Violating the Endangered Species Act: Nothing more than a slap on the wrist?

Last year, a federal sting operation exposed the sale of endangered sei whale meat at The Hump, a Santa Monica seafood restaurant. More recently, Ginichi Ohira — the seafood vendor who supplied The Hump with its sei whale meat — pled guilty to charges of knowingly selling a marine mammal product in the Los Angeles District Court.

Ohira and The Hump were both guilty of violating the Marine Mammal Protection Act, which can bring fines of $100,000 (for individuals) to $200,000 (for businesses), and a year of jail time. Steep fines, but neither is likely to face any of them. In fact, the charges against The Hump have already been dropped. Why? Because they apologized. Shortly after the federal sting operation, The Hump issued an apology on their website, closed their doors for good, and promised to make a donation toward whale conservation. That’s it. An apology and a promised act of contrition, and the US Attorney’s office drops the charges.

Ohira still faces charges of violating the Marine Mammal Protection Act, but I won’t be surprised if those charges are dropped too.

The problem lies in the lax penalty guidelines written into the Marine Mammal Protection Act (download a pdf).

The Marine Mammal Protection Act will never make much of a difference if the penalties remain so lax. At best, the “enforcement” of the Marine Mammal Protection Act may often be a waste of federal time and money. At worst, these lax policies render the MMPA ineffective.

This must all be horribly frustrating for NOAA’s Law Enforcement Office and personnel, who invest a significant amount of time and resources into each investigation. Before joining IFAW, I worked in NOAA’s Office for Law Enforcement and later in the EPA’s Criminal Investigation Division. I can attest first hand to the challenges and frustrations of lax penalties compared to investigative resources expended. It is no different than the challenges you see at any police department, no matter what level of government.

In cases like The Hump, NOAA’s general counsel and the courts are limited by rigid penalty guidelines, which often limit the maximum penalty for a first-time offense to no more than $5,000. Sell a whale once, and you pretty much get a “shame on you” letter from Uncle Sam. It was actually worse with this case: the owners of The Hump got off entirely. Their dealer — Ohira — will likely pay a fine that amounts to a mere fraction of the profits he accrued over a decade of selling illegal whale meat. The fines are so inconsequential that they are basically considered a cost of doing business.

In contrast the US Fish and Wildlife Service recently completed a years-long investigation of a Cameroon-to-USA ivory smuggling operation. The smuggler received a five-year prison sentence, and was fined $100,000. These consequences are much greater than those that once faced The Hump and are currently facing Ohira. But, why? How is ivory smuggling any different from whale meat smuggling? Ohira’s ten-year operation required sophisticated planning and coordination in order to transport whale meat from Tokyo to the United States, and then to evade the US Customs Service’s efforts at the port of entry. This was no simple operation. These individuals knew exactly what they were doing. And, an apology is not enough. I certainly hope there are more indictments to come against those who profited from this smuggling effort.

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