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Worse than the Tourists

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Paper title:Worse than the Tourists: Non-Native Invasive Species in Florida -- Lionfish, Pythons, and What New Laws and Federal Funding Can Do to Help

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Worse than the Tourists: Non-Native Invasive Species in FloridaLionfish, Pythons, and What New Laws and Federal Funding Can Do to Help

There are an estimated 4300 non-native invasive animal species1 in the United States as

of the year 2013.2 Some have posed a major threat, caused harm,3 and been controlled through

modern resource management methods,4 while others have continued to establish themselves

uninterrupted. Government and private inaction regarding non-native invasive species can be

attributed to a variety of sources, including lack of funding, unawareness of or apathy towards

the harm these species can cause, preference for a “wait and see” approach, or a desire to let a

region’s ecosystems adjust to the species without human intervention.5 In Florida, lionfish6 and

pythons7 have already negatively impacted the coral reefs in the Florida Keys and the swamps in

1 For purposes of this paper, the phrase “non-native invasive species” refers to the National Invasive Species Council (NISC) definition of the term, which cites Executive Order 13,112 (1999) (reprinted in 42 U.S.C. §4321 (2000)) and defines “non-native invasive species” as “species that are non-native (or alien) to the ecosystem under consideration and whose introduction causes or is likely to cause economic or environmental harm, or harm to human health. Invasive species can be plants, animals, or pathogens.” What is an Invasive Species?, THE NATIONAL INVASIVE SPECIES COUNCIL, http://www.invasivespecies.gov/main_nav /mn_faq.html. 2 Frequently Asked Questions About Invasive Species, U.S. FISH & WILDLIFE SERVICE, http://www.fws .gov/invasives/faq.html#q7.3 This paper focuses its argument on the harm that nonnative invasive species cause in the United States. For an interesting discussion of the globalization of the problems associated with certain nonnative invasive species, see Sarah McGee, Proposals for Ballast Water Regulation: Biosecurity in an Insecure World, 2001 COLO. J. ENVTL. L. & POL’Y 141 (2001). 4 See e.g. Asian carp in the Great Lakes region, which threaten the local ecosystems but have decreased in number due to direct removal efforts and a strategically-placed electronic fence designed to keep them from spreading into areas where they have not already established breeding populations. Justin Bonebrake, Carpe Lacum: Asian Carp and the Great Lakes, 24 COLO. NAT. RESOURCES, ENERGY, & ENVTL. L. REV. 459 (2013); Andrew S. Leung, The Adverse Effect of Aquatic Invasive Species on Native Commercial and Recreational Fisheries in the Great Lakes and the Exacerbation of the Problem by Judicial Reluctance to React, 4 KY. J. EQUINE, AGRIC. & NAT. RESOURCES L. 525, 547-48 (2011). 5 This so-called “laissez faire” approach to invasive species management is discussed along with the other major theories of invasive species management in Part II of this paper.6 There are at least sixteen known species of lionfish as of the year 2013. A report from the U.S. Geological Survey (USGS) indicates that the Red Lionfish (scientific name: “Pterois volitans”) is the species most commonly seen in Florida, although it is possible that other species are present as well. Red Lionfish, LIONFISH HUNTERS.ORG, http://www.lionfishhunters.org/Pterois/PteroisVolitans.html. Throughout this paper, the term “lionfish” is meant to refer to all species of lionfish posing a threat in Florida. 7 Surveys of the Everglades have indicated that the Burmese Python specifically is the species of python most prevalent in the Everglades’ ecosystem, although it is possible that other species of python, such as the Rock Python and Ball Python, are present there as well. Throughout this paper, the term “python” is meant to refer

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the Everglades, both of which are home to some of the most important ecosystems in the

country.8 These species have had such a large impact and taken hold so quickly because both are

non-native9 and have no natural predators in the areas they have invaded.10 The coral reefs and

the Everglades are located in in protected areas11 and are excellent natural resources12 because

they provide a home to numerous endangered species,13 as well as species that are commercially

to all species of python posing a threat in Florida. Python Patrol: Stopping a Burmese Python Invasion, THE NATURE CONSERVANCY, http://www.nature.org/ourinitiatives/regions/northamerica/unitedstat es/florida /howwework/stopping-a-burmese-python-invasion.xml.8 Statistics compiled jointly by the National Oceanic & Atmospheric Administration (NOAA), the USGS, and REEF indicate that lionfish have reduced their fish prey populations by up to 90% and that dense lionfish populations can consume more than 460,000 prey fish per acre per year. Lionfish Quick Facts, REEF, http://www.reef.org/lionfish/quickfacts. As discussed in subsequent sections of this paper, lionfish prey include the shrimp and spiny lobsters (both of which are essential to the coral reef ecosystems) and the young of several commercially viable fish species, including grouper. Lionfish FAQ’s, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/wildlifehabitats/nonnatives/marine-species/lionfish/faq s/#native. Pythons have similarly impacted ecosystems in the Everglades, as they compete with the species that are traditionally the Everglades’ top predators, such as alligators and bears. Salazar Announces Ban on Importation and Interstate Transportation of Four Giant Snakes that Threaten Everglades, U.S. FISH & WILDLIFE SERVICE, http://www.fws.gov/invasives/news.html (Jan. 17, 2012).9 Lionfish are native to an area that spans from Australia and Malaysia in the west, French Polynesia in the east, southern Japan in the north, and south to the Kermdec Islands off of New Zealand. Lionfish Fact Sheet, NOAA HABITAT CONSERVATION, available at www.habitat.noaa.gov/pdf/best...practices/.../Lionfish%20 Factsheet.pdf. Burmese pythons are native to Asia, from eastern India through Vietnam and southern China. FAQs: Burmese Pythons in Florida, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION,” http://myfwc.com /wildlifehabitats/nonnatives/python/faqs/. 10 Lionfish FAQ’s, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/wildlifehabitats/ nonnatives/marine-species/lionfish/faqs/#native. Similarly, pythons are able to successfully hide from many of the predators that would eat them and also grow large enough to eat most other species in the Everglades. Python Patrol: Stopping a Burmese Python Invasion, THE NATURE CONSERVANCY, http://www.nature.org/ourinit iatives/regions/northamerica/unitedstates/florida/howwework/stopping-a-burmese-python-invasion.xml.11 Many of the coral reefs lionfish have invaded are located within the Florida Keys National Marine Sanctuary, which is protected by state and federal laws. Florida, CORIS – NOAA’S CORAL REEF INFORMATION SYSTEM, http://www.coris.noaa.gov/portals/florida.html. Similarly, the Everglades are a federally-protected national park. America’s Everglades – The Largest Subtropical Wilderness in the United States, NATIONAL PARK SERVICE, http://www.nps.gov/ever/index.htm. The Everglades are also internationally-recognized as an important natural area. They have been designated as a World Heritage Site, a Wetland of International Importance, and an International Biosphere Reserve. Id.12 NOAA and the National Park Service classify Florida’s coral reefs and Everglades as important natural resources with unique ecosystems. America’s Everglades –The largest subtropical wilderness in the United States, NATIONAL PARK SERVICE, http://www.nps.gov/ever/index.htm; About Florida Keys National Marine Sanctuary, NOAA NATIONAL MARINE SANCTUARIES, http://floridakeys.noaa.gov/about/welcome.html?s=about. 13 For example, the Everglades are home to the endangered Wood Stork, which is the only breeding stork in the United States today. Wood Stork – Species Profile, NATIONAL PARK SERVICE, http://www.nps.gov/ever/ naturescience/woodstork.htm.

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viable.14 Recent scientific data has indicated that the lionfish and python populations are growing

rapidly15 and expanding beyond Florida,16 which means that now is the time to implement a plan

that will slow the growth and remove at least some of the lionfish and pythons that are already in

the state.17 Because both species entered Florida’s ecosystems through human involvement,18 this

paper proposes a plan that will decrease the number of new lionfish and pythons entering

14 The reefs in the southern portion of the Florida Keys National Marine Sanctuary are home to commercially viable fishing industries built around species such as black and red grouper, yellowtail, and mutton snapper. Tortugas Marine Reserve Yields More, Larger Fish, NOAA, http://www.noaanews.noaa.gov/stories 2013/20130204_tortugas.html (Feb. 4, 2013). A report from NOAA indicates that Key West commercial fishery landings had an estimated value of $56 million in 2011 and that current regulations are working well to ensure the healthy coexistence of the commercial fishing industry and the marine reserve in the region. Id. As discussed in subsequent sections of this paper, lionfish have the potential to destroy the commercial fishing industry because of the impact they have on species that preserve the reefs. 15 Research presented at a NOAA symposium on the lionfish problem in 2009 indicated that, if left undisturbed, the lionfish population will expand to all of the U.S. south Atlantic coast, the Gulf of Mexico, the Caribbean Sea, and parts of South America, including the waters off of Colombia and southern Brazil. The IndoPacific Lionfish invasion of the U.S. south Atlantic sea coast and Caribbean Sea, CORIS – NOAA’S CORAL REEF INFORMATION SYSTEM, http://www.coris.noaa.gov/exchanges/lionfish/ (last updated June 2013). Pythons are also expanding beyond the Everglades, and have recently been found in Big Cypress National Preserve and Collier-Seminole State Park. FAQs: Burmese Pythons in Florida, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/wildlifehabitats/nonnatives/python/faqs/.16 A map compiled by the U.S. Geological Survey indicates that there are at least seasonal lionfish populations as far north as New Jersey and as far south as Venezuela. Nonindigenous Aquatic Species Database. USGS NAS- NONINDIGENOUS AQUATIC SPECIES, http://nas2.er.usgs.gov/viewer/omap .aspx?SpeciesID=963 (last visited Nov. 27, 2013) (hereinafter “USGS Lionfish Map”). A printout of this map has been included in Appendix A. Similarly, pythons are expected to establish breeding populations throughout the southeast within the next several years if winters continue to be mild. Greg Allen, Will Florida Pythons Slither to the Rest of the U.S.?, NPR, http://www.npr.org/2012/11/26/165941428/will-florida-pythons-slither-to-rest-of-the-u-s (Nov. 26, 2012) (citing a 2010 USGS study indicating that a multi-state python population boom is likely). As discussed in subsequent sections of this paper, the fact that lionfish and pythons can spread beyond Florida means that it is more likely that a federal grant to help slow the populations’ growth will be issued. 17 Unfortunately, because lionfish and pythons reproduce quickly and in large numbers, the populations are unlikely to ever be totally eradicated from Florida. The IndoPacific lionfish invasion of the U.S. south Atlantic sea coast and Caribbean Sea, CORIS – NOAA’S CORAL REEF INFORMATION SYSTEM, http://www.coris.noaa.gov/exc hanges/lionfish/(last updated Jun. 2013); Burmese Pythons, NATIONAL PARK SERVICE, http://www.nps. gov/ever/naturescience/burmesepythonsintro.htm. It is possible that pythons could be eradicated from a small area like Key West, but only if swift action is taken to prohibit a breeding population from becoming established. The Big Squeeze: Pythons and Mammals in Everglades National Park, USGS SCIENCE FEATURES (Feb. 6, 2012), http://www.usgs.gov/blogs/features/usgs_top_story/the-big-squeeze-pythons-and-mammals-in-everglades-national-park/.18 For a detailed discussion of how both species entered Florida’s ecosystems, see Part III, infra. Lionfish and pythons are not the only nonnative invasive species to have established themselves in the United States as a result of the exotic pet trade; other examples include the monk parakeet and the Nile monitor lizard. Robert Brown, Exotic Pets Invade United States Ecosystems: Legislative Failure and a Proposed Solution, 81 IND. L.J. 713, 716 (2006). If Florida is able to prohibit people from owning and releasing lionfish and pythons (and successfully reduce the populations through the prohibitions) through state or federal laws, its strategy could

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Florida’s ecosystems by prohibiting the sale of live lionfish and pythons in Florida and imposing

criminal sanctions on people who own, sell, or release them.19 This paper also argues that Florida

will be able to obtain federal funds, either in the form of a grant or earmarked federal agency

budgetary funds, that it can use to research the size of the problem, educate the public about the

dangers of releasing lionfish and pythons into the wild, and fund additional removal efforts.

Part I - The Size of the Problem and Why We Should Care

An online search for information about Florida’s lionfish population reveals websites

with names such as “Death to Lionfish,”20 “Eat the Invaders,”21 and “Lionfish Hunters,”22 many

recipes for cooking lionfish at home,23 and the website for Traditional Fisheries, an enterprising

business attempting turn lionfish into the most popular menu item in the country.24 These

websites, in name and in content, show that lionfish are unwelcome, feared, and hated by several

sectors of the scientific community25 and other groups who are passionate about preserving the

native populations in the waters off of the southeastern U.S. coast for commercial or personal

serve as a model for other states. 19 As discussed in Part IV, federal criminal sanctions associated with importing a python or transporting it across state lines are encompassed in the Lacey Act, but Florida could also impose additional state law criminal sanctions. Unfortunately, there is evidence indicating that criminal sanctions under the Lacey Act are rarely enforced, or that they are enforced in a way that does not target the real source of an invasive species problem. Jane Cynthia Graham, Snakes on a Plain, or in a Wetland: Fighting Back Invasive Nonnative Animals – Proposing a Federal Comprehensive Invasive Nonnative Animal Species Statute, 25 TUL. ENVTL. L. J. 19, 30 (2011). State laws could be more readily enforced and serve as an additional deterrent for would-be python owners. 20 The Lionfish PSA, http://www.deathtolionfish.org/involvement.html.21 Lionfish, EAT THE INVADERS, http://eattheinvaders.org/lionfish/ (Apr. 4, 2012). The website’s tagline is “Fighting Invasive Species, One Bite at a Time,” and it contains recipes for lionfish as well as bullfrog, Asian carp, and a variety of invasive plant species. The website’s existence indicates that there are people who are interested in eating the species that threaten U.S. ecosystems, and speaks to the viability of lionfish as a menu item in Florida restaurants.22 Venomous Lionfish Invade South Florida Waters, LIONFISHHUNTERS.ORG, http://www.lionfishhunters.org/.23 Experts Say We Should Eat Lionfish, MARINE SCIENCE TODAY, http://marinesciencetoday.com/2013/02/28 /experts-say-we-should-eat-lionfish/(Feb. 28, 2013).24 About Traditional Fisheries, TRADITIONAL FISHERIES, http://www.traditionalfisheries.com/abouttf.php. As discussed in subsequent sections of this paper, there are risks associated with creating a market for lionfish as a food source long-term. 25 The “Death to Lionfish” website, for example, includes research from Oregon State University zoologist Dr. Mark Hixon. The Lionfish PSA, www.deathtolionfish.org/involvement.html.

