In the early 1990s and into the 2000s, animal rights for porpoises changed the public perception of marine creatures. Documentaries and movies were made to expose the harsh treatment of animals like orcas and dolphins, pushing various groups like SeaWorld and members of the fishing industry to change their practices. California signed the Orca Protection and Safety Act in 2016. Nicole Pallotta, California passes Orca Protection act California Passes Orca Protection Act (2020), available at https://aldf.org/article/california-passes-orca-protection-act/; the Marine Mammal Protection Act regulates the capture and captivity of dolphins and other porpoises. 16 U.S.C.A. § 1371 (West).
Where terrestrial agriculture and marine mammals have been protected, fishes, being a major source of food, have not been. One of the fastest growing sectors of the animal industry is farming fish. Where beef, pork, and chickens are still favorites on the dining room table, fish is right behind as one of the most profitable sources of food. Growing demand for nationwide food sources correlates to a growing population. This has forced the agricultural sector to massively increase production of its commodities, one of which is the farming of fish. Wild capture has been slowly replaced by fishery farms, in response to worldwide outcry on wild catch’s effect on the marine ecosystem.
This paper outlines the lack of animal welfare standards in the farm fishery industry and argues the need to expand basic rights to these fish. The unethical treatment has flown under the radar of most animal activist groups. With the food market expanding, the conditions in which these fish are farmed lack any care for the welfare of the fish. Commercial fishing has been moved from the ocean into concrete holes across the country. Where there are a number or environmental and financial benefits to fish farms, the treatment of these fish certainly raise a number of ethical concerns. This paper will identify the conditions these fish are bred in, arguing for the development of regulations to control the housing of the fish and the slaughter process. Where the Animal Welfare Act is still trying to incorporate agricultural animals, including beef, swine, and chickens to its protections, very little attention is afforded to this sector of agriculture. New legislation has been put in place to regulate offshore farms, but it has yet to reach the fish farms found in places like Michigan and Ohio. This paper will argue that fish can experience pain and suffering, and legislation should be enacted to regulate the current conditions of these fishery farms.
II. Review of Fishing: Then and Now
Even though fish is not a cornerstone of the American diet, throughout history, fish has been a primary source of food. This section will explain the development of domestic fishing in the United States, highlighting the benefits and massive production of fish farms over commercial fishing in open waters.
A. Domestic Fish Farms
Due to the growing demand for accessible fish, and the concern over the significant depletion of wild fish, aquaculture has been the main source. Aquaculture is defined as the “controlled process of cultivating aquatic organisms, especially for human consumption. Aquaculture Stewardship Council (ASC), Why is aquaculture important (last visited August 4, 2022), available at https://www.asc-aqua.org/aquaculture-explained/why-is-aquaculture-important/. Aquaculture has a number of purposes other and generating massive amounts of fish for human consumption such as helping to rebuild populations of threatened and endangered species, restoring habitats, boosting wild stocks of freshwater and seawater species, and breeding fish for zoos and aquariums.
Across the world, aquaculture farms produce 114.5 million metric tons of harvested fish yielding $160.2 billion in 2018. Richard Cody, Michael Liddel, and Melissa Yencho, Fisheries of the United States 2019 (2021), available at https://media.fisheries.noaa.gov/2021-05/FUS2019-FINAL-webready-2.3.pdf?null=. In the US, there are over 3,000 freshwater fishery farms. There are two types of aquaculture farms: marine and freshwater. United States Geological Survey (USGS), Aquaculture Water Use (2018), available at https://www.usgs.gov/special-topics/water-science-school/science/aquaculture-water-use. For freshwater aquaculture farms, there are two primary ways of rearing fish, each with their own host of issues to be addressed when considering the pain and suffering of the fish.
1. Two forms of fish farming
Captivity farming is the process of rearing a fish from egg to mature fish, at which point they can be slaughtered for food, oil, or bait. This is the most common form of fish farming as it is a streamlined approach. This vertical integration technique not only decreases the cost of having to ship the fish in between the life stages but allows the single farm to control its populations. Captivity farming is the broad term that includes artificial ponds and raceways. NC State Extension, What is aquaculture? (last visited August 5, 2022), available at https://aquaculture.ces.ncsu.edu/what-is-aquaculture/. Artificial ponds are massive operations where fish are housed and develop in a single pool. A raceway is a tank that is relatively shallow and use high water flow in order to sustain aquatic life. Gary Fornshell, Raceways Freshwater Aquaculture (2019), available at https://freshwater-aquaculture.extension.org/raceways/. Proponents claim this is the most ethical way to breed species like salmon as it simulates natural waterflow and engages the fish. However, both techniques have a host of ethical concerns, like overpopulation that will be analyzed in Section IV.
