In the waters of the Sea of Cortez, a small porpoise called the “little cow” in Spanish is on the brink of extinction due to illegal gillnet fishing. The vaquita (phocoena sinus) is the smallest cetacean species in the world, reaching a maximum body length of between four and five feet. They are endemic to a small portion of the northern end of the Gulf of California in Mexico’s waters and do not migrate beyond this limited territory. These marine mammals are incredibly sensitive to changes in their environment, and scientists estimate they breed every two years or annually after reaching sexual maturity. The combination of illegal gillnet fishing for the highly valued but endangered totoaba fish, pollution from runoff, sensitivity to environmental changes, and slow breeding period, have led to a steep decline in the vaquita population. Currently, the World Wildlife Fund estimates that around ten individual vaquitas remain in the wild. (See “Facts” WWF, 2023, available at https://www.worldwildlife.org/species/vaquita).
The vaquita population was not always so limited. In 1997, a survey of the vaquita population showed that around 600 individuals inhabited the Sea of Cortez. However, a 2008 survey showed that the population declined to around 200 individuals in the last decade. Many of these deaths were attributed to gillnet fishing for shrimp and habitat degradation due to pollution. Since 2011, the vaquita population has continued to drop at around a rate of 50 percent each year, which is a tremendous increase from previous years. To understand what led to the sharp decline in the vaquita population and its current proximity to extinction after 2011, it is important to first understand the sudden increase in demand for the totoaba fish. Vaquitas are not a species that is valuable to fishermen, but many are caught in gillnets and killed incidentally by fishermen after totoaba fish. (See “Vaquita Facts” NOAA Fisheries, 2023, available at https://www.fisheries.noaa.gov/species/vaquita).
The totoaba (totoaba macdonaldi) is a large species of sea bass native to the same waters as the vaquita. Totoaba were traditionally caught as a food source for local communities. However, the totoaba’s swim bladder, the organ that allows the fish to control its buoyancy, is incredibly valuable to practitioners of traditional Chinese medicine. After the market for totoaba swim bladders in China took off in 2011, demand for the fish skyrocketed and led to an explosion in illegal gillnet fishing of the totoaba and the incidental catching of vaquitas. The totoaba is also vulnerable to overfishing as a local food source, and was negatively impacted by the diversion of fresh water from the mouth of the Colorado river into the Sea of Cortez after the Hoover and Glen Canyon dams were completed in the early 1900’s. (See “Totoaba Overview” NOAA Fisheries, 2023, available at https://www.fisheries.noaa.gov/species/totoaba).
Due to these factors causing population decline throughout the last century, the totoaba was included in the most protected list of species covered by the Convention on International Trade in Endangered Species (CITES) in 1977. See CITES, Appendix I available at https://cites.org/eng/app/appendices.php. In 1979, the U.S. Fish and Wildlife Service (FWS) listed the totoaba as endangered under the Endangered Species Act (ESA). 44 FR 29478 (1979). In 1994, Mexico included it on its list of species In Danger of Extinction. Because Mexico and the United States are both signatories of CITES, it is illegal in both countries to trade any part of a totoaba fish. Commercial fishing of the totoaba fish as a food source has declined due to these regulations. However, because totoaba swim bladders can sell for as much as $85,000 per kilogram in China, illegal gillnet fishing and trading of the totoaba fish has persisted. (See e.g., Pressly, Linda, “’Cocaine of the sea’ threatens critically endangered vaquita,” BBC News, 2021, available at https://www.bbc.com/news/world-latin-america-57070814).
The vaquita was similarly listed as the most protected species by CITES in 1977. See CITES, Appendix I, available at https://cites.org/eng/app/appendices.php. In addition, the National Marine Fisheries Service listed the vaquita as endangered in 1985. 50 FR 1056 (1985). Congress also enacted the Marine Mammal Protection Act of 1972 to ban the taking and importation of marine mammal products, in order to protect marine mammals like the vaquita from being a target for fishermen. 16 U.S.C.S. § 1371. In 2015, the Mexican government announced a two-year ban on the use of gillnets in the vaquita’s range in order to slow or halt the extinction of the vaquita. (See “To Save Rapidly Vanishing Porpoise, Mexico Gillnet Ban Must Include Rigorous Enforcement,” Center for Biological Diversity, 2015, available at https://www.biologicaldiversity.org/news/press_releases/2015/vaquita-03-02-2015.html). Later, in 2017, the Mexican government announced that this gillnet ban would remain permanent in the Northern Gulf of California. (See Martine, Lisa, “Mexico bans gillnet fishing in endangered porpoise’s habitat,” AP News, 2017, available at https://apnews.com/f21c50c9420a47ebac6a9f33ec91aea1/Mexico-bans-gillnet-fishing-in-endangered-porpoise%27s-habitat).
Despite these efforts, the vaquita population has continued to decline. However, environmental groups have been at the front of the legal challenges to protect the vaquita and totoaba. In 2017, a coalition of environmental protection groups petitioned the United States government to ban the importation of certain seafood products. The groups alleged that the United States’ failure to ban the importation of seafood that was caught using gillnets in the vaquita’s range was in violation of the Marine Mammal Protection Act. (See “Vaquita Lawsuits,” NRDC, 2023, available at https://www.nrdc.org/court-battles/vaquita-lawsuits). In response, the National Marine Fisheries Service issued a proposed rule to consider the import ban. 82 FR 39732 (2017). In 2018, a lawsuit was filed by the same environmental groups in the U.S. Court of International Trade. NRDC, Inc. v. Ross, 331 F. Supp. 3d 1338 (Ct. Int'l Trade 2018). The allegations were similar to the previous petition, that the United States government must ban the importation of seafood caught with gillnets in the vaquita’s range. The court ruled in favor of plaintiffs and ordered an embargo on the importation of certain seafood caught with gillnets in the vaquita’s territory. The United States attempted to lift the import ban in court on three different occasions, but the court refused to do so. See e.g., NRDC v. Ross, 774 F. App'x 646 (Fed. Cir. 2019).
In 2022, a coalition of environmental groups filed a lawsuit in the U.S. Court of International Trade against the Secretary of the U.S. Department of the Interior and the Department of the Interior. Ctr. for Biological Diversity v. Haaland, No. 22-00339, 2023 WL 3994447 (Ct. Int'l Trade June 14, 2023). Plaintiffs alleged that the defendants caused an unlawful delay in responding to a 2014 letter requesting that the Secretary of the Interior certify the embargo against Mexico and asked the court to compel the Secretary to decide whether Mexico is undermining the effectiveness of CITES by failing to stop the illegal fishing of the totoaba. Parties entered into a settlement agreement in May of 2023, after which the Secretary certified Mexico and the parties entered into a voluntary dismissal. Moving forward, the President must decide whether to take action against Mexico for failing to halt the illegal totoaba fishing, or explain to Congress why he chooses not to take action.
The future of both the vaquita and totoaba remains uncertain. Efforts by conservationists and the Mexican government to breed captive vaquita resulted in one of the few remaining animals suffering a heart attack and dying. (See Pennisi, Elizabeth, “Update: After death of captured vaquita, conservationists call off rescue effort,” Science Magazine, 2017, available at https://www.science.org/content/article/update-after-death-captured-vaquita-conservationists-call-rescue-effort). With as few as ten vaquitas remaining in the wild, it is likely they will not be able to replace their population in order to outpace the deaths caused by illegal gillnet fishing. It is clear that it will take a combined effort from the United States, Mexico, and China to successfully halt the fishing of the totoaba and extinction of the vaquita.