Final Factual

Record

Tarahumara

Submission

(SEM-00-006)

Prepared in Accordance with 

Article 15 of the North American

Agreement on Environmental

Cooperation

rth American Environmental Law and Policy 

North American

Environmental

Law and Policy

N • A • E • L • P

20

Commission for

Environmental Cooperation

of North America

North American

Environmental

Law and Policy

N • A • E • L • P
For more information about this or other publications from the CEC,

contact:

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ISBN: 2-89451-863-3

© Commission for Environmental Cooperation of North America, 2005

ALL RIGHTS RESERVED.

Legal Deposit - Bibliothèque nationale du Québec, 2005

Legal Deposit - Bibliothèque nationale du Canada, 2005

Disponible en français – ISBN: 2-89451-862-5

Disponible en español – ISBN: 2-89451-864-1

This publication was prepared by the Secretariat of the Commission for

Environmental Cooperation of North America (CEC). The views contained herein do not necessarily reflect the views of the governments of

Canada, Mexico, or the United States of America.
PROFILE

In North America, we share a rich environmental heritage

that includes air, oceans and rivers, mountains and forests. Together,

these elements form the basis of a complex network of ecosystems that

sustains our livelihoods and well-being. If these ecosystems are to

continue to be a source of life and prosperity, they must be protected.

Doing so is a responsibility shared by Canada, Mexico, and the United

States.

The Commission for Environmental Cooperation of North America (CEC) is an international organization created by Canada, Mexico,

and the United States under the North American Agreement on Environmental Cooperation (NAAEC) to address regional environmental

concerns, help prevent potential trade and environmental conflicts, and

promote the effective enforcement of environmental law. The Agreement complements the environmental provisions of the North American Free Trade Agreement (NAFTA).

The CEC accomplishes its work through the combined efforts of its

three principal components: the Council, the Secretariat and the Joint

Public Advisory Committee (JPAC). The Council is the governing body

of the CEC and is composed of the highest-level environmental authorities from each of the three countries. The Secretariat implements the

annual work program and provides administrative, technical and operational support to the Council. The Joint Public Advisory Committee is

composed of 15 citizens, five from each of the three countries, and

advises the Council on any matter within the scope of the Agreement.

MISSION

The CEC facilitates cooperation and public participation to foster

conservation, protection and enhancement of the North American environment for the benefit of present and future generations, in the context

of increasing economic, trade and social links among Canada, Mexico

and the United States.

VII
NORTH AMERICAN ENVIRONMENTAL

LAW AND POLICY SERIES

Produced by the CEC, the North American Environmental Law

and Policy series presents some of the most salient recent trends and

developments in environmental law and policy in Canada, Mexico and

the United States, including official documents related to the novel citizen submission procedure empowering individuals from the NAFTA

countries to allege that a Party to the agreement is failing to effectively

enforce its environmental laws.

VIII FACTUAL RECORD: TARAHUMARA SUBMISSION
Factual Record

Tarahumara Submission

(SEM-00-006)

Prepared in Accordance with Article 15

of the North American Agreement on

Environmental Cooperation

July 2005

Table of Contents

1. Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1.1 Legal Context Regarding Indigenous Peoples and

Citizen Complaints . . . . . . . . . . . . . . . . . . . . . . . 8

1.2 Summary of Information Gathered Regarding Processing

of Citizen Complaints Covered by the Factual Record . . . 9

1.3 Detailed Information Regarding the Ciénega de

Guacayvo, Rochéachi, and Pino Gordo Cases. . . . . . . . 11

1.4 Challenges to Enforcement in the Cases Covered by

the Factual Record . . . . . . . . . . . . . . . . . . . . . . . 13

2. Summary of the Submission . . . . . . . . . . . . . . . . . . . . 15

3. Summary of Mexico’s Response . . . . . . . . . . . . . . . . . . 18

4. Scope of the Factual Record . . . . . . . . . . . . . . . . . . . . 20

5. Relevant Environmental Law . . . . . . . . . . . . . . . . . . . 21

6. Information Gathering Process . . . . . . . . . . . . . . . . . . 26

7. Legal Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

7.1 Rights of Indigenous Peoples and Communities

in Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

7.1.1 Federal Level . . . . . . . . . . . . . . . . . . . . . . 28

7.1.1.1 Constitutional Provisions . . . . . . . . . . 28

7.1.1.2 Relevant Federal Statutory Provisions

Regarding Indigenous Peoples . . . . . . . 33

3
7.1.2 State Level. . . . . . . . . . . . . . . . . . . . . . . . 36

7.1.3 United Nations Report on the Situation of

Indigenous Peoples in Mexico . . . . . . . . . . . . 38

7.2 The Citizen Complaints Process . . . . . . . . . . . . . . . 40

8. Mexico’s Enforcement of its Environmental Law in

the Cases Covered by the Factual Record. . . . . . . . . . . . . 45

8.1 Geographical Information . . . . . . . . . . . . . . . . . . . 45

8.2 Enforcement of the Citizen Complaints Process . . . . . . 48

8.3 Enforcement of the Provisions on Investigation and

Prosecution of Probable Environmental Offenses . . . . . 49

8.4 Detailed Information on the Ciénega de Guacayvo,

Rochéachi and Pino Gordo Cases. . . . . . . . . . . . . . . 50

8.4.1 Ciénega de Guacayvo . . . . . . . . . . . . . . . . . 50

8.4.2 Rochéachi . . . . . . . . . . . . . . . . . . . . . . . . 57

8.4.3 Pino Gordo . . . . . . . . . . . . . . . . . . . . . . . 62

8.4.3.1 Resolution of citizen complaint without

explaining to the complainant how

authorities took into into account evidence

and information provided by the

complainant . . . . . . . . . . . . . . . . . . 63

8.4.3.2 Criminal Prosecution. . . . . . . . . . . . . 65

8.4.3.3 Agrarian Issues . . . . . . . . . . . . . . . . 65

9. Challenges to Enforcement in the Cases Covered by

the Factual Record . . . . . . . . . . . . . . . . . . . . . . . . . . 67

9.1 Relations between Indigenous Communities and

Government Authorities. . . . . . . . . . . . . . . . . . . . 68

9.2 Intergovernmental and Interagency Cooperation . . . . . 74

9.2.1 Federal—State Cooperation . . . . . . . . . . . . . . 75

4 FACTUAL RECORD: TARAHUMARA SUBMISSION
9.2.2 Interagency Cooperation . . . . . . . . . . . . . . . 78

10. Closing Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

Figures

Figure 1 Map of Mexico Locating the State of Chihuahua. . . 46

Figure 2 Map of the State of Chihuahua Showing Municipal

Boundaries . . . . . . . . . . . . . . . . . . . . . . . . 47

Figure 3 Distribution of Environmental Citizen Complaints

(January—November 2001) . . . . . . . . . . . . . . . 69

Appendices

Appendix 1 Council Resolution 03-04, dated 22 April 2003 . . . . 87

Appendix 2 Overall Plan to Develop a Factual Record,

dated 15 May 2003 . . . . . . . . . . . . . . . . . . . . 91

Appendix 3 Request for Information, dated 10 September

2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

Appendix 4 Request for Additional Information, dated

20 January 2004 . . . . . . . . . . . . . . . . . . . . . 107

Appendix 5 Follow-up Information Request, dated

10 June 2004 . . . . . . . . . . . . . . . . . . . . . . . 117

Appendix 6 Citizen Complaints Covered by the Factual Record,

Corresponding Questions from the Secretariat to

Mexico, and Responses of Mexico . . . . . . . . . . 121

Appendix 7 List of Information Gathered for the Development

of the Factual Record. . . . . . . . . . . . . . . . . . 175

Appendix 8 Article 27 of the Political Constitution of the

United Mexican States . . . . . . . . . . . . . . . . . 191

Appendix 9 Photos . . . . . . . . . . . . . . . . . . . . . . . . . . 203

TABLE OF CONTENTS 5
Attachments

Attachment 1 Council Resolution 05-09, dated 21 December

2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

Attachment 2 Comments of United States . . . . . . . . . . . . . 213

Attachment 3 Comments of Mexico . . . . . . . . . . . . . . . . . 221

6 FACTUAL RECORD: TARAHUMARA SUBMISSION
1. Executive Summary

Articles 14 and 15 of the North American Agreement on Environmental Cooperation (“NAAEC”) establish a process allowing residents of

Canada, Mexico and the United States to file submissions alleging that a

Party to the NAAEC (Canada, Mexico or the United States) is failing to

effectively enforce its environmental law. Under the NAAEC, this process can lead to the publication of a factual record. The Secretariat

(“Secretariat”) of the North American Commission for Environmental

Cooperation (“CEC”) administers the NAAEC citizen submissions

process.

On 31 May 2000, Comisión de Solidaridad y Defensa de los Derechos

Humanos, A.C. (“Cosyddhac” or the “Submitter”) filed a submission

with the Secretariat alleging that Mexico is failing to effectively enforce

its environmental law in regard to the processing of citizen complaints

and prosecuting of probable environmental offenses in connection with

illegal logging and other resource extraction activities alleged to have

occurred in various indigenous communities of the Sierra Tarahumara

mountains in western Chihuahua state, in the late 1990’s and 2000. On 22

April 2003, in Council Resolution 03–04, the Council instructed the

Secretariat to prepare a factual record with respect to the submission.

To develop the factual record, the Secretariat considered publicly available information as well as information provided by Mexico and the

Submitter.

In this factual record, the Secretariat presents the facts relevant to

whether or not Mexico is failing to effectively enforce the provisions of

its Ley General del Equilíbrio Ecológico y la Protección al Ambiente[LGEEPA,

General Law on Ecological Balance and Environmental Protection]

regarding the citizen complaints process (LGEEPA Articles 189, 190-93,

and 199) and Articles 416, 418 and 419 of Mexico’s Código Penal Federal

[CPF, Federal Penal Code] (and related Articles 169 and 202 of LGEEPA)

regarding the reporting and prosecuting of probable environmental

offenses in connection with the cases covered by the submission for

which the Secretariat recommended development of a factual record.

7
1.1 Legal Context Regarding Indigenous Peoples and Citizen

Complaints

The Submitter alleges irregularities in the processing of citizen

complaints filed by indigenous communities from the Sierra

Tarahumara, and claims that such irregularities amount to a denial of

environmental justice. In developing the factual record, the Secretariat

gathered background information regarding the legal context of the

complaints covered by the submission. This information concerns rights

of indigenous peoples and communities in Mexico at the federal and

state level, as well as background information on the citizen complaints

process as a tool for environmental justice in Mexico. Although this

information is relevant as contextual background for the Submitter’s

assertions, the Submitter did not assert that – and this factual record

does not address whether – Mexico is failing to effectively enforce constitutional or statutory provisions not cited in the submission.

Regarding rights of indigenous peoples, the federal Constitution

of Mexico contains criteria for identifying indigenous peoples and provides a framework for recognizing them and guaranteeing their right to

self-determination, subject to further elaboration in state constitutions

and laws. The State of Chihuahua recognizes indigenous rights in

the state Constitution. State-level implementing legislation is pending.

Under the federal Constitution, indigenous rights in regard to land ownership are subject to recognition and definition through the agrarian system. A report on the situation of indigenous peoples in Mexico prepared

by the United Nations (“UN”) Special Rapporteur on the situation of

human rights and fundamental freedoms in 2003 concluded that government policy towards indigenous peoples in Mexico “[...] is designed

to produce negotiated solutions to conflict ‘hot spots,’ to promote and

support productive activities and to provide various social services to

the communities.” According to the UN Special Rapporteur, this policy

“[...] does not depart significantly from the trend that has characterized

indigenous policy for more than half a century, but it is very much

restricted by the limitations and cuts in the public budget and the clear

fact that the problem of the indigenous peoples is not one of high priority

for the Mexican state.”

The citizen complaints process found in the LGEEPA allows persons to complain to the Procuraduría Federal de Protección al Ambiente

[Profepa—Federal Attorney for Environmental Protection] when they

become aware of activities carried out in violation of environmental

laws or that disrupt ecological balance. Under the LGEEPA, Profepa has

ten days to acknowledge receipt of a complaint and either begin processing it or turn it over to the government agency with jurisdiction over the

8 FACTUAL RECORD: TARAHUMARA SUBMISSION
subject matter of the complaint, in a reasoned decision that is copied to

the complainant. Profepa must investigate the facts alleged by the

complainant and explain how it took into account information provided

by the complainant. A citizen complaint can result in Profepa launching

an administrative proceeding under the inspection and surveillance

provisions of LGEEPA. When that is the case, complainants are notified

of the outcome of the administrative proceeding when a resolution

is issued. Under LGEEPA, the processing of a citizen complaint is

intended to take forty working days.

In response to a request from the Secretariat for information

regarding the processing of the citizen complaints covered by the submission, Mexico provided the Secretariat with a copy of a report commissioned by Profepa in 2002 containing an evaluation of the social

impact of the citizen complaints process in Mexico. The study involved a

survey of 368 complainants from the six states having registered the

highest number of citizen complaints in the period 1999–2001. The

report concluded that in approximately one third of cases, complainants

were dissatisfied with the outcome of their complaints, particularly as

regards the failure to resolve the underlying problem. Of eight complaints highlighted in the study report because they involved complicated enforcement operations, six involved natural resources issues.

Five of these involved allegations of illegal logging and one involved

alleged irregularities at sawmills. The report recommended strengthening enforcement of natural resources laws, but did not indicate whether

satisfaction with the citizen complaints process could be correlated to

the subject matter of the complaint (industrial vs. natural resources

activities). The report concluded that the citizen complaints process is

difficult for ordinary citizens to use, and that the flow of information to

the complainant is slow, bad or nonexistent. The authors observed that

there is an increasing willingness by local government and citizens to

participate in the move toward sustainable development, and they

recommended implementing a large scale training program within all

levels of Profepa, focusing on improving knowledge of the law, sensitization to the social situation of complainants, and ways to process and

capture information gathered during inspections and surveillance operations. The report also recommended increasing public awareness of the

right to appeal to the Auditor General or the National Human Rights

Commission in cases where the agency commits irregularities.

1.2 Summary of Information Gathered Regarding Processing of

Citizen Complaints Covered by the Factual Record

For each of the citizen complaints covered by the factual record, the

Secretariat compiled existing information (information received from

EXECUTIVE SUMMARY 9
the Submitter and information received from Mexico in its response to

the submission filed with the Secretariat pursuant to Article 14(3) of the

NAAEC) and asked Mexico for information on questions that remained

open. Information received by the Secretariat is set out in Appendix 6 of

the factual record and is summarized below.

Of the 28 citizen complaints covered by this factual record, 20 were

decided upon as to their admissibility within a period exceeding 10

days. Files were closed within four to 28 months of complaints being

filed, with the majority of files being closed within five to twelve months.

During a meeting with a legal officer from the CEC Secretariat in Chihuahua City in October 2003, federal authorities explained that delays in

processing complaints were caused by deficiencies in the complaints

themselves, lack of enforcement staff, travel time, and a backlog of complaints dating to the mid-1990s, when Profepa inherited hundreds of

pending complaints from another federal agency.

Of the 28 citizen complaints covered by this factual record, 7 were

dismissed, 5 were referred to another agency in whole on in part, and 17

resulted in Profepa launching administrative proceedings. In 16 of the 17

cases in which Profepa launched administrative proceedings, Profepa

issued orders of fines and/or corrective measures. In 9 of those cases,

some or all of the corrective measures were implemented (though reforestation—ordered in nine cases—was never carried out by the perpetrators). Mexico did not provide the Secretariat with requested information

regarding whether fines were paid and what actions—if any—were

taken by Profepa in those cases where corrective measures were not

implemented as ordered.

According to Mexico, of the 28 citizen complaints covered by this

factual record, there were 13 cases in which environmental authorities

filed a report of probable environmental offenses with MPF [Ministerio

Público Federal—Federal Prosecutor General]. Regarding the remaining

cases, Mexico stated that in five cases, environmental authorities did not

notify MPF because the cases involved irregularities considered as

minor. In one case Profepa did not conduct an inspection and therefore

was not in a position to report any facts to MPF. In another, according to

Mexico, MPF did not become involved because Profepa’s administrative

ruling was quashed on appeal. In the remaining cases, Mexico stated

that facts were not reported to MPF because “the facts did not establish

the existence of a criminal offense.” Mexico did not provide the Secretariat with requested information regarding the outcome of the cases that

were referred to MPF, or additional reasons regarding the decision not

to refer complaints in those cases that were not referred.

10 FACTUAL RECORD: TARAHUMARA SUBMISSION
1.3 Detailed Information Regarding the Ciénega de Guacayvo,

Rochéachi, and Pino Gordo Cases

The factual record contains more detailed information regarding

citizen complaints filed by persons from three indigenous communities

in the Sierra Tarahumara: Ciénega de Guacayvo, Rochéachi, and Pino

Gordo. A legal officer from the CEC Secretariat met with representatives

of these communities in Ciénega de Guacayvo and Chihuahua City in

October 2003.

The submission refers to six citizen complaints filed with Profepa

in 1998 and 1999 in regard to alleged illegal logging and setting of forest

fires in and around the ejido (political entity created by agrarian system)

of Ciénega de Guacayvo and processing of illegally harvested lumber in

sawmills of the nearby town of San Juanito. According to the Submitter,

while the complaints did result in some illegally harvested lumber being

seized, there was no satisfactory process for disposing of this lumber,

with the result that it lay rotting in piles in the center of the ejido. Another

outcome of the complaints was that the ejido itself was ordered to carry

out reforestation work because government authorities considered the

ejido to be responsible for having allowed illegal logging to occur. Ejido

members complained that sanctions imposed on individuals did not

prevent recidivism. They also asserted that in response to a complaint

regarding illegal processing activities at San Juanito sawmills, Profepa

claimed to have carried out the necessary inspections and imposed sanctions, though it never acknowledged receipt of the citizen complaint or

provided complainants with supporting information regarding enforcement action.

The Submitter alleged that Profepa conducted inspections in the

ejido in June, August and October 1999, and that despite finding evidence of forest arson, it did not notify MPF of the probable existence of

an environmental offense, nor did it do so in regard to matters covered

by the six citizen complaints filed by ejido members. In its response to the

Secretariat’s Request for Information, Mexico stated that preliminary

criminal investigations had been conducted as a result of the 1999

inspections, and it mentioned two file numbers (without providing the

Secretariat with supporting information). Mexico referenced the same

file numbers in asserting that it had notified MPF of other incidents referenced in citizen complaints covered by the submission, though the

other incidents involved illegal operation and storage of lumber in San

Juanito sawmills, storage and transportation of logs that are still found

stacked in Ciénega de Guacayvo, and illegal logging. In other cases,

authorities stated that complainants had themselves reported matters to

MPF, and that it was therefore unnecessary for Profepa to do so as well.

EXECUTIVE SUMMARY 11
Complainants in the Ciénega de Guacayvo cases and government

authorities agreed that enforcement of forest legislation was impeded by

legislative amendments adopted in 1992 that dispensed with transport

manifests (documents certifying the legality of goods being transported)

in favor of a log “marking” system. Though manifests had been reintroduced through legislative amendments in 1997, the amendments only

became operative in 1999. Government authorities also stated that

Profepa was concerned not to refer minor matters to MPF, in accordance

with the “principle of minimum intervention,” though recent legislative

and policy changes give penal complaints (complaints from the public

directly to MPF) more prominence as a tool for citizens to combat environmental crimes.

The submission covers a series of citizen complaints filed with

Profepa by the Rarámuri Indigenous People from the ejido of Rochéachi

in the late 1990’s alleging illegal extraction of sand and destruction of

streamside vegetation amounting to forest conversion. Profepa referred

the matter to CNA [Comisión Nacional del Agua—National Water Commission], which conducted inspections and concluded that the activities

complained of were being carried out legally, in compliance with a sand

mining concession issued by CNA. Nevertheless, the citizen complaints

resulted in the suspension of the mining concession and the conclusion

of a series of interagency agreements between Semarnat [Secretaría de

Medio Ambiente y Recursos Naturales—Ministry of Environment and

Natural Resources], CNA and Profepa containing an acknowledgement

of overlapping jurisdictions (Semarnat has jurisdiction to conduct

environmental assessments and is in charge of restoration programs,

CNA has jurisdiction over watercourses, and Profepa receives citizen

complaints and has jurisdiction over environmental law enforcement).

The Secretariat did not receive any information regarding follow-up to

the interagency agreements signed for Rochéachi. According to Mexico,

a subsequent complaint of illegal sand extraction gave rise to enforcement measures by Profepa and CNA, but no supporting information

was provided to the Secretariat.

At a meeting with the legal officer from the CEC Secretariat in

October 2003, in discussing the Rochéachi case, CNA representatives

commented that due to the fact that only a small portion of CNA’s overall budget is dedicated to enforcement action and considering that CNA

has no offices in the Sierra Tarahumara, the agency has to prioritize

enforcement measures. For the State of Chihuahua (Mexico’s largest

state), CNA’s budget allows for twenty inspection visits annually to

respond to citizen complaints. CNA representatives also mentioned that

sand extraction activities in Rochéachi were not doing harm to the river

12 FACTUAL RECORD: TARAHUMARA SUBMISSION
or affecting water supply. Ejido members who met with the legal officer

from the CEC Secretariat stated that while their complaints resulted in

an informal moratorium on sand mining within the ejido, the current

head of the ejido assembly was not committed to enforcing the moratorium; residents attempting to enforce the moratorium were being intimidated; no sanctions were imposed by Profepa or CNA against those

having engaged in illegal extraction activities; and there was no assurance that mining concessions would not be issued in the future.

The submission refers to two citizen complaints of illegal logging

filed with Profepa in 1998 and 1999 by residents of the ejido of Pino

Gordo. Logging was being carried out in the ejido pursuant to an authorization issued by Semarnat to the community of Colorada de los Chávez.

The grounds for the citizens’ complaints were fourfold. The complainants asserted first, that the authorization should not have been issued

because a majority of residents of Pino Gordo were opposed to any logging, but were not entitled to vote on the forest management proposal

because they lacked birth certificates (issued under the agrarian system)

recognizing their indigenous status. Second, they asserted that the ejido

of Pino Gordo and the community of Colorada de los Chávez had a

pending boundary dispute, and that under the law, forest management

authorizations cannot be issued while such disputes are ongoing. Third,

they alleged that the forest management plan had been authorized

despite the fact that in the area covered by the plan, there are endangered

species, and the plan contained no mitigation measures intended to protect such species. Finally, they alleged that logging activities were not

complying with the terms of the forest management plan.

A forest audit carried out by Profepa in 1999 led to the cancellation

of the forest management plan and Profepa ordering the adoption of

emergency measures. The Submitter claims that Profepa should have

notified MPF of the facts that led to the cancellation of the forest management plan. In its response to the Secretariat’s Request for Information,

Mexico agreed, but did not indicate whether this was done. Regarding

whether whether there were endangered species in the area covered by

the forest management plan, government authorities stated that the plan

itself did not mention the presence of any such species and that authorities therefore assumed that no such species were present.

1.4 Challenges to Enforcement in the Cases Covered by

the Factual Record

In developing the factual record, the Secretariat gathered additional information relevant to a consideration of whether or not, in the

EXECUTIVE SUMMARY 13
cases referenced in the submission, Mexico is failing to effectively

enforce its environmental law. This information relates to challenges

involving relations between indigenous communities and government

authorities, as well as challenges associated with intergovernmental and

interagency cooperation.

Regarding relations between indigenous communities and government authorities, challenges regarding the effective enforcement of

environmental law in the cases covered by the submission include geographical, cultural, economic and legal factors. From a geographic perspective, due to the absence of Profepa and CNA offices in the Sierra

Tarahumara, enforcement requires significant (8–24 hours) travel time

to reach remote mountain communities from Chihuahua City. From a

cultural perspective, language acts as a barrier to citizen communication

with government authorities regarding law enforcement and access to

government-sponsored natural resources programs. Differing conceptions regarding the value of forests (as tools for economic development

or as part of a cultural context needing to be preserved) come into play in

reaching concensus on what is effective law enforcement. Another factor

is concern in indigenous communities regarding the independence of

Profepa staff. It is acknowledged by government authorities that there

are too few Profepa inspectors and that their salaries are not in line with

the rest of the federal civil service. Economic and social factors limit the

ability of indigenous communities to develop, adopt, implement and

enforce local rules on forest management, making them vulnerable to

exploitation from outside and within. Legal factors such as agrarian disputes affect perceptions regarding the efficiency of citizen complaints as

a tool for environmental justice, because Profepa, Semarnat and CNA do

not have jurisdiction to resolve the underlying legal matter. Another

legal factor is lack of follow-up by Profepa to matters raised in submissions. Although follow-up is not required by law, when underlying

matters are not resolved, the citizen complaints process is viewed as less

effective.

Regarding intergovernmental and interagency cooperation, federal-state delegation initiatives, while contemplated by LGEEPA, have

been hampered by a lack of resources at the state level for taking over

the administration and enforcement of federal environmental laws. In

regard to interagency cooperation, in 2004, recognizing that between a

quarter and a third of the lumber sold in Mexico is harvested illegally,

the federal government mounted a cross sectoral initiative aimed at

combating illegal logging in 15 critical priority forested areas throughout the country, including the Sierra Tarahumara. Under this initiative,

Profepa is committed to developing a plan with each municipality to

14 FACTUAL RECORD: TARAHUMARA SUBMISSION
respond to citizen complaints of illegal logging in under two hours, and

Profepa has signed an agreement with PGR [Procuraduría General de

la República—Federal Attorney General’s Office] detailing Profepa’s

responsibilities in assisting PGR (within the limits of their respective

budgets) to provide a timely response to allegations of environmental

crimes. Additional enforcement initiatives include concerted action

involving the army and state and local governments and police forces, as

well as intelligence operations, aerial and remote surveillance, road closures, sawmill inspections, checkpoints, and improvements to the system of transport manifests. Under this initiative, enforcement measures

also aim to reduce demand for illegally harvested timber, with specific

actions designed to address impunity in business and political circles,

and programs seeking to ensure that only crates and pallets made of

legally harvested lumber are used in the agricultural sector, by beer and

refreshment companies, and by the automotive industry.

2. Summary of the Submission

In the submission, Cosyddhac asserts that Mexico is failing to

effectively enforce its environmental law in relation to the effective processing of citizen complaints (denuncias populares), the prosecution of

environmental offenses, the consultation of indigenous peoples prior to

issuing logging permits, and access to environmental information.1

According to the Submitter, Mexico is failing to effectively enforce its

environmental law as follows:

A. Failure by Mexico to effectively enforce Article 189 in relation to

Article 191 of the LGEEPA [Ley General del Equilibrio Ecológico y la

Protección al Ambiente—General Law on Ecological Balance and Environmental Protection] by failing to guarantee the indigenous peoples,

as social groups, access to environmental justice through the filing of

citizen complaints, or from another standpoint, Mexico’s failure to

enforce through its denial to these peoples of legal interest in the

broad sense, as well as legitimatio ad processum and legitimatio ad

causam.

B. Mexico’s failure to effectively enforce Articles 189 in relation to Articles 190 and 191 of the LGEEPA, with respect to its refusal to allow to

proceed a citizen complaint that meets all the legal requirements.

SUMMARY OF THE SUBMISSION 15

1. If the examples from all the headings in the submission are counted, there are at least

112 specific situations for which it is asserted that the Party failed to effectively

enforce its environmental law. The original structure of the submission devoted one

chapter to facts (Chapter III, now Appendix I to the submission), which recounted

the procedural history of each of the citizen complaints and actions by the authority

employed as examples to document each of the 21 assertions (contained in Chapter

IV, which was kept in the body of the submission).
C. Mexico’s failure to effectively enforce LGEEPA Article 176, through

its failure to guarantee the affected parties, following a final decision

pronounced by an administrative tribunal, access to environmental

justice through the filing of an appeal for review against it, or from

another standpoint, Mexico’s failure to enforce through its denial to

the indigenous peoples of legal interest in the broad sense, as well as

legitimatio ad processum and legitimatio ad causam.

D. Mexico’s failure to effectively enforce LGEEPA Article 176, in that

every appeal for review must result in a decision that concludes the

appeal.

E. Mexico’s failure to effectively enforce Article 15.2 of Convention 169

of the ILO [International Labour Organization] in connection with

authorizations issued for the exploitation of timber resources.

F. Mexico’s failure to effectively enforce Article 199 in relation to Article

189 of the LGEEPA, in connection with its failure to resolve or conclude citizen complaint files.

G. Mexico’s failure to effectively enforce CFPP [sic] Article 418, in relation to its failure to notify the agency responsible for criminal investigations and prosecutions (Ministerio Público Federal—MPF) of the

probable occurrence of environmental offenses consisting of forest

clearing, destruction of natural vegetation, and change of land use

without authorization, despite becoming aware of these facts in the

course of carrying out its duties.

H. Mexico’s failure to effectively enforce CPF [Código Penal Federal—Federal Criminal Code] Article 418 in connection with forest clearing and

land use changes without authorization under the Forestry Act [Ley

Forestal].

I. Mexico’s failure to effectively enforce CPF Article 418 in relation to its

failure to notify MPF of the probable occurrence of environmental

offenses consisting of cutting, uprooting, felling or knocking down

trees without authorization, despite becoming aware of these facts in

the course of carrying out its duties.

J. Mexico’s failure to effectively enforce CPF Article 418 in connection

with the crime of cutting, uprooting, felling or knocking down trees,

or exploiting forest resources, without authorization under the Forestry Act.

K. Mexico’s failure to effectively enforce CPF Article 418 in relation to its

failure to notify MPF of the probable occurrence of environmental

offenses consisting of intentionally causing fires in woodlands and

forest vegetation, thus damaging natural resources, flora, fauna and

ecosystems.

16 FACTUAL RECORD: TARAHUMARA SUBMISSION
L. Mexico’s failure to effectively enforce CPF Article 418 in connection

with the crime of intentionally causing fires in woodlands and forest

vegetation, thus damaging natural resources, flora, fauna and ecosystems.

M. Mexico’s failure to effectively enforce CPF Article 419 in relation to its

failure to notify MPF of the probable occurrence of environmental

offenses consisting of the transportation, storage and processing

of forest resources without authorization under the Forestry Act,

despite becoming aware of these facts in the course of carrying out its

duties.

N. Mexico’s failure to effectively enforce CPF Article 416 in relation to its

failure to notify MPF of the probable occurrence of environmental

offenses consisting of discharging and dumping wastewater into

national bodies of water, causing harm to public health, natural

resources, flora, fauna, and water quality.

O. Mexico’s failure to effectively enforce LGEEPA Article 169 in fine, a

comprehensive reading of which establishes that once the decision

referred to in Article 168 of the LGEEPA is issued and acts or omissions constituting one or more offenses are verified, the environmental authorities shall notify MPF thereof.

P. Mexico’s failure to effectively enforce LGEEPA Article 202, in that

the Office of the Federal Attorney for Environmental Protection

[Procuraduría Federal de Protección al Ambiente—Profepa] in the State of

Chihuahua, despite conducting inspection visits, arising in most

cases from citizen complaints, on which visits it directly observed acts

and omissions constituting environmental offenses, did not file corresponding reports of probable offenses.

Q. Mexico’s failure to effectively enforce LGEEPA Article 191 by failing

to join a citizen complaint to a pre-existing file opened in response to a

previous citizen complaint of a similar nature.

R. Mexico’s failure to effectively enforce LGEEPA Articles 191 and 192,

by failing to issue a decision on the admissibility of a citizen complaint and, consequently, failing to take the necessary steps to determine the existence of the acts or omissions alleged therein.

S. Mexico’s failure to effectively enforce Article 191 in relation to 190 of

the LGEEPA, in failing to process a citizen complaint appropriately

by referring the matter to the competent body.

T. Mexico’s failure to effectively enforce LGEEPA Article 193, by resolving a citizen complaint without informing the complainant of the

considerations adopted in regard to the evidence and information

provided.

SUMMARY OF THE SUBMISSION 17
U. Mexico’s failure to effectively enforce Article 159 Bis 3 in relation to

Article 159 Bis 4 of the LGEEPA, by refusing to provide environmental information in response to a request.

The Submitter asserts that these alleged failures to effectively

enforce the LGEEPA, the CPF, the Forestry Act and the Indigenous

and Tribal Peoples Convention (Convention 169) of the ILO constitute a

denial of environmental justice to indigenous peoples in the Sierra

Tarahumara, State of Chihuahua, in violation of NAAEC Articles 6 and

7. The final part of the submission states that the 21 assertions and supporting examples “constitute a persistent pattern.”2

After analyzing the submission in light of Articles 14(1) and 14(2),

the Secretariat requested a response from Mexico only with respect to

the assertions contained in headings A, C, D, F, G, H, I, K, M, N, O, P, R, S

and T of the submission.3

3. Summary of Mexico’s Response

The Secretariat received Mexico’s response to the submission on

15 February 2002. It contains a concise response to headings A, C, D, F, G,

H, I, K, M, N, O, P, R, S and T of the submission, supported by a large

number of attached documents showing in detail how the citizen complaints and applications for review mentioned in the submission were

processed. The response maintains that the environmental authorities

adequately performed their duties in responding to the citizen complaints mentioned in headings A, F, R, S and T of the submission.

The response states:

Mexico, based on NAAEC Articles 5(1)(j), 5(2), 6 and 7 ... responded, in a

timely manner and using a fair, open and equitable procedure, to a total

of 173 citizen complaints filed between February 1998 and March 2000

relating to various violations of the LGEEPA committed in the Sierra

Tarahumara; all the complaints were admitted by the Profepa and

recorded in the National Citizen Complaint Response System [Sistema

Nacional de Atención a la Denuncia Popular]. It should be mentioned that, in

accordance with LGEEPA Article 191 ..., Profepa’s Environmental Petitions, Complaints, and Social Participation Unit in the State of Chihuahua

sent the complainants an acknowledgement of receipt of each of the aforementioned complaints, issuing a decision on the admissibility of each

18 FACTUAL RECORD: TARAHUMARA SUBMISSION

2. Submission at 18.

3. SEM-00-006 (Tarahumara), Determination in Accordance with Articles 14(1) and (2)

(6 November 2001).
complaint, and notifying the complainants of those decisions within the

ten days following the receipt of the corresponding complaint.4

Concerning assertions about effective enforcement in connection

with the procedure to apply for judicial review in the cases mentioned in

the submission (headings C and D), the response states that Mexico,

“based on NAAEC Articles 7(3) and (4) and LGEEPA Article 176 ...

resolved applications for review filed against decisions of the Profepa

State Office in Chihuahua, to which the Secretariat refers in its determination, in accordance with Article 91, paragraph II of the Federal Administrative Procedure Act (Ley Federal de Procedimiento Administrativo—

LFPA) ... by upholding the administrative decision under review.”5

As to the assertions in the submission concerning the investigation

and prosecution of environmental offenses, Mexico asserts that it cannot

respond to the assertion in heading G because the article cited by

the Submitter (Article 418 of the Federal Code of Criminal Procedure

(Código Federal de Procedimientos Penales—CFPP) does not correspond to

the matter alleged (which in fact relates to Article 418 of the CPF).

Regarding heading H, Mexico asserts that “it refers to a complaint of

probable offenses filed with MPF [Ministerio Público Federal—Federal

Prosecutor General] by the Community of ejido San Diego de Alcalá on

21 September 1999. In that regard, Mexico, based on NAAEC Article

14(3)(a), requests that the Secretariat give no further consideration to the

matter because, it asserts, the complaint is the subject of a pending

administrative proceeding before MPF, which shall determine whether

or not to turn the file over to the competent judge.”6

Concerning headings I, K, M and O, which refer to the failure to

notify MPF of the probable occurrence of environmental offenses in various cases, the response states that the citizen complaints in question

were resolved, inspection visits were conducted, administrative procedures were followed and, in some cases, administrative sanctions were

imposed on the perpetrators. According to the response, the environmental authorities did not notify MPF because the acts and omissions

observed by the authorities did not qualify as environmental offenses.7

Finally, the response indicates that Mexico did institute criminal proceedings and issue an administrative decision in regard to the citizen

complaint mentioned in heading N.

SUMMARY OF MEXICO’S RESPONSE 19

4. Response at 2–3.

5. Ibid. at 8–9.

6. Ibid. at 10–12. The complaint for which the Party invoked Article 14(3)(a) is also mentioned in heading M of the submission.

7. Ibid. at 11–12.
Mexico’s response states further that “beginning in the year 2000, a

series of meetings was held between its responsible authorities [and the

affected indigenous communities and nongovernmental organizations]

for the purpose of keeping them informed of the status of their complaints and clarifying any legal situation that might arise in relation

thereto, using those meetings as fora for discussing environmental situations arising in that geographical area...” Finally, Mexico’s response

indicates that Mexico intends to set up “participatory surveillance committees for natural resource conservation” in the region.8

4. Scope of the Factual Record

On 29 August 2002, the Secretariat notified the CEC Council that,

in accordance with Article 15(1) of the NAAEC and in light of Mexico’s

response, it considered the assertions in the submission for which it had

requested a response from Mexico to warrant the development of a

factual record, except in regard to the allegations in the submission

relating to the applications for review filed in connection with citizen

complaints. In its Notification to the Council, the Secretariat explained:

The Submitter asserts that the failures to process the citizen complaints

filed by the indigenous peoples and communities of the Sierra

Tarahumara constitute a persistent pattern of denial of access to environmental justice to those communities. The NAAEC stresses the importance

of public participation in conserving, protecting and enhancing the environment, and contemplates, among the goals of the Parties, the achievement of high levels of environmental protection and compliance with the

law (NAAEC Preamble, sixth paragraph, and Articles 1(a) and (g) and

5(1)). The submission also states that the alleged failures to enforce fall

within the context of NAAEC Articles 6 and 7, which establish the commitment of the Parties to initiate, in a timely manner, judicial proceedings to

seek appropriate sanctions or remedies for violations of their environmental law. The effective enforcement by Mexican environmental authorities

of the citizen complaint procedure is fundamental to the promotion of citizen participation in environmental protection. Equally important is cooperation between the environmental authorities and the MPF in the proper

investigation and prosecution of probable environmental crimes. The

development of a factual record with respect to this submission would

promote the effective enforcement of the Party’s environmental law provisions that enable the indigenous peoples and other rural communities of

the Sierra Tarahumara to participate, by filing complaints and denunciations, in the protection of the region’s forests and the conservation of its

ecosystems.

20 FACTUAL RECORD: TARAHUMARA SUBMISSION

8. Ibid. at 16–17.
[...]

While the alleged failures to enforce environmental law of the kind raised

in this submission might not individually warrant preparation of a factual

record, taken together, and considering the importance of the effective

participation by indigenous peoples and other communities of the Sierra

Tarahumara in the environmental protection of that region, the allegations in this submission pose a central question about effective enforcement of environmental law that warrants preparation of a factual record.

On 22 April 2003, by means of Council Resolution 03–04 (set out in

its entirety in Appendix 1), the Council “[instructed] the Secretariat to

prepare a factual record with respect to the submission.”

Consequently, this factual record presents information relevant to

the facts concerning:

i) the cases mentioned in headings A, F, G, H, I, K, M, N, O, P, R,

S and T of the submission.

ii) the application of the citizen complaint procedure (LGEEPA

Articles 189, 190–193 and 199) by Mexico in the cases mentioned in headings A, F, R, S and T of the submission, and the

application of the provisions concerning investigation and

prosecution of probable environmental offenses (CPF Articles 416, 418 and 419 and LGEEPA Articles 169 and 202) by

Mexico in the cases mentioned in headings G, H, I, K, M, N, O

and P of the submission.

iii) the effectiveness of Mexico’s enforcement of those provisions

in those cases.

5. Relevant Environmental Law

This factual record focuses on an assertion that Mexico is failing to

effectively enforce the LGEEPA and the CPF as regards the processing

of citizen complaints and the prosecution of probable environmental

offenses relating to cases of alleged illegal logging and other activities in

communities of the Sierra Tarahumara, State of Chihuahua, in the

period 1998–2000. The legislative provisions cited by the Submitter are

reproduced in full in this section.

LGEEPA

Article 169.- The corresponding administrative decision shall state or, as

applicable, add the measures that must be taken in order to correct the

RELEVANT ENVIRONMENTAL LAW 21
deficiencies or irregularities observed, the time period allowed to the violator to implement them, and the sanctions to which he may be liable

under the applicable provisions.

Within the five working days following the expiration of the time period

granted to the violator to cure the deficiencies and irregularities observed,

the latter shall give detailed written notice to the ordering authority of its

compliance with the measures ordered under the terms of the corresponding requirement.

In the case of a second or subsequent inspection to verify compliance with

a previous order or orders, where it is evident from the corresponding

report that the measures previously ordered have not been complied with,

the competent authority may impose, in addition to the applicable sanction or sanctions under Article 171 of this law, an additional fine not

exceeding the maximum limits specified therein.

In those cases where the violator applies the corrective measures or emergency measures or corrects the irregularities detected within the terms

ordered by the Ministry, provided that the violator is not a repeat violator,

and the provisions of Article 170 of this law do not apply, the Ministry may

rescind or modify the sanction or sanctions imposed.

As applicable, the federal authority shall inform the agency responsible

for prosecuting criminal offenses of acts or omissions noted in the course

of its duties that may constitute one or more offenses.

Article 189.- Any individual, social group, nongovernmental organization, association or partnership may complain to the Office of the Federal

Attorney for Environmental Protection or other authorities of any fact, act

or omission that causes or may cause ecological imbalance or harm to the

environment or natural resources or that violates the provisions of this law

and other legal provisions governing matters related to the protection of

the environment and the preservation and restoration of ecological balance.

Where there is no representative of the Office of the Federal Attorney for

Environmental Protection in the locality, the complaint may be filed with

the municipal authority or, at the option of the complainant, with the closest branch of said Office.

Where a complaint filed with a municipal authority falls under federal

jurisdiction, it shall be referred to the Office of the Federal Attorney for

Environmental Protection.

22 FACTUAL RECORD: TARAHUMARA SUBMISSION
Article 190.- A citizen complaint may be filed by any individual. It must be

filed in writing and include:

I.- The name or trade name, domicile, telephone number, if any, of the

complainant and, as applicable, his legal representative;

II.- The act or omissions complained of;

III.- The information necessary to identify the alleged violator or

locate the pollution source, and

IV.- Any evidence that the complainant may offer.

In like manner, a complaint may be filed by telephone, in which case the

public servant who receives it shall prepare a detailed report and the complainant shall ratify it in writing, fulfilling the requirements of this article,

within the three days following the filing of the complaint, without prejudice to any investigation that the Office of the Federal Attorney for Environmental Protection may undertake as a matter of course.

Complaints that are clearly inadmissible or lacking grounds as well as

those evidencing bad faith, lack of justification or nonexistence of petition

shall not be allowed to proceed and notice thereof shall be given to the

complainant.

Where the complainant requests the Office of the Federal Attorney for

Environmental Protection to keep his identity secret for reasons of safety

or private interest, said Office shall pursue the complaint in accordance

with the powers with which it is invested by this law and other applicable

legal provisions.

Article 191.- Upon receipt of a complaint, the Office of the Federal

Attorney for Environmental Protection shall acknowledge receipt thereof,

assign a file number thereto and register the number.

Where two or more complaints involving the same facts, acts or omissions,

are received, the joinder thereof in a single complaint file shall apply and

the complainants shall be notified of this decision.

The Office of the Federal Attorney for Environmental Protection, within

the 10 days following the filing of a complaint, shall notify the complainant of the decision on the admissibility thereof and describe the manner in

which the complaint was processed.

Where a complaint falls within the jurisdiction of another authority,

the Office of the Federal Attorney for Environmental Protection shall

acknowledge receipt to the complainant but shall not allow the complaint

RELEVANT ENVIRONMENTAL LAW 23
to proceed, instead referring it to the competent authority for processing

and resolution, and shall so notify the complainant in a fully articulated

and reasoned decision.