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use.26 Fear of the negative impact lionfish can have on the coral reefs’ ecosystem and on the

reefs themselves is not unfounded, as lionfish eat many species vital to sustaining biodiversity.

For example, young lionfish target crustaceans such as banded coral shrimp and spiny lobster,

and mature lionfish target fish such as the white grunt, striped parrotfish, and several types of

wrasse.27 The crustaceans in particular are essential to maintaining biodiversity on the reefs

because they are eaten by large predator fish, including grouper and snapper.28 Lionfish

competing with these fish for the crustaceans (and winning)29 can have long-term negative

impacts on the reefs’ ecosystem and, in some areas, already has.30 Parrotfish and some of the

other species targeted by the mature lionfish are also essential to the health of the reefs

themselves because of the role they play in keeping seaweeds and microalgae from overgrowing

the coral.31 Allowing the lionfish population to grow unchecked could lead to the destruction of

26 For example, the Reef Environmental Education Foundation (REEF), a large nonprofit that describes itself as being “an active organization of divers and marine enthusiasts committed to ocean conservation,” currently sponsors lionfish derbies and hosts workshops designed to educate the public about the harm that can result from releasing a lionfish into Florida waters. Lionfish Research Program, http://www.reef.org/lionf ish.27 Impact Lionfish Have on Coral Reefs, LIONFISH HUNTERS.ORG, http://www.lionfishhunters.org/impact.html (citing data compiled by researchers at Oregon State University, identifying ten crucial native coral reef species that fall prey to lionfish, and asserting that lionfish “have the potential to become the most disastrous marine invasion in history”).28 Lionfish FAQs, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/wildlifehabit ats/nonnatives/marine-species/lionfish/faqs/#diet (indicating that lionfish compete with native predatory species, including grouper and snapper, for food). Grouper and snapper are also economically important, as they draw tourists and sport fishermen. Florida Keys Fishing is Famous for a Reason, FLORIDAKEYS.COM, http://www.fla-keys.com/fishing/ (providing information for tourists about how and where to catch fish, including grouper and snapper, in the Florida Keys). 29 Impact Lionfish Have on Coral Reefs, LIONFISHHUNTERS.ORG, http://www.lionfishhunters.org/impact.html.30 Data collected by a team of researchers from Oregon State University has shown instances of lionfish decimating fish populations of juvenile fish on small coral reefs by about 80% in just five weeks. Impact Lionfish Have on Coral Reefs, LIONFISHHUNTERS.ORG, http://www.lionfishhunters.org/impact.html. A marine biologist who works as an educator and conservationist at the Florida Keys National Marine Sanctuary, indicated that lionfish have decreased their prey fish populations by 90% in some areas of the Bahamas. Tehephone interview (Nov. 6, 2013) (hereinafter “Biologist Interview”). 31 Parrotfish are herbivorous and are particularly essential to maintaining the health of the coral itself, so lionfish consumption of parrotfish could have dire consequences for the reefs and the wildlife they support. Impact Lionfish Have on Coral Reefs, LIONFISHHUNTERS.ORG, http://www.lionfishhunters.org/impact.html.

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the current coral reef ecosystem and cause harm to the ecosystems of the surrounding waters as

well.32

With lionfish taking on the role of the proverbial “boogeyman”33 in the minds of groups

who are concerned about Florida’s oceans,34 it is surprising that serious action to stop the

population from multiplying has not been taken yet. Although there has been no large-scale

action, some groups have taken small steps to control the problem by supporting public

awareness campaigns and organizing lionfish fishing derbies with clever names such as “If you

can’t beat ‘em, eat ‘em!,”35 aided by private and corporate donations and funding and assistance

from the Florida Fish and Wildlife Conservation Commission (FWC), the National Oceanic and

Atmospheric Administration (NOAA) and the Florida Park Service.36 The derbies typically

incentivize participation by awarding prizes to the individuals and teams who catch the most

lionfish during the derby dates,37 and are well-publicized by local media.38 The derbies have been

32 USGS Lionfish Map, included in Appendix A. 33 Some scholars have argued that irrational fear of nonnative invasive species and an “us against them” mentality is strongly encouraged by the news media and politicians seeking to foster support for increased domestic spending. For more on this argument and an interesting comparison between the way the American public thinks of nonnative invasive species and the way it thinks of immigrants during times of crisis and uncertainty about the nation’s future, see Jared A. Goldstein, Aliens in the Garden, 80 U. COLO. L. REV. 685 (2009).34 The Florida Fish & Wildlife Conservation Commission (FWC), the USGS, several prominent research universities, and Governor Rick Scott have all made statements about the lionfish problem, with varying degrees of alarm. Florida, we have a lionfish problem, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/news/news-releases/2012/november/14/gc-november/ (Nov. 14, 2012); Pterois volitans, USGS, http://nas.er.usgs.gov//queries/FactSheet.aspx?speciesID=963; Understanding the Lionfish Invasion in the Atlantic Ocean, OREGON STATE UNIVERSITY, http://oregonstate.edu/ua/rescom m/arra/features /understanding-lionfish-invasion-atlantic-ocean.35 If you can’t beat ‘em, eat ‘em lionfish tournament, DISCOVERY DIVING, http://discoverydiving.com/ind ex.php?option=com_content&view=article&id=408&Itemid=173.36 REEF’s website prominently features a “Wanted-”style poster advertising the need for lionfish hunters and listing the dates for this year’s lionfish derbies. The poster includes the logos of all sponsors, including the FWC, the Florida Park Service, and private companies such as Divers Direct and Global Ocean Security Technologies. Lionfish Derbies, REEF, http://www.reef.org/lionfish/derbies.37 The highest prize in a recent REEF derby was over $10,000. Id. 38 See, e.g. Jeff Ostrowski, Lionfish Derby Nets 612 of the Spiny Out of Control Critters, THE PALM BEACH POST, http://www.palmbeachpost.com/news/news/local/lionfish-derby-nets-612-of-the-spiny-out-of-contro/nZRnG/ (Aug. 17, 2013); Wanted: Fishermen to Take Part in Lionfish Derby, CBS MIAMI, http://miami.cbslocal.com/2012/09/04/wanted-fishermen-to-take-part-in-lionfish-derby-2/(Sept. 4, 2012).

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made possible in part by Florida Administrative Code Rule 68B-5.006,39 which allows divers

using a handheld net, pole spear, Hawaiian sling, or “any other spearing device specifically

designed and exclusively marketed towards lionfish” can hunt an unlimited amount of lionfish

without a recreational or commercial license in areas not designated as “no take” zones.40

Originally signed into law in August 2012 and designed to be a temporary measure, the provision

became a permanent rule as of August 2013.41

The derbies have been taking place since 2009,42 and the derbies sponsored by the Reef

Environmental Education Foundation (REEF), a large non-profit conservation organization,43

have removed an estimated 10,231 lionfish total.44 The derbies have increased public awareness

of the lionfish problem but, unfortunately, in light of the fact that lionfish can lay up to 30,000

39 Rule 68B-5.006, “Lionfish,” Florida Administrative Code (F.A.C.) (2013).40 Id. Hunting lionfish in “no take” zones is also allowed, but not without a permit. Obtaining a permit to hunt lionfish in the “no take” zones of the Florida Keys National Marine Sanctuary is relatively easy, as it only requires attending a one-day seminar, learning which types of nets and spears are allowed to be used for hunting lionfish, and agreeing to hunt only lionfish. Biologist Interview. The seminars are taught by biologists from the Florida Keys National Marine Sanctuary and the REEF company. Id. No one has ever been allowed to hunt in the “no take” zones before, but NOAA (which oversees the Marine Sanctuary) was afraid that if the “no take” provision applied to lionfish, then the zones would become havens for lionfish and devoid of the species divers and snorkelers typically go there to see. Id. 41 Rule 68B-5.006, “Lionfish,” F.A.C. (2013); Florida Officials Permanently Waive License Requirement for Lionfish Hunting, CBS MIAMI, http://miami.cbslocal.com/2013/06/12/florida-officials-permanently-waive-license-requirement-for-lionfish/ (Jun. 12, 2013).42 REEF hosted Florida’s first-ever lionfish derby in 2009. Lionfish Derbies, REEF, http://www.reef.org/li onfish/derbies. The first derby was sponsored equally by both REEF and the Florida Keys National Marine Sanctuary, but now that the derbies have become more competitive and involve a substantial amount of prize money, the Marine Reserve only provides in-kind support by informing the public of the rules for hunting within the Marine Reserve and supervising the hunting activities to ensure safety and efficiency. Biologist Interview. 43 About REEF, REEF, http://www.reef.org/about.44 Lionfish Derbies, REEF, http://www.reef.org/lionfish/derbies.

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eggs at once, lay eggs up to three times a month, and have no natural predators on Florida’s coral

reefs,45 the removal of just over 10,000 seems as insignificant as a teardrop in the sea.46

Pythons pose a similar numerical problem, as current estimates indicate that there are

between 100,000 and 150,000 pythons living in the Everglades.47 Pythons are also particularly

difficult to remove because of the Everglades’ dense, swampy terrain48 and the threats its native

species, such as alligators and bears, pose to python hunters. Trekking through the Everglades

with an axe or gun49 in tow is also arguably less enjoyable50 than snorkeling and diving on the

sunny coral reefs, so “python derbies” with clever names and corporate sponsorship are less

45 Lionfish – Frequently Asked Questions, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/wildlifehabitats/nonnatives/marine-species/lionfish/faqs/. See also Frequently Asked Questions About Lionfish, SAFESPEAR, http://www.safespear.com/v.php?pg=59 (indicating that there has only been one published account of a Bahamian grouper eating a lionfish and that in lab-controlled feeding trials lasting between 5 and 39 days no native predators, including octopus, nurse shark, Nassau grouper, and grasby grouper, consumed any lionfish). 46 When asked whether he believed the derbies have been successful, Todd Biologist from the Florida Keys National Marine Sanctuary indicated that one of the main purposes of holding a lionfish derby is to make the public more aware of the lionfish problem and to help the public see lionfish as a safe, sustainable food source. Biologist pointed out that, even if the derbies have not removed a huge amount of lionfish so far, they have been a successful way to draw attention to the lionfish invasion and get the public interested in eating lionfish at home and in restaurants. Biologist Interview. 47 Citing an interview with an unnamed Florida wildlife official, CNN recently reported that there are at least 100,000 pythons in the Everglades. Plenty more where those came from - - final take in Fla. Snake hunt is 68 pythons, CNN.COM, http://www.cnn.com/2013/02/16/us/florida-python-hunt/ (Feb. 18, 2013). Other estimates indicate that there are as many as 150,000 pythons in the Everglades. Florida’s Python Problem: Snakes Reshape the Everglades, NPR, http://www.npr.org/2013/01/14/169343960/floridas-python-problem-snakes-reshape-the-everglades (Jan. 14, 2013). The population shows no signs of slowing down, as pythons can lay as many as 100 eggs per year and have an average life expectancy of 30 years in the wild. Burmese Rock Python, SMITHSONIAN NATIONAL ZOOLOGICAL PARK, http://nationalzoo.si.edu/Animals/Reptiles Amphibians/Facts/FactSheets/Burmeserockpython.cfm.48 Everglades Nature and Science, FLORIDA COASTAL EVERGLADES LONG TERM ECOLOGICAL RESEARCH, http://fcelter.fiu.edu/about_us/everglades/nature_and_science/.49 The most common way of killing a python is by striking it on the head with a sharp blade or shooting it in the same area. Euthanasia of a Burmese Python, 2013 PYTHON CHALLENGE, http://www.pythonchalleng e.org/toolkit/euthanasia.aspx. This is how participants in the 2013 Python Challenge were instructed to kill the pythons they found, as it ensures a quick, humane death. Id.50 Some wildlife enthusiasts would argue otherwise, see Jonathan Green, Squeeze Play: Pythons, GARDEN & GUN, http://gardenandgun.com/article/python-hunt (June 2013) (reporting on the beauty of the Everglades and how the author tremendously enjoyed participating in the 2013 Python Challenge), but python derbies are still unlikely to become as popular as lionfish derbies, as the Florida Keys are more accessible and familiar than the Everglades are for most people.

