Big Cats and Zoo Politics

Update: H.R. 1818— Big Cat Public Safety Act

Dan Ashe and Wayne PacelleDan Ashe, CEO AZA, with Wayne Pacelle, CEO HSUS— photo via twitter

The Big Cat Public Safety Act is alive and well, notwithstanding assurances to the contrary made by Dan Ashe, CEO of the Association of Zoos and Aquariums (AZA), to member zoos concerned about the survival of their Animal Ambassador programs.

On March 30, 2017 the Big Cat Public Safety Act (H.R. 1818) was introduced into the U.S. House of Representatives. The Humane Society of the United States (HSUS), the primary proponent of the measure, characterized the bill as a bi-partisan effort to “prohibit private ownership of captive lions, tigers, and other big cats in the US.” — ostensibly a bill to ban big cats as pets. However, most states already prohibit the ownership of big cats as pets. South Carolina passed a law banning big cats as pets in the 2017 legislative session. The primary impact of H.R. 1818 would not be on pet owners, but on zoos and sanctuaries that are not ideologically aligned with the HSUS.

Zoo Controversy
Recently, a dark tide of suspicion and uncertainty washed over the zoo community, when news of an alliance between an anti-zoo-animal-rights behemoth, HSUS, and the largest zoological trade association in the country, AZA, was announced. The new partnership was unveiled when Dan Ashe announced that his old friend Wayne Pacelle, CEO of the HSUS, would be the keynote speaker at the AZA Annual Conference 2017.  Facebook blazed with opposition posts, and an online petition to disinvite Pacelle from the conference garnered more than 700 signatures.

Simultaneously, AZA declined Protect the Harvest’s platinum sponsorship and revoked its booth at their conference. Protect the Harvest, a farm organization founded by Forrest Lucas, has been a vocal critic of the HSUS, and their removal from the conference was a clear nod to the HSUS by Dan Ashe. Clearly, Wayne Pacelle wanted no counter balance to his aggressive animal rights vision for AZA.

Association Politics and Propaganda
In the lead up to the AZA conference, AZA members criticized Dan Ashe for inviting Pacelle as the keynote speaker. For many, it was akin to letting the fox into the hen house. Pacelle has never supported zoos in the past, and has never supported captive breeding programs for conservation. He has a reputation for believing he has the moral authority— giving himself latitude — to play fast and loose with the truth. His ability to engineer slick media campaigns designed to smear his enemies and promote his friends has become his signature.

The HSUS propaganda machine can be a serious problem for anyone not willing to align with Pacelle’s animal rights philosophy. Farmers, egg producers, ranchers and dog fanciers can all attest to the damage done when Pacelle opens up his bag of dirty tricks. Understandably, many in the zoo community are afraid that HSUS will lead the AZA into dangerous and uncertain territory.

“Dan was the best US Fish and Wildlife Service Director the nation has ever had.”— Wayne Pacelle, AZA Annual Conference 2017

Some AZA members say they were assured by Dan Ashe that H.R. 1818 was dead. Many had expressed fears the bill would eliminate their Animal Ambassador programs. However, keep in mind, Dan Ashe has always been known for a very transactional management style. As director of FWS, he never met someone that he didn’t agree with. At the meeting table Ashe focuses on appeasement. Regardless of eventual outcomes, face to face, he is always on your side.

ZAA Smear
During his opening statements at the AZA Annual Conference, Pacelle revealed the long term relationship between he and Dan Ashe dating back to before their close association during Ashe’s days as Director of U.S. Fish and Wildlife Service (FWS). Pacelle joked about playing basketball with Ashe in the mid-80’s. Then in an attempt to demonstrate ideological parity between the HSUS and the AZA, and to assuage member concerns about the historically anti-zoo HSUS mission, Pacelle elevated the AZA accreditation above all other zoological trade associations, calling it the “gold standard.” He then directed his ire toward the second largest zoo accreditation organization, the Zoological Association of America (ZAA), saying, “[ZAA] doesn’t have standards”— and equating it to the “pet ownership” he wants to eliminate with H.R. 1818. Pacelle’s efforts to discredit the ZAA and convince AZA conference attendees that ZAA’s zoo accreditation equates to pet ownership provided for the darkest moments of his address.