Article 192.- Once a complaint is allowed to proceed, the Office of the Federal Attorney for Environmental Protection shall identify the complainant

and shall notify the person, persons, or authorities to whom the facts complained of are attributed, or anyone who may be affected by the outcome

of the action undertaken, so that they may produce any documents and

evidence that may be appropriate within a maximum period of 15 working days counted from the corresponding notice.

The Office of the Federal Attorney for Environmental Protection shall

carry out the necessary procedures with a view to determining the existence of acts, facts, or omissions evidencing the complaint.

In like manner, in the cases provided by this law, it may institute the

appropriate inspection and surveillance procedures, in which case the

applicable provisions of this title shall be observed.

Article 193.- The complainant may assist the Office of the Federal

Attorney for Environmental Protection by submitting any evidence, documents, or information he considers relevant. The Office shall, when issuing a decision on the complaint, state the considerations adopted in regard

to the information provided by the complainant.

Article 199.- Citizen complaint files may be closed due to the following

causes:

I.- Where the Office of the Federal Attorney for Environmental Protection lacks jurisdiction over the complaint;

II.- Where the corresponding recommendation has been issued;

III.- Where there is no contravention of environmental law;

IV.- Where the complainant lacks interest under the terms of this

chapter;

V.- Where a decision for joinder of files has been issued;

VI.- Where the citizen complaint has been resolved through conciliation between the parties;

VII.- Where a decision ensuing from the inspection procedure has

been issued, or

VIII.- Where the complainant withdraws the complaint.

24 FACTUAL RECORD: TARAHUMARA SUBMISSION
Article 202.- The Office of the Federal Attorney for Environmental Protection, within the scope of its powers, may undertake the applicable actions

before the competent judicial authorities where it learns of acts, facts or

omissions that constitute violations of administrative or criminal laws.

CPF9

Article 416.-Anyone who, without such authorization as may be required,

or in violation of the legal and regulatory provisions or Mexican Official

Standards, commits any of the following acts is liable to a penalty of three

to six months imprisonment and a fine of one thousand to twenty thousand times the statutory daily minimum wage:

I. Discharging, dumping or infiltrating, or authorizing or ordering

the discharge, dumping or infiltration of wastewater, chemical or biochemical liquids, waste or contaminants into soils, marine waters,

rivers, watersheds, reservoirs or other bodies of water or watercourses under federal jurisdiction, causing or potentially causing

harm to public health, natural resources, flora, fauna, water quality in

watersheds, or ecosystems.

Where the waters in question are waters for delivery as bulk water to

population centers, the maximum penalty is three additional years

imprisonment; or

II. Destroying, draining or filling wetlands, mangrove forests,

lagoons, estuaries or marshes.

Article 418.- Anyone who, without the authorization required under the

Forestry Act, fells or destroys natural vegetation, cuts, uproots, fells or

logs trees, carries out forest operations or effects land use changes is liable

to a penalty of three months to six years imprisonment and a fine of one

hundred to twenty thousand times the statutory daily minimum wage.

The same penalty shall apply to anyone who maliciously causes fires

in woodlands, forests or natural vegetation, causing harm to natural

resources, wild flora or fauna, or ecosystems.

Article 419.- Anyone who transports, deals in, stores, or processes timber

resources in quantities greater than four cubic meters roundwood timber

or the equivalent without authorization under the Forestry Act is liable to

a penalty of three months to six years imprisonment and a fine equivalent

RELEVANT ENVIRONMENTAL LAW 25

9. Arts. 416, 418 and 419 of the CPF were amended on 6 February 2002, inter alia, to

lower fines, lengthen prison terms, and stipulate that committing any of the listed

offenses in a natural protected area will be treated as an aggravating factor. The text

reproduced above is the text that was in force at the time of the events referred to in

the citizen complaints covered by the submission.
to one hundred to twenty thousand times the statutory daily minimum

wage, except in cases of forest operations for domestic use pursuant to the

Forestry Act.

6. Information Gathering Process

In May 2003, the Secretariat began the process of preparing a factual record. The Secretariat sought to obtain information on Mexico’s

initiatives and actions to enforce its environmental law with respect to

the citizen complaints covered by the factual record.

On 15 May 2003, the Secretariat made public an Overall Plan to

Develop a Factual Record (Appendix 2). It retained the services of Ana

Córdova Vásquez to organize the information gathered by the Secretariat, identify gaps in the information, and compile governmental and

other information concerning Mexican government policies and initiatives relevant to the factual record. A native of Chihuahua State, Ms.

Vasquez holds a Bachelor’s degree in biology from Harvard University

as well as a Master’s degree and a Ph.D. in natural resources policy and

management from Cornell University. Her Master’s thesis focused on

opportunities, incentives and challenges in connection with collaborative natural resource and land use planning in the Sierra Tarahumara.

In accordance with NAAEC Articles 15(4) and 21(1)(a), on 10 September 2003, the Secretariat requested from Mexico relevant information in its possession for preparation of the factual record (Appendix 3)

(the “Request for Information”). Likewise, the Secretariat invited the

other two NAAEC Parties and the Joint Public Advisory Committee to

provide relevant information. The Secretariat identified persons and

nongovernmental organizations who may possess relevant information,

including the Submitter, and invited them to provide information before

30 November 2003.

Based on the information provided by Mexico on 2 December 2003

in response to the Request for Information, on 20 January 2004 the Secretariat sent Mexico a request for additional information (Appendix 4) (the

“Request for Additional Information”), asking that Mexico respond

before 13 February 2004. Mexico responded on 19 February 2004.

On 10 June 2004, the Secretariat sent Mexico a follow-up information

request (Appendix 5) (the “Follow-Up Information Request”). Mexico

responded on 8 July 2004.

Appendix 6 of this factual record presents a table containing a list

of all the cases covered by the factual record, the Secretariat’s corre26 FACTUAL RECORD: TARAHUMARA SUBMISSION
sponding questions to Mexico, and Mexico’s responses to those questions. Appendix 7 contains a list of documents received or gathered by

the Secretariat for the development of the factual record.

In October 2003, a legal officer from the CEC Secretariat traveled to

Chihuahua to gather information for the factual record. She and her consultant, Ana Córdova Vásquez, visited the communities of Ciénega de

Guacayvo and Cuiteco, and met with members of the communities

of Rochéachi and Pino Gordo at the Cosyddhac offices in Chihuahua

City. They also met with federal and state representatives of Profepa,

Semarnat, CNA (Comisión Nacional del Agua—National Water Commission) and the PGR (Procuraduría General de la Republica—Federal

Attorney General’s Office) at the Profepa offices in Chihuahua City.

Information gathered during these meetings is summarized below,

in sections 8 and 9.

NAAEC Article 15(5) stipulates that “the Secretariat shall submit a

draft factual record to the Council. Any Party may provide comments on

the accuracy of the draft within 45 days thereafter,” and Article 15(6)

stipulates that “the Secretariat shall incorporate, as appropriate, any

such comments in the final factual record and submit it to the Council.”

The Secretariat submitted the draft factual record to the Council on

6 April 2005 and received comments from Mexico and the United States

on 24 May 2005. Canada did not comment on the draft factual record.

7. Legal Context

Submission SEM-00-006 (Tarahumara) focuses on the processing,

by Mexico’s federal environmental authorities, of citizen complaints

(denuncias populares) and complaints of criminal offenses filed by indigenous communities of the Sierra Tarahumara in the state of Chihuahua in

1998–2000, regarding alleged violations of federal law in connection

with natural resources management, particularly illegal logging. This

section of the factual record contains background information relevant

to an understanding of the information presented below, in sections 8

and 9, and to a consideration of whether or not, in the cases covered by

the factual record, Mexico is failing to effectively enforce the LGEEPA

and CPF provisions cited in the submission. The information is presented under two headings: rights of indigenous peoples and communities in Mexico, and the citizen complaints process.

LEGAL CONTEXT 27
7.1 Rights of Indigenous Peoples and Communities in Mexico

This subsection presents background information concerning

indigenous rights in the Sierra Tarahumara under Mexican law at the

federal and state level (Chihuahua), in particular as regards access to

environmental justice and natural resources management. Because the

citizen complaints covered by the factual record were filed by or on

behalf of indigenous communities, and because the complaints concerned natural resources issues (mainly illegal logging), information

regarding the constitutional and statutory framework for indigenous

rights – in particular in connection with natural resources management –

in Mexico is relevant to understanding the factual context for law

enforcement in regard to the complaints covered by the factual record.

Reference to constitutional and statutory provisions other than the provisions cited by the Submitter in the submission is for background information purposes only. This factual record is not intended to present

information regarding whether Mexico is failing to effectively enforce

constitutional or statutory provisions not cited in the submission.

7.1.1 Federal Level

This section provides a summary overview of federal constitutional and legislative provisions related to indigenous rights as regards

access to justice, territory, and natural resources management.

7.1.1.1 Constitutional Provisions

In January 1996, in a set of agreements known as the “San Andrés

Accords,”10 the Mexican federal government made a series of commitments to Mexico’s indigenous peoples intended to redefine the relationship between indigenous peoples and the federal government.11

Commitments include recognizing indigenous peoples in the Constitution, expanding political participation and representation, and guaranteeing full access to justice.12 The San Andrés Accords stipulate the

following:

28 FACTUAL RECORD: TARAHUMARA SUBMISSION

10. Agreement signed in San Andrés de Larráinzar, Chiapas on 16 February 1996, during the second part of the closing plenary for theme no. 1 “Indigenous Rights and

Culture within the framework of the dialogue between the EZLN [Ejército Zapatista

de Liberación Nacional—Zapatista National Liberation Army] and the federal government to achieve an Agreement for Peace with Justice and Dignity”; online:

EZLN www.ezln.org (date viewed: 10 February 2004).

11. These agreements were adopted following an uprising of indigenous peoples in

the State of Chiapas on 1 January 1994.

12. San Andrés Accords, supra, note 10, Document 1: “Pronunciamiento Conjunto

que el Gobierno Federal y el EZLN enviarán a las Instancias de Debate y Decisión
It is proposed to the Congress of the Union and the Legislatures of the

states of the Republic that they recognize and establish the characteristics

of self-determination and the levels and modes of autonomy, taking note

that this entails:

a) Territory. Every indigenous people is settled on a territory that covers

the entire habitat occupied or used by the indigenous people in one

form or another. The territory is the material basis of their reproduction as a people and it expresses the indivisible unity of people, land,

and nature.

b) Scope of application. Jurisdiction is the spatial, material and personal

normative field of validity in which the indigenous people apply their

rights. The Mexican State will recognize the existence of said rights.

c) Responsibilities. There must be a coherent distribution of powers

among the various federal, state and municipal authorities, as well as

a distribution of political, administrative, economic, social, cultural,

educational, judicial, and natural resource management and protection competencies among these Mexican governmental authorities,

that make it possible to respond to the demands of indigenous peoples in a timely manner. Furthermore, it will be necessary to specify

the powers, duties, and resources that are transferable to the indigenous communities and peoples under the criteria set out in section 5.2

of the document entitled “Joint Statement”,13 as well as the various

forms of participation by the communities and peoples vis-à-vis the

government authorities, so that they may interact and coordinate

their actions with them, particularly at the municipal level [...]14

LEGAL CONTEXT 29

Nacional” (Joint Statement that the Federal Government and the EZLN will table

with the National Deliberative and Decision-making Bodies).

13. Ibid. “5. The establishment of a new relationship between the indigenous peoples

and the State takes as its necessary point of departure the building of a new legal

framework for the nation and the federated entities. The Federal Government

hereby undertakes to further the following actions: ... 2. The recognition of the communities in national law as entities of public law, the right of free association in

municipalities with majority indigenous populations, and the right of various

municipalities to form associations in order to coordinate their actions as indigenous peoples. The competent authorities shall carry out the orderly and gradual

transfer of resources such that they themselves may administer the public funds

allocated to them and in order to strengthen indigenous participation in the governance, management, and administration of their various spheres and levels. It is

the responsibility of the state legislatures to determine, as applicable, the duties

and powers transferable to them.”

14. Ibid. Document 2: “Propuestas Conjuntas que el Gobierno Federal y el EZLN

se Comprometen a Enviar a las Instancias de Debate and Decisión Nacional,

Correspondientes al Punto 1.4 de las Reglas de Procedimiento” (Joint Proposals

that the Federal Government and the EZLN Undertake to Table with the National

Deliberative and Decision-making Bodies, Corresponding to Point 1.4 of the Rules

of Procedure) (18 January 1996).
Based on the San Andrés Accords, on 20 November 1996, the Peace

Commission (Comisión de Concordia and Pacificación—Cocopa) of the

Congress of the Union proposed a series of constitutional reforms on

indigenous matters. In August 2001, President Vicente Fox decreed a

set of constitutional reforms on indigenous matters.15

Article 2 of the Mexican Constitution now defines who are the

indigenous peoples of Mexico. It specifies that they are people

descended from populations living on what was the territory of the

country when colonization began who have preserved their social, economic, cultural, and political institutions in whole or in part. The Constitution provides that personal awareness of indigenous identity is a

fundamental criterion in identifying indigenous people. It specifies that

the constituent communities of an indigenous people are those that form

a social, economic, and cultural unit; are located on a territory; and recognize their own authorities in accordance with their customs. Article 2

reads in part as follows:

The right of indigenous peoples to self-determination shall be exercised

within a constitutional framework of autonomy that preserves national

unity. Recognition of indigenous peoples and communities shall be

enshrined in the constitutions and laws of the federated entities, which

30 FACTUAL RECORD: TARAHUMARA SUBMISSION

15. Constitutional reform decree of 14 August 2001; online: EZLN http://www.ezln.

org/san_andres/index.html (date viewed: 10 February 2004). See also “Cuadro

comparativo de la Iniciativa de la Cocopa, las observaciones del gobierno de

Zedillo, y el Dictamen de Ley Indígena aprobado por voto unánime en el Senado el

25 de abril del 2001” (Chart comparing the Cocopa proposal, the comments of the

Zedillo government, and the Indigenous law approved by a unanimous vote of

the Senate on 25 April 2001); online: EZLN <http://www.ezln.org/san_andres/

cuadro010430.html> (date viewed: 10 February 2004). There was opposition by

indigenous peoples and communities to the constitutional reforms of 2001, on procedural grounds (citing, inter alia, the alleged failure to consult with indigenous

peoples during the drafting of the reforms in violation of Mexico’s commitments

under ILO Convention 169) and substantive grounds. See “Los Pueblos Indígenas

de Nuevo Ante la Suprema Corte,” online: Asociación Social de los Jesuitas en

México

<http://www.sjsocial.org/PRODH/especiales/cronologia_indigena/Pronuncia

miento%20segundo%20encuentro%20autoridades_27.pdf> (date viewed: 12 February 2004). On these grounds, indigenous communities and peoples filed more

than 300 constitutional challenges concerning the 2001 reforms with the Supreme

Court of the Nation, but the Court dismissed them on 16 September 2002, ruling

that it lacked the jurisdiction to hear them. Online: Suprema Corte de Justicia de

la Nación, “Acelera SCJN Análisis de Controversias por Reformas Constitucionales Indígenas” (Communique no. 451, 18 September 2001), “Resuelve SCJN

Controversias Constitucionales en Materia Indígena” (Communique no. 555, 6

September 2002)

<http://www.e-mexico.gob.mx/wb2/eMex/eMex_ Suprema_Corte_de_

Justicia_de_la_Nacion2> (date viewed: 12 February 2004).
shall, in addition to general principles established in the preceding paragraphs of this article, take account of ethnolinguistic criteria and physical

existence on the territory.

Article 2 further provides, in paragraph A, that

[t]his Constitution recognizes and guarantees the right of indigenous peoples and communities to self-determination and, consequently, autonomy

for the purposes of:

[...]

II. Applying their own normative systems to the regulation and resolution

of their internal conflicts, subject to the general principles of this Constitution and with respect for individual guarantees, human rights and, significantly, the dignity and integrity of women. The law shall establish the

cases and procedures for validation by the appropriate judges or tribunals.

[...]

V. Conserving and improving the habitat and preserving the integrity of

their land, subject to the terms of this Constitution.

VI. Subject to the forms and modes of property ownership and landholding established in this Constitution and the applicable laws as well as

any rights acquired by third parties or community members, having preferential use and enjoyment of the natural resources of the places inhabited

and occupied by the communities, except those corresponding to strategic

areas as defined by this Constitution. For such purposes, communities

may form associations as prescribed by law.16

VII. Electing municipal representatives in municipalities with indigenous

populations.

VIII. Having full access to the jurisdiction of the State. To guarantee this

right, in all trials or proceedings to which they are party, whether individually or collectively, their customs and cultural specificities shall be taken

into account, subject to the precepts of this Constitution. At all times,

indigenous people are entitled to be assisted by interpreters and defenders

who have knowledge of their language and culture.

LEGAL CONTEXT 31

16. On 14 August 2001, Article 115 of the Constitution was also amended, with the

addition of the following as its last paragraph: “The indigenous communities,

within the municipal sphere, may coordinate and form associations among themselves under the terms and for the purposes provided by law.”
The constitutions and laws of the federated entities shall establish the

characteristics of self-determination and autonomy that best express the

situations and aspirations of the indigenous peoples in each entity as well

as the criteria for recognition of indigenous communities as entities of

public interest.

[...]

Article 2, paragraph B of the Constitution requires the federal,

state, and municipal governments to create the institutions and adopt

the policies necessary to guarantee the effectiveness of indigenous peoples’ rights and the full development of their peoples and communities.

Specific obligations include:

[...]

VII. Supporting the productive activities and sustainable development of

indigenous communities by means of actions enabling them to achieve

sufficient revenues, incentives to public and private investment promoting employment creation, incorporation of technologies to increase their

productive capacity, and assurance of fair access to supply and marketing

systems.

[...]

Pursuant to Article 27 of the Constitution, the rights of indigenous

peoples and communities in Mexico in connection with landholding,

management of forest resources and forms of governance are agrarian

rights, not indigenous rights per se. Article 27 of the Constitution is

reproduced in Appendix 8 of this factual record. The following paragraphs are of note:

[...]

VII. The legal personhood of ejido and comunidad settlements is hereby

recognized and their ownership of the land is protected, for purposes of

both human habitation and productive activities.

The law shall protect the integrity of the lands of indigenous groups.

The law, considering respect for and strengthening of the community life

of ejidos and communities, shall protect the land for human habitation,

shall regulate the use of shared lands, forests, and waters, and shall take

the necessary development measures to raise the standard of living of

their inhabitants.

32 FACTUAL RECORD: TARAHUMARA SUBMISSION
The law, with respect for the will of ejido and comunidad residents to adopt

the conditions most suited to them in making use of their productive

resources, shall regulate the exercise of the rights of comunidad residents to

the land and the right of each ejido resident to his lot of land. Furthermore,

it shall establish the procedures whereby ejido and comunidad residents

may form associations among themselves, with the state, or with third

parties and grant the use of their lands; and, concerning ejido residents,

assign their land rights among members of a settlement. In like manner it

shall establish the requirements and procedures whereby the ejido assembly may grant to an ejido resident dominion over his lot. In the case of alienation of lots, the right of preference provided by law shall be respected.

[...]

The general assembly is the sovereign authority of the ejido or comunidad,

with its organization and duties as provided by law. The ejido council,

democratically elected as prescribed by law, is the representative body of

the settlement and is responsible for carrying out the decisions of the

assembly.

The return of lands, woodlands, and waters to the settlements shall take

place in accordance with the regulatory law; [...]

[...]

XX. The State shall foster the conditions of comprehensive rural development with the purpose of generating employment and guaranteeing the

well-being of the peasant population and its participation and incorporation into national development, and shall, with works of infrastructure,

supplies, credit, training services and technical assistance, promote agriculture, livestock production, and forestry activities for the optimal use of

the land. In addition, it shall enact the implementing legislation necessary

to plan and organize agriculture and livestock production activities, their

industrialization, and their commercialization, considering them to be

activities of public interest.

7.1.1.2 Relevant Federal Statutory Provisions Regarding Indigenous

Peoples

The Agrarian Act17 [Ley Agraria], the Forestry Act [Ley Forestal]18

and the LGDFS19 [Ley General de Desarrollo Forestal Sustentable—General

Sustainable Forest Development Act], and the LGEEPA contain specific

LEGAL CONTEXT 33

17. Published in the DOF (Diario Oficial de la Federación—Official Gazette of the Federation) on 26 February 1992.

18. Published in the DOF on 20 May 1997.

19. Published in the DOF on 25 February 2003.
provisions, relevant to this factual record, relating to the rights of indigenous peoples and communities.

The Agrarian Act provides for the protection of lands of indigenous groups and for consideration by the courts of the customs of indigenous groups in proceedings involving their land.20

Until 2003, forest management in Mexico was governed by the

federal Forestry Act. As implementing legislation for Article 27 of the

Constitution, the purpose of the Forestry Act was to regulate the conservation, protection, restoration, exploitation, management, cultivation,

and production of the country’s forest resources with a view to furthering sustainable development.21 Within this purview, the Forestry Act

was intended to contribute to the socioeconomic development of indigenous communities by fostering modernization of forestry activities;

employment opportunites for indigenous communities; participation of

indigenous peoples and communities in the protection, conservation,

and sustainable use of the forest resources existing on the territories

belonging to them; and consideration of the traditional knowledge of

indigenous peoples in forest activities.22 The Forestry Act further provided that third parties seeking forestry authorizations on land owned

by an ejido or an indigenous community had to provide proof that the

landowner consented to the proposal.23 Further, the Act called for the

involvement of ejidos, indigenous communities, and other legitimate

forest owners and operators in silviculture and the processes of forestry

production, processing, and marketing,24 and it promoted the dissemination, use, and recognition of traditional cultural methods and practices of sustainable forestry by indigenous communities.25

34 FACTUAL RECORD: TARAHUMARA SUBMISSION

20. Art. 106.- The lands of indigenous groups shall be protected by the authorities as

prescribed by the Law that regulates Article 4 and the second subparagraph of

paragraph VII of Article 27 of the Constitution.

Art. 107.- All the provisions of this Law applicable to ejidos also apply to communities, where such application does not contravene the provisions of this chapter.

Art. 164.- In resolving disputes put before them, the courts shall always follow the

procedure provided by this Law, and a written record of the proceeding shall be

produced. [...] In proceedings involving the land of indigenous groups, the courts

shall consider the customs of each group provided that they do not contravene the

provisions of this Law nor affect the rights of third parties. Furthermore, where

necessary, the court shall ensure that indigenous people are provided with translators. [...] The courts shall make up for deficiencies in statements of claim where

ejidos or communities or their members are involved.

21. Art. 1 of the Forestry Act.

22. Ibid. art. 1 III, IV, and VIII.

23. Ibid. art. 19, bis 4.

24. Ibid. art. 33 I.

25. Ibid. art. 41 III.
The main purpose of the LGDFS, enacted in 2003, is to regulate and

promote the conservation, protection, restoration, exploitation, management, cultivation, and production of the country’s forest resources as

well as to distribute authority over forest matters among the federal,

state, and municipal governments, with a view to furthering sustainable

development and ensuring compliance with Article 2 of the Constitution regarding indigenous rights.26

Under the LGDFS, Conafor [Comisión Nacional Forestal—National

Forest Commission] is responsible for working with state and local governments to provide assistance and training to indigenous communities

to carry out forest management on their lands,27 and to help with the

development of forest management plans when an indigenous community does not have the financial means to do so.28 The LGDFS provides

that Mexican forest policy must respect the traditional knowledge, culture and traditions of indigenous peoples and communities, as well as

provide for their participation in the development and implementation

of forest programs in the areas where they live, in accordance with applicable laws.29 Conserving the biodiversity of forest ecosystems, along

with preventing and fighting theft and illegal harvesting of forest

ecosystems, especially in indigenous communities, is a mandatory

environmental criterion of forest policy.30 Third parties wishing to carry

out forest management activities on indigenous lands must obtain the

agreement of the local assembly, as provided in the Agrarian Act.31

The content of forest management authorizations issued to indigenous

communities must be translated into local languages or explained to

indigenous communities.32 Semarnat must monitor forest management

activities to verify compliance with indigenous rights recognized by

law.33 Semarnat must suspend forest management authorizations in

cases where there is a pending dispute regarding the ownership or

possession of forest lands before a competent authority or body.34 The

LGDFS provides that the provisions of the LGEEPA are suppletive to

those of LGDFS for all matters not directly addressed by the LGDFS.35

LEGAL CONTEXT 35

26. Art. 1 of the LGDFS.

27. Ibid. art. 22 XVIII, XXI.

28. Ibid. art. 109.

29. Ibid. art. 31 I.

30. Ibid. art. 33 X.

31. Ibid. art. 63.

32. Ibid. art. 72.

33. Ibid.

34. Ibid. art. 65 II.

35. Ibid. art. 6.
The LGEEPA36 provides that “areas of importance for the recreation, culture, and national identity of the indigenous peoples” may be

designated as natural protected areas37 and calls for the participation of

indigenous peoples in the establishment, administration and management of those areas.38 This includes the opportunity for indigenous peoples to apply to the government “to establish natural protected areas on

their own land or under contracts with third parties, where the areas in

question are intended for the preservation, protection, and restoration of

biodiversity.”39 The LGEEPA also requires all levels of government to

give indigenous peoples preference to carry out works or activities in

natural protected areas in accordance with the LGEEPA and related declaration management programs.40 The federal government may also

entrust administration of management programs for certain natural protected areas to indigenous peoples, in accordance with the LGEEPA and

under federal supervision.41

The LGEEPA requires consideration of traditional biological

knowledge and participation of indigenous peoples in the development

of biodiversity programs for the preservation and sustainable exploitation of wild flora and fauna in areas where indigenous peoples live.42

Finally, it requires the involvement of indigenous peoples in the planning, execution, evaluation and monitoring of all aspects of environmental and natural resources policy.43

7.1.2 State Level

This section provides information regarding recognition of indigenous rights at the State level, in the state of Chihuahua.

Article 2 of the federal Constitution provides in part:

The constitutions and laws of the federated entities shall establish the

characteristics of self-determination and autonomy best expressing the

status and aspirations of the indigenous peoples in each entity as well as

the criteria for recognition of indigenous communities as entities of public

interest.

36 FACTUAL RECORD: TARAHUMARA SUBMISSION

36. Published in the DOF on 13 December 1996.

37. Art. 45 VII of LGEEPA.

38. Ibid. art. 47.

39. Ibid. art. 59.

40. Ibid. art. 64 bis 1.

41. Ibid. art. 67.

42. Ibid. art. 79 X.

43. Ibid. arts. 157-58.
Since 1994,44 Chapter II (“Indigenous Peoples”) of Title II (“Rights

of the Governed”) of the Political Constitution of the Free and Sovereign

State of Chihuahua (“Constitution of Chihuahua”) reads as follows:

[...]

Article 8.- In any civil or criminal proceeding, where any of the parties is

indigenous, the authorities shall take account of his customs and legal

practices.

In the punishment of offenses committed in indigenous communities

between members of the same people, the methods and institutions used

traditionally by the people in question shall be respected. The law shall

make all jurisdictional and other provisions necessary to give force and

effect to this precept.

Article 9.- Pursuant to law, lands belonging to indigenous peoples are

inalienable without temporal limitation. Any alienation of or encumbrance upon lands or waters belonging to the indigenous peoples shall

adhere to the provisions of the law and, in particular, shall obey the customs and legal practices of said peoples, which shall be compiled, recognized, guaranteed, and regulated by the applicable civil laws of the State

of Chihuahua.

Article 64 of Chapter II (“Investiture and Operation of Congress”)

of Title VII (“The Legislative Branch”) of the Constitution of Chihuahua

provides as follows:

Article 64.-The following are powers of Congress: [...] The enactment of

laws for the full development of the indigenous peoples, subject to consultation with them. In addition, said peoples may appoint a representative

to Congress when such laws are debated, under the terms of Article 53 of

this Constitution [...]

In 1995 and 1998, the Indigenous Affairs Commission of the

Congress of the State of Chihuahua embarked on a series of public

consultations around two proposed drafts of a law to regulate the rights

of indigenous peoples and communities in the State of Chihuahua.

Neither of these proposals has yet been formally enacted by the state

legislature.45

LEGAL CONTEXT 37

44. See Decree no. 403–94 published in the Official Gazette of the State of Chihuahua,

no. 79, on 1 October 1994.

45. “Legislación sobre Derechos Indígenas,” in Culturas Indígenas de la the Sierra Tarahumara. F.d.E.C. Programa Interinstitucional de Atención al Indígena (PIAI), A.C. Chihuahua, México, Electronic Publishing, S.A. de C.V. (CD-ROM, 1999).
7.1.3 United Nations Report on the Situation of Indigenous Peoples

in Mexico

In June 2003, the UN Special Rapporteur on the situation of

human rights and fundamental freedoms of indigenous peoples,

Rodolfo Stavenhagen, undertook an official mission to Mexico. In

December 2003, his report on the situation of indigenous peoples in

Mexico was submitted to the UN Commission on Human Rights. The

report noted that “the Government of Mexico, the Special Rapporteur’s

country of origin, was the first to invite the Rapporteur to visit.”46

The report states:

The 70 years of political control exercised by the Institutional Revolutionary Party (PRI) up to the election of President Vicente Fox Quezada in

2000, brought the institution of strong oligarchies, often accused of municipal and State nepotism and corruption. Agribusiness interests, together

with the growing concentration of land in the hands of big business, put

pressure on the communities which were increasingly unable to survive

on the produce of their land. In 1992 the Constitution was reformed,47

opening the way to the privatization of indigenous communal lands as

part of a globalization-encapsulating economic development process,

including the North American Free Trade Agreement, which has brought

great changes to the rural world in which most indigenous people live.

38 FACTUAL RECORD: TARAHUMARA SUBMISSION

46. United Nations Economic and Social Council, Report of the Special Rapporteur

on the situation of human rights and fundamental freedoms of indigenous peoples, Rodolfo Stavenhagen, UN Doc. E/CN.4/2004/80/Add.2 (1 December 2003)

(“Report of the UN Special Rapporteur”). “This report on the situation of indigenous peoples in Mexico is based on information received from various sources and

on interviews with federal, state and municipal leaders and representatives of

indigenous communities, human rights associations and nongovernmental organizations. [...] The Special Rapporteur visited Chihuahua, Sonora, Jalisco, Oaxaca,

Chiapas, Guerrero and the Federal District where he held consultations with government authorities at the federal, state and municipal levels. In Mexico City he

met Mr. Vicente Fox Quezada, President of the Republic; Mr. Santiago Creel, Minister of the Interior; Mr. Víctor Lichtinger, Minister of the Environment; Mr.

Florencio Salazar, Minister of Agrarian Reform; Dr. Isaías River, Agrarian Procurator; Ms. Xóchitl Gálvez Ruiz, Director of the National Commission for the Development of Indigenous Peoples; Mr. Luis H. Álvarez, Coordinator for Dialogue and

Peace in Chiapas; Ms. Mariclaire Acosta, Under-Secretary for Human Rights and

Democracy of the Ministry of Foreign Affairs; Mr. Herbert Taylor, General Coordinator of the Puebla Panama Plan; and deputies and senators on the Commission on

Indigenous Affairs and the Peace and Concord Commission (COCOPA) of the

Mexican Congress. [...] In his visit to the various states, the Special Rapporteur held

meetings, inter alia, with Tarahumara authorities in Chihuahua [...]”

47. See Art. 27 of the Constitution, Appendix 8 of this factual record.
Regarding priority concerns for indigenous peoples in Mexico, the

Special Rapporteur wrote:

18. Peasant struggles for land and resources have been made more acute

by the ambiguities of agricultural rights and title deeds, disagreements as

to the limits between ejidos, communities and private properties, conflicts

over the use of collective resources such as forests and water, illegal

encroachment on and occupation of communal land by loggers, stockbreeders and private farmers, accumulations of property in the hands of

local caciques (bosses), etc. The defense of the land, initially by institutional, judicial and political means, may lead to clashes with other peasants or with private owners, public authorities and the forces of order

(police, military).

19. [...] The National Human Rights Commission [of Mexico] concludes

that agrarian affairs suffer from a systematic failure to enforce and dispense justice, delays in procedures for resolving conflicts, slow court procedures and rulings with inherent defects, seriously affecting the right of

communities to land and increasing the risk of a socially explosive situation.48

He added:

[...] the forest resources of many communities (Tepehuanes in Durango,

Tarahumaras in Chihuahua, Huicholes in Jalisco, etc.) are frequently

exploited by private economic interests with the connivance of agricultural and political authorities. The protection of the environment and

natural resources has in recent years mobilized numerous indigenous

organizations and communities throughout Mexico to confront local

caciques (the official or de facto authorities who arbitrarily wield economic

and/or physical power). Some indigenous defenders of resources and the

environment have been persecuted and harassed for their activities [...]49

He concluded:

Present state policy towards indigenous peoples is designed to produce

negotiated solutions to conflict “hot spots”, to promote and support productive activities and to provide various social services to the communities. It does not depart significantly from the trend that has characterized

indigenous policy for more than half a century, but it is very much

restricted by the limitations and cuts in the public budget and the clear fact

that the problem of the indigenous peoples is not one of high priority for

the Mexican State.50

LEGAL CONTEXT 39

48. Report of the UN Special Rapporteur at 7-8.

49. Ibid. at 10.

50. Ibid. at 21.
7.2 The Citizen Complaints Process

The citizen complaint procedure set out in LGEEPA Articles

191–199 can be summarized as follows:

• Upon receiving a citizen complaint, the authority must issue a decision allowing or dismissing the complaint or joining it to other complaints and must notify the complainant of this decision within the 10

days following the filing of the complaint.

• Where the facts complained of are not within the jurisdiction of the

authority which received the complaint, that authority must refer the

complaint to the competent authority. This entails the following:

acknowledging receipt of the complaint (without acknowledging

jurisdiction over it); referring the complaint to the competent authority for the latter to decide upon and resolve it; and notifying the complainant that the complaint was referred to the authority in question

in a fully articulated and reasoned decision.

• Where the authority acknowledges jurisdiction over the complaint, it

must notify the complainant that the complainant may submit documents and evidence within 15 working days.

• The authority must investigate the facts, acts, or omissions, conducting the necessary procedures and initiating any relevant inspection

and surveillance procedures as well as any applicable administrative

proceedings ensuing therefrom.

• The complainant may assist the authority, who must, in resolving the

complaint, indicate how it took into account information provided by

the complainant.

• The authority must notify the complainant if it concludes that the

facts, acts, or omissions complained of do not cause or potentially

cause ecological imbalance or harm to the environment or natural

resources or contravene the law, and the complainant may then submit comments in response.

The LGEEPA makes Semarnat responsible for the implementation

and enforcement of the citizen complaint process. Semarnat has delegated that function to Profepa. Profepa’s enforcement powers under the

LGEEPA are limited to imposing administrative sanctions.

In its Request for Additional Information (see above, section 6), the

Secretariat made a detailed request for information regarding follow-up

to matters covered by citizen complaints referenced in the submission

40 FACTUAL RECORD: TARAHUMARA SUBMISSION
(see Appendix 4, s. 5). In response, on 19 February 2004, Mexico sent the

Secretariat a copy of a December 2002 report prepared by a consulting

firm for Profepa assessing the social impact of the LGEEPA citizen complaint procedure (the “Media Comunicación Report”).51

The Media Comunicación Report was commissioned by Profepa

pursuant to its 2001–2006 Program for Achieving Environmental Justice

and in recognition of growing public demands for accountability in the

citizen complaints process, not only as regards the processing of complaints, but also as regards resolution of the underlying environmental

problem.52 The objective, in commissioning the report, was to establish

indicators to allow for ongoing monitoring of Profepa’s performance in

the future.53

The Media Comunicación Report explains that the government’s

strategy in regard to promoting and enforcing compliance with environmental law is part of a larger effort to consolidate and expand the rule

of law across the country.54 The report notes that despite progress

achieved, compliance with environmental laws remains limited, and it

recommends three strategic directions: 1) expand coverage of inspections and surveillance operations, particularly in the area of natural

resources; 2) tie enforcement action to the achievement of defined environmental objectives; and 3) create fora for public participation to complement government enforcement action.55

In regard to the first strategic direction, the report states:

Regarding the objective of expanding coverage of inspection and investigation activities, this is particularly urgent in regard to natural resources.

While the spectrum of industrial activities is reasonably well covered,

when it comes to enforcing the law in connection with fisheries, forestry

and wildlife activities, there are significant shortcomings.56

The report notes that public involvement is a key element in promoting compliance with the law and achieving descentralization of

enforcement functions, and it underscores the importance of access to

information rights in enabling public participation.57 It states that since

LEGAL CONTEXT 41

51. Media Comunicación, S.A. de C.V., “Evaluación del Impacto Social de la Denuncia Popular” (27 December 2002).

52. Ibid. at 1.

53. Ibid. at 2.

54. Ibid. at 5.

55. Ibid. at 5-6.

56. Ibid. at 6.

57. Ibid. at 7, 10.
1996, Profepa has taken measures to expedite the processing of citizen

complaints, making it possible to: a) provide an effective, efficient, and

timely response to complainants, regardless of whether Profepa has

jurisdiction over the matter complained of; b) bolster compliance with

environmental laws through timely action by authorities from all three

levels of government; c) become aware of environmental problems as

identified by Mexican society; and d) identify policies and strategies to

address the most recurrent and serious problems.58 This information,

taken together with information contained in sections 8 and 9, below, is

relevant to a consideration of whether Mexico is failing to effectively

enforce its environmental law in the cases covered by the submission

which are included in this factual record.

In evaluating the effectiveness of the citizen complaint process, the

authors of the Media Comunicación Report consulted Profepa’s online

inventory of citizen complaints, which contained 44,216 files covering

the period 1992–2001.59 They narrowed the scope of investigation to the

period 1999–2001, and to the six states having received the highest

number of complaints.60 They then retained only those files that were

closed.61 From those files, they determined sample sizes using a pre-set

formula, resulting in a survey sample of 368 citizen complaints.62 A

13-question survey was administered with the object of evaluating

respondents’ perceptions of Profepa’s handling of their complaints.63

Questions sought to determine respondents’ familiarity with the process, their satisfaction regarding the handling of their file, and their suggestions for improving the process.64 Responses showed that timeliness

was an issue (61 % of files were opened after the 10-day statutory period,

and 41 % of respondents stated that the timing of the processing of their

complaint was “deficient”65). Approximately a third of respondents

stated that the matter complained of was not resolved as a result of their

complaint having been filed.66 The report does not indicate whether

there was any correlation between satisfaction levels and the subject

matter of the complaint (ie. industrial activities vs natural resources

management). 89 % of respondents indicated that should the occasion

arise, they would again file a citizen complaint.67

42 FACTUAL RECORD: TARAHUMARA SUBMISSION

58. Ibid. at 23.

59. Ibid. at 36.

60. Ibid. Nuevo León; Colima; Jalisco; Federal District; Veracruz; Quintana Roo.

61. Ibid. at 37.

62. Ibid. at 37-8.

63. Ibid. at 39.

64. Ibid. at 41-51.

65. Ibid. at 43-4.

66. Ibid. at 45-6.

67. Ibid. at 51.
The Media Comunicación Report provides more detailed information about “special cases” covered by the survey, cases which, according

to the authors, required recourse to complicated enforcement measures

involving concerted action.68Of the eight highlighted cases, six involved

natural resources management. Of those, five involved illegal logging

and one involved sawmills.69 The authors of the Media Comunicación

Report provided comments on three of those cases. In the first, Profepa

responded to a complaint by a citizens group by stopping the illegal logging and levying fines against several sawmills in the area.70 In another,

involving a complaint filed by the Audubon Society of Illinois with

president Vicente Fox regarding illegal logging in the Monarch Butterfly Reserve, no sanctions were imposed. The authors of the Media

Comunicación Report commented on the complexity of the problem, noting that institutional measures adopted recently have helped to stem

illegal logging and pointing to the role of international environmental

organizations in helping to monitor development activities.71 In

the third case, a journalist called into question permitting practices in

connection with a number of sawmills located in the foothills of the

Izta-Popo volcanos.72 The authors of the Media Comunicación Report

observed that Izta-Popo is one of the most representative examples of a

conflict area, a “hot point” facing Semarnat, Profepa and Conafor. The

complaint led to a reassessment of sawmills in three states, as well as forest management and related authorizations, and resulted in concerted

actions along with administrative and penal proceedings. The authors

comment that “[t]he citizen complaint served to reinforce action by

Profepa because Profepa was not seen as acting on its own initiative,

which could have led to claims of abuse of power. Action by the institution responded to a citizen complaint and to a demand from society.”

The Media Comunicación Report contains an analysis of Profepa’s

citizen complaints database, with a view to determining whether variables entered into the database allow for ongoing performance monitoring.73 The authors note that the database sorts complaints as follows:

those that have been received, those being processed, and those for

which the file has been closed.74 They conclude that the database does

not contain proper indicators for measuring Profepa’s performance, in

part because the database qualifies as “closed” files which, upon receipt,

LEGAL CONTEXT 43

68. Ibid. at 52.

69. Ibid. at 52-7.

70. Ibid. at 52-3. Cofre de Perote, Veracruz, File no. 001/019/30 057 (019610).

71. Ibid. at 54-5. Mariposa Monarca, File no. E369-2002; OAI-515-02.

72. Ibid. at 55. Izta-Popo, File no. 907/092/15, registered 30 July 1999.

73. Ibid. at 63-4.

74. Ibid. at 75.
were turned over to another agency for processing.75 They recommend

reclassifying complaints as follows: those that were resolved, meaning

sanctions or corrective measures were imposed; and those that were

referred to another agency with jurisdiction over the subject matter of

the complaint.76

The authors of the Media ComunicaciónReport conclude that the citizen complaints process is difficult for ordinary citizens to use, especially when the complaint is valid and requires immediate attention.77

They note that the legal framework is both incomplete and too complicated.78 According to the authors, acknowledging receipt within the

10-day statutory period is an unnecessary expense, since this acknowledgment does not force the agency to resolve the substance of the complaint within a set period of time.79 Processing times can be so long that

the reason for filing the complaint can cease to exist by the time the complaint is processed.80 Regarding inspections, the report notes:

There is a deficiency in the processing of complaints as regards inspections, either because of lack of consistency in field visits, or because inspectors claim that no irregularities were observed. This affects the morale of

complainants, who feel defrauded, not so much because of the failure to

address their complaint, but rather because of the failure to solve their

problem. This becomes a vicious cycle, because the complainant stops filing complaints when they do not lead to a solution, while the inspectors

stop inspecting because there are no complaints, with the attendant environmental costs.

The report notes that inspection activities involve the exercize of discretion, which must be done with caution, since complainants who see the

environmental problem persist will presume that there has been corruption.81 The authors observe that Profepa has successfully addressed this

issue by requiring two inspectors to attend inspections, or by having

complainants or local authorities accompany inspectors during inspections.82

The report states that in the course of the process, the flow of information to the complainant is slow, bad or nonexistent, because when a

complaint leads to an administrative proceeding, the complainant is

44 FACTUAL RECORD: TARAHUMARA SUBMISSION

75. Ibid.

76. Ibid.

77. Ibid. at 70.

78. Ibid. at 71.

79. Ibid. at 72.

80. Ibid. at 70.

81. Ibid. at 71.

82. Ibid. at 73.
completely excluded from the process until a final resolution is issued. A

final resolution can take years to reach, with the possibility that even

then, the complainant may not be notified of the resolution because

authorities claim that they are unable to locate the complainant.83 The

report also concludes that the private sector is failing to honour its environmental responsibilities, for three reasons: ignorance of the law, lack

of resources to comply with the law, and sometimes for monetary gain.84

It states that at the local level, there are organizational and operational

problems, vested interests, and a lack of ecological, urban and land use

planning, necessary infrastructure, equipment and services.85

The report observes that there is increasing awareness, throughout

society, of the need to progress toward sustainable development, associated with a growing willingness by citizens and local governments to

participate.86 It recommends implementing a large-scale training program at all levels within Profepa, focusing on the legal framework

underlying Profepa’s mandate, sensitization to the social situation of

complainants, and ways to capture and process information gathered

during inspections and surveillance operations.87 It also recommends

increasing public awareness of the right to appeal to the Auditor General

or the National Human Rights Commission for review in cases where

the agency commits irregularities.88

8. Mexico’s Enforcement of its Environmental Law in the Cases

Covered by the Factual Record

This section of the factual record presents general information on

all of the citizen complaints covered by the submission for which the

Secretariat recommended a factual record, as well as, for illustrative purposes, more detailed information regarding the complaints filed by the

indigenous communities of Ciénega de Guacayvo, Rochéachi, and Pino

Gordo.

