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Read more via ASLA Times April 2017 — American Sloughi Association
UPDATED June 29, 2017
On March 30, 2017 the Big Cat Public Safety Act (H.R. 1818) was introduced into the U.S. House of Representatives. Proponents of H.R. 1818 laud it as a bi-partisan effort to “prohibit private ownership of captive lions, tigers, and other big cats in the US.” — in other words, pets. However, this characterization appears not only disingenuous, but it is duplicative, as most states already prohibit the ownership of big cats as pets. If passed as written, the primary impact of H.R. 1818 would not be on pet owners, but on zoos and sanctuaries that are not ideologically aligned with animal rights advocates espousing historical anti-captive wildlife sentiments.
Usurping the Animal Welfare Act
In a joint press release animal rights groups claimed H.R. 1818 would strengthen the Captive Wildlife Safety Act (CWSA). The CWSA is the 2003 Lacey Act amendment mandating interstate transport of big cats be limited to facilities licensed by the U.S. Department of Agriculture (USDA) and their registered agents. This amendment was consistent with the primary directive of the Lacey Act— to combat “trafficking” in “illegal” wildlife. The Lacey Act was never intended to regulate animal welfare. That is the dominion of the Animal Welfare Act (AWA). However, H.R. 1818 seeks to expand the authority of the Lacey Act empowering U.S. Fish and Wildlife Service (FWS) to regulate “animal welfare” and “legal” wildlife; points of law already established under the AWA, and administered by USDA through the licensing and inspection of qualified facilities.
Dan Ashe, former Director of FWS under the Obama Administration and current CEO of the AZA, has long maintained working relationships with animal rights proponents of the Big Cat Public Safety Act, particularly Wayne Pacelle of the Humane Society of the United States (HSUS), as well as the International Fund for Animal Welfare (IFAW).
Dan Ashe, CEO of the Association of Zoos and Aquariums— © Greg Nash
Three previous iterations of H.R. 1818 have been shopped around Capitol Hill since at least 2012. While touting public safety concerns, all have failed to get even a hearing because they are transparent attempts to establish the inequitable ideology of animal rights into the law. Previous versions of the Big Cat Public Safety Act offered an exemption to zoological facilities accredited only by the Association of Zoos and Aquariums (AZA), a trade association favored by bill proponents for instituting animal rights policies into their accreditation. These same proponents, led by the Humane Society of the United States (HSUS), have been engaged in an ongoing smear campaign against any zoo or aquarium not accredited by the AZA.
H.R. 1818 would continue to favor AZA, although no longer exempting them by name. The exemption is accomplished through a bit of “slight of hand,” calling for a USDA exemption, but then qualifying the exemption with a laundry list of AZA/HSUS negotiated policies inserted into the bill language. These qualifications effectively usurp authority from the AWA, placing it under the authority of the Lacey Act.
By writing animal rights policy into the Lacey Act, H.R. 1818 seeks to rewrite a broad swath of USDA animal welfare regulations by doing an end run around the AWA. These animal rights groups hope to supersede USDA regulations they were unsuccessful in changing through the administrative process by pushing legislation at the House Natural Resources Committee with lawmakers unfamiliar with animal welfare issues. If H.R. 1818 were to pass as written, FWS, without any experience regulating captive wildlife, would administer and enforce the new regulations.
H.R. 1818- Big Cat Public Safety Act:
Section 3 Prohibitions, (e) Captive Wildlife Offense, (2) Limitation on Application, paragraph (1)(A), subparagraphs i, ii, iii, iv, v, vi, vii and viii, presumes to rewrite and supersede an area of established law pertaining to the “animal welfare” of “legal” wildlife already regulated by USDA under authority of the Animal Welfare Act, while maintaining a de facto exemption for AZA zoos.
Public Safety or Animal Rights?
Proponents of H.R. 1818 cite an incident in Zanesville, Ohio in 2011 as an example of why this bill is needed. However, while tragic, Ohio recently past legislation addressing the issues. Most states already strictly regulate the possession of big cats. South Carolina just passed a ban on big cats as pets in this legislative session.
