March 11, 2015

Hello Sturgeon ESA Coalition Members,

As many of you know, we were able to raise sufficient funding in 2014 to engage Joan Galvin of Kelley, Drye & Warren (Washington D.C.) to provide legal opinion and lobbying efforts on our behalf.   We accomplished much last year, but our fight is still not over.

By way of this email, I would like to summarize our efforts to date and suggest a path forward, in the hopes that we can, again, marshal sufficient resources to bring Joan and her team back on board.  

Consideration of the listing petition remains before the U.S. Fish & Wildlife Service (USFWS).  The latest word from the USFWS is that the analysis on the sturgeon petition will occur during the 2016 Fiscal Year (starting October 2015). This, however, does not mean that we should stand down.  It is more important than ever that we maintain a continued presence both on Capitol Hill and before the agency in order to achieve a suitable solution.

During the annual Aquaculture America meetings held last month in New Orleans, there was a full day’s set of sessions concerning the ESA. These sessions were jointly presented by representatives from the USFWS and the National Marine Fisheries Service (NMFS). These sessions were extremely enlightening. It is crystal clear that neither the USFWS nor the NMFS are inclined to separate captive-bred populations from wild populations under the ESA. Political influence has modified Agency positions in the past and will be an essential part in solving this issue for us. Our progress on this issue so far has aided by the political process.

There was a suggestion during these meetings that the USFWS could be petitioned under the Administrative Procedure Act (APA) to amend the 4d rule. This may be a viable mechanism to carve out a separation between captive-bred and wild stocks but we must be very careful with the approach and language on this. Otherwise, it is possible to have another unworkable and/or onerous 4d rule that is very difficult and/or expensive to comply with. The USFWS made it clear that they would not even consider captive-bred populations separately unless these populations have direct conservation benefit to the wild populations. If there was no demonstrated conservation benefit, the USFWS would not consider these captive-bred animals in their decision. The Coalition has already opened discussions in 2014 with the USFWS on ways to make the 4d rule workable for our industry. The Coalition’s strategy is to continue working with the USFWS in 2015 to find a workable 4d solution if possible.

The discussions during the New Orleans ESA session regarding the Beluga rule are a perfect example as to why we need to enlist political support in our solution. Currently, beluga sturgeon is listed under the ESA. There is a beluga 4d exemption within this listing. However, even the USFWS admits that this 4d exemption is unworkable. Beluga sturgeon have been legally imported into Florida prior to the ESA listing. After these fish were legally imported, the beluga were listed under the ESA. Since the listing, these farms have not been able to do anything with these fish except feed and house them. I asked the USFWS, as a hypothetical question, what would happen if one of these farms could no longer financially afford to care for these sturgeon and were forced to declare bankruptcy or go out of business. With a straight face, the USFWS representative said that a farm would have to find someone to “give these fish to” within the State of Florida (the fish could not be sold or even transferred across a state border). The receiver of these fish would have to take on the liability of continuing to care for these fish in perpetuity without any guarantee of any economic returns. If a farm were to declare bankruptcy and/or go out of business, any harm to the fish would be considered a “take” under ESA statute punishable with Federal fines and possible Federal imprisonment.

I use the above statement as an example of why we must continue finding scientific support for our position, but also pursuing a solution from both a legal and political perspective.

2014 Accomplishments:

• Submission of legal comments to USFWS in opposition to the proposed listing

• Capitol Hill briefings with members of the Florida, Hawaii, North Carolina and New York delegations to enlist their support of our position in opposition to the proposed listings;
• A letter from the from the Florida delegation (signed by13 Federal Representatives) to USFWS opposing the listing and/or the inclusion of captive bred sturgeon;
• Questions to USFWS during a private meeting from a Florida senator pertaining to listings of non-native species under ESA and the impacts on domestic aquaculture;
• A meeting with the Protected Species office at USFWS to discuss the status of the listing proposal and analysis; presentation of our concerns that a listing might constitute a regulatory “take”; a discussion of how to amend or convert the current 4(d) exclusion for beluga into a workable “safe harbor” for farmed products;
• Farm tours in both Florida and North Carolina with Members of Congress;

Unfinished Business:

With a new Republican majority in the Senate, and a new House Chairman of the Natural Resources Committee (with an emphasis on ESA reform), there continue to be opportunities to educate and enlist support for our position.   Some unfinished items on our “to do” list:

• Follow up with the North Carolina delegation – a farm tour took place at the end of last year and the Congressman has offered to weigh in with USFWS – we need to circle back with staff and help with a proposed draft;
• Follow up with the Hawaii delegation – having democrats weigh in with USFWS will have a special impact; the Hawaii Senate delegation is standing by ready to help, however, we had to suspend our discussions during the 2014 elections since our primary champion was in a very challenging race and that took precedence;
• Explore the legal footings for a constitutional challenge to the existing Beluga rule as  a “regulatory take”.  With some preliminary legal research to support our position, we can establish a “white paper” to reinforce our arguments before Congress and put the USFWS on notice that they may be on shaky legal ground if they go forward with a listing absent a workable exemption to accommodate trade in aquaculture products;
• Enlist greater support from the New York delegation, given the potential impact on the caviar houses and the retail sector;
• Draft legislative report language that directs USFWS to remedy the 4(d) exclusion to allow continued trade in farm raised products; Identify and engage champions in Congress to move the language forward (this is time sensitive – the FY2016 appropriations bills are already being drafted and deadlines are imminent – we may need to take a longer view of this for FY2017 – but we should draft and shop the language around as soon as possible)
• Continue efforts to gather additional data and science to help distinguish the captive stock as “distinct” from wild populations.

I want to thank all of the Sturgeon ESA Coalition members for your financial support, ideas, and efforts during 2014. Without you and your support, we would not have made the progress that we have.

I cannot emphasize enough, the importance of continuing our efforts on this critically important issue during 2015. We have made progress, but we have not yet reached our goal. I would ask that every Coalition member consider making an additional financial contribution so that we can complete our unfinished business. I would also ask that every Coalition member invite other interested parties into our Coalition. The larger we are, the stronger and more effective we can be.

Thanks again for all your help. If you have any questions, don’t hesitate to contact me by email or phone.

The fight continues!

Jim Michaels

Director of Aquaculture Operations

Healthy Earth Sarasota, Inc.

941-388-4541 ext. 16

michaels@healthyearthcaviar.com