8.1 Geographical Information

The State of Chihuahua is located in northwestern Mexico. It is

Mexico’s largest state. The Sierra Tarahumara mountain range is located

in the western part of the state. The communities living there are small

MEXICO’S ENFORCEMENT OF ITS ENVIRONMENTAL LAW 45

83. Ibid. at 72.

84. Ibid. at 70.

85. Ibid. at 71.

86. Ibid. at 72.

87. Ibid. at 74.

88. Ibid.
and often remote. The submission involves 19 communities distributed

among 8 municipalities. Figure 1 is a map of Mexico showing the location of the state of Chihuahua. Figure 2 shows the location of the communities that filed the complaints which are covered in the factual record.

Figure 1. Map of Mexico Locating the State of Chihuahua

46 FACTUAL RECORD: TARAHUMARA SUBMISSION
Figure 2. Map of the State of Chihuahua Showing Municipal

Boundaries

MEXICO’S ENFORCEMENT OF ITS ENVIRONMENTAL LAW 47
8.2 Enforcement of the Citizen Complaints Process89

In regard to the cases referenced in the submission, the Submitter

asserts that Mexico is failing to effectively enforce its environmental law

by failing to issue decisions on the admissibility of citizen complaints,

failing to process complaints within the time period prescribed by law,

failing to follow up on cases to ensure that the penalties imposed on the

violators were complied with, and/or failing to notify MPF of probable

environmental offenses.

Appendix 6 contains information regarding the processing of each

case for which the Secretariat recommended to Council the development of a factual record. The cases are grouped according to the assertions contained in the submission.90 For each case, the following are

identified: the complainant, the facts or incidents complained of, the status of the complaint as of February 2002, any delays or other problems in

processing the complaint, the Secretariat’s questions to Mexico in September 2003, Mexico’s response, and the Secretariat’s comments on

Mexico’s response. In general, Mexico responded to the Secretariat’s

questions by inserting its response directly into the “Response of Mexico” column of the table without sending the Secretariat any supporting

information. As for the CNA responses, Mexico sent the Secretariat a set

of documents from which the Secretariat extracted information for

inclusion in the table. On 20 January 2004, based on the information

received in response to the Request for Information (Appendix 3), the

Secretariat sent a Request for Additional Information to Mexico (Appendix 4). Information received from Mexico in response to these information requests is listed in Appendix 7.

The following is a synopsis of information gathered by the Secretariat regarding the citizen complaints covered by this factual record.

Of the 32 citizen complaints (or 28, if those subject to joinder are

counted as single cases), 20 were decided upon as to their admissibility

within a period exceeding 10 days, five cases were referred to another

authority in whole or in part, and seven were dismissed by Profepa. Seventeen resulted in the opening of administrative files. Of the 17 complaints for which an administrative procedure was undertaken, 16

resulted in orders of fines and/or corrective measures. In nine of the

17 cases in which corrective measures were ordered, some or all of the

measures were implemented. Reforestation was ordered in nine cases,

48 FACTUAL RECORD: TARAHUMARA SUBMISSION

89. With respect to submission headings A, F, R, S and T.

90. Each letter (e.g. K, L, M) corresponds to an assertion contained in the submission.
but only carried out in three, though by the ejido and not the person

found to have engaged in illegal activities. Where fines were imposed,

information about fine collection was not provided to the Secretariat.91

One of the assertions of the Submitter is that processing times for

citizen complaints do not comply with the requirements of the LGEEPA.

From beginning to end, the citizen complaints process established by the

LGEEPA is intended to take 40 working days. In addition, the LFPA,

whose provisions are suppletive to those of the LGEEPA, states that

all administrative procedures must be resolved within three months,

unless a law of general application provides otherwise.92 The complaints included in this factual record were processed within time

frames ranging from four months to 28 months, with the majority of files

closed within five to twelve months after the complaint was filed.

8.3 Enforcement of the Provisions on Investigation and Prosecution

of Probable Environmental Offenses

Article 202 of LGEEPA—found in the section of the LGEEPA establishing the citizen complaints process—states: “Profepa, within the

scope of its powers, may undertake the applicable actions before the

competent judicial authorities where it learns of acts, facts or omissions

that constitute violations of administrative or criminal laws.” In addition, the last paragraph of LGEEPA art. 169—found in the section of the

LGEEPA on inspections and surveillance operations—provides that “as

applicable, the federal authority shall notify the ministry responsible for

the investigation and prosecution of criminal offenses of the occurrence

of acts or omissions noted in the exercise of its duties that may represent

one or more offenses.” The Submitter asserts that matters about which

indigenous communities complained to Profepa in the cases covered by

the submission were not only punishable as administrative violations

under the LGEEPA, but were also offenses under CFP arts. 416, 418 and

419. The Submitter asserts that Profepa should therefore have notified

MPF of the facts underlying the complaints—pursuant to LGEEPA art.

202 or 169, and that MPF should have prosecuted the perpetrators.

When asked why Profepa did not refer to MPF the matters raised

in the complaints covered by the factual record, Mexico generally

responded that “the facts did not establish the existence of a criminal

offense” (see Appendix 6). There were five cases in which, according to

MEXICO’S ENFORCEMENT OF ITS ENVIRONMENTAL LAW 49

91. Additional information showing that the fines levied were in fact paid by the violators was requested but not provided. See Appendix 6. See also Appendix 4, s. 5.2.1.

92. See arts. 17 and 60 of the LFPA.
Mexico, environmental authorities did not notify MPF because they

involved irregularities considered as minor. There was one case in

which MPF did not become involved because Profepa did not conduct

an inspection and therefore never became aware of an environmental

offense. There was also one case in which MPF did not become involved

because Profepa’s administrative order was quashed on appeal. According to Mexico, there were 13 cases in which environmental authorities

filed a report of probable offenses with MPF. Finally, according to Mexico, there were two cases in which environmental authorities assisted

with complaints of criminal offenses filed by other parties. Despite

detailed requests for information from the Secretariat, Mexico did not

provide the Secretariat with any supporting information regarding the

involvement of MPF in any of the cases covered by the factual record.93

8.4 Detailed Information on the Ciénega de Guacayvo, Rochéachi

and Pino Gordo Cases

Detailed information is presented below on the processing of citizen complaints filed by three communities included in the submission.

A legal officer from the CEC Secretariat and her consultant, Dr. Ana

Córdova Vásquez, visited the communities of Ciénega de Guacayvo and

Cuiteco, and met with members of the communities of Rochéachi and

Pino Gordo at the Cosyddhac offices in Chihuahua City, in the week of

13 October 2003. In the community of Ciénega de Guacayvo, the Secretariat was shown areas where alleged illegal logging occurred (see photos in Appendix 9).

8.4.1 Ciénega de Guacayvo

Ciénega de Guacayvo is an ejido in the Municipality of Bocoyna,

located in the Sierra Tarahumara approximately seven hours’ drive by

secondary roads from the city of Chihuahua and one to two hours from

San Juanito, where a large number of the region’s sawmills are located.

The submission asserts that various cases of alleged irregularities

occurred during 1998 and 1999 in Ciénega de Guacayvo involving illegal

logging; forest fires; and illegal transport, storage, and exploitation of

forest resources. Information is provided below regarding Mexico’s processing of citizen complaints related to this ejido that are covered by the

factual record. Information is presented chronologically.

1. In February 1998, the ejido filed a citizen complaint with the

Profepa office in Chihuahua City alleging the unauthorized exploitation

50 FACTUAL RECORD: TARAHUMARA SUBMISSION

93. Appendix 4, s. 5.3.
of forest resources (including along waterways) on a lot adjacent to the

ejido.94 This complaint was admitted by Profepa in March of that year

and an administrative decision was issued more than two years later

(June 2000). The decision ordered corrective measures and a fine of

$24,160.00. However, the person subject to the order filed an application

for review of the decision and as a result, Profepa’s order was quashed

by the Tax Court of the Federation (Tribunal Fiscal de la Federación) in

August 2002. In the submission, Mexico is accused of failing to effectively enforce the law in that MPF was not notified of the probable existence of an environmental offense in this case.95 In its response to the

submission, Mexico stated that corrective measures and sanctions had

been ordered and that MPF had not been notified because the facts did

not indicate that a criminal offense had been committed.

2. On 19 July 1999, the ejido filed a citizen complaint with Profepa

alleging repeated illegal logging on a lot known as Rincón de Gervacio

located within the ejido.96 The citizen complaint was admitted by

Profepa the following month and Profepa issued a resolution ten

months later (May 2000), requiring payment of a fine. After another six

months (December 2000), an order to pay the fine was issued. In August

1999, the ejido filed another citizen complaint with Profepa alleging illegal logging in the ejido.97 That same month, Profepa acknowledged its

jurisdiction in the matter and joined the complaint to the one filed in

July. In the submission, Mexico is accused of a failure to effectively

enforce the law in that MPF was not notified of the probable existence of

an environmental offense in this case.98 Mexico responded that corrective measures and sanctions had been ordered and that MPF had not

been notified because the facts did not indicate that a criminal offense

had been committed.

3. Further to the complaints described in point 2, above, Profepa

organized forest inspection visits to various lots in the ejido in August

and October 1999.99 During the second inspection visit, Profepa

reported the discovery of 11,644 pine logs yielding approximately

4,928 m3 roundwood equivalent, and the presence of felled trees (507 m3)

transferred by the ejido residents to a lot in the center of the village by

order of the Office of the Attorney General of the State of Chihuahua.

MEXICO’S ENFORCEMENT OF ITS ENVIRONMENTAL LAW 51

94. Appendix 6: F.7, I.7, O.3, and P.4.

95. Art. 418 of CPF and arts. 169 and 202 of LGEEPA. Appendix 6: I.7, O.3 and P.4.

96. Appendix 6: F.8, I.8, and O.4.

97. Appendix 6: F.9, I.9, O.5.

98. Appendix 6: I.8, I.9, and consolidated processes O.4 and O.5.

99. Appendix 6: P.4.
The Submitter accuses Mexico of a failure to effectively enforce the

law in that MPF was not notified of the probable existence of an environmental offense in this case.100 In its response to the submission, Mexico

stated that corrective measures and sanctions had been ordered, but did

not present evidence that it had notified MPF nor the reasons why it had

not done so. The Secretariat requested that Mexico identify the criteria it

used in determining that the facts complained of did not qualify as

offenses and that it indicate whether a fully articulated and reasoned

decision was issued explaining why the facts did not qualify as offenses.

It also requested that Mexico indicate how the Office of the Attorney

General of the State of Chihuahua, which already had knowledge of the

facts, had processed this case. In its response to this request, Mexico

stated that Profepa did file reports of probable criminal offenses with

MPF (410/DD/99 and 63/DD/00), but it did not indicate how the Office

of the Attorney General of the State of Chihuahua processed the case.101

The ejido residents interviewed by the legal officer from the CEC

Secretariat during her field trip of October 2003 stated that they themselves had moved 8,000 logs from the lots where Profepa had found

them to a lot owned by the ejido by order of the “Procuraduría.”102 They

commented that it had been impossible to sell or make use of this

wood because they had been unable to reach an agreement with the

Procuraduría. According to the ejido residents, the Procuraduría suggested

selling the wood and depositing the money in the bank, while the ejido

wanted to share the money among its residents.103

52 FACTUAL RECORD: TARAHUMARA SUBMISSION

100. Art. 419 of CPF. Appendix 6: M.1.

101. Concerning M.1, Mexico stated that reports of probable offenses were filed and

cited the same two reports that it cited for all the Ciénega de Guacayvo cases, but in

cases P.4’’ and P.4’’‘ referring to this same case, the party indicated that Profepa did

not file criminal charges.

102. Common term used by members of the ejido refering to the Office of the State Attorney General of Chihuahua.

103. During a press conference on 7 December 2004 in which representatives of

Semarnat, Profepa and Conafor reported on actions taken in 2004 to combat illegal

logging in Mexico, the head of Profepa mentioned: “Seizure of timber is a problem.

Often we designate the violator himself as the depositary. Often movement and

transportation of cut logs, on the lots where illegal logging is occurring and we manage to seize them, pose a problem. Thirdly, we must follow standard administrative

and, very often, criminal procedures, and only when the process is finalized can we

dispose of the timber. All timber at the conclusion of these procedures is donated

through the municipal DIF [National System for Comprehensive Family Development] office. That is what we are doing.” Press conference by Alberto Cárdenas

Jiménez, Minister of the Environment and Natural Resources, on the final results of

the Program to Combat Illegal Logging for 2004 and the plan for 2005, with the participation of José Luis Luege Tamargo, Federal Attorney for Environmental Protection; Francisco García, Director, Forestry and Soils, Semarnat; and Manuel Reed

Segovia, Director, Conafor (Mexico, Federal District, 7 December 2004).
4. On 26 July 1999, the ejido filed with Profepa a citizen complaint

alleging illegal logging on the Rincón de Gervacio lot.104 In the submission, Mexico is accused of not issuing a decision on the admissibility of

the complaint and ceasing to pursue the required procedures.105 The

supporting documentation received by the Secretariat from both the

Submitter and Mexico does not refer to this complaint. However, there

are other cases in which inspections and actions regarding irregularities

on this lot are reported (see point 2 above). In response to the Secretariat’s Request for Information, Mexico indicated that for this case,

Profepa filed a report of probable criminal offenses.106

5. In October 1999, the ejido filed a citizen complaint with the state

office of Semarnat alleging illegal operation and storage of forest

resources by San Juanito sawmills.107 That month, Semarnat referred the

complaint to Profepa, which responded in December that the necessary

inspections had been carried out and that administrative proceedings

had been brought against the persons responsible for the irregularities

noted. Despite these actions by the authority, no decision on the admissibility of the complaint was issued by Profepa and, therefore, the complaint was not processed as a citizen complaint, nor was there any

formal response by the authorities (neither Semarnat nor Profepa) to the

complainants. The Secretariat requested information from Mexico

regarding the outcome of the administrative proceedings launched by

Profepa against the perpetrators. Mexico responded that administrative

proceedings had been instituted but did not provide information about

their outcome.108

In the submission, Mexico is accused of failing to effectively

enforce its environmental law in that MPF was not notified of the

probable existence of an environmental offense in this case.109 Mexico

responded that corrective measures and sanctions had been ordered by

Profepa and that MPF had not been notified because the facts did not

MEXICO’S ENFORCEMENT OF ITS ENVIRONMENTAL LAW 53

104. Appendix 6: R.1, O.6.

105. Arts. 191 and 192 of LGEEPA.

106. Although in 2, above, no explanation is given as to why no report of criminal offense

was filed for the Rincón de Gervacio case.

107. Appendix 6: R.2, I.10 and O.7.

108. On 4 February 2004, in response to the Secretariat’s Request for Additional Information (Appendix 4), the Semarnat Federal Officer (Delegado Federal) in Chihuahua

sent the Secretariat a letter which states: “Oficios no. SRN.08-99/11709 and

SRN.08-99/11710 were sent by regular mail to the President of the Ejido Council of

Ejido de Ciénega de Guacayvo, Mpio. De Bocoyna Chih., so that he would have

knowledge of who would be resolving his complaint, regardless of the fact that

Profepa was also sending the corresponding notice.” No copies of the referenced

letters were attached to the letter addressed to the Secretariat.

109. Art. 418 of CPF. Appendix 6: I.10, O.7.
qualify as a criminal offense. The Secretariat requested that Mexico identify the criteria it used in determining that the facts complained of did

not qualify as offenses and that it indicate whether a fully articulated and

reasoned decision was issued explaining why the facts did not qualify as

offenses. In its response to this request, Mexico stated that although

Profepa did not file a report of probable criminal offenses in this case, it

did assist MPF with the presentation of expert testimony in preliminary

investigations 410/DD/99 and 63/DD/00 relating to complaints of

criminal offenses filed by the same complainants.110

6. In December 1999, the ejido filed a complaint with the Director of

Semarnat, with copies to the Federal Attorney General, the Governor of

the State of Chihuahua, and the State Attorney General of Chihuahua,

alleging failures to address the majority of the citizen complaints and

complaints of criminal offenses filed in connection with alleged illegal

logging suffered by the ejido, as well as particularly serious failures

to prosecute environmental offenses.111 That same month, Profepa

responded that in each citizen complaint, the complainants mentioned

that ejido authorities had themselves filed complaints of probable criminal offenses with MPF and that, consequently, it was not necessary for

Profepa to do so as well. The Secretariat requested a response from Mexico as to whether MPF had resolved the complaints of criminal offenses

mentioned in the submission. In its response, Mexico did not provide

information in this regard.

7. In June, August and October 1999, respectively, Profepa conducted forestry inspection visits during which, according to the Submitters, evidence of forest arson was found, and in respect of which Profepa

did not notify MPF of the probable existence of environmental

offenses.112 Mexico responded that corrective measures and sanctions

had been ordered and that MPF had not been notified because the facts

54 FACTUAL RECORD: TARAHUMARA SUBMISSION

110. The submission does not mention complaints of criminal offenses in connection

with the citizen complaint concerning sawmills, although complaints may have

been filed. The submission mentions other complaints of criminal offenses–of illegal logging in Rincón de Gervacio (p. 26), and of fires set in Rincón de Gervacio and

Arroyo de las Cuevas (p. 25). It is unclear whether the preliminary investigations in

which Profepa assisted referred to this particular case, and the Party did not provide the Secretariat with copies of the documentation related to its files numbered

410/DD/99 and 63/DD/00. For all these assertions (I.10=O.7, K.2, K.3, K.4, O.6,

M.1) Profepa cites reports of criminal offenses 410/DD/99 and 63/DD/00,

although the “K” assertions involve fires, I.10 concerns illegal operation and storage at San Juanito sawmills, M.1 concerns storage and transportation of tree trunks

that are still found stacked in Ciénega de Guacayvo, and O.6 relates to illegal logging.

111. Appendix 6: I.11.

112. Art. 418 of CPF.Appendix 6: K.2 consolidated with P.4, K.3 and K.4.
did not qualify as criminal offenses. The Secretariat requested that Mexico identify the criteria it used in determining that the facts complained

of did not qualify as offenses, and that it indicate whether a fully articulated and reasoned decision was issued determining that the facts did

not qualify as offenses. In its response to this request, Mexico stated that

in all three cases reports of probable criminal offenses were filed, and it

referred to preliminary investigations 410/DD/99 and 63/DD/00.113 In

October 2003,ejido residents told the legal officer from the CEC Secretariat that the perpetrators had not carried out reforestation and that the

ejido itself had reforested in the burnt areas. For assertion K.3, the Secretariat requested information on the outcome of MPF’s consideration of

the complaint of probable offenses filed by the ejido. In its response, Mexico did not provide information on this matter.

The legal officer from the CEC Secretariat met with several representatives of the central and regional offices of Semarnat, Profepa, CNA

and PGR at the Profepa offices in Chihuahua City on 17 October 2003. At

the meeting, government authorities stated that they considered the

seriousness of a violation in deciding whether or not to notify MPF,

because it is impossible to notify MPF regarding every citizen complaint.

In addition, they affirmed that it is appropriate to address certain

complaints through administrative proceedings instead of criminal

proceedings. They commented that it is necessary to use the principle of

minimum intervention. They stated: “In every legal system there is a

role for both judicial action and prevention. We don’t want to become a

strictly punitive institution at the expense of prevention and sustainable

development.” They stated that in any event, complainants are entitled

to go directly to the PGR if they learn of an offense, and that Profepa does

not notify the PGR until it conducts an independent verification of the

reported facts.

Profepa officials also explained that until the year 2000, there was a

backlog in the processing of citizen complaints in the state of Chihuahua

and that this was due to the fact that in 1996, when Profepa’s responsibilities were expanded to include those of the former Ministry of Agriculture and Water Resources, Profepa received 900 pending citizen

complaint files. There was no structure within the agency to provide

adequate legal follow-up to all the complaints. In addition, they stated

that it was only in 2001 (after the period covered by the submission) that

Profepa began to put an emphasis on the criminal aspects of matters

complained of. This, they stated, occurred in part because of the creation

MEXICO’S ENFORCEMENT OF ITS ENVIRONMENTAL LAW 55

113. For case P.4’, which is the same as K.2, the Party responded that no report of probable criminal offenses was filed and did not provide reasons.
of the Office of the Deputy Attorney for Legal Affairs within Profepa,

and in part because of changes to the CPF defining environmental

offenses.

They stated:

Handling citizen complaints is a big challenge. For us, the NGOs

[nongovernmental organizations] are our main allies because they

become our eyes and ears. Capacity building for society is important. The

challenge is that they do not know how to file citizen complaints properly

so that they can be given due process. For example: a) some are from scattered sources, one here, some further away, from separate families; b)

there are complaints arising from agrarian conflicts; c) other complaints

relate to conflicts within the ejido. At times there are many citizen complaints filed simultaneously and it is difficult to process them simultaneously. The panorama is very broad.

Concerning the problem of illegal logging, they stated:

The main reason for the attack on the forests is that on 22 December 1992,

the Forestry Act took away all the government’s powers to control the situation. It left it up to the lot owner to decide how much to cut. Everybody

was cutting down forests. The only way to verify legality was log marking.114 So the loggers only marked the logs if they saw Profepa coming.

This happened throughout the nineties.

In 1997 the Law was amended and a document was required with background and all the [logging] information. These documents were known

as manifests.115 The characteristics of the manifests did not appear in the

regulation to the Law. The year 1999 saw the issuance of the Mexican Official Standard [Norma Oficial Mexicana] or NOM for the manifests, which

are still lax. Here in Chihuahua, we designed some manifests that show

the annual balance. All that’s missing is to have them indicate the time of

issuance.

Both the authorities and the ejido residents interviewed by the legal

officer concurred that the logging control system based on manifests is

much better than the “log marking” system, although they did state that

manifests can be forged or reused multiple times. Authorities pointed

out that although the Forestry Act was amended in 1997 to reintroduce

the system of manifests, no regulations for the amendments were issued

56 FACTUAL RECORD: TARAHUMARA SUBMISSION

114. Timber marking was done by hammer and was meant to ensure that the allowable

cut was not exceeded.

115. A transport manifest is a document signed by the sender and the receiver that contains a description of the goods being transported. In the forestry context, it is meant

to certify that timber being delivered to a sawmill was logged legally.
or implemented until late 1999—at the end of the events described in this

section. They stated that it is the responsibility of state government

enforcement officials to check manifests and inspect timber on the highways.

The authorities also commented as follows:

The operating budget for Profepa in the state of Chihuahua is 3.6 million

pesos (1.2 million of which are the operating budget for natural resources)

less 12 % budget cuts in 2003.

In Chihuahua, there are 7.5 million hectares [of forest], so each inspector is

responsible for surveillance of 81 million square meters. Forest enforcement work is like customs. Restrictions are placed on harvesting. A customs office is easy to administer at a border crossing but in a forest it’s just

a mess.

One mission can cover 5000 kilometers in 15 days. Remember that the

inspector also has the responsibility of issuing the appropriate notices.

8.4.2 Rochéachi

Rochéachi is an ejido in the municipality of Guachochi whose population is nearly 50 % indigenous. The ejido is located in the Sierra

Tarahumara, approximately 7 hours by secondary roads from the city of

Chihuahua.

In December 1998, the Rarámuri Indigenous People of the ejido de

Rochéachi, along with Agustín Bravo Gaxiola, their legal counsel, filed a

citizen complaint with the Profepa office in the city of Chihuahua.116

They alleged that extraction of sand, earth, and other materials from the

beds and banks of three rivers (Rochéachi, Guaguichi and El Frijolar)

running through the ejido altered the natural structure of the riverbeds

and adversely affected the interactions of flora and fauna. Moreover, the

ejido claimed this mining constituted an illegal conversion of forest land.

They asserted that the perpetrators were C. Evaneo Holguín and ASAG,

S.A. de C.V.

Profepa issued a decision on the complaint the next month (January 1999), stating that the matter was not within its jurisdiction, and

referring the file to CNA. In February 1999, the community and Agustín

Bravo Gaxiola filed an application for review of Profepa’s action. In May

of 1999, Profepa ruled on the application, reaffirming that the mining of

MEXICO’S ENFORCEMENT OF ITS ENVIRONMENTAL LAW 57

116. Appendix 6: A.4.
sand, earth, and other materials from the beds of the three rivers did not

fall within its jurisdiction but rather that of CNA, such that the referral to

CNA had been warranted. The Submitter asserts that by June of 2000

there had still been no ruling on the application for review, but Mexico

asserts that Profepa gave public notice of the decision in its records of

cases resolved in May of 1999.

The Secretariat asked Mexico whether, in this case, it would have

been appropriate for Profepa to admit the portion of the complaint relating to alteration of flora and fauna and conversion of forest land, and

whether it would have been appropriate to notify MPF of the probable

existence of an environmental offense. Mexico did not respond to the

first question and indicated that Profepa did not verify the facts complained of and that, therefore, it did not take cognizance of any fact or

omission qualifying as an environmental offense.

Regarding the processing of this complaint by CNA, the Secretariat has obtained the following information. CNA carried out inspections

in Rochéachi in September and December 1998 (before and after the filing of the complaint mentioned above) and in February, September, and

October 1999. CNA told the Secretariat that on each occasion, mining

was taking place in compliance with the law and mining concessions

issued by CNA. Nevertheless, the ejido residents who had filed the complaint and the NGOs supporting them continued to argue that serious

impacts on the ecosystem had occurred. They filed several more complaints (not covered by the submission) and commissioned an environmental impact assessment with a view to documenting their assertion of

negative impacts on the ecosystem (February 1999). In the reports of its

1999 inspections, CNA states that it did not find any irregularities or

environmental harm caused by the mining. In September 1999, Coalición

Rural, A.C. petitioned the Director of Semarnap (now Semarnat) to

resolve the citizen complaints in the Rochéachi case, suspend the mining

concessions, and establish a restoration program for the Rochéachi river.

In October 1999, the National Human Rights Commission opened a file

on the case and issued a memorandum requesting information from the

Director of Semarnap.

That month, October 1999, CNA and the ejido agreed on a total suspension for an indefinite time of concessions to mine materials from the

riverbed within the ejido. Subsequently, state delegations of Profepa,

Semarnat and CNA held two interagency meetings to decide how they

would address future cases of potential mining impacts on river ecosystems. At these meetings, it was pointed out that although watercourses

are under the jurisdiction of CNA, Profepa receives citizen complaints

58 FACTUAL RECORD: TARAHUMARA SUBMISSION
and Semarnap (was) responsible for reviewing environmental impact

assessments. Among other things, the agencies agreed that for the

Rochéachi case, Semarnap would support the development of a soil restoration project in the ejido and the directors of the three agencies would

be asked to consider the possibility, in the future, of a) making all mining

concessions conditional upon the completion of an environmental

impact assessment, and b) requiring, for future mining permits, a photographic record of the area to be mined before and after the mining work.

The Secretariat did not receive any information pursuant to its Request

for Additional Information regarding whether the directors of the three

agencies agreed to the above proposals, and whether interagency cooperation continued after 1999.117

In March 2000 (after the signing of the agreement between CNA

and the ejido) Agustín Bravo Gaxiola and the Rochéachi ejido residents

filed a citizen complaint with Profepa alleging forest clearing, destruction of natural vegetation with forest conversion, and alteration of the

natural hydrological structure of a river (El Frijolar stream) for the purpose of mining various materials.118 The persons named as the perpetrators of these acts were Evané Holguín Bustillos and Adán Chaparro

(according to documents submitted to the Secretariat by CNA). This

time, Profepa allowed the portion of the complaint relating to clearing,

destruction of vegetation, and forest conversion. It referred the portion

relating to mining of materials to CNA and the State of Chihuahua

Department of the Environment (Dirección de Ecología). CNA notified the

complainants that it had conducted an inspection without finding any

mining activities or machinery but that, in view of the information contained in the citizen complaint and submitted by residents, it would act

against the perpetrators. In addition, that same month (March 2000),

CNA informed Profepa that the mining was indeed taking place without

a concession and that sanctions would be applied as provided by the

National Waters Act (Ley de Aguas Nacionales). Mexico did not provide

the Secretariat with information concerning follow-up to the complaint

by CNA or the Chihuahua Department of the Environment. The submission states that the Chihuahua Department of the Environment referred

the matter to the state delegation office of CNA.

Profepa closed the citizen complaint file in September 2000, issuing

an order of (unspecified) corrective measures and imposing a fine (the

Secretariat did not obtain a copy of the order). According to Mexico, the

corrective measures were not carried out. There exists an oficio (official

memorandum) for collection of the fine (August 2001, one year later),

MEXICO’S ENFORCEMENT OF ITS ENVIRONMENTAL LAW 59

117. Appendix 4, s. 5.4.4.

118. Appendix 6: G.4.
but the Secretariat does not know whether the fine was collected.

Although Mexico agreed that it was appropriate to notify MPF of the

facts in this case, in its response to the Secretariat’s Request for Information, Mexico did not indicate whether this was done.119

In an interview with the legal officer from the CEC Secretariat on 16

October 2003, Rochéachi ejido residents asserted that sand is still being

mined on a small scale by mestizo residents of the ejido and sold off the

ejido, but mining is no longer done with heavy machinery. They mentioned the existence of eight surveillance committees appointed by the

ejido assembly, two of which are active. There are two committee members responsible for keeping watch and notifying other members if there

are any problems. When committee members come across possibly illegal activity, sometimes the perpetrators stop what they are doing and

sometimes they don’t. According to the ejidatarios who attended the

meeting with the legal officer from the CEC Secretariat, the new ejido

council was ignoring the problem despite the fact that the internal regulation of the ejido prohibits the sale of sand within the ejido and its mining

for sale elsewhere.120 They asserted that within the ejido assembly there

had been violence against members of the Committee for the Defense of

the River but that committee members had stood firm.

The ejido residents present at the meeting with the legal officer

from the CEC Secretariat stated: “There has been no legal resolution of

our complaint, no fine, no sanction. Instead they showed up with little

trees and trenches [as part of a government river rehabilitation program]. The issue was taken out of the judicial arena and went into negotiation and the agreement signed is an informal one.” Ejido residents

stated:

We explained this to the Director of Forestry Surveillance and Inspection,

Profepa, Federal District, who used to come to Chihuahua to analyze the

lack of follow-up to citizen complaints, since there had been no resolution

and there had been side negotiations.

To have the law enforced, in 2002 we appealed to the army to post guards.

This did not happen because it was of no interest to them.

The state office (in Guachochi) responsible for prosecuting crimes said

that the matter was outside its jurisdiction. However, it said it was respon60 FACTUAL RECORD: TARAHUMARA SUBMISSION

119. Ibid.

120. They asserted that Semarnat required the adoption of an internal regulation in

order to allow forest management to take place. They stated that in the regulation,

the penalty for illegal sand mining is three years of suspension of the right to work,

but that the new general manager is a cacique and is not enforcing this provision.
sible for taking note of the complaint and referring it to MPF because it is

within its mandate to assist MPF.

At the Parral MPF office they said that they were unaware of the problem,

and that they had not been informed. They later found the file in the

archives and said they would see what was being done, but they did nothing.

In an interview with the legal officer from the CEC Secretariat on 17

October 2003, representatives of the state delegation office of CNA

stated:

The (former)ejido council [Comisariado Ejidal] filed a complaint about mining. There were two concessions. The complaint was thoroughly investigated, with inspections, meetings, etc. The mining was being done legally.

There was nothing to prosecute. The commitment was made not to grant

any more concessions and we have upheld it.

CNA representatives noted that CNA does not have offices in the

Sierra Tarahumara and that it costs the authority 1000 pesos in travel

costs to check a mining permit when the permit itself only costs 200

pesos. CNA representatives commented: “they complain but they don’t

say who’s doing it.” They noted further:

The CNA does not have a presence in the Sierra because there are no serious problems. The water-related citizen complaints from the Sierra really

aren’t serious problems. The problem we have in the Sierra has to do with

potable water supply. Sand mining cannot affect the availability of drinking water. There are more inspectors in Delicias than in the Sierra because

there are more problems for the CNA there. The CNA prioritizes.

Our biggest problem is short staffing.

The second biggest problem is a practical one. For example, keeping watch

at night, and the mining doesn’t take place every day, so it’s hard to be

there right when the mining is taking place.

We cannot launch administrative proceedings for only one complaint,

even a very well documented one. If we don’t catch anyone in the act, we

cannot investigate the past. A video would be clear and conclusive evidence. A photo is not clear evidence. Often the complaint is more of a personal impression, and what was observed isn’t technically an example of

harm.

We address the complaints referred to us under Article 8 of the Constitution. Inspection visit: you have to generate the order (for which a

fact-finding field trip is necessary), inspection rounds, etc., to order the

MEXICO’S ENFORCEMENT OF ITS ENVIRONMENTAL LAW 61
visit. Then, either a) we conclude with the field report describing what

happened if we didn’t find anybody, or b) if we find something, we generate an inspection order and an inspector goes and communicates with the

person complained of. The visit takes place, the report is written. The person visited can challenge what is said in the report. That is, you have to

notify, go, leave a citation. You have to go to the person’s domicile at least

four times, etc. We have to issue an administrative report... notify them of

the beginning of the administrative proceeding... 15 more days... notify

them of the closing of the file. Then issue the decision... the respondent can

then file an amparo action [action for emergency relief from violation of

fundamental rights].

CNA has a budget of 10 billion pesos nationally. Of these, 9.7 billion are for

waterworks. These are capital expenses, not operating expenses. For

inspection and surveillance we have 600,000 pesos for the whole year and

the whole State of Chihuahua. Each inspection visit costs an average of

7,500 pesos. Our strategy is to prioritize: 100 visits to agricultural users, 49

visits to businesses, industrial establishments, and service establishments,

20 visits in response to complaints, and 20 transfers of concessions.

8.4.3 Pino Gordo

Pino Gordo is an ejido in the municipality of Guadalupe y Calvo

located in an extremely remote region of the southern Tarahumara

mountains.

The submission refers to two citizen complaints about illegal logging in the ejido of Pino Gordo (filed with Profepa in Chihuahua City by

Agustin Bravo Gaxiola on behalf of community residents on 4 August

1998 and 30 March 1999, respectively) and the follow-up to and processing of these complaints.121 In the submission, Mexico is accused of failing

to effectively enforce the law by a) resolving a citizen complaint without

informing the complainant regarding how it took into account evidence

and information provided by the complainant;122 b) failing to file a

report of probable criminal offenses after learning of environmental

offenses during inspection visits;123 and c) failing to notify MPF of

the probable existence of environmental offenses relating to i) unauthorized forest clearing, destruction of vegetation, and land use change;124

ii) unauthorized cutting, knocking down, or logging of trees;125 and

iii) intentionally setting fires in woodlands and forest vegetation.126

62 FACTUAL RECORD: TARAHUMARA SUBMISSION

121. Appendix 6: G.6, I.12, I.13, K.1, P.5 and T.1.

122. Appendix 6: T.1.

123. Appendix 6: P.5.

124. Appendix 6: G.6.

125. Appendix 6: I.12, I.13.

126. Appendix 6: K.1.
8.4.3.1 Resolution of citizen complaint without explaining to

the complainant how authorities took into into account

evidence and information provided by the complainant

In the citizen complaint of 4 August 1998, Prudencio Ramos Ramos

asserted that illegal logging was being carried on in the ejido of Pino

Gordo. He stated that in the ejido, there was overmature virgin oak-pine

forest, “[o]ne of the few remnants of this type of ecosystem of great ecological importance, since it is the habitat for thirty species of flora and

fauna considered [in] NOM-059-ECOL-1994 as species that are endangered, threatened, rare, or subject to special protection.” As evidence of

the presence of such species in the area, he attached to the complaint documentation referring to “field studies carried out by CASMAC [Consejo

Asesor Sierra Madre, A.C.] since 1996 (records of which may be verified at

the Universidad Autónoma de Chihuahua and the Instituto de Biología of the

Universidad Nacional Autónoma de México) which scientifically demonstrate the presence of [various animal and plant species protected under

Mexico’s endangered species legislation].” The complainant alleged

that removal of forest materials was taking place without authorization

from the owners, who are ejido residents, and that no prevention or mitigation measures for environmental impacts on endangered species were

in place.

Profepa allowed only the portion of this complaint relating to illegal tree felling and removal. It closed the complaint file having concluded that the forestry operation was authorized under a permit issued

to the Community of Colorada de los Chávez, located adjacent to the

Pino Gordo ejido. Colorado de los Chávez has a boundary dispute with

Pino Gordo under the Agrarian Act. The Submitter asserts that Mexico

failed to determine whether Colorada de los Chávez’ forest management program contained “[...] measures to preserve and protect the habitat of threatened or endangered species of flora and fauna” as required

by Article 12 of the Forestry Act.

In its Request for Information, the Secretariat asked Mexico

whether the forest management program for the area covered by the

complaint (which includes the localities of Mesa de Chuvilla, Faldeo del

Cerro del Puerto y Cerro Alto de Huazachique) contained measures for

the protection and conservation of the species mentioned in the citizen

complaint, or environmental impact prevention and mitigation measures, and if so, whether such measures had been implemented.127

Mexico responded that the ejido of Pino Gordo does not have an authoMEXICO’S ENFORCEMENT OF ITS ENVIRONMENTAL LAW 63

127. Appendix 6: T.1.
rized forest management program, hence Mexico could not respond to

the question. The Secretariat, in its Request for Additional Information,

asked Mexico to respond to the questions contained in the original

Request for Information by reference to the forest management program

of the Community of Colorada de los Chávez, the program to which the

complainants referred.128 Mexico did not respond to this request.129

During the 17 October 2003 meeting with government authorities

at the Profepa offices in Chihuahua City, the legal officer from the CEC

Secretariat inquired about this case. The authorities stated that the

Colorada de los Chávez forest management program did not indicate

that there were status (endangered) species in the area of operations.

They stated that the environmental impact study which applicants must

conduct in order to obtain a forestry operation permit must include a

review of information held by the National Commission on the Use and

Enjoyment of Biodiversity (Comisión Nacional para el Uso y Aprovechamiento de la Biodiversidad) to determine whether there are status species in

the area covered by the application. The authorities stated that there

is no inventory of status species for the area of interest (Pino Gordo/

Colorada de los Chávez), that there is no status species inventory program, and that inventories are only taken as part of environmental land

use planning studies.130

The legal officer asked what type of information would warrant

Semarnat’s requiring protection measures for status species in an area of

64 FACTUAL RECORD: TARAHUMARA SUBMISSION

128. Appendix 4: s. 5.4.3.

129. On 4 February 2004, in response to the Request for Additional Information (Appendix 4), Mexico provided the Secretariat with a copy of a letter from the Semarnat

Federal Officer (Delegado Federal) in Chihuahua. That letter stated: “Attached

please find a copy of oficio no. DJ-08-99/005/10031 of 26 August 1999 sent to Teresa

Guerrero. Pursuant to Article 21 of the Regulation to the previous Forestry Act,

for est management programs must contain, among other things environmental

impact prevention and mitigation measures for each phase of management; and

Profepa is responsible for verifying compliance with the forest management programs authorized by Semarnat.” The letter to which the Federal Officer’s letter

refers states: “This is in response to your memorandum of 8 July 1999 in which you

ask to review the documents supporting the forestry operation permit issued to P.P.

Mala Noche, Municipality of Guadalupe y Calvo, Chihuahua. In this regard, note

that this Federal Office authorized an ongoing forest management program for timber production in P.P. Mala Noche, Municipality of Guadalupe y Calvo, Chihuahua

to C. Crisoforo Hernández Atienzo in his capacity as legal agent of 13 co-owners of

the lot in question, who, to prove their ownership of the lot in question, submitted

the following documents...” [The rest of the text is illegible.] Mexico did not indicate

whether this information was provided in response to the Secretariat’s questions in

s. 5.4.3 of Appendix 4.

130. If an applicant for a forestry permit does not indicate the presence of status species,

the authority presumes there are none in the area of operation and has no means of

corroborating this assumption.
forestry operations. The authorities responded that reports of sightings

by individuals would be insufficient, and that it would be necessary to

establish the presence of status species by means of a proper scientific

study in order for Semarnat to cancel a management program that did

not contain mitigation measures. Authorities did not comment on the

existence or validity of the CASMAC studies referenced in the submission.

8.4.3.2 Criminal Prosecution

For none of the above points did Mexico notify MPF of the facts nor

explain to the complainants why it did not do so. Mexico told the Secretariat that it did not notify MPF because the facts complained of did not

qualify as environmental offenses.131 The Secretariat requested that

Mexico indicate the criteria used by authorities in deciding that the facts

complained of did not qualify as an offense, and asked whether the

authority had issued a fully articulated and reasoned decision explaining why the facts did not constitute an offense. In its response, Mexico

did not explain the criteria it used in deciding not to notify MPF. In

regard to a 1999 forest audit undertaken by Profepa in response to citizen complaints, an audit which led to the cancellation of the Colorada de

los Chávez management plan and Profepa ordering the adoption of

emergency measures, the Secretariat asked Mexico whether it would

have been relevant to notify MPF of the facts encountered by Profepa

during its audit.132 Mexico indicated that it was relevant to notify MPF

but did not indicate whether or not it had done so.

8.4.3.3 Agrarian Issues

On 16 October 2003, indigenous residents of the Pino Gordo ejido

told the legal officer from the CEC Secretariat that Raúl Aguirre Ramos,

who claims to be an ejido representative, wants to engage in logging, but

that they do not recognize him as an ejido representative because in his

appointment the wishes of 110 ejido residents – who have never wanted

logging to take place – were not taken into account. They indicated that

according to the new forestry act, forestry operations may not take place

while there are border conflicts between ejidos.133 They stated:

The year 1998 was the first time they logged the forest. First we talked to

NGOs and then to Profepa. Six or seven of us speak Spanish. It’s hard to

MEXICO’S ENFORCEMENT OF ITS ENVIRONMENTAL LAW 65

131. Appendix 6: I.12, I.13, K.1, P.5.

132. Appendix 6: G.6.

133. Art. 65 II of the LGDFS; see s. 7.1.1, above.
know whether they treated us well or badly at Profepa; there wasn’t anyone who spoke Rarámuri.

The solution is for them to give us birth certificates so that we can go to the

Office of the Attorney General for Agrarian Affairs [Procuraduría Agraria]

and demand our rights. With our papers we can defend ourselves better

with the authorities. We hope that that will be enough to obtain the authorities’ support. One hundred forty of us have voter identification papers

(and 35 of those are registered) but something like 800 more people in Pino

Gordo do not have them.

We make our living from agriculture. The forest gives us water. We don’t

want to sell timber. Tell Sagarpa to make Procampo [a governmental farm

support program] not give it only to Raúl Aguirre but to everyone who’s

entitled to it.

They also mentioned that in response to the citizen complaint they

filed on 30 March 1999, Profepa conducted a forestry audit. They mentioned that there was a temporary total suspension of logging while the

restoration measures ordered pursuant to the audit were implemented,

followed by a temporary suspension arising from an agrarian proceeding and an ensuing amparo action. They maintain that as of October 2003

there was no official suspension in place but that for political reasons

logging is not taking place.

The legal advisor of the indigenous people who attended the meeting with the legal officer from the CEC Secretariat on 16 October 2003

stated that in principle, Semarnat considers information relating to the

agrarian conflict in Pino Gordo to be classified, which he understood to

be because President Vicente Fox declared water and forests to be priority national security issues. He stated that there is an unofficial commission (which includes Semarnat and MPF representatives) on agrarian

and forestry matters focusing on the “hot spots” and that this commission keeps classified all documents concerning the Pino Gordo case. He

asserted that appeals for review of this classification had been filed with

the Federal Access to Information Institute and that these proceedings

were still ongoing in October 2003.

