Illustration: Esteban Silma.
A smaller boat without a name or license plate with two crew members makes a flight at full speed and leaves as its only trace a shrimp net. Gillnets are banned in the Upper Gulf of California and a day earlier the ban on shrimp began in the region.
Federal fishing officers aboard an interceptor vessel of the National Aquaculture and Fisheries Commission (Conapesca) only collect fishing gear and continue their journey through the waters of San Felipe, Baja California.
Stretched nets are the main cause of bycatch for marine vaquita. But in the area, the ban is a dead letter, says Alejandro Olivera, representative in Mexico of the Center for Biological Diversity.
An hour and a half after the first incident, officers observe a vessel with the same characteristics with a shrimp net, but this time inside the polygon of the refuge area for the vaquita marina, one of the most threatened marine mammals in the world, so they undertake a 16-kilometer chase until the crew members stop.
On March 24, 2022, the persecuted refused to sign the act, to identify themselves, handed over a 300-meter-long network and left the place; the officers draw up the record against “whoever is responsible”.
This type of record is found in 74% of the 288 analyzed for this research. These are acts where “there is no physical or legal person who can be presumed to be responsible for the administrative offense,” says Rigoberto García Soto, former head of the Legal Affairs Unit of Conapesca and current trial lawyer in fisheries matters.
“Whoever is responsible” is established when officers find evidence of illegal fishing (fishing product or fishing gear); offenders are found but they are not identified and flee; or they are hit but simply throw the net before they are caught and say that it is not theirs. “And it's your word against his,” says a former inspector in an interview with Causa Natura Media, who asked to keep his identity.
One year after the events, there are no offenders, the resolution of file I00.2C.21/PA/BC/080/2022, released by Conapesca, indicates that the sanction for “whoever is responsible” was the confiscation of the retained fishing gear.
Thus, while there is a United States embargo on shrimp and other specimens caught with gillnets in the Upper Gulf, a measure to force action against illegal fishing in Mexico, most of the acts drawn up by Conapesca focus on events without identified perpetrators.
“The few inspection records that have been drawn up are not linked; all the networks they have confiscated are not linked to any person, to any permit, to any vessel,” Olivera explains.
Most unidentified records
“I think that yes, since 70 or 80% of the records of the total are 'the one responsible, '” explains one of the inspectors interviewed, who asked to keep his identity and whom we will identify with “(2)” to separate him from other anonymous testimonies.
This perception is corroborated by an analysis of administrative acts made public by Conapesca. Of the 162 analyzed in 2022, 122 (75% of the total) are “whoever is responsible”. While of the 126 in 2023, 90 also appear in this category, representing 71.4%.
This percentage is consistent with the resolutions. These are records that concluded their procedure with a sanction to “whoever is responsible”, that is, without an offender. Of the 105 resolutions analyzed by the Causa Natura Media team, 84 ended this way, 80% of the total.
“These are the most frequent acts and it is because at the time when an inspection is carried out, which is regularly carried out in the field red-handed, most of the time when people are surprised what they do is flee by different means,” says the inspector (1) of Conapesca interviewed for this report, who asked to protect his identity.
The situations referred to by the inspector are common in areas such as the Upper Gulf of California, where inspection and surveillance efforts are concentrated.
In administrative processes, inspectors are responsible for carrying out surveillance work and once the records are drawn up, they send them to the legal area so that it is responsible for processing, investigating and establishing the corresponding sanction.
However, Conapesca staff agree that the lack of protocols, personnel and resources they receive impacts the ability to locate the person responsible.
“The actions you take should be resolved with some promptness in order to see the immediate effect. But that depends on the legal affairs unit (in Conapesca) and sometimes you get frustrated, but you also understand that they have too much work and there comes a point where important actions with the identified offender are the only ones that deserve that speed,” says the inspector (1).
Networks and product, but not responsible
Four crew members on an unnamed vessel and two outboard engines sail off the coast in front of the Banco Chinchorro Biosphere Reserve, in Quintana Roo. They approach the shore and one of the people comes down with a sack, who stops when he notices the presence of a group of authorities.
On the beach there are elements from Conapesca, the Secretariat of the Navy, the Federal Attorney's Office for Environmental Protection (Profepa) and the National Commission for Protected Natural Areas (Conanp). The authorities approach the person but he gets back on board and in the process releases his sack.