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likely to occur. Removal efforts have been largely conducted by government agents,51 although

the public was encouraged to hunt pythons in the year 2013,52 with the launch of an event called

Python Challenge.53 Some critics felt that the event encouraged unnecessary violence,54 and other

critics expressed fear for the safety of the hunters, as well as concerns over the environmental

impact of having so many boats and feet entering the Everglades at once.55 The environment

seems to have been unaffected by the hunters’ presence,56 but the hunt was only minimally

successful from a numerical standpoint. A group of 1600 hunters, some working individually and

others in groups, only caught sixty-eight pythons in a one-month time span.57 This is a testament

to the pythons’ elusiveness and to the need for action on a larger scale.58 As discussed in

51 Burmese Pythons: Removals, NATIONAL PARK SERVICE, http://www.nps.gov/ever/naturescience/burmes epythonremoval.htm (listing the number of pythons collected by authorized agents, park agents, and park partners each year).52 Python Challenge 2013, WILDLIFE FOUNDATION OF FLORIDA, http://www.pythonchallenge.org/.53 The Python Challenge was sponsored by the Wildlife Foundation of Florida, which was created by the state legislature as a subset of the FWC but is a non-governmental organization, not an official state agency. About Us, WILDLIFE FOUNDATION OF FLORIDA, http://wildlifefoundationofflorida.com/about. The Wildlife Foundation of Florida has obtained substantial state-funded grants for research and conservation projects in recent years. Conserve Wildlife Projects, WILDLIFE FOUNDATION OF FLORIDA, http://wildlifefoun dationofflorida.com/Projects. Support in the form of human capital from the Wildlife Foundation of Florida could be crucial to the success of plans designed to eradicate lionfish and pythons. 54 David Wagner, The Problem with Florida’s Python Hunt is Snake Assassination, THE ATLANTIC WIRE, http://www.theatlanticwire.com/national/2013/01/florida-python-hunt/61319/ (Jan. 23, 2013).55 Opinion: Florida’s Great Snake Hunt is a Cheap Stunt, NATIONAL GEOGRAPHIC, http://news.nationalg eographic.com/news/2012/22/120122-florida-python-hunt-opinion-science-invasivespecies/?r ptregcta=reg_free_np&rptregcampaign=20131016_rw_membership_n1p_us_se_w#finished (Jan. 2013); Amanda Warford, Critics strike state over python challenge, http://www.actionnewsjax.com/mostp opular/story/Critics-strike-state-over-python-challenge/BWu8t_UNl0Ke2SYSbpPRJQ.cspx (Feb. 20, 2013).56 Florida Python Hunt Captures 68 Invasive Snakes, NATIONAL GEOGRAPHIC DAILY NEWS (Feb. 19, 2013), http://news.nationalgeographic.com/news/2013/02/130219-florida-pythons-hunting-animals-snakes-invasive-science/.57 Update: Python Challenge competitors turn in 68 Burmese pythons, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/news/news-releases/2013/february/18/python-challenge/(Feb. 18, 2013). As a point of comparison, the National Park Service estimates that a team of 30 park rangers dubbed the “python patrol” has removed 1800 pythons total from the Everglades since the year 2002. This averages out to 163 pythons per year, which is only 13 per month. Burmese Pythons, NATIONAL PARK SERVICE, http://www.nps.gov/ever/naturescience/burmesepythonsintro.htm. The Python Challenge had 1600 participants, which could explain why it beat the park rangers’ monthly average.58 Removing 68 pythons from a population of at least 100,000 is discouraging, to say the least. Plenty more where those came from - - final take in Fla. Snake hunt is 68 pythons, CNN.COM, http://www.cnn.com/20 13/02/16/us/florida-python-hunt/ (Feb. 18, 2013) (citing an interview with an unnamed Florida wildlife official who estimates that there are at least 100,000 pythons in the Everglades today).

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subsequent sections of this paper, the modest numerical success of the 2013 Python Challenge

indicates that a grant that funds the employment of government agents on a long-term basis to

remove pythons from the Everglades would be more effective than a grant that only provides

funding for a specified, short amount of time. Additionally, a representative from the FWC

indicated that there are no plans for a Python Challenge in the year 2014 or at any other point in

the future,59 which means that the python removal task will once again fall to the government and

conservation groups that take the initiative to tackle the endeavor.

In addition to pythons’ ability to elude hunters by camouflaging themselves among the

Everglades’ trees and moss,60 one of the biggest issues with the python population is the fact that

the longer a python stays in the Everglades, the larger he or she will grow. Pythons are able to

reproduce when they are four or five years old61 and in captivity usually grow to an average

length of sixteen feet.62 In the wild, however, they can grow even larger, and one measuring

seventeen feet, seven inches was removed from the Everglades in 2012.63 Pythons are “voracious

59 Telephone interview with FWC Media Contact (Oct. 30, 2013). The Media Contact also indicated that, from the FWC’s perspective, the 2013 Python Challenge was a success even though, numerically speaking, it did not yield a big catch. She explained that one of the purposes of the 2013 Python Challenge was to bring greater public awareness to the Everglades’ python problem and show people the beauty of the Everglades. Id. The 2013 Python Challenge was covered by local, national, and international media, including the popular Southern-living-themed magazine Garden & Gun, so it was successful in bringing increased attention to the problem and to the parts of the Everglades the FWC is trying to protect. Id. At least one news source has also confirmed that there will not be another Python Challenge in the coming year. There Won’t Be Another Public Python Hunt in the Florida Everglades, THE HUFFINGTON POST (Nov. 18, 2013), http://www.huffingtonpost.com /2013/11/18/florida-python-challenge_n_4296912.html. 60 Burmese Pythons, NATIONAL PARK SERVICE, http://www.nps.gov/ever/naturescience/burmesepython sintro.htm; Christine Dell’Amore and Kate Andries, Florida Python Hunt Captures 68 Invasive Snakes, NATIONAL GEOGRAPHIC DAILY NEWS, (Feb. 19, 2013), http://news.nationalgeographic.com/news/2013 /02/130219-florida-pythons-hunting-animals-snakes-invasive-science/(indicating that, because pythons camouflage themselves so well in the Everglades, it is not unusual for a python hunter to stand right next to one without seeing it).61 Burmese Rock Python, SMITHSONIAN NATIONAL ZOOLOGICAL PARK, http://nationalzoo.si.edu/Animals/R eptilesAmphibians/Facts/FactSheets/Burmeserockpython.cfm.62 Id.63 Gillian White, Biggest Python Found in Everglades Amid Snake Invasion, BLOOMBERG, http://www.bloomberg.com/news/2012-08-14/biggest-python-found-in-everglades-amid-snake-invasion.html. (Aug. 14, 2012). See also Michael E. Dorcas, Severe mammal declines coincide with proliferation of Burmese pythons in Everglades National Park, PROCEEDINGS OF THE NATIONAL ACADEMY OF SCIENCES OF THE UNITED STATES OF AMERICA (Dec. 21, 2011), available at http://www.pnas.org/content/early/2012/01/23

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and indiscriminate eaters”64 who eat mammals commensurate with their size so, obviously, a

larger python will be able to tackle larger prey.65 In captivity, a python’s size is somewhat

limited by the amount of food its caretakers provide, but in the Everglades especially, pythons

have their choice of prey in almost unlimited quantities. Pythons have also been known to attack

and kill humans outside of the Everglades66 and have been found with bird, deer, bobcat, and

even alligator carcasses in their stomachs.67 Pythons preying on these populations may not have

an immediate impact, but over time the trend can irreversibly alter the composition of the

Everglades’ ecosystem.68 Some negative effects have already been measured in the past decade,69

as scientific studies indicate that mammal populations in parts of the Everglades inhabited by

pythons have decreased by up to 98 percent.70 The fact that python necropsies have revealed bird

/1115226109.full.pdf+html.64 Python Patrol: Stopping a Burmese Python Invasion, THE NATURE CONSERVANCY, http://www.nature .org/ourinitiatives/regions/northamerica/unitedstates/florida/howwework/stopping-a-burmese-python-invasion.xml.65 A python’s jaws unhinge so that it can swallow something 4 to 5 times wider than its head. Burmese Rock Python, SMITHSONIAN NATIONAL ZOOLOGICAL PARK, http://nationalzoo.si.edu/Animals/ReptilesAmphibia ns/Facts/FactSheets/Burmeserockpython.cfm.66 Burmese python kills young girl in Sumter County, WFTV.COM, http://www.wftv.com/news/news/burmese-python-kills-young-girl-in-sumter-county/nFC4z/ (Jul. 1, 2009) (reporting on the death of a two-year-old in Sumter County, Florida, who was killed when a nine-foot python kept in a bag inside an aquarium in her home slithered out and strangled her in her bed). See also Michael Kruse, Officials capture 9-foot Burmese python that strangled 2-year-old Sumter County girl, TAMPA BAY TIMES, http://www.tampabay.com/news/ publicsafety/officials-capture-9-foot-burmese-python-that-strangled-2-year-old-sumter/1015026 (Jul. 1, 2009) (reporting that the python was found in the family’s home the next day, still alive despite sustaining multiple wounds from a knife and a meat cleaver). The child’s death is one of the factors that motivated Senator Bill Nelson to propose legislation that amended that would make importing pythons illegal. Officials announce end of import and interstate trade of pythons, BILLNELSON.SENATE.GOV (Jan. 17, 2012), http://www.billnelson.senate.gov/news/details.cfm?id=335585&.67 In the Belly of a Python, THE NATURE CONSERVANCY, http://www.nature.org/ourinitiatives /regions/northamerica/unitedstates/florida/howwework/in-the-belly-of-a-python.xml.68 Christine Dell’Amore, Pythons Eating Through Everglades Mammals at ‘Astonishing’ Rate?, NATIONAL GEOGRAPHIC – DAILY NEWS (Jan. 30, 2012), http://news.nationalgeographic.com/news/2012/01/120130-florida-burmese-pythons-mammals-everglades-science-nation/ (reporting on studies indicating that the extinction of rabbits and other small mammals in the Everglades is likely if the python population continues to grow unchecked).69 Dorcas, supra note 63, (indicating that populations of medium-sized mammals such as raccoons, bobcats, wood rats, deer, and coyotes, which are essential to sustaining other large predators, have decreased by an average of between 98.3% and 87.5% in the twenty years since pythons became an established population in the Everglades).70 Id.

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carcasses is particularly troubling, as the Everglades are home to many species of endangered

birds, including the wood stork, the Cape Sable seaside sparrow, and the red cockaded

woodpecker,71 and are regarded as the most important breeding grounds72 in the country for some

species.73 Pythons targeting these birds could have a permanent impact by causing the birds to go

extinct, either regionally or completely.74 It is for these reasons that the National Park Service has

declared pythons to be a “major threat” to the Everglades75 and that measures to reduce the

population and limit python growth are necessary at this time.

Part II – A Brief Review of Competing Theories of Invasive Species Management

As with almost any contemporary environmental law topic, the private and governmental

management of nonnative invasive species has fostered several viewpoints that sometimes

conflict with one another. There are differences between how individual states approach

management of nonnative invasive species,76 and there are also differences between how the

71 Inventory of Threatened and Endangered Species in South Florida National Parks, NATIONAL PARK SERVICE, http://www.nps.gov/ever/naturescience/techecklist.htm. The inventory lists a total of twenty-three species federally classified as “endangered” or “threatened” residing in the Everglades. Id. As discussed in subsequent sections of this paper, the presence of so many endangered species and the Everglades’ status as a National Park increases the likelihood that Florida state agencies and conservation groups can obtain federal funds to help control the python population. 72 Plants and animals of the Everglades, COMPREHENSIVE EVERGLADES RESTORATION PLAN, http://www.evergladesplan.org/facts_info/sywtkma_animals.aspx.73 Dorcas, supra note 63, at 4 (indicating that approximately 25% of pythons found in the Everglades and subsequently killed have bird remains in their stomachs, and that the bird remains have includes herons, egrets, grebes, and the federally protected wood stork).74 This phenomenon occurred as a result of the accidental introduction of brown tree snakes into Guam’s ecosystem. Believed to have entered Guam as stowaways on boats in the 1940’s and ‘50’s, brown tree snakes have led to the local extinction of fruit bats, lizards, and nine out of thirteen native forest bird species. Flynn Boonstra, Leading by Example: A Comparison of New Zealand’s and the United States’ Invasive Species Policies, 43 CONN. L. REV. 1185, 1190 (2011).75 Burmese Pythons, NATIONAL PARK SERVICE, http://www.nps.gov/ever/naturescience/burmesepythonsintro. htm.76 Robert B. McKinstry, Jr. et. al, Legal Tools that Provide Direct Protection for Elements of Biodiversity, 16 WIDENER L.J. 909 (2007), compares and contrasts these approaches. For example, some states rely on universities to staff and fund nonnative invasive species removal efforts, while others create Nonnative Invasive Species Counsels that serve directly under the state’s governor and coordinate removal efforts across various state agencies. Id. at 932, 933-34.

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United States and other countries approach regulating nonnative invasive species.77 In the United

States, state governments are usually the first to act when a nonnative invasive species starts to

harm the native populations.78 In other countries, a national approach to preventing and

managing nonnative invasive species that harm the native population is more common.79 For

example, several years ago Bermuda was experiencing the beginnings of a lionfish population

boom similar to the one in the Florida Keys and responded by placing a strict ban on the import

of live lionfish.80 Bermuda is tiny in comparison to the United States81 and is a constitutional

monarchy,82 so it has an easier time enacting national legislation.83 However, the fact that the

executive branch of U.S. government could use the powers given to the Department of Interior to

unilaterally ban the import of lionfish under the Lacey Act,84 and has not chosen to do so, shows

a definite difference in national mentalities. States’ rights advocates would favor regulating

nonnative invasive species at a local level or relying on private entities to do so, but the fact that

Bermuda’s lionfish population has remained steady while the U.S. lionfish population continues

77 Boonstra, supra note 74 (comparing the ways in which the United States and New Zealand approach to nonnative invasive species management).78 This was the case at the early stages of the carp invasion in the Great Lakes region. Jason A. Boothe, Defending the Homeland: A Call to Action in the War Against Aquatic Invasive Species, 21 TUL. ENVTL. L. J. 407, 413-14. 79 Boonstra, supra note 74, see also the discussion of Bermuda’s policies, below. 80 Can we stop the invasion?, NOAA OCEAN SERVICE EDUCATION, http://oceanservice.noaa.gov/education/ stories/lionfish/lion05_stop.html. 81 Bermuda’s year-round population consists of approximately 65,000 people, and the country measures 27 square miles. Bermuda population clock, COUNTRY METERS, http://countrymeters.info/en/Bermuda/; Bermuda, WORLD ATLAS, http://www.worldatlas.com/webimage/countrys/namerica/bm.htm.82 Government, BERMUDA: SO MUCH MORE, http://www.gotobermuda.com/about-bermuda/our-island/.83 Bermuda has an easier time enacting national legislation than the United States does, but also would seem to have a more difficult time enforcing the legislation since the country is composed of seven main islands and about 170 named islets and rocks. Bermuda, ENCYCLOPEDIA BRITANNICA, http://www.britannica.com/EBchecke d/topic/62295/Bermuda. The lack of rapid growth of Bermuda’s lionfish population, however, shows that the government has taken the time to enforce the regulation, and that the United States may be able to do something similar with appropriate legislation and funding to support enforcement efforts. 84 18 U.S.C § 42(a)(1).

