ELI Primary Menu

Skip to main content

U.S. Whistleblower Law: A Key to Fighting International Fisheries Crime (Part Two)

Monday, April 19, 2021
Maraya Best

Maraya Best

Associate Attorney/Attorney-Advisor for International Human Rights, Kohn, Kohn & Colapinto

Kelsey Condon

Kelsey Condon

Attorney-Advisor for Environmental Protection, Kohn, Kohn & Colapinto

Part One of this blog examined various U.S. whistleblower laws that could be applied to international fisheries crime. Part Two will continue a discussion of the Lacey Act, perhaps the most powerful whistleblower reward law addressing illegal trade in fish, wildlife, and plants. The Lacey Act makes it unlawful for any person subject to U.S. jurisdiction to import, export, transport, sell, or purchase fish, wildlife, or plants in violation of any U.S. or foreign law, including the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

The U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) take primary responsibility for prosecuting Lacey Act fish and wildlife violations. Unlike the laws discussed in Part One, the Lacey Act authorizes payments for simply reporting violations of the law, regardless of a successful prosecution. It is notable, however, that FWS and NOAA have used whistleblowers in a relatively small number of cases. If whistleblowers are awarded at all for their efforts, those payments are often as small as $500. This is because awards are at the complete discretion of the FWS or NOAA with no minimum required amount, unlike the SEC’s whistleblower program, where awards based on a percentage of the sanction are mandatory if the whistleblower meets certain criteria.

Still, in cases where whistleblowers are rewarded, the agencies repeatedly point to the importance of whistleblower tips in detecting and prosecuting wildlife crimes. FWS investigators continually note that whistleblower information not only “sav[es] thousands of dollars and investigator hours,” but that without such information it is “highly unlikely that [these] case[s] would . . . be[ ] successful.”

WhistleIn 2019, the FWS Office of Law Enforcement (OLE) implemented internal policy guidance on how to pay awards to whistleblowers in the agency’s law enforcement operations. The policy states that FWS may pay awards to whistleblowers who provide information leading to a criminal conviction, a civil penalty, forfeitures, abandonment or forfeitures of property, court-negotiated settlements, or out-of-court settlements. The policy further provides that FWS may pay awards to whistleblowers who provide information that “contributed significantly in furthering the investigative portion of the case,” even if that information did not lead to one of the outcomes listed above. FWS OLE also has the discretion to pay whistleblowers for information that furthers an ongoing investigation.

NOAA is currently reviewing its whistleblower award procedures, and may likewise provide additional policy guidance in the near future.

Looking Toward the Future: Developments in U.S. Laws Needed to Encourage Fisheries Whistleblowers

Although the Lacey Act is the strongest reward law for fisheries whistleblowers, several key provisions should be added to truly harness the power of whistleblower programs like those under the Dodd-Frank Act and the U.S. False Claims Act, whether through statutory amendment or rulemaking. These provisions should include anonymous reporting, remedies for retaliation, rewards, and a whistleblower office.

Anonymous reporting is essential to a successful whistleblower program. It allows individuals to report wrongdoing with less fear of retaliation, and allows that individual to remain with their current employment. Accordingly, FWS and NOAA should expressly: (1) prohibit the disclosure of any information that could potentially identify the whistleblower outside of the government; (2) prohibit the use of any documents or other evidence that could identify the whistleblower without the whistleblower’s express permission; and (3) prohibit the disclosure of the identity of the whistleblower and the whistleblower’s attorney, including in legal discovery. Maintaining the anonymity of whistleblowers reporting illegal, unreported, and unregulated (IUU) fishing is crucial where the disclosure of an individual’s identity can threaten their jobs or even life.

FWS and NOAA should also implement provisions to protect whistleblowers against retaliation. Such compensation and remedies should include options for reinstatement; back pay; front pay; restoration of benefits and privileges of employment; compensatory damages for extreme emotional distress or loss of professional reputation; injunctive relief, such as demands to cease and desist damaging the whistleblower’s reputation, or the provision of a recommendation of reinstatement; punitive damages; and attorney fees.

Anti-retaliation provisions should also include strong sanctions against anyone who violates these provisions. These protections are particularity poignant in the fisheries context, where reporting wrongdoing to authorities could result in an individual’s blacklisting from the entire industry. Protection of fisheries whistleblowers is crucial not only to building a successful whistleblower program, but in implementing and enforcing IUU fishing laws on which these individuals report.

Agencies should also incorporate whistleblower rewards. Whistleblower reward laws are proven to increase the amount and quality of whistleblower disclosures, especially in the wildlife crime context. Payment of a reward should be mandatory if the whistleblower’s disclosures result in a successful enforcement action, and the criteria for such eligibility should be publicly and clearly stated. The amount awarded should be based on the quality of the whistleblower’s information and their help to law enforcement, not on retaliation suffered, and must meet a mandatory minimum. Such a reward structure incentivizes the reporting of proven violations because individuals are incentivized to report rather than participate. Additionally, rewards provide the ultimate best protection for the retaliation these employees often suffer even with anonymity provisions.

Finally, FWS and NOAA should create centralized whistleblower offices to track and handle whistleblower reports and claims. For a whistleblower office to be successful, it must include a user-friendly and widely publicized website with procedures for whistleblowers to file anonymous and confidential reports, as well as secure, anonymous, and confidential reporting channels not subject to legal discovery. Offices should be able to make confidential referrals to the appropriate government enforcement agencies to investigate violations with procedural safeguards, and intervene in any legal proceeding on behalf of a whistleblower. Other required elements of an office include the ability to file claims against persons or companies that retaliate against a whistleblower, and a policy of communicating with the whistleblower or the whistleblower’s attorney as to the status of the case.

Despite the holes in the current Lacey Act and IUU enforcement, some recent positive news for whistleblowers may indicate a trend of prioritizing fisheries crimes and whistleblower information. In May 2018, the U.S. Government Accountability Office issued a report concluding that the current wildlife trafficking and extinction crisis is untenable and that FWS and NOAA should prioritize whistleblower tips and rewards. FWS and NOAA concurred, and will be implementing these recommendations moving forward, including tracking whistleblower rewards and developing criteria for awarding rewards to whistleblowers. NOAA also entered into a memorandum of understanding with the U.S. Agency for International Development earlier this year to combat IUU fishing, as it threatens global food security, damages economies, and risks the sustainability of fisheries and marine ecosystems. Although a positive step for enforcement, this program should coordinate with the whistleblower program available through NOAA and FWS.

Given these developments and the strength of alternative mechanisms for reporting, whistleblowers and their advocates should invest in reporting through U.S. laws in order to detect and stop fisheries crimes.

All blog posts are the opinion of its author(s) and do not necessarily reflect the views of ELI the organization or its members.