Of the four dependencies, none decides to carry out a persecution. Nor do they carry the vehicle to achieve it, since they were only contemplating a road trip. It remains for them to remain on the shore while they watch the boat move away.
An officer approaches the sea to pick up the 75-kilogram sack. “We noticed that it had pink snail pulp inside, we removed it from the water and the precautionary detention was carried out because it was closed,” he reports in the inspection report, which will be recorded as “whoever is responsible”.
Depending on the administrative process, caught nets, boats or fish products can be put up for auction at public auction; sold directly; donated to social welfare or rehabilitation establishments; destroyed if they are fish in a state of decay or prohibited fishing gear.
Fishing inspectors are responsible for carrying out the inspection acts, drawing up the records and retaining the product or fishing gear, but once this part is done, everything is referred to the Legal Affairs Unit.
This unit initiates the administrative procedure to notify the alleged perpetrator (if any), bring litigation and determine the sanction. The confiscation of what is withheld becomes effective once the administrative procedure is over.
However, as narrated by inspectors and former Conapesca personnel, what is established by the General Law on Sustainable Fisheries and Aquaculture (LGPAS) is sometimes far from being fully implemented.
“The reality is that it ends up spoiling, it ends up rotting, it ends up being destroyed, it ends up going to a landfill, at best, and when it comes to fishing gear or fishing equipment such as boats, engines or nets, they usually end up being destroyed at the end of the procedure. It is not a fact that there is a lot of information, much less public, very little is released about it,” says Rigoberto García.
According to the lawyer, over the time that administrative processes last, catch detentions lose the characteristics that make them suitable for human consumption.
In addition, an opinion from the health authority is necessary, but this document is not always collected. Sometimes, there is even a lack of spaces or subjects that can protect what is retained in optimal conditions.
A former inspector from Conapesca contacted for this report stated that there are no warehouses in the agency where all the product can be protected. Therefore, agreements are made with fishing cooperatives, producers or businessmen during the first five business days to submit documentation alleging the origin of the product.
“In the case of the product, if the product is not fought, it must be given away, let's say to charity, a home, a nursing home, the truth is all this is what the law says, but this never happens because there is a lot of corruption in the entire system. We are talking about authorities, businessmen, officials, producers, everyone is involved because there are unwritten agreements where the officer almost always deposits the product in a particular place with some well-known businessman who are already handsome and depending on the product or how much the businessman sells it”, narrates the former inspector.
The retention of nets laid in seas and coasts is also common. Most of the records reviewed for this report reflect cases in the Upper Gulf of California, where the zero-tolerance zone for marine vaquita is located.
There are campaigns such as the World Wildlife Fund (WWF) in Mexico that are dedicated to the collection of ghost nets, since they are considered marine plastic. The main risk of them remaining in the sea is that they can catch fish, marine mammals, turtles and sharks. In addition to damaging coral reefs.
“Normally, these nets (when they are retained by inspectors) end up rotting in a warehouse and the other, which is also a reality, is that many officers - most of them are no longer in the institution, some are still doing so - make the record and declare the fishing gear as damaged, but they were in good condition then they went and sold them,” recalls the former inspector.
Hand in hand with the Navy
Two Conapesca officers, accompanied by Semar and Profepa, travel overland to Encantada Bay Beach in San Felipe, Baja California, when they see a buoy among the rocks attached to a 15-meter totoabera-like gillnet and a car that flees at full speed.
During inspection and surveillance tours, there is no difference between the records that officers take in the presence of Semar elements and those that they take when they are alone. The officers proceed to remove the network and in the end, confiscation is established as a sanction for “whoever is responsible”, as stated in the minutes of February 21, 2022 of file I00.2C.21/PA/BC/048/2022.
Of the 288 files reviewed for this investigation, in 11.5%, some type of Semar participation was detected; four cases at vehicle control points where Conapesca is notified of a possible violation when transporting fishing products and 29 cases where the Navy lent its boat and/or accompanied it on the tours.
Article 10 of the LGPAS empowers members of Semar to draw up inspection records, retention of fishing equipment and gear and fishing products. “But the commanders in the naval regions, zones and sectors don't give those instructions to their personnel and they don't. In the armed forces, they only do what they are instructed to do: chain of command,” explains Rigoberto García.