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to grow indicates that a national ban on import and possession might be an effective way to stem

the population’s growth.85

Some scholars advocate for an overhaul of federal regulation of nonnative invasive

species,86 but the benefits of increased federal regulation87 are frequently balanced against the

arguments of people who embrace federalism and are in favor in increased state autonomy.88

Sometimes federal laws (or a federal court decision, as was the case in Michigan v. Illinois,89) are

needed to “referee” a dispute between states over liability for the introduction of a species or

85 As discussed in subsequent sections of this paper, banning import by adding lionfish to the Lacey Act’s Injurious Wildlife List would be relatively easy in comparison to the prospect of creating new federal or multistate legislation to accomplish the same goal. As an example, consider the lack of success Senator Bill Nelson had in trying to convince Congress to sign a bill banning the import of pythons, discussed at footnote 168, infra. A bill banning the import of lionfish would likely suffer a similar fate, so the Lacey Act may be the only (albeit imperfect due to overbreadth issues, see part IV) option.86 See, e.g. Graham, supra note 19 at 20 (calling for a new, comprehensive statute outside of the Lacey Act to increase criminal penalties associated with importing or transporting nonnative invasive animal species and allow federal authorities to better track and manage the nonnative invasive animal species that are already in the country); Boothe, supra note 78 (arguing that states’ attempts at regulating aquatic invasive species are insufficient in light of the size of the problems these species cause, and calling for increased federal involvement); Albert G. McCarraher, IV, The Phantom Menace: Invasive Species, 14 N.Y.U. ENVTL. L.J. 736 (2006) (arguing that Hawaii’s state-level attempts at controlling the spread of Miconia, an invasive plant species, could be improved with federal assistance and national legislation); Christopher J. Patrick, Ballast Water Law: Invasive Species and Twenty-Five Years of Ineffective Legislation, 27 VA. ENVTL. L.J. 67 (2009)(arguing that stronger federal regulation of the ballast water that harbors certain types of nonnative aquatic invasive species would have kept the zebra mussel and Asian carp populations from developing domestically); and Viki Nadol, Aquatic Invasive Species in the Coastal West, 29 ENVTL. L. 339 (1999) (arguing that individual states’ efforts to control nonnative invasive species on the West Coast are ineffective unless accompanied by federal legislation fitting the management of these species into the larger federal framework governing environmental preservation and setting federally-imposed minimum thresholds for state programs).87 Potential benefits of increased federal regulation that are frequently identified in the course of this debate include: increased uniformity of U.S. environmental laws, a greater ability for the United States to act in a way that preventatively bans the import of potentially dangerous species (as opposed to waiting until they have established themselves and done damage to domestic ecosystems), greater public awareness of the threats nonnative invasive species pose, and increased accountability. Boonstra, supra note 74 at 1186 (calling for a comprehensive federal statute to govern all matters relating to the import and management of nonnative invasive species, and arguing that the four aforementioned benefits would result).88 Terry Anderson and Peter Hill, Environmental Federalism: Thinking Smaller, PROPERTY AND ENVIRONMENT RESEARCH CENTER, http://perc.org/articles/environmental-federalism-2 (recounting the decades-long expansion of the EPA and other federal agencies and arguing that state governments are in a better position than the federal government to recognize the need for environmental regulation); William M. Shobe and Dallas Burtaw, Rethinking Environmental Federalism in a Warming World, RESOURCES FOR THE FUTURE, available at http://www.rff.org/rff/Documents/RFF-DP-12-04.pdf (arguing that even when designed to fix a large-scale problem, such as environmental harm caused by climate change, federal regulations should still have to pass through “various levels of subnational fiscal and regulatory policy.”).89 558 U.S. 1145 (2010).

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equitable distribution of the work required to remove a certain species, 90 and sometimes a federal

law is useful when a species is too widespread for a state to manage it alone.91

Some scholars have also argued that federal tort law should be expanded to create causes

of action for people, companies, and industries harmed in one state by nonnative invasive species

that originated in a different state and migrated.92 Because lionfish and pythons are entering

Florida’s ecosystems as a result of Florida residents’ actions, Florida industries harmed by these

species would not have grounds for a cross-state suit, but under some of the proposed reforms,

Florida citizens or the state itself could be sued for allowing these populations to become

established, grow, and expand beyond the state’s borders.93 Florida acting to control its lionfish

and python populations protects the state’s ecosystems, and could also protect the state94 and its

citizens from lawsuits in the future.

At the other end of the spectrum from the viewpoints that advocate for federal and/or

state regulation of nonnative invasive species is the argument that the presence of a nonnative

invasive species is not something that needs to be stopped, even when the species becomes the

90 The Michigan v. Illinois decision was a denial of Michigan’s request for an injunction that would have prevented Illinois from continuing to operate two shipping locks in the Chicago Area Waterway System. Michigan suspected (and presented a significant amount of scientific research indicating the validity of its suspicions) that the shipping locks were responsible for allowing Asian carp back into Lake Michigan, in areas where they had previously been eradicated. For a more detailed discussion of the environmental issues at stake and the possible flaws in the rulings issued by the District Court for the Northern District of Illinois and the U.S. Supreme Court concerning the matter, see Robin Kundis Craig, Asian Carp and the Great Lakes: When is Irreparable Harm “Likely” and “Imminent” Enough?, 42 NO. 4 ABA TRENDS 1 (March/April 2011). 91 This is one of the major justifications for the injurious species provisions in the Lacey Act, and is detailed as such in many scholarly pieces on the topic. See, e.g. Christopher Grubb, Worthy of Their Name?, 87 CHI.-KENT L. REV. 237, 240-42 (2012); McCarraher, supra note 86.92 John L. Dentler, Noah’s Farce: The Regulation and Control of Exotic Fish and Wildlife, 17 U. PUGET SOUND L. REV. 191 (1993); Matthew Shannon, From Zebra Mussels to Coqui Frogs: Public Nuisance Liability as a Method to Combat the Introduction of Invasive Species, 32 ENVIRONS ENVTL. L. & POL’Y. J. 37 (2008). 93 Shannon, supra note 92. 94 Lawsuits between states for damages caused or looming due to one state’s failure to contain an invasive species population are already familiar in the context of the Asian carp invasion in the Great Lakes region. See Michigan v. Illinois, supra note 90. If tourism in other Gulf Coast states is traceably negatively impacted by the lionfish and python populations that started in Florida, Florida could face a similar suit.

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dominant (or only) species in the ecosystem it has invaded.95 This so-called laissez faire

approach to the presence96 of a nonnative species is rooted in the belief that biodiversity is

not necessarily something worthy of protection, and that using a desire to maintain

biodiversity as the sole justification for passing environmental regulations is archaic and

inappropriate for the modern world.97 Other people argue that regulating nonnative

invasive species is futile and unnecessary when factors such as climate change mean that

ecosystems are constantly evolving and biodiversity is no longer a stagnant feature.98

Under this line of reasoning, a nonnative invasive species becomes part of an ecosystem’s

“new normal,” and represents an opportunity for the ecosystem to evolve and adapt.

Although in some contexts there could be a benefit to deciding not to remove a

nonnative invasive species in light of arguments about the allegedly low value of

biodiversity and the possibility that nonnative invasive species are just part of an

ecosystem’s evolution, this paper argues that Florida cannot afford to do so in the context

of the lionfish and python populations. Allowing these populations to destroy the

95 See, e.g. Mark Sagoff, Biodiversity and the Culture of Ecology, BULLETIN OF THE ECOLOGICAL SOCIETY OF AMERICA, Vol. 47, No. 4 (1993), p. 374-81. For a counterargument, see Robert B. McKinstry Jr. et. al, supra note 76 (arguing that biodiversity is worth protecting, highlighting the federal statutes that can help states fill in regulatory gaps in their nonnative invasive species management programs, and explaining the potential consequences of failing to maintain biodiversity in several key regions). 96 People subscribing to this viewpoint hesitate to use the terms “invasion” or “invasive,” as these indicate an attack that must be repelled, so they are more likely to use terms like “presence” or “development” to describe nonnative species establishing itself in a certain ecosystem. Goldstein, supra note 33 at 692-93.97 Sagoff, supra note 95; Mark Sagoff, Can Libertarians Be Environmentalists?, Penn State University Press, THE NEWSLETTER OF PEGS, Vol. 2, No. 2, (1992), p. 7-8., available at http://www.jstor.org/stable/20710557.98 Monaca Noble and Paul Fofonoff, “Once an Invasive, Always an Invasive?” SMITHSONIAN ENVIRONMENTAL RESEARCH CENTER, http://www.serc.si.edu/labs/marine_invasions/feature_story/April_2013.aspx (detailing the way in which some species are likely to shift from being classified as “invasive” to being classified as “naturalized” if they confer economic benefit on a region and the region’s ecosystems are also evolving due to other factors); Peter Kareiva, Invasive Species: Guilty Until Proven Innocent?, THE NATURE CONSERVANCY, (Jun. 7, 2011) http://blog.nature.org/conservancy/2011/06/07/invasive-species-fight-mark-davis-peter-kareiva/ (arguing that a slower, wait-and-see approach to eradicating a seemingly invasive nonnative species could be appropriate in some contexts); Jessica Kabaz-Gomez, Rules for Playing God: The Need for Assisted Migration and New Regulation, 19 ANIMAL L. 111 (2012)(arguing that legal conceptions of what it means to “save” a species must be readjusted due to rapid climate change).

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biodiversity of the coral reefs and the Everglades is too risky from an economic

standpoint,99 and would also run contrary to the laws that are in place to protect the

federally-recognized endangered species100 that call the Florida Keys and Everglades their

home. It is for these reasons that laws and regulations designed to keep additional lionfish

and pythons from entering Florida’s ecosystems and the use of state and federal agencies’

resources to further removal efforts is a more appropriate solution than the laissez faire

approach in this situation.

Part III – The Likelihood and Effectiveness of Federal Funds

1. Florida is Likely to Obtain Federal Funds101

This section discusses how Florida can obtain federal funds to put towards researching the

size of the problem, removing at least some102 of the lionfish and pythons that are in the state

99 In the year 2011 alone, Florida had 87.3 million visitors and was ranked as the top travel destination in the world. Facts about Florida, STATEOFFLORIDA.COM, http://www.stateofflorida.com/Portal/DesktopDefault .aspx?tabid=95. The tourism industry has an economic impact of $67 billion on Florida’s economy. Id. In 2008 (the most recent data specifically about the Florida Keys available), the Florida Keys had just over 3.26 million visitors, showing a significant portion of the market share and indicating that Florida tourism would suffer noticeably if the Keys became less popular due to lack of biodiversity on the reefs. Vernon R. Leeworthy et. al, Linking the Economy and Environment of Florid Keys/Key West (Jun. 2010), available at http://www.monroecounty-fl.gov/DocumentCenter/Home/View/756. The Everglades are also a popular tourist destination, bringing close to 1 million recreational visitors in the year 2011. Everglades National Park Visitation, NATIONAL PARK SERVICE, http://www.nps.gov/ever/parkmgmt/everglades-national-park-visitation.htm. 100 The Everglades are home to many endangered species, including the Wood Stork and the Atlantic Ridley Turtle. Inventory of Threatened and Endangered Species in South Florida National Parks, NATIONAL PARK SERVICE, http://www.nps.gov/ever/naturescience/techecklist.htm. Similarly, two types of coral that make up the reefs in the Florida Keys, acropora cervicornis and acropora palmata, are listed as a Threatened Species under the federal Endangered Species Act. Threats to Southeast Florida Coral Reefs, FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, http://www.dep.state.fl.us/coastal/programs/coral/threats.htm. 101 The likelihood of Florida obtaining federal funds is discussed in this section because the funds are essential to implementing the removal plan discussed in Part IV. The fact that Florida is likely to obtain federal funds provides support for the argument that the plan discussed in Part IV will be an effective way to decrease the lionfish and python populations. 102 Most sources agree that these species will never be completely eradicated in Florida, and concede that the best we can do is remove the ones that are here while focusing on preventing new pythons and lionfish from entering our ecosystems. Management and Control of the Venomous Lionfish, LIONFISHHUNTERS.ORG, http://www.lionfishhunters.org/Management.html; Python Removal Program, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/license/wildlife/nonnative-species/python-permit-program/. It may be possible to eradicate pythons from Key West or another isolated island, but only if action is taken to quickly limit the breeding population. The Big Squeeze: Pythons and Mammals in Everglades National Park,

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currently, educating the public about the harms associated with releasing lionfish and pythons

into the wild, and enforcing laws designed to discourage people from releasing them. There are

several major factors increasing the likelihood that Florida will obtain federal funds to assist with

these projects: Florida’s Everglades and coral reefs are already protected at the state and federal

level, the size and scope of Florida’s lionfish and python problem is similar to the size and scope

of other nonnative invasive species problems that have received federal funding, and Florida can

demonstrate a real need for federal funds. These factors are discussed below.

A. The Everglades and the coral reefs in the Florida Keys are protected at the state and

federal level, and Florida’s problems are similar to nonnative invasive species crises

that have received federal funding in other states

As briefly discussed in parts I and II of this paper, the ecosystems the pythons and lionfish

have invaded are located in protected areas. The Everglades are protected and maintained by the

National Park Service (NPS),103 and the part of the coral reefs in the Florida Keys most affected

by lionfish is located in the Florida Keys National Marine Sanctuary, which is administered by

National Oceanic and Aquatic Agency (NOAA) and jointly managed by the State of Florida.104

These designations increase the chances for federal funds, if not in the form of a grant then in the

form of an earmarked portion of all the money that is allocated for conservation of these areas.