Big Cat Public Safety Act is Alive and Well
Ironically, in his closing remarks, Pacelle contradicted Ashe when he thanked the AZA for their “collaboration” on H.R. 1818, after Dan Ashe was reported to have just told some members that AZA was not supporting the bill. Not only did Pacelle implore members to support H.R. 1818, he urged them to take an active role discrediting the ZAA brand, calling ZAA members, “bad actors” and “unethical businesses.”

“Let’s get this bill done… let’s get congress to act on these issues.”— Wayne Pacelle, AZA Annual Conference 2017

H.R. 1818 may not be front burner on Capitol Hill right now, but HSUS and AZA are pushing for it. AZA members who are under the impression Dan Ashe doesn’t support this measure should seek clarification on exactly where AZA stands. All it would take is for one legislator to be convinced they could score some safe political points by pushing what HSUS has characterized as a “common sense public safety” issue to move H.R. 1818. I imagine at that point, Dan Ashe if true to form, would admonish that it is all beyond his control. Remember, election season is right around the corner, and talk is cheap in Washington, D.C. Don’t get lulled into a false sense of security.


Andrew Wyatt, working through the firm of Vitello Consulting, is a government affairs and policy consultant dedicated exclusively to the wildlife sector.

WyattP1“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


©Andrew Wyatt and The Last Word on Wildlife, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Andrew Wyatt and The Last Word on Wildlife with appropriate and specific direction to the original content.

Big Cat Public Safety Act: USFWS v. USDA

Legislative Update on the Status of H.R. 1818: Big Cat Public Safety Act

The Last Word on Wildlife

08270149-aa9f-4e80-bf2d-e81486d697e3-2060x1236UPDATED 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…

View original post 948 more words

Big Cat Public Safety Act: USFWS v. USDA

tiger-1.jpg

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).

ashedan_032317gn_lead

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.

Landmark Victory for USARK in Python Ban Lawsuit

american-flag-gavel-scales-of-justice

“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.”

264575_210697215640070_6306357_n5-300x225What 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. Export and interstate transport are allowed. However import without a special permit is a felony and strictly prohibited. Violations can carry heavy fines and prison time.

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.

The bottom line is that CatX and the Python Ban now prohibit import only, and the Court’s Ruling has effectively clipped the wings of the radical animal rights industry seeking to use the Lacey Act to interfere with captive breeding programs in this country.

http://www.troutmansanders.com/george-y-sugiyama-joins-troutman-sanders-washington-dc-office-03-21-2012/

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 will resonate for years to come!

The Injurious Wildlife listing under the Lacey Act can no longer 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.

Ula and me“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


© 2017 Andrew Wyatt and The Last Word on Wildlife. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Andrew Wyatt and The Last Word on Wildlife with appropriate and specific direction to the original content.

FWS Lists 201 Salamanders as Injurious

Captive Bred Chinese Fire-bellied Newt

Captive Bred Chinese Fire-bellied Newt

Utilizing the recently enacted Categorical Exclusion, or CatX, the U.S. Fish and Wildlife Service will short-cut procedural checks and balances previously mandated under the National Environmental Policy Act (NEPA). Tomorrow FWS will publish an interim rule in the Federal Register adding 201 salamander species to the “Injurious Wildlife” list. The rule will be enacted without the necessity of FWS to submit an Environmental Assessment (EA), or an Environmental Impact Statement (EIS) under NEPA.

The new rule adding many salamanders to the Injurious list will be enacted as of January 28, 2016, and would have been logistically impossible without the enactment of CatX late last year. After January 28th, import or interstate transport of listed salamanders, without a rigorous federal permit, will be prohibited.

Why is FWS listing Salamanders as Injurious?