In practice, the officers point out that the elements of Semar come only with the objective of protecting the fishing officer, and it is up to the element to decide whether or not to prosecute the alleged offender.
“Many times when you go out to operate in the morning they give you an operating order that says you have to go to the naval section of the Navy to pick up a squad and from there you are going to act. They have an order of operations that is to protect the physical integrity of the fishing officer at all costs, so literally they go as bodyguards and the driver officer, the runners. But they do their job, right or wrong,” says the former inspector interviewed.
Although Semar has accompanied Conapesca on inspection and surveillance tours in the Upper Gulf of California, Semarnat's recent report to CITES established as a goal coordination between Semar, Conapesca and Profepa to act against a crime in fisheries matters.
“These kinds of goals are still being set, we are at that level. After so many years that the agencies have been working together and converging on the care of marine resources, they show a lack of coordination,” Olivera points out.
The problem of militarization
In April 2020, Conapesca signed a collaboration agreement with Semar in inspection and surveillance tasks, which generated initial resistance.
For Sarahi Gómez, marine biologist and coordinator of the research area for the northwestern office of the Mexican Center for Environmental Law (CEMDA), there are several challenges to making this agreement effective, in which Conapesca gave Semar some inspection and surveillance activities.
The CEMDA noted that there is “little capacity of Semar to manage the social issue while respecting human rights, as well as the implications of the militarization of ports and coasts”, in the “Analysis of the Political and Legal Framework in Fisheries: Opportunities and Challenges”.
Semar has great power to decide the route, the days of inspection and surveillance tours, and gives instructions on whether or not to prosecute offenders, as the inspectors point out.
“Semar has the singing voice in the water, they are the ones who decide where, when, if they pursue or not. There we have neither a voice nor a vote, specifically in the Upper Gulf, it's purely the navy. We regularly go on their boats so we don't break up the protocols; they have the protocols for them, I can even doubt that they have them well established, but if there are, they never share them with us. There comes a point where there are some who act in one way, but another one comes to the same unit whether it is an interceptor, is it a defender and acts in a different way. Then you are totally subject to them,” says an inspector (1).
Sometimes, Semar takes actions corresponding to its powers as Port Authority that are not related to the inspection and surveillance actions of Conapesca.
“When we take a tour, we review everything that is fishing, but the staff of the Captaincy also reviews what they have to do, and the work extends a little more. In a way, it affects us, because instead of checking only fishing boats, they are now also reviewing other types of boats,” explains another inspector (2), whose identity is protected.
From the perspective of Rodrigo Elizarrará, consultant and political analyst at Humint, he considered the agreement to be not very transparent, and there is no single authority that has the appropriate legal powers to arrest fishermen in flagrante delicto.
For one thing, when fishing officers act alone, they can't stop people. They carry a pen and a notebook. They have to notify another authority such as the police, the navy or the National Guard to make them available to the Federal Public Ministry.
A former inspector gives his testimony that the officers notify, but the other authorities sometimes do not want to arrest the offenders and prefer to have them released; or the Public Ministry does not respond to the call, so the officers have gone so far as to state in the record that they found the person red-handed and that he fled.
“Since the process is very cumbersome, what does the fishing officer prefer, since he draws up a record to whoever is responsible,” he says.
This is reflected in Conapesca's open data, which indicates that from 2021 to June 2023, it made 31 people available to the Public Prosecutor's Office or public security bodies, or 0.4% of the total number of cases (7,680) reported with resolution.
On the other hand, Elizarrarán pointed out that Semar does not have the appropriate legal powers to act during inspections, so a bill is being prepared to resolve this legal vacuum.
“If we are already going to give Semar all the powers, he does need legal reform in order to act. Otherwise, he is acting out of the law all the time. Because all those powers, the few that exist for inspection and surveillance, are those that Conapesca has,” he said.
For García, it is not strictly necessary to change the laws but to apply them, since “the powers of the Navy to act against illegal fishing are clear, what is needed is the decision to exercise them and better training its personnel, so that they act in accordance with the law and in strict respect of human rights”.
The General Law on Sustainable Fisheries and Aquaculture (LGPAS) is the legal instrument at the national level that regulates, encourages and manages the use of fishery and aquaculture resources.
98% of the articles related to violations, sanctions and liabilities are mandatory in the Mexican State, according to research by the organization Community and Biodiversity A.C. (Cobi).