During the legal officer from the CEC Secretariat’s meeting with

government authorities on 17 October 2003, authorities stated that the

Pino Gordo problem is essentially one of disputed boundaries. They

commented that there are 160 indigenous people who have no agrarian

rights: they are not automatically full-fledged ejido residents under the

law simply by virtue of their domicile in Pino Gordo. These 160 people

66 FACTUAL RECORD: TARAHUMARA SUBMISSION
do not want timber to be logged, but there are 50 full-fledged ejido residents who do want this, as do the residents of Colorada de los Chávez.

One comment was:

There is a prevailing notion in the Sierra Tarahumara that logging is bad. If

you take advantage of the forest, the structure of the forest will change.

With a good management plan, the composition will change but the forest

can be stewarded.

In Chihuahua there are management programs. Often people see such

programs in action and say it’s illegal logging.

We have had training programs in the Sierra with forums, presentations

on management programs, forestry technicians, LGEEPA, Profepa’s role.

The people don’t understand laws. We want to be preventive and invest in

education. Semarnat/Profepa attends every meeting in the villages, with

the INI [Instituto Nacional Indigenista—National Institute for Indigenous

Affairs]. It’s not our duty to have translators. INI has to facilitate relations

between the indigenous people and the agencies.

The indigenous situation is a challenge for the whole country. If we do

have a problem it’s with Spanish speakers—NGOs—more than with the

indigenous population. What’s going on in the ejidos are cultural problems, they don’t apply their own internal regulations. It’s discretionary

who gets punished.

They commented that an interagency group on agrarian and forestry issues has existed since December 2002 and that its meetings are

attended by the Ministry of National Defense (Secretaría de Defensa

Nacional—Sedena), the PGR, the Ministry of Agriculture, the Ministry of

the Interior (Secretaría de Gobernación), Profepa and Semarnat. They

observed: “We analyze the problems that exist. Many are agrarian or

social problems, federal offenses, not forestry violations.”

9. Challenges to Enforcement in the Cases Covered by the Factual

Record

This section presents information relating to challenges in connection with the effective enforcement of the federal legal framework for

citizen complaints and complaints of criminal offenses with respect to

the cases covered by the factual record. These challenges involve relations between indigenous communities and government authorities,

as well as interagency and intergovernmental cooperation.

CHALLENGES TO ENFORCEMENT IN THE CASES COVERED 67
9.1 Relations between Indigenous Communities and Government

Authorities

Relations between indigenous communities and government

authorities in the Sierra Tarahumara are conditioned by geographical,

cultural, economic and legal factors.

The Submitter and government authorities from whom the Secretariat received information agreed that there are no Profepa or CNA

offices in the Sierra Tarahumara. Profepa staff indicated that the need to

travel long distances to verify the facts relating to a complaint hinders

their ability to act within the time frame prescribed by the LGEEPA,

limits the role of citizen complaints as an instrument of environmental

protection (since the authorities arrive after the illegal logging or extraction activities have occurred) and limits Profepa’s ability to collect the

information necessary to support laying criminal charges.

In the Secretariat’s Request for Additional Information, Mexico

was asked the following:

The PPJA [Profepa’s Environmental Law Enforcement Program for

2001–2006] states that “Profepa, it should be noted, is the only federal

agency responsible for carrying out acts of inspection and surveillance in

the forestry sector, with a view to curtailing the destruction of natural

resources and reversing processes of environmental deterioration as well

as to restoring the rule of law in this sector throughout the nation” (PPJA,

p. 20). A chart in the PPJA shows the distribution of the 5,488 environmental complaints (January-November 2001) in Mexico (PPJA, p. 104). The

Sierra Tarahumara stands out because it appears that no environmental

complaints were filed with Profepa in this region (one assumes that they

were filed with the Profepa offices in the city of Chihuahua). Why, since

this is a critical forested area according to the PPJA (see 3 above), does

Profepa have no offices or staff in the Sierra Tarahumara?134

68 FACTUAL RECORD: TARAHUMARA SUBMISSION

134. Appendix 4: s. 4.2.
Figure 3.

DISTRIBUTION OF ENVIRONMENTAL CITIZEN COMPLAINTS

(January - November 2001)

Source: PPJA, p. 104

The Secretariat did not receive any response or additional information

on this point.

During the meeting held by the legal officer from the CEC Secretariat with government authorities, PGR authorities mentioned: “We aren’t

sitting in an office anymore. We go to the Sierra to meet with civil and

military authorities to receive complaints. We have MPF in Guachochi,

Parral, Delicias, Cuahtémoc (AFI [Agencia Federal de Investigación—Federal Investigation Agency]) and one rotating MPF.” It was announced at

the meeting that as a result of the filing of the submission, an instruction

had been given to detach an MPF to the city of Chihuahua as of 1 October

2003 with a mandate to concentrate on investigating environmental

offenses. Profepa commented: “Complainants are entitled to go directly

to the PGR if they learn of a crime. We don’t notify the PGR until we

verify a complaint. It is more difficult to go to the PGR than to go with

Profepa. The NGOs need professionalization.” Profepa also mentioned

that the PGR required more assistance from Profepa on technical issues.

CHALLENGES TO ENFORCEMENT IN THE CASES COVERED 69
Questions remain regarding how, in cases of illegal logging, citizens can

produce complaints of criminal offenses that will be accepted by the

PGR, given that in nearly all the cases referenced in the submission,

Profepa asserted that the facts in the complaints did not amount to criminal offenses.135

From a cultural perspective, members of indigenous communities

with whom the Secretariat legal officer met in Chihuahua in October of

2003 stated that linguistic differences hamper communication between

indigenous communities and government authorities and affect their

ability to access the citizen complaint procedure and to participate in

government natural resource conservation programs.136 There are also

different—though not necessarily contradictory – appreciations of the

value of forests and rivers. Government authorities often view forest

resources as an opportunity for social and economic development in

indigenous communities, while members of indigenous communities

often describe the forest as part of a cultural context they wish to preserve.137 These cultural differences can make it difficult for authorities

and indigenous groups to reach consensus on what constitutes effective

law enforcement.

Another factor influencing relations between indigenous communities and government authorities is concern expressed by communities

regarding the independence of Profepa’s enforcement staff. The LGDFS

(see above, s. 7.1.1.2), adopted in 2003, is meant to address such concerns.138 Regarding law enforcement, the legislative summary for the

LGDFS states:

For its [the LGDFS’] drafters, it is vital that the Federation, in coordination

with the state governments and with the cooperation of the organized

woodlot owners, the municipal governments, and other public institutions, implement comprehensive programs to prevent and combat illegal

logging, especially in previously identified critical zones, in order to

address it through various actions as well as to prevent improper land

70 FACTUAL RECORD: TARAHUMARA SUBMISSION

135. Appendix 6.

136. See above, s. 8.4.3.3.

137. At a meeting with members of indigenous communities on 16 October 2003, the following comment was made: “We make our living from agriculture. The forest gives

us water. We don’t want to sell timber.” At a meeting with government authorities

on 17 October 2003, authorities commented: “There is a prevailing notion in the

Sierra Tarahumara that logging is bad. If you take advantage of the forest, the structure of the forest will change. With a good management plan, the composition will

change but the forest can be stewarded.”

138. Report on the Reform Initiatives for the Forestry Act, the General Sustainable

Forestry Act and the Forestry Act, published in the Parliamentary Gazette of the

Senate of the Republic on 12 November 2002, No. 76, 3er Año de Ejercicio, Primer

Periodo Ordinario. Online: <http://www.senado.gob.mx/gaceta.php?&lk=128/

dictamen_iniciativas_forestales.html>.
conversion, traffic in forest species and resources, mining of forest soil,

and illegal shipping, storage, processing, or possession of forest raw materials.

[...]

The short staffing and lack of effective action on the part of Profepa in the

forestry sector exposed it to severe criticism at forestry-related forums and

meetings held this year. However, it was necessary to reconsider that

instead of creating more prevention and surveillance agencies, this report

serves to exhort the Executive to reinforce Profepa and the coordination

mechanisms so that this matter is not left unattended. The forestry promotion and development programs contained in the laws will be of no use if

the State does not strive to make this area more integrated with the other

public agencies with responsibility for forestry, to make it more intelligent, less naïve, and less corrupt.139

In its Request for Additional Information, the Secretariat asked the

following:

In 2001, then Minister of the Environment Victor Lichtinger stated as follows: “We are concerned to give higher salaries to Profepa inspectors”

(Mario A. Arteaga, “Ya se toma en cuenta la Semarnat: Lichtinger,” at Río

Grande/Río Bravo Basin Coalition, RioWeb: www.rioweb.org (6 March

2001)). Were the salaries of the Profepa inspectors in Chihuahua

increased? If so, please provide detailed information and/or the names of

persons to contact in this regard.140

Mexico did not respond to this request.

In a December 2004 press conference regarding a federal program

to combat illegal logging, a journalist asked whether the salaries of

Profepa’s inspectors had been brought into line with the rest of the federal civil service, and whether the number of inspectors had been

increased. The head of Profepa answered:

On the question of inspectors, neither the requested salary increase nor

new hires were authorized. In cooperation with Semarnat, we are trying to

bring inspectors’ salaries into line. For me, this is a very important goal.141

CHALLENGES TO ENFORCEMENT IN THE CASES COVERED 71

139. Ibid.

140. Appendix 4: s. 4.1.

141. Press conference by Alberto Cárdenas Jiménez, Minister of the Environment and

Natural Resources, on the final results of the Program to Combat Illegal Logging for

2004 and the plan for 2005, with the participation of José Luis Luege Tamargo, Federal Attorney for Environmental Protection; Francisco García, Director, Forestry

and Soils, Semarnat; and Manuel Reed Segovia, Director, Conafor (Mexico, Federal

District, 7 December 2004).
Poverty and lack of education also factor into relations between

government authorities and aboriginal communities and influence the

role of citizen complaints as tools for environmental justice.142 A 2002

study of the causes of deforestation in Mexico included a review of the

forest management framework and offered the following observation:

The primary production process and the secondary purchase theoretically

guarantee the sustainable use of resources because of backing by the

authorities and the ejido assemblies and monitoring by ejido residents.

Unfortunately, the reality is that this exercise possesses structural weaknesses that sap the peasants’ capacity to earn revenues and protect their

forests.143

The report provides the following example:

[In] the Sierra Tarahumara, [...] the powers of accounting for and administering forest resources have been expropriated from the ejido residents and

placed under outside governance such as the National Institute for Indigenous Affairs, the Ministry of Agrarian Reform, and the State Coordinating

Body for the Tarahumara (Coordinación Estatal de la Tarahumara). Because

the average level of education in the ejidos is third grade, these institutions

have arrogated to themselves these rights based on the premise that the

ejido residents cannot learn to manage their own resources and that they

require the support of outside administrators. This solution, although necessary in theory, has given rise to worse problems without raising rural

educational levels. Now, the peasants are at the mercy of corruption and a

complex network of power relations known as caciquism, in which a few

people (generally the best educated) pursue their private interests at the

expense of the rest.

Thus, [...] outside administrators have engaged in embezzlement and unilateral decision-making, often influenced by factors of a political nature.

Likewise, timber contracts are managed by a group of people in charge of

financial information, who take advantage of their position to steal profits,

embezzle funds, and block the assembly’s participation in decisionmaking. As a result, the peasants in the Sierra Madre [Sierra Tarahumara]

receive average annual profits for timber sales of one thousand pesos in

the best case [...]144

72 FACTUAL RECORD: TARAHUMARA SUBMISSION

142. A report commissioned by Profepa in 2002, on the social impact of the citizen complaints process, recommends large scale capacity building within Profepa, centered

on, among other things, “sensitization aspects and ways of approaching the social

problem of the complainant, [...]” SeeMedia Comunicación Report, section 7.2, above,

at p. 74.

143. Centro Mexicano de Derecho Ambiental and Centro de Estudios del Sector Privado para el Desarrollo Sustentable. Deforestación en México–Causas Económicas–

Incidencia del Comercio Internacional (México, D.F.: CEMDA, 2002) at 75.

144. Ibid. at 75–6.
Legal factors also condition relations between indigenous communities and government authorities. One of these is the agrarian regime,

which channels relations between government environmental authorities and indigenous groups through the ejido system.145 Particularities

in the operation of the ejido system are at the root of many citizen

complaints to Profepa (and at times to Semarnat and CNA), but these

authorities lack jurisdiction to resolve the underlying problems.146

These problems include lack of legal recognition for all residents in ejidos

and boundary disputes (Pino Gordo case); lack of enforcement of an

ejido’s internal regulations by the ejido assembly or council (comisariado

ejidal) (Rochéachi case); and cases in which Profepa imposes sanctions

against the ejido for illegal logging engaged in by an individual, either

because the perpetrator could not be found or identified or because the

ejido, as the owner of the forest, failed to effectively enforce its own internal regulation or forest management plan to prevent the illegal logging

(Ciénega de Guacayvo case). The head of Profepa has stated: “The issue

of agrarian conflicts [...] is in the background across the country when it

comes to illegal logging.”147 In addition, government authorities have

not had resources to train indigenous communities regarding implementation and enforcement of their internal regulations and forest management plans.148

Another legal factor regarding relations between indigenous

communities and government authorities is follow-up by authorities

regarding matters raised in citizen complaints. While the citizen complaints procedure provided by the LGEEPA does not require Profepa to

notify complainants as to whether the sanctions imposed on the violators were complied with, complainants expect that the procedure will

lead to the resolution of the matter complained of.149 In several cases refCHALLENGES TO ENFORCEMENT IN THE CASES COVERED 73

145. See s. 7.1.1, above, and Appendix 8.

146. In response to the Follow-Up Information Request (Appendix 5), on 11 July 2004

Mexico sent the Secretariat a document containing a section entitled “Significant

progress on delivery of environmental justice” describing multi-agency actions

taken since 2002 to resolve a land use conflict in Coloradas de la Virgen, in the Municipality of Guadalupe y Calvo, Chihuahua. Throughout the document, Profepa representatives are quoted as reminding community members that agrarian matters,

and matters related to use and title to land, are not within its jurisdiction.

147. Press conference by Alberto Cárdenas Jiménez, Minister of the Environment and

Natural Resources, on the final results of the Program to Combat Illegal Logging for

2004 and the plan for 2005, with the participation of José Luis Luege Tamargo, Federal Attorney for Environmental Protection; Francisco García, Director, Forestry

and Soils, Semarnat; and Manuel Reed Segovia, Director, National Forest Commission (Mexico, Federal District, 7 December 2004).

148. This is meant to be addressed by the LGDFS, which provides that indigenous

groups can apply to Conafor for technical and financial assistance to develop,

implement, and evaluate forest management plans. See art. 109 of the LGDFS.

149. See Media Comunicación Report, above, s. 7.2 at 74.
erenced in the submission, the Secretariat did not obtain any information on corrective measures ordered.150 In others, the Secretariat

received information indicating non-compliance with one or more

orders requiring corrective measures—normally reforestation.151

Mexico did not respond to requests for additional information regarding orders for corrective measures and their implementation.152

Concerning the collection of fines that were levied in the cases covered by the submission, government authorities with whom the legal

officer from the CEC Secretariat met in October 2003 stated that, “there is

no legal requirement to inform Profepa of collection.” Government

authorities explained: “Before 2003, orders requiring the payment of a

fine were sent to the state government ministry of finance which sent

them to local municipalities for collection. The corresponding notice

would indicate the name of the person liable for the fine and specify their

domicile. The payment of fines was not reported to Profepa.” It was also

mentioned that there are federal directives setting minimum fine levels

to ensure cost recovery but that in some cases it is impossible to levy or

collect such high fines due to the inability of the perpetrator to pay. The

Secretariat received no information from Mexico in response to the

Request for Additional Information concerning the collection of fines.153

In addition to administrative sanctions under LGEEPA, harm to

the environment can, under certain circumstances, be punishable as a

criminal offense under the CPF.154 In gathering information for the factual record, the Secretariat did not obtain an explanation from Mexico

regarding why, in most cases covered by the submission, authorities

concluded that the facts alleged by complainants did not establish an

environmental offense.155 In those cases for which Mexico stated that

criminal charges were filed, no additional information was provided to

the Secretariat apart from file numbers.156

9.2 Intergovernmental and Interagency Cooperation

Another challenge in connection with the effective enforcement of

the federal legal framework for citizen complaints and complaints of

criminal offenses with respect to the matters raised by the submission is

74 FACTUAL RECORD: TARAHUMARA SUBMISSION

150. See Appendix 6.

151. Ibid.

152. Appendix 4: s. 5.1.

153. Ibid. s. 5.2.

154. See above, s. 5.

155. See Appendix 6.

156. See above, s. 8.4.1.
cooperation between entities and agencies with jurisdiction over the

environment, natural resources, and indigenous peoples at the federal,

regional, state, and local levels. In response to its requests for information, the Secretariat obtained general information about cooperation initiatives but did not obtain any details about cooperation in connection

with enforcement in the cases referenced in the submission, except

as regards the interagency agreements signed to help address the

Rochéachi case.157

9.2.1 Federal—State Cooperation

As regards federal-state cooperation, an existing state decentralization program agreed to by the Government of the State of Chihuahua

and Semarnat158 begins by recalling the following passage from the

2001-2006 National Development Plan:

[...] the Federal Executive Branch is committed to expediting the process of

federalism, the fair redistribution of the budget, the capacity to generate

greater revenues, and the power to make decisions on and execute works

and provide public services, to the local governments.159

According to the Program:

[W]ithin this framework, Semarnat seeks to promote effective and efficient decentralized environmental management that is conducive to making decisions in the place where problems and opportunities arise, and

assists in strengthening governability in the country’s federated entities

and municipalities. 160

[...]

Within this framework, primary jurisdiction over any matter must obey

the principle of subsidiarity whereby each order of government should be

responsible for that which it can best accomplish.161

The Program explains:

The process of decentralization of Semarnat is operating under a general

agreement on federalism signed by the state government on 18 January

2002, which expresses the will of the parties to carry out decentralization,

CHALLENGES TO ENFORCEMENT IN THE CASES COVERED 75

157. See above, s. 8.4.2.

158. Government of the State of Chihuahua and Semarnat, “State Decentralization

Program” (undated) (the “Program”).

159. 2001–2006 National Development Plan (Mexico, 2001) at 45.

160. The Program, supra, note 158 at 3.

161. Ibid. at 4.
their commitments, their support for training and technical assistance, the

grounds for reversion, and general safeguards. This agreement contains

the specific commitment to devise a state decentralization program with

possible contributions from the parties, including any subsidies that the

federal government is willing to provide to the state. Once the State of Chihuahua is in a position to take on the powers and provide the services currently

operated by the federal government, specific agreements will be signed in which

this transfer is enshrined [emphasis added].162

In the Request for Additional Information, the Secretariat asked

Mexico the following question:

3. Forestry Inspection and Surveillance

Profepa’s 2001–2006 Environmental Law Enforcement Program

[Programa de Procuración de Justicia Ambiental (PPJA)] identifies the Sierra

Tarahumara as a critical forested area (where, according to Profepa, frequent illegal logging causes significant alterations, endangering ecological stability and affecting society in general, since it suffers the effects of

deforestation) (PPJA, p. 20). In addition, of the country’s 100 critical

forested areas, the Sierra Tarahumara is identified as one of 9 “ungovernables” (where, according to Profepa, there are interrelated

problems such as organized crime, vehicle theft, bearing of prohibited

weapons, kidnapping, bribery, cultivation of narcotics, and collusion of

the authorities with criminals, in addition to various forestry-related

offenses) (PPJA, p. 20).

3.1 Please identify any intensive systematic surveillance operations

carried out in the Sierra Tarahumara with the participation of the

Division of Federalization and Decentralization of Forest and Soil

Services (Dirección General de Federalización y Descentralización de los

Servicios Forestales y de Suelo) and local governments, and provide

detailed information and/or the names of persons to contact in this

regard (PPJA, p. 21).

3.2 Please provide copies of cooperation agreements with federated

entities for assistance and optimization of resources devoted to forestry inspection and surveillance in the Sierra Tarahumara (PPJA,

p. 22).

3.3 Please provide copies of documentation evidencing the creation

of inspection and surveillance committees in the Sierra Tarahumara

communities identified in submission SEM-00-006 (Tarahumara)

(PPJA, p. 23).

76 FACTUAL RECORD: TARAHUMARA SUBMISSION

162. Ibid. at 5.
In response to question 3.1, Mexico stated: “In relation to the PPJA,

Profepa carried out 453 operations in 2000, 408 in 2001, 362 in 2002 and

514 in 2003,” but it did not mention if any of these operations took place

in the Sierra Tarahumara. 163

In response to question 3.2, Mexico stated that Profepa has not

signed any cooperation agreements with federated entities for assistance and optimization of resources devoted to forestry inspection and

surveillance in the Sierra Tarahumara.164 However, it provided the Secretariat with copies of various agreements signed between Semarnat

and the State of Chihuahua between October 1996 and March 2000 as

well as a draft “Coordination agreement to carry out actions to protect

and preserve forested natural resources entered into by [the Federal

Executive Branch acting through Profepa], party of the first part, and

[the Government of the State of Chihuahua, acting through the Governor], party of the second part.” This draft agreement stipulates that it

falls under the aegis of the 2001-2006 National Development Plan and

mentions that the object of the agreement is to establish guidelines

whereby Profepa and the state will coordinate their actions to protect

and preserve existing forest resources in the state. The draft agreement

stipulates that the parties shall assign “the material, human, and financial resources necessary for the performance of the Agreement within the

limits of their respective resources [emphasis added].” At the meeting held

by the legal officer from the CEC Secretariat with government authorities in Chihuahua City on 17 October 2003, authorities stated:

Profepa is responsible for surveillance of the sawmills. The roads: state

government. We will soon have an agreement to strengthen cooperation.

Profepa’s work is affected by international treaties, federal responsibility,

etc. The state government wants to get involved in regulation of border

areas but does not have the money, staff, capacity, etc., so if federal responsibility is transferred, environmental quality will suffer. This would affect

our bilateral responsibilities (such as the Ciudad Juárez-El Paso airshed).

According to the LGEEPA, the federal-state transfer will happen when the

level of resources at the state level is similar to those available at the federal

level.165

CHALLENGES TO ENFORCEMENT IN THE CASES COVERED 77

163. Oficio No. UCAI/0556/04 of 11 February 2004, from the Director of International

Cooperation of the International Affairs Coordinating Unit of Semarnat, Ma. Teresa

Bandala Medina, to the Legal Officer, Submissions on Enforcement Matters Unit,

CEC, Katia Opalka, with attached information provided by Profepa in response to

the Request for Additional Information.

164. Ibid.

165. LGEEPA Article 11.- The Federation, acting by the Ministry, may enter into coordination agreements or covenants in order for the governments of the Federal District
In response to question 3.3, above, Mexico sent the Secretariat

copies of three sets of minutes of regular general meetings of participatory surveillance committees, one involving Asociación Municipal de

Propietarios Rurales de Guachochi, A.C., another involving Silvicultores

Unidos de Guachochi, S.C., and a third involving ejido Guajalotes, Municipality of Balleza, Chihuahua. However, these are not communities

included in the submission. At the 17 October 2003 meeting, government authorities mentioned that many different participatory surveillance agreements are needed in order for Profepa to coordinate activities

with municipalities.

9.2.2 Interagency Cooperation

Regarding interagency cooperation, although Profepa, Conafor

and CNA are all agencies within the same Ministry (Semarnat), written

agreements are often required in order to coordinate their actions, as in

the case of Rochéachi, and even to coordinate actions between Profepa

and Semarnat. At the October 2003 meeting with the legal officer from

the CEC Secretariat, Profepa representatives commented:

There is verticality in the agencies of the federation but the problems are

not separate, they are intertwined. Horizontal, multidisciplinary action is

difficult. For example, Profepa does not have an education budget nor the

infrastructure to conduct seizures.

In compiling information for the preparation of the factual record,

the Secretariat attempted to obtain information relevant to the cases

addressed by the submission on cooperation between environmental

agencies and agencies responsible for indigenous affairs. In the Request

for Additional Information, the Secretariat asked:

78 FACTUAL RECORD: TARAHUMARA SUBMISSION

or the States, with the participation of the municipalities as applicable, to assume

the following responsibilities within their territorial jurisdiction:

[...]

IX. Inspection and enforcement of this law and other provisions ensuing from it.

[...]

Article 12.- For the purposes of the preceding article, coordination agreements or

covenants that the Federation, acting by the Ministry enters into with the Federal

District and the States, with the participation of the municipalities as applicable,

shall abide by the following principles:

They shall be entered into at the request of a federated entity when it possesses the

necessary means, trained personnel, material and financial resources, and specific

institutional structure for the development of the responsibilities it would assume

and which, for such purposes, the federal authority requires. These requirements

shall depend on the type of covenant or agreement to be signed, and the capacities

shall be assessed in conjunction with the Ministry.

[...]
The website of the National Campaign for Forests and Water [Cruzada

Nacional por los Bosques y el Agua] identifies the Sierra Tarahumara as a

region of poverty and natural resources degradation. It mentions that

Semarnat, the Ministry of Social Development [Secretaría de Desarrollo

Social—Sedesol] and the National Institute for Indigenous Affairs are the

leaders in confronting this problem and states that within 12 months

(before March 2002), a new program was to be presented whose purpose

would be to break the vicious cycle of poverty and environmental degradation, in which the means for fighting poverty would include incentives

for protection of natural resources and the environment, particularly forests and watersheds.

1.2 Please identify the actions taken since 2001 in the Sierra Tarahumara

within the above-mentioned program and/or within the Semarnat Special Program for Indigenous Peoples (April 2002) to fight poverty and

protect forests, and provide detailed information and/or the names of

persons to contact in this regard.

Mexico did not respond to this request.

In response to the Secretariat’s Follow-Up Information Request, in

July 2004, Mexico provided the Secretariat with summary information

regarding a new program to combat illegal logging in Mexico, including

specific information regarding the Sierra Tarahumara.166

One objective of the 2004 Program to Combat Illegal Logging was

to identify and address the causes of illegal logging, including: lack of

rural employment; disputes regarding title to land; lack of organization

in ejidos and communities; expensive and bureaucratic procedures;

increasing demand for timber; and a breakdown in communication

between ejidos and communities and federal and state programs.167

Demand for illegally harvested timber was identified as coming from

four areas: the construction industry; the agricultural sector (crates for

produce); small carpentry operations; and the automotive, beer, and

refreshment industries (demand for crates and pallets).168 Fifteen government agencies, entities and programs took part in a cross sector,

interinstitutional program for addressing illegal logging.169 As part of

CHALLENGES TO ENFORCEMENT IN THE CASES COVERED 79

166. Appendix 7: s. 1.3.

167. Profepa, “Program to Combat Illegal Logging 2004” (Power Point Presentation) (May

2004).

168. Ibid.

169. Ibid. Sagarpa (Secretaría de Agricultura, Ganadería, Desarrollo Rural, Pesca y Alimentación), Sectur (Secretaría de Turismo), Sedesol (Secretaría de Desarrollo Social); Fonaes

(Fondo Nacional de Apoyo para las Empresas de Solidaridad); Focir (Fondo de Capitalización e Inversión del Sector Rural), Semarnat, SRA (Secretaría de la Reforma Agraria),

CFE (Comisión Federal de Electricidad), Pemex (Petróleos Mexicanos), SE (Secretaría de
an initiative aimed at coordinating federal and state security forces, the

2004 Program to Combat Illegal Logging aimed to provide a response to

citizen complaints of illegal logging within a maximum of two hours.170

Profepa was given the task of preparing – for each municipality – a plan

for responding immediately to citizen complaints of illegal logging

(response in under two hours).171

According to the information provided to the Secretariat by

Mexico in July 2004, the Sierra Tarahumara was identified as one of

fifteen priority critical forested areas172 requiring coordinated action

and results within 100 days beginning 1 April 2004.173 The Sierra

Tarahumara was also designated as one of nine “ungovernable” areas

where, in addition to acute environmental degradation, environmental

law enforcement was impeded by the presence of criminal gangs associated with other types of illegal activities.174

Information provided by Mexico included a breakdown of expenditures by various agencies in the Sierra Tarahumara under the 2004

Program to Combat Illegal Logging for the period 1 May – 8 August

2004.175 A table provides the following accounting: Profepa spent

$345,000.00 (pesos) on 29 June 2004 to establish six participatory environmental surveillance committees; on 31 June 2004 [sic] Profepa and

the Government of the State of Chihuahua signed an agreement on

forest inspections;176 Profepa and Sagarpa held three meetings with

fruit growers from Chihuahua State to encourage them to use only

80 FACTUAL RECORD: TARAHUMARA SUBMISSION

Energía), CDI (Comisión Nacional para el Desarrollo de los Pueblos Indígenas), Fonart

(Fondo Nacional para el Desarrollo de las Artesanías), Conanp (Comisión Nacional de

Áreas Nacionales Protegidas), Conafor, Coplades (Comités de Planeación de Desarrollo)

(with participating state governments).

170. Ibid. This initiative involves the Mexican Army, the Federal Prevention Police, PGR,

Armada de México, the State Attorney General Offices, CISEN (Centro de Investigación

y Seguridad Nacional), and the Municipal Police.

171. Ibid.

172. Based on level of deforestation.

173. Appendix 7: s. 1.3: Profepa, “Establishment of fifteen areas considered critical due

to their level of deforestation and statement by the Office of the Federal Attorney for

Environmental Protection to the effect that six of these areas, including Sierra

Tarahumara, have been brought under control,” in Factual Record, Tarahumara Submission, SEM-00-006 (n.d.).

174. Ibid.

175. Appendix 7: s. 1.3: Profepa, “Establishment of fifteen areas considered critical due

to their level of deforestation and statement by the Office of the Federal Attorney for

Environmental Protection to the effect that six of these areas, including Sierra

Tarahumara, have been brought under control,” in Factual Record, Tarahumara

Submission, SEM-00-006 (n.d.). “Updated Forestry Inventory and Related Investments–Activities over 100-day Period (1 May to 8 August 2004)–Priority Critical

Forested Area of Sierra Tarahumara, Chihuahua.”

176. The CEC Secretariat did not obtain a copy of this agreement.
crates made of legally harvested lumber ($2,500.00); Conafor spent

$12,670,000.00 on forest management; Sedesol spent $8,269,138.00 on

developing temporary employment opportunities in the municipalities

of Guadalupe y Calvo, Balleza and Bocoyna, and identifying production options and promoting local development in the municipalities of

Guadalupe y Calvo, Balleza, Guerrero and Bocoyna; Profepa, Semarnat

and three other agencies spent $120,000.00 developing a work plan

to address agrarian conflicts “that are erroneously being treated as

environmental conflicts in San Carlos-Hierbabuena, Las ColoradasColoradas de la Vírgen and Coloradas de los Chávez-Pino Gordo,” and

$60,000.00 was spent on 24 June 2004 by Fonart under the National

Program for the Promotion of Handicrafts.

In addition, Profepa carried out two inspections of forest operations ($55,000.00); closed two roads used for the transport of illegally

harvested lumber ($137,550.00); inspected 11 forest areas in the

municipalities of Guadalupe y Calvo, Balleza, Guerrero and Bocoyna

($92,750.00); conducted eight forest audits in Guerrero and Bocoyna

($96,200.00); and strengthened the inspection system through checkpoints and information networks ($1,310,000.00). The State Attorney

General mounted two enforcement operations in sawmills ($30,000.00)

and two inspection operations in state checkpoints ($28,800.00). The

Ministry of Defense set up camps ($60,000.00). The PGR held a meeting

to establish a procedure for turning over suspects to MPF. The grand

total of expenditures: $23,276,138.00. Mexico reported that as a result of

these actions, in July 2004, the Sierra Tarahumara was no longer considered to be an “ungovernable” area, but that it was still considered to be a

critical area.177

In December 2004, Mexico held a press conference to report on the

results of the 2004 Program to Combat Illegal Logging, acknowledging

that between a quarter and a third of the lumber sold in Mexico is harvested illegally.178 Mexico reported that the armed forces were now

lending assistance to forest authorities in the country’s 15 priority

CHALLENGES TO ENFORCEMENT IN THE CASES COVERED 81

177. Appendix 7: s. 1.3: Profepa, “Establecimiento de quince zonas críticas por su nivel

de deforestación y la declaración por parte de la Procuraduría Federal de Protección

al Ambiente de Haber Recuperado Seis de estas Zonas, entre las Cuales Figura la

Sierra Tarahumara,” en Expediente de hecho sobre la petición SEM-00-006 Tarahumara

(sin fecha).

178. Press conference by Alberto Cárdenas Jiménez, Minister of the Environment and

Natural Resources, on the final results of the Program to Combat Illegal Logging for

2004 and the plan for 2005, with the participation of José Luis Luege Tamargo, Federal Attorney for Environmental Protection; Francisco García, Director, Forestry

and Soils, Semarnat; and Manuel Reed Segovia, Director, National Forest Commission (Mexico, Federal District, 7 December 2004).
forested areas, including through joint inspection and surveillance

actions.179 In addition, on 28 September 2004, Semarnat, Profepa and

PGR signed an agreement providing for joint action (within the limits of

their respective budgets) in preventing, responding to, investigating

and prosecuting environmental offences, and strengthening federal

action to put an end to impunity in environmental matters, particularly

as regards illegal logging.180 Under the agreement, the parties will

develop a Federal Environmental Enforcement and Management Program containing a list of objectives, actions, and performance indicators.181The agreement will be implemented by a joint Working Group, to

include representatives of PGR and Profepa, and other organizations, as

required,182 that will meet monthly183 and provide weekly reports to

the heads of the agencies involved.184 The agreement provides details

regarding Profepa’s responsibilities in providing timely assistance to

PGR in enforcing the CPF provisions on environmental offences.185

Mexico’s report on the results in 2004 of the Program to Combat

Illegal Logging includes a reference to cooperation between Profepa and

the agrarian sector regarding the agrarian problem in Colorada de los

Chávez.186 It mentions as an achievement of Semarnat, the establishment, in the Sierra Tarahumara, of an information system covering

roads, harvest and sawmill operations based on harvest data and transport manifests.187 Strategic objectives for 2005 include concerted action

82 FACTUAL RECORD: TARAHUMARA SUBMISSION

179. Semarnat, Conafor and Profepa, “Resultados Finales del Programa de Combate a la

Tala Clandestina 2004 y Programación 2005 – Resultados: 1 de mayo al 25 de

noviembre” (Power Point Presentation) (December 2004).

180. Ibid. SeeCooperation Agreement to Address and Prosecute Environmental Offenses and for

Environmental Management, between the Office of the Attorney General of the Republic,

the Ministry of the Environment and Natural Resources and the Office of the Federal Attorney for Environmental Protection (28 September 2004), published in the DOF on 13 of

October 2004. S. 4.4 of the agreement provides: “The Parties shall, in accordance

with the applicable standards and budget provisions, have at their disposal the

technical and material resources necessary to support the fulfillment of the objectives of this Agreement.”

181. Ibid. Clause Two.

182. Ibid. Annex, Clause Three.

183. Ibid.

184. Ibid. Annex, Clause Twenty.

185. Ibid. Annex: Operational Framework for Addressing, Investigating, and Prosecuting Offenses against the Environment and for Environmental Management, to

be Observed under the Terms of the Cooperation Agreement between the Office of

the Attorney General of the Republic, the Ministry of the Environment and Natural

Resources, and the Office of the Federal Attorney for Environmental Protection.

186. Semarnat, Conafor and Profepa, “Resultados Finales del Programa de Combate a la

Tala Clandestina 2004 y Programación 2005 – Resultados: 1 de mayo al 25 de

noviembre” (PowerPoint Presentation) (December 2004). No details are provided.

See above, s. 8.4.3.3.

187. Ibid.
to strengthen institutional presence in critical areas; actions to prevent

the reuse and forgery of transport manifests; intelligence operations

to attack organized crime in the area of illegal logging; coordination

with security forces at the state level; assisting the Federal Prevention

Police in enforcing road closures and preventing possible attacks against

Profepa staff; seeking assistance from MPF; airplane and helicopter surveillance; and remote (satellite) surveillance.188 Intelligence operations

will focus on eliminating market distortions caused by the introduction

of illegally harvested timber (disguised as legal timber) as well as

addressing impunity in business and political circles.189 Field operations

will collect information in order to identify key persons involved in

environmental offences; monitor transport routes (to identify weak

spots); and mount case files to be taken up by PGR or the related MPF.190

In the critical forested priority zones identified for 2005, there are three

ratings (AAA, AA, and A). “Critical forested zones in Chihuahua” is

rated AA.191

10. Closing Note

Factual records provide information regarding asserted failures to

effectively enforce environmental law in North America that may assist

submitters, the NAAEC Parties and other interested members of the

public in taking any action they deem appropriate in regard to the matters addressed. Pursuant to Council Resolution 03-04, this factual record

provides information relevant to a consideration of whether Mexico is

failing to effectively enforce its environmental law as regards the processing of 28 citizen complaints filed with federal authorities by indigenous communities from the Sierra Tarahumara mountains in western

Chihuahua state between 1998 and 2000 alleging illegal logging and

other natural resource extraction activities, and the alleged failure by

federal authorities to pursue criminal sanctions in regard to those activities.

In processing the citizen complaints covered by this factual record,

authorities did not issue decisions on the admissibility of the complaints

within the time period prescribed by law, and files were closed after the

time period prescribed by law. For the 16 cases in which the citizen complaint led to authorities ordering the adoption of corrective measures

and/or payment of fines, Mexico did not provide the Secretariat with

CLOSING NOTE 83

188. Ibid.

189. Ibid.

190. Ibid.

191. Ibid.
requested information regarding whether fines were paid and whether

enforcement action was taken when corrective measures were not carried out. For cases in which authorities determined that facts giving rise

to the complaint merited pursuing criminal sanctions, Mexico did not

provide the Secretariat with requested information regarding the existence or outcome of such proceedings. Regarding those cases where

authorities decided that the facts did not establish the existence of an

environmental crime, neither complainants nor the Secretariat obtained

an explanation from Mexico of the basis for the authorities’ decision.

Relations between indigenous communities and government

authorities, as well as federal-state cooperation and interagency cooperation, were identified by government authorities and complainants as

challenges to the effective enforcement of environmental law in the cases

covered by the factual record.

The remoteness of indigenous communities in the Sierra

Tarahumara and significant travel time required for authorities to investigate complaints are factors that impact relations between indigenous

communities and government authorities. Linguistic differences pose

barriers to communication and access to services, and differing perceptions of the value of forests come into play in reaching consensus on

what constitutes effective law enforcement. Indigenous communities

are concerned about the independence of federal environmental

enforcement staff, and federal authorities acknowledge that the number

of inspectors is too low and their salaries are not in line with those in the

rest of the federal civil service. Education and economic resources play a

role in allowing indigenous communities to take charge of and enforce

forest management systems. Lack of government follow-up to matters

raised in citizen complaints affects perceptions regarding the efficacy of

the complaints process.

As regards federal-state cooperation, lack of resources at the state

level has impeded efforts to delegate to the state of Chihuahua administration and enforcement functions for federal environmental law.

As regards interagency cooperation, according to Mexico, a

cross-sectoral initiative launched in 2004 aims to combat illegal logging

throughout Mexico through concerted action by many government

agencies. This has resulted in a commitment by federal authorities to

develop plans with all municipalities to respond to citizen complaints

of illegal logging in under two hours. In addition, an interagency

agreement was signed to facilitate cooperative action (agency budgets

84 FACTUAL RECORD: TARAHUMARA SUBMISSION
permitting) in bringing criminal cases in response to citizen complaints.

Federal, state, and local security forces are involved in on-the-ground

and aerial surveillance and intelligence gathering operations. The federal government is upgrading the system for tracking the legal origin of

lumber. Industry outreach initiatives aim to address demand for illegally harvested lumber at source, and the federal government has stated

that actions are being taken to redress impunity in business and political

circles.

CLOSING NOTE 85

APPENDIX 1

Council Resolution No. 03-04,

dated 22 April 2003

22 April 2003

COUNCIL RESOLUTION: 03-04

Instruction to the Secretariat of the Commission for Environmental

Cooperation Regarding the assertion that Mexico is failing to effectively enforce its environmental law in the Sierra Tarahumara in the

State of Chihuahua (SEM-00-006).

THE COUNCIL:

SUPPORTIVE of the process provided for in Articles 14 and 15 of

the North American Agreement on Environmental Cooperation (NAAEC)

regarding submissions on enforcement matters and the preparation of

factual records;

CONSIDERING the submission filed on 9 June 2000, by Comisión

de Solidaridad y Defensa de los Derechos Humanos A.C., representing various Indigenous communities in the Sierra Tarahumara in this submission process;

NOTING that the Secretariat modified the submission contrary to

the NAAEC and the Guidelines for Submission on Enforcement Matters

under Articles 14 and 15 of the NAAEC(Guidelines) and that it determined

on 6 November 2001 that the submission warranted a response from the

Party;

FURTHER NOTING that the government of Mexico, on 15 February 2002, submitted its response to the Secretariat in accordance with

Article 14(3) of the NAAEC;

HAVING BEEN INFORMED by Mexico that the administrative

proceedings related to the citizen complaints referenced under headings

H and M of the submission are no longer pending; and

HAVING REVIEWED the notification by the Secretariat of 29

August 2002, indicating that the development of a factual record is warranted;

HEREBY UNANIMOUSLY DECIDES TO:

INSTRUCT the Secretariat to prepare a factual record with respect

to the submission;

APPENDIX 1 89
REMIND the Secretariat that any assistance it provides to submitters must be in accordance with the NAAEC and the Guidelines;

DIRECT the Secretariat to provide the Parties with its overall work

plan for gathering the relevant facts and to provide the Parties with the

opportunity to comment on that plan; and

DIRECT the Secretariat to inform the Submitter of this resolution.

APPROVED BY THE COUNCIL.

90 FACTUAL RECORD: TARAHUMARA SUBMISSION
APPENDIX 2

Overall Plan to Develop a Factual Record,

dated 15 May 2003

Secretariat of the Commission

for Environmental Cooperation

Overall Plan to Develop a Factual Record

Submission I.D.: SEM-00-006 (Tarahumara)

Submitter: Comisión de Solidaridad y Defensa de

los Derechos Humanos A.C.

Party: United Mexican States

Date of this plan: 15 May 2003

Background

On 9 June 2000, the Comisión de Solidaridad y Defensa de los

Derechos Humanos A.C. (hereinafter “the Submitter”), acting on behalf

of various indigenous communities of the Sierra Tarahumara, made a

submission to the Secretariat of the Commission for Environmental

Cooperation (CEC) under Article 14 of the North American Agreement

on Environmental Cooperation (NAAEC). The Submitter asserts that

Mexico has failed to effectively enforce its environmental law by denying access to environmental justice to indigenous peoples of the Sierra

Tarahumara. In particular, it asserts a persistent pattern of failing to

effectively enforce environmental law with respect to the citizen complaint process, alleged environmental crimes and other alleged violations with respect to forest resources and the environment in the Sierra

Tarahumara.

The Secretariat recommended the development of a factual record

to the Council on 29 August 2002, with regard to the Submitter’s assertions on the alleged failure to effectively enforce the environmental law

with respect to citizen complaints and the prosecution of probable environmental crimes, in cases presented by the indigenous peoples and

communities of the Sierra Tarahumara referenced in the submission.

On 22 April 2003, the Council decided unanimously in Council

Resolution 03-04 to instruct the Secretariat to prepare a factual record on

the submission.

Under Article 15(4) of the NAAEC, in developing a factual record,

“the Secretariat shall consider any information furnished by a Party and

APPENDIX 2 93
may consider any relevant technical, scientific or other information: (a)

that is publicly available; (b) submitted by interested nongovernmental

organizations or persons; (c) submitted by the Joint Public Advisory

Committee; or (d) developed by the Secretariat or by independent

experts.”

