Noah's Farce: the Regulation and Control of Exotic Fish and Wildlife

• Jurisdiction: United States,Federal
• Citation: Vol. 17 No. 01
• Publication year: 1993

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 17, No. 1FALL 1993

Noah's Farce: The Regulation and Control of Exotic Fish and Wildlife

John L. Dentler(fn*)

Of every clean animal, take with you seven pairs, a male and its mate; and of the unclean animals, one pair, a male and its mate; likewise of every clean bird of the air, seven pairs, a male and a female, and of all the unclean birds, one pair, a male and a female. Thus you will keep their issue alive over all the earth.(fn1)

I. Introduction

Whether for economic, religious, or sentimental reasons, out of curiosity, or for other motivations, mankind has a history of moving animals and plants beyond their native ranges. The transfer and release of animals beyond their native ranges continues and may affect our most treasured and pristine environments. For example, anyone who has seen photographs of or visited the Olympic National Park has been touched by scenes of alpine grandeur and visions of the majestic mountain goat. Few persons realize, however, that the mountain goat is a non-native or exotic species, transferred by man to the park nearly three quarters of a century ago. Fewer persons realize that the mountain goat negatively impacts the native plants and the fragile alpine ecosystems for which the park is revered. The mountain goat exemplifies the dangers of unregulated importation, transfer, and release of exotic fish and wildlife into foreign habitats. This Comment examines the dangers inherent in exotic species and evaluates federal and Washington State efforts to regulate the introduction of exotic fish and wildlife.(fn2)

Current federal and state law is poorly equipped to prevent the introduction of harmful exotic species or remedy damages caused by them. The laws governing exotic species should be changed through (1) the enactment of more stringent laws prohibiting or regulating the introduction of exotic species, (2) statutorily created rights to recover for natural resource damage caused by the introduction of exotic species, (3) private rights of action to recover for personal injury or property damage caused by the introduction of exotic species, and (4) national and international efforts to effectively deal with the problem.

Part II of this Comment explores the means by which an exotic species may be released or established into an ecosystem and surveys some of the typical effects of transferring species to foreign habitats. Part III surveys some of the current regimes governing exotic species' introductions, including federal and Washington State laws and regulations.(fn3) Part rV critically evaluates the existing regulatory framework and, in particular, addresses the difficulties inherent to state-by-state regulation of exotic species' introductions. Part V of this Comment argues that only comprehensive national and even international approaches regulating the importation, transfer, and release of exotic species will be effective in controlling the ever increasing number of native species threatened with extinction. Part V also suggests how a national approach might be structured to better protect native fish and wildlife resources.

II. Exotic Fish and Wildlife: How Do They Get Here and What Are Their Effects?

A. How Do They Get Here?

Exotic fish and wildlife are introduced into native ecosystems either intentionally or inadvertently. Deliberate introductions account for a large number of the exotic fish and wildlife found in the United States.(fn4) Oddly enough, the agencies charged as stewards of native fish and wildlife resources have often been responsible for intentionally importing, transferring, and releasing exotic animals into new areas.(fn5)

One of the first documented introductions of an exotic fish into North America was the common carp, which was introduced from Europe into the Hudson River in the early 1830s.(fn6) In 1877, the United States Fish Commission(fn7) imported 345 carp from Germany and began culturing and distributing them throughout the nation.(fn8) Although the carp was introduced as a food source, its disadvantages outweighed its benefits. By 1897, the damage was done, and carp were never to be eradicated because their introduction resulted in irretrievable and rapid reproduction and dissemination.(fn9) Today, carp are distributed throughout the United States, including the lower Columbia River and many of Washington's freshwater lakes.(fn10)

Similarly, state agencies via railroad links intentionally introduced almost all of the common spiny-rayed freshwater fishes into Washington, such as largemouth bass, yellow perch, bluegill, and green sunfish.(fn11) Presumably, these entities did so to provide recreational opportunities within the state.(fn12) With the exception of salmon and trout, the spiny-rayed fishes supported much of the freshwater angling in Washington.

A more recent spiny-rayed fish introduced into Washington waters was the walleye, native to freshwater lakes and rivers of northeast North America. No one knows with certainty how the walleye was introduced into Washington's waters. Some theorists believe that it was intentionally introduced by agents of the federal government in the early 1960s.(fn13) The walleye is now spreading throughout the Columbia River system.(fn14)

In another example, the Washington Department of Wildlife introduced several upland game birds, such as the Chinese pheasant, chukker partridge, Hungarian partridge, and Mer-riam turkey to provide hunting opportunities for sportsmen.(fn15) These introductions occurred before concern developed for the effects of introduced species on native ecosystems.(fn16)

Mammals have been introduced as well. In the 1920s, game hunters transferred the mountain goat, native to Washington's Cascade range, to Washington's Olympic mountains.(fn17) In addition, the nutria, a normative water rodent similar to beavers, were imported by individuals intent on raising them for their furs.(fn18) The nutria were later released when the fur operations proved unprofitable.(fn19) As a result, the nutria have established wild populations in Washington and have damaged agriculture.(fn20)

From these few examples, it appears that the deliberate release of exotic fish and wildlife is a common mode of establishing these species in new ecosystems. Exotic species may also become established in new ecosystems by inadvertent release or mistake. Modern technological advances in transportation and the growth in interstate and international trade in live fish and wildlife have facilitated the accidental introduction of exotic wildlife.(fn21) For example, statistics reveal that in 1991 approximately $160 million worth of live fish and shellfish, and over $36 million worth of live ornamental fish were imported into the United States from over seventy countries.(fn22) Anyone who has visited fishmongers' shops along our western coastline can usually see any number of live exotic animals: mussels from New Zealand, oysters from Australia, and blue crabs from the Chesapeake Bay. Although intended for home consumption, some of these animals eventually escape or are discarded into nearby receiving waters where they may subsequently become established.

The World Wildlife Fund reports that at least a half-million live birds, one million reptiles, and 250-300 million fish are legally imported into the United States each year.(fn23) Because of escape or liberation after lawful importation, some exotic species have become established in new ecosystems.(fn24) In Florida, for example, many freshwater tropical fishes escape from ornamental fish farms where fishes are bred and reared for sale in the aquarium trade.(fn25) Many of these introductions occur when dikes fail or when effluent screens prove to be nonexistent or ineffective.(fn26) In addition, Atlantic salmon have escaped the confines of net-pen aquaculture operations in Canadian waters and have established natural breeding populations elsewhere.(fn27) These fish may eventually enter Washington and Oregon and compete with endangered Columbia River Pacific salmon stocks.(fn28)

Exotic pet enthusiasts may also tire of their pets and release them into the wild, whereupon the exotics can establish populations to the detriment of native species.(fn29) Ballast water(fn30) released from ocean-going vessels has also led to many notable introductions of exotic fishes, zooplankton, and bottom-dwelling invertebrates such as clams and mussels.(fn31) Many of these introduced species have become well acclimated to their new homes. Their populations have grown to the point where they now dominate natural ecosystems. For example, in just a few years after its introduction, the Asian clam is now the most abundant benthic organism in San Francisco Bay. It reaches astonishing densities of 10,000 clams per square meter.(fn32)

A well-documented accidental introduction of an exotic fish is the introduction of the lamprey into the Great Lakes.(fn33) The numerous ship canals and locks along the Great Lakes allowed the lamprey to bypass natural falls that otherwise prevented its migration into the lakes. The lamprey caused the catastrophic decline of important commercial and sport fisheries. It ultimately led to the formation of the Great Lakes Fishery Commission, an entity dedicated to the study of Great Lakes' fishes and fisheries and the means to control lamprey...