The NPS budget for the 2014 fiscal year totals $2.6 billion,105 and includes a request for

increased support for the efforts directed at managing exotic invasive animals in national parks,

USGS SCIENCE FEATURES (Feb. 6, 2012), http://www.usgs.gov/blogs/features/usgs_top_story/the-big-squeeze-pythons-and-mammals-in-everglades-national-park/.103 Park Management, NATIONAL PARK SERVICE, http://www.nps.gov/ever/parkmgmt/index.htm (stating that the Everglades National Park is “set aside as a permanent wilderness, preserving essential primitive conditions including the natural abundance, diversity, behavior, and ecological integrity of the unique flora and fauna.”).104 About Florida Keys National Marine Sanctuary, NOAA, http://floridakeys.noaa.gov/about/welcome.hml?s =about.105 Budget Justifications and Performance Information: Fiscal Year 2014, NATIONAL PARK SERVICE, available at http://www.nps.gov/aboutus/upload/FY_2014_greenbook.pdf.

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along with a separate request for additional support for the management of two specific types of

nonnative aquatic invasive species, quagga and zebra mussels, in national parks.106

The allocation of additional funds for the management of quagga and zebra mussels is a

particularly good sign for Florida’s chances of obtaining federal funds to remove pythons from

the Everglades, as it shows that the NPS is willing to dedicate a budget line to the management

of a specific invasive species. Additionally, the effect the python population is having on the

Everglades’ ecosystem is similar to the effect the quagga and zebra mussel populations are

having on the ecosystems they invaded,107 which means that Florida can use the example of the

designated quagga and zebra mussel funds to help support its argument that the Everglades

deserve federal assistance to help control the python population as well. These factors indicate

that if Florida makes the request, obtaining funds designated in the NPS budget is a real

possibility.

Florida, or a private not-for-profit entity within Florida,108 is also likely to obtain federal

funds to help control the lionfish population. Funds would likely come in the form of a grant

from NOAA,109 the U.S. Department of Agriculture (USDA),110 or both. Through its website, the

106 Id.107 The Zebra Mussel Invasion, NOAA, http://www.noaa.gov/features/earthobs_0508/zebra.html (indicating that the zebra mussel population has a major, negative impact on lakes’ ecosystems by killing many of the fish that serve as a food source for larger fish that are commercially viable and essential as predators). Similarly, pythons consume the medium-sized mammals that alligators and bears typically prey on. Stopping a Burmese Python Invasion, THE NATURE CONSERVANCY, http://www.nature.org/ourinitiatives/regions/northamerica /unitedstates/florida/howwework/stopping-a-burmese-python-invasion.xml.108 Many of the USDA partner organizations distributing grants indicate that grants are available to private individuals and conservation organizations. See, e.g. U.S. Fish and Wildlife Service Grants-At-A-Glance, U.S. FISH AND WILDLIFE SERVICE, http://www.fws.gov/grants/. In the context of Florida’s lionfish problem, this means that REEF and/or The Nature Conservancy would be ideal grant candidates. Grants are also available to state agencies and local governments, which means that the FWC, Florida Park Service, and county governments can apply for grants as well. Id. 109 When asked whether he thought Florida would be able to get federal funds for lionfish eradication programs, Todd Biologist from the Florida Keys National Marine Sanctuary indicated that the believes the issue is big enough and important enough for NOAA to want to fund it. Biologist Interview. 110 One might suspect that the USDA would only be interested in funding projects designed to combat the problems caused by invasive plant species, but its website indicates that in recent years it has partnered with other agencies and funded several animal-related projects as well. See, e.g. Fish and Wildlife Service Awards

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USDA has provided information for entities seeking to apply for funding under its USDA Grant

and Partnership Programs that Can Address Invasive Species Research, Technical Assistance,

Prevention and Control,111 and lists examples of grants that have been awarded in recent years.112

A partnered grant issued by the USDA and the U.S. Fish & Wildlife Service (USFWS) would be

ideal, as the USFWS already designates grant money annually for invasive species risk

assessments, which Florida could use to gather additional scientific data in support of the need

for action.113

A grant the USDA issued in the year 2009 to combat aquatic invasive animal species in

Wisconsin bodes especially well for Florida’s chances of obtaining a similar grant.114 The

Wisconsin grant totaled $1.3 million and went towards Wisconsin’s efforts to “prevent invasive

species from being introduced into new lakes, control them where they’ve become a problem,

and to respond rapidly when an aquatic invasive species is detected in new water for the first

time.”115 The grant was distributed among more than twenty local governments, lake districts,

and conservation groups, all working in concert to continue advancing Wisconsin’s overall

strategy to control invasive animal species and protect its $13 billion per year tourism industry.116

The similarities between Florida and Wisconsin are notable in this context, as Florida also has a

$1.6 million in grants to Research and Manage the Spread of White-Nose Syndrome, USDA NATIONAL AGRICULTURAL LIBRARY, http://www.invasivespeciesinfo.gov/toolkit/grantsaward.shtml. White-Nose Syndrome has killed more than a million bats in eastern North America since first being discovered here in the year 2007. Id. As discussed below, the USDA also designates funds to combat the harms caused by nonnative invasive animal species. 111 Manager’s Toolkit: Grants and Funding, USDA NATIONAL AGRICULTURAL LIBRARY, http://www.invasivespecie sinfo.gov/toolkit/grants.shtml.112 Id.113 U.S. Fish & Wildlife Service Grant Programs for a State Agency from the USFWS, U.S. FISH & WILDLIFE SERVICE, http://www.fws.gov/grants/state.html. 114 $1.3 million in grants to fight aquatic invasive species, USDA NATIONAL AGRICULTURAL LIBRARY, http://www.invasivespeciesinfo.gov/toolkit/grantsaward.shtml.115 1.3 million in grants to fight aquatic invasive species, WISCONSIN DEPARTMENT OF NATURAL RESOURCES CENTRAL OFFICE, http://dnr.wi.gov/news/weekly/Article_Lookup.asp?id=1067 (Apr. 28, 2009) (quoting a statement from Wisconsin Department of Natural Resources Secretary Matt Frank).116 Id.

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large tourism industry117 and already has identifiable programs in place to help combat the

lionfish invasion.118

Florida may also be able to obtain a grant from NOAA. NOAA oversees the Florida Keys

National Marine Sanctuary,119 so it is already well aware of the lionfish invasion of the reefs in

that area and the size of the problem. NOAA has also awarded grants for projects relating to

nonnative invasive species,120 and has a designated Coral Reef Conservation Grant Program that

has awarded over $70 million in federal funds in the last ten years,121 $12.04 million of which

was awarded in the year 2012.122 A significant portion of the year 2012 funds were directed

towards “domestic coral reef conservation grants” and out of those funds REEF received

$207,630 for “setting and evaluating ecological targets for invasive lionfish control.”123 REEF

was able to persuade NOAA to provide those funds, so REEF could now make a strong

argument in favor of obtaining additional funds to continue researching the lionfish problem and

pursue more aggressive lionfish removal efforts.

The federal government has also established and funded an Aquatic Nuisance Species Task

Force (ANSTF) to research aquatic nonnative invasive species, make policy recommendations,

and enforce the National Invasive Species Act.124 The ANSTF has listed lionfish as a “species of

117 NOAA estimates that coral reef activities in Martin, Palm Beach, Broward, and Miami-Dade counties generate $3.4 billion in sales in general and income and support 36,000 jobs in the region each year. Florida, CORIS: NOAA’S CORAL REEF INFORMATION SYSTEM, http://www.coris.noaa.gov/portals/florida.html. 118 Recall that, as discussed in Part I of this paper, the FWC provides support for the lionfish derbies and also provides support for education and awareness campaigns. 119 Welcome to the NOAA Florida Keys National Marine Sanctuary, NOAA, http://floridakeys.noaa.gov/.120 See, e.g. NOAA Project to Investigate Impacts of Shallow Water Hypoxia in Chesapeake Bay, NOAA, http://www.noaanews.noaa.gov/stories2010/20100921_hypoxia.html (Sept. 21, 2010).121 NOAA Coral Reef Conservation Grant Program, NOAA, http://coralreef.noaa.gov/aboutcrcp/workwithus /funding/grants/.122 NOAA Coral Reef Conservation Program, Financial Assistance Awards for Fiscal Year 2012, available at http://coralreef.noaa.gov/aboutcrcp/workwithus/funding/grants/resources/fy12_grant_awards.pdf123 Id.124 ANS Task Force, http://www.anstaskforce.gov/default.php. Based on its name, the National Invasive Species Act (NISA) seems applicable to Florida’s situation, but has been widely criticized as being confusing within the larger framework of federal law, rarely enforced, and trumped by the Lacey Act. 243-44. Grubb,

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concern,”125 but does not actually seem too concerned about it, as the recently-released ANSTF

Strategic Plan for the Years 2013 through 2017 does not include taking steps to manage or

eradicate the lionfish population.126 The plan does state that one of the ANSTF’s main goals for

the upcoming year is to engage in community education and outreach programs designed to

“increase awareness concerning threats of aquatic nuisance species, emphasizing the impacts,

importance of prevention, and containment, and recommendations for appropriate domestic and

international actions,”127 so Florida may be able to rely on the ANSTF for in-kind support for the

educational programs that are already ongoing.

Florida’s chances of obtaining earmarked federal funds to combat the python problem and a

federal grant to combat the lionfish problem are both increased by the fact that both species have

the capacity to migrate beyond Florida’s borders and negatively impact ecosystems in other

states. Lionfish are already in the waters off of twelve states,128 and pythons from Florida have

the capacity to inhabit swamps in Louisiana and the South Carolina low country as well.129 The

multistate impact of these species logically indicates that they should be dealt with as a federal

issue, instead of requiring Florida to shoulder the financial cost of removing them alone.

supra note 91. So far, the NISA has only been loosely applied to allow the U.S. Coast Guard to check ships’ ballast water for Zebra Mussels. Id. It is for these reasons that Florida should try to add lionfish to the Lacey Act or prohibit their import and sale with a state law or multistate regional compact, as opposed to amending the NISA. 125 Lionfish, ANS Task Force, http://www.anstaskforce.gov/spoc/lionfish.php.126 Aquatic Nuisance Species Task Force Strategic Plan (2013 – 2017), available at http://www.anstaskforce.gov/Documents/ANSTF%20Strategic%20Plan%202013-2017.pdf.127 Id. 128 USGS Lionfish Map, included in Appendix A. 129 Salt Water Alone Unlikely to Halt Burmese Python Invasion, USGS NEWSROOM (Jan. 14, 2012), http://www.usgs.gov/newsroom/article.asp?ID=3066#.UpdwWSiRBaE (indicating that pythons have already been found in the brackish water surrounding the Everglades and that they could navigate it to reach neighboring terrain); Catherine Puckett, Severe Declines in Everglades Mammals Linked to Pythons, USGS SOUND WAVES MONTHLY NEWSLETTER, http://soundwaves.usgs.gov/2012/04/research2.html (indicating that the python population may expand and seek prey outside of the Everglades if its prey species disappear); Florida python invasion: expanded and still growing, UF researcher says, UF NEWS (May 15, 2008), http://news.ufl.edu/2008/05/15/pythons-2/ (citing a USGS climate map and arguing that, based on climate, pythons could potentially survive across the lower third of the United States).

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B. Florida can demonstrate a real need for federal funds

In addition to having scientific research from a variety of state and federal agencies and

private entities indicating that the lionfish and python populations pose a serious risk to the

state’s ecosystems,130 Florida can make a financial argument in favor of obtaining federal funds

for invasive species management. Federal agencies continue to fund conservation and invasive

species removal efforts even during budgetary cutbacks,131 whereas the Florida state government

has been decreasing state agencies’ budgets in recent years.132 Florida’s inability (or

unwillingness) to spend more state funds to combat the lionfish and python invasions is also

evident from the fact that the relevant state agencies are aware of the issues133 and have not

dedicated funds sufficient to solve the problem. These factors, combined with the science

indicating that the lionfish and python populations have the capacity to spread beyond Florida

and damage ecosystems elsewhere, indicate that Florida is an ideal candidate for federal funds.

2. How Federal Funds Will Help Solve the Problem

130 Discussed in Part I, infra.131 For example, the USDA has an ongoing financial assistance program targeted at assisting state agencies that manage invasive species and pests, including invasive animals. Invasive Species and Pests, USDA NATURAL RESOURCES CONSERVATION SERVICE, http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/plantsan imals/invasive/. Similarly, NOAA and the Department of the Interior encourage state governments and private entities to apply for grants this year, and provide information about how to do so. Manager’s Toolkit – Grants and Funding, NATIONAL INVASIVE SPECIES INFORMATION CENTER, http://www.invasivespeciesinfo.gov /toolkit/grantsaward.shtml.132 Gray Rohrer, Despite surplus, agencies gear up for budget-cutting exercise, THE FLORIDA CURRENT (Sept. 11, 2013) http://www.thefloridacurrent.com/article.cfm?id=34433938. There is also some evidence indicating that the current lawmakers are not interested in prioritizing environmental conservation efforts. For example, the Florida Forever Fund, often regarded as the state’s most important environmental initiative because of its ability to protect some of Florida’s natural areas from development, has received far less funding in recent years than it had in previous years. Florida Forever Shorted Again, FLORIDA FOREVER COALITION, http://floridaforevercoalition.org/2013/04/30/press-statement-florida-forever-shorted-again/ (Apr. 30, 2013).133 See, e.g. Alan Pierce, Florida, We Have a Lionfish Problem, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION (Nov. 14, 2012), http://myfwc.com/news/news-releases/2012/november/14/gc-november/; Nonnatives – Burmese Python, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION http://myfwc.com/wildlifehabitats/nonnatives/reptiles/burmese-python/.