Ironically, most of the accidents with big cats, lethal and otherwise, have occurred at AZA zoos that would be exempted from this legislation; most notably, San Francisco Zoo in 2007 when a tiger killed a patron and injured two others— and more recently, Palm Beach Zoo in 2016 when a tiger killed a zookeeper. There are only a small handful of states that don’t strictly regulate big cats. Ohio now has some of the strictest regulations in the country. Outside of AZA accredited facilities, a death from a big cat hasn’t been recorded since 2003.
At the end of the day, animal welfare is not under the purview of the Lacey Act. The Lacey Act was designed to address wildlife trafficking. Further, FWS is not equipped to administer animal welfare regulations. Undoubtedly, funding for this unprecedented and duplicative overreach will be difficult to appropriate under the current administration. Proponents of the Big Cat Public Safety Act have misled bill sponsors and committee members. There is no crisis looming. The Big Cat Public Safety Act is not about public safety. It is about picking favorites and eliminating zoos and aquariums that will not voluntarily adopt the policies of the animal rights movement.
Compromise
With the help of Dan Ashe and the AZA, HSUS and IFAW are attempting to build political support for a hearing on H.R. 1818 before the U.S. House Natural Resources Committee. After years of failure petitioning USDA to institutionalize their ideology under the guise of public safety, these animal rights groups hope to have success by changing their tact and selling their brand of “public safety” to lawmakers at Natural Resources unfamiliar with animal welfare issues.
If proponents truly wanted only to stop pet ownership of big cats, the solution would be quite simple— amend the H.R. 1818 with a straight forward USDA exemption— without all of the qualifications that make it a de facto AZA exemption. The fact is, the USDA already regulates all legitimate zoos and aquariums regardless of trade association affiliation. Requiring USDA licensing would end the practice of keeping big cats as pets and legitimate non-AZA zoos would not be penalized or coerced into a choice between trade associations. Additionally, this compromise avoids using the Lacey Act to usurp the integrity of the Animal Welfare Act. Without an equitable amendment, zoos and aquariums across the country will likely oppose the Big Cat Public Safety Act.
“Scales” of Justice prove true for Herpetoculture
Washington DC— April 7, 2017. The United States Court of Appeals, District of Columbia Circuit in the case of the United States Association of Reptile Keepers v. Ryan Zinke, Secretary of The Interior and U.S. Fish and Wildlife Service, Humane Society of the United States and Center for Biological Diversity, ruled in favor of USARK on the question of Lacey Act authority to prohibit interstate transport of species listed as “injurious” under the Lacey Act. The court held that, “the government lacks authority under the shipment clause to prohibit shipments of injurious species between the ‘continental’ States.”
What does all of this mean?
The way has now been cleared to legally resume trade of the Burmese python, North African python, South African python, reticulated python, DeSchauensee’s anaconda, Beni anaconda, green anaconda and yellow anaconda within the “continental United States.” However, it appears that injurious species cannot be transported into the District of Columbia. The shipment clause specifically references the “continental United States,” “Hawaii,” the “Commonwealth of Puerto Rico,” and “any possession of the United States”, and the “District of Columbia” as distinct designations. In the court’s opinion the “District of Columbia” is an expressly separate designation from the “continental United States,” and specifically identified as prohibited in the shipment clause. In conclusion, it appears that there will be no legal transport into Washington, DC without the appropriate permits.
Congress defined the phrase “continental United States” in a statute enacted by the same Congress in the year before the 1960 addition of the shipment clause. See Pub. L. No. 86-70, § 48, 73 Stat. 141, 154 (1959); see also 1 U.S.C. § 1 note. Under that definition, “[w]henever the phrase ‘continental United States’ is used in any law of the United States enacted after the date of the enactment of this Act, it shall mean the 49 States on the North American Continent and the District of Columbia, unless otherwise expressly provided.”
Keep in mind that all nine constrictor snakes continue to be listed as injurious under the Lacey Act. This is the real problem. Interstate transport is now allowed, but likely only temporarily. The original intent of the Lacey Act amendments of 1960 was to allow zoos and research facilities the opportunity to work with listed species to import and transport across state lines with a new permit system. Previously, import and transport of listed species was completely prohibited. However, the shipment clause of the Lacey Act was poorly written, leaving it vulnerable to a clarification in the courts that now allows “injurious wildlife” to be transported across state lines. Most in conservation, academics, ranching and farming disagree that it is a good idea to transport “injurious wildlife” from state to state– remember, the injurious list was comprises the most dangerous alien invaders; snakeheads, mongoose, zebra mussels, fruit bats, etc. Constrictor snakes were only recently added. This legal victory buys time for the reptile industry to find more permanent legal remedy to a listing process that was arbitrary and capricious. The “science” was fudged at every turn in violation of the Administrative Procedures Act, Information Quality Act, and the peer review process.