To help prevent a deadly fungus from killing native salamanders, the U.S. Fish and Wildlife Service is publishing an interim rule tomorrow to list 201 salamander species as injurious wildlife under the Lacey Act. The fungus Batrachochytrium salamandrivorans, also known as Bsal or salamander chytrid, is carried on the skin of various salamander species. Bsal has caused major die-offs of salamanders in Europe and poses an imminent threat to U.S. native salamander populations. — U.S. Fish and Wildlife Service

While justification for the unprecedented move is not without merit, it bears noting that Bsal has never been found in the U.S., and there has been no evidence of a connection between the spread of Bsal and herpetoculture; the captive production of reptiles and amphibians. Last year, Zoos and the pet industry voluntarily agreed to suspend imports of salamanders into the U.S., increasing speculation regarding FWS’ motivations for the listing. Some will certainly conclude that this move is less about stopping Bsal, and  more about establishing CatX in the law for more liberal future use.

Impact to Herpetoculture
Herpetoculturists will no longer be able to import listed species into the U.S., nor will they be allowed to conduct interstate commerce with captive bred specimens. Regulatory hurdles were put in place for a reason, to avoid arbitrary decision making by agency personnel, and to protect American citizens, business owners and organizations from being run over by their own government. This salamander listing appears to be more about testing the waters for future application of CatX, than stopping Bsal. CatX sets a poor precedent for process and fairness in the regulatory environment. Now that it has been established in the law, stakeholders may be dealing with the consequences of CatX for years to come.


Andrew Wyatt is a government affairs and policy consultant that works exclusively in the wildlife sector. 

WyattP2“The Lacey Act and other wildlife issues are highly charged and contentious. I specialize in working with clients to employ campaign style tactics to change hearts and minds on vital issues in the wildlife sector. Please follow The Last Word for insight and analysis particular to the 21st century wildlife sector. If you would like to discuss the potential advantages of running a targeted issue campaign, and/or a comprehensive government affairs strategy, please call or email me.” ~ Andrew Wyatt


© Andrew Wyatt and The Last Word, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Andrew Wyatt and The Last Word with appropriate and specific direction to the original content.

CatX — Quiet Storm of Lacey Act Overreach

Captive Bred Reticulated Python

Captive Bred Reticulated Python

In an unprecedented move, the U.S. Fish and Wildlife Service has empowered itself to shortcut the rule making process under the Lacey Act in order to more easily and arbitrarily declare “Injurious Wildlife” listings, and making way for the potential mass listing of species. Known as CatX, this newly enacted rule will negatively impact zoos and aquariums, research facilities, TV and film, aquaculture, herpetoculture, and the pet trade.

What is a Categorical Exclusion (CatX)?
The U.S. Fish and Wildlife Service (FWS) states:
A categorical exclusion is a class of actions under the National Environmental Policy Act (NEPA) that do not individually or cumulatively have a significant effect on the human environment. Under NEPA, Federal agencies are required to consider the potential environmental impact of agency actions prior to implementation. Agencies are then generally required to prepare either an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). However, when a Federal agency identifies classes of actions that under normal circumstances do not have a potentially significant environmental impact, either individually or cumulatively, the Council on Environmental Quality (CEQ) regulations allow the agency to establish a categorical exclusion and to bypass the completion of an EA or an EIS when undertaking those actions.

On October 29, 2015, the FWS quietly enacted a categorical exclusion (CatX), “streamlining” the rule making process necessary to list species as “injurious” under the Lacey Act. FWS will no longer be required to provide an Environmental Assessment (EA), or an Environmental Impact Statement (EIS) as supplementary documentation required by the National Environmental Policy Act (NEPA). Although seemingly innocuous, CatX removes a great deal of due process protections required by NEPA, and could spell disaster to businesses and institutions targeted by FWS.

Under the Lacey Act, importation and interstate transport of animal species determined to be injurious is prohibited without a federal permit.

