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Opinion
The Lacey Act… what’s next?


September 18, 2015
By John Nickum

Is the strained relationship between American fish farmers and US Fish and Wildlife Service over the Lacey Act about to change?  A recent ruling by Judge Randolph Moss (US District Court for the District of Columbia) provides a possibility for a major change.

The fundamental purpose of the Lacey Act is to provide federal support for state fish and wildlife regulations, by making it a violation of federal law to transport illegally taken, or illegally possessed, fish or wildlife from one state to another.  However, Judge Moss’ decision brings into question whether or not Lacey Act regulations for interstate transportation extend to injurious wildlife, and potentially to transportation of fish that are legally owned by a private fish farmer.

US fish farmers have a long running case of severe heartburn over the Lacey Act as it is applied to interstate movement of aquaculture products.  Regulations vary from state-to-state and there is no central source where all such regulations are on file.  Fish that are possessed and/or owned legally in one state may not be legal in another state.  Transporting legally owned fish from a state where they are legal to a state where they are illegal can become a violation of federal regulations based on the Lacey Act; and penalties become much more severe under federal law.  Inadvertent violations that warrant no more than a warning under state regulations can drive a fish farmer into bankruptcy if a Lacey Act violation is ruled to be a felony.  Given such penalties and the extreme difficulty of knowing the full details of all state regulations, it’s easy to understand the anxiety of US fish farmers with respect to the Lacey Act.

The Lacey Act, which was enacted in 1900, has a long and rather illustrious record for controlling wildlife poaching and market hunting.  During the late 1800s market hunters and poachers could take wildlife in one state then transport the illegal take into a nearby state and be immune from arrest and prosecution.  The effects on wildlife populations were devastating.  The Lacey Act was designed to stop such actions by imposing severe penalties, including time in jail, if illegally taken wildlife was transported across State lines.  However, the Lacey Act was never designed to apply to legally owned and transported aquaculture products.

The Lacey Act has been amended several times and provisions for declaring certain species “injurious wildlife” have been added.  The primary intent of injurious wildlife regulations is to prevent species that are not native, nor present as self-sustaining populations in the US … and are considered dangerous, or potentially damaging to native populations and ecosystems … from being imported into the US.  Substantial revisions of the Lacey Act were approved in 1960; however, these changes never provided unambiguous authority to regulate interstate transportation of injurious wildlife.

This lack of clear authority concerning transportation of aquaculture products is the key to fish farmer’s angst. As American aquaculture has grown over the last 60 years, and as concern over movement of non-indigenous species into areas outside their native ranges has grown, regulations based on the Lacey Act have been used to limit the transportation of farmed fish between states.

Fish farmers have questioned the applicability of the Lacey Act to farmed fish and have complained bitterly over the severe penalties they have incurred under the Lacey Act for violations of somewhat obscure state regulations.

Recently, the United States Association of Reptile Keepers Inc (USARK) sought a preliminary injunction to prevent the Department of the Interior from implementing a recent final regulation that added four species of large constrictor snakes to the list of injurious species under the Lacey Act. USARK questioned whether the Lacey Act’s language actually allows the regulation of interstate transportation of injurious species.  The US District Court for the District of Columbia (Judge Randolph Moss) granted USARK’s motion for a preliminary injunction. ​ The court found USARK was likely to prevail on its argument that the “injurious species” provision of the Lacey Act (18 U.S. Code sec. 42) does not include regulation of interstate transportation.  The immediate legal effect of the injunction is just that the U.S. Fish and Wildlife Service (USFWS) is prohibited from regulating interstate commerce  in these newly-listed constrictor snakes by USARK’s members and a few other named Plaintiffs.

If the injunction is sustained by higher courts, the USFWS may be prohibited from regulating interstate commerce in any species listed as injurious wildlife; or potentially any species that is legally owned and/or possessed by the shipper.  This potential effect of Judge Moss’ decision has been greeted almost joyfully by American fish farmers; but environmental activists and resource managers are very worried that they are about to lose an important tool from their bag of regulations.

A very interesting chapter in American environmental resource management is about to be written.  One can only hope that the overlapping interests of fish farmers, resource managers, and environmentalists can be addressed in a fair and orderly manner.

 — John Nickum


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