Washington, D.C.— On July 13th, U.S. Senator Kirsten Gillibrand (D-NY), and U.S. Congresswoman Elise Stefanik (R-NY), announced through a press release, the bicameral reintroduction of the Invasive Fish and Wildlife Prevention Act as H.R. 6362; formerly H.R. 669— the Nonnative Wildlife Invasion Prevention Act. The bill seeks to strictly regulate the import, possession and transport of potentially harmful non-native wildlife by giving the U.S. Fish and Wildlife Service (FWS) greater authority to employ risk assessment protocols, screen for potentially invasive species, and designate “injurious wildlife.”
“injurious wildlife, cannot be imported into the United States or its territories, or be transported through interstate commerce”— Rep. Elise Stefanik
“Injurious Wildlife” is the issue I cut my political teeth on. Former CEO of the Defenders of Wildlife, Peter Jenkins, outlined early iterations of the bill in his 2007 Broken Screens report. Subsequently, H.R. 669 was introduced in 2009 by Del. Madeline Bordallo (D-Guam), and was soundly defeated in the House Natural Resources Committee when I coordinated a massive grass roots letter writing campaign on behalf of the United States Association of Reptile Keepers (USARK).
We delivered almost 50,000 hand written (NO on H.R. 669) letters to the House Natural Resources Committee— literally wheeling in stacks upon stacks of letters on carts to the committee hearing room. It wasn’t the only factor in the defeat of H.R. 669, but the dramatic impact of one of the largest letter writing campaigns in 30 years, put the nail in the coffin of a partisan special interest bill.
H.R. 669 was resurrected in 2013 as H.R. 996 by Rep. Louise Slaughter (D-NY). The name was changed to the Invasive Fish and Wildlife Prevention Act, but the primary function— to create a “guilty until proven innocent” white list that expedited the arbitrary process to add species to the injurious wildlife list of the Lacey Act remained intact. However, the Republicans on the Natural Resources Committee had no appetite for partisan favors to special interest groups. As a result, Rep. Slaughter was never able to garner bi-partisan support from the Committee— where it languished until it’s death at the close of 113th Congressional session.
What would H.R. 6362 do if passed?
The main function of H.R. 6362 would give the Secretary of the Department of the Interior (DOI) authority to define and regulate “injurious wildlife taxon or taxa.” Further, it would establish a process of risk assessment and risk management for all non-native species “not in trade.” in the United States. H.R. 6362 would prohibit the import, possession and interstate transport of any species designated as injurious wildlife or not in trade. H.R. 6362 lets the Secretary of DOI arbitrarily make the calls to designate and regulate injurious wildlife unilaterally.
Negative Impact on Herpetoculture
The favorable ruling regarding the question of what constitutes interstate transport under the Lacey Act that USARK received from the U.S. Court of Appeals, D.C. Circuit, would be completely negated (USARK v. Ryan Zinke 2017) by H.R. 6362. Possession and trade of all 9 constrictor species listed as injurious wildlife under the Lacey Act would be prohibited; including Burmese pythons and reticulated pythons. Additionally, all of the 201 salamander species listed as injurious wildlife would be prohibited. Nothing currently on the injurious wildlife list could be possessed or traded if H.R. 6362 were to pass as written.
(e) PREVIOUSLY LISTED INJURIOUS SPECIES.—
(1) IN GENERAL.—On the date of enactment of this Act, any wildlife designated as injurious by sec- tion 42(a) of title 18, United States Code, including any designation made under that section (as in effect on the day before the date of enactment of this Act), shall be designated as an injurious wildlife taxon or taxa under this Act.
Impact on Zoos
There is no exemption for zoos in H.R. 6362. Any specimens that zoos keep in their collections that is considered injurious wildlife, or not in trade, would require a rigorous permit for import, possession or transport of these species. H.R. 6362 would cost zoos time, money and man power in applying for permits. Even without the injurious wildlife designation, I could see many of the species in zoo collections falling into the “not in trade” category— therefore requiring the same permitting as injurious wildlife. Zoos that operate on thin financial margins could be in jeopardy of insolvency should this measure pass.
SEC. 8. PERMITS.