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If Florida state and local governmental agencies and/or non-governmental conservation

groups obtain federal funds, they will be able to designate the funds quickly efficiently because

Florida already has programs in place that can be continued and expanded. For example, federal

funds could be used to hire additional people to manage the lionfish derbies, the lionfish

derbies134 could be held more often,135 and the certification136 and education programs137 that

REEF and the Florida Keys National Marine Sanctuary direct could be made more widely

available. Similarly, additional staff members could be added to the Python Patrol that currently

removes pythons from the Everglades,138 so that there would be enough manpower to work on a

daily basis and remove a greater number.

134 Discussed in Part I of this paper.135 With enough funding, Florida may also be able to hire professional divers to hunt the lionfish, which would reduce the need for derbies and would allow for daily or weekly removal of lionfish, much like how the python patrol park rangers employed by the NPS in the Everglades work. Because the derbies are so popular right now, focusing on continuing them and increasing the frequency with which they occur seems preferable. If the derbies start to see lower attendance rates, however, professional divers may be the better option. Additionally, commercial divers could be hired to hunt lionfish in waters that are too deep for recreational divers, where the lionfish population is growing aggressively. Kelly Ash, Lionfish Hunting Past Recreational Depths, WORLD LIONFISH HUNTERS ASSOCIATION (Sept. 11, 2013), http://lionfish.co/lionfish-hunting-past-recreational-depths-whats-like/.136 Divers must get certified to hunt lionfish within the protected “no take” zones in the Florida Keys National Marine Sanctuary. Biologist Interview; Steve Gibbs, Sanctuary licenses lionfish hunters in no-take zones, KEYSNEWS.COM (Mar. 3, 2010), http://keysnews.com/node/21272; Harvesting and Reporting Lionfish, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/wildlifehabitats/nonnatives/marine-species/lionfish/harvesting/.137 Several REEF workshops were held in the southeast this year, but more could be held if Florida obtains additional funding to support them. Lionfish Workshops, REEF, http://www.reef.org/lionfish/workshops. This year’s workshops were made possible by a grant from the USFWS, so a renewed or expanded grant would be ideal. Id. The point of the workshops is to train people on how to hunt lionfish safely and effectively, and to increase awareness of the harm that stems from releasing a lionfish into Florida waters. Id.138 The National Park Service estimates that the team of 30 park rangers on the National Park Service Python Patrol has removed 1800 pythons total from the Everglades since the year 2002. This averages out to 163 per year, which is only 13 per month. Burmese Pythons, NATIONAL PARK SERVICE, http://www.nps.gov/ever/naturescien ce/burmesepythonsintro.htm. It is logical to assume that a larger group of rangers could catch more pythons, especially if federal funds have been invested in purchasing specialized python traps (see discussion below).

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Federal funds could also be used to research the size of the python problem139 and

purchase the devices that make hunting for pythons and lionfish more effective and safer for

native species. The USDA recently obtained a patent for a trap designed specifically for pythons

in the Everglades, which has been lauded as smaller and lighter than other traps that are

commonly used and also safer for native species because its design is such that only a snake the

size and shape of a python will trigger the trap and become ensnared.140 As of 2013, lionfish can

only be harvested without a permit by hand using nets, small spear guns, a device called a

Hawaiian sling, or as bycatch in lobster traps.141 Federal funds can be used to research better

ways to capture lionfish,142 and can also be used to purchase additional nets and other gear used

to hunt lionfish currently. Many research boats with certified SCUBA divers on them travel the

lionfish-infested waters, so purchasing additional lionfish hunting gear and providing them with

139 Citing an interview with an unnamed Florida wildlife official, CNN recently reported that there are at least 100,000 pythons in the Everglades. Plenty more where those came from - - final take in Fla. Snake hunt is 68 pythons, CNN.COM (Feb. 18, 2013) http://www.cnn.com/2013/02/16/us/florida-python-hunt/. Other estimates indicate that there are as many as 150,000 pythons in the Everglades. Florida’s Python Problem: Snakes Reshape the Everglades, NPR (Jan. 14, 2013), http://www.npr.org/2013/01/14/169343960/floridas-python-problem-snakes-reshape-the-everglades. Federal funds for researching the size of the problem are important because with a more solid estimate of the number of pythons in the Everglades the National Park Service will know how many additional Python Patrol rangers to hire. The population shows no signs of slowing down, as pythons can lay as many as 100 eggs per year, and have an average life expectancy of 30 years in the wild. Burmese Rock Python, SMITHSONIAN NATIONAL ZOOLOGICAL PARK, http://nationalzoo.si.edu/Animals/Reptiles Amphibians/Facts/FactSheets/Burmeserockpython.cfm.140 Jennifer Kay, Specifically designed python traps may help catch invasive Everglades snakes, HUFFINGTON POST, http://www.huffingtonpost.com/2013/09/26/python-traps_n_3997523.html#slide=2129395 (Sept. 26, 2013).141 F.A.C. Rule 68-B-5.006 (2013); Lionfish: From Sea to Table, NOAA, http://sanctuaries.noaa.gov/qr/lionfish/. The F.A.C. rule does not indicate why only hunting lionfish using these methods is allowed without a permit but, based on the descriptions on websites selling and/or endorsing the types of fishing gear used for these methods, it would seem that they are ideal because they pose a low risk to other types of fish and are fairly easy to use. See, e.g. Foldspear Lionfish Package, LIONFISHHUNTING.COM, http://www.lionfishhunting.com/index.php? main_page=product_info&cPath=7&products_id=17; Lionfish Slaying Equipment, SCUBABOARD.COM, http://www.scubaboard.com/forums/underwater-hunting/410011-favorite-recommended-lion-fish-slaying-equipment.html.142 The co-founder of Traditional Fisheries, a company seeking to popularize lionfish as a sustainable, healthy, menu item, indicated in a recent interview that the company is working on developing a trap that would make catching lionfish easier and more cost-efficient than the current spearing methods. Emily Tripp, Invasive Lionfish: To Beat ‘Em, Just Eat ‘Em, MARINE SCIENCE TODAY, http://marinesciencetoday.com/2013/04/23/in vasive-lionfish-to-beat-em-just-eat-em/.

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at least a few nets or spear guns to keep on board could lead to impromptu lionfish hunts in the

course of other research activities.143

Regardless of which federal agencies Florida obtains funds from, the funds will help the

lionfish and python removal programs that are already in place become more effective. The

current removal methods are ineffective mainly because they are too limited to make a

significant impact on these species’ huge populations. With additional funding, the programs can

be expanded and improved if additional research reveals that there are more effective ways to

remove lionfish and pythons. The multistate impact of these populations, coupled with Florida’s

lack of resources and the size of the problem, makes Florida an excellent candidate for a federal

grant or earmarked federal funds. As discussed below, the expanded removal programs and a

system of regulations designed to prevent additional released lionfish and pythons from entering

the state’s ecosystems will work together to help control these populations.

Part IV – Florida Needs Laws Prohibiting Import and Interstate Transport of Live Lionfish and

Pythons

Lionfish and pythons are similar in the size and scope of the threat they pose to Florida’s

ecosystems144 and are also similar in that they were both able to invade Florida’s ecosystems

because of human involvement. Lionfish are very beautiful and exotic-looking, so they are

commonly purchased by individuals or companies as additions to private aquariums.145 Although

the exact person (or people) responsible for the release of the first lionfish into Florida’s oceans

143 Several research organizations have already sent their employees to get certified to catch lionfish in the National Marine Sanctuary “no take” zones, and they regularly catch lionfish during their scheduled research trips. Biologist Interview. Providing these groups with nets and spear guns that are a particularly effective way to catch lionfish could give them an additional incentive to hunt lionfish, and could lead to more successful hunts as well.144 As discussed in Part I of this paper, both species have eradicated their prey populations by as much as 90% in certain areas. 145 Dr. Frank Marini, The Lionfish Info Sheet: Captive Care and Home Husbandry, REEFKEEPING – AN ONLINE MAGAZINE FOR THE ONLINE AQUARIST, http://www.reefkeeping.com/issues/2002-11/fm/feature/.

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has not been identified, most sources agree that the lionfish population first became established

as a result of aquarium owners releasing several lionfish into the wild after they became too large

for an in-home aquarium, stung their owners, and/or ate the owners’ other aquarium fish.146

It is also possible that lionfish were first released into Florida’s oceans accidentally

during Hurricane Andrew.147 Hurricane Andrew brought violent wind and flooding, which could

have destroyed the homes with aquariums in them.148 If the flooding or wind damage was bad

enough inside a destroyed home with an aquarium, it could have knocked the aquarium over and

released the lionfish, allowing them to swim in the floodwater and reach the ocean. Or, in the

case of an oceanfront home, the tide could have risen to the home itself, which would have given

the lionfish an easy opportunity to swim to open water if the aquarium had spilled.

Unfortunately for aquarium enthusiasts, the probability of a large hurricane making landfall in

Florida again means that prohibiting people, especially those who live in hurricane-prone areas,

from owning lionfish is probably the safest way to keep additional mature lionfish from entering

the waters off of the coast of the southeastern United States.

146Lionfish, ANS TASK FORCE, http://www.anstaskforce.gov/spoc/lionfish.php; Lionfish Invade U.S. Waters, NOAA OCEAN SERVICE EDUCATION, http://oceanservice.noaa.gov/educationn/stories/lionfish/lion02_invade .html; Lionfish Frequently Asked Questions, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/wildlifehabitats/nonnatives/marine-species/lionfish/faqs/.147 Hurricane Andrew occurred in 1992 in the Miami area, where in-home aquariums are not uncommon. Because of the timing and location of Hurricane Andrew and the fact that the first lionfish in the waters near Miami were sighted a few years after the hurricane, it is not illogical to assume that lionfish released during Hurricane Andrew are the cause of the current population. Invasion of the Lionfish, GREEN REEFS, http://www.green-reefs.com/articles/lionfish.html; Lionfish – pterois volians, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/wildlifehabitats/nonnatives/marine-species/lionfish/. Some people have dismissed this theory, but others say it is viable. Mystery of the Lionfish: Don’t Blame Hurricane Andrew, SCIENCE INSIDER, http://news.sciencemag.org/2010/04/mystery-lionfish-dont-blame-hurricane-andrew (Apr. 29, 2010) (citing an interview with Walter Courtney, a fisheries biologist who was the first person to publicly hypothesize that Hurricane Andrew caused the accidental release of lionfish but has since recanted his hypothesis and asserted that people in the aquarium trade probably caused the first release). Even if Hurricane Andrew did not directly cause an in-home aquarium to spill and free its lionfish, the chaos the storm caused may have prompted some aquarium owners to release their fish before the storm hit or in its aftermath. 148 Hurricane Andrew destroyed 25,524 homes and was a Category 4 hurricane when it hit Florida. Hurricane Andrew, UNIVERSITY OF ARIZONA GEOSCIENCES DEPARTMENT, http://www.geo.arizona.edu/~ldix/g256/hurrican es.html.

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Pythons may have also been released into the wild during a hurricane or tropical storm.

Pythons kept in homes as pets may have escaped in the chaos following a storm,149 or may have

been purposefully released by people who could no longer care for them. Although they grow to

be nearly twenty feet long and weigh several hundred pounds as adults,150 most pythons are only

twenty inches long as juveniles,151 which seems like a manageable size and only requires a

moderately-sized tank. Given their ability to escape152 and the amount of space they require when

grown, releasing a large python seems like a rational choice for some snake owners.153

Unfortunately, the purposeful and accidental python releases are probably the cause of the

current invasion and harm to the Everglades,154 so laws prohibiting people from owning them in-

state155 should be upheld.

In light of the “human error” factor, Florida needs laws that limit individual and

corporate ability to bring pythons and lionfish into the state. Additionally, other states will

149 One can imagine that when most families and individuals evacuate their homes in anticipation of a major storm, they do not pack their fifteen-foot python into their car with their family heirlooms and electronics. 150 Burmese Python Fact Sheet, NATIONAL PARK SERVICE, available at http://www.nps.gov/ever/naturescience /burmesepythonresearch.htm. 151Id. The NPS also reports that a twenty-inch juvenile python can be purchased at a flea market for as little as twenty dollars. Id. 152 Python escapes from pet shop and kills two brothers, THE GUARDIAN, (Aug. 6, 2013) http://www.thegua rdian.com/world /2013/aug/06/python-escapes-shop-strangles-brothers (reporting that a python entered an apartment located under a pet shop by pushing the lid off its tank and entering the ventilation system of the building that the apartment and the pet shop shared).153 In recent years, the FWC has sponsored “Pet Amnesty Days,” which are events where people can turn in the snakes they can no longer care for. Exotic Pet Amnesty Day Events, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/wildlifehabitats/nonnatives/amnesty-day-events/. These events have collected hundreds of snakes that probably would have otherwise ended up in the Everglades or on the streets. Id. Because they have been so successful, using federal or additional state funds to continue them and increase the number of events held annually would be worthwhile. 154 Nonnatives – Burmese Pythons, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com /wildlifehabitats/nonnatives/reptiles/burmese-python/. The FWC also hypothesizes that pythons may have escaped from an exotic pet breeding facility that was damaged during Hurricane Andrew. Id. 155 Fla. SB 318 (signed into law Jun. 3, 2010); Greg Burrage, New law makes Burmese python illegal in Florida, ABC Action News, http://www.abcactionnews.com/dpp/news/state/new-law-makes-burmese-python-illegal-in-florida.

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benefit from law that prohibits importing lionfish and pythons into states with climates that could

sustain them.