Sarahi Gómez of CEMDA believes that this regulatory framework is robust but unclear, it is not up to date and its processes are centralized, which must be addressed because they are factors that may be promoting illegal fishing.
“Part of what CEMDA did at the time is to point out the failure to issue a regulation of the LGPAS, which is the current law issued in 2007,” he explains.
This regulation delves into the ways of exercising inspection and surveillance, and includes verification; it also provides greater certainty about the powers of Semar when carrying out surveillance and gives it the power to undertake intelligence actions to gather information, as read in the preliminary draft of the fishing regulations.
For this reason, CEMDA insists that before attending to the process of administering justice, it is important to resolve deficiencies in the regulatory framework.
“If you don't address the underlying problems, then it's unlikely that what you do above will have the expected result or impact. In that sense, what we point out is, first strengthen your regulatory framework, align, link, harmonize, standardize with other instruments and plans in the field and then start from there,” said Gómez.
The limits of inspection orders
The actions of Conapesca inspectors are limited by the LGPAS. Article 126 states that they must have a written order specifying the place or area where there will be inspections, the purpose of the operation and its scope.
This in practice means that officers cannot intervene when they detect violations beyond the order, even if they see someone committing a crime in flagrante delicto.
“Remember that we also work based on inspection orders, if I don't have an inspection order I don't have to carry out an inspection or verification,” explains the inspector (2).
In this way, he says, his work is far from being a “police of the sea”, since to act he first needs an order, which are issued to the entire state and have an expiration period.
“For example, at the beginning of the month, let's say in October, I check if I have valid inspection orders to start working, if I don't have one, then I requested it to be sent to me, and so on, because if I have an inspection order in October that is not in force and I use it, they must ascribe responsibilities to me,” he explains.
Inspection orders are not issued in a general way, but there are orders for boats, vehicles and establishments, as exemplified by the former inspector interviewed.
Investigation into maritime violations?
In the Zero Tolerance area in the Upper Gulf of California, Conapesca officers find a buoy attached to a 180-meter net.
Then a boat with a name and license plate approaches and one of the three crew members claims the network as his property. When questioned by the authority, he flees the place, as stated in the record DGIV/BC/021222/07-01
Conapesca headquarters, in Mazatlán. Photo: Juan Luis Garcia.
Conapesca “does not have a comprehensive explicit legal framework robust enough to carry out investigative acts and much less does it have material, human or financial resources dedicated to investigating who is the person behind an act recorded as 'the one who is responsible'” in a record, says Rigoberto García.
In these cases, the process is followed “automatically against no one”, he explains, and concludes, in all cases, in the confiscation of the assets that were temporarily held during the drafting of the record, even though there may be data in the record that gives evidence of the identity of “whoever is responsible”.
Although there are indications of the owner of the vessel and the probable offender, the authority does not investigate.
“This type of act because of the values and protected legal assets implicit in the type of administrative system is not found there, and it is reserved a little more for other matters, such as criminal matters... because it is not a prosecutor's office, the general direction of inspection and surveillance, its powers are that, they are to monitor, carry out the acts of inspection and, where appropriate, to prosecute and sanction these acts of inspection, which occurs within the scope of the fishing authority, through the General Directorate of Inspection and Surveillance and the Legal Affairs Unit. of the same,” he explains.
As there is no capacity to investigate, the material available to the Legal Affairs Unit to qualify an offence is only what is recorded in the minutes, which are taken for granted unless someone comes forward and presents evidence to the contrary.
Without investigation, it is only possible for a file to change from “whoever is responsible” to a procedure with an identified offender if someone voluntarily comes forward and assumes responsibility, García Soto points out.
No one raises their hand
Conapesca notifies about different phases of the sanctioning process through platforms, spaces open to the public in the offices of Conapesca and also on the institution's website.
“A record drawn up as they say 'to whom is responsible', well, this one (Conapesca) carries out an administrative procedure within the fishing authority itself in which on some platforms that are published in the Conapesca headquarters building, which on its ground floor does announce that there is a procedure 'to those who are responsible',” said García Soto.
The platforms prevent the use of an administrative procedure established in the Federal Code of Civil Procedure to use edicts, which amount to between 30,000 and 35,000 pesos per publication, the lawyer added.