Ranching is the process of rearing fish from egg to juvenile and then releasing the fish to nearby waterways so they can develop into maturity. Hope M. Babcock, Grotius, Ocean Fish Ranching, and the Public Trust Doctrine: Ride "Em Charlie Tuna, 26 Stan. Envtl. L.J. 3, 5 (2007), available at https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1956&context=facpub. From there, the fish are then caught again and prepared for slaughter and shipment.
II. The Cruel and Inhumane Treatment of Fish and Where We’re at Today
As can be seen in the developments of animal rights for agricultural animals, there has been a severe lack of ethical awareness. Without understanding the mental and physical states of an animal, legislatures have been “rightfully” ignorant to the effect of some farming techniques and its effect on the animals. This section seeks to identify the fish in an agricultural production not only experience pain and suffering, but the lack of any level legislation should be addressed to mitigate certain parts of farming that cause pain and suffering.
A. An Ethical Argument for the Welfare of Fish Through the Lens of Pain and Suffering
When considering how an animal is treated, in the context of welfare, one of the recurring and rather simple concepts is to avoid unnecessary pain and suffering. This is a simple thought with a very complex answer. It is hard to define what pain and suffering looks like as it is a very relative principle, dependent on the person trying to define it and the animal who is being treated in such a way to cause pain and suffering. See for example Houk v. State, 316 So. 3d 788, 792 (Fla. Dist. Ct. App. 2021), where the court discussed aggravated animal cruelty. The concept of trying to avoid inflicting pain is thought to be inherent to human nature; an animal is a sentient being able to feel a range of emotions. This can be seen in federal law, where the purpose of the Animal Welfare Act is that certain actions should be banned to decrease, or ideally totally eliminate, certain animals' pain and suffering. Likewise, a fish can experience pain and suffering in a number of ways, and it can be argued it is the duty of humans to avoid actions that result in such experiences.
The thoughts invoked when an average person sees a fish farm is hard to say; not many people are aware of what a fish farm is. This paper has thus far merely defined what a fish farm is and how the fish are reared in one. An easy way to confuse a person is to show them a picture of a fish farm. There are large in-ground tanks with moving water. However, the moving water is not just water. Thousands of fish, varying in size and age, are in a single area, thrashing about due to a lack of space. The overcrowding of fish is one example of how these animals are exploited. The major fish farms generate millions of dollars, and not because of how expensive the fish are. Overhead costs, like energy and water, force harvesters to take more extreme measures to offset those costs and maintain a profit. FFAC, Fish Farms: What Is Fish Farming and Why Is It Bad?, (2022), https://ffacoalition.org/articles/fish-farms-what-is-fish-farming-and-why-is-it-bad/. Animal welfare is second to finances, which can be seen in other agricultural industries like with cattle and swine. However, recent laws and regulations have forced welfare to be considered at the level of, if not leading, economics for other farmed animals.
There are a number of reasons the welfare of fish should also be taken more seriously than what is currently in place. A philosopher might say that the experience of pain and suffering is immoral and unethical. The question of choosing if animals should warrant ethical concern to decrease pain and suffering has made much headway since the arguments of Voltaire and Descartes. Scientific developments recognizing that animals are able to feel pain and suffering has helped move some animals up the “ethical ladder.”
Fish, however, have not reached that point. Whether it be how many fish there are in the world, which outnumber humans 500 to 1, or the lack of authentic understanding of a fish beyond what is in the ocean or a home tank, ethical concern has not been granted to these animals. Any ichthyologist will be able to explain that fish can feel pain; the caudal peduncle sits on the lateral-line nerve and any pressure applied will force the fish into panic. Jennifer C. Nauen & George V. Lauder, Locomotion in scombrid fishes: Visualization of flow around the caudal peduncle and finlets of the chub mackerel scomber japonicus, 204 Journal of Experimental Biology 2251–2263 (2001), available at https://journals.biologists.com/jeb/article/204/13/2251/32805/Locomotion-in-scombrid-fishes-visualization-of. Affective science, the study of emotions, states plainly that one of the major indicators of pain and suffering are facial features. Carroll E. Izard, Facial expressions and the regulation of emotions., 58 Journal of Personality and Social Psychology 487–498 (1990), available at https://doi.org/10.1037/0022-3522.214.171.1247. Neurologists state that pain and suffering comes from the prefrontal cortex. Fish are unable to express physical or physiological pain like mammalian creatures, including humans, dogs, and cattle. However, despite this fact, there is no reason their pain and suffering should be disregarded merely because they do not have the face structure or prefrontal cortex to express pain. The welfare of a fish will be explained in the final section of this paper, but in order to put the welfare into context, it is of utmost importance to establish the mental capacities of fish to experience pain and suffering.