Categorical Exclusion: CatX
Additionally, in 2015, in an unprecedented move, the U.S. Fish and Wildlife Service empowered itself to shortcut the rule making process under the Lacey Act in order to more easily declare injurious wildlife listings, making way for mass listing of species. Known as CatX, this rule has negatively impacted herpetoculture, and the pet trade by removing scientific justification from the listing process. This led to the listing of 201 salamander species in 2016, prohibiting the import and interstate trade of captive bred specimens. However, the ruling by the court on the authority of the Lacey Act to prohibit interstate transport now opens the way to resume trade of listed captive bred salamander species in the continental U.S., removing CatX’s teeth as a blunt force instrument to prohibit captive breeding programs on American soil. Listed species may be exported. However import without permit is a felony.
George Sugiyama, former Chief Minority Counsel, Senate EPW ~ Troutman Sanders
History of the USARK Lawsuit
In 2011, as then-CEO of the U.S. Association of Reptile Keepers (USARK), I led the fight against the listing of nine constrictor snakes as injurious under the Lacey Act. During the course of many visits to Capitol Hill, I met with George Sugiyama, Chief Minority Counsel for the Senate Environmental and Public Works (EPW) Committee. Mr. Sugiyama suggested to me, that in his legal opinion, FWS under the Lacey Act, did not have the authority to restrict interstate transport of species listed as injurious. I loved the simplicity of his argument and directed USARK’s counsel to further research and vet the idea. Subsequently, we hatched a plan, and created a blueprint for a lawsuit challenging the FWS’ authority to regulate interstate transport. The architects of the lawsuit were George Sugiyama, Joan Galvin and myself.
I spent most all of 2012 lobbying the USARK Board of Directors to move forward with the lawsuit. USARK finally filed that lawsuit against then-Interior Secretary Sally Jewell (USARK v. Jewell et al.) in the Federal District Court of Washington, DC in December of 2013— 11 months after I resigned from the organization. In the end it doesn’t matter why they waited. The point is, USARK did file the lawsuit, my strategy proved to be the correct one as illustrated by the court, and herpetoculture gets a huge victory that could resonate for years!
The Injurious Wildlife listing under the Lacey Act, for the moment, can not be used as the weapon it once was against domestic herpetoculture in the United States.
Congratulations USARK and the Reptile Nation for a job well done!
Working on behalf of USARK Joan Galvin, Shawn Gehan, David Frulla, Paul C. Rosenthal, Richard Stanley, and an anonymous legal contributor all played crucial roles in bring this lawsuit to fruition. In addition there have been countless volunteers and fundraisers that contributed and funded this unprecedented success that has been 9 years in the making. It has been my honor and privilege to play my part. My sincerest thank you to USARK and the entire Reptile Nation in this monumental victory for herpetoculture!
Happy Birthday USARK! — Many people don’t know, even the current officers of USARK, but USARK was founded as a trade association dedicated to the interests of herpetoculture on April 5, 2008 in Chicago, specifically to fight the Python Ban. The founding principal was Andrew Wyatt, formerly the founder and president of the North Carolina Association of Reptile Keepers (NCARK). The co-founders of USARK included Mack Robinette, Lou Sangermano, Ralph Davis, Doug Price, Sherry Tregembo, Jeff Ronnie, Warren Booth, Shawn Heflick, Brian Sharp, and Dan and Colette Sutherland. This group would become the USARK Board of Directors electing Wyatt as president and CEO in April 2008. April 5, 2017 was USARK’s Birthday. Happy Birthday to a young and successful trade association.
Andrew Wyatt is a government affairs and policy consultant that works exclusively in the wildlife sector.
“Wildlife issues are highly charged and contentious. I specialize in articulating clear policy ideas and getting them in front of key decision makers. Please follow ‘The Last Word on Wildlife’ for insight and analysis particular to the 21st century wildlife sector. If you would like to discuss the potential advantages of creating a comprehensive business/government affairs strategy, or a more targeted issue campaign, please call or email me.” ~ Andrew Wyatt
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