Shovelnose sturgeon protection upheld on “similarity of appearance” grounds

The U.S. District Court for the District of Columbia — Judge James E. Boasberg, that is — has upheld protections for the shovelnose sturgeon because it looks so much like the pallid sturgeon, which is listed as endangered (Illinois Commercial Fishing Association v. Salazar, 10-1642 JEB, D.D.C.).

The Fish and Wildlife Service listed the shovelnose as threatened partly on the basis that it looked so much like the endangered pallid sturgeon.

The judge said that listing the shovelnose as threatened is justified to protect the endangered pallid.

“Scientific studies indicate that pallid sturgeon are, in fact, being taken by shovelnose fisherman in areas that both species inhabit,” Boasberg said.

It’s not easy to tell the difference between the two fish.

The judge said that even “fish biologists and commercial fishermen – both of whom have more specialized knowledge of fish species than enforcement personnel — have trouble distinguishing between the shovelnose sturgeon and pallid sturgeon.”

Here are some excerpts, in no particular order:

“If trained fish biologists struggle to distinguish between the shovelnose and pallid sturgeon – even when aided by scientific tools designed specifically for that purpose – it is certainly reasonable to infer that enforcement personnel will have at least as much (and probably more) trouble doing so. Unlike fish biologists and commercial fishermen, the agents who enforce the ESA do not focus on fish, let alone a particular species of fish. Rather, they are responsible for enforcing ESA protections for all listed species within their jurisdiction, from plants and birds to reptiles and mammals.”

“The second criterion for listing a species as threatened or endangered under the similarity-of-appearance provision is that enforcement personnel’s “substantial difficulty” poses an additional threat to an endangered or threatened species. See 16 U.S.C. § 1533(e)(B). This requirement is met here because the evidence in the record demonstrates that (1) take of pallid sturgeon incident to commercial shovelnose-sturgeon fishing is a threat to the pallid sturgeon, and (2) the inability to effectively enforce the ban on taking pallid sturgeon allows fishermen to take the endangered fish with impunity, rendering the ban futile.”

“As discussed in Section III.A.2, supra, a prohibition on the take of shovelnose sturgeon substantially advances law-enforcement efforts to protect the pallid sturgeon. It eliminates the difficult law-enforcement task of attempting to distinguish between the species. In addition, it facilitates prosecution of poachers who might otherwise be able to avoid punishment by arguing that they reasonably believed they had lawfully taken a shovelnose sturgeon.”

“Listing the shovelnose as a threatened species under the similarity-of-appearance provision also furthers the ESA’s goal of conserving the endangered pallid sturgeon. Scientific studies indicate that pallid sturgeon are, in fact, being taken by shovelnose fisherman in areas that both species inhabit. For instance, scientists have observed a large difference in the mortality rates and maximum ages of pallid sturgeon in areas with commercial shovelnose harvest compared to those without. See AR 70 (observed mortality rate of 37-39% in areas with commercial shovelnose-sturgeon harvest compared to 12% mortality rate in areas without); see also AR 2982-84 (study finding difference in age classes between areas with commercial shovelnose harvest and without); AR 93 (published study noting that “current recovery efforts underway for the endangered pallid sturgeon may be jeopardized” by commercial shovelnose fishing); AR 3030 (study stating that “[i]ncidental and illegal harvest of pallid sturgeon has been documented in the Mississippi River, and this may be a significant impediment to survival and recovery of the species in some portions of its range”) (internal citations omitted).”