitas are killed in illegal fishing nets set for . . . totoaba,” which
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`are “smuggled by organized crime cartels to China.” Id. at 2. Yet “high levels of illegal fishing
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`for totoaba” continued to occur in the vaquita’s habitat, and net removal rates suggested “an
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`increase in illegal fishing for totoaba.” Id. at 2, 11 (emphasis is original). CIRVA concluded that
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`Mexico’s “[e]nforcement efforts have been completely ineffective in reducing the illegal totoaba
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`fishery in the Upper Gulf of California.” Id. at 12.
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`55.
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`Overall, the vaquita population declined 99 percent between 2011 and 2018.
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`CIRVA has stated that for the vaquita to survive, Mexico must “eliminate all gillnet fishing in
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`the area where the last few vaquita remain.” CIRVA-11, at 2.
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`56.
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`Yet totoaba poaching with gillnets continues. On December 9, 2019, the Sea
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`Shepherd Conservation Society reported sighting around 80 small boats setting and retrieving
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`illegal gillnets in vaquita habitat in a single day. The organization estimated that around 500
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`totoaba were taken illegally that day. Upon information and belief, none of the fishermen
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`involved in this incident have faced charges. In March 2020, a vaquita was reported dead and
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`entangled in totoaba net.
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`57.
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`Yet hope for the vaquita remains. During the most recent surveys in fall of 2019,
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`scientists observed six likely-distinct vaquita, including three mother-calf pairs. Other marine
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`mammal populations, like the Northern elephant seal, have reached similarly low population
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`numbers yet avoided extinction and have recovered.
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`B.
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`58.
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`International Concern over Mexico’s Enforcement Failures
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`Numerous international bodies have raised serious concern with Mexico’s failure
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`to halt illegal totoaba fishing and trade.
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`59.
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`In 2016, the CITES Standing Committee, a body that oversees treaty
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`implementation, addressed the ongoing illegal totoaba trade and specifically “urged Mexico to
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`strengthen implementation of CITES provisions that are applicable to totoaba.” Summary
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`Record, 66th Meeting of Standing Committee, Geneva, Switzerland, Jan. 11-15, 2016, at 84.
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`60.
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`Later that year, the CITES Conference of the Parties directed Mexico and other
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`Parties to submit reports “on the number and quantity of seizures of illegal totoaba products,
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`arrests of those engaged in the illegal fishing and trade, [and] results of any prosecutions” for
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`further assessment by the Parties. CITES Dec. 17.148.
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`61.
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`After reviewing those submissions, in 2019, the CITES Parties directed Mexico
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`to, inter alia, “take immediate and effective actions by 1 November 2019 in response to the
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`threats to totoaba and vaquita posed by illegal trade,” including “undertaking intelligence-driven
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`operations and investigations for addressing illegal trade in totoaba.” CITES Dec. 18.293.
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`62.
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`The CITES Standing Committee will consider Mexico’s implementation of these
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`directives and the treaty at its next meeting, currently scheduled for October 2020, and “if not
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`satisfied with timely progress,” the Committee “shall” take action pursuant to the CITES
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`Compliance Procedures, which can include recommending Parties ban trade in Mexican wildlife
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`products. CITES Dec. 18.295.
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`63.
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`In July 2019 under the World Heritage Convention, the UNESCO World Heritage
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`Committee reviewed Mexico’s management of its Islands and Protected Areas of the Gulf of
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`California World Heritage site, which covers the vaquita’s habitat. The Commission officially
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`“expresse[d] its utmost concern that despite [Mexico’s surveillance efforts] . . . illegal fishing of
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`totoaba has continued and even escalated in the Upper Gulf of California resulting in a threat of
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`imminent extinction of the vaquita population.” WHC/19/43.COM/18. Paris, 23 July 2019. The
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`Committee therefore found that “illegal fishing represents an ascertained danger to” the site’s
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`Outstanding Universal Values and voted to inscribe the site on the List of World Heritage in
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`Danger, directing Mexico to develop corrective measures for its management of the site. Id.
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`64.
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`Also in 2019, the International Whaling Commission’s Scientific Committee
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`issued a formal report “yet again express[ing] its disappointment and frustration that, despite
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`almost three decades of repeated warnings, the vaquita’s rapid decline to extinction continues
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`because of [Mexico’s] ineffective management measures.” Report of the Scientific Committee,
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`Nairobi, Kenya, May 10-13, 2019, at 63-65. The report recommends that Mexico increase
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`surveillance and enforcement, among other actions. Id.
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`C.
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`65.
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`The Pelly Petition and Defendants’ Failure to Respond
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`On September 29, 2014, the Center filed the Petition pursuant to the APA and
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`Pelly Amendment requesting that the Secretary of the Interior certify Mexico for trade and taking
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`of totoaba that “diminishes the effectiveness” of CITES. 5 U.S.C. § 553(e); 22 U.S.C.
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`§ 1978(a)(2)
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`66.
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`The Petition describes the vaquita’s precipitous decline; detailed how illegal
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`fishing and trade are driving that decline; and explained how CITES prohibits commercial trade
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`in totoaba, as an Appendix-I species, and requires Mexico to enforce that prohibition.
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`67.
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`The Petition then argues that, under the Pelly Amendment, Mexican nationals are
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`engaging in “taking” and “trade” of endangered totoaba that “diminishes the effectiveness” of
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`CITES for two reasons. 22 U.S.C. § 1978(a)(2). First, by failing to enforce CITES’ ban on trade
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`in totoaba, Mexico is directly violating CITES and diminishing the treaty’s effectiveness.
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`Second, continued illegal fishing and trade in endangered totoaba threatens both the totoaba and
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`the vaquita’s existence, and thus Mexico’s actions “diminish the effectiveness” of CITES more
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`broadly, as the treaty is intended to conserve both these species.
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`68.
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`Having received no formal response from Defendants granting or denying the
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`Petition, on June 28, 2016, the Center sent a letter requesting that Defendants urgently grant the
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`Petition. The letter documented ongoing, illegal totoaba fishing and trade and the vaquita’s
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`continued decline.
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`69.
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`Still having received no response to the Petition, the Center sent an additional
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`letter to Defendants in January 2017, again documenting continued illegal totoaba fishing and
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`trade and further vaquita decline. The letter explained that Defendants’ failure to respond to the
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`Petition constituted an “agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C.
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`§ 706(1).
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`70.
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`On January 16, 2017, more than 60 conservation organizations, including the
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`Animal Welfare Institute, submitted a letter urgently requesting that Defendants certify Mexico
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`under the Pelly Amendment for totoaba taking and trade.
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`71.
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`On April 11, 2017, the Fish and Wildlife Service (“the Service”), an agency
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`within the Department of the Interior, sent a letter to the Center listing actions the Service had
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`taken regar