US aquaculture producers should be able to transport live fish across state boundaries without the prospect of inadvertently triggering draconian penalties, following a ruling by a Court of Appeal last week that deems that the US Fish and Wildlife Service (FWS) does not have the authority to prohibit interstate transport of injurious wildlife.
Since the 1970s, the FWS has interpreted the Lacey Act to mean they possess the authority to prohibit the shipment of species listed as injurious wildlife between the 49 continental states – an interpretation that has effectively hamstrung the US aquaculture industry, as it meant that interstate transport of fish could result in fish farmers risking losing their business, due to the potential penalties involved.
Mike Freeze, owner of Keo Fish Farm in Arkansas and Director of the National Aquaculture Association, explained to The Fish Site the implications of the change in the law.
What impact did the actions of the FWS have on the US aquaculture industry?
The safest thing was for a farmer to stay small and not expand into interstate commerce, as that is what triggers the Lacey Act. Also, since there was no way to know all of the various state laws, you were constantly worried about being punished for some accidental movement of an injurious species. For instance, an Arkansas catfish farmer who had a single black carp or bighead carp in a semi-load of catfish that was transported to a kill facility in Mississippi could be charged with a felony, even though he did not know a carp was on the truck, so it effectively impacted all the country’s producers, regardless of the species they were farming.
How proactive were the FWS at monitoring the interstate transport of farmed fish?
Depending on the state and the species involved, they were very active in enforcing the movement of species that they determined to be injurious.
What sort of penalties were the FWS meting out to those caught infringing the law?
The standard penalty that farmers were threatened with for any Lacey Act violation was a $100,000 fine and 1-year imprisonment. Usually, the USFWS was willing to plea bargain down for a guilty plea, which many farmers would accept, even if they thought they were innocent, as they wanted to avoid huge attorney fees.
How this was affecting US fish farmers?
Farmers faced the threat of losing their farm and freedom (federal felony conviction) for any minor misdemeanour or infraction.
What implications might the new ruling might have for the US industry?
At least for now you do not have to worry about becoming a federal felon for some accidental movement of an injurious species between two states who do not deem such movement a crime. This is actually a huge victory for state rights.
Mike Freeze has been fish farming in Arkansas since 1983. Operating across 1,000 acres of water, his farms include the largest hatchery of hybrid striped bass fingerlings in the world, the fry and fingerlings of which he ships nationally and internationally. His operations also include one of the largest hatcheries of sterile triploid grass carp, the only Asian carp that the USFWS has not listed as injurious, since they imported the first grass carp into the United States back in 1964.
Reflecting on his three and a-half decades in the industry he comments that his “major challenges have been, and remain, trying to negotiate the ever-changing regulatory environment that impacts US aquaculture on a day-to-day basis.”
The court case against FWS was brought about by the United States Association of Reptile Keepers (USARK). USARK argued that the Lacey Act did not provide the authority for FWS to prohibit the shipment of species listed as Injurious Wildlife between the 49 continental states, a claim that the Court of Appeals for the District of Columbia upheld on April 7th.
Additional legal steps will be necessary before species currently listed as injurious wildlife are no longer prohibited for interstate trade within the continental states. The National Aquaculture Association informs that it will be asking the FWS to clarify the impact of the ruling, while shippers can contact the FWS Office of Law Enforcement (https://www.fws.gov/le/index.html) for information.