At the request of the National Aquaculture Association (NAA), the National Agricultural Law Center (NALC) examined Endangered Species Act (ESA) case law to describe the effects on a farm when a species is listed “wherever found” versus for all or parts of the natural range of an at-risk animal.

Why did we ask this question?

A pending ESA listing of sturgeon species is about to put numerous American sturgeon farmers out of business! NAA has been advocating for years for a sensible decision making that provides a captive-bred exemption to ESA listings or lists species only in their native ranges. Domesticated, non-native species being produced in captivity should not be prohibited from culture in U.S. This is not just a sturgeon farmer issue, and a precedent setting policy change is needed to protect future American farmers from similar threats.

During August 2022, the NAA submitted a comment letter to the U.S. Fish and Wildlife Service opposing the listing of foreign sturgeons farmed in the United States. We pointed to Section 4 of the Endangered Species Act in which Congress directed the Service as to how they are to list a species (emphasis added):

“Section 4 (c): LISTS.—(1) The Secretary of the Interior shall publish in the Federal Register a list of all species determined by him or the Secretary of Commerce to be endangered species and a list of all species determined by him or the Secretary of Commerce to be threatened species. Each list shall refer to the species contained therein by scientific and common name or names, if any, specify with respect to each such species over what portion of its range it is endangered or threatened, and specify any critical habitat within such range.”

We suggested the plain reading of the Act directs the agency only to list foreign sturgeons for their native range and as a result, the prohibitions associated with a listing for natural ranges would not apply to U.S. farmed sturgeons.

How are species listed?

In the majority of instances, endangered and threatened species are listed as “wherever found” within Title 50, Chapter 1, Subchapter B, Part 17, Subpart B, §17.11(h).

What does this mean?

Apparently, no one has questioned the agency’s practice of listing a species for wherever it is found.  In response to our query to the NALC author, they reported they did not find any case law addressing the scope of authority granted to FWS by Congress.

Read NALC’s full analysis here: Ag & the ESA: When a Species is Listed "Wherever Found"

What is the NAA doing?

We are not an injured party and cannot file a legal challenge; however, we have asked the U.S. Fish and Wildlife Service to provide the legal basis for listing species “wherever found” and requested the House Natural Resources Committee and Senate Environment and Public Works Committee investigate this question.

For additional farmer oriented Endangered Species Act information from the NALC, please click on ESA-Manual.pdf (nationalaglawcenter.org).

Contact NAA anytime to learn more about this important topic: naa@nationalaquaculture.org