Overall Scope of the Fact Finding

The submission asserts the alleged failure to effectively enforce

Articles 169, 189, 190 through 193, 199 and 202 of the General Law of Ecological Balance and Environmental Protection (Ley General de Equilíbrio

Ecológico y de Protección al Ambiente–LGEEPA), as well as Articles 416,

418 and 419 of the Federal Criminal Code (Código Penal Federal–CPF),

with respect to citizen complaints and the prosecution of probable environmental crimes in the cases presented by indigenous peoples and

communities of the Sierra Tarahumara referenced in the submission.

To prepare the factual record, the Secretariat will gather and

develop information relevant to the facts concerning:

i) the cases submitted by the indigenous peoples and communities of the Sierra Tarahumara referenced in the submission;

ii) Mexico’s enforcement of LGEEPA Articles 169, 189, 190

through 193, 199 and 202 and CPF Articles 416, 418 and 419,

with respect to those cases; and

iii) the effectiveness of Mexico’s enforcement of those provisions

in those cases.

Overall Plan

Consistent with Council Resolution 03-04, execution of the overall

work plan will begin on 2 June 2003. All other stated dates are based on

best estimates. The overall plan is as follows:

• Through public notices or direct requests for information, the Secretariat will invite the Submitter; JPAC; representatives of indigenous

peoples and communities of the Sierra Tarahumara; the local, state

and federal authorities; and the general public, to submit information

relevant to the scope of fact-finding outlined above. The Secretariat

will explain the scope of the fact finding, providing sufficient information to enable interested nongovernmental organizations or per94 FACTUAL RECORD: TARAHUMARA SUBMISSION
sons or the JPAC to provide relevant information to the Secretariat

(section 15.2 of the Guidelines for Submissions on Enforcement Matters

under Articles 14 and 15 of the North American Agreement on Environmental Cooperation). [Mid-June 2003]

• The Secretariat will request information from Mexican federal, state

and local authorities, as appropriate, and will consider any information provided by a Party (Articles 15(4) and 21(1)(a) of the NAAEC).

[Late June 2003] Information will be requested relevant to the facts

regarding:

i) the cases submitted by the indigenous peoples and communities

of the Sierra Tarahumara referenced in the submission;

ii) Mexico’s enforcement of LGEEPA Articles 169, 189, 190 through

193, 199 and 202 and CPF Articles 416, 418 and 419, with respect to

those cases; and

iii) the effectiveness of Mexico’s enforcement of those provisions in

those cases.

• The Secretariat will gather relevant technical, scientific or other information that is publicly available, including from existing databases,

public files, information centers, libraries, research centers and academic institutions. [July to October 2003]

• The Secretariat, as appropriate, will develop, through independent

experts, technical, scientific or other information relevant to the factual record. [July to October 2003]

• The Secretariat, as appropriate, will collect relevant technical, scientific or other information for the preparation of the factual record,

from interested nongovernmental organizations or persons, the

JPAC or independent experts. [July to October 2003]

• In accordance with Article 15(4), the Secretariat will prepare the draft

factual record based on the information gathered and developed.

[November 2003 to January 2004]

• The Secretariat will submit a draft factual record to Council, and any

Party may provide comments on the accuracy of the draft within 45

days thereafter, in accordance with Article 15(5). [February 2004]

• As provided in Article 15(6), the Secretariat will incorporate, as

appropriate, any such comments in the final factual record and submit it to Council. [March 2004]

APPENDIX 2 95
• The Council may, by a two-thirds vote, make the final factual record

publicly available, normally within 60 days following its submission,

according to Article 15(7).

Additional information

The submission, Mexico’s response, the Secretariat determinations, the Council Resolution, and a summary of these are available on

the Citizen Submissions on Enforcement Matters section of the CEC web

site <http://www.cec.org>, or upon request to the Secretariat at the following address:

Secretariat of the CEC Submissions on Enforcement Matters

Unit (SEM Unit)

393 St-Jacques St. West

Suite 200

Montreal, QC H2Y 1N9

Canada

CEC / Mexico Liaison Office:

Atención: Unidad sobre Peticiones

Ciudadanas (UPC)

Progreso núm. 3,

Viveros de Coyoacán

México, D.F. 04110

México

96 FACTUAL RECORD: TARAHUMARA SUBMISSION
APPENDIX 3

Request for Information,

dated 10 September 2003

Secretariat of the Commission

for Environmental Cooperation

REQUEST FOR INFORMATION

for Preparation of a Factual Record

Submission SEM-00-006 (Tarahumara)

September 2003

I. The factual record process

The Commission for Environmental Cooperation (CEC) of North

America is an international organization created under the North American Agreement on Environmental Cooperation (NAAEC) by Canada,

Mexico and the United States. The CEC operates through three organs: a

Council, made up of the highest-level environmental official in each

member country; a Joint Public Advisory Committee (JPAC), composed

of five citizens from each country; and a Secretariat located in Montreal.

Article 14 of the NAAEC allows residents in North America to

inform the Secretariat, in a submission, that any member country (hereinafter, a Party) is failing to effectively enforce its environmental law.

This initiates a process of review of the submission, after which the

Council may instruct the Secretariat to prepare a factual record in connection with the submission. A factual record seeks to provide detailed

information to allow interested persons to assess whether a Party has

effectively enforced its environmental law with respect to the matter

raised in the submission.

Under Articles 15(4) and 21(1)(a) of the NAAEC, in developing a

factual record, the Secretariat shall consider any information furnished

by a Party and may ask a Party to provide additional information. The

Secretariat also may consider any information that is publicly available;

provided by the JPAC, the Submitters or other interested persons or

nongovernmental organizations; or developed by the Secretariat or

independent experts.

On 22 April 2003, the Council decided unanimously to instruct

the Secretariat to develop a factual record regarding submission

SEM-00-006 (Tarahumara). By means of this document, the Secretariat

seeks information relevant to matters to be addressed in the factual

record for submission SEM-00-006 (Tarahumara). The following sections provide background on the submission and describe the type of

information sought.

APPENDIX 3 99
II. The Tarahumara submission

On 9 June 2000, the Comisión de Solidaridad y Defensa de los

Derechos Humanos A.C. (“the Submitter”) filed a submission with the

Secretariat asserting that Mexico is failing to effectively enforce its environmental law by denying access to environmental justice to indigenous

communities of the Sierra Tarahumara in the state of Chihuahua, Mexico. In particular, it asserts a failure to effectively enforce environmental

law with respect to the citizen complaint process, the prosecution of

alleged environmental crimes and other alleged violations with respect

to forest resources and the environment in the Sierra Tarahumara.

III. Assertions with respect to which the Secretariat recommended

the preparation of a factual record

On 6 November 2001, the Secretariat determined that some of submission’s assertions warranted requesting a response from the Party.

After reviewing the Party’s response, on 29 August 2002 the Secretariat

notified the Council that it recommended the preparation of a factual

record with respect to some of the assertions that it had considered warranted a response from the Party. To simplify the analysis of the submission in light of the Party’s response, the assertions were grouped into

three headings.1 These headings are reproduced below, along with

the Secretariat’s respective recommendations in light of the Party’s

response.

1. Alleged failure to effectively enforce the citizen complaint procedure

(Articles 189, 190 to 193 and 199 of the General Law of Ecological Balance

and Environmental Protection (Ley General de Equilibrio Ecológico

y de Protección al Ambiente–LGEEPA)

The Submitter asserts in headings A, F, R, S y T of the submission

that Mexico is failing to effectively enforce its environmental law by failing to duly process 30 citizen complaints on illegal harvesting in and

destruction of the Sierra Tarahumara forest. These citizen complaints

were filed between February 1998 and March 2000 by different groups:

the Community of San Ignacio de Arareco; the Communal Farm (Ejido)

Communities of Ciénega de Guacayvo, San Diego de Alcalá and El

Consuelo; the Rarámuri and Tepehuán indigenous communities; and

100 FACTUAL RECORD: TARAHUMARA SUBMISSION

1. A complaint may fall under more than one section (i.e., that of 12 October 1998 submitted by Tepehuán de las Fresas community, which the Submitter indicated as an

instance of noncompliance in points A.2, F.3, I.3 and O.1). The same applies to inspections.
the Coalición Rural/Rural Coalition. Most of the citizen complaints refer

to activities or facts that the complainants regard as a threat to the Sierra

Tarahumara ecosystem and the subsistence and patrimony of the local

cultures. [...]

In summary, although Mexico’s response is highly detailed, the

appendices to the response do not allow for the conclusion that the relevant authority has taken the enforcement steps set forth in the LGEEPA

with respect to most of the specific cases raised in the submission. In the

resolutions and rulings attached to the response, we find that the authority enforced the environmental law properly in regard to only two of the

33 complaints under the notification.2 In all the other cases, the authority

omitted one or more concrete actions involved in the procedure or carried them out outside the period set forth in the law (by a few days in

approximately half the cases, and by around one month in the others).

The fact that these citizen complaints were not processed within the

required period is especially relevant, given the other alleged failures to

effectively enforce the citizen complaint process in the cases mentioned

in the submission.

The Mexican legal system allows only those persons with a recognized legal interest to undertake a judicial proceeding against persons

who, in contravention of the applicable rules, causes damage to the environment or natural resources. The citizen complaint procedure is the

only means that any interested party has to put the State’s environmental protection machinery into motion. Therefore, the effective enforcement of the citizen complaint procedure is fundamental to further and

promote citizen participation in environmental protection. In addition,

the Mexican legal system stresses the importance of ensuring the right

of indigenous communities to protect their environment and natural

resources.3 The matters raised in the submission with respect to the

APPENDIX 3 101

2. See Annex 15 of the submission and Annex I of the Party’s response. Complaints filed

by Ricardo Chaparro Julián (Tepehuán de las Fresas indigenous community) on 12

October 1998 and by the Rocoroyvo communal farm on 18 February 2000.

3. Political Constitution of the United Mexican States (Constitución Política de los Estados

Unidos Mexicanos), Article 2. [...] A. This Constitution recognizes and guarantees the

right of indigenous peoples and communities to free determination, and consequently the autonomy to:

[...] V. Conserve and improve the habitat and preserve the integrity of their lands,

pursuant to this Constitution.

[...] VIII. Fully accede to the jurisdiction of the State. To guarantee this right, in all

suits and proceedings to which they are party individually or collectively, their

customs and cultural specifics must be taken into account, respecting the precepts

of this Constitution [...]

LGEEPA, Article 15. For the formulation and furtherance of environmental policy

and the issuance of Mexican official standards and all other instruments set forth in
effective enforcement of the citizen complaint procedure as a mechanism enabling indigenous communities and other communities in the

Sierra Tarahumara to participate in the environmental protection of the

area warrant development and documentation in a factual record. The

Secretariat considers that the preparation of a factual record on the effective enforcement of Articles 189, 190 to 193 and 199 of the LGEEPA, with

respect to the citizen complaints in question, is warranted.

2. Alleged failure to effectively enforce the provisions on the investigation

and prosecution of probable environmental crimes (Articles 416, 418 and

419 of the Federal Penal Code (Código Penal Federal–CPF) and Articles 169 and 202 of the LGEEPA)

Headings G, H, I, K, M, N, O and P of the submission contain assertions as to the alleged failure to effectively enforce the environmental

law with respect to the investigation and prosecution of probable environmental crimes.

The submission states that the environmental authority was notified, through citizen complaints, of facts that possibly constituted environmental crimes. It asserts that the authority also performed at least 15

inspections in which it identified probable environmental crimes. The

submission asserts that Mexico is failing to effectively enforce its environmental law in two ways: by failing to exercise the powers it possesses

to undertake investigations or notify the Federal Public Prosecutor

(Ministerio Público Federal) of facts consistent with such crimes pursuant

to Articles 169 and 202 of the LGEEPA, and by not applying Articles 416,

418 and 419 of the CPF, which define and penalize criminal conduct that

harms the environment, to the alleged criminal actions.4 [...]

102 FACTUAL RECORD: TARAHUMARA SUBMISSION

this Law regarding the preservation and restoration of the ecological balance and

environmental protection, the Federal Executive shall observe the following principles:

[...] XIII. To guarantee the right of communities, including indigenous peoples, to

protect, preserve, use and sustainably exploit natural resources and to safeguard

and use biodiversity, as determined in this Law and other applicable provisions;

[...]

4. CPF Article 416. A penalty of from three months to six years of imprisonment and

from one thousand to twenty thousand days’ fine shall be imposed upon anyone

who, without any required authorization or in contravention of the provisions of

law, regulation or Mexican official standards:

I.- Discharges, deposits or spills, or so authorizes or orders, wastewater, chemical or

biochemical liquids, waste or pollutants into the soil, seawater, rivers, basins, waterways and all other water deposits or currents under federal jurisdiction, that cause or

may cause harm to public health, natural resources, flora, fauna, basin water quality,

or the ecosystems.

In the case of water to be delivered en bloc to population centers, the penalty may

increase by up to three more years [...]
To summarize, Mexico’s response does not show that the environmental authority and Federal Public Prosecutor have effectively

enforced the environmental law regarding the investigation and prosecution of probable environmental crimes. This submission warrants the

development of a factual record that will document the process by

which the environmental authority determined whether the facts in

question of which it learned were likely to constitute environmental

crimes, as well as the rulings by which it determined whether it would

inform the Federal Public Prosecutor of such facts, in accordance with

Articles 169 and 202 of the LGEEPA. The preparation of a factual record

is also warranted to generate information as to whether Mexico is effectively enforcing Articles 416, 418 and 419 of the CPF with respect to these

facts, which according to the submission likely constitute a crime.

3. Alleged failure to effectively enforce the provisions on judicial review

(Article 176 of the LGEEPA)

Headings C and D of the submission contain assertions regarding

the due processing of applications for judicial review (recursos de

revisión) filed with respect to the citizen complaints in question. [...]

With respect to the Party’s alleged failure to effectively enforce its

environmental law in regard to the admission or nonadmission of applications for judicial review, raised under heading C of the submission,

Mexico’s response indicates that the applications were granted and

shows the corresponding rulings. Furthermore, regarding the Party’s

APPENDIX 3 103

CPF Article 418.- A person who, without having the authorization required pursuant

to the Forestry Law (Ley Forestal), upsets or destroys the natural vegetation, cuts,

pulls or fells trees, uses forestry resources or changes land use, shall be subject to a

penalty of from three months to six years of imprisonment and a fine in the equivalent of one hundred to twenty thousand days’ fine. [...] The same penalty shall apply

to anyone who intentionally causes forest or natural vegetation fires that damage

natural resources, flora, fauna or the ecosystems.

CPF Article 419.- Anyone who transports, deals in, collects or transforms timber

resources in amounts greater than four cubic meters or the equivalent thereof, for

which the use has not been authorized pursuant to the Forestry Law, shall be subject

to a penalty of from three months to six years of imprisonment and from one hundred

to twenty thousand days’ fine, except in cases of the use of forestry resources for

household use pursuant to the provisions of the Forestry Law.

The relevant paragraph of Article 169 of the LGEEPA provides: “In the applicable

cases, the federal authority shall notify the Public Prosecutor of the undertaking of

acts or omissions learned in the exercise of its powers, that may constitute one or

more crimes.”

LGEEPA Article 202.- The Office of the Federal Attorney General for Environmental

Protection (Procuraduría Federal de Protección al Ambiente–Profepa), in the scope of its

attributions, is empowered to undertake the applicable actions before the competent

judicial authorities, when it learns of acts, facts or omissions that constitute violations of the administrative or criminal laws.
alleged failure to issue a definitive ruling with respect to the application

for judicial review referenced in heading D of the submission, Mexico’s

response shows that the aforesaid applications were resolved, attaching

the corresponding rulings.5 Therefore, the Secretariat considers that the

submission’s allegations regarding the applications for judicial review

filed in connection with the citizen complaints do not warrant the development of a factual record.

IV. Request for information

The Secretariat of the CEC requests information relevant to the

facts concerning:

i) the cases mentioned in headings A, F, G, H, I, K, M, N, O, P, R,

S and T of the submission.

ii) Mexico’s enforcement of the citizen complaint procedure

(Articles 189, 190 to 193 and 199 of the LGEEPA) in the cases

mentioned in headings A, F, R, S and T of the submission, and

Mexico’s enforcement of the provisions on the investigation

and prosecution of probable environmental crimes (Articles

416, 418 and 419 of the CPF and Articles 169 and 202 of the

LGEEPA) in the cases mentioned in headings G, H, I, K, M, N,

O and P of the submission.

iii) the effectiveness of Mexico’s enforcement of these provisions

in the above-mentioned cases.

V. Examples of relevant information

1. Information on the processing of the cases mentioned in the submission with respect to which the Secretariat recommended a factual record;

2. General background information regarding the forest industry in

the Sierra Tarahumara, including for example:

a) Statistics on annual revenues of the forestry sector in the

Sierra Tarahumara since 1998;

b) Information on the geographic range of forestry activities in

the Sierra Tarahumara since 1998;

104 FACTUAL RECORD: TARAHUMARA SUBMISSION

5. See pages 8 and 9 of the Party’s response, as well as Annexes VI and VII thereof.
c) Information with respect to the composition of the forest

industry in the Sierra Tarahumara since 1998, including the

principal businesses, percentage of small businesses, and

number and size of indigenous businesses;

3. Detailed information with respect to the financial and human

resources allotted to enforcement of the LGEEPA in the Sierra

Tarahumara since 1998;

4. Information on the inspection and audit program for forestry

activities in the Sierra Tarahumara since 1998, to verify compliance

with the environmental laws, including statistics on the number of

inspections and audits per year per region, rates of compliance,

and actions cases of noncompliance;

5. Information on the financial and human resources allotted to handle citizen complaints in the Sierra Tarahumara since 1998;

6. Information on any Profepa plan or program to better handle citizen complaints filed by the indigenous communities of the Sierra

Tarahumara, financial and human resources allotted to undertake

such plan or program, and the results thereof since 1998;

7. Information on Profepa procedures to forward citizen complaints

to the competent authorities (when it is not the competent authority) and to ensure that such authorities follow through on the matters under complaint;

8. Information with respect to Profepa’s procedures to notify the

Federal Public Prosecutor of facts constituting environmental

crimes in the Sierra Tarahumara, and information on any program

of assistance or cooperation between the Public Prosecutor and

Profepa with respect to alleged crimes in the context of forestry in

the Sierra Tarahumara.

VI. Additional background information

The submission, Mexico’s response, the Secretariat’s determinations, the Council Resolution, the overall plan to develop the factual

record and other information are available in the Registry and Public

Files in the Citizen Submissions on Enforcement Matters section of the

CEC web site at <http://www.cec.org >. These documents may also be

requested from the Secretariat.

APPENDIX 3 105
VII. Where to send information

Relevant information for the development of the factual record

may be sent to the Secretariat until 30 November 2003, to either of the following addresses:

Secretariat of the CEC

Submissions on Enforcement

Matters Unit (SEM Unit)

393, rue St-Jacques Ouest,

bureau 200

Montréal QC H2Y 1N9

Canada

Tel. (514) 350-4300

CCA / Mexico Liaison Office

Atención: Unidad sobre Peticiones

Ciudadanas (UPC)

Progreso núm. 3

Viveros de Coyoacán

México, D.F. 04110

México

Tel. (52-55) 5659-5021

For any questions, please send an e-mail to the attention of Katia

Opalka, at <info@ccemtl.org>.

106 FACTUAL RECORD: TARAHUMARA SUBMISSION
APPENDIX 4

Request for Additional Information,

dated 20 January 2004

Letter to the Party Requesting Additional

Information for Development of the Factual

Record for SEM-00-006 (Tarahumara)

20 January 2004

Re: Request for Additional Information/

Development of draft factual record on submission

SEM-00-006/ Tarahumara

This is further to our letter of 5 December 2003. The Secretariat has

completed its review of Mexico’s response (filed with the Secretariat on

2 December 2003 as an appendix to its memo UCAI/6115/03) to the

request for information made by the Secretariat on 10 September 2003

in relation to the development of a factual record for submission

SEM-00-006/Tarahumara.

Having completed its review of the response, the Secretariat

requires additional information for the preparation of the factual record

and would be grateful for your prompt attention by distributing our

request for additional information (see appendix) to the appropriate

federal, state, and municipal bodies. With the aim of finalizing the

draft factual record within one year from Council Resolution 03-04, we

request that you send Mexico’s response no later than 13 February 2004.

Please do not hesitate to contact me (kopalka@ccemtl.org/(514) 350-

4337)) should you have any questions about the request.

Yours sincerely,

Legal Officer

Submissions on Enforcement Matters Unit

cc: Assistant Director General of International Cooperation, UCAI

Director, Department of Legal Affairs, UCAI

CEC Executive Director

APPENDIX 4 109
Secretariat of the Commission

for Environmental Cooperation

REQUEST FOR ADDITIONAL INFORMATION

for Development of a Factual Record for

Submission SEM-00-006 (Tarahumara)

January 2004

1. National Forests and Water Campaign

A strategic objective of the National Forests and Water Campaign

(Cruzada Nacional por los Bosques y el Agua—CNBA) (http://

148.233.168.204/bosque-agua/ejes_tematicos.shtml) – initiated

by President Vicente Fox in March 2001 for an initial term of

18 months – is “to build a great national alliance for the cleanup

and recovery of the country’s bodies of water and forested areas,

whose severe degradation threatens national security and the

well-being of the population.” The CNBA website lists thematic

emphases and critical regions for the actions of the Campaign. It

mentions that the Sierra Tarahumara is one of the most critical forested areas of Mexico for the problem of deforestation. Furthermore, it mentions that the lead institutions on deforestation within

the Campaign would be the Ministry of the Environment and

Natural Resources (Secretaría de Medio Ambiente y Recursos

Naturales—Semarnat), the National [Forest] Commission and the

Office of the Federal Attorney for Environmental Protection

(Procuraduría Federal de Protección al Ambiente—Profepa)

which, within 12 months, were to announce nationwide institutional programs and actions to counteract deforestation, and that

the National Forest Commission was to announce its programs

and main priorities and strategic actions.

1.1 Please identify the institutional programs and actions carried

out in the Sierra Tarahumara since 2001 under the CNBA to

counteract the deforestation caused by illegal harvesting,

and provide detailed information and/or the names of persons to contact in this regard.

The CNBA website identifies the Sierra Tarahumara as a region

of poverty and natural resource degradation. It mentions that

Semarnat, the Ministry of Social Development (Secretaría de

Desarrollo Social—Sedesol) and the National Institute of Indigenous Affairs (Instituto Nacional Indigenista) would be the leaders in

110 FACTUAL RECORD: TARAHUMARA SUBMISSION
confronting this problem, and states that within 12 months (prior

to March 2002) a new program would be presented with the purpose of breaking the vicious cycle of poverty and environmental

degradation, in which the instruments for fighting poverty would

include incentives for protecting natural resources and the environment, particularly forests and watersheds.

1.2 Please identify the actions carried out since 2001 in the Sierra

Tarahumara within the aforementioned program and/or

within the Semarnat Special Program for Indigenous Peoples

(April 2002) to fight poverty and protect the forests, and provide detailed information and/or the names of persons to

contact in this regard.

2. Cooperation Agreements between Profepa and the Government of

the State of Chihuahua

2.1 Please provide a copy of the Agreement on Decentralization

of Forest Monitoring between Profepa and the Government

of the State of Chihuahua of 19 April 1997.

2.2 Please provide a copy of the agreement between Profepa and

the Government of the State of Chihuahua to strengthen

cooperation on inspection of timber on roads and at sawmills

which, according to what was said at the meeting of 17 October 2003 (see 5.2.2 below), was to be signed in 2003.

3. Forest Inspection and Monitoring

Profepa’s Environmental Law Enforcement Program 2001-2006

(Programa de Procuración de Justicia Ambiental—PPJA) identifies the

Sierra Tarahumara as a critical forested area (where, according to

Profepa, forest-related offenses frequently occur, causing significant alterations, jeopardizing ecological balance, and affecting

society in general due to the effects of deforestation) (PPJA, p. 20).

Furthermore, of the country’s 100 critical forested areas, the Sierra

Tarahumara is identified as one of the 9 “ungovernable” areas

(where, according to Profepa, there are interrelated problems such

as organized crime, vehicle theft, carrying of prohibited weapons,

kidnapping, bribery, growing of narcotics, and collusion of the

authorities with criminals, in addition to various forestry-related

offences) (PPJA, p. 20).

APPENDIX 4 111
3.1 Please identify the intensive operational actions of systematic enforcement carried out in the Sierra Tarahumara with

the participation of the Federalization and Decentralization

of Forest and Soil Services Branch (Dirección General de

Federalización y Descentralización de los Servicios Forestales y de

Suelo) and local governments and provide detailed information and/or the names of persons to contact in this regard

(PPJA, p. 21).

3.2 Please provide copies of cooperation agreements entered

into by the federated entities for assistance and optimization

of resources allocated to forestry inspection and enforcement

in the Sierra Tarahumara (PPJA, p. 22).

3.3. Please provide copies of documentation attesting to the creation of inspection and monitoring committees in the communities of the Sierra Tarahumara identified in submission

SEM-00-006/Tarahumara (PPJA, p. 23).

4. Profepa’s Institutional Capacity

The PPJA (see above) states as follows: “In sum, if the status of the

Mexican environment, particularly in regard to natural resources,

verges on the apocalyptic, it is because that was allowed to happen

or was in fact desired and intended. The challenge, therefore,

resides in matching intention to action” (PPJA, p. 8). It also states as

follows: “In fact, the operational and management capacity of

Profepa may be evaluated and considered as a function of the

resources and levels of action achieved or implemented by its state

offices” (PPJA, p. 115).

4.1 In 2001, then Minister of the Environment Victor Lichtinger

stated as follows: “We are concerned to give higher salaries

to Profepa inspectors” (Mario A. Arteaga, “Ya se toma en

cuenta la Semarnat: Lichtinger,” at Río Grande/Río Bravo

Basin Coalition, RioWeb: www.rioweb.org (6 March 2001)).

Were the salaries of the Profepa inspectors in Chihuahua

increased? If so, please provide detailed information and/or

the names of persons to contact in this regard.

4.2 The PPJA notes that “Profepa is the only federal body in

charge of carrying out acts of forestry inspection and enforcement, whose purpose is to contain the destruction of natural

resources and reverse processes of environmental degrada112 FACTUAL RECORD: TARAHUMARA SUBMISSION
tion as well as to restore the rule of law to the entire country in

this domain” (PPJA, p. 20). A chart in the PPJA shows the

distribution of the 5,488 environmental complaints (January-November 2001) in Mexico (PPJA, p. 104). The Sierra

Tarahumara area stands out because it appears that no environmental complaints were filed with Profepa in this area (it

is to be assumed that they would have been filed with the

Profepa offices in the city of Chihuahua). Given that this is

a critical forested area according to the PPJA (see 3 above),

why does Profepa not have offices or staff in the Sierra

Tarahumara?

5. Follow-up to Citizen Complaints

In regard to proceedings instituted by federal agencies based

on the citizen complaints mentioned in submission SEM-00-006/

Tarahumara (see table included with Secretariat’s Request for

Information of 10 September 2003), important issues remain outstanding:

5.1 Corrective Measures: What did Profepa do in the cases (A.2,

A.8, A.13, F.2, F.3, F.5, G.5) in which one or more of the corrective measures ordered was not carried out?

5.2 Fines: In those cases where Profepa issued a collection notice,

were the fines collected?

5.2.1 On 8 October 2003, the Director of the Forestry Development Branch of the Ministry of Rural Development

of the State of Chihuahua (oficio no. 588-*073/03)

informed María Teresa Guerrero that his office would

be requesting information from the mayoralty offices

(Presidencias Municipales) on the collection of the fines

in question. Please provide copies of the information

gathered as well as the names of persons to contact in

this regard.

5.2.2 At the meeting held in Chihuahua on 17 October 2003

attended by representatives of the Secretariat,

Semarnat, Profepa, the National Water Commission

(Comisión Nacional del Agua—CNA) and the Office of

the Attorney General of the Republic (Procuraduría

General de la República—PGR), it was mentioned that

there exists a bill which, if passed, would allocate fines

APPENDIX 4 113
arising from Profepa sanctions to the funding of

Profepa’s enforcement activities. If so, please provide

detailed information and/or the names of persons to

contact in this regard.

5.2.3 Please provide information on the operation of the

Revenue Administration System (Sistema de Administración Tributaria) with respect to the fines imposed

in the Sierra Tarahumara since January 2003.

5.2.4 Please provide written information on the criteria

applied in determining the amount of fines, from whom

they are to be collected, and the cost of collecting fines in

the Sierra Tarahumara.

5.3 Criminal Complaints:

5.3.1 What was the outcome in those cases (G.2, G.3, H.1,

I.10/R.2) in which the Public Prosecutor petitioned the

Judge to institute criminal proceedings?

5.3.2 What was the outcome in those cases (I.1/A.1, I.18/A.9,

K.2, K.3, K.4, I.14/A.5, M.1, O.6/R.1, O.7/I.10, P.9) in

which it is mentioned that “criminal proceedings were

instituted”?

5.3.3 Please provide detailed information indicating why

Profepa did not institute criminal proceedings in each

of the following cases: G.1, G.4, G.6, I.2/F.1, I.3/A.2,

I.4/A.3, I.5/S.1, I.6/S.2, I.7/F.7, I.8/F.8, I.12/T.1, I.13,

I.15/A.6, I.17/A.8, I.23/A.14, I.24/A.15, K.1, O.1/A.2,

O.2/A.3, O.3/F.7, O.4/F.8, O.5/F.9, O.6/R.1, P.1, P.2,

P.3, P.4, P.5, P.6, P. 7, P.8, P.10, P.11, P.14.

5.3.4 Detailed responses are requested from the PGR for the

questions addressed to the PGR in the following cases:

I.11, K.3 – point 3, K.4 – point 3, N.1- point 2.

5.3.5 During the meeting of 17 October 2003 (see 5.2.2 above),

it was mentioned that the creation of special environmental tribunals is under consideration. Please provide

detailed information and/or the names of persons to

contact in this regard.

114 FACTUAL RECORD: TARAHUMARA SUBMISSION
5.4 Specific Cases:

5.4.1 In case R.2, please respond directly to the four questions

and provide the Secretariat with detailed information

in this regard. (Semarnat did not respond to question 1.

Profepa did not respond to questions 2, 3 and 4 about

compliance with administrative processes.)

5.4.2 In case I.6/S.2, a copy of the explanatory letter sent by

Semarnat to the complainants is requested.

5.4.3 In case T.1, the questions refer to the authorized Forest

Management Program for Colorada de los Chávez.

Responses to the corresponding questions are

requested.

5.4.4 Case G.5: In the minutes of interinstitutional meetings

for review and study of the problems of the Rochéachi

River, Municipality of Guachochi, Chihuahua of 22

October 1999 and 3 November 1999 which the CNA

included in its response to the Secretariat’s Request for

Information of 10 September 2003, a series of agreements between CNA, Semarnat and Profepa is listed,

including:

22 October 1999

1. In the future, complaints of this type, and particularly those that are highly sensitive in terms of

the potential public reaction, will be assessed and

addressed jointly by the three entities.

2. An oficio will be addressed to [Semarnat] requesting that it carry out environmental impact assessments on the mining of materials from riverbeds

and federal zones of rivers and streams.

3. The CNA will provide Semarnat with copies of the

documentation produced further to visits to the

Rochéachi River area for its information and will

complement the information necessary to assess

environmental impact.

APPENDIX 4 115
4. The CNA will file a status report on complaints

referred to it and appearing in a list provided by

Profepa at the meeting.

3 November 1999

1. The heads of the three entities will be asked to consider the possibility of making the issuance of concessions for any mining of materials conditional

on an environmental impact assessment, in accordance with the General Law on Ecological Balance

and Environment Protection and its environmental

impact regulation.

2. That for future mining permits, the interested parties be requested to submit a photographic record

for identification of the area to be exploited before

and after the mining work.

Please provide detailed information and/or the names

of persons to contact regarding the implementation of

these agreements to date and explain whether there has

been any initiative by the entities to heighten their

enforcement of the prohibition on mining of materials

for commercial purposes without prior authorization.

116 FACTUAL RECORD: TARAHUMARA SUBMISSION
APPENDIX 5

Follow-up Information Request,

dated 10 June 2004

Follow-up Information Request

10 June 2004

Re: Preparation of factual record for submission

SEM-00-006 (Tarahumara)

As you know, on 22 April 2003, the Council of the North American

Commission for Environmental Cooperation (the “CEC”) unanimously

decided to instruct the CEC Secretariat to prepare a factual record in

regard to citizen submission SEM-00-006 (Tarahumara), in accordance

with Article 15 of the North American Agreement on Environmental

Cooperation (the “NAAEC”) and the Guidelines for Submissions on

Enforcement Matters Under Articles 14 and 15 of the North American Agreement on Environmental Cooperation (the “Guidelines”).

Currently, the Secretariat is in the process of concluding the information gathering and preparation for the factual record. In this regard,

in recent weeks various media have published information that the Secretariat considers important to consider for inclusion in the factual

record. The information in question concerns statements apparently

made by the Mexican Ministry of Environment and Natural Resources

in relation to: (i) combating illegal logging in Mexico; (ii) significant

progress on environmental law enforcement; (iii) current year’s statistics on number of detentions for illegal logging and corresponding sanctions applied; (iv) possible participation of the Ministry of National

Defense, acting through the Mexican Army, in forest monitoring activities; (v) updating of the forest inventory and related investments, and

(vi) establishment of 15 critical zones characterized by their level of

deforestation, and statement by the Office of the Attorney General for

Environmental Protection asserting that six of the zones, including

Sierra Tarahumara, have been brought under control.

Given that Mexico could provide additional information in regard

to the matters raised above; with the intention of ensuring that the final

draft factual record contains the most complete and up-to-date information possible; and in anticipation of the possibility that the Party could

provide additional information to that previously provided to the Secretariat in accordance with NAAEC Articles 15(4) and 21(1)(a), the Secretariat hereby requests, on the basis of those articles, that the Party

provide this additional information.

APPENDIX 5 119
With the intention of pursuing and completing the preparation of

the factual record expediently, we hope that you can provide any of this

additional information by 8 July 2004.

Thank you in advance for your kind attention to this request.

Sincerely,

Legal Officer

Submissions on Enforcement Matters Unit

cc: Executive Director, CEC

120 FACTUAL RECORD: TARAHUMARA SUBMISSION
APPENDIX 6

Citizen Complaints Covered by the Factual

Record, Corresponding Questions from the

Secretariat to Mexico, and Responses of Mexico
122 FACTUAL RECORD: TARAHUMARA SUBMISSION

I. Alleged failures to effectively enforce the provisions relating to the citizen

complaint procedure

A. Party’s failure to guarantee the indigenous peoples access to environmental

justice through the citizen complaint procedure

A.1 14/10/98 Raramurí Indigenous

People of Choguita

(J.M. Fuentes

Rodríguez et al.)

Removal of green

wood.

Document received 26/10/98.

27/11/98 Profepa considered

the citizen complaint (CC) as a

request for permit suspension

and referred to Semarnap.

8/1/99 Profepa allowed appeal

for review. 14/4/99 Profepa

resolved appeal by confirming

that the matter is a request

only, not a CC.

Notice of status took

more than 10 days.

Review concluded in

3 months. (< 4)

A.2 10/12/1998 Tepehuan de las Fresas

Indigenous People,

Llano Grande Ejido

(Ricardo Chaparro

Julián et al.)

Clandestine felling

and removal of forest

resources.

CC filed 15/10/98. Profepa

allowed 6/11/98. Administrative

proceeding concluded on

30/3/00.

Fine: 41,340.00. Corrective

actions: 1) refrain from forestry

operations without

authorization; 2) reforest 5 ha

in Loma San Miguel area w/ at

least 2 native species of Pinus,

density of 1200 plants/ha and

ensure that individuals

establish and thrive (8 months);

3) chip and disperse debris

(perpendicular to slope) in

Los Tarros area (1 month).

CC admissibility

decision took more

than 10 days.

Conclusion of

administrative

proceeding in 1 year

5 months after filing

of CC. There was no

concluding decision on

the CC, nor any notice

to the complainants.

A.3 12/04/1998 Tepehuan de las Fresas

Indigenous People,

Llano Grande Ejido

(Ricardo Chaparro

Julián et al.)

Illegal timber

removal.

CC filed 4/12/98. 27/1/99

Profepa gave notice that a

similar complaint of 15/10/98

was being processed.

Profepa response took

more than 10 days and

no joinder of CC with

previous.

A.4 12/07/1998 Raramurí Indigenous

People of Rochéachi

Ejido (Agustín Bravo

Gaxiola et al.)

Mining of sand, earth

and other materials

from riverbed.

CC admissibility decision

26/1/99 (more than 10 days)

and Profepa stated that it

lacked jurisdiction, referring to

CNA. 15/2/99 appeal for review

filed. Profepa concluded appeal

12/5/99.

Profepa admissibility

decision on CC took

more than 10 days.

Review concluded

in 3 months (<4).

Although the review

ordered notice to be

given to the appellant,

no notice was given,

since the “Submission”

indicates that as of

6/00 there was no

conclusion.

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter
APPENDIX 6 123

Notes Questions to

the Party

Responses of the Party Authority’s

file number

Comments on

Party’s responses

“Notification” (by

CEC) accepted

Response of the

Party in regard to

proper execution of

review procedure.

How did Semarnap

process the request

referred by Profepa?

Semarnat does not possess Profepa

decision ordering suspension.

Profepa did not consider the

document as a CC, but as a

request only, which falls within

Semarnat’s jurisdiction.

Semarnat states that it did not

receive the Profepa decision

(and apparently it did not

process the request in any

way). The result is that no

agency considered itself

competent and there was no

resolution of the request in

question.

Proper admissibility

decision as per pp.

11-12 “Notification”.

No concluding

decision.

1.- Was concluding

decision issued?

2.- Were the complainants

notified?

3.- Were the corrective

measures carried out?

4.- Within the applicable

time period?

5.- Was the fine paid?

1.- Yes, concluding decision issued

on 30/05/00.

2.- Received by Teresa Guerrero on

06/06/00.

3.- Two of three measures were

complied with. No reforestation.

4.- Yes.

5.- Collection order (oficio de cobro)

no. 004954 05/Dec/2000.

F-134/99 Concluding decision 1 year

7 months after filing of

complaint. Collection order

exists (6 months after

concluding decision), but there

is no indication of whether

collection took place.

Reforestation did not occur (1

of 3 corrective measures) and

there is no indication of what

the authority does in such

cases. Remaining questions

resolved.

No questions. No questions.

Error in Submission,

footnote 191;

reference to

Appendix 57 to CC

but there is no such

appendix. (It is

found in the

Response of the

Party).

1.- Did CNA process the

complaint?

2.- What was the result?

3.- Did Profepa notify the

appellants of the

conclusion of the appeal?

1.- CNA made inspection visits to

Rochéachi 18/9/98, 9/12/98, 2/2/99 y

9/9/99, indicating on each occasion

that the mining was taking place

legally. The Ejido and Egos continued

to indicate that there were serious

impacts on the ecosystems. They

filed complaints with Environmental

Impact Assessment and requests

through Rural Coalition and the

National Human Rights Commission.

2.- Finally, on 13/10/99, CNA and the

Ejido agreed to a total indefinite

suspension of mining concessions in

the Ejido. On 10/3/00 Agustín Bravo

and Rochéachi Ejido members filed a

CC for mining without a concession.

16/3/00 Profepa referred the CC to

CNA. 24/3/00 CNA informed Profepa

that mining was taking place without a

concession and that sanctions would

be applied as prescribed by the

National Waters Act. 3.- Profepa gave

notice of conclusion of appeal for

review through registry of decisions,

published 13/05/99.

Questions resolved.
124 FACTUAL RECORD: TARAHUMARA SUBMISSION

A.5 15/3/00 Raramurí Indigenous

People of Cuiteco Ejido

(Agustín Bravo Gaxiola

et al.)

Illegal use of forest

timber resources.

CC received 15/3/00. Allowed

by Profepa 31/3/00. Profepa

issued concluding decision

31/8/00 with restoration

measures (unspecified) and

fine: 18,950.00.

CC admissibility

decision took more

than 10 days.

Conclusion in

5 months (>4).

A.6 15/3/00 Raramurí Indigenous

People of Baragomachi

Ejido (Agustín Bravo

Gaxiola)

Illegal logging. CC received 15/3/00. Allowed

by Profepa 31/3/00. Profepa

issued concluding decision

31/8/00 with corrective

measure (unspecified)

and fine: 5,167.50.

CC admissibility

decision took more

than 10 days.

Conclusion in

5 months (>4).

A.7 15/3/00 Raramurí Indigenous

People of Monterde

Ejido (Agustín Bravo

Gaxiola)

Illegal logging. CC received 15/3/00. Allowed

by Profepa 31/3/00. Profepa

issued concluding decision

19/9/00 with corrective

measures (unspecified) and

fine: 3,790.00.

CC admissibility

decision took more

than 10 days.

Conclusion in

6 months (>4).

A.8 15/3/00 Raramurí Indigenous

People of Basonaivo

Ejido (Agustín Bravo

Gaxiola)

Illegal logging. CC received 15/3/00. Allowed

by Profepa 31/3/00. Profepa

issued concluding decision

27/11/00 with corrective

measures (unspecified) and

fine: 22,740.00.

CC admissibility

decision took more

than 10 days.

Conclusion in

8 months (>4).

A.9 15/3/00 Raramurí Indigenous

People of Mesa de

Arturo Ejido (Agustín

Bravo Gaxiola)

Illegal logging. CC received 15/3/00. Allowed

by Profepa 31/3/00. Profepa

issued concluding decision

19/9/00 with corrective

measures (unspecified) and

fine: 45,480.00.

CC admissibility

decision took more

than 10 days.

Conclusion in

6 months (>4).

A. Party’s failure to guarantee the indigenous peoples access to environmental

justice through the citizen complaint procedure (continued)

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter
APPENDIX 6 125

1.- What were the

corrective measures and

compliance deadlines

ordered?

2.- Were the measures

carried out?

3.- Within the applicable

time period?

4.- Was the fine paid?

1.- a) Rodal 150 conduct operations

in accordance with management

program (compliance deadline

12 months) or state reasons why not

done. b) Carry out reforestation as

per plan (compliance deadline

14 months). c) MARIO GONZALEZ

CHAPARRO, carry out chipping and

spreading (compliance deadline

6 months).

2.- Yes. Verified 26/08/2003 file

no. CIO413RN2000VR001.

3.- Yes, archive 22/09/2003.

4.- Collection order no. 003312

31/08/01).

F-1249/00 No indication of whether

fine was paid. Remaining

questions resolved.

1.- What were the

corrective measures and

compliance deadlines

ordered?

2.- Were the measures

carried out?

3.- Within the applicable

time period?

4.- Was the fine paid?

1.- Chipping and spreading of debris

from forestry operation (6 months).

2.- Compliance with corrective

measure.

3.- Yes.

4.- Collection order no. 004349

31/10/01.

F-1320/00 Collection order exists

(more than 1 year after the

concluding decision), but

there is no indication of

whether collection took place.

Remaining questions

resolved.

1.- What were the

corrective measures and

compliance deadlines

ordered?

2.- Were the measures

carried out?

3.- Within the applicable

time period?

4.- Was the fine paid?

1.- a) Chipping and spreading of

debris from forestry operation.

b) Soil treatment (immediate).

2.- Yes, the corrective measures

were implemented.

3.- Yes.

4.- Collection order no. 004954

05/12/2000.

F-1322/00 Collection order exists,

but there is no indication of

whether collection took place.

Remaining questions

resolved.

1.- What were the

corrective measures and

compliance deadlines

ordered?

2.- Were the measures

carried out?

3.- Within the applicable

time period?

