Why predatory fishing "red worms" are sued for harming the public good

Wu Yi Gang

The scene of the trial of the public interest litigation case of plundering "red worms" in Bengbu City, Anhui Province

Fang Moujun and 6 other people used the mechanical method of dragging pumps to suck rake thorns to predatorily catch "red worms", which not only directly damaged benthic animals, plankton, aquatic plants and fish resources, but also disturbed the living environment of aquatic organisms, affected the reproduction, growth and habitat of aquatic biological resources, seriously endangered the stability and balance of the ecosystem in the waters involved in the case, destroyed biodiversity, and damaged the social public interest.

Biodiversity is the basis for the survival and development of human society, and the protection of biodiversity is to safeguard the public interests of human society. On May 23, the Anhui Provincial Procuratorate released a series of public interest litigation cases for biodiversity protection handled by the Huaishang District Procuratorate of Bengbu City, Anhui Province.

According to the release, on May 11, the Huaishang District Court rendered a judgment on the civil public interest lawsuit of Jiang Mou's mechanical and predatory harvesting of benthic animals in natural waters, and the procuratorial organ's litigation request for the defendant to bear the compensation costs and appraisal fees for ecological and environmental damage was all supported. So far, the six civil public interest litigation cases of predatory benthic animals initiated by the Huaishang District Procuratorate have all been concluded by the court of first instance with a judgment or mediation.

Predatory fishing "red worms" are suspected of harming the public interest

In May 2020, the Huaishang District Procuratorate discovered a series of cases of biodiversity destruction in the course of performing its public interest litigation supervision duties.

Through preliminary investigation, the procuratorial organs learned that on November 23, 2019, Fang Moujun, Peng Moubao, Jiang Mou, Zhang Mounan, Li Mounan, Ni Mou and other 6 people used mechanical fishing boats to capture the larvae of the benthic mosquito family (commonly known as "red worms") in the Songgang section of the Beimihe River in Mohekou Town, Huaishang District, respectively, and were found by law enforcement personnel of the Huaishang District Agricultural and Rural Water Conservancy Bureau to find that a total of 41.5 kilograms of larvae of the family Ofsidae were seized at the scene. After that, the Huaishang District Agricultural and Rural Water Conservancy Bureau determined that Fang Moujun and 6 other people were mechanically and predatorily harvesting benthic animals in natural waters, so they made administrative punishment decisions, ordered 6 people to stop illegal fishing, and fined them.

In order to accurately determine the degree of damage to biodiversity caused by the predatory behavior of Fang Moujun and others, the Bengbu Municipal Procuratorate, together with the Huaishang District Procuratorate, investigated and verified through visits to discussions, consulting materials, consulting experts, etc., that the cranky mosquito is a diptera insect, known to have more than 5,000 species, and there are currently more than 20 species in the Huai River Basin in China. The larvae of the family Psittaculidae are aquatic stages in metamorphic development, and the body is rich in hemoglobin, which is red, so it is commonly known as "red worm". "Red worms" attach to aquatic plants or silt, feed on organic matter in water bodies such as organic detritus, and are at the bottom of the benthic food chain, which plays an important role in purifying water quality, providing natural food for carnivorous aquatic organisms, and maintaining the ecological balance of rivers and lakes. The Beimihe River is an important tributary of the Huai River, and there are more than 70 species (genera) of benthic animals, of which the biomass of "red worms" accounts for more than 50% of the total number of benthic animals.

The Preliminary Review of the Bengbu Municipal Procuratorate held that Fang Moujun and 6 other people used the mechanical method of towing pumps to suck rakes and spines to prey on fishing, which not only directly damaged benthic animals, plankton, aquatic plants and fish resources, but also disturbed the water body and destroyed the living environment of aquatic organisms, affected the reproduction, growth and habitat of aquatic biological resources, seriously endangered the stability and balance of the ecosystem in the waters involved in the case, destroyed biodiversity, damaged the social public interest, and met the conditions for filing a civil public interest lawsuit.

In view of this, on September 1, 2020, the Bengbu Municipal Procuratorate decided to file and review this series of cases and make an announcement in the relevant media to remind relevant organs or organizations to file a civil public interest lawsuit in this regard. At the same time, the Bengbu Municipal Procuratorate also entrusted the Wildlife Species and Product Identification Center of Anhui Normal University to conduct an environmental damage assessment of the series of cases of Fang Moujun and 6 other people who plundered benthic animals.

Hire a professional appraisal agency to issue an ecological damage assessment report

Based on the fact that after the expiration of the announcement period, no relevant organs or organizations have initiated civil public interest litigation, and the social public interest is still in a state of harm, on December 7, 2020, the Bengbu Municipal Procuratorate designated this series of cases to be handled by the Huaishang District Procuratorate.

