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June 17, 2021

Marine Fish as Wildlife: The Danger of a Disaggregated Approach

The legal definition of “wildlife” can mean the difference between protection and vulnerability. In this blog, Senior Staff Attorney Nick Fromherz and Clinical Professor Erica Lyman argue that the definition should be expanded to give marine fish and other species the protection they deserve.
  • A scalloped hammerhead shark swims over the active reef in Cocos Island, Costa Rica
    iStockphoto

“Wildlife” is a simple word subject to manifold interpretations. Some dictionaries define the term narrowly to refer only to animals. Others stretch the term—appropriately, in our view—to cover plants and all other “living things that live in the wild.”

As a matter of sheer semantics, the precise meaning of “wildlife” may seem petty or unimportant. A careful speaker can always clarify the intended meaning with a few extra words. But as a matter of law, the definition of “wildlife” can mean the difference between protection and vulnerability.

Historically, in many countries, an entire category of wild fauna has been exempted from the legal regime governing wildlife. We’re talking about fish—and especially marine fish. Based upon the mistaken belief that marine fish were an inexhaustible “resource”—a myth happily exploited by one of the first truly global industries—many countries adopted laws and policies that segregated fish from the framework governing other wild fauna. At its worst, this meant (and often still means) an approach designed to maximize commercial extraction of fish, even when those fish were on a path to extinction.

The legacy of this bifurcated approach is now rearing its head in Costa Rica. On May 17, Costa Rica’s National System of Conservation Areas issued a Resolution listing, among other species, three species of hammerhead sharks, three species of thresher sharks, and the silky shark as endangered under the country’s Wildlife Conservation Law. This should mean that all commercial exploitation of these sharks is illegal.

Nevertheless, local groups are concerned that a previous decree—issued only three months before the May 17 resolution—continued to echo the refrain that sharks are species of “fisheries interest” rather than “wildlife” per se. Even if these concerns do not reflect a genuine legal problem, they remain more than valid as a matter of governance and sound policy.

More fundamentally, it is high time that governments around the world abandon disaggregated approaches to wildlife. Marine fish and other species of commercial interest have been sidelined from important protections for far too long.

Nick Fromherz is a senior staff attorney at the Global Law Alliance. Previously, Nick served as a Visiting Assistant Professor, teaching courses within Lewis & Clark’s Environmental, Natural Resources, and Energy Law program. Since 2015, Nick has taught Administrative Law at Lewis & Clark Law School during several summer sessions. Combining this experience with his considerable time living and working in Latin America, Nick expands the Global Law Alliance’s footprint in the Americas while building on its international wildlife practice. 

 

Erica Lyman is the Director of the Global Law Alliance for Animals and the Environment (the Global Law Alliance), a collaboration between CALS and the #1 ranked Environmental Law Program at Lewis & Clark Law School. She is a Clinical Professor of Law at Lewis & Clark Law School. Erica’s practice has included 15 years of work advocating for wildlife within the Convention on International Trade in Endangered Species of Wild Flora and Fauna and work on-the-ground to stop wildlife trafficking.

 

The Center for Animal Law Studies (CALS) was founded in 2008 with a mission to educate the next generation of animal law attorneys and advance animal protection through the law. With vision and bold risk-taking, CALS has since developed into a world-renowned animal law epicenter, with the most comprehensive animal law curriculum offered anywhere. In addition, CALS is the only program that offers an advanced legal degree in animal law (both in person and online) and three specialty Animal Law Clinics. In 2020, CALS launched the Global Law Alliance for Animals and the Environment, as champions for wild animals and wild spaces, in collaboration with Lewis & Clark Law School’s #1 ranked Environmental Law Program. CALS is a fully self-funded nonprofit organization operating under the Lewis & Clark College 501(c)(3) tax-exempt status, and is only able to provide these educational opportunities through donations and grants.