Although, the records set as “whoever is responsible” are published in these spaces to give the opportunity for the offender in question to approach, hardly anyone who is accused is willing to come forward on their own.
This is the reason why many poachers decide not to identify themselves from the start and the cases are reported as “whoever is responsible,” says a former inspector interviewed.
“It is not identified with an official indication because they never bring identification, because fishermen are not stupid either and two, for example, in the case of shrimp if you catch them fishing during the ban it is a federal crime, which is in the Criminal Code, article 420,” he explains.
However, there are recurring claims from violators when the detentions include vehicles or boats, requiring these petitioners to identify themselves.
“What are cars like vans, cars, trailers, they're always going to fight for that. And the General Fisheries Law is so badly done, it's so permissive, that illegal fishermen usually get bills from someone else and then argue that they weren't fishing, that they were transporting only, that they have the bills of legal origin... and it can be recovered, that is, there is a legal process to recover your assets,” said the former inspector.
Achievements announced
Evaluating progress in the fight against illegal fishing is a complex task. Agencies such as the Ministry of Agriculture and Rural Development (Sagarpa) present data from Conapesca based on the inspection acts they carry out.
“It seems that (Conapesca) is an institution that is not dedicated to protecting marine resources, but to issuing fishing permits and other types of policies. It has very strong gaps in terms of inspection and surveillance,” says Alejandro Olivera.
According to the latest work report of the Ministry of Agriculture and Rural Development (SADER), from September 1, 2022 to June 30, 2023, 18,111 inspection and surveillance acts were carried out, of which 15,657 correspond to checks on vehicles and boats and 2,454 were drawn up as inspection records.
The breakdown includes revisions to land and water routes and detentions. This report highlights the retention of 1,400 tons of fish product, more than 7,000 fishing gears, 333 vehicles, 186 smaller boats, 2 larger vessels and five people referred to the Federal Public Ministry.
The lack of resources has caused these actions to fall in the current six-year period.
Specialists agree that the counting of actions in the fight against illegal fishing can lend itself to a simulation.
“Yes, I think that objectively we don't have a good way of evaluating progress in illegal fishing. It's just that it's not going to help us either if we do the number of inspections by Conapesca authorities or in conjunction with Semar or whatever is done, it's not going to be enough anyway (if we don't have resources),” says Rodrigo Elizarrará, consultant and political analyst at Humint.
The stock counts announced by the federal government are built on the goals imposed on officials. A former inspector interviewed for this report stated that there are annual inspection goals to be met, but that there are no consequences if they are not achieved.
“The truth is, (the inspectors) can invent a procedure, deliver the record and with that record they can achieve their goals. Although if you don't meet your goals, nothing happens either, they don't punish you, there's no sanction for the public servant. In other words, they are goals that they ask you to achieve, but if you don't meet them they will call you and tell you to look forward to next year,” says the former inspector.
Back to the habitat of the vaquita marina, one of the priority issues for inspection and surveillance, the authorities announced the reduction of illegal fishing by 79% in the region during the second regular session of the Intragubernamental Group on Sustainability in the Upper Gulf of California (GIS), which took place in June.
The plan consists of actions to monitor and restrict access to the zero tolerance zone; combat organized crime, programs for alternative fishing gears, monitoring the vaquita population and installation of concrete blocks so that nets are trapped in these structures.
“You can do a lot of goals but as I always say, the best goal to evaluate is when a fishing resource is recovering or is healthy, it is the best result that Conapesca could present. When there are more vaquitas than there are today, it is the best result that can be presented, it is the end, in the meantime we are going to lose ourselves in budget goals, travel goals, other types of more bureaucratic goals that don't say much about the well-being of marine resources,” says Olivera.
And although inspectors interviewed point out that the Conapesca inspection acts have been concentrated in the Upper Gulf after the series of embargoes by the United States due to the lack of protection for the vaquita marina, at the same time the budget allocated to Conapesca is falling.
According to Elizarrará, actions should focus on the use of technologies, on improving the system of arrivals at ports and on achieving adequate systematization and ordering of fisheries, mainly boat licenses and license plates.
“And the classic enforcement, because there's no enforcement, there's no surveillance, there's no one who really enforces the law in that area, right? In many areas of the country. Before, the Upper Gulf was the red light, now the whole country is becoming the Upper Gulf,” he concludes.
This work included the collaboration of journalist Lilia Balam.
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