During this period, the Identification Center of Wild Animal species and their products of Anhui Normal University issued an assessment report, believing that the use of mechanical methods involved in this identification to wantonly and indiscriminately hunt benthic animals is essentially the use of ship-borne extraction devices to carry out sand mining filtration fishing operations on the bottom of the river, and this mechanical fishing operation is extremely harmful to the ecological environment of the river, which is specifically manifested as: the direct destruction of mosquito resources; the deterioration of water quality; the destruction of the stability of the river ecosystem; and the direct impact on the survival of aquatic organisms. The assessment report determined that the market transaction price of "red worms" was 80 yuan per kilogram, and based on 40 times the market price of the catch, the 41.5 kilograms of "red worms" involved in the case of Fang Moujun and 6 other people had an ecological and environmental damage value of 66,400 yuan. The assessment report also recommends that it is advisable to restore the aquatic ecological environment by releasing aquatic animals such as fish fry and snails, as well as planting aquatic plants in wetlands.

On March 5 this year, the Huaishang District Procuratorate filed a civil public interest lawsuit in accordance with the law in six cases, including Fang Moujun, requesting that the defendants be ordered to bear a total of 66,400 yuan in damages and 3,000 yuan in appraisal fees.

On April 7, the Huaishang District Court heard the six series of cases, and the Huaishang District Procuratorate sent personnel to perform their duties. During the trial of the case, zhang mounan, Li mou, Ni mou and other three defendants each reached a mediation agreement with the public interest litigation prosecutor and voluntarily paid the ecological and environmental damage compensation fees and appraisal fees that they should bear. At present, the relevant costs have been fully fulfilled.

What is the basis for 40 times the compensation for ecological damage

During the first-instance trial, Fang Moujun, Peng Moubao, and Jiang Mou all argued that their fishing behavior did not occur during the fishing ban period, the fishing site was not a fishing ban area, and the "red worms" caught were not listed as wild animals under national or provincial key protection. The three defendants also argued that the penalty requested by the procuratorate was too heavy, that there was no legal basis for its punishment of 40 times the total value of the actual catch, and that the defendant had already received an administrative penalty, and that the appraisal fee should also be borne by the procuratorate.

On May 8 and 11, the court successively rendered judgments on three civil public interest litigation cases of ecological environmental protection, including Fang Moujun, Peng Moubao, and Jiang Mou, and confirmed all the facts and reasons for the procuratorate's prosecution. The court held that, in the course of performing its duties, the procuratorial organs found that each defendant had engaged in acts that damaged the ecological environment and harmed the social public interest, and made a public announcement in accordance with the law, which met the requirements for prosecution stipulated by laws and judicial interpretations, and had the right to initiate environmental civil public interest litigation as a public interest litigation prosecutor. The defendants' fishing behavior damages the water ecological resources and environment, causing environmental damage, and shall bear environmental tort liability in accordance with law.

In response to the defense that the defendants had already received administrative penalties and should not bear the appraisal fee, the court pointed out that although the defendants had been administratively punished for this case, if the infringers should bear administrative or criminal liability for the same act, it would not affect the civil tort liability in accordance with law.

With regard to the controversial issue of 40 times the damages at trial, the court held that the defendants' use of diesel engines with pumps to harvest benthic animals from the bottom of the water was actually a serious illegal fishing practice of fishing for benthic animals using tow pump suction rake thorns. According to the relevant provisions of the Ministry of Agriculture and Rural Affairs' current "Identification (Identification) of Articles Involved in Illegal Fishing Cases and Measures for the Assessment and Restoration of Damage to Aquatic Biological Resources (Trial)", the assessment of damage to aquatic biological resources is divided into direct damage assessment and indirect damage assessment, and the appraisal conclusions related to the value of ecological damage caused by the Wildlife Species and Their Products Appraisal Center of Anhui Normal University are not improper and are accepted in accordance with law. Accordingly, the court made separate judgments supporting all the litigation claims of the procuratorial organs and ordering the three defendants to bear the corresponding ecological and environmental damage compensation costs and appraisal costs.

After the first-instance judgment was pronounced, the bengbu municipal procuratorate actively practiced the concept of restorative justice, and together with local agricultural and rural departments, released more than 10,000 fish fry and more than 200 kilograms of snails and planted more than 1,000 aquatic plants along the Beiwei River located in the Sanfenhe National Wetland Park to promote ecological restoration.

According to the relevant person in charge of the Seventh Procuratorial Department of the Anhui Provincial Procuratorate, including the above 6 cases, since 2019, the procuratorial organs in Anhui Province have taken the initiative to take action around the protection of biological resources and actively carried out supervision, filing a total of 365 cases, issuing 57 procuratorial suggestions, and filing 168 lawsuits, providing a strong judicial guarantee for helping biodiversity conservation.

Source: Bengbu Inspection