25 replies to this topic

[jonandrewslaw]

In constitutional law, overbreadth is the term used to invalidate a law the makes more illegal than needs to be made illegal. 

For example, the State has an interest in the environment and should protect it against the introduction of non-native species. Therefore, the banning of releasing live fish into the Commonwealth is a valid regulation. However, the State has no interest or right to regulate the keeping of common fish in an aquarium, where escape is not possible. Further, there is a fundamental constitutional right to be "left alone". I can not imagine such a regulation surviving a constitutional challenge. Interestingly, the statute cites the well being of the fish as one of the State's interests. I would love to hear them argue, before a judge, how the well being of native fish is a concern, but not the well being of tropical fish. Its a farce and Masswildlife should be ashamed.  

Twenty years ago, I asked two Massachusetts Environmental Police about keeping non-game fish in an aquarium. They both laughed, and one said, "We have not reached the point where we are worried about that stuff yet." Two years ago I asked another EPO the same question. He said, "How many EPOs see your fish tank?"   

All three Environmental police officers were on the ball. I wish Masswildlife was on the ball as well. They should focus on rare species, the environment, the regulation of game species, and preventing the introduction of invasive species and regulations that prevent aquaist from keeping and enjoying native fish in an aquarium do not. People should be encouraged to pursue such interests and cultivate interest in the environment.  

[gerald]

Thanks for your perspective Jon, and its good to have an aquarium-hobbyist/lawyer on board here.  States periodically have open comment periods when fish & game regulations are being revised, and I can envision you being helpful in bouncing around ideas for sensible regulations to suggest to the agencies.  Having said that, NANFA is also strict about complying with existing regulations; even those that are not sensible and could be challenged as overbreadth.  We don't support ignoring laws simply because agencies dont bother to enforce them.  One of NANFA's imortant roles is as a bridge between aquarium hobbysists, recreational fishers, regulators, academics, and conservationists.  Respecting the laws is fundamental to our credibility with these partners.   Welcome to NANFA!

[jonandrewslaw]

I agree with you Gerard. However, if the keeping of native fish is banned in all states, NANFA and American Currents with become obsolete. No one advocates that we stop drunk driving by banning all driving. Few would control gun violence by banning all guns from everyone. Yet, similar, irrational, overbreadth regulations are being made into law, state by state.  I looked into becoming a Regional Representative, but after researching, realized there were few, if any, activities we could legally engage in.

The NRA does not fight for us and we are not fighting for ourselves. I believe that all states will eventually ban the keeping of all native species. If you do not think it is coming to your state, think again. 

[fundulus]

And then some states are better at enforcing it than others. In Alabama the only laws that are consistently enforced have to do with alcohol sales on Sunday. Anything else is pretty patchy; most of the Conservation field agents couldn't tell a bass from a herring from a shiner, which is probably true in many states. That's good news/bad news, of course, maybe you get charged because your Central American cichlids look very much like bass and other sunfish?

[don212]

government has a way of glossing over existing problems, and writing legislation for nonexistent or minor problems, with unenforceable unfunded laws, which breeds contempt . There is a real invasive problem from the aquarium trade, yet nothing is done. Baitfish dealers sell millions of captive raised non native fish , yet the law worries about the rare fisherman who collects his own bait, or the native aquariast who is more aware of fish problems than anyone. Go figure, perhaps in those northern socialist states it is wise to keep your head down, at least until a crisis comes that makes them willing to listen.

[fundulus]

Socialist states? OK................ Please avoid flame bait, the management thanks you.