1. The Lacey Act

Due in large part to the efforts of Senator Bill Nelson, pythons were recently added to the

Lacey Act.156 Named after Senator John Lacey, who proposed the legislation and lobbied

Congress for it during open session, the Lacey Act was signed into law in the year 1900.157 The

Lacey Act was originally designed to stop the spread of mongooses, fruit bats, English sparrows,

and starlings,158 and although the Act’s main text has been amended multiple times since the year

1900, its purpose has always been to give federal authorities a way to stop the spread of species

that pose a risk to domestic interests.159 The Lacey Act includes an Injurious Wildlife List that is

updated regularly, and once a species is on the list, importing or transporting it across state lines

is illegal.160 People or companies caught importing or transporting an injurious species in

violation of the Lacey Act can be held criminally liable161 and also can be fined162 and held

responsible for the cost of the storage, care, and maintenance of any fish or wildlife seized during

the enforcement of the injurious species provisions.163 A species can be added to the list if it

156 18 U.S.C. § 42-4316.157 33 Cong. Rec. 4871 (1900). For a PDF version of the text of the current statute, see Lacey Act, U.S. FISH AND WILDLIFE SERVICE – INTERNATIONAL AFFAIRS, http://www.fws.gov/international/laws-treaties-agreements/us-conservation-laws/lacey-act.html.158 Congress found that all four species were injurious to the agricultural and horticultural interests of the United States, and created the Lacey Act specifically to prohibit them from being imported. 31 Stat. 188 (1900). 159 Robert S. Anderson, The Lacey Act, America’s Premier Weapon in the Fight Against Unlawful Wildlife Trafficking, 16 PUB. LAND L. REV. 27, 29 (1995).160 Injurious Wildlife, U.S. FISH & WILDLIFE SERVICE: FISH AND AQUATIC CONSERVATION, http://www.fws.gov /injuriouswildlife/.161 Where We Stand: The Lacey Act and our Law Enforcement Work, U.S. FISH AND WILDLIFE SERVICE: OPEN SPACES, http://www.fws.gov/news/blog/index.cfm/2011/9/22/where-we-stand-the-lacey-act-and-our-law-enforcement-work (Sept. 22, 2011). Pursuant to 18 U.S.C. § 42(b), the sentence is a maximum of six months imprisonment. 162 18 U.S.C. § 42(b).163 16 U.S.C. § 3374(c).

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endangers the human, agriculture, horticulture, and/or forestry interests of the United States164

and as of the year 2013, the list includes a wide variety of species that are harmful to U.S.

ecosystems, such as bighead carp, black carp, bolga snakes, and walking catfish.165 Burmese

pythons were added to the list along with Northern and Southern African pythons and the yellow

anaconda,166 all of which are classified as “constrictor snakes.”167 Senator Nelson’s office

reported that a “small-yet-powerful lobby of reptile keepers” opposed a congressional ban on the

import and transport of pythons and stalled legislation to that effect.168 Pythons were added to the

Lacey Act despite the opposition from the reptile keepers because the Department of the Interior

has the authority to amend the Injurious Wildlife List without congressional approval.169 As

discussed below, this authority could be used to add lionfish to the list as well.

There is some uncertainty as to whether the Lacey Act’s injurious species provisions

prohibit the import and interstate shipment of dead animals, as the text of the Lacey Act only

refers to dead animals in the context of allowing them to be imported for museums or scientific 164 18 U.S.C. § 42(a).165 Injurious Wildlife, U.S. FISH & WILDLIFE SERVICE: FISH AND AQUATIC CONSERVATION, http://www.fws.gov /injuriouswildlife/. As discussed in the previous section of this paper, some national parks have received earmarked federal funding to help them combat the effects of quagga and zebra mussels, both of which are listed on the Injurious Wildlife List. Based on those examples, it seems that the fact that pythons are included on the Injurious Wildlife List increases the chances of Florida receiving federal funding that can be used to remove the pythons and enforce laws prohibiting import. Adding lionfish to the Injurious Wildlife List could have a similar impact on Florida’s chances of obtaining federal funding to help stem the population’s growth. 166 Salazar Announces Ban on Importation and Interstate Transportation of Four Giant Snakes that Threaten Everglades, U.S. FISH & WILDLIFE SERVICE: INVASIVE SPECIES, http://www.fws.gov/invasives/news.html (Jan. 17, 2012). 167 Id.168 Officials announce end of import and interstate trade of pythons, http://www.billnelson.senate.gov /news/details.cfm?id=335585& (Jan. 17, 2012). Nelson was probably referring to the United States Association of Reptile Keepers (USARK), which is a registered lobbying group. USARK claims to have been responsible for at least eight instances of legislative action or inaction between the years 2008 and 2012. Accomplishments, USARK, http://usark.org/. The exotic pet trade has grown rapidly in recent years and shows no sign of slowing down. Brown, supra note 18, (arguing in favor of more comprehensive federal laws to govern the exotic pet trade, and citing data indicating that in the year 2006 the Miami International Airport was receiving an average of seventy foreign shipments of live animals per day, with some shipments containing thousands of lizards). 169 Salazar Announces Ban on Importation and Interstate Transportation of Four Giant Snakes that Threaten Everglades, U.S. FISH & WILDLIFE SERVICE: INVASIVE SPECIES, http://www.fws.gov/invasives/news.html (Jan. 17, 2012); 42 U.S.C. § 4321 (1988).

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collections.170 Given that the purpose of the Lacey Act’s injurious species provisions is to prevent

the spread of species that cause harm to people in the United States or that endanger the

country’s agricultural, horticultural, and/or forestry interests,171 it seems like transporting dead

lionfish across state lines would not conflict with the Lacey Act’s main goal. The U.S. Fish and

Wildlife Service (USFWS) has used its injurious species regulatory authority to prevent the

import of dead salmon, but this is the only example of the injurious species provision being

applied to animals that are not alive.172 The purpose of preventing the import of dead salmon in

that instance was to ensure that the salmon were not carrying diseases,173 but since lionfish are

not known to carry diseases, there would be no real reason to prevent individuals and companies

from shipping their carcasses across state lines.

In the event that the USFWS formally expands the injurious species provisions to apply

to dead animals, and lionfish have been included on the Lacey Act’s Injurious Wildlife List,

creating a market for lionfish outside of the states where they can be caught would be

impossible.174 The lack of availability of a national market would not prevent lionfish from being

170 18 U.S.C. § 42(a)(4).171 18 U.S.C. § 42(a).172 Kristina Alexander, Injurious Species Listings Under the Lacey Act: A Legal Briefing, CONGRESSIONAL RESEARCH SERVICE PUBLICATIONS (Aug. 1, 2013), available at http://www.hsdl.org/?view&did=745482 (citing 50 C.F.R. 16.11(a) and explaining the various ways the Lacey Act has been expanded and applied since the year 1900). While it is true that the injurious species provisions also prohibit the import and shipment of the eggs of banned species, shipping dead lionfish that happen to have eggs inside of them would not violate the provisions’ purpose, as the eggs are not viable once removed from the warm water reef environment they need to hatch in. Lionfish FAQ’s, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/ wildlifehabitats/nonnatives/marine-species/lionfish/faqs/#native. 173 Kristina Alexander, Injurious Species Listings Under the Lacey Act: A Legal Briefing, CONGRESSIONAL RESEARCH SERVICE PUBLICATIONS (Aug. 1, 2013) available at http://www.hsdl.org/?view&did=745482 (citing a statement from the FWS).174 Popularizing lionfish as a food source has been identified as a plausible way to decrease the number of lionfish on Florida’s reefs, so this legal barrier could hinder removal efforts. Paul Greenberg, Lionfish Invasion: A Guide to Hunting and Fishing, FOOD & WINE MAGAZINE, http://www.foodandwine.com/articles/lionfish-invasion-a-guide-to-hunting-and-fishing; Kerri Kenning, Lionfish Food and Wine Event Held in Key Largo, REEF, http://www.reef.org/enews/articles/lionfish-food-and-wine-event-held-key-largo. As discussed below, it is not clear that the Lacey Act applies to transporting dead animals, and lionfish could still be consumed in the states where they are caught regardless of whether the Lacey Act applies to dead animals.

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consumed in the state where they are caught, however, and the limited geographic availability of

lionfish could be an additional draw for tourists, as lionfish could be advertised as “Only

available in Florida!”175 and become a reason to visit the state. Lionfish are also likely to be

popular among more adventurous eaters, as they seem to have the added “danger factor,”176 much

like blowfish on sushi menus do.177 Additionally, restaurants can market lionfish as a food that

solves a problem because the population’s growth and invasive nature is so well-documented.178

The push for the public to become accustomed to lionfish as a food source is quite

strong,179 although not without its critics. Some people argue that creating a national market for

lionfish could have negative effects, as it could lead to companies attempting to farm lionfish in

areas where they are not already prevalent and accidentally launching another ecosystem-

destroying population boom.180 Additionally, lionfish could become so popular that the lionfish

175 Food producers in other states and regions have had success with this approach. In California, for example, some dairies lack national distributors and advertise their cheese as being only available locally. CACG Cheesemaker and Artisan Dairy Producer Members, CALIFORNIA ARTISAN CHEESE GUILD, http://www.cacheeseguild.org/find_a_cheesemaker. States in the Gulf Coast region, such as Alabama, also promote the availability of fresh-caught, local seafood as a draw for tourists. Famous Food, SWEET HOME ALABAMA, http://alabama.travel/experience-alabama/food#fresh-seafood. 176 Although lionfish meat is not poisonous, the fact that live lionfish can sting people and prey makes lionfish seem risky as a food source. Lionfish FAQ’s, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/wildlifehabitats/nonnatives/marine-species/lionfish/faqs/#native. 177 Blowfish are a delicacy in Asian cuisine, but can be poisonous if prepared improperly. Blowfish meat releases a deadly neurotoxin that can be neutralized by certain types of cooking or by only fileting certain parts of the fish. Blowfish meat is highly regulated for these reasons, but has become popular on U.S. menus in recent years. David Nakamura, The Deadly Blowfish: Last Meal in Tokyo?, THE WASHINGTON POST, http://www.washingtonpost.com/wp-dyn/content/article/2006/07/28/AR2006072800432.html (Jul. 30, 2006); Blowfish Sushi to Die For: Is the Fugu Experience Worth it? [San Francisco], CHOW HOUND, http://chowhound.chow.com/topics/827776 (discussing a San Francisco restaurant that serves a sushi dinner including blowfish, for a price of $280 per couple). 178 Some Florida restaurants are already doing this. See, e.g. Evan S. Benn, Smoked python, lionfish gazpacho on menu at invasive-species dinner, MIAMI HERALD, (May 2, 2013), http://www.miamiherald.com/2013/05/ 02/3376439 /smoked-python-lionfish-gazpacho.html.179 Lionfish derbies sponsored by REEF, for example, always include a demonstration of how to clean, cook, and eat lionfish, and also provide the public with free samples of cooked lionfish. Lionfish Derbies, REEF, http://www.reef.org/lionfish/derbies. Research conducted by scientists from NOAA also indicates that lionfish meat is nutritious and similar to grouper or other flaky whitefish meat in taste and appearance. Dr. James Morris, et. al, Nutritional properties of the invasive lionfish: A delicious and nutritious approach to controlling the invasion, INTERNATIONAL JOURNAL OF THE BIOFLUX SOCIETY, Vol. 4, Issue 1, pages 21-26 (2011). 180 Paul Greenberg, Lionfish Invasion: A Guide to Hunting and Fishing, FOOD & WINE MAGAZINE, http://www.foodandwine.com/articles/lionfish-invasion-a-guide-to-hunting-and-fishing (citing an interview

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populations in remote ecosystems where they have natural predators and play a key role in

sustaining biodiversity become overfished.181 This could cause long-term problems for those

ecosystems, as a nonnative invasive species could move in to fill the gap left by an eradicated

lionfish population.182 Other people dismiss these concerns183 and argue that risks of creating a

national market for lionfish are too remote to be a legitimate concern.184 Other critics point out

that catching lionfish takes more time and skill than catching other types of fish, and that

creating a large market for lionfish will not be cost effective.185

If lionfish were to be included on the Lacey Act’s Injurious Wildlife List, importing them

live into other states would definitely be illegal. The website for Traditional Fisheries, the main

company attempting to generate a national market for lionfish in restaurants, does not indicate

that lionfish are shipped live but instead only indicates that the company ships an order the day

after it is placed.186 If there is no real reason to ship lionfish live, and federal authorities continue

with chef and sustainability expert Barton Seaver). 181 Lionfish are native to an area that spans from Australia and Malaysia in the west, French Polynesia in the east, southern Japan in the north, and south to the Kermdec Islands off of New Zealand. Lionfish Fact Sheet, NOAA HABITAT CONSERVATION, available at www.habitat.noaa.gov/pdf/best...practices/.../Lionfish%20Facts heet.pdf. Lionfish are a crucial part of the ecosystems there, and are not considered to be invasive in those environments. Id.182 Id. See also Matt Miller, Eating Invasives: Delicious or Dangerous?, THE NATURE CONSERVANCY, (May 29, 2012) http://blog.nature.org/conservancy/2012/05/29/eating-invasives-delicious-or-dangerous/. 183 When asked about the potential negative effects of creating a national market for lionfish as a food source, Todd Biologist from the Florida Keys National Marine Sanctuary indicated that he has no concerns about the creation of that market. His comment was that lionfish are unlikely to establish themselves in waters other than the areas they have already entered, as they require a very warm climate to survive. Biologist Interview.184 Dana Kochnower, Like Chilean Sea Bass Without the Guilt (Apr. 18, 2013), http://kochnower.com/blog /tag/lionfish/. 185 A website called “Exotic Meat Market” will sell a customer one lionfish for $29.99, but it appears to be a small retailer, shipping only one fish at a time (as opposed to buying inventory and carrying out its operations in bulk), so its price point may not be reflective of how much lionfish meat would cost elsewhere or for restaurants. Lionfish, http://www.exoticmeatmarkets.com/lionfish.html (last visited Nov. 28, 2013). Information about how much lionfish fillets cost from Traditional Fisheries was unavailable, but an article about a restaurant serving lionfish indicated that a whole, fried lionfish is served with two sides for $12, making its price point comparable to that of grouper. Matt Phenix, Food Watch: Eat the Enemy, CARIBBEAN TRAVEL + LIFE, http://www.caribbeantravelmag.com/articles/food-watch-eat-enemy. As discussed below, Traditional Fisheries is currently working on developing a lionfish-specific trap that would allow for quicker and more cost-effective lionfish harvesting. 186 Buy Fish, TRADITIONAL FISHERIES, http://www.traditionalfisheries.com/buyfish.php. It is likely that lionfish fillets are shipped frozen, like many other types of fish are. See, e.g. Mahi Mahi Fillets, http://www.ig

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focusing the Lacey Act’s injurious species provisions on live animals, then adding lionfish to the

Lacey Act would not prevent people from shipping their meat across state lines for human

consumption.