What does CatX mean for you?
CatX relieves FWS of the requirement to consider economic and social impacts as part of the “human environment” under NEPA. While not every listing decision under the Lacey Act will have significant economic and social impacts, some listings would affect broad segments of the economy and millions of citizens across every state.USFWSlogo-250x300

For example, the recent listing of four constrictor snakes as injurious species has had crippling economic impacts. (Four additional species have been listed, but that action has been stayed by a court injunction.) According to FWS’s own economic analysis, the “annual retail sales losses for” listing the four constrictor snakes “are estimated to range from $3.7 million to $7.6 million.” Herpetoculture industry estimates range as high as, “$76 million to $104 million,” with much of this impact falling disproportionately on small businesses.

These impacts on the “human environment” will only worsen now that FWS has finalized CatX and applies it forward. FWS maintains an “extraordinary circumstances” exception to CatX. However that exception doesn’t include in its criteria, actions with high economic impacts. The careful consideration of economic impacts, which is currently required by NEPA, is especially important in Lacey Act decisions because the act, on its own, doesn’t explicitly require FWS to consider economic impacts in listing or permitting decisions.

Why did U.S. Fish and Wildlife Service enact CatX?
From all appearances, FWS intends to use CatX as a tool to pursue mass listing of species as injurious. Prior to CatX, it would have been difficult, if not impossible, to enact large scale listings. This rule modification could signal difficulty, not only for businesses, but for researchers and institutions that work with commercially viable species that may be targeted. The difficulty in procuring permits necessary to transport listed species across state lines will significantly increase costs to already beleaguered and underfunded research and educational programs. And because of the low priority FWS places on resources and staff for an already taxed permitting process, the listing en masse of species will likely result in an ever increasing backlog of permit applications.

History of CatX
— July 1, 2013- FWS publishes an announcement in the Federal Register of their intention to streamline the listing process to add “injurious” species to the Lacey Act by removing NEPA requirements.
July 17, 2013- U.S. Herpetoculture Alliance leads a coalition of small business stakeholders and zoological associations to Washington, DC for meetings with the Small Business Administration and Congressional leadership to secure support for opposing CatX.
July 31, 2013- closes initial Public Comment period.
January 21, 2014- reopens Public Comment period.
February 21, 2014- closes final Public Comment period.
October 29, 2015- FWS publishes the final rule in the Federal Register to add a categorical exclusion (CatX) for listing species as “injurious wildlife” under the Lacey Act.

George Sugiyama, former Chief Minority Counsel, Senate EPW ~ Troutman Sanders

George Sugiyama, former Chief Minority Counsel, Senate EPW ~ Troutman Sanders

USARK Lawsuit Challenging Authority of the Lacey Act to Prohibit Interstate Transport — In 2011, when I was 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. USARK filed that lawsuit against Interior Secretary Sally Jewell (USARK v. Jewell et al.) in the Federal District Court of Washington, DC about 11 months after I left the organization, in December of 2013. Final briefs are due February 22, 2016. Oral arguments will follow.

If USARK is successful challenging the authority of FWS to regulate interstate transport, the threat of CatX to zoos, herpetoculture, etc. will largely be negated. If FWS has no authority to regulate interstate transport, they cannot require a permit to do so. However, if the lawsuit fails outright, or on appeal, FWS will be in a position to list species arbitrarily and en masse, disrupting the ability of interested parties to move listed species across state lines, and wreaking economic havoc.

All Amphibians to be Listed as Injurious?
On September 17, 2010 the FWS published a Notice of Inquiry in the Federal Register “To List All Live Amphibians in Trade as Injurious.” The consensus has been that the process would be far too labor intensive and costly for FWS to list all amphibians in a single rule making. However, with the recent enactment of CatX, FWS could “streamline” the process necessary for a mass listing of species. Consider this aggressive timeline since last Spring:

  • May 14, 2015– Center for Biological Diversity and SAVE THE FROGS presents a petition to FWS to, “Institute an Emergency Moratorium on Imports of All Live Salamanders,” and “To List All Live Salamanders in Trade as Injurious.” The petition cites the highly controversial “Broken Screens” report from the Defenders of Wildlife, and the more recent Martel et al., 2014, published in Science Magazine.
  • August 10, 2015– FWS closes the Public Comment period on their Salamander Peer Review Plan to list salamanders as “injurious.”
  • October 29, 2015– CatX is enacted to “streamline” the process for listing “Injurious Wildlife” under the Lacey Act by removing NEPA requirements.