B. Lack of Legislative Awareness
One of the only provisions that could be applied to fish is the slaughter provision in the Humane Methods of Slaughter Act (HMSA). Emma Burgess Roy, Cruelty on Your Plate: The Misadministration of the Humane Methods of Slaughter Act, 3 Mid-Atlantic J.L. & Pub. Pol'y 93, 95 (2015). The HMSA is once again only focused on animals like cattle, horses, sheep, and swine. Specific rules within the HMSA require humane slaughtering that revolves around a quick death and rendering an animal insensible prior to killing. This provision begins to acknowledge the ethical treatment of animals, but not all animals. There are a number of techniques that can be applied to fish including suffocation, electrocution, and firing a single shot to a head, but none of those are specifically required for fish, nor are they totally effective. Requiring humane slaughter is on the right track to ensuring ethical treatment of fish, but only applies to the end of their life, ignorant of everything that comes before.
III. Assessment of Current Harvesting Practices and Fish Pain and Suffering
It is clear that the conditions the fishes live under violate the basic idea of animal welfare. Chickens are no strangers to poor living conditions, especially when they are raised on an industrial level. Bruce Friedrich, Stefanie Wilson, Coming Home to Roost: How the Chicken Industry Hurts Chickens, Humans, and the Environment, 22 Animal L. 103, 108 (2015). Taking some of the ideas of improving the agricultural harvesting of chickens, this section will provide a number of recommendations to limiting the inhumane treatment at the hands of the fish farm industry. Welfare is much more than just the basic concept of the absence of disease. OIE (World Organization for Animal Health), Ch. 7.1, Introduction to the Recommendations for Animal Welfare, Terrestrial Animal Health Code (2010), available at https://www.oie.int/fileadmin/Home/eng/Health_standards/tahc/2018/en_chapitre_aw_introduction.htm. Animal welfare looks for a state of physical, social, and mental well-being.
A. Welfare in Action: How the Five Freedoms Apply to Farm Fisheries
Any activist looking for more rights for an animal is well aware of the RSPCA’s Welfare Standards. Jed Goodfellow, Chapter 10 Regulatory Capture and the Welfare of Farm Animals in Australia, 53 IUS Gentium 195, 235 (2016). The Five Freedoms were made to improve the living conditions and situations for a range of animals, most notably being applicable to farm animals. Knowing that fish can experience pain and suffering the same as other animals that have already warranted the Five Freedoms protections, it is important to consider its application to fishery farms. The Five Freedoms include “freedom from hunger and thirst, freedom from discomfort, freedom from pain, injury, or disease, freedom to express normal behavior, and freedom from fear and distress.” Jessica Park, Yes, Chickens Have Feelings Too. the Recognition of Animal Sentience Will Address Outdated Animal Protection Laws for Chickens and Other Poultry in the United States, 22 San Diego Int'l L.J. 335, 339 (2021). This section will look at how legislation should apply the related Five Freedoms to fish and what practices need to be changed in order to greater improve the welfare of these animals.
1. Fear and distress
The Five Freedoms broadly defines "Freedom from Fear and Distress" as providing conditions and treatment to avoid mental suffering. The paper has already established that fish have the capacity to suffer from pain and distress, despite the lack of some anatomical features to show distress that mammals have. For agricultural animals, fear and distress can be seen in confinement and slaughter. As discussed in the HMSA, the only ethical ways to kill a cow is via suffocation, electrocution, or immediate death by striking the brain. The spatial requirements is another topic of emphasis for cattle. Tight spaces, not allowing nursing mothers to move, and putting as many cattle in a single factory farm has been lobbied by activists to ban.
