United States v. Taylor, Crim. No. 83-00004-B.

• Decision Date: 25 April 1984
• Docket Number: Crim. No. 83-00004-B.
• Citation: 585 F. Supp. 393
• Parties: UNITED STATES of America v. Robert J. TAYLOR, Defendant.
• Court: U.S. District Court — District of Maine

585 F. Supp. 393

UNITED STATES of America v. Robert J. TAYLOR, Defendant.

Crim. No. 83-00004-B.

United States District Court, D. Maine.

April 25, 1984.

Richard S. Cohen, U.S. Atty., F. Mark Terison, Asst. U.S. Atty., Portland, Maine, for the U.S.

E. Paul Eggert, Portland, Maine, for defendant.

RULING ON MAGISTRATE'S REPORT AND RECOMMENDED DECISION

CYR, Chief Judge.

The defendant¹ has been charged in a two-count indictment² alleging violations of 16 U.S.C. §§ 3372 and 3373, also known as the Lacey Act Amendments of 1981, which make it a federal offense for any person "to import, export, transport, sell, receive, acquire or purchase in interstate ... commerce (A) any fish or wildlife taken, possessed, transported, or sold in violation of any law ... of any State...." 16 U.S.C. § 3372(a)(2). The relevant state statute, 12 M.R.S.A. § 7613, provides that "a person is guilty of importing live bait if he imports into this State any live fish, including smelts, which are commonly used for bait fishing in inland waters."

The defendant moved to dismiss the indictment on the ground that section 7613 places an impermissible burden on interstate commerce in violation of the Commerce Clause of the United States Constitution.

After a hearing on defendant's motion, which included extensive expert testimony, the Magistrate recommended that the motion be denied. Finding that the Lacey Act Amendments do not insulate section 7613 from constitutional attack³ and applying the balancing test set out in Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979),⁴ the Magistrate concluded that, although facially discriminatory, section 7613 serves a legitimate local interest and that the state had demonstrated that there are no feasible alternative means for promoting the state's interest in preserving its wild fish population short of the outright ban imposed by section 7613.

Defendant raises two objections to the Magistrate's report and recommended decision.⁵ First, defendant contends that the Magistrate erred in finding that section 7613 serves a legitimate local interest. Second, defendant argues that the record clearly establishes the feasibility of less discriminatory alternatives which would adequately safeguard the state's purported interest.

Although a state's interest in conservation and protection of wild animals is a legitimate local purpose, similar to the state's interest in protecting the health and safety of its citizens,⁶ where a state regulation facially discriminates against interstate commerce, as here, "such facial discrimination invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of non-discriminatory alternatives." Hughes v. Oklahoma, 441 U.S. at 337, 99 S.Ct. at 1737.

At the hearing before the Magistrate the Government argued that section 7613 serves two important state interests: controlling the spread of disease among Maine's wild fish population, and preventing the introduction of exotic species of fish into the State of Maine. Tr. 12.

In support of its assertion that imported bait fish, especially golden shiners, pose a serious threat to the indigenous wild fish population, the state identified three particular parasites which might be found in imported bait fish. The first, capillaria catastomi, is a small round worm which embeds itself in the lining of the gut of the host fish and causes enteritis, an inflammation of the intestinal lining of the fish. Tr. 14-15. According to the fish pathologist for the Maine Department of Inland Fisheries and Wildlife (Fisheries), this particular parasite is not native to the State's wild fish population but first began to appear in the winter of 1983, probably as the result of illegal fish importation. Tr. 15-16. The Fisheries expert stated that this parasite presents a debilitating disease which slows the growth of the fish and in some cases is serious enough to kill the fish. Tr. 15. This particular parasite was found to exist in low to moderate numbers in the shipment of golden shiners seized from the defendant. Tr. 16.

The defendant's expert testified that capillaria catastomi is not unique to golden shiners and that, at least according to a colleague, it is debatable whether the parasite is a true pathogen. Tr. 111-112. Defendant's expert testified that, at least in the environment of commercial bait fish hatcheries, this parasite is most commonly associated with malnutrition and that it is the malnutrition, and not the parasite, which causes the problems of stunted growth in bait fish. Tr. 118, 136. He also stated that this parasite would not affect wild fish to the degree it affects hatchery fish, because hatchery fish are generally more susceptible to disease, due to their close proximity during spawning. Tr. 137.