It appears that a proposed rule listing multiple amphibian species is forthcoming. CatX would put any rule on the regulatory fast track.

Conclusion
Regardless of the outcome of USARK v. Jewell et al., or a potential amphibian listing, it is clear that FWS is comfortable taking actions that shortcut accepted administrative procedures and NEPA, in order to realize their own politicized agenda. Regulatory hurdles were put in place for a reason, to avoid arbitrary decision making by agency personnel, and to protect American citizens, business owners and organizations from being run over by their own government. CatX sets a poor precedent for due process/fairness in the regulatory environment. Stakeholders may be dealing with the consequences of this ill-gotten rule for years to come.

“I welcome questions below in the comment section. I’m  always happy to clear confusion resulting from the actions of FWS, or potential implications for you. Let me know.” ~Andrew


Andrew Wyatt is a government affairs and policy consultant that works exclusively in the wildlife sector.

WyattP2“The Lacey Act and other wildlife issues are highly charged and contentious. I specialize in working with clients to employ campaign style tactics to change hearts and minds on vital issues in the wildlife sector. Please follow The Last Word for insight and analysis particular to the 21st century wildlife sector. If you would like to discuss the potential advantages of running a targeted issue campaign, and/or a comprehensive government affairs strategy, please call or email me.” ~ Andrew Wyatt


© Andrew Wyatt and The Last Word, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Andrew Wyatt and The Last Word with appropriate and specific direction to the original content.

Punch and Counter Punch: Does Lacey Act Have Authority Over Interstate Transport?

Reblogged from the US Herpetoculre Alliance.

“The reptile keepers trade association has filed suit against DOI Secretary Sally Jewell and US Fish and Wildlife Service, challenging among other things, the authority of the Lacey Act to limit interstate transport of Injurious Wildlife. The government has now entered a motion to dismiss. It will be intersting to see if the reptile keepers will be able to amend their pleading and survive this preliminary action.” ~ Andrew Wyatt

USARK v. Sally Jewell et al. Part One: Procedural Posture

Posted on February 25, 2014 by  Walsh

logo5The US Herpetoculture Alliance is receiving a lot of inquiries regarding the complaint filed by the United States Association of Reptile Keepers on December 18, 2013 against Sally Jewell, Secretary of the Interior, and US Fish and Wildlife Service challenging the Constrictor Rule to the Lacey Act.  We are not involved in the litigation and are not consultants on the litigation.  However, we are glad that USARK has taken affirmative action on behalf of herpetoculture to challenge what we agree is a completely aribitrary and capricious rulemaking.

This will be a series of blogs intended to help clarify the proceedings for non-lawyers.  These blogs are not intended as legal advice; we are simply reporting on the case progression and offering opinions as we see the issues.

Procedural Posture:  Where do we stand?

What is the Constrictor Rule?  On March 12, 2010, the US Fish & Wildlife Service (“FWS”) proposed a rule to add nine large constrictors to the list of injurious species under the Lacey Act.  On January 23, 2012, Defendants enacted a partial rule, adding four of the nine species (Burmese python, North African python, South African python, and yellow anaconda) to the injurious list.  The Constrictor Rule prohibits not only importation, but all interstate transport of the four species of large constrictors.  Defendants have yet to act on the remaining five constrictors, but it appears that a finalization of the Constrictor Rule to add additional species is imminent.

USARK files its lawsuit.  

What is USARK asking for?