(a) IN GENERAL.—The Director may issue to a qualified institution a permit that authorizes the import into the United States or transport between States of wildlife designated as an injurious wildlife taxon or taxa for scientific, zoological, medical research, or educational purposes if the Director finds that qualified institution properly demonstrates—
Solution for Constrictor Snakes listed as injurious?
When I outlined the strategy in 2012 for the USARK Board of Directors to file a simple administrative lawsuit against DOI to clarify the transportation clause, I never meant the favorable outcome to be a permanent solution to the issue of trade in large constrictors. The real question was whether large constrictors deserved the “injurious wildlife” designation.
Even if the government was overreaching their authority to enforce a prohibition on interstate transport of injurious wildlife, nobody really thinks it’s a good idea to transport injurious wildlife across state lines. An administrative lawsuit was always just a stopgap ploy to buy more time should constricting snakes get listed. That’s why I also laid all of the groundwork for a lawsuit on the “merits” to challenge the science used by U.S. Fish and Wildlife Service to justify the decision to list the large constrictors as injurious wildlife under the Lacey Act in the first place.
The real question for herpetoculture is not whether injurious wildlife should be traded across state lines. But rather— Do 9 constrictor snakes belong on the injurious wildlife list?—Andrew Wyatt
A lawsuit on the merits would be much more involved and expensive to litigate than USARK v. Ryan Zinke. However, I already did most of the public record work and filed formal challenges of the science under the Information Quality Act as CEO of USARK. I established that the rule making fell into the “major” rule context, requiring the government do an exhaustive economic impact study and use only information held to a high quality standard. Further, I collected dissenting opinions from top science experts from around the world. If USARK wants to save constrictors “in trade” from H.R. 6362, or something like it, they better figure out a way to get them off the injurious wildlife list. I left a template for this “lawsuit on the merits” strategy with USARK in 2013 when I resigned over philosophical differences with the Board of Directors. Regardless, they have it sitting on their desk. Hopefully they will have the same kind of success they did with my idea for USARK v. Ryan Zinke.
Why is H.R. 6362 more dangerous than H.R. 669?
In short… Republican lawmakers. Although all of the usual suspects who have supported the bill in the past are still likely to support it in the future, invasive species and associated parasites and pathogens are a grave concern, not only to native wildlife, but to agribusiness. We aren’t just talking about a bunch of left wing crazies championing the bill anymore, but also the likelihood that Republican lawmakers will will support H.R. 6362, or its follow up, in order to protect ranchers and farmers from the threat of business losses due to invasive species related threats.
Let’s face it, the majority of lawmakers, Republican and Democrat alike, don’t think it’s a good idea to have injurious non-native wildlife in this country— and they certainly don’t think transporting injurious species, parasites and pathogens across state lines without rigorous regulation is a good idea. H.R. 6362 is bad for a lot of reasons. But that doesn’t mean it won’t pass— or something like it. My biggest problem is a fundamental one— the arbitrary authority given to the Secretary of DOI to do what he thinks best, without real recourse from legitimate stake holders. NO on H.R. 6362.
***The lobbyist for USARK doesn’t think that the language from the H.R. 6362 will outright ban possession of injurious wildlife. She may be right, but it could very well be a point that must be clarified in court, should this measure pass. You be the judge…
SEC. 7. PROHIBITIONS.
(a) IN GENERAL.—Subject to subsection (b) and section 8, it is unlawful for any person subject to the jurisdiction of the United States—
(1) to import into the United States or transport between States any wildlife designated as an injurious wildlife taxon or taxa;
(2) to possess any wildlife designated as an injurious wildlife taxon or taxa, or a descendant of that wildlife, that was imported or transported in violation of this Act;
Andrew Wyatt is a government affairs and policy consultant dedicated exclusively to the wildlife sector. Vitello Consulting for the Win!
“In an arena known to be dominated by powerful special interest groups, Vitello Consulting has created a niche providing tailored advocacy strategies that are leveling the playing field for wildlife clients on Capitol Hill— And in 2014 we began offering state level advocacy that has negated most of the legislative and regulatory initiatives impacting our clients in state capitols across the country. 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 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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