The second parasite, pleistophora ovariae, is a disease organism which destroys the ability of female fish to reproduce. Tr. 17. The Fisheries expert testified that in commercial hatcheries in the southeastern United States, where this organism is present, there has been an effect on the brood stock. While he was not aware of any studies confirming or denying the parasite's impact in the wild, the Fisheries expert did express the opinion that it would have a negative impact on the wild golden shiner population because the biology of the Maine golden shiner is different from its southern counterpart. Tr. 17-18. The expert also observed that golden shiners are the most intensely cultivated of all bait fish and that it is the golden shiner which is most often shipped to the northeast from the commercial hatcheries in the south.⁷ Id. This organism has never been detected in Maine's wild fish population, but was found in some of the seized fish. Tr. 19.

The defendant's expert testified that pleistophora ovariae is strictly a commercial hatchery problem and that while it was possible that it could be transmitted into the wild fish population, an area he had not researched, he did not believe the organism presented any danger. Tr. 107-108, 133.

The third, and apparently most destructive, parasite, bothriocephalus opsalichthydis, more commonly referred to as the Asian tapeworm, embeds itself in the lining of the intestine and prevents the fish from digesting its food. It is often fatal to the host fish. Tr. 19-20. The Fisheries expert testified that this tapeworm has never been detected in Maine's wild fish population and was not present in defendant's shipment, though he stated that he did find it in a fish examined at a local bait store. Tr. 21-22. He also stated that, because this parasite is not host-specific, it could certainly have potentially adverse effects on the entire wild fish population. Id.

Reiterating his position that the Asian tapeworm, like the other parasites, does not present a serious problem, defendant's expert noted that once the tapeworm enters a fish population, and despite a certain mortality rate among the fish, there is little impact after this initial exposure. Tr. 119. At least in commercial hatcheries, defendant's expert stated that the tapeworm is apparently present only where grass carp are also present but that the presence of the carp does not automatically mean that the tapeworm will be found. Tr. 120. He also observed that the greatest danger to salmonids, i.e., salmon, trout and other cold water fish, is not pathogens transmitted by warm water bait fish but those transmitted by salmonids. Tr. 123.

Another asserted state purpose served by section 7613 is the state's interest in preventing the introduction of exotic, or nonindigenous, species into Maine.⁸ The Fisheries expert testified that Maine occupies a unique position, in that it has a very limited native wild fish population. Accordingly, the introduction of exotic species would alter the existing environmental balance by increasing competition for food and habitat, as well as in other ways which cannot be accurately predicted.⁹ Tr. 30, 71-74. He also testified that in the past seven years, seven new species of fish have been introduced into Maine waters, in his opinion the result of illegal smuggling. Tr. 30. When the Fisheries Department has introduced new species, it is done only after extensive research and some understanding of the effects the fish will have on the environment. Tr. 40-41.

Another expert testifying for the Government also noted that Maine is unique, especially for its landlocked salmon fishery. Tr. 68-69. He observed that, given the low fish and food productivity of Maine lakes, introduction of new species of fish would severely tax existing food supplies and upset the environmental balance. Tr. 69, 71.

In finding that the Government had demonstrated a significant local interest, the Magistrate concluded and the Court agrees, that the fact that the experts disagree on the seriousness of the parasites and the concomitant danger posed by their introduction into the state, and that it is impossible to predict the long term adverse consequences of exotic species, is not sufficient to taint the legitimacy of the state's interest in excluding them. The Magistrate correctly observed that the constitutional principles underlying the commerce clause cannot be read as requiring the State of Maine to sit idly by and wait until potentially irreversible environmental damage has occurred or until the scientific community agrees on what disease organisms are or are not dangerous before it acts to avoid such consequences.

The Court is mindful that the defendant's expert testified that the disease organisms identified by the Fisheries expert, as well as other organisms associated with warm water bait fish, are not considered as serious or of the same magnitude as disease organisms found in cold water fish, which are listed as "reportable diseases." Tr. 106-107, 139. However, the record shows that even as to these "reportable diseases" in cold water fish, the scientific...