Even if adding lionfish to the Lacey Act’s Injurious Wildlife List limits the creation of a

national market for lionfish as a food source, the criteria and process for adding a species to the

list indicate that Florida’s chances of getting the Department of the Interior to agree to add

lionfish to the list, and to agree to keep Burmese Pythons on the list, are strong.187 As discussed

below, an alternative to the Lacey Act may be more complicated but might also be a more

appropriate remedy at this time.

2. An alternative to the Lacey Act

In addition to possibly limiting the national market for lionfish, the other major downside

to including lionfish in the Lacey Act is the fact that doing so unfairly deprives people in

landlocked states or states with coastal waters too cold to support a lionfish population188 from

having lionfish in their aquariums. Because the waters off of northern California, for example,

are not tropical and have no coral reefs189 in which lionfish could live and breed, a lionfish

ourmet.com/shoppe/Mahi-Mahi-Fillets-%284-x-6oz%29-by-Rastelli-Foods.asp?src=froogle&gclid=CMjxpZ_ K2LoCFSEV7AodcXoAtQ (indicating that Mahi Mahi Fillets from that company are flash frozen and shipped in dry ice). 187 The USFWS or a petition from the public can start the process of adding a species to the list. Upon receiving a petition, or under its own volition, the USFWS will conduct an evaluation of the risks associated with a certain species. If the evaluation leads the USFWS to conclude that a species is “injurious,” it announces a proposed rule that would add the species to the Lacey Act. The rule is then open for public comment for 30 to 60 days, and then becomes finalized if nothing in the notice and comment process persuades the USFWS to decide differently. Injurious Wildlife: A Summary of the Injurious Provisions of the Lacey Act, U.S. FISH AND WILDLIFE SERVICE, available at http://www.fws.gov/contaminants/ANS/pdf_ files/InjuriousWildlifeFactSheet2007.pdf. The federal government’s own research into the gravity of the threat lionfish pose indicates that the threat is serious, so the standard for “injurious” is very likely to be met. Lionfish, ANS TASK FORCE, http://www.anstaskforce.gov/spoc/lionfish.php. 188 Lionfish Fact Sheet, NOAA Habitat Conservation, available at www.habitat.noaa.gov/pdf/best...prac tices/.../Lionfish%20Factsheet.pdf. 189 Water Temperature Table of the Central Pacific Coast, NOAA NATIONAL OCEANOGRAPHIC DATA CENTER, http://www.nodc.noaa.gov/dsdt/cwtg/cpac.html (indicating that most northern and central California coastal waters have an average monthly temperature of 56-69 degrees Fahrenheit).

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escaping or being released from an aquarium in that area would have no negative effects on the

local ecosystem. Lionfish are beautiful and make a nice addition to a large in-home or corporate

aquarium, so the benefits of allowing them in states where they do not pose a threat to the local

ecosystem are definitely identifiable. Prohibiting lionfish in all fifty states also hints at the

federal overreach some states’-rights advocates are concerned about and seems like too broad of

a solution.190 It is for these reasons that a tailored alternative to the Lacey Act, in the form of a

regional191 ban on the import and transportation of lionfish, could be a more appropriate way to

keep additional lionfish out of Florida.192

Regional and single-state bans on certain items are not unheard of in areas outside the

arena of environmental law and are actually quite common when some states have stricter laws

regarding drugs and alcohol than others do. For example, some states prohibit the sale of a

single, handheld, commercially bottled, container of beer or malt beverage measuring forty 190 Groups lobbying for the rights of reptile owners when Burmese pythons and three other types of constrictor snakes were added to the Lacey Act made a similar argument, asserting that the national ban was too broad when not all ecosystems could support a python population and not all snake owners are irresponsible. Python Update, UNITED STATES HERPETOCULTURE ALLIANCE, http://usherp.org/tag/lacey-act/ (Jun. 7, 2013); Emily Yehle, Endangered Species: Panel to discuss plan to bypass NEPA reviews when banning animal imports, http://usark.org/wp-content/uploads/2013/09/9.16.13CatXannouncement.pdf (Sept. 16, 2013). Despite these arguments, this paper asserts that adding pythons to the Lacey Act was a reasonable solution because pythons pose a risk to human life. Lionfish will inflict a painful sting if attacked, but are not deadly. Danger Surrounding Venomous Lionfish Sting, LIONFISHHUNTERS.ORG, http://www.lionfishhunters.org/Dan ger.html. Because lionfish are not deadly, the human safety justification for adding them to the Lacey Act is not as strong as it is for pythons. 191 Because it is difficult, if not impossible, to determine where exactly a lionfish came from once it is in the waters off of southern Florida and the water inhabited by lionfish runs along the coastline of several states, cooperation from other states with coastlines in the Southeast would be essential. For example, if Georgia and South Carolina refuse to ban the import of lionfish, lionfish owners there could continue to release lionfish into the Atlantic. During the warm summer months when the Gulf Stream is favorable, the lionfish released in that area could migrate to the Florida Keys and/or lay eggs that grow into lionfish that could migrate. Interstate compacts are not always easy to enact and enforce, however, so a federal ban on importing lionfish into all states could be a simpler way to make sure that no new lionfish enter these waters. 192 Despite the Dormant Commerce Clause, a regional ban on the import and interstate transport of lionfish would not run afoul of the U.S. Constitution if it were drafted in a way that specifically showed an intent to curtail the lionfish population’s harm to Florida’s ecosystem, and not in a way that showed a desire to limit trade arbitrarily or give lionfish distributers located in Florida an unfair advantage in the marketplace. Laura T. Gorjanc, Combating Harmful Invasive Species Under the Lacey Act: Removing the Dormant Commerce Clause Barrier to State and Federal Cooperation, 16 FORDHAM ENVTL. L. REV. 111, 136-40 (2004) (reviewing federal court rulings on environmentally-motivated state laws banning import and transport of certain species, and identifying the characteristics of laws the federal courts uphold).

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ounces or larger, whereas other states allow it.193 Similarly, and more analogous to a regional ban

on lionfish, is Dade County, Florida’s ban on the sale or possession of pit bulls.194 Pit bulls are

allowed in most other parts of Florida195 and in at least some capacity all fifty states,196 but were

viewed by Miami lawmakers as worthy of a ban because they can be vicious and were becoming

a major threat to the city’s residents and other wildlife.197 The existence of state-specific and

county-specific bans in Florida shows that lawmakers are familiar with those types of laws and

that a statute banning possession of live lionfish in the state would be possible, although not

necessarily popular among all voters.198

Alternatively, the FWC may be able to use its rulemaking authority199 to enact a

regulation banning the import, sale, and possession of lionfish in the state.200 The regulation

193 Maria Murriel, Florida Representative Wants to Let You Drink 40’s at the Brew Pub, SOUTHFLORIDA.COM, http://www.southflorida.com/restaurants-and-bars/the-lush-life-blog/sf-florida-legislature-40-oz-growlers,0,2068381.story (Feb. 18, 2013) (indicating that drinks packaged in this manner are allowed in Illinois and most other states, but not allowed in Florida as of the year 2013).194 Section 5-17.1 of the Code of Metropolitan Dade County, Florida. 195 Colleen Lynn, The Front Burner: Banning pit bulls saves lives and protects the innocent, ORLANDO SENTINEL (May 24, 2013), http://articles.orlandosentinel.com/2013-05-24/news/os-ed-front-burner-pit-bulls-pro-20130523_1_pit-bulls-vicious-dogs-many-dogs (arguing that, although most Florida counties do not have a pit bull ban similar to the one in Dade County, public health and safety would benefit if all counties followed Dade County’s lead).196 Pit Bull Bans: The State of Breed-Specific Legislation, ANIMAL LEGAL DEFENSE FUND, http://aldf.org/press-room/press-releases/pit-bull-bans-the-state-of-breed-specific-legislation/ (Jul. 31, 2009).197 Elinor J. Brecher, In Miami-Dade, Pit Bulls Remain Illegal, MIAMI HERALD, http://www.miamiherald.com /2012/08/13/2951979/pit-bulls-remain-illegal-in-miami.html (Aug. 15, 2012) (indicating that recent efforts to repeal the ban, which has been in place for 23 years, failed).198 The ban on owning pit bulls is highly criticized by people who assert that they are responsible enough to care for the dogs and prevent injury. Id. A ban on owning lionfish would likely be met with similar criticisms, as not every lionfish owner would be tempted to release his or her lionfish into the wild or buy the type of aquarium that would break during a hurricane. A new ban on owning lionfish and a continued ban on owning pythons are also likely to be opposed by groups such as the Pet Industry Distributers Association and the Pet Industry Joint Advisory Council, which “wield enormous lobbying power,” and have helped block proposed legislation that would have required people to obtain permits before buying dangerous snakes and other animals that have the potential to become invasive if released into a U.S. ecosystem. Brown, supra note 18 at 717. These groups certainly have a strong interest to protect, as the aquarium industry is estimated to be worth over $1 billion and estimates indicate that eleven million reptiles were owned as pets as of the year 2005. Id.; E.J. Livengood and F.A. Chapman, The Ornamental Fish Trade: An Introduction with Perspectives for Responsible Aquarium Fish Ownership, UNIVERSITY OF FLORIDA IFAS EXTENSION, http://edis.ifas.ufl.edu/fa124.199 Art. IV, § 9, Fla. Const. 200 As discussed in Part I of this paper, the F.A.C. already has one provision pertaining to lionfish. Rule 68B-5.006, “Lionfish,” F.A.C. (2013), allows all divers in Florida to hunt for lionfish, using certain types of gear in

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would be codified in the Florida Administrative Code and have force of law, provided that it was

announced and open for public comment for the required amount of time.201 Pet store owners or

other people interested in continuing the lionfish trade could challenge the rule at an

administrative hearing, which could lead to the regulation being overturned or Administrative

Law Judges granting exceptions to it on a case-by-case basis.202 This would defeat some of the

purposes of a uniform, state-wide ban,203 which is why legislation codified as a Florida Statute

would be preferable in the event that lionfish are not included in the Lacey Act.

Regardless of whether Florida agencies or individuals petition the USFWS to add lionfish

to the Lacey Act204 or Florida lawmakers choose to enact a state-wide or regional ban, the

educational factor is key to enforcing whichever law is adopted. If the public is aware of the

harms associated with allowing the lionfish population to grow, private citizens will be more

likely to assist with lionfish removal efforts and/or report people who release lionfish into the

wild.205

Part V – Conclusion

all areas aside from designated “no-take” zones, without a permit. This rule could be amended to include a ban on bringing lionfish into the state and possessing live lionfish, or a new rule could be created.201 § 120.54, Fla. Stat. (2013); About the Rulemaking Process, FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, http://myfwc.com/about/rules-regulations (explaining the rulemaking process and citing the requirements of Chapter 120, Florida Statutes). 202 This process is authorized by § 120.56, Fla. Stat. (2013).203 A uniform, state-wide ban would arguably be easier for the public to understand and follow than a patchwork of decisions from the Department of Administrative Hearings (DOAH) and state appellate courts. For an example of the confusion and lengthy appeals process that can result from courts overruling administrative rules (and the laws that contradict them), see Judge overturns fishing net ban, PENSACOLA NEWS JOURNAL (Nov. 7, 2013), http://www.pnj.com/article/20131108/SPORTS05/311080006/ (reporting on a series of lawsuits, rulemakings, and court decisions pertaining gill net fishing in Florida). 204 The USFWS or a petition from the public can start the process of adding a species to the list. Injurious Wildlife: A Summary of the Injurious Provisions of the Lacey Act, U.S. FISH AND WILDLIFE SERVICE, available at http://www.fws.gov/contaminants/ANS/pdf_ files/InjuriousWildlifeFactSheet2007.pdf. Upon receiving a petition, or under its own volition, the USFWS will conduct an evaluation of the risks associated with a certain species. Id. If the evaluation leads the USFWS to conclude that a species is “injurious,” it announces a proposed rule that would add the species to the Lacey Act. Id. The rule is then open for public comment for 30 to 60 days, and then becomes finalized if nothing in the notice and comment process persuades the USFWS to decide differently. Id. 205 As discussed in Part III of this paper, educational programs could be funded through a federal grant.

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Recent reports of the harm lionfish and pythons have caused to the ecosystems they have

invaded indicates that some of Florida’s most valuable natural resources are at risk. The lionfish

invasion is already predicted to be the worst aquatic invasive species boom in history,206 and

Floridians cannot afford to stand idly by and let the prediction come true.

Federal spending has generally become more limited in recent years207 as the American

public calls for a smaller budget, but targeted grants and earmarked environmental conservation

funds show no immediate signs of tapering off if the cause is worthy. Florida will especially

benefit from using the funds to foster increased public awareness of the damage the lionfish and

pythons are causing and to continue and expand programs like the Python Patrol, lionfish

derbies, and Pet Amnesty Days, as these projects have proven to be a way to remove these

species and prevent them from entering the ecosystems.

Pythons slithered their way into the hearts of exotic pet lovers and back out to a delicate

ecosystem, while lionfish that once dazzled aquarium owners with their beauty are now

destroying the equally beautiful coral reefs. The benefits of allowing pythons and lionfish in

private homes are far outweighed by the problems they are causing in the wild, problems that

will only get worse in the future. Now is the time to act to save Florida’s economy, ecosystems,

and protected lands.

206 Pterois volitans, USGS NONINDIGENOUS AQUATIC SPECIES, http://nas.er.usgs.gov/queries/factsheet.aspx?spe ciesid=963.207 Charts of Recent Spending, USGOVERNMENTSPENDING.COM, http://www.usgovernmentspending.com/recent _spending.

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APPENDIX A

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Worse than the Tourists 41

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