4.- Was the fine paid?

1.- a) Chipping and spreading of

debris from forestry operations

(compliance deadline one month).

b) Soil conservation work (compliance

deadline one month). c) Reforestation

(compliance deadline 15 months).

2.- Two of three measures complied

with. No reforestation.

3.- Yes, except the third.

4.- Collection order no. 11723

19/04/01).

F-1324/00 Collection order exists

(5 months after the concluding

decision), but there is no

indication of whether

collection took place. No

reforestation (1 of 3 corrective

measures) and there is no

indication of what the authority

does in such cases.

Remaining questions

resolved.

1.- What were the

corrective measures and

compliance deadlines

ordered?

2.- Were the measures

carried out?

3.- Within the applicable

time period?

4.- Was the fine paid?

1.- a) Chipping and spreading.

b) Soil treatment (immediate).

2.- Yes, verified 26/08/03 file

no. CI0414RN2000VR001.

3.- Yes. Archive 22/09/03.

4.- Collection order no. 003312

31/08/01.

F-1312/00 Collection order exists

(11 months after concluding

decision), but there is no

indication of whether

collection took place.

Remaining questions

resolved.

Notes Questions to

the Party

Responses of the Party Authority’s

file number

Comments on

Party’s responses
126 FACTUAL RECORD: TARAHUMARA SUBMISSION

A.10 02/07/2000 Raramurí Indigenous

People of Churo Ejido

(Domingo Carrillo via

Cosyddhac).

Illegal logging. CC received 7/2/00. Profepa

issued admissibility decision

6/3/00. Profepa issued

concluding decision 17/1/02

with warning for subsequent

presentation of authorization

for operation; fine (Juan Frías

Mancino): 3,790.00. corrective

measures: planting with native

spp.; chipping and spreading of

debris; soil treatment actions.

Individual fines to 6 persons,

total amount 2,017.50.

CC admissibility

decision took more

than 10 days.

Conclusion in almost

2 years (>4 months).

A.11 15/3/00 Raramurí Indigenous

People of Churo Ejido

(Agustín Bravo Gaxiola)

Illegal logging. CC received 15/3/00. 7/4/00

Profepa gave notice of joinder

with file in A.10. 17/1/02

Profepa issued concluding

decision described in A.10.

CC admissibility

decision took more

than 10 days.

Conclusion in nearly

2 years (>4 months).

A.12 15/3/00 Raramurí Indigenous

People of Refugio Ejido

(Agustín Bravo Gaxiola)

Illegal logging. CC received 15/3/00. Allowed

by Profepa 31/3/00. Profepa

issued concluding decision

19/9/00 with corrective

measures (unspecified) and

fine: 1,895.00 to perpetrators.

CC admissibility

decision took more

than 10 days.

Conclusion in

6 months (>4).

A.13 15/3/00 Raramurí Indigenous

People of Ocoviachi

Ejido (Agustín Bravo

Gaxiola)

Illegal logging. Received 15/3/00. 7/4/00

Profepa requested information

confirming identity of violators

in order to proceed (without

allowing CC). 31/8/00

administrative proceeding

(result of forestry inspection

visit), no evidence of Illegal

logging found but evidence of

fire found. Therefore, fine of

3,790.00 and natural

regeneration work ordered for

10 ha affected as well as

fencing the area to avoid

grazing. No notice given to

complainants.

CC admissibility

decision took more

than 10 days. CC not

allowed.

A.14 18/2/00 Raramurí Indigenous

People of Rocoroyvo

Ejido (President of

Ejido Council)

Illegal logging. Received 18/2/00. Allowed

25/2/00. Concluding decision

31/7/00 with corrective

measures unspecified, fine of

6,064.00 and seizure of 5.776

M3R.

Response within

prescribed period.

Concluding decision in

5 months (>4).

A.15 15/3/00 Raramurí Indigenous

People of Rocoroyvo

Ejido (Agustín Bravo

Gaxiola)

Illegal logging. Received 15/3/00. 7/4/00

Profepa joined complaint with

A.14. 31/7/00 concluding

decision described in A.14.

CC admissibility

decision took more

than 10 days.

Concluding decision

in 5 months (>4).

A. Party’s failure to guarantee the indigenous peoples access to environmental

justice through the citizen complaint procedure (continued)

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter
APPENDIX 6 127

Notes Questions to

the Party

Responses of the Party Authority’s

file number

Comments on

Party’s responses

1.- Were the corrective

measures carried out?

2.- Within the applicable

time period?

3.- Were the fines paid?

1.- No corrective measures.

2.- No corrective measures.

3.- Persons accused found not

responsible.

F-1243/00 The corrective measures

order was rescinded and the

fines CNAcelled because the

persons accused were found

not responsible (explained in

I.19).

The persons warned

and sanctioned in

the decision do not

exactly coincide

with those accused

in the CC.

1.- Were the corrective

measures carried out?

2.- Within the applicable

time period?

3.- Were the fines paid?

The document dated 15/03/00 was

joined with the complaint registered

under no. 00/03/027/65 by means of

decision of 07/04/00. See A.10.

F-1243/00 CC joined with previous one

(A.10). Previous comment

applies.

1.- What were the

corrective measures and

compliance deadlines

ordered?

2.- Were the measures

carried out?

3.- By the deadline?

4.- Were the fines paid?

1.- a) Chipping and spreading of

debris from forestry operation

(immediate) b) Fire breaks

(immediate).

2.- Yes. Verified 26/08/03 file no.

CI0415RN2000VR001.

3.- Yes Archive 22/09/03.

4.- Collection order no. 004954

05/12/00.

F-1314/00 Collection order exists, but

there is no indication of

whether collection took place.

Remaining questions

resolved.

1.- Why was the CC not

allowed if, under Art.

190-III, the site of the fire

was identified?

2.- Why were the

complainants not informed

of the results of the

inspection visit?

3.- Was the fine paid?

4.- Were the corrective

measures carried out?

1.- Further information was requested

from the complainants pursuant to

Article 190 Paragraph III of the

General Ecological Balance and

Environmental Protection Act (Ley

General del Equilibrio Ecológico y la

Protección al Ambiente – LGEEPA).

When this was not provided, the

agency opted to conduct the

inspection visit in order to determine

whether there were any environmental violations. On this visit it

verified the existence of a forest fire.

2.- The complainant was not notified

because no response was given to

the Office’s request for more

information pursuant to LGEEPA

Article 190. 3.- Collection order

no. 004954 05/12/00.

4.- No compliance with any of the

three corrective measures.

F-1318/00 Collection order exists, but

there is no indication of

whether collection took place.

No corrective measures

implemented; no indication of

what the authority does in this

case. Remaining questions

resolved.

Proper admissibility

decision as per pp.

11-12 “Notification”

(CEC).

1.- Were the corrective

measures carried out?

2.- Was the fine paid?

3.- Did the seizure take

place?

1.- Yes.

2.- Collection order no. 003312

31/08/01.

3.- Under appeal for review.

F-1239/00 Collection order exists

(13 months after concluding

decision), but there is no

indication of whether

collection took place. Seizure

did not take place due to filing

of appeal for review.

Remaining questions

resolved.

1.- Were the corrective

measures carried out?

2.- Was the fine paid?

3.- Did the seizure take

place?

Document dated 15/03/00 was joined

with complaint no. 00/03/024/66 by

means of decision of 07/04/00;.

see A.14.

F-1239/00 CC joined with previous

(A.14). Previous comment

applies.
128 FACTUAL RECORD: TARAHUMARA SUBMISSION

A.16 15/3/00 Raramurí Indigenous

People of Areponapuchi

Ejido (Agustín Bravo

Gaxiola)

Rock mining in

riverbed.

Received 15/3/00. 31/3/00

Profepa declined jurisdiction

and referred document to state

office of CNA.

CC admissibility

decision took more

than 10 days.

A.17 15/3/00 Raramurí Indigenous

People of San Alonso

Ejido (Agustín Bravo

Gaxiola)

Removal of materials

including green

firewood from

riverbed.

Received 15/3/00. 31/3/00

Profepa declined jurisdiction

and referred document to state

office of CNA.

CC admissibility

decision took more

than 10 days.

A. Party’s failure to guarantee the indigenous peoples access to environmental

justice through the citizen complaint procedure (continued)

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter
APPENDIX 6 129

1.- Did the CNA process

the complaint?

2.- What was the result?

3.- Was the decision

complied with?

4.- Were the complainants

notified?

1.- By decision of 31/03/00 Profepa

referred complaint to CNA and it was

received 07/04/00. CNA authorized a

visit to the site but could not gather

reliable information from the allegedly

responsible company, which would

have been indispensable in carrying

out the administrative procedure. In a

visit to the riverbed, no obstruction or

rock mining was found.

2.- No conclusion.

3.- Does not apply.

4.- CNA does not specify.

There is no evidence that

CNA notified the

complainants.

The complaint

indicated removal

of green firewood,

which would in fact

be within Profepa’s

jurisdiction. The

Profepa response

does not mention

green firewood.

1.- Why, in its response,

did Profepa not include the

aspects of the complaint

relating to forest resources

(green firewood)?

2.- Did the CNA follow up

on the matters within its

jurisdiction?

3.- Within the prescribed

period?

4.- What was the result?

5.- Was the decision

complied with?

6.- Were the complainants

notified?

1.- Complaint referred to CNA, with

decision on 31/03/00 and notice

07/04/00.

2.- CNA authorized site visit; visited

the creek but did not find alterations

to the riverbed. The officer remained

on the site for five hours but no one

arrived to carry out mining activities.

3.- Visit took place 29/5/00.

4.- No conclusion since no

irregularities found.

5.- Does not apply.

6.- No evidence of this in the file.

Profepa did not respond to

question 1. No evidence that

CNA notified the complainants

of the inspection visit.

Notes Questions to

the Party

Responses of the Party Authority’s

file number

Comments on

Party’s responses
130 FACTUAL RECORD: TARAHUMARA SUBMISSION

F.1 20/8/98 El Consuelo Community

(complainants requested

that their identity be kept

secret)

Illegal logging and

shipping of forest

resources.

Received 20/8/98. Allowed

03/9/98. 20/11/98 attempted

inspection unsuccessful for

reasons unrelated to the

parties complained of. 3/99

Profepa internal memo

reported on inspection visit.

30/6/00 concluding decision

with corrective measures

(unspecified) and fine:

15,502.50.

Admissibility decision

within prescribed

period. First inspection

visit within prescribed

period, but concluding

decision almost

2 years after receipt

of CC.

F.2 18/8/99 San Ignacio de Arareco

Community (Agustín

Bravo Gaxiola)

Excavation and

alteration of natural

structure of creek

bed and bank;

removal and felling of

vegetation and trees,

and change of land

use in forested

areas; all without

authorization.

Received 18/8/99. Profepa

issued admissibility decision

6/9/99 and referred waterrelated aspects to CNA.

6/7/00 concluding decision

with corrective measures

(unspecified) and fine:

15,502.50. 8/5/00 CNA

responded that it had located

1 dam (CC mentioned 3), there

was no removal of materials at

the time of the inspection, and

no information was obtained

from the residents as to the

identity of the perpetrators;

therefore, it was impossible to

determine their identity.

CC admissibility

decision took more

than 10 days.

Concluding decision in

11 months (>4). CNA

responded almost

9 months from filing of

CC and did not take

administrative action.

F.3 10/12/1998 Tepehuan de las Fresas

Indigenous People,

Llano Grande Ejido

(Ricardo Chaparro

Julián et al.)

Clandestine felling

and removal of forest

resources.

CC filed 15/10/98. Allowed by

Profepa 6/11/98. 30/3/00

Conclusion of administrative

proceeding. Fine: 41,340.00.

Corrective actions: 1) refrain

from unauthorized forestry

operations; 2) reforest 5 ha in

Loma San Miguel sector w/ at

least 2 native spp. of Pinus,

density 1200 plants/ha and

guarantee establishment of

plants (8 months); 3) chip and

spread debris (perpendicular

to slope) in Los Tarros sector

(1 month).

CC admissibility

decision took more

than 10 days.

Administrative

proceeding issued

1 year 5 months after

filing of complaint. No

concluding decision

nor notification to

complainants.

F.4 12/04/1998 Tepehuan de las Fresas

Indigenous People,

Llano Grande Ejido

(Ricardo Chaparro

Julián et al.)

Illegal timber

removal.

CC filed 4/12/98. 27/1/99

Profepa gave notice that a

similar complaint of 15/10/98

was being processed.

Profepa response took

more than 10 days and

did not issue joinder

decision.

F.5 16/6/99 Community of

San Diego de Alcalá

Ejido (Oscar Romero

Viezcas)

Clearing, land use

change, total removal

of various vegetation.

Received 16/6/99. Allowed by

Profepa 5/7/99. Conclusion of

administrative proceeding

29/9/00. Corrective measures:

reforestation of 110,903 M2 with

500 mezquite plants, 2500

Opuntia rastrera plantas, 1800

ocotillo (Fouquieria splendens)

plants (26 months); fence plantations for 10 years (26 months);

soil conservation work (e.g.

filling and tamping of gullies,

seeding with native forrages,

bordering of counterslope and

preparation of rootstocks

(8 months). Fine: 11,370.00.

CC admissibility

decision took more

than 10 days. No

concluding decision

nor notice to

complainants.

F. Party’s failure of enforcement in connection with resolution or conclusion of

citizen complaints

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter
APPENDIX 6 131

Notes Questions to

the Party

Responses of the Party Authority’s

file number

Comments on

Party’s responses

1.- Were the corrective

measures carried out?

2.- Within the prescribed

time period?

3.- Was the fine paid?

Appeal for review filed 24/08/00 and

by decision of 17/04/2001,

administrative decision was voided

because the fine was not duly

reasoned and justified; therefore,

implementation of the corrective

measures and collection of the fine

were suspended.

F-314/99 Appeal for review voided

administrative decision of year

2000. Therefore, corrective

measures and collection of

fine were suspended.

Matters within Profepa’s

jurisdiction: 1.- Were the

corrective measures

carried out?

2.- Within the prescribed

time period?

3.- Was the fine paid?

CNA: 4.- Why did it not

conduct a more exhaustive

investigation?

Profepa 1.- Refrain from conducting

forestry operations and reforestation

over an area of 108 m2.

2.- Corrective measure not

implemented.

3.- Collection order no. 003392

07/09/01.

4.- CNA indicates that field inspector

visited the site on 26-27 October

1999 from 8:00 a.m. to 2:00 p.m. and

that during those periods the

inspector did not observe water

removal or mining in the creek.

F-3417/99 Collection order exists (14

months after concluding

decision), but there is no

indication of whether

collection took place. The

reforestation was not carried

out. CNA did not respond as

to why it did not conduct a

more exhaustive investigation

of the alleged perpetrator,

since the CC referred to the

CNA included, as evidence,

photographs of the vehicle

labeled as the property of the

party complained of (among

other evidentiary

photographs).

As of 15/02/02, date

of the Response of

the Party, and 3.5

years from filing of

the CC, there is no

concluding decision

nor order to notify

the complainants.

1.- Was there a concluding

decision for the CC?

2.- Were the complainants

notified?

3.- Were the corrective

measures carried out?

4.- Within the prescribed

time period?

5.- Was the fine paid?

1.- Concluding decision 30/05/00.

2.- The complainants were notified

through C. Teresa Guerrero

06/06/2000.

3.- Measure no. 2, reforestation, was

not complied with.

4.- Measures 1 and 3 were

implemented by the respective

compliance deadline.

5.- Collection order 004954 05/12/00.

F-134/99 A collection order exists (11

months after the concluding

decision), but there is no

indication whether fine was

collected. The reforestation

was not carried out (1 of 3

corrective measures) and

there is no indication of what

the authority does in such

cases.

No admissibility or

joinder decision.

No questions. F-134/99 No questions.

1.- Was a concluding

decision issued with notice

to the complainants?

2.- Were the corrective

measures carried out?

3.- Within the applicable

time period?

4.- Was the fine paid?

1.- Concluding decision 07/12/2000.

Complainants notified through C.

Josó Ramón Lara on 14/12/00.

2.- Two of three measures complied

with. No reforestation.

3.- Yes, for two only.

4.- Collection order no. 003312

31/08/01.

F-1229/00 Collection order exists

(8 months after the concluding

decision), but there is no

indication whether fine was

collected. The reforestation

was not carried out (1 of 3

corrective measures) and

there is no indication of what

the authority does in such

cases. Remaining questions

resolved.
132 FACTUAL RECORD: TARAHUMARA SUBMISSION

F.6 09/01/1999 Community of San

Diego de Alcalá Ejido

(Oscar Romero

Viezcas and Juan

Nieto Rodríguez)

Clearing, removal of

vegetation and

untreated wastewater discharge.

Received 1/9/99. Joinder to F.5

by Profepa on 13/9/99.

CC admissibility

decision and joinder

within prescribed

period. No evidence

that CNA was notified

in connection with

wastewater

discharges.

F.7 18/2/98 Community of Ciénega

de Guacayvo Ejido

(Manuel Pérez Rascón

et al.)

Unauthorized forestry

operations, in

riverbeds and

elsewhere, on

adjacent property.

18/2/98 filing of CC. 4/3/98

Profepa allowed CC. 30/6/00

concluding decision with

corrective measures

(unspecified) and fine:

24,160.00

CC admissibility

decision took more

than 10 days.

Conclusion in 2 years,

4 months (>4 months)

F.8 19/7/99 Community of Ciénega

de Guacayvo Ejido

(Isaías Rivera Pérez et

al.)

Repeat incident of

illegal logging on

Rincón de Gervacio

lot.

Received 19/7/99. Allowed

9/8/99. 30/5/00 concluding

decision with fine (unspecified).

CC admissibility

decision took more

than 10 days.

Conclusion in

10 months (>4).

F.9 08/03/1999 Community of Ciénega

de Guacayvo Ejido

(Isaías Rivera Pérez et

al.)

Illegal logging. Received 3/8/99. Joinder with

F.8 on 24/8/99. Therefore, the

concluding decision for F.8

applies.

Joinder decision took

more than 10 days.

Conclusion in

9 months (>4).

F.10 17/11/99 Coalición Rural/ Rural

Coalition

Excessive logging in

Sierra Tarahumara

and request for

effective processing

of CCs filed.

CC dated 8/11/99 and filed

17/11/99. Admissibility decision

by Profepa Complaints Branch

(DGDQ) 25/11/99. 7/12/99

Semarnap State Office referred

CC to state office of Profepa

due to two points under the

latter’s jurisdiction. No

documents indicating that the

Semarnap office processed the

two points under its jurisdiction.

2/2/00 DGDQ responded to

three of the four points in the

CC. DGDQ did not conclude

the CC nor indicate the

considerations of the oficio as a

conclusion.

CC admissibility

decision within

prescribed period. No

concluding decision.

Semarnap state office

did not process the

complaint.

F. Party’s failure of enforcement in connection with resolution or conclusion of

citizen complaints (continued)

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter
APPENDIX 6 133

Notes Questions to

the Party

Responses of the Party Authority’s

file number

Comments on

Party’s responses

1.- Was the CNA notified

concerning the wastewater

discharges? 2.- If so, did

the CNA take any action?

1.- Complaint referred to CNA

15/10/1999 by means of oficio dated

08/10/99, no. B22PROFEPA.07/

C/003901.

2.- The CNA did not find the file

relating to this complaint in the

archives of the state office. However,

it presents a site visit report of

13/10/99, “...for the purpose of

addressing the complaint.. [of]

untreated wastewater discharge...”.

In the inspection of springs, CNAals,

and outlets, no changes in the

characteristics of the water reaching

the ejido were observed, nor were

any wastewater discharges.

Questions resolved.

1.- Were the corrective

measures carried out?

2.- Within the prescribed

period?

3.- Was the fine paid?

Filing for nullification (juicio de

nulidad) against the sanction

decision. In a ruling of 01/08/2002,

the lower federal court (Tribunal

Fiscal de la Federación) declared the

nullity of the administrative decision in

order for the complaint to be made

known to C. MATILDE NUNEZ

QUEZADA. Therefore, verification of

measures and collection of the fine

do not apply.

F-1869/98 Sanction decision nullified,

therefore corrective measures

and collection of fine do not

apply.

1.- Was the fine paid? 1.- Collection order no. 004954

05/12/2000.

F-1478/99.

F-2474/99.

F-3960/99

Collection order exists

(6 months after the concluding

decision), but there is no

indication of whether

collection took place.

No questions. No questions.

1.- Did Semarnap allow,

process, and conclude the

complaint?

2.- Did Semarnap Office

respond to complainants?

3.- Why was the internal

accounts office not notified

with respect to point 2 of

the complaint?

1.- Semarnat as such is not

responsible for the admissibility

decision or for concluding complaints,

as that is the responsibility of

Profepa, and so it did process by

referring to Profepa.

2.- Yes, since it responded with a

copy of oficio no. DCH.01.08.118/99

121311 of 7 December 1999 stating

that the Headquarters would issue

the notice.

3.- Unknown, but both the offices of

Profepa and Semarnat in the state of

Chihuahua have been audited by

their internal auditing bodies and no

observations of that nature were

made.

Note: The document was sent to the

Minister, the authority responsible for

responding to the Submission.
134 FACTUAL RECORD: TARAHUMARA SUBMISSION

R.1 26/7/99 Community of Ciénega

de Guacayvo Ejido

(Isaías Pérez Rivera et

al.)

Felling of trees

without marks on

Rincón de Gervacio

lot

26/7/99 filing with Profepa.

Profepa did not issue

admissibility or joinder

decision.

Profepa did not issue

admissibility or joinder

decision.

R.2 10/04/1999 Community of Ciénega

de Guacayvo Ejido

(ejido authorities)

Illegal forestry

operations and

storage of forest

resources by San

Juanito sawmills.

4/10/99 CC filed with state

office of Semarnap. 18/10/99

Semarnap referred it to

Profepa. 10/12/99 Profepa

responded to Semarnap that

the relevant inspections had

been carried out previously and

that administrative proceedings

had been brought against the

parties complained of.

Semarnap referred

complaint to Profepa

promptly but did not

notify the complainants

that it had done so. No

admissibility or joinder

decision by Profepa.

R. Party’s failure of enforcement in failing to issue admissibility decision on Citizen

Complaint and failing to carry out the necessary procedures

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter
APPENDIX 6 135

Profepa has no

copy of CC in

appendices.

Response of the

Party argues that

CC was processed

properly, referring to

Appendix III.

However, no

documentation on

this CC in that

appendix (nor in

Appendices

I,II,IV,VI,VII).

1.- Was the CC allowed or

subject to joinder?

2.- Was the CC

processed?

1.- There is no document with that

date on file, but the complaints filed

by the complainants were processed

since inspection visits were made to

Ciénega de Guacayvo Ejido, finding

evidence of unauthorized operations,

leading to the administrative

proceedings mentioned in the

following response. 2.- The following

administrative proceedings were

initiated:

a) F-2474/99 (Concluded 15/05/00).

b) F-3960/99 (Concluded 15/05/00).

c) F-1781/00 (Concluded 31/07/01).

F-2474/99

F-3960/99.

F-1781/00.

Neither the submitters nor the

authorities have any

documentation on this CC, but

there are files in which

inspections on the premises of

this ejido are reported.

Submission

appendices do not

contain copy of

complaint.

Response of the

Party argues that

CC was processed

properly, referring to

Appendix III.

However, there is

no documentation

on this complaint in

that appendix (nor in

Appendices

I,II,IV,VI,VII).

1.- Did Semarnap Office

notify complainants that

CC referred to Profepa?

2.- Did Profepa issue

admissibility or joinder

decision?

3.- Did it process CC?

4.- Were the administrative

proceedings that Profepa

brought against the

violators (according to

memo to Semarnap)

concluded?

1.- Semarnat response.

2.- Semarnat oficio received 12

November 1999 containing the letter

from the ejido authorities of Ciénega

de Guacayvo Ejido requesting

forestry inspections on the ejido. This

was replied to in the sense that this

office, within the annual storage

center inspection program, visited 26

centers in the San Juanito area,

including those of ROBERTO

RODRIGUEZ, MIGUEL RODRIGUEZ

and LEOPOLDO PAREDES.

3.- No, as explained in previous

response.

4.- The following administrative

proceeding files were opened:.

a) F-2474/99 (Concluded 15/05/00).

b) F-3960/99 (Concluded 15/05/00).

c) F-1781/00 (Concluded 31/07/01).

No response from Semarnat

to question #1. Neither

Semarnat nor Profepa notified

or responded to the

complainants. Profepa did not

respond to question #4 on

enforcement of administrative

processes.

Notes Questions to

the Party

Responses of the Party Authority’s

file number

Comments on

Party’s responses
136 FACTUAL RECORD: TARAHUMARA SUBMISSION

S.1 13/10/99 Tepehuan Indigenous

People, Llano Grande

Ejido (Félix Baiza

Duarte et al.)

Failure of company

conducting forestry

operations to cut up

pine branches and

crowns in Ejido

cutting areas as well

as logging by

company in a

reserved area.

13/10/99 CC delivered to state

office of Semarnap. 23/11/99

state office of Semarnap did

not allow the matter as a CC

but rather as a request to which

it responded point by point,

indicating that the point about

cutting up of branches and

crowns should be reported to

Profepa.

Response of state

office of Semarnap in

41 calendar days (not

considered as a CC)

S.2 07/09/1999 Tepehuan de

Malanoche Indigenous

People (Andrés Loera

Sandoval et al.), via

Cosyddhac

Removal of marked

timber corresponding

to previous year and

illegal marking

thereof with previous

year’s mark.

9/7/99 received by state office

of Semarnap. No response

from the authority accepting or

declining jurisdiction.

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter

S. Party’s failure of enforcement by failing to issue admissibility decision consisting

of referral to the competent body
APPENDIX 6 137

Response of the

Party admits that

the Party has no

information on this

case.

Why did the Semarnap

state office not refer the

matter to Profepa as a

CC?

Semarnat: Profepa was notified in

order for the latter to issue an

admissibility decision according to its

procedures.

Semarnat does not indicate a

date or file number for this

communication.

Response of the

Party admits that it

has no information

on this case.

Did Semarnap allow the

CC? Did it refer to

Profepa? Did Profepa

process?

1.- Semarnat response: no, since

Semarnat is not empowered to issue

admissibility decisions on complaints.

However, a response was given in

oficio no. DJ-08-99/005/10031,

explaining outstanding issues about

the operation. 2.- No, since it was

considered as a purely explanatory

document of Semarnat’s

responsibilities; moreover, the group

is advised by an entity familiar with

MexiCNA law, and they could have

gone directly to Profepa or request

clarification on the complaint from

the state office of Semarnat.

3.- Not referred to Profepa.

Semarnat gave an explanation

of the facts, without indication

of date, and did not deem it

necessary to refer to Profepa.

Notes Questions to

the Party

Responses of the Party Authority’s

file number

Comments on

Party’s responses
138 FACTUAL RECORD: TARAHUMARA SUBMISSION

T.1 08/07/1999 Prudencio Ramos

Ramos (del Raramurí

Indigenous People of

Pino Gordo Ejido)

Illegal use of timber

resources comprising

the habitat of flora

and fauna species

considered

endangered,

threatened, rare, or

subject to special

protection, without

implementing

prevention and

mitigation measures.

7/8/98 CC filed with Profepa.

27/8/98 Profepa allowed only

those aspects of the CC

relating to illegal tree felling

and removal. 15/12/98 Profepa

concluded the CC by

determining that the operation

was taking place with

authorization. However,

Profepa did not analyze

whether the management

program contemplates

protection of status species

habitat and, if so, if the

protection measures are being

implemented.

CC admissibility

decision took more

than 10 days. 4

months for conclusion

(=4).

T. Party’s failure of enforcement by concluding a Citizen Complaint without

notifying the Complainant of the considerations adopted with regard

to the evidence and information provided

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter
APPENDIX 6 139

Response of the

Party refers to oficio

of 15/12/98 arguing

that the case was

properly concluded.

The response does

not refer to

Profepa’s failure to

analyze the

information

submitted by the

Complainant

concerning harm to

status species

habitat nor the

specific failure to

which this heading

“T” refers.

1.- Does the forest

management program for

the zone concerned by the

complaint (cited by Profepa

in the oficio of 15/12/98)

contemplate protection and

conservation measures for

the habitat of the species

mentioned, environmental

impact prevention and

mitigation measures?

2.- If so, were these

measures implemented?

1.- Semarnat response: Pino Gordo

Ejido of the Municipality of Guadalupe

y Clavo, Chih., does not have an

authorized Forest Management

Program, therefore both questions

CNAnot be answered.

2.- Semarnat response: There is no

management program authorized by

Semarnat Chihuahua.

F-5542/98 Pino Gordo Ejido and

Colorada de los Chávez

Community have boundary

disputes. Pino Gordo Ejido

submitted evidence of the

presence of status fauna in

the cutting area (Appendix 57

of Submission) and asked

whether habitat protection

measures exist. Profepa

(oficio B22.07C/006154 of

15/12/98) indicates that the

operation was taking place as

authorized, by a company

providing services to Colorada

de los Chávez further to oficio

SRN08 98/0680 from state

office of Semarnat. It is

requested that Semarnat

respond to these two

questions with reference to

the C de los Chávez forestry

authorization since that was

the one applicable to the site

in question.

Notes Questions to

the Party

Responses of the Party Authority’s

file number

Comments on

Party’s responses
140 FACTUAL RECORD: TARAHUMARA SUBMISSION

G.1 18/8/99 Comunidad San Ignacio

de Arareco (Agustín

Bravo Gaxiola)

Excavation and

alteration of the

natural structure of

creek bed and bank;

removal and felling of

vegetation and trees

and change of land

use in forested areas,

all without

authorization.

Received 18/8/99. Profepa

allowed the CC on 6/9/99 and

referred the water-related

aspects to CNA. 1/11/99

Profepa internal memo

reported on forestry inspection

visit. 6/7/00 Profepa concluding

decision described in F.2.

8/5/00 CNA responded that the

violator could not be

determined (described in F.2).

Profepa referred to

CNA but not to MPF.

G.2 16/6/99 Community of

San Diego de Alcalá

Ejido (Oscar Romero

Viezcas)

Clearing, land use

change, total removal

of various vegetation.

Received 16/6/99. Profepa

allowed 5/7/99. 6/4/00 Profepa

conducted forestry inspection

visit. Profepa drafted

administrative proceeding

29/9/00, described in F.5.

Profepa did not notify

MPF.

G.3 09/01/1999 Community of San

Diego de Alcalá Ejido

(Oscar Romero Viezcas

and Juan Nieto

Rodríguez)

Clearing, removal

of vegetation and

untreated wastewater

discharge

Received 1/9/99. Joined by

Profepa to F.5 on 13/9/99.

8/10/99 Profepa referred the

water-related aspects of the

CC to CNA. No concluding

decision by Profepa or CNA.

Profepa did not notify

MPF.

G.4 12/07/1998 Raramurí Indigenous

People of Rochéachi

Ejido (Agustín Bravo

Gaxiola et al.)

Removal of various

materials from bed

and bank of three

creeks, altering their

natural structure,

affecting floral and

faunal interactions,

and constituting a

change of forested

land use.

CC received 9/12/98. 26/1/99

Profepa declined jurisdiction

and referred to CNA for

processing. 15/2/99 appeal for

review filed. Profepa concluded

review 12/5/99.

Profepa’s oficio

declining jurisdiction

and its review only

refer to the

water-related aspects

of the CC and do not

acknowledge the

alteration of flora and

fauna nor the change

of forested land use.

Consequently, it did

not accept jurisdiction

over the CC nor did it

notify the MPF.

II. Alleged failures to effectively enforce provisions relating to the investigation

and prosecution of probable environmental offenses

G. Party’s failure of enforcement in connection with its failure to notify Federal

Public Prosecutor (MPF) of the probable occurrence of environmental offenses

(CPF Article 418 – Clearing, destruction of vegetation, unauthorized land use

change)

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter
APPENDIX 6 141

Notes Questions to

the Party

Responses of the Party Authority’s

file number

Comments on

Party’s responses

Response of the Party did not

respond to section G due to a

typographical error in the

Submission that referred to

Article 418 of the CFPP and

not the CPF. The Secretariat

requested a response with

reference to CPF Article 418.

1.- Was MPF notified of the

existence of environmental

offenses as described in

the complaint or as verified

by the inspection visit?

No. F-3417/99 MPF not notified.

Response of the Party did not

respond to section G due to a

typographical error in the

Submission that referred to

Article 418 of the CFPP and

not the CPF. The Secretariat

requested a response with

reference to CPF Article 418.

1.- Was MPF notified of the

existence of environmental

offenses as described in

the complaint or as verified

by the inspection visit?

1.- Information filed with

Second Agency of MPF.

Ap.- 87/00 MPF requested

judge to proceed with

criminal action.

F-1229/00 Question resolved.

Response of the Party did not

respond to section G due to a

typographical error in the

Submission that referred to

Article 418 of the CFPP and

not the CPF. The Secretariat

requested a response with

reference to CPF Article 418.

1.- Was MPF notified of the

existence of environmental

offenses as described in

the complaint?

1.- Information filed with

Second Agency of MPF.

Ap.- 87/00 MPF requested

judge to proceed with

criminal action.

F-1229/00 Question resolved.

[The original CC was not

obtained]. Response of the

Party did not respond to

section G due to a

typographical error in the

Submission that referred to

Article 418 of the CFPP and

not the CPF. The Secretariat

requested a response with

reference to CPF Article 418.

1.- Should Profepa have

accepted jurisdiction over

the aspects of the CC

relating to alteration of flora

and fauna and change of

forested land use?

2.- Should the MPF have

been notified?

1.- Referred to CNA in a

decision of 26 January

1999 and notice given 27

January 1999.

2.- The facts were not

verified, therefore Profepa

never had knowledge of

any fact or omission

qualifying as an

environmental offense.

Profepa did not respond to #1.
142 FACTUAL RECORD: TARAHUMARA SUBMISSION

G.5 03/10/2000 Residents of Rochéachi

Ejido

Clearing, destruction

of natural vegetation

with change of

forested land use and

alteration of the

natural hydrological

structure of a creek

for the purpose of

mining or removing

various materials.

10/3/00 CC filed. 16/3/00

Profepa allowed the aspects

concerning clearing,

destruction of vegetation and

change of forested land use.

13/4/00 Profepa referred to

CNA and state Department of

Environment the aspects

relating to removal and mining

of materials. 10/5/00 CNA

notified the Complainant that it

had conducted an inspection

without finding mining activities

or machinery but that, in view

of the information submitted in

the CC and by residents, it

would proceed against the

perpetrators.

Profepa issued

admissibility decision

on CC within

prescribed period.

Did not notify MPF. No

conclusion of the CC

by any of the agencies.

G.6 Forestry audit

9/99

Colorada de los Chávez

Community

Carried out “in

response to various

complaints filed with

[Profepa]”

25-27/5/99 state office of

Profepa conducted audit.

28-31/7/99 state office of

Profepa and Profepa (central

offices) collaborated to expand

audit. 10/9/99 Federal Profepa

notified resident of Pino Gordo

that the results of the audit

were the total temporary

suspension of operations as

well as an order of urgent

measures.

The MPF was not

notified of cleared

forested areas.

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter

G. Party’s failure of enforcement in connection with its failure to notify Federal

Public Prosecutor (MPF) of the probable occurrence of environmental offenses

(CPF Article 418 – Clearing, destruction of vegetation, unauthorized land use

change) (continued)
APPENDIX 6 143

Notes Questions to

the Party

Responses of the Party Authority’s

file number

Comments on

Party’s responses

Response of the Party did not

respond to section G due to a

typographical error in the

Submission that referred to

Article 418 of the CFPP and

not the CPF. The Secretariat

requested a response with

reference to CPF Article 418.

1.- Did Profepa conclude

the CC?

2.- Did CNA conclude the

CC?

3.- Did Environment

Department process the

CC?

4.- Should the MPF have

been notified?

5.- Was there an

administrative decision by

Profepa and/or CNA

against the perpetrators?

6.- Were the measures

implemented and/or were

the fine(s) paid?

1.- Concluded in a

decision of 19/09/00.

2.- CNA.

3.- DGEGE.

4.- Yes.

5.- Administrative decision

issued 31/08/00.

6.- Corrective measure not

implemented and fine sent

for collection via oficio

no. 003312 (31/08/01).

F-1252/00 CNA conducted inspection but

did not formally conclude the

CCs, since it did not follow the

LGEEPA procedure but rather

an administrative procedure

under its own regulation, the

National Waters Act and the

Federal Administrative

Procedure Act (information

submitted at meeting with

CEC legal officer).

No information was submitted

on processing by state

Department of Environment.

No notification of MPF.

No implementation of

(unspecified) corrective

measure. Collection order

exists (11 months after

concluding decision), but

there is no indication whether

fine was collected.

Response of the Party did not

respond to section G due to

a typographical error in the

Submission that referred to

Article 418 of the CFPP and

not the CPF. The Secretariat

requested a response with

reference to CPF Article 418.

1.- Were the measures

recommended in the audit

applied?

2.- Should the MPF have

been notified?

1.- Yes, verifying the

MUAs on 14/03/01.

2.- Yes.

F-1300/99-

2731/99

Profepa indicates that MPF

should have been notified, but

does not indicate whether or

not it did so.
144 FACTUAL RECORD: TARAHUMARA SUBMISSION

H.1 Information

21/9/99

Community of San

Diego de Alcalá Ejido

(Oscar Romero

Viezcas et al.)

Felling and change

of forested land use

on land adjacent to

Ejido.

21/9/99 complaint filed with

MPF. As of 9/6/00 (date of

Submission), the MPF had

not yet taken any action to

investigate the facts or initiate

a preliminary investigation

(averiguación previa).

No action by MPF.

H. Party’s failure to enforce CPF Article 418 (felling/change of land use without

authorization under the Forestry Act)

Reference Date of

information

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter
APPENDIX 6 145

Notes Questions to

the Party

Responses of the Party Authority’s

file number

Comments on

Party’s responses

15/2/02 Response of the Party

requested Secretariat to

proceed no further with this

aspect because the complaint

is the subject of a pending

administrative proceeding.

29/8/02 Secretariat determined

that the party did not

demonstrate that this matter is

pending in the sense of Article

NAAEC 14(3)(a) and again

requested a response.

1.- Did the MPF

investigate, order

measures and, as

applicable, proceed with

criminal action?

1.- A.P.087/DD/00 attests

that MPF requested to

proceed with criminal

action.

No response from PGR.
146 FACTUAL RECORD: TARAHUMARA SUBMISSION

I.1 (=A.1) 14/10/98 Raramurí Indigenous

People of Choguita

(J.M. Fuentes

Rodríguez et al.)

Removal of green

wood

CC received 26/10/98.

27/11/98 Profepa considered

the CC as a request for

suspension of permits and

referred it to Semarnap. 8/1/99

Profepa allowed appeal for

review. 14/4/99 Profepa

concluded the review by

confirming that it was a

request, not a CC.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.2 (=F.1) 20/8/98 El Consuelo Community

(complainants

requested that their

identity be kept secret)

Illegal logging and

shipping of forest

resources.

Received 20/8/98. Allowed

03/9/98. 20/11/98 inspection

attempt was not completed for

reasons unrelated to the

parties complained of. 3/99

Profepa internal memo

reported on inspection visit.

30/6/00 concluding decision

with corrective measures

(unspecified) and fine:

15,502.50.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.3 (=A.2) 10/12/1998 Tepehuan de las

Fresas Indigenous

People, Llano Grande

Ejido (Ricardo

Chaparro Julián et al.)

Clandestine felling

and removal of

forest resources.

CC filed 15/10/98. Allowed by

Profepa 6/11/98. Administrative

proceeding concluded on

30/3/00. Fine: 41,340.00.

Corrective actions: 1) refrain

from forestry operations without

authorization; 2) reforest 5 ha

in Loma San Miguel area w/ at

least 2 native species of Pinus,

density of 1200 plants/ha and

ensure that individuals

establish and thrive (8 months);

3) chip and disperse debris

(perpendicular to slope) in

Los Tarros area (1 month).

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.4 (=A.3) 12/04/1998 Tepehuan de las Fresas

Indigenous People,

Llano Grande Ejido

(Ricardo Chaparro

Julián et al.)

Illegal timber

removal.

CC filed 4/12/98. 27/1/99

Profepa gave notice that similar

complaint of 15/10/98 already

being processed.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.5 (=S.1) 13/10/99 Tepehuan Indigenous

People, Llano Grande

Ejido (Félix Baiza

Duarte et al.)

Forestry company’s

failure to cut up

pine branches and

crowns in ejido

cutting areas as

well as cutting by

said company in

reserved area.

CC filed 13/10/99 with state

office of Semarnap. 23/11/99

state office of Semarnap did

not allow CC as a complaint

but merely as a request to

which it responded point by

point, indicating that the point

about cutting up of pine

branches and crowns should

be filed with Profepa.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I. Party’s failure of enforcement in connection with its failure to notify the MPF of

the probable occurrence of environmental offenses (CPF Article 418: unauthorized

cutting, uprooting, knocking down, or felling of trees)

Reference

Date of citizen

complaint or

information

Complainant

Subject of

complaint Status as of 15/02/02

Allegations of

Submitter
APPENDIX 6 147

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

1.- information AP-20/00

filed, Guachochi office

F-179/99 Information filed.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-314/99 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-314/99 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

(15/02/02) states that

corrective measures and

sanctions were ordered and

that the MPF was not notified

because the facts did not

qualify as a criminal offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify

as an offense?

Information not filed. F-314/99 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify

as an offense?

Information not filed. F-314/99 Criteria used in deciding not to

notify MPF not explained.

Notes

Questions to

the Party Responses of the Party

Authority’s

file number

Comments on

Party’s responses
148 FACTUAL RECORD: TARAHUMARA SUBMISSION

I.6 (=S.2) 07/09/1999 Tepehuan de

Malanoche Indigenous

People (Andrés Loera

Sandoval et al.), via

Cosyddhac

Removal of marked

timber corresponding to previous year

and illegal marking

thereof with

previous year’s

mark.

9/7/99 received by state office

of Semarnap. No response

from authority accepting or

declining jurisdiction.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.7 (=F.7) 18/2/98 Community of Ciénega

de Guacayvo Ejido

(Manuel Pérez Rascón

et al.)

Unauthorized forestry

operations, in

riverbeds and

elsewhere, on

adjacent property.

18/2/98 filing of CC. 4/3/98

Profepa allowed CC. 30/6/00

concluding decision with

corrective measures

(unspecified) and fine:

24,160.00

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.8 (=F.8) 19/7/99 Community of Ciénega

de Guacayvo Ejido

(Isaías Rivera Pérez

et al.)

Repeat incident of

illegal logging on

Rincón de Gervacio

lot.

Received 19/7/99. Allowed

9/8/99. 30/5/00 concluding

decision with fine (unspecified).

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.9 (=F.9) 08/03/1999 Community of Ciénega

de Guacayvo Ejido

(Isaías Rivera Pérez

et al.)

Illegal logging. Received 3/8/99. Joinder with

I.8 (=F.8) 24/8/99. Due to

joinder, concluding decision

for I.8 (=F.8) applies.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.10 (=R.2) 10/04/1999 Community of Ciénega

de Guacayvo Ejido

(ejido authorities)

Illegal forestry

operations and

storage of forest

resources by San

Juanito sawmills.

4/10/99 CC filed with state

office of Semarnap. 18/10/99

Semarnap referred to Profepa.

10/12/99 Profepa responded to

Semarnap that the relevant

inspections had been

conducted previously and that

administrative proceedings had

been instituted against the

parties complained of.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I. Party’s failure of enforcement in connection with its failure to notify the MPF of

the probable occurrence of environmental offenses (CPF Article 418: unauthorized

cutting, uprooting, knocking down, or felling of trees) (continued)

Reference Date of citizen

complaint or

information

Complainant

Subject of

complaint Status as of 15/02/02

Allegations of

Submitter
APPENDIX 6 149

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Complaint not referred to

Profepa.

