ESA

IS IT ILLEGAL TO BUY OR SELL SAWFISH SNOUTS?

I am often asked whether buying, selling, or owing sawfish snouts in the United States is now illegal under the Endangered Species Act (ESA). Only rostra from the protected species, Pristis pectinata, are prohibited. Many of the rostra offered for sale in the U.S. come from this species (imported snouts are less common), so many sawfish snouts on the market today are prohibited from purchase and sale. Only a handful of shark biologists can tell the difference between sawfish species based solely on the snout, so to avoid any potential problems, do not buy or sell any sawfish snouts in the United States.

Note that ESA rules have traditionally been enforced as general intent offenses, meaning that the offender does not have to know that they are selling/buying an endangered species, only that they are selling/buying the object itself. Thus, if you buy or sell an endangered sawfish rostrum, it is no defense that you did not know it was endangered. See United States v. Nguyen, 916 F.2d 1016 (5th Cir. 1990) and United States v. Ivey, 949 F.2d 759 (5th Cir. 1991)

Also, even though the statutes prohibit purchase or sale in “interstate commerce,” do not assume that possession or sale is safe if it occurs within a single state. The courts have interpreted “interstate commerce” very broadly, finding that activities violated interstate trade simply because the activity is harmful to the listed species. In United States v. Bramble for example, a man was convicted for possession of bald eagle feathers obtained within the state. This conviction was upheld because possession alone was deemed to impact interstate commerce because the extinction of a species constituted damage to interstate trade. United States v. Bramble, 103 F.3d 1475 at 1481 (9th Cir. 1996).

PROHIBITED ACTIVITIES

On April 1, 2003, the National Marine Fisheries Service (NMFS) and the National Oceanic and Atmospheric Administration (NOAA) published their final determination, listing the United States population of smalltooth sawfishes as an endangered species. 68 F.R. 15674-01. According to this document, the listing became enforceable as of May 1, 2003.

Under the statutes and implementing regulations of the ESA, it is now illegal to:

(1) Possess, deliver, receive, carry, transport, or ship in interstate or foreign commerce any smalltooth sawfish part when the sawfish was taken illegally (e.g. after May 1, 2003)

(2) Deliver, receive, carry, transport, or ship in interstate or foreign commerce any smalltooth sawfish part commercially, even if the sawfish was caught before the ESA listing

(3) Import or export any smalltooth sawfish part to or from the United States

(4) Sell or offer for sale in interstate or foreign commerce any smalltooth sawfish part less than 100 years old

Most likely NOT prohibited under the ESA would be:

(1) Continued possession of smalltooth sawfish parts as long as the parts were in possession at the time of the ESA listing (with proper documentation concerning pre-listing possession)

(2) Non-commercial import or export of parts in possession at time of listing

(3) Selling or offering for sale in interstate or foreign commerce any smalltooth sawfish part over 100 years old (with proper documentation proving age)

The above is listed as advice and opinion only. I am not an expert on U.S. wildlife law. For any specific questions please contact the appropriate governmental agency:

NOAA

NOAA Sawfish