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Koi swimming in a school together

Update on Koi and the Lacey Act

Back in October of 2016, the Center for Invasive Species Prevention (CISP) petitioned the Fish and Wildlife Service (FWS) to add 43 new species to the Injurious Wildlife list. The Common Carp (and so, by extension, koi) were on that list. Had it been implemented, it could’ve crippled the koi industry.

We say “could’ve,” because there has been a surprising twist in the saga. In a recent court case brought against the FWS, the US Court of Appeals has ruled against the FWS’s ability to prohibit the shipping or transportation of Injurious Wildlife within the United States.

This ruling (and the fate of koi in the US) is thanks to the efforts of the United States Association of Reptile Keepers (USARK) and the court case they brought against the FWS in December of 2013. For now, koi transportation in the US is safe.

The ruling in the court case was that the FWS had misinterpreted the language in the Lacey Act and so had been outside of their authority to prohibit the shipping of Injurious Wildlife.

The ruling is not against the Lacey Act itself, but rather the way it has been interpreted by the FWS since it’s passing in 1970. The petition to deem koi Injurious Wildlife still exists, but it is essentially rendered moot by the court’s ruling.

Now whether or not the FWS will bring in outside help to skirt the court’s decision, by changing the language and attempting to amend the Act remains to be seen; however, for now, as a result of the ruling ALL those animals deemed Injurious Wildlife are now free to move about the continental US (and in the case of Next Day Koi, fly around the country!).  

There is a fairly good chance that the FWS will not let the ruling stop them from trying to change the Act so that they will once again have jurisdiction over how Injurious Wildlife make it from state to state. And so the NAA and its supporters will remain vigilant and ready for action should anything change.

When last we posted regarding the petition by The National Aquaculture Association (NAA) to have koi removed from the Injurious Wildlife list (December 19th, 2016) this is where things stood:

  • The NAA distributed a comment letter submitted to the FWS by the American Fisheries Society that included comments by Dr. Jeff Hill, UF Tropical Aquaculture Lab, which take aim at the climate match used in the Ecological Risk Screening Summary method as well as errors within specific reports. It also contained NAA comments that identify errors in the process, reports and implementation.
  • The NAA presented the issue of the 43 species Injurious Wildlife petition via conference call to the California Aquaculture Association The NAA participated in the California Aquaculture Association Board of Directors meeting. The CAA posted NAA’s four-page summary to their website and wrote a comment letter to the FWS, encouraging their members to comment.
  • The NAA attended the Aquatic Nuisance Species Task Force meeting in DC where they spoke at length with FWS representatives “concerning the 43 species Injurious Wildlife petition, the errors inherent to the quick screen methodology that they are using and the information quality of the quick screen reports.”
  • The FWS’s response “while noncommittal, did acknowledge receiving public comments on the petition and appear to be beginning to grasp the size and scope of the farms and businesses that produce the farm-raised species in the petition, state regulatory requirements, and that these species do not pose a high risk to the United States.”
  • At that same meeting, the NAA also spoke before the ANSTF regarding the effort, cost and difficulties for aquaculturists and distributors to remain current with state regulations when transporting live species across state lines.
  • The presentation also “provided in-depth information to the ANSTF, driving home the point that states have regulations to prevent the introduction of non-native species appropriate to their environments and that the federal agencies should defer to the states rather that adopting nationwide prohibitions under the Lacey Act.”
  • By invitation, the NAA submitted an issue that describes the US Fish and Wildlife Service (FWS) regulatory overreach relative to the Lacey Act and animal disease to the American Farm Bureau Federation white paper entitled, Regulatory Improvement and Reform: A Priority for American Agriculture (which 53 agricultural organizations have signed on to).
  • The FWS has accepted the NAA’s invitation to present at a special session in the upcoming Aquaculture America 2017 conference in San Antonio, TX on February 19-22, 2017.
  • Agency speakers will present an overview of the Lacey Act and in-depth information on the Injurious Wildlife list, Injurious Wildlife listing process and decision making, Lacey Act law enforcement, the Ecological Risk Screen Summary methodology and reports, and any other aspects of the Lacey Act that the FWS thinks is pertinent to communicate.
  • The NAA has met with the Pet Industry Joint Advisory Council (PIJAC) in Washington to discuss collaborative efforts to defeat the petition, stop or amend the use of quick screens, and amend or withdraw factually inaccurate quick screen reports.
  • The NAA has reached out to the National Aquaponics Association and the US Aquaculture Society and is working with them to submit comments on the petition.
  • The NAA also submitted a Freedom of Information (FOIA) request to the US Fish and Wildlife Service (FWS) for the 2,000 Ecological Risk Screening Summaries that have not been publicly posted and are meeting with the University of Florida’s Tropical Aquaculture Lab to discuss an analysis of the reports.
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