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When Aliens Invade: Regulating the Release of Exotic Species Through the "Takings Clause" of the Endangered Species Act

August 2003

Citation: ELR 10583

Author: Amy J. McMaster

In May 2002, biologists made a surprising discovery—snakehead fish had proliferated in a small pond in Crofton, Maryland.1 Snakeheads are a native fish of China and Korea, capable of tolerating extreme environmental conditions.2 They are also fierce predators with the ability to disrupt native ecosystems through predation and competition.3 Immediately, concern arose over the presence of the snakeheads in Maryland due to their non-native status and highly invasive tendencies. Most alarming, however, was the possibility that the snakeheads, capable of walking up to four days across land, would leave the self-enclosed pond and find their way to a river or other large water body. Their impact upon local ecosystems would be devastating.4

The possession of snakehead fish was illegal in 13 states, but at the time the snakeheads were discovered in Maryland, neither Maryland, Virginia, nor the District of Columbia had laws prohibiting it.5 New regulations published in the Federal Register have since made it illegal for anyone to be in possession of a snakehead fish, with fines for transporting the fish across state lines being set at $ 5,000.6 Released by a local Maryland resident, the number of snakeheads living in the Crofton pond increased dramatically in the two years that followed.7 Fearful of delay, scientists decided to poison the pond as an extreme, but hopefully thorough, means of eradicating the invasive snakehead fish from U.S. waters.8 The difficult decision to poison the pond seemed justified, however, when over 800 dead snakehead fish were recovered.9 The scientific community breathed a little easier, knowing that the threat of at least one invasive species had been successfully eliminated by their creative and diligent efforts. That was, at least, until a local fisherman caught a three-foot long snakehead in the Baltimore Harbor a few weeks later.10

The author is an Expected Associate, 2003, Venable, L.L.P., Washington, D.C. She received her J.D. 2003, William and Mary School of Law; B.S. 2000, with distinction, University of Victoria, Canada. For helpful comments and suggestions, thanks to Linda Malone, Ronald Rosenberg, Elizabeth Vickery, and Sandra Zellmer. The opinions expressed in this Article are personal to the author and do not reflect the opinion of Venable, L.L.P.

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