For fish, a farm fishery is an extreme version of this. Artificial ponds and raceways are filled with as many fish as possible. The image of a fish farm is a black circle or trough with turbulent water with as many fish as possible. Like broiler chickens, fish are bred in the hundreds, if not thousands, in one place, unable to move. It is obvious that any animal placed in an area like this will experience fear and distress. This concept also plays off another point of the Five Freedoms: Hunger and Thirst. Where fish do not need to drink, hunger is another point of distress. Housing fish in one of these smaller areas requires infighting for the food provided. The system in place is certainly not an ethical one: for larger fish, it is feeding massive quantities of bait fish and allow for the carnivorous animals to fight for what is provided. For smaller fish, whatever feed they are given is essentially the bare minimum; it is impossible to ensure a healthy diet for all of the fish in a single tank. Distress over food, or fear of the tight spaces shared, are examples of how overpopulating a single tank highlights the unethical nature of fish farms.
The issue of fear is also exacerbated when considering a fish’s natural response for survival. The flight or fight response is natural in nearly every animal, including fish. Marnix Gorissen & Gert Flik, The endocrinology of the stress response in fish, 35 Fish Physiology 75–111, 89 (2016), available at https://www.sciencedirect.com/science/article/pii/B9780128027288000035. Receptors along the fish’s body are well developed to sense a change in another fish’s chemistry. Being surrounded by other fish enduring similar stress and fear significantly increases the relay of chemical reactions to other fish. This slippery slope continues until each fish has reached an extreme level of fear or aggressive behavior. One example of legislation that can help alleviate the fear and distress is as simple as limiting the number of fish in an area or providing additional food to meet the needs of the fish. Sectioning off feeding areas can also be a viable solution. Where this will cause immediate financial strain, the welfare of the fish should take precedent as it is a basic freedom all animals should be afforded.
2. Express normal behavior
As discussed, the unnatural waterways these animals live in unethically violate the Freedom from Fear and Distress. Another example of those limited ponds or raceways is the right to "Express Normal Behavior." A number of fish species are naturally driven to swim together in a shoal or school. Masaaki Ishikawa, Dynamical properties of fish schooling behavior, 68 Fisheries science 463–464, 463 (2002), available at https://www.jstage.jst.go.jp/article/fishsci1994/68/sup1/68_sup1_463/_article/-char/ja/. It is not unnatural to see massive schools of fish moving together. This can be done for a number of reasons, the most popular scientific thought is for protection from predators. Freedom to move from a school is needed, especially when fish are spawning. The initial thought is that these artificial ponds would create one massive school. There are two faults to that idea: most freshwater species do not swim in a school and schools will move across much wider expanses of water in search of food to avoid predation.
A significant number of farm fisheries in the United States focus on freshwater fish. The most popular freshwater fish farmed are catfish, perch, and trout. None of these species naturally form massive schools in the lakes or rivers. Forcing the animals to live in these holding ponds violate the basic behavior of these fish. Most also require certain topographical features or water systems to live. Catfish will swim into cuts on a bank. Perch will lie in weeds in the shallow waters waiting for prey and for its own protection. Massive artificial ponds do not allow for either of those examples.
Where a great number of saltwater fish are raised in nets in the ocean, it is still limited the natural tendencies of the fish to move throughout various areas. The schooling for saltwater fish is a sight to see, but even when in natural waterways, the massive number of fish in a small net does not allow for actual schooling movement.
There is not an easy solution to these problems. Fish are naturally sociable and have the ability to identify one another and have a greater awareness of what is going on around them. Victoria A. Braithwaite and Philip Boulcott, Can Fish Suffer?, in Fish Welfare 78, 88 (Edward J. Branson ed., Blackwell Publg. 2008), available at https://u1lib.org/book/2152215/ad0f31. Limiting a fish from its basic tendency to migrate is also a violation of expressing natural behavior. A solution to this problem could be increasing the size of the tank, such as making a tank deeper, or decreasing the concentration. It is not the goal of this paper to totally eliminate the fish farm practices based on the fish’s need to express natural behavior alone, but to recognize the need to make physical changes to the holding tanks to better comply with the biological and social needs of the fish.
3. Pain, injury and disease
The greatest threat to the welfare of fish in a farm pond or raceway is the threat of undue "Pain, Injury, and Disease." Packing large number of fish in a single area is not unlike other animals in a similar situation. Whether it is a territory issue or anger from stress, the animal’s fight or flight response occurs more often than not. Pigs will bite another’s tail off. A chicken will peck at another or use sharp toes to try and kill another chicken. Fish are no exception. Aggressive fish, especially under the stress, will attack one another to gain dominance or in response to another fish attacking it. Fighting can lead to injuries to a fish’s eyes, fins, and gills. Patrick Colgan, The motivational basis of fish behaviour, The Behaviour of Teleost Fishes 23–46 (1986), available at https://link.springer.com/chapter/10.1007/978-1-4684-8261-4_2. Significant injuries to these parts of a fish will more than likely lead to death. Where chickens can have their beaks or toes removed, it is impossible for a farmer to prevent fighting between fish. This essential “free for all” is an unavoidable cost to the fish. It is not clear how many fish succumb to injuries intentionally caused by another fish, or merely the tight spaces leading to resulting injuries.