Semarnat did not consider the

matter to qualify as an offense

since it sent an explanatory

letter to the complainants.

That letter is not in the file.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1869/98 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1478/99.

F-2474/99.

F-3960/99.

Criteria used in deciding not to

notify MPF not explained.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify

as an offense?

1.- Joinder with

99/07/087/09 in a decision

of 24/08/99.

F-1478/99.

F-2474/99.

F-3960/99.

Joinder with file I.8. Previous

comment applies.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

1.- While it is true that

informations were not filed

by this office (Procuraduría), assistance was

provided to the MPF with

the presentation of expert

testimony in preliminary

investigations A.P.410/

DD/99 and 63/DD/00

being conducted by MPF

Second Agency since the

criminal informations had

already been filed by the

Complainants, hence the

MPF requested to proceed

with criminal action.

F-2474/99.

F-3960/99.

F-1781/00

Profepa assisted MPF with

informations filed by the

complainants.

Notes

Questions to

the Party Responses of the Party

Authority’s

file number

Comments on

Party’s responses
150 FACTUAL RECORD: TARAHUMARA SUBMISSION

I.11 Information

1/12/99

Community of Ciénega

de Guacayvo Ejido

(Isaías Rivera Pérez

et al.)

Notified Federal

Semarnap and

Attorney General’s

Office of the State

of Chihuahua of the

CCs and informations

concerning illegal

logging and fires,

without the MPF

having been notified

of the CCs.

1/12/99 referred to Minister

Carabias. 29/12/99 Profepa

responded that each CC

mentioned the filing of an

information by the Ejido

authorities, hence there was

no need to file another.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.12 (=T.1) 08/07/1998 Prudencio Ramos

Ramos (of Raramurí

Indigenous People of

Pino Gordo Ejido)

Illegal use of timber

resources comprising

the habitat of flora

and fauna species

considered

endangered,

threatened, rare, or

subject to special

protection, without

implementing

prevention and

mitigation measures.

7/8/98 CC filed with Profepa.

27/8/98 Profepa allowed only

those aspects of the CC

relating to illegal tree felling

and removal. 15/12/98 Profepa

concluded the CC by determining that the operation was

taking place with authorization.

However, Profepa did not

analyze whether the

management program

contemplates protection of

status species habitat and, if

so, if the protection measures

are being implemented.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.13 30/3/99 Raramurí Indigenous

People of Pino Gordo

Ejido (José Manuel

García Lerma and

Héctor S. Olivas

González representing

110 Raramurís)

Illegal logging of

forest resources in

Pino Gordo Ejido.

30/3/99 CC filed. 23/4/99

Profepa allowed CC. 12/1/00

concluding decision by Profepa

with total temporary suspension of authorized timbering

operation, ordering of three

urgent measures (unspecified).

28/1/02 administrative

proceeding against Colorada

de los Chávez Community

resulting from audits conducted

5/99 and 7/99 with total fines of

20,670.00 to the Comunidad

and Ingeniería Forestal S.A.

de C.V., warning to carry out

chipping and spreading of

debris, and order to create fire

break around audited area

(1 day).

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.14 (=A.5) 15/3/00 Raramurí Indigenous

People of Cuiteco Ejido

(Agustín Bravo Gaxiola

et al.)

Illegal use of forest

timber resources.

CC received 15/3/00. Allowed

by Profepa 31/3/00. Profepa

issued concluding decision

31/8/00 with restoration

measures (unspecified) and

fine: 18,950.00.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I. Party’s failure of enforcement in connection with its failure to notify the MPF of

the probable occurrence of environmental offenses (CPF Article 418: unauthorized

cutting, uprooting, knocking down, or felling of trees) (continued)

Reference Date of citizen

complaint or

information

Complainant

Subject of

complaint Status as of 15/02/02

Allegations of

Submitter
APPENDIX 6 151

1.- Did the MPF resolve the

informations mentioned in

the filing?

1.- PGR response: The

information was filed

directly by the interested

parties with the MPF,

Profepa only assisted.

Lack of response from PGR.

Profepa assisted MPF with

informations filed by the

complainants.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1300/99-

2731/99

Criteria used in deciding not to

notify MPF not explained.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1300/99-

2731/99

Criteria used in deciding not to

notify MPF not explained.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

information filed with

Second Agency of MPF

under no. A.P. 087/2000.

F-1249/00 I+K87nformation filed.

Notes

Questions to

the Party Responses of the Party

Authority’s

file number

Comments on

Party’s responses
152 FACTUAL RECORD: TARAHUMARA SUBMISSION

I.15 (=A.6) 15/3/00 Raramurí Indigenous

People of Baragomachi

Ejido (Agustín Bravo

Gaxiola)

Illegal logging. CC received 15/3/00. Profepa

allowed CC 31/3/00. Profepa

issued concluding decision

31/8/00 with corrective

measure (unspecified) and

fine: 5,160.50.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.16 (=A.7) 15/3/00 Raramurí Indigenous

People of Monterde

Ejido (Agustín Bravo

Gaxiola)

Illegal logging. CC received 15/3/00. Profepa

allowed CC 31/3/00. Profepa

issued concluding decision

19/9/00 with corrective

measures (unspecified) and

fine: 3,790.00.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.17 (=A.8) 15/3/00 Raramurí Indigenous

People of Basonaivo

Ejido (Agustín Bravo

Gaxiola)

Illegal logging. CC received 15/3/00. Allowed

by Profepa 31/3/00. Profepa

issued concluding decision

27/11/00 with corrective

measures (unspecified) and

fine: 22,740.00.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.18 (=A.9) 15/3/00 Raramurí Indigenous

People of Mesa de

Arturo Ejido (Agustín

Bravo Gaxiola)

Illegal logging. CC received 15/3/00. Allowed

by Profepa el 31/3/00. Profepa

issued concluding decision

19/9/00 with corrective

measures (unspecified) and

fine: 45,480.00.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.19 (=A.10) 02/07/2000 Raramurí Indigenous

People of Churo Ejido

(Domingo Carrillo via

Cosyddhac).

Illegal logging. CC received 7/2/00. Profepa

allowed CC 6/3/00. Profepa

issued concluding decision

17/1/02 with warning for

subsequent presentation of

authorization of operations; fine

(Juan Frías Mancino):

3,790.00. corrective measures:

planting with native spp.;

chipping and spreading of

debris; soil treatment actions;

individual fines to 6 persons for

2,017.50.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

Reference Date of citizen

complaint or

information

Complainant

Subject of

complaint Status as of 15/02/02

Allegations of

Submitter

I. Party’s failure of enforcement in connection with its failure to notify the MPF of

the probable occurrence of environmental offenses (CPF Article 418: unauthorized

cutting, uprooting, knocking down, or felling of trees) (continued)
APPENDIX 6 153

Notes

Questions to

the Party Responses of the Party

Authority’s

file number

Comments on

Party’s responses

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1320/00 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

The irregularity was a 12

ha surface forest fire.

Recovery of the area with

next water cycle.

F-1322/00

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. Criteria used in deciding not to

notify MPF not explained.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information filed with First

Agency of MPF under no.

A.P. 433/2000.

F-1312/00 Information filed.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

1.- Parties complained of

found not responsible

because the forestry

operation was taking place

under authorization no.

SRN.08-98/1764 of 21

September 1998.

F-1243/00 Parties not responsible,

therefore notification of MPF

did not apply.
154 FACTUAL RECORD: TARAHUMARA SUBMISSION

I.20 (=A.11) 15/3/00 Raramurí Indigenous

People of Churo Ejido

(Agustín Bravo Gaxiola)

Illegal logging. CC received 15/3/00. 7/4/00

Profepa gave notice of joinder

with I.19 (=A.10). 17/1/02

Profepa issued concluding

decision described in I.19

(=A.10).

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.21 (=A.12) 15/3/00 Raramurí Indigenous

People of Refugio Ejido

(Agustín Bravo Gaxiola)

Illegal logging. CC received 15/3/00. Profepa

allowed CC 31/3/00. Profepa

issued concluding decision

19/9/00 with corrective

measures (unspecified) and

fine: 1,895.00.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.22 (=A.13) 15/3/00 Raramurí Indigenous

People of Ocoviachi

Ejido (Agustín Bravo

Gaxiola)

Illegal logging. Received 15/3/00. 7/4/00

Profepa requested information

confirming identity of violators

in order to proceed (without

allowing CC). 31/8/00

administrative proceeding

(result of forestry inspection

visit), no evidence of Illegal

logging found but evidence of

fire found. Therefore, fine of

3,790.00 and natural

regeneration work ordered for

10 ha affected as well as

fencing the area to avoid

grazing. No notice given to

complainants.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.23 (=A.14) 18/2/00 Raramurí Indigenous

People of Rocoroyvo

Ejido (President of Ejido

Council)

Illegal logging. Received 18/2/00. Allowed

25/2/00. Concluding decision

31/7/00 with corrective

measures unspecified,

fine of 6,064.00 and seizure

of 5.776 M3R.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I.24 (=A.15) 15/3/00 Raramurí Indigenous

People of Rocoroyvo

Ejido (Agustín Bravo

Gaxiola)

Illegal logging. Received 15/3/00 by Profepa.

7/4/00 joinder with I.23 (=A.14).

31/7/00 concluding decision

described in I.23 (=A.14).

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

I. Party’s failure of enforcement in connection with its failure to notify the MPF of

the probable occurrence of environmental offenses (CPF Article 418: unauthorized

cutting, uprooting, knocking down, or felling of trees) (continued)

Reference Date of citizen

complaint or

information

Complainant

Subject of

complaint Status as of 15/02/02

Allegations of

Submitter
APPENDIX 6 155

Notes

Questions to

the Party Responses of the Party

Authority’s

file number

Comments on

Party’s responses

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

1.- Parties complained of

found not responsible

because the forestry

operation was taking place

under authorization no.

SRN.08-98/1764 of 21

September 1998.

F-1243/00 Joinder with I.19, parties

found not K94responsible.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

The forestry operations

were being carried out

under an authorized

management program and

the irregularity evidenced

was that of failing to keep

debris under control.

F-1314/00 MPF not notified, apparently

because it was considered a

“minor” irregularity.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Irregularity was fire

covering 10 ha. Recovery

of soil will have to await

next water cycle.

F-1318/00

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1239/00 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify

as an offense?

Information not filed. F-1239/00 Criteria used in deciding not to

notify MPF not explained.
156 FACTUAL RECORD: TARAHUMARA SUBMISSION

K.1 Forestry Audit

9/99

Colorada de los Chávez

Community

Forest fire. 28/1/02 Profepa administrative

proceeding indicates evidence

of an irrelevant 1.5 ha surface

fire. Fire break around audited

logging area ordered.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

K.2 Forestry

inspection

2/6/99

Ciénega de Guacayvo

Ejido

Forest fire. 15/5/00 administrative

proceeding evidenced 30 ha

fire in Arroyo de las Cuevas

sector and 50 ha fire in

Pachorrogo. Reforestation

ordered with at least 3 native

spp. of Pinus on 15 and 20 ha

respectively (minimum density

1200 plants/ha. and ensuring

healthy establishment of plants

– 6 months).

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

K.3 Forestry

inspection

11/8/99

Ciénega de Guacayvo

Ejido

Forest fire. 15/5/00 administrative

proceeding indicates that on

inspection visit of 11/8/99,

presence of 50 ha fire

observed in Racoyvo. File also

indicates that Ejido stated that

these facts had already been

reported and that the PGR was

aware of them. Corrective

measures ordered for tree

felling but not for the

50 hectares burned

(reforestation on 2 ha).

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

K.4 Forestry

inspection

25/10/99

Ciénega de Guacayvo

Ejido

Forest fire. 15/5/00 administrative

proceeding evidenced 210 ha

of multi-level fire. It also noted

that the Ejido authorities

reported that the perpetrators

had been remanded to the San

Juanito office of the MPF and

that the PGR had been notified

of those facts. A total of

687,277.50 in fines had been

levied and reforestation,

chipping and spreading of

debris, and fencing measures

had been ordered.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

Reference

Date of forestry

inspection or

audit

Complainant

Subject of

complaint Status as of 15/02/02

Allegations of

Submitter

K. Party’s failure of enforcement in connection with failure to notify MPF of the

probable occurrence of environmental offenses (CPF Article 418 maliciously

causing fires in forests or forest vegetation)
APPENDIX 6 157

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1300/00-

2731/00

Criteria used in deciding not to

notify MPF not explained.

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

1.- Informations

A.P.410/DD/99 and

63/DD/00 filed.

F-1781/00 Information filed. (Ejido

members indicate that the

violators did not reforest the

15 and 20 ha required and

that the Ejido reforested

approximately 1.5 ha –

information obtained on site

by legal affairs officer).

Response of the Party

(15/2/02) states that corrective

measures and sanctions were

ordered and that the MPF was

not notified because the facts

did not qualify as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

3.- If the Ejido had already

reported the facts to the

PGR, what action did the

latter take?

1.- Informations

A.P.410/DD/99 and

63/DD/00 filed with

Second Agency of MPF.

3.- PGR response.

F-1781/00 Information filed. (Ejido

members indicate that the

violators did not reforest and

that the Ejido did – information

obtained on site by the legal

affairs officer). No response

by PGR.

Response of the

Party (15/2/02)

states that

corrective measures

and sanctions were

ordered and that the

MPF was not

notified because the

facts did not qualify

as a criminal

offense.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

3.- If the Ejido had already

reported the facts to the

PGR, what action did the

latter take?

1.- information filed

A.P.410/DD/99 and

63/DD/00 Second Agency

of MPF.

F-1781/00 Information filed. (Ejido

members indicate that the

violators did not reforest and

that the Ejido did, and also

fenced the area, with payment

(without specifying from which

office) of 50 pesos/day –

information obtained on site

by legal affairs officer).

No response by PGR.

Notes

Questions to

the Party Responses of the Party

Authority’s

file number

Comments on

Party’s responses
158 FACTUAL RECORD: TARAHUMARA SUBMISSION

M.1 10/04/1999 Community of Ciénega

de Guacayvo Ejido

Unauthorized

shipping and storage

of forest resources

15/5/00 administrative

proceeding noted that 507.088

M3R of timber were shipped to

Ejido facilities and that this

timber had already been legally

seized by the Office of the

Assistant Attorney General for

the Western Zone of the Office

of the State Attorney General.

Fines of 687,277.50 applied

and reforestation, chipping and

spreading of debris, and

fencing ordered.

Although the facts

complained of possibly

qualified as offenses,

the MPF was not

notified.

M.2 (=H.1) Information

21/9/99

Community of San

Diego de Alcalá Ejido

Clearing and change

of forested land use

on land adjacent to

Ejido.

21/9/99 complaint filed with

MPF. As of 9/6/00 (date of

Submission), the MPF had not

yet taken any action to

investigate the facts or initiate

the preliminary investigation

(averiguación previa).

No action by MPF.

M. Party’s failure of enforcement in connection with failure to notify MPF of the

probable occurrence of environmental offenses (CPF Article 419 – unauthorized

shipping, storage, and processing of forest resources)

Reference

Date of citizen

complaint or

information

Complainant Subject of

complaint Status as of 15/02/02

Allegations of

Submitter
APPENDIX 6 159

Response of the Party

(15/02/02) states that

corrective measures and

sanctions were ordered. But

there is no evidence of the

MPF’s being notified nor any

reasons given for why this was

not done. [In this case, the

judicial authority had already

taken cognizance of the fact

and seized the timber].

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

3.- How did the Office of

the Attorney General in the

state handle this case?

1.- Informations

A.P.410/DD/99 and

63/DD/00 filed with

Second Agency of MPF.

F-1781/00 Information filed. No response

by Office of Attorney General

of the State of Chihuahua.

15/2/02 Response of the Party

requested Secretariat to

proceed no further with this

aspect because the complaint

is the subject of a pending

administrative proceeding.

29/8/02 Secretariat determined

that the party did not

demonstrate that this matter is

pending in the sense of Article

NAAEC 14(3)(a) and again

requested a response.

1.- What actions did the

PGR take with regard to

this complaint?

1.- A.P.087/DD/00 noted;

MPF requested to proceed

with legal action.

F-1229/00 Profepa notified MPF. No

response by PGR.

Notes

Questions to

the Party Responses of the Party

Authority’s

file number

Comments on

Party’s responses
160 FACTUAL RECORD: TARAHUMARA SUBMISSION

N.1 09/01/1999 Community of San

Diego de Alcalá Ejido

Clearing and land use

change with total

removal of various

vegetation as well as

untreated wastewater

discharge from resort

owned by party

complained of.

According to the Response of

the Party (p.13), concluded by

Administrative Proceeding no.

99/06/069/02, and information

filed with MPF on 23/5/2000.

CFPP Article 117

states that notice of

possible offenses must

be given “immediately.”

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter

N. Party’s failure of enforcement in connection with failure to notify MPF of the

probable occurrence of environmental offenses (CPF Article 416 – wastewater

discharge and dumping into national waters)
APPENDIX 6 161

1.- Why was there a delay

in notifying the MPF?

2.- What actions did the

PGR take regarding this

complaint?

F-1229/00 Profepa did not respond to #1.

No response by PGR.

Notes Questions to

the Party

Responses of the Party Authority’s

file number

Comments on

Party’s responses
162 FACTUAL RECORD: TARAHUMARA SUBMISSION

O.1 (=A.2) 10/12/1998 Tepehuan de las Fresas

Indigenous People,

Llano Grande Ejido

(Ricardo Chaparro

Julián et al.)

Clandestine felling

and removal of forest

resources.

CC filed 15/10/98. Allowed by

Profepa 6/11/98. 30/3/00

administrative proceeding

described results of forestry

inspection visit of 27/1/99 as

well as fine and corrective

actions (described in A.2).

Facts complained of or

verified could have

been offenses and the

authority did not notify

the MPF.

O.2 (=A.3) 12/04/1998 Tepehuan de las Fresas

Indigenous People,

Llano Grande Ejido

(Ricardo Chaparro

Julián et al.)

Illegal timber

removal.

CC filed 4/12/98. 27/1/99

Profepa gave notice that a

similar complaint of 15/10/98

was already being processed

(see A.2 and O.1).

Facts complained of or

verified could have

been offenses and the

authority did not notify

the MPF.

O.3 (=F.7) 18/2/98 Community of Ciénega

de Guacayvo Ejido

(Manuel Pérez Rascón

et al.)

Unauthorized forestry

operations, in

riverbeds and

elsewhere, on

adjacent property.

18/2/98 filing of CC. 4/3/98

Allowed by Profepa. 30/6/00

concluding decision with

corrective measures

(unspecified) and

fine: 24,160.00.

Facts complained of or

verified could have

been offenses and the

authority did not notify

the MPF.

O.4 (=F.8) 19/7/99 Community of Ciénega

de Guacayvo Ejido

(Isaías Rivera Pérez et

al.)

Repeat incident of

illegal logging on

Rincón de Gervacio

lot.

Received 19/7/99. Allowed

9/8/99. 30/5/00 concluding

decision with fine (unspecified).

Facts complained of

or verified could have

been offenses and the

authority did not notify

the MPF.

O.5 (=F.9) 08/03/1999 Community of Ciénega

de Guacayvo Ejido

(Isaías Rivera Pérez

et al.)

Illegal logging. Received 3/8/99. Joinder with

F.8 (O.4) 24/8/99. Therefore,

the concluding decision for F.8

applies (O.4).

Facts complained of or

verified could have

been offenses and the

authority did not notify

the MPF.

O. Party’s failure of enforcement in connection with failure to notify MPF of the

probable occurrence of environmental offenses (LGEEPA Article 169 – where

offenses verified, notify MPF)

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter
APPENDIX 6 163

Response of the Party

indicates that the facts

complained of did not qualify

as an environmental offense

and so the MPF was not

notified.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-134/99 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts

complained of did not qualify

as an environmental offense

and so the MPF was not

notified.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1869/98 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts

complained of did not qualify

as an environmental offense

and so the MPF was not

notified.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1869/98 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts

complained of did not qualify

as an environmental offense

and so the MPF was not

notified.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-2474/99 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts

complained of did not qualify

as an environmental offense

and so the MPF was not

notified.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-2474/99 Criteria used in deciding not to

notify MPF not explained.

Notes Questions to

the Party

Responses of the Party

Clandestine

felling and

removal

of forest

resources

Comments on

Party’s responses
164 FACTUAL RECORD: TARAHUMARA SUBMISSION

O.6 (=R.1) 26/7/99 Community of Ciénega

de Guacayvo Ejido

(Isaías Pérez Rivera et

al.)

Felling of trees

without marks on

Rincón de Gervacio

lot.

26/7/99 filing with Profepa.

Profepa did not issue

admissibility or joinder

decision.

Facts complained of or

verified could have

been offenses and the

authority did not notify

the MPF.

O.7 (=I.10) 10/04/1999 Community of Ciénega

de Guacayvo Ejido

(Ejido authorities)

Illegal forestry

operations and

storage of forest

resources by San

Juanito sawmills.

4/10/99 CC filed with state

office of Semarnap. 18/10/99

Semarnap referred to Profepa.

10/12/99 Profepa responded to

Semarnap that the relevant

inspections had been

conducted previously and that

administrative proceedings had

been instituted against the

parties complained of.

Facts complained of or

verified could have

been offenses and the

authority did not notify

the MPF.

O. Party’s failure of enforcement in connection with failure to notify MPF of the

probable occurrence of environmental offenses (LGEEPA Article 169 – where

offenses verified, notify MPF) (continued)

Reference Date of citizen

complaint

Complainant Subject of

complaint

Status as of 15/02/02 Allegations of

Submitter
APPENDIX 6 165

Response of the Party

indicates that the facts

complained of did not qualify

as an environmental offense

and so the MPF was not

notified. [Response of the

Party does not include

documentation on this case

in Appendix XII].

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

1.- Informations

A.P.410/DD/99 and

63/DD/00 filed with

Second Agency of MPF.

F-2474/99.

F-3960/99.

F-1781/00

Information filed.

Response of the Party

indicates that the facts

complained of did not qualify

as an environmental offense

and so the MPF was not

notified. [Response of the

Party does not include

documentation on this case

in Appendix XII].

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

1.- Informations

A.P.410/DD/99 and

63/DD/00 filed with

Second Agency of MPF.

F-2474/99.

F-3960/99.

F-1781/00.

F-178/99

Information filed.

Notes Questions to

the Party

Responses of the Party

Clandestine

felling and

removal

of forest

resources

Comments on

Party’s responses
166 FACTUAL RECORD: TARAHUMARA SUBMISSION

P.1 17/2/99 (Profepa

inspection order

B 22 04/0314)

El Consuelo Ejido

(complainants requested

that their identity be kept

secret)

Illegal felling and use

of pine trees.

20/8/98 CC received by

Profepa. 3/9/98 CC allowed.

30/6/00 concluding decision

with corrective measures and

sanction.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P.2 24/9/99 (Profepa

inspection order

B 22 04/3417)

San Ignacio Arareco

Ejido (through Agustín

Bravo Gaxiola)

Excavation and

alteration of natural

structure of creek

bed and bank;

removal and clearing

of vegetation and

trees, and change of

land use in forested

areas; all without

authorization.

(The forestry inspection report

included with the Response of

the Party is illegible and only

includes 4/7 pages) 26/6/00

administrative proceeding,

poorly legible, but with

corrective reforestation

measures (15 months) and

sanction.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P.3 27/1/99

(inspection order

no. B 22 Profepa

04/134)

Llano Grande Ejido

(Ricardo Chaparro

Julián et al.)

Illegal logging in the

Los Tarros and Loma

San Miguel sectors

of the Ejido.

4/3/99 Profepa internal memo

reported on the finding of

stumps on these lots,

representing trees cut without

authorization.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P.4 16/7/98 oficio re

inspection visit

Ciénega de Guacayvo

Ejido

Illegal felling of trees

in Pachorogo,

Racoyvo and

Rechagachi sectors

18/2/98 CC received by

Profepa. 20/2/98 CC allowed.

30/6/00 concluding decision

with corrective measures and

sanction.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P.4’ 2/6/99 (Profepa

inspection order

B 22 04/1478)

Ciénega de Guacayvo

Ejido

Report of forestry inspection

noted the presence of an 80 ha

forest fire. Subsequently, an

administrative proceeding was

brought against the perpetrator.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P. Party’s failure of enforcement in connection with failure to file an information

after taking cognizance of environmental offenses during inspection visits

Reference

Date of forestry

inspection

or audit

Complainant

Subject of

complaint Status as of 15/02/02

Allegations of

Submitter
APPENDIX 6 167

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so

the MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by

the Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-314/99 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so

the MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by

the Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-3417/99 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so

the MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by

the Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-134/99 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so

the MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by

the Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1869/98 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so

the MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by

the Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1478/99 Criteria used in deciding not to

notify MPF not explained.

Notes Questions to the Party Responses of the Party

Authority’s

file number

Comments on

Party’s responses
168 FACTUAL RECORD: TARAHUMARA SUBMISSION

P.4’’ 11/8/99 (Profepa

inspection order

B 22 04/2474)

Ciénega de Guacayvo

Ejido

Forestry inspection report

noted the presence of pine

stumps on three lots

(Racoyvo, Rincon de

Gervacio and Pachorogo),

cut indiscriminately and

without authorization.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P.4’’’ 25/10/99

(Profepa

inspection order

B 22 04/3960)

Ciénega de Guacayvo

Ejido

Forestry inspection report

noted the presence of pine

stumps on three lots (Mesa de

la Casa, Arroyo Rachagachi

and Arroyo de las Monas) and

the lot where the Office of the

Attorney General of the State

of Chihuahua ordered felled

trees to be stored. Subsequently, an administrative

proceeding was brought

against the alleged

perpetrators.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

[It is evident that the

State Attorney

General’s Office had

knowledge of this

case.]

P.5 25-27/5/99

Forestry Audit

Colorada de los Chávez

Community (José

Manuel García Lerma

and Héctor S. Olivas

González)

Illegal logging of

forest resources on

Pino Gordo Ejido.

Audit identified numerous

failures of compliance with the

Authorized Management

Program. Final decision

included a total temporary

suspension of authorized

timbering operations and

ordered three urgent

measures.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P.6 14/4/00 (Profepa

inspection order

B 22 04/1320)

Baragomachi Ejido

(Agustín Bravo Gaxiola

et al.)

Illegal logging of

pine trees.

15/3/00 CC received by

Profepa. 31/3/00 CC allowed.

31/8/00 concluding decision

with corrective measure and

sanction.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P.7 24/4/00 (Profepa

inspection order

B 22 04/1322)

Monterde Ejido (Agustín

Bravo Gaxiola et al.)

Illegal cutting and

use of pine trees.

15/3/00 CC received by

Profepa. 31/3/00 CC allowed.

19/9/00 concluding decision

with corrective measures and

sanction.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P. Party’s failure of enforcement in connection with failure to file an information

after taking cognizance of environmental offenses during inspection visits

(continued)

Reference

Date of forestry

inspection

or audit

Complainant

Subject of

complaint Status as of 15/02/02

Allegations of

Submitter
APPENDIX 6 169

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so the

MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by

the Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-2474/99 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so the

MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by

the Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-3960/99 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so the

MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by

the Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1300-2731/99 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so the

MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by

the Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1320/00 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so the

MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by

the Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1322/00 Criteria used in deciding not to

notify MPF not explained.

Notes Questions to the Party Responses of the Party

Authority’s

file number

Comments on

Party’s responses
170 FACTUAL RECORD: TARAHUMARA SUBMISSION

P.8 13/4/00 (Profepa

inspection order

B 22 04/001324)

Basonayvo Ejido

(Agustín Bravo Gaxiola

et al.)

Illegal logging. 15/3/00 CC received by

Profepa. 31/3/00 CC allowed.

29/11/00 concluding decision

with corrective measures and

sanction.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P.9 12/4/00 (Profepa

inspection order

B 22 04/1312)

Mesa de Arturo Ejido

(Agustín Bravo Gaxiola

et al.)

Illegal logging. 15/3/00 CC received by

Profepa. 31/3/00 CC allowed.

19/9/00 concluding decision

with corrective measures and

sanction.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P.10 11/10/00

(Profepa inspection order B 22

04/004071)

Churo Ejido (Domingo

Carrillo et al.; Agustín

Bravo Gaxiola)

Felling of unmarked

timber.

6/3/00 CC allowed. 17/1/02

concluding decision with

corrective measures, sanctions

and warning.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P.11 13/4/00 (Profepa

inspection order

B 22 04/001316)

Cerocahui Ejido 31/7/00 administrative

proceeding reporting on

forestry inspection visit of

13/4/00, issuing warning to

Ejido and ordering corrective

measures.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P.12 14/4/00 (Profepa

inspection order

B 22 04/1314)

Refugio Ejido (Agustín

Bravo Gaxiola et al.)

Illegal logging. 15/3/00 CC received by

Profepa. 31/3/00 CC allowed.

19/9/00 concluding decision

with corrective measures and

sanction.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P. Party’s failure of enforcement in connection with failure to file an information

after taking cognizance of environmental offenses during inspection visits

(continued)

Reference

Date of forestry

inspection

or audit

Complainant

Subject of

complaint Status as of 15/02/02

Allegations of

Submitter
APPENDIX 6 171

Response of the Party

indicates that the facts, acts, or

omissions noted during the

inspection visits did not qualify

as criminal offenses and so

the MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by the

Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1324/00 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts, acts, or

omissions noted during the

inspection visits did not qualify

as criminal offenses and so

the MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by the

Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information filed with First

Agency of MPF under no.

A.P. 433/2000.

F-1312/00 Information filed.

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so

the MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by the

Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-4071/00 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so

the MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by the

Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1316/00 Criteria used in deciding not to

notify MPF not explained.

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so

the MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by the

Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

The forestry operations

were taking place under

an authorized

Management Program and

the irregularity evidenced

is that of not controlling the

debris.

F-1314/00 Cutting of timber was legal;

the irregularity was “minor”

and not considered a criminal

offense.

Notes Questions to the Party Responses of the Party Authority’s

file number

Comments on

Party’s responses
172 FACTUAL RECORD: TARAHUMARA SUBMISSION

P.13 17/4/00 (Profepa

inspection order

B 22 04/1318)

Ocoviachi Ejido Illegal logging. No damage was found at

Cerro Prieto. At Los Lobos

evidence was found of forestry

operations with facsimile mark

of service provider and

presence of 10 ha surface

forest fire.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P.14 13/4/00 (Profepa

inspection order

B 22 04/1239)

Rocoroyvo Ejido

(President of Ejido

Council)

Unauthorized felling

of 16 juniper

(Juniperus deppeana)

and ash trees

18/2/00 CC received by

Profepa. 25/2/00 CC allowed.

15/3/00 joinder of complaint

filed by Agustín Bravo Gaxiola

et al. 31/7/00 concluding

decision with corrective

measure and sanction.

The Authority did not

file an information

upon taking

cognizance of

environmental offenses

during inspection visit.

P.15 25/4/00

inspection report

no. 1310/2000

San Alonso Ejido No administrative proceeding

brought against Ejido.

No irregularities

detected.

P. Party’s failure of enforcement in connection with failure to file an information

after taking cognizance of environmental offenses during inspection visits

(continued)

Reference

Date of forestry

inspection

or audit

Complainant

Subject of

complaint Status as of 15/02/02

Allegations of

Submitter
APPENDIX 6 173

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so

the MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by

the Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

The irregularity was a 10

ha surface forest fire.

Recovery with next water

cycle.

F-1318/00

Response of the Party

indicates that the facts, acts,

or omissions noted during the

inspection visits did not qualify

as criminal offenses and so

the MPF was not notified.

Secretariat determined

(29/8/02) that there was no

reasoned determination by

the Authority supporting this

decision not to notify the MPF.

1.- What criterion or criteria

did the Authority use in

determining that the facts

complained of did not

qualify as an offense?

2.- Was a reasoned

decision issued by the

Authority determining that

the facts did not qualify as

an offense?

Information not filed. F-1239/00 Criteria used in deciding not to

notify MPF not explained.

No questions. ARCHIVE.

23/MAR/00

F-1310/00 No questions.

No irregularities detected.

Notes Questions to the Party Responses of the Party Authority’s

file number

Comments on

Party’s responses

APPENDIX 7

List of Information Gathered for

the Development of the Factual Record

1. Information Provided by Mexico

1.1 Response to Request for Information of 10 September 2003

Document no.

1. Citizen complaint filed by Agustín Bravo Gaxiola et al. on illegal

activity in San Antonio Creek (19 August 1999)

2. Official memo (Oficio) from Jesús Mendiaz Zubiate to Luís

Remigio Sáenz Ortiz with attachment of field report of visit in connection with complaint mentioned in document no. 1 (29 October

1999)

3. Information sheet of September 6 by María del Pilar Leal

Hernández on citizen complaint concerning Municipality of

Bocoyna, Chihuahua (10 June 1999)

4. Information sheet of June 17 by Lic. Luciando Grobet Vallarta on

citizen complaint concerning Municipality of Bocoyna, Chihuahua

(17 June 1999)

5. Oficio no. 08.02.031/99 from Lic. Luciando Grobet Vallarta to

Director, CNA Office in the State of Chihuahua, referring complaint filed by Red de Educadores Ambientales de Chihuahua,

A.C. (24 May 1999)

6. Citizen complaint filed with Semarnap by Red de Educadores

Ambientales de Chihuahua, A.C. (10 May 1999)

7. Oficio to Luís Remigio Sáenz Ortiz from Jesús Mendiaz Zubiate,

with attachment of field report of visit conducted in connection

with citizen complaint mentioned in preceding document (San

Diego de Alcalá resort) (15 October 1999)

8. Oficio no. B22.Profepa.07.C/001197 from Profepa to Director, CNA

Office in the State of Chihuahua, with attachment of complaint (El

Frijolar Creek) (16 March 2000)

9. Minutes taken by Profepa at the second inter-institutional meeting

to review and study the issues surrounding the Rochéachi River (3

November 1999)

APPENDIX 7 175
10. Oficio with attachment of report of inspection visit of October 28 to

Rochéachi River, El Frijolar Creek and Guaguichi Creek by representatives of Profepa, CNA and Semarnat (undated)

11. Minutes of interinstitutional meeting to review and study the

issues surrounding the Rochéachi River, Municipality of

Guachochi, Chih., held 22 October 1999, at the offices of the

Profepa in the State of Chihuahua (22 October 1999)

12. Oficio no. BOO.E.22.1.2051 from CNA to Lic. Eduardo Clave

Almeida, Director General of Profepa Complaints Branch, reporting on inspection visits to the Rochéachi, Guaguichi and El Frijolar

Rivers on 18 September and 9 December 1998, 2 February, 9 September and 13 October 1999 (25 October 1999)

13. Oficio no. BOO.E.22.1.2049 from CNA to Lic. Roberto Cruz

Izquierdo, Technical Secretary to the Director of Semarnat, reporting on inspection visits to the Rochéachi, Guaguichi and El Frijolar

Rivers of 18 September and 9 December 1998, 2 February, 9 September and 13 October 1999 (date illegible)

14. Oficio no. 00032294 from National Human Rights Commission to

Lic. Martín Díaz y Díaz, Director of Legal Affairs, Semarnat,

reporting on condition of Rochéachi River as a result of its alleged

indiscriminate exploitation and the alleged failure by Semarnat to

process the complaints filed by residents of the Municipality of

Guachochi (12 October 1999)

15. Oficio no. 112/996919 from Legal Affairs Branch of Semarnat to

Víctor Hugo García Peña, Director, CNA Office in the State of Chihuahua, with attachment of copy of oficio no. 00032294 of October

12 from National Human Rights Commission mentioned in document no. 14 (19 October 1999)

16. Carlos Coria Rivas, “Depredan la Sierra Tarahumara” (Pillaging of

the Sierra Tarahumara or “Copper Canyon” region), El Universal

(24 September 1999)

17. Oficio no. B22.Profepa.07.CA 004023 from Profepa Office in the

State of Chihuahua to Víctor Hugo García Peña, Director, CNA

Office in the State of Chihuahua, extending an invitation to attend

a meeting on 22 October 1999 regarding the citizen complaints

176 FACTUAL RECORD: TARAHUMARA SUBMISSION
filed concerning the impact of rock mining in the El Frijolar,

Huahuichi, and Rochéachi creeks (19 October 1999)

18. Agenda of interinstitutional meeting to review and study the

issues surrounding the Rochéachi River, Municipality of

Guachochi, Chihuahua (22 October 1999)

19. Letter from Ing. Hector Hugo Garcia Peña to Lic. Alberto Oliver

Martínez, Secretary to the Director General of the CNA, with

attachment of report ensuing from visit to Rochéachi River (15

October 1999)

20. Oficio no. B00.05.04.040 from Water Treatment and Quality Division, CNA, to Lic. Alberto Oliver Martínez, Secretary to the Director General of the CNA, reporting on certain inspections

conducted in the El Frijolar, Huahuichi, and Rochéachi creeks

ensuing from the citizen complaints filed concerning the impact of

rock mining (8 February 1999)

21. Oficio no. DG.003/RN/1590/99 from Complaints Branch of

Profepa to Lic. Guillermo Guerrero Villalobos, Director General of

CNA, reporting on the filing of new complaints on pollution of

creeks in Rochéachi Ejido and requesting a report on the status of

related previous complaints (5 October 1999)

22. Memorandum from the Secretary of the Head Office of the CNA

referring to the CNA Office in the State of Chihuahua a citizen

complaint filed by Coalición Rural dated September 27 (attachment to memorandum) concerning pollution of creeks in

Rochéachi Ejido (28 September 1999)

23. Memorandum from Secretary of the Head Office of the CNA referring to the CNA Office in the State of Chihuahua a citizen complaint filed by Coalición Rural dated September 27 (attachment to

memorandum) and requesting resolution of the citizen complaints

filed with Profepa concerning pollution of creeks in Rochéachi

Ejido (4 October 1999)

24. Memorandum from the Secretary of the Head Office of the CNA

referring to the CNA Office in the State of Chihuahua a newspaper

article published in El Universal on 23 September 1999 titled

“Depredan la Sierra Tarahumara” (Pillaging of the Sierra

Tarahumara) (attachment to memorandum) (28 September 1999)

APPENDIX 7 177
25. Citizen complaint filed by Agustín Bravo Gaxiola with CNA Office

in the State of Chihuahua concerning pollution of creeks in

Rochéachi Ejido (25 August 1999)

26. Modesto y Asociados, “Rochéachi Ejido, Mpio. de Guachochi, Chihuahua: Peritaje técnico en materia de impacto ambiental para el

aprovechamiento de materiales pétreos en los arroyos el Frijolar,

Guaguichi y Rochéachi” (Rochéachi Ejido, Municipality of

Guachochi, Chihuahua: expert report on environmental impact of

rock mining operations in El Frijolar, Guaguichi and Rochéachi

Creeks) (March 1999)

27. Citizen complaint filed by Agustín Bravo Gaxiola et al. with

Profepa concerning El Frijolar Creek (3 October 2000)

28. Oficio no. BOO.E.22.1.0535 from CNA to Profepa with attachment

of result of an inspection in El Frijolar Creek (24 March 2000)

29. Oficio from Jesús Mandiaz Zubiate to Luís Remigio Sáenz Ortiz

with attachment of field report of visit conducted in connection

with the complaint mentioned in the previous document (San

Alonso Creek) (2 June 2000)

30. Unknown author, “Informe de la situación que guarda la

explotación de materiales petreos en los arroyos de Rochéachi,

Guaguichi y el Frijolar, en el Ejido de Rochéachi, Mpio. De

Guachochi, Estado de Chihuahua” (Report on the status of rock

mining operations in the Rochéachi, Guaguichi and El Frijolar

Creeks in the Rochéachi Ejido, Municipality of Guachochi, State of

Chihuahua) (see document mentioned in no. 19) (undated)

31. Information document by CNA titled “Informe para el Expediente

de Hechos sobre la petición SEM–00–006 (Tarahumara)” (Report

for factual record on submission SEM–00–006 (Tarahumara)) (16

October 2003)

32. Oficio no. B22.Profepa.07.CA001414 from Profepa to Director of

CNA Office in the State of Chihuahua with attachment of citizen

complaint filed by Agustín Bravo Gaxiola concerning San Alonso

Creek (31 March 2003)

33. Citizen complaint filed by Agustín Bravo Gaxiola et al. with

Profepa concerning illegal activity in San Alonso Creek (15 March

2000)

178 FACTUAL RECORD: TARAHUMARA SUBMISSION
34. Oficio no. B22.Profepa.07.CA001412 from Profepa to Director of

CNA Office in the State of Chihuahua with attachment of citizen

complaint filed by Agustín Bravo Gaxiola concerning San Antonio

Creek (31 March 2003)

35. Citizen complaint filed by Agustín Bravo Gaxiola et al. with

Profepa concerning illegal activity in San Antonio Creek (15 March

2000)

36. Oficio from Jesus Mandiaz Zubiate to Luís Remigio Sáenz Ortiz

with attachment of field report of visit conducted in regard to complaint (document no. 35) (2 June 2000)

37. Oficio no. Profepa08/09/99 from Profepa to Director of CNA

Office in the State of Chihuahua with attachment of citizen complaint filed by Agustín Bravo Gaxiola concerning Municipality of

Bocoyna (6 September 1999)

1.2 Response to Request for Additional Information

of 20 January 2004

38. Oficio no. UCAI/0556/04 from Semarnat International Affairs

Coordinating Unit (UCAI) to the Submissions on Enforcement

Matters Unit of the Commission for Environmental Cooperation

requesting a response to the Request for Additional Information of

20 January 2004 (11 February 2004)

39. Coordination Agreement between the federal executive branch

and the executive branch of the State of Chihuahua with the object

of establishing foundations and guidelines for the drafting of specific agreements for the assumption by the state government and

its municipal governments of the responsibilities of the Federation,

the execution and operation of works, and the provision of public

services in the area of environment, natural resources, and fisheries (October 1996)

40. Coordination Agreement with the object of implementing the

environmental management capacity building program in the

State of Chihuahua and its municipalities, signed by Semarnat,

INE, and the Government of the State of Chihuahua (October 1996)

APPENDIX 7 179
41. Coordination Agreement on forestry matters between Semarnat

and the Government of the State of Chihuahua (April 1999)

42. Coordination Agreement between Profepa and the Government of

the State of Chihuahua with the object of laying the foundations for

the coordination of their actions to protect and preserve forest

resources within the state’s territorial jurisdiction (March 2000)

43. Minutes of the General Assembly of the Participatory Monitoring

Committee of the Guajolotes Ejido, Municipality of Balleza, Chihuahua (25 March 2003)

44. Minutes of the General Assembly of the Participatory Monitoring

Committee with Silvicultores Unidos de Guachochi, A.C. (21 May

2003)

45. Minutes of the General Assembly of the Participatory Monitoring

Committee of Asociación Municipal de Propietarios Rurales de

Guachochi, A.C. (1 June 2003)

46. Draft Coordination Agreement between Profepa and the Government of the State of Chihuahua with the object of taking actions to

protect and preserve forest resources (2004)

47. Oficio no. UJ.08/2003/006 from the Office of Semarnat in the State

of Chihuahua to the UCAI on the status of requests for information

and citizen complaints made respectively by Teresa Guerrero and

the Ejido President of Ciénega de Guacayvo Ejido, Chihuahua (4

February 2004)

1.3 Response to Follow-up Information Request of 10 June 2004

48. CONAFOR activity report for the month of May 2004 (May 2004)

49. Information concerning CONAFOR investment programs (in

2002–2003) in Sierra Tarahumara municipalities (undated)

50. Profepa report on actions to combat illegal logging in Mexican forests (2004)

51. Profepa report on clandestine logging enforcement program (May

2004)

180 FACTUAL RECORD: TARAHUMARA SUBMISSION
2. Information Gathered by the Secretariat

2.1 Governmental Information

2.1.1 Semarnat Documents

52. 1995–2000 Environment Program

53. 2001–2006 National Environment and Natural Resources Program

54. Environmental Promotion and Law Division (Subsecretaría de

Fomento y Normatividad Ambiental). National Forests and Water

Campaign – Strategic Program 2002–2006

55. Second Semarnat Activity Report for 1 September 2002 to 31 August

2002

56. State Decentralization Program, agreement with Government of the

State of Chihuahua (2002)

57. Decision re-categorizing as natural resource protection areas those

territories contemplated in the Presidential Decree of 8 June 1949,

published in the DOF on 3 August 1949 (7 November 2002)

58. Natural Resource Use and Restoration Unit (Unidad de Aprovechamiento y Restauración de Recursos Naturales). General Information

on the State of Chihuahua (2003)

59. Mexican Forest Fund (PowerPoint presentation in English) (2003)

60. Indigenous Peoples Directorate (Dirección de Atención a Pueblos

Indígenas). Indigenous Peoples Program (undated)

2.1.2 Profepa Documents

61. 1995–1997 Triennial Report

62. 2001–2006 Environmental Law Enforcement Program

63. 1995–2000 Report

64. 2002 Annual Report

APPENDIX 7 181
2.1.3 Other Government Documents

65. Government of the State of Chihuahua. State Development Plan

1999–2004

66. National Indigenous Peoples’ Institute (Instituto Nacional Indigenista). General Organization Manual (2002)

67. Office of the President of the Republic. Second Annual Report on

Implementation of National Development Plan (2002)

68. Environmental Tax Bill

69. Environmental Tax Act

70. Political Constitution of the Free and Sovereign State of Chihuahua

published in the Official Gazette of the State of Chihuahua, 17 June

1950

71. Coordination of Tax Matters with the Federation Act (Ley de

Coordinación en Materia de Derechos con la Federación), published in

the Official Gazette of the State of Chihuahua on 30 December 1981

72. Ejido Rights Registration and Land Titling Regulation to the

Agrarian Act (Reglamento de la Ley Agraria en materia de certification

de derechos ejidales y titulación de solares), published in the DOF on

6 January 1993

73. Decree revising and adding various provisions to the Federal Criminal Code and the Federal Code of Criminal Procedure, published in the

DOF on 6 February 2002

2.2 Reports by Nongovernmental Organizations

74. Environmental Law Institute. Aspectos Legales del Manejo Forestal en

México (Legal Aspects of Forest Management in Mexico) (research

report) (1998)

75. Comisión de Solidaridad y Defensa a los Derechos Humanos, A.C.

(Cosyddhac) and Texas Center for Policy Studies. La industria

forestal y los recursos naturales en la Sierra Madre de Chihuahua:

impactos sociales, económicos y ecológicos (1999) (original version of

The Forestry Industry in the State of Chihuahua: Economic, Ecological

and Social Impacts Post-NAFTA, May 2001)

182 FACTUAL RECORD: TARAHUMARA SUBMISSION
76. Centro Mexicano de Derecho Ambiental. Estudio sobre la política

forestal y su marco jurídico. Repercusiones ambientales(Environmental

repercussions of forest policy and its legal framework) (2000)

77. Centro Mexicano de Derecho Ambiental (Trade and Environment

Program) and Centro de Estudios del Sector Privado para el

Desarrollo Sustentable (Consejo Coordinador Empresarial).