USARK filed a complaint for injunctive relief and declaratory judgment.  This means that they are asking the Court to enter an order stating:

  • That in issuing the Constrictor Rule, Defendants violated the Administrative Procedure Act (“APA”) and the National Environmental Policy Act (“NEPA”);
  • That the Defandants lack legal authority to ban interstate transportation and commerce in the listed species because the ban on interstate transportation and commerce of injurious species is through administrative rule making and exceeds the expressed language of the Lacey Act;
  • That the Defendants enactment of the Constrictor Rule is ultra vires (meaning beyond their powers) and contrary to law;
  • Enjoining (barring) Defendants from applying the Constrictor Rule;
  • That FWS be required to prepare a lawful environmental impact statement and rational basis for any new rule proposed; and
  • Awarding USARK its costs and attorneys’ fees.

USARK is not seeking monetary damages in its action for injunctive relief and declaratory judgment.  This means that if USARK were to win, the provisions set forth above are what it has requested in its prayer for relief.  That is what USARK is asking for from the Court.

USARK’s arguments.

USARK argues that FWS was arbitrary and capricious in its enactment of the Constrictor Rule under NEPA and APA.

NEPA argument.  USARK alleged that Defendants failed to follow NEPA’s statutory requirements in that FWS did not prepare an environmental impact statement (“EIS”) and that its environmental analysis (“EA”) was inadequate.

APA argument.  The APA provides a right of review to persons adversely affected by an agency action within the meaning of a relevant statute.

  • USARK is claiming that in prohibiting interstate transport of the four species of constrictor snakes, FWS has exceeded its authority under the statutory provisions of the Lacey Act.
  • It also argues that Defendants failed to provide  reasoned bases for the enactment of the Constrictor Rule.

The Motion to Dismiss

Once a complaint is filed, the defendants have a proscribed amount of time in which to respond or otherwise plead.  In this case, Defendants filed a Motion to Dismiss.  A motion to dismiss is a predictable response.  It is the first volley from a defendant to see if they can get rid of a case due to pleading defects or other bars to a cause of action.

Defendants brought their Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

FRCP 12(b)(1) states that a case should be dismissed when the court lacks subject matter jurisdiction.  Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter.

FRCP 12(b)(6) allows a motion to dismiss for failure to state a claim upon which relief can be granted (pleading deficiencies).

Defendants first attack USARK’s standing to bring the complaint.  In very general terms, standing is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case.  There are some nuances that fall under the umbrella of standing.  Here, Defendants claim that USARK lacks prudential standing as well as constitutional standing.

Without getting into a lengthy legal discussion on standing, Defendants make a good argument about USARK’s lack of standing and Herp Alliance believes that the USARK complaint will be dismissed without prejudice on the basis of standing.  

This is not a fatal flaw.  It means that there are marks of haste in the USARK complaint and it was not drafted as carefully as it could have been.  If the Court dismisses the Complaint without prejudice, USARK will be given leave to amend its Complaint in order to cure its pleading defects.  The net result is that some time and money are wasted but USARK will likely be given a “do-over” for at least its actions under the APA, but only under NEPA if it can allege facts that establish that it has an environmental interest .

Defendants next argue that the statute of limitations has run on USARK’s challenge to the interstate transport issue because the regulation was established in 1965 and USARK is now time barred.  Herp Alliance believes that this argument is nonsensical and Defendants will not prevail on this argument.

Finally, Defendants argue that Count IV is duplicative of Counts I, II and III, which it likely is.

Conclusion

Herp Alliance believes that the Defendants’ Motion to Dismiss will be granted in part and denied in part.  As a result, we believe that USARK’s Complaint will be dismissed without prejudice and USARK will be granted leave to amend its complaint to cure the deficiencies that exist in the original pleading.

The net result is some lost time and money on attorneys’ fees without yet getting to the merits of any claim that can be asserted by USARK once its complaint is properly pled.  At this point, it is premature to conjecture as to Defendants’ responses to USARK’s substantive allegations because their Motion to Dismiss is technical and not a response to the factual allegations in USARK’s Complaint.