Another instance of pain and injury is a farmer tagging a fish. In this case, the farmer will puncture a hole in the fish’s fin at a young age to lock the tag in place, which is done for a variety of reasons, most notably identification. Paul J. Ashley & Lynne U. Sneddon, Pain and Fear in Fish, in Fish Welfare 49 (Edward J. Branson ed., Blackwell Publg. 2008). Doing this at a young age can lead to unnatural growth in the fin, which limits the swimming capability of the fish. There is no anesthetic available to a fish, and when mapping the chemical receptors on a fish that feed directly to the lateral nerve line, it can be assumed that fish will still feel pain in the fins.
The slaughter of a fish warrants little welfare concern on the side of the farmer. Because of how these fish are held, there are very few ways to ensure a quick death in the least painful way possible. There are three common methods of euthanizing a fish: electrocution, suffocation, and changing the water temperature. David H. F. Robb, Welfare of Fish at Harvest, in Fish Welfare 217, 219 (Edward J. Branson ed., Blackwell Publg. 2008). Each technique has a host of issues, most notably the ineffective nature of an immediate death without suffering. Where cattle can be killed instantly with a single shot into the head, each fish cannot be removed from the tank and killed in the same manner. Electrocution is also not a painless way to kill the fish. Even though this may temporarily stun them, after removing the fish, there is a chance the fish is still alive and will be subject to suffocation after being removed from the water. Changing in water temperature is claimed to be the most ethical way to slaughter a fish. However, the slow process of a fish going into a torpor state, which will slow the metabolism and eventually kill the fish, is not a quick death. The changing temperature will affect the biochemistry of a fish, adding additional stress before it eventually succumbs to the cold water.
The final issue of fish farms is the tendency for disease to spread. A McVicar, Disease and parasite implications of the coexistence of wild and cultured Atlantic salmon populations, 54 ICES Journal of Marine Science 1093–1103 (1997), available at https://doi.org/10.1016/S1054-3139(97)80014-8. Exposure to a diseased fish, unclean water from excessive excrement, or a dead fish that has been lost in the sea of fish are all sources of ailments that can harm the fish. 20 Animal L. 119 (2013). The Five Freedom requires that there must be good veterinary care and a maintained environment for good health. Each of those requirements is improbable when there are as many fish as possible in a single tank. Farmers may place filters in the tanks or have a collection group when a dead fish is in sight, but those do little to prevent diseases from spreading quickly.
Each of these issues are clearly related to the inhumane and unethical packing of fish in a tight space with little access to natural environments or freedom from threats from either other fish or disease. It is hard to claim a better solution than decreasing the number of fish in a tank or maximizing the physical features needed to ensure the well-being of these fish. The legislature needs to work with ichthyologists and the farmers to identify the solutions to these obvious issues and threats to the well-being of the fish. One technique that has been gaining popularity and addresses some of these concerns is harvesting in an open pond. Aquaculture Methods, (2021), available at https://www.seachoice.org/info-centre/aquaculture/aquaculture-methods/. It is a natural area that is controlled in order to optimize the catching process. However, there is more area for the fish to move and limits the number of fish that can live in a pond, which begins to meet the standards outlined in the Five Freedoms.
It is clear the negligent behavior of the fishing industry has reached a new level when considering the impact on the fish in farm fisheries. Public activism for protecting the oceans have done wonders for fish population its ecological health. However, where some fish have been alleviated from harvesting, so many more are being exposed to unethical treatment. As the demand for fish increases throughout the country and world, more and more fish farms will have to be constructed in order to keep up. When the well-being of the fish are put to the side in favor of commercial market, it is the duty of legislature and activists to raise the concern for the fish. Even though the solutions are not plainly obvious, they are still relatively simple. Whether it be decreasing the number of fish in an artificial pond, addressing the individual farmer’s practice in harvesting fish, or ensuring proper environmental care is put into the raising of the fish, fish well-being should be at the forefront.