Deforestación en México: Causas económicas / Incidencias del comercio

internacional (Deforestation in Mexico: economic causes/international trade impacts) (2002)

78. José Luís B. Mota Villanueva. Document prepared for the InterAmerican Development Bank. Anexo Norma Oficial Mexicana de

Emergencia NOM-EM-001–RECNAT–2001, que establece las especificaciones, procedimientos, lineamientos técnicos y de control para el

aprovechamiento, transporte, almacenamiento y transformation que

identifiquen el origen legal de las materias primas forestales (Appendix:

Mexican Official Emergency Standard NOM-EM-001–RECNAT–

2001 establishing the specifications, procedures, and technical and

control guidelines for use, transportation, storage, and processing

identifying the legal origin of forest raw materials) (2002)

2.3 Meetings and Interviews

79. Minutes of meeting of CEC Legal Officer with members of Pino

Gordo and Rochéachi ejidos, State of Chihuahua (16 October 2003,

notes transcribed by Ana Córdova)

80. Minutes of meeting of CEC Legal Officer with governmental

authorities in Chihuahua, Chihuahua (17 October 2003, notes

transcribed by Ana Córdova)

81. Minutes of meeting of CEC Legal Officer with members of Ciénega

de Guacayvo Ejido, State of Chihuahua (14 October 2003, notes

transcribed by Ana Córdova)

82. Interview by CEC Legal Officer with Agustín Bravo Gaxiola in

Chihuahua, Chihuahua (16 October 2003, notes transcribed by

Ana Córdova)

83. Minutes of meeting of CEC Legal Officer with indigenous governmental officials in Cuiteco, Municipality of Urique (15 October

2003, notes transcribed by Ana Córdova)

APPENDIX 7 183
2.4 Miscellaneous Documents

84. Ana Córdova y Vázquez, Collaborative Natural Resource and

Land-Use Planning in the Copper Canyon Region, Chihuahua, Mexico:

Prerequisites, Incentives and Challenges, master’s thesis, Department

of Natural Resources, Cornell University (February 1998)

85. Legislación sobre Derechos Indígenas, Culturas Indígenas de la Sierra

Tarahumara (Legislation on indigenous rights and indigenous

cultures of the Sierra Tarahumara). F.d.E.C. Programa Interinstitucional de Atención al Indígena, A.C. Chihuahua, México, Electronic Publishing, S.A. de C.V. (CD-ROM) (1999)

86. Un taller para documentar una tala ilegal(Workshop to document illegal logging). Colección Aprendiendo Juntos, vol. 11. Consultoría

Técnica Comunitaria, A.C. (16–18 March 1999)

87. Taller para dar seguimiento a las denuncias populares y a los problemas

forestales del ejido (Follow-up workshop on citizen complaints and

forestry problems of the ejido). Colección Aprendiendo Juntos,

vol. 12. Consultoría Técnica Comunitaria, A.C. (5–6 October 1999)

88. Symposium organized by the United Nations Environment Program and Profepa. Mexico’s declaration on the symposium “Environmental Law and Sustainable Development: Access to Environmental

Justice in Latin America” (28 January 2000)

89. Rodolfo Stavenhagen, United Nations Special rapporteur on the

situation of human rights and fundamental freedoms of indigenous people. Report on the situation of indigenous peoples in Mexico

(1 December 2003)

90. Request for information from Juan Israel Corral Leyva to Semarnat

(through the Public Information System, folio 0001600036703)

requesting the minutes of meetings between the ejidos of the State

of Chihuahua and various authorities (25 August 2003)

91. Oficio no. 588*073/03 from Ministry of Rural Development, Forest

Development Directorate, to Cosyddhac, stating that the information requested by the latter is not within the purview of the authority from which it was requested (8 October 2003)

184 FACTUAL RECORD: TARAHUMARA SUBMISSION
92. Oficio no. B22Profepa.05–003056/2003 from Profepa, Chihuahua

Office, to Cosyddhac, regarding payment of fines and repair of

harm in connection with citizen complaints filed (31 October 2003)

93. Dr. Ana Esther Ceceña, El Reconocimiento de los derechos y cultura

indígenas y la incompetencia del sistema político mexicano (Recognition

of indigenous peoples’ rights and culture and the lack of jurisdiction of the Mexican political system, (undated)

94. San Andrés Accords (16 January 1996)

95. Pronunciamiento Conjunto que el Gobierno Federal y el EZLN enviarán

a las Instancias de Debate y Decisión Nacional (Joint statement to be

sent by the federal government and the EZLN to the national

debate and decision-making bodies) (16 January 1996)

96. Propuestas Conjuntas que el Gobierno Federal y el EZLN se comprometen a enviar a las Instancias de Debate y Decisión Nacional, correspondientes al Punto 1.4 de las Reglas de Procedimiento (Joint proposals

which the federal government and the EZLN undertake to refer to

the national debate and decision-making bodies, corresponding to

Point 1.4 of the Rules of Procedure) (18 January 1996)

97. Instituto Nacional Indigenista. Derechos de los Pueblos y Comunidades Indígenas en la Constitution Política de los Estados Unidos

Mexicanos (Rights of indigenous peoples and communities in the

Political Constitution of the United Mexican States) (Presidential

Decree published in the DOF on 14 August 2001)

98. Comparative chart of the Cocopa initiative and the draft Indigenous Peoples Law (Dictamen de Ley Indígena). Reforms to the Indigenous Rights and Culture Act initiative (undated)

99. Cosyddhac. Amenazas a indígenas y defensores de derechos colectivos y

ambientales en la Sierra Tarahumara (Threats to indigenous peoples

and community and environmental rights advocates in the Sierra

Tarahumara), to Amnesty International (undated)

2.5 Newspaper articles

100. Blanche Petrich, “En la Tarahumara, muerte y silencio” (Death and

silence in Tarahumara), La Jornada (7 July 1996)

APPENDIX 7 185
101. Blanche Petrich, “Bosques sobre ruedas en la Tarahumara” (Forests on wheels in Tarahumara), La Jornada (8 July 1996)

102. Blanche Petrich, “Racismo soterrado en la justicia chabochi” (Hidden racism in Chabochi justice), La Jornada (9 July 1996)

103. Blanche Petrich, “Baborigame: 26 años de crímenes sin castigo”

(Baborigame: 26 years of crimes without punishment), La Jornada

(23 September 1998)

104. Blanche Petrich, “La narcosiembra llena de troje de maíz y fríjol,

dicen tepehuanes” (Drug cultivation fills maize and bean granaries), La Jornada (24 September 1998)

105. Blanche Petrich, “Narcotráfico, secreto a voces en Batopilas” (Drug

trafficking, an open secret in Batopilas), La Jornada (26 September

1998)

106. Blanche Petrich, “En Chihuahua, primer encuentro entre el

rarámuri y el tzetal” (In Chihuahua, first encounter between

Rarámuris and Tzetals), La Jornada (19 March 1999)

107. José Gil Olmos, “Resultados preliminares de la consulta, la

medianoche de hoy” (Preliminary consultation results tonight

at midnight), La Jornada (21 March 1999)

108. Blanche Petrich, “Raromaris de San José del Pinal apoyan tres

puntos de consulta” (Raromaris of San José del Pinal endorse three

consultation points), La Jornada (21 March 1999)

109. José Gil Olmos y Alma E. Muñoz, “Si el pueblo acepta, el gobierno

tiene que aceptar: Alexander” (If the public agrees, then so should

the government: Alexander), La Jornada (21 March 1999)

110. Various correspondents, “Judiciales de Durango agreden a un

enviado del EZLN” (Durango judicial police assault EZLN envoy),

La Jornada (21 March 1999)

111. Roberto Garduño and Ángeles Cruz, “Siguen promoviendo la

consulta en el DF” (Consultation in Federal District still being promoted), La Jornada (21 March 1999)

186 FACTUAL RECORD: TARAHUMARA SUBMISSION
112. Comandancia General del Ejercito Zapatista de Liberación

Nacional, Press release from Clandestine Indigenous Revolutionary Committee, La Jornada (March 1999)

113. Randall Gingrich, “Logging Dispute Sparks Discord on Tarahumara Ejido,” Borderline Updater (29 April 1999)

114. Blanche Petrich, “Justicia en Tarahumara” (Justice in Tarahumara), La Jornada (9 December 1999)

115. Kent Paterson, “Residents blame logging for environmental

changes / Timber Harvesting in the Sierra Madre: Local and

Regional Impacts,” Borderline 64, vol. 8, no. 2 (February 2000)

116. Elena Poniatowska, “Una gran venganza: Rodolfo Montiel

encarcelado” (Revenge: Rodolfo Montiel jailed), La Jornada (7 May

2000)

117. Blanche Petrich, “El modelo neoliberal, ajeno al interés de los

pueblos indios” (The neoliberal model: counter to indigenous peoples’ interests), La Jornada (4 June 2000)

118. Blanche Petrich, “Extinguen santuario forestal” (Destruction of

forest sanctuary), La Jornada (13 June 2000)

119. Blanche Petrich, “La desertificación amenaza la Tarahumara,

denuncia” (Desertification threatens the Tarahumara: complaint),

La Jornada (13 June 2000)

120. Blanche Petrich, “Autoridades indígenas buscan fortalecer la

política rarámuri” (Indigenous authorities seek to strengthen

Rarámuri policy), La Jornada (13 June 2000)

121. Jesús Ramírez Cuevas, “¿Por qué está reprobada la reforma?”

(Why is the reform rejected?), La Jornada (13 May 2000)

122. Gustavo Alanís, “Tala clandestina y deforestación” (Clandestine

logging and deforestation), Reforma (3 August 2003)

123. Gustavo Alanís, “Tala clandestina y deforestación” (Clandestine

logging and deforestation), Reforma (17 August 2003)

APPENDIX 7 187
124. Angélica Enciso, “Impuesto a actividades que dañan el ambiente,

propone el Ejecutivo” (Executive proposes tax on environmentally

damaging activities), La Jornada (4 December 2003)

125. Martha Eva Loera, “Especialista en derecho fiscal del CUCEA

afirma que la propuesta de ley para cobrar impuestas ambientales

es contradictoria” (CUCEA tax law specialist: environmental tax

collection bill is contradictory), Gaceta Universitaria de la Universidad de Guadalajara (undated)

126. Ginger Thompson, “Where Butterflies Rest, Damage Runs Rampant,” New York Times (2 June 2004)

127. “Prometen el equilibrio en bosques” (Forest stability promised),

Reforma (22 July 2004)

2.6 Videos

128. University of California Extension Center for Media and Independent Learning. Voices of the Sierra Tarahumara (undated)

129. Mis manos por el Rio – Rochéachi, video documenting community

awareness workshop on the importance of the river (undated)

130. Video documenting forest monitoring by residents of Ciénega de

Guacayvo Ejido (undated)

188 FACTUAL RECORD: TARAHUMARA SUBMISSION
APPENDIX 8

Article 27 of the Political Constitution

of the United Mexican States

Article 27. Ownership of the lands and waters within the boundaries of

the national territory is vested originally in the Nation, which has had,

and has, the right to transmit title thereof to private persons, thereby

constituting private property.

Private property shall not be expropriated except for reasons of

public utility and subject to payment of an indemnity.

The Nation shall at all times have the right to impose on private

property such limitations as the public interest may demand, as well as

the right to regulate for the benefit of society the utilization of natural

features which are susceptible of appropriation, in order to steward their

conservation, ensure a more equitable distribution of public wealth, and

achieve the balanced development of the country and the improvement

of living conditions for the rural and urban population. Accordingly, the

necessary measures shall be taken to order human settlements and

establish provisions, uses, reserves and assignments of lands, waters,

and forests sufficient to carry out public works and to plan and regulate

the foundation, conservation, improvement, and growth of centers of

population; to preserve and restore ecological stability; to divide up

large landholdings; to provide, under provisions of regulatory law, for

the collective organization and operation of ejidos and communities; for

the development of rural small landholdings; for the promotion of agriculture, stockraising, forestry, and other rural economic activities, and

to avoid destruction of natural features and damage that property may

incur to the detriment of society.

In the Nation is vested the direct ownership of all natural resources

of the continental shelf and the submarine shelf of the islands; of all minerals or substances which in veins, ledges, masses or ore pockets form

deposits of a nature distinct from the components of the earth itself,

such as the minerals from which industrial metals and metalloids are

extracted; deposits of precious stones, rock-salt and the salt deposits

formed by sea water; products derived from the decomposition of rocks,

when subterranean works are required for their extraction; mineral or

organic deposits of materials susceptible of utilization as fertilizers;

solid mineral fuels; petroleum and all solid, liquid, and gaseous hydrocarbons; and the space above the national territory to the extent and

within the terms fixed by international law.

In the Nation is likewise vested the ownership of the waters of the

territorial seas, within the limits and terms fixed by international law;

inland marine waters; those of lagoons and estuaries permanently or

APPENDIX 8 191
intermittently connected with the sea; those of natural, inland lakes

which are directly connected with streams having a constant flow; those

of rivers and their direct or indirect tributaries from the point in their

course where the first permanent, intermittent, or torrential waters

begin to their mouth in the sea or a lake, lagoon, or estuary forming a part

of the public domain; those of constant or intermittent streams and their

direct or indirect tributaries, wherever the course of the stream, throughout the whole or a part of its length, serves as a boundary of the national

territory or of two federated entities, or where it flows from one federated entity to another or crosses the boundary line of the Republic; those

of lakes, lagoons, or estuaries whose basins, zones, or shores are crossed

by the boundary lines of two or more entities or by the boundary line of

the Republic and a neighboring country or where the shoreline serves as

the boundary between two federated entities or of the Republic and a

neighboring country; those of springs that issue from beaches, maritime

areas, the beds, basins, or shores of lakes, lagoons, or estuaries in the

public domain; and waters extracted from mines and the channels, beds,

or shores of inland lakes and streams in an area established by law.

Underground waters may be brought to the surface by artificial works

and utilized by the surface owner, but if the public interest so requires or

use by others is affected, the Federal Executive may regulate their extraction and utilization, and even establish prohibited areas, the same as

may be done with other waters in the public domain. Any other waters

not included in the foregoing enumeration shall be considered an integral part of the property through which they flow or in which their

deposits are found, but if they are located in two or more properties,

their utilization shall be deemed a matter of public utility and shall be

subject to laws enacted by the States.

In those cases to which the two preceding sub-clauses refer,

ownership by the Nation is inalienable and imprescriptible, and the

exploitation, use, or appropriation of the resources concerned, by private persons or by companies organized according to Mexican laws,

may not be undertaken except through concessions granted by the Federal Executive, in accordance with rules and conditions established by

law. The legal rules relating to the working or exploitation of the minerals and substances referred to in the fourth sub-clause shall govern the

execution and verification of such operations carried out or to be carried

out after they go into effect, regardless of the date of granting of the concessions, and their nonobservance will be grounds for cancellation

thereof. The Federal Government has the power to establish national

reserves and to abolish them. The declarations pertaining thereto shall

be made by the Executive in those cases and conditions prescribed by

law. In the case of petroleum and solid, liquid, or gaseous hydrocarbons,

192 FACTUAL RECORD: TARAHUMARA SUBMISSION
no concessions or contracts will be granted nor may those that have been

granted subsist, and the Nation shall carry out the exploitation of these

products in accordance with the provisions indicated in the respective

regulatory law. It is exclusively a function of the Nation to generate, conduct, transform, distribute, and supply electric power for the purposes

of provision of public service. No concessions for this purpose will be

granted to private persons and the Nation will make use of the property

and natural resources which are required for these ends.

Also vested in the Nation is the right to use nuclear fuels for generation of nuclear power and for regulation of its applications for other

purposes. The use of nuclear energy is permitted only for peaceful ends.

Within an exclusive economic zone situated outside the territorial

seas and adjacent to them, the Nation exercises sovereignty and the

spheres of jurisdiction determined by the laws of Congress. The exclusive economic zone shall extend to two hundred nautical miles as measured from the baseline for measurement of the territorial seas. In those

cases where this extent leads to overlap with the exclusive economic

zones of other States, the delimitation of the respective zones shall be

determined, as necessary, by means of agreements with those States.

The legal capacity to acquire ownership of lands and waters of the

Nation shall be governed by the following provisions:

I. Only Mexicans by birth or naturalization and Mexican companies

have the right to acquire ownership of lands, waters, and their appurtenances or to obtain concessions for the exploitation of mines or waters.

The State may grant the same right to foreigners, provided they agree

before the Ministry of Foreign Relations to consider themselves as

nationals in respect of such property, and bind themselves not to invoke

the protection of their governments in matters relating thereto, under

penalty, in case of noncompliance with such agreement, of forfeiture to

the Nation of any property thereby acquired. Under no circumstances

may foreigners acquire direct ownership of lands or waters within a

zone of one hundred kilometers along the boundaries and of fifty kilometers along the shores of the country.

The State, in accordance with its internal public interests and the

principles of reciprocity, may, at the discretion of the Ministry of Foreign

Relations, authorize foreign States to acquire, at the permanent places of

residence of the Federal Powers, private ownership of the real property

necessary for the direct service of their embassies or legations.

APPENDIX 8 193
II. Religious associations organized under the provisions of Article

130 and its regulatory law shall have the legal capacity to acquire, hold,

or administer, exclusively, the property indispensable to their purpose,

with the requirements and limitations established by regulatory law.

III. Public or private charitable institutions for the rendering of assistance to the needy, for scientific research, dissemination of knowledge,

mutual aid to members, or for any other lawful purpose, may not

acquire more real property than that which is indispensable to their purpose and immediately or directly devoted thereto, subject to the provisions of regulatory law.

IV. Commercial stock companies may be the owners of rural properties, but only in the amount necessary to the fulfillment of their purpose.

In no event may companies of this kind own land devoted to agricultural, stockraising, or forestry activities in amounts greater than the

equivalent of twenty-five times the amount set out in sub-clause XV of

this article. The regulatory law shall govern the capital structure and

minimum number of shareholders of such companies, for the purpose of

guaranteeing that such lands owned by the company do not exceed the

limits for small landholdings in respect of each shareholder. In such case,

any individual shareholding corresponding to rural lands shall be additive for purposes of computation. Furthermore, the law shall set out the

conditions for foreign interests in such companies.

The law itself shall establish the means of registration and control

necessary for the enforcement of the provisions of this sub-clause.

V. Banks duly authorized to operate in accordance with the laws on

credit institutions may hold mortgages on urban and rural property in

conformity with the provisions of such laws but they may not own or

administer more real property than is absolutely necessary for their

direct purpose.

VI. The States and the Federal District, as well as the municipalities of

the whole Republic, shall have full legal capacity to acquire and hold all

the real property necessary to render public services.

The laws of the Federation and the States, within their respective

jurisdictions, shall determine in what cases the occupation of private

property shall be considered to be of public utility, and in accordance

with such laws, the administrative authorities shall issue the respective

declaration. The amount fixed as compensation for the expropriated

194 FACTUAL RECORD: TARAHUMARA SUBMISSION
property shall be based on the value recorded in the land registry or tax

offices, whether this value has been declared by the owner or tacitly

accepted by him by virtue of having paid taxes on that basis. The

increased or decreased value of such private property due to improvements or depreciation occurred subsequent to such assessment is the

only portion of the value that shall be subject to expert opinion and judicial settlement. This same procedure shall be followed in the case of

objects whose value is not recorded in the tax offices.

The exercise of actions reserved to the Nation by virtue of the provisions of this article shall be made effective by judicial proceedings, but

during such proceedings and by order of the proper courts, which must

render a decision within a maximum of one month, the administrative

authorities shall proceed without delay to occupy, administer, auction,

or sell the lands and waters in question and all their appurtenances, and

in no case may the acts of such authorities be set aside until a final decision has been rendered.

VII. The legal personhood of ejido and community centers of population is recognized, and their ownership of land is protected for purposes

of both human settlement and productive activities.

The law shall protect the integrity of the lands of indigenous

groups.

The law, considering respect for and strengthening of the community life of ejidos and communities, shall protect the land for human settlement and shall regulate the use of common lands, forests, and waters

as well as the taking of development actions necessary to raise the living

standards of their inhabitants.

The law, with respect for the will ofejido and community members

to adopt the conditions most suitable to them in the use of their productive resources, shall regulate the exercise of the rights of community

members over the land and of each ejido member over his or her own lot.

Likewise, it shall establish the procedures whereby ejido and community

members may form associations with one another, with the State, or

with third parties, and grant the use of their lands and, concerning ejido

members, convey their land rights between the individual members of

the center of population; in addition, it shall establish the requirements

and procedures whereby the ejido assembly may grant ownership of

their lots to ejido members. In the case of transfer of lots, the right of preference prescribed by law shall be respected.

APPENDIX 8 195
Within one center of population, no ejido member may be the

owner of more than 5 % of the totalejido lands. In all cases the ownership

of lands by one ejido member shall adhere to the limits set out in

sub-clause XV.

The general assembly is the supreme body of an ejido or community center of population, with the organization and functions prescribed by law. The ejido or community council, elected democratically

under provisions of law, is the representative body of the center of population and is responsible for carrying out the resolutions of the assembly.

The restitution of lands, forests, and waters to centers of population shall take place as prescribed by the regulatory law.

VIII. The following are declared null and void:

a) all transfers of the lands, waters, and forests of villages, rancherías,

groups, or communities made by local officials (jefes políticos),

state governors, or other local authorities in violation of the provisions of the Law of 25 June 1856 or other related laws and rulings;

b) all concessions, deals or sales of lands, waters, and forests made by

the Ministry of Development, the Ministry of Finance, or any other

federal authority from 1 December 1876 to date, which have given

rise to the encroachment upon or illegal occupation of ejidos, lands

allotted in common, or lands of any other kind belonging to villages, rancherías, groups or communities, and centers of population;

c) all survey or demarcation-of-boundary proceedings, transactions,

transfers, or auction sales effected during the period of time

referred to in the preceding sub-clause, by companies, judges, or

other federal or state authorities which have given rise to the

encroachment upon or illegal occupation of the lands, waters,

or forests of ejidos, lands allotted in common, or other holdings

belonging to centers of population;

The sole exception to the aforesaid nullification shall be lands to which

title has been granted in allotments made in conformity with the Law of

25 June 1856 held by persons in their own name for more than ten years

and having an area of not more than fifty hectares.

196 FACTUAL RECORD: TARAHUMARA SUBMISSION
IX. Divisions or allotments of land among the inhabitants of a given

center of population which, although apparently legitimate, are not

so due to a mistake or defect, may be annulled at the request of

three-fourths of the residents holding one-fourth of the land so divided,

or one-fourth of such residents holding three-fourths of the lands.

X. (Repealed).

XI. (Repealed).

XII. (Repealed).

XIII. (Repealed).

XIV. (Repealed).

XV. Large landholdings (latifundios) are prohibited in the United Mexican States.

Small agricultural landholdings are those which do not exceed one

hundred hectares per individual of first-class humid or irrigated land or

the equivalent in other classes of land.

For the purposes of this equivalence, one hectare of irrigated land

shall be computed as two hectares of seasonal land, as four of good quality pasturage, and as eight of woodland, scrub land (monte) or arid pasturage.

Also to be considered as small landholdings are areas not exceeding one hundred fifty hectares per individual where the land is used for

growing cotton, if irrigated; or three hundred hectares per individual,

where used for growing bananas, sugar cane, coffee, henequen, rubber,

coconut palm, wine grapes, olives, quinine, vanilla, cacao, agave, nopal,

or fruit trees.

To be considered small landholdings for stockraising are lands not

exceeding the area per individual necessary to maintain up to five hundred head of cattle (ganado mayor) or their equivalent in smaller animals

(ganado menor, sheep, goats, pigs) under provisions of law, in accordance

with the forage capacity of the lands.

Wherever the quality of the land is improved due to irrigation or

drainage works or any other works executed by the owners or occupants

of a small landholding, such holding shall continue to be considered a

APPENDIX 8 197
small landholding even where, by virtue of the improvement achieved,

the limits set out in this sub-clause are exceeded, provided that the

requirements fixed by law are met.

Where, within one small landholding for stockraising, improvements are made to lands that are dedicated to agricultural uses, the area

utilized for such purpose shall not exceed those limits contemplated in

the second or third paragraphs of this sub-clause, as applicable, that

relate to the quality of such lands before the improvement.

XVI. (Repealed).

XVII. The Congress of the Union and the legislatures of the states, in

their respective jurisdictions, shall pass laws establishing the procedures for the division and transfer of property that exceeds the limits set

out in sub-clauses IV and XV of this article.

The excess shall be divided and transferred by the owner within a

period of one year from the receipt of the corresponding notice. Where

the excess has not been transferred by the the end of said period, it shall

be sold at public auction. On an equal basis, the right of preference prescribed by the regulatory law shall be respected.

Local laws shall structure the family estate, determining the property of which it is composed, on the basis that it shall be inalienable and

not subject to attachment or encumbrance of any kind.

XVIII. All contracts and concessions made by former governments

since the year 1876 that have resulted in the monopolization of lands,

waters, and natural resources of the Nation by a single person or company are declared subject to review, and the Executive of the Union is

empowered to declare them null and void where they entail serious

harm to the public interest.

XIX. On the basis of this Constitution, the State shall have at its disposal the means for the expedient and honest delivery of agrarian justice, for the purpose of guaranteeing legal recognition of the tenancy of

ejido and communal lands and small landholdings, and it shall support

the legal advising of peasants (campesinos).

All matters relating to the boundaries ofejido and communal lands,

regardless of origin, that are pending or arise between two or more centers of population, as well as those matters relating to the land tenancy of

ejidos and communities, are under federal jurisdiction. For such pur198 FACTUAL RECORD: TARAHUMARA SUBMISSION
poses and, in general, for the administration of agrarian justice, the law

shall institute tribunals enjoying autonomy and full jurisdiction, made

up of judges nominated by the Federal Executive and confirmed by the

Chamber of Senators, or, during a recess of the Senate, by the Standing

Commission.

The law shall establish an agrarian law enforcement body.

XX. The State shall foster the conditions for comprehensive rural development, with the object of creating employment and guaranteeing the

well-being of the peasant population and its participation and inclusion

in national development, and shall promote agricultural and forestry

activity for the optimal use of land, with works of infrastructure, inputs,

credits, and training and technical assistance services. Likewise, it shall

enact regulatory legislation for the planning and organization of agricultural production and its industrialization and commercialization, considering these to be of public interest.

APPENDIX 8 199

APPENDIX 9

Photos

Photo 1: El Divisadero, Municipality of Bocoyna, Chihuahua

(14 October 2003)

APPENDIX 9 203
Photo 2: Lot adjacent to Ciénega de Guacayvo Ejido that was the subject of

a complaint included in the submission (14 October 2003)

Photo 3: Lot adjacent to Ciénega de Guacayvo Ejido that was the subject of

a complaint included in the submission (14 October 2003)

204 FACTUAL RECORD: TARAHUMARA SUBMISSION
Photo 4: Product of illegal logging on a lot in the ejido of Ciénega de

Guacayvo since 1999 (14 October 2003)

APPENDIX 9 205

ATTACHMENT 1

Council Resolution 05-09,

dated 21 December 2005

Distribution: General

C/C.01/05/RES/09/Final

ORIGINAL: English

21 December 2005

COUNCIL RESOLUTION 05-09

Instruction to the Secretariat of the Commission for Environmental

Cooperation to make public the Factual Record for Submission

SEM-00-006 (Tarahumara)

THE COUNCIL:

SUPPORTIVE of the process provided for in Article 14 and 15 of

the North American Agreement on Environmental Cooperation (NAAEC)

regarding submissions on enforcement matters and the preparation of

factual records;

HAVING RECEIVED the final factual record for the Submission

SEM-00-006;

NOTING that pursuant to Article 15(7) of the NAAEC, the Council is

called upon to decide whether to make the factual record publicly available; and

AFFIRMING its commitment to a timely and transparent process;

HEREBY DECIDES:

TO MAKE PUBLIC and post on the registry the final factual record for

Submission SEM-00-006 and;

TO ATTACH to the final factual record comments provided by the

Parties to the Secretariat on the draft factual record.

APPROVED BY THE COUNCIL:

______________________________________________________

Judith E. Ayres

Government of the United States of America

COUNCIL RESOLUTION 05-09 211
______________________________________________________

José Manuel Bulás Montoro

Government of the United Mexican States

______________________________________________________

David McGovern

Government of Canada

212 FACTUAL RECORD: TARAHUMARA SUBMISSION
ATTACHMENT 2

Comments of United States

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

WASHINGTON, D.C. 20460

OFFICE OF

INTERNATIONAL AFFAIRS

Mr. William Kennedy

Executive Director

Secretariat of the Commission for Environmental Cooperation

393, rue St-Jacques west, bureau 200

Montreal QC H27 1N9

Re: Tarahumara Draft Factual Record

Dear Mr. Kennedy,

Thank you for providing the United States with a copy of the draft factual record for Submission SEM-00-006 (Tarahumara). The United States

strongly supports the public submissions process provided for under

Articles 14 and 15 of the North American Agreement on Environmental

Cooperation (NAAEC) and welcomes the opportunity to review and

comment on the Tarahumara draft factual record.

Although the term “factual record” is not defined in the NAAEC nor the

Guidelines for Submissions on Enforcement Matters under Articles 14 and 15

of the North American Agreement on Environmental Cooperation (“Guidelines”), both of these sources provide guidance regarding the purpose of

the factual record and the type of information it should include. A factual record should provide the public with an impartial presentation of

the relevant facts but should not contain conclusions as to whether a

Party is, in fact, effectively enforcing its environmental law. A factual

record should provide the public with the information they need to

draw their own conclusions regarding the effectiveness of the enforcement by a Party of its environmental law. It is with this backdrop

that the United States provides its comments to the Secretariat on the

Tarahumara draft factual record attached hereto.

The United States recognizes the substantial effort it took to prepare the

Tarahumara draft factual record and greatly appreciates the Secretariat’s effort in this regard.

COMMENTS OF UNITED STATES 215
Should you have any questions regarding the United States’ comments,

please do not hesitate to contact Nadtya Ruiz (202-564-1391) or Jocelyn

Adkins (202-564-5424).

Sincerely,

Judith E. Ayres

Assistant Administrator

Attachment

216 FACTUAL RECORD: TARAHUMARA SUBMISSION
UNITED STATES’ COMMENTS ON THE TARAHUMARA

DRAFT FACTUAL RECORD

Sources of Information

In several places, the draft factual record (“DFR”) includes information

without identifying the source of the information. To the extent possible,

the factual record (“FR”) should identify the source of the information it

contains. In the event the Secretariat is unable to identify the source of

information, the Secretariat should seriously consider whether the information should be included.

Scope of the Factual Record

Section V of the Secretariat’s Article 15(1) Notification to Council that

Development of a Factual Record is Warranted (“Notification”) includes

the Secretariat’s recommendation that a factual record be prepared on

the Tarahumara Submission regarding: (1) assertions in the Submission

that previously warranted a response from Mexico, concerning Mexico’s alleged failure to effectively enforce LGEEPA [General Law on Ecological Balance and Environmental Protection] Articles 169, 189, 190-193,

and 202, as well as CPF [Federal Penal Code] Articles 416, 418, and 419; and

(2) the assertions in the Submission concerning Mexico’s alleged failure

to effectively enforce its environmental law with respect to the citizen

complaint procedure and the prosecution of probable environmental

crimes, in the cases presented in the Submission (Notification, p. 20).

When the Council, via Council Resolution 03-04, instructed the Secretariat to prepare a FR on the Tarahumara Submission, it did so with the

understanding that the Secretariat would prepare a FR consistent with

its recommendation, as detailed in Section V of the Notification.

Though most of the information presented in the DFR is within the

parameters of the scope authorized by the Council, the document contains some information which falls outside the scope. To the extent the

DFR includes such information, it should be revised so as to remove this

information. For example, Section 7 includes a significant amount of

information which falls outside the authorized scope of the FR. It indicates that it is intended to provide “background information relevant to

an understanding of the information presented . . .” and includes a broad

and lengthy discussion of natural resource management and indigenous

rights in Mexico. It then proceeds to discuss federal and state matters

including a detailed discussion of Mexico’s Constitution. Though the

discussion provides a great deal of interesting information on the subject

COMMENTS OF UNITED STATES 217
of indigenous rights in Mexico, this information is beyond the authorized scope of the FR in that it relates to matters not addressed in the

Submission, Mexico’s Response, nor the Secretariat’s Notification.

It is important to note that while the Submission included a broad assertion that Mexico’s failure to effectively enforce its environmental law

amounted to a denial of environmental justice with respect to certain

identified indigenous peoples and communities in the Sierra

Tarahumara, the Submitters specifically asserted that it was Mexico’s

alleged failure to effectively enforce a series of specific provisions, identified in the Submission, that gave rise to the broader allegation. This

being the case, and to be consistent with the Secretariat’s Notification,

the FR should contain facts relevant to Mexico’s alleged failure to effectively enforce the legal provisions identified in the Submission. Given

that a substantial portion of Section 7 presents information outside the

identified scope of the FR, the Section should be removed or substantially revised so as to include only that information relevant to the assertions at issue.

Other examples of the DFR including information falling outside the

scope of the FR that need to be addressed consistent with the United

States’ comments include the following:

• Executive summary, page 2, Paragraph 1- discussion of the rights of

indigenous peoples under the Mexican federal Constitution, the state

of Chihuahua’s Constitution and the UN Report on the situation of

human rights and fundamental freedoms in 2003.

• Section 7.1.1.1- Federal Constitutional Provisions related to indigenous rights.

• Section 7.1.1.2- Federal Statutory Provisions- information about the

Agrarian Act, and the LGDFS.

• Section 7.1.2- Information regarding Chihuahua State Constitution

• Section 7.1.3- United Nations Report on the Situation of Indigenous

Peoples in Mexico.

Conclusive/Speculative/Interpretive Statements

Given that a FR is intended to consist of a presentation of the relevant

facts related to whether a Party is failing to effectively enforce its environmental law, the United States has concerns with certain text in the

DFR that includes overly conclusive, speculative, and/or interpretive

218 FACTUAL RECORD: TARAHUMARA SUBMISSION
statements without a clear factual foundation. If for example, a thought

or conclusion was articulated by the Mexican Government, the

Submitter, or some other source, this should be clearly indicated. If this

is not the case, statements in this regard should be modified or removed

so as to avoid presenting inappropriate conclusions or overly speculative commentary. For example, on page 51 of the DFR, in Section 9.1, the

DFR states, “[f]rom a cultural perspective, linguistic differences hamper

communication between the indigenous communities and government

authorities and affect the ability of indigenous communities to access the

citizen complaint procedure and to participate in government natural

resource programs.” A source for this statement is not cited nor is any

factual information provided to substantiate the statement. If this statement represents the view of the Government of Mexico or some other

source, this should be noted. If it does not, the statement should be

removed or modified. A FR is not intended to include conclusions (or

speculations/interpretations) by the Secretariat regarding whether a

Party is failing to effectively enforce its environmental law and, therefore, statements of this kind should be removed or substantially revised.

Another example of an overly conclusive statement in the DFR can be

found on page 52 of the DFR, under Section 9.1. The DFR states,

“[e]conomic and social factors such as poverty and lack of education also

affect relations between government authorities and aboriginal communities and have an impact on the role of citizen complaints as tools for

environmental justice.” Again, it is unclear whether this statement represents the view of the Secretariat and to what extent it is supported by

the facts. If it constitutes an overly broad conclusion by the Secretariat,

the statement should be removed or substantially revised. As previously

expressed, a FR is not intended to present conclusions regarding

whether a Party is failing to effectively enforce its environmental law,

rather it is supposed to provide the relevant facts so that the reader may

draw his own conclusions regarding the enforcement matters at issue.

For the reasons cited immediately above, the United States also has

concerns regarding the following text:

• Section 9.1, page 49, second paragraph, second sentence: “The need to

travel long distances to verify the facts relating to a complaint hinders

the ability of Profepa staff to act within the time frame prescribed by

the LGEEPA, and affects the effectiveness of citizen complaints as an

instrument of environmental protection (since the authorities arrive

after the illegal logging or extraction activities have occurred) and

Profepa’s ability to collect the information necessary to support laying criminal charges” (emphasis added).

COMMENTS OF UNITED STATES 219
• Section 9.2, page 54, last paragraph, first sentence: “Another challenge facing the effective enforcement of the federal legal framework

for citizen complaints and complaints of criminal offenses...” (emphasis added).

Appropriate Time Frame for Relevant Facts

The United States notes that the DFR includes a substantial amount of

information related to activities and events occurring after the date on

which the submission was filed with the Secretariat (May 2000). Though

the U.S. is not commenting on this subject at this time, we note that the

issue of what constitutes the appropriate time frame for included information in a FR is one that requires careful consideration and is a subject

on which the United States might comment in the future.

Revisions to Draft Factual Record

The United States requests that a redline/strikeout copy of the DFR

accompany the copy of the “final” Tarahumara factual record the Secretariat provides to the United States.

220 FACTUAL RECORD: TARAHUMARA SUBMISSION
ATTACHMENT 3

Comments of Mexico

INTERNATIONAL AFFAIRS

COORDINATION UNIT

UCAI/2010/05

Mexico, D.F., 20 May 2005

MR. WILLIAM V. KENNEDY

EXECUTIVE DIRECTOR

COMMISSION FOR ENVIRONMENTAL COOPERATION

OF NORTH AMERICA

In response to your 6 April letter, and pursuant to Article 15(5) of the

North American Agreement on Environmental Cooperation (NAAEC),

I hereby present the comments of this Secretariat’s General Legal Coordination Office regarding the draft factual record on submission

SEM-00-006/Tarahumara:

1. The Council determined that the development of a factual record

was warranted for submission SEM-00-006/Tarahumara, with

respect to the documentation of the process in which the environmental authority determined whether the facts in question of which

it had knowledge were probable environmental crimes, and the rulings by which it determined whether to report such facts to the federal public prosecutor (Ministerio Público Federal), in accordance

with Articles 169 and 202 of the General Law of Ecological Balance

and Environmental Protection (Ley General del Equilibrio Ecológico y

la Protección al Ambiente–LGEEPA).

Environmental laws, and not the violation of human rights, are subject to citizen submissions in the context of Articles 14 and 15 of the

NAAEC, and therefore we believe that the draft factual record loses

sight of and exceeds the objective of the citizen submission by introducing the report of the United Nations Special Rapporteur on the

situation of human rights and fundamental freedoms of indigenous

peoples, as well as points 7, 7.1, 7.1.1, 7.1.1.2, 7.1.2 and 7.1.3 on the

rights of indigenous peoples, which are non-environmental topics

under Article 45 (2) of the NAAEC.

2. Following from point 1 above, we find that to point out agrarian considerations and matters set forth in Article 2 of the Political Constitution of the United Mexican States exceeds the objectives of the

factual record.

COMMENTS OF MEXICO 223
3. On the other hand, we find judgments throughout the text of the

draft factual record that should not be expressed, as the sole purpose

of a factual record is to report facts and not state opinions of any

kind. We believe that the Secretariat assumes additional conditions

not relating to the enforcement of Mexico’s environmental laws.

Some examples of this may be found on the following pages:

• Page 7 of the draft says, “From a geographic perspective, enforcementis affected by the absence of Profepa and CNA offices ... Differing conceptions regarding the value of forests ... affect the

ability to reach consensus on what is effective law enforcement ...

Economic and social factors limit the ability of indigenous communities to develop, adopt, implement and enforce local rules on

forest management ...”

• Page 52 states, “From a cultural perspective, linguistic differences

hamper communication between indigenous communities and

government authorities...”

• Appendix VI includes notes, problems and comments on the

Party’s response, which are not objective and which contain elements not suitable for a factual record. To cite an example,

although the party’s response states that administrative penalties

were imposed but no criminal complaint was filed with the public prosecutor because the facts did not constitute a criminal

offense, we find in section I.13, that the Secretariat asserts that the

facts may constitute a crime and the reasons for the public prosecutor to not be involved are not explained. While this is a fact of

law, it does not have criminal consequences. This applies to all of

Appendix VI.

4. Lastly, it is important to note that the time period referenced by the

facts stated in the record should not exceed the time period in which

the facts referenced in the citizen submission in question occurred.

In accordance with the provisions of Article 15 (6) of the NAAEC, we

hereby request that the amended draft factual record be presented,

reflecting the comments forwarded by the NAAEC Parties.

224 FACTUAL RECORD: TARAHUMARA SUBMISSION
Best regards.

Yours truly,

GENERAL DIRECTOR, INTERNATIONAL COOPERATION

MA. TERESA BANDALA MEDINA

Substituting for the Head of the International Affairs

Coordination Unit, under Article 154 of the Internal

Regulations of the Secretariat of the Environment and

Natural Resources.

CC: José Manuel Bulás Montoro. Head of the International Affairs Coordination Unit.

JMMA*lgg.

COMMENTS OF MEXICO 225