Tag Archives: Lacey Act

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

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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.

Pythons, Politics, Rumor & Controversy: Clarification on the Constrictor Rule

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This article has been re-posted from the US Herpetoculture Alliance at http://usherp.org/?p=3137

The Thanksgiving notification given to the Office of Information and Regulatory Affairs (OIRA) by US Fish & Wildlife Service (FWS) that there would be another step toward the finalization of the Constrictor Rule in early 2014 has turned the herpetoculture industry on its ear. Confusion is rampant in the community. Accusations have been leveled as to responsibility, and the reptile and pet industry trade associations are scrambling trying to effect damage control. But the situation is not nearly as complicated as some would make it out to be.

photo: USGS- Green Anaconda

photo: USGS- Green Anaconda

At stake here is the trade in large constricting snakes that have been slated for addition to the Injurious Wildlife List of the Lacey Act. In 2011 FWS proposed a rule to add nine constricting snakes to the Injurious Species List. The trade in these nine species was estimated to be in excess of $100 million annually, potentially making the rule fall into the “major” rule classification which would mandate that the rule making process be rigorous and subject to information quality standards.

Subsequently, FWS published a partial rule in the Federal Register in January 2012; listing four of the proposed nine snakes on the injurious list, and holding the remaining five out as continuing to be “under consideration.” Since the rule was published USARK, PIJAC and US Herpetoculture Alliance have gone back and forth to Washington DC discussing further finalization of the ‘Constrictor Rule’ in order to remove the onus of the “under consideration” designation from the remaining five snakes that were not listed. The argument was this designation was tantamount to a de-facto listing and was destroying legal trade.

US Fish & Wildlife Service Seeks To Add More Snake As Injurious Wildlife

US Fish & Wildlife Service Seeks To Add More Snake As Injurious Wildlife

Fast forward to Monday, December 2, 2013. The US Herpetoculture Alliance was made aware that FWS had notified OIRA of it’s intention to finalize in full, or in part, the listing of the remaining five snakes still “under consideration” as a part of the ‘Constrictor Rule’. As reported, the notification abstract published last week indicated: “We are making a final determination on the listing of five species of large constrictor snakes as injurious wildlife under the Lacey Act: Reticulated python, DeSchauensee’s anaconda, green anaconda, Beni anaconda, and boa constrictor. Four of the nine proposed species were listed in 77 FR 3330. This rule will determine the status of the remaining five species under the same RIN.” ~ US Fish & Wildlife Service, December 2013

In the wake of this discovery we began to further research the FWS/ OIRA records over the last year. We found an even more ominous notification from July 2013 that no one had ever reported on: “We are making a final determination to list four species of large constrictor snakes as injurious wildlife under the Lacey Act: Reticulated python, DeSchauensee’s anaconda, green anaconda, and Beni anaconda. The boa constrictor is still under consideration for listing. Four of the nine proposed species were listed in 77 FR 3330. This rule will list four more under the same RIN. One more species will remain under consideration for listing under the same RIN.” ~ US Fish & Wildlife Service, July 2013

Both of these notices are part of the public record. They are not privileged information. They are available to anyone who looks for them. Neither notice is subject to interpretation. They are both the exact language used by FWS. Please follow the links and read them for yourself.

“Three things cannot be long hidden: the sun, the moon, and the truth.” ~ Buddha

The reality is that this is not super secret national security stuff. It is all public record. FWS has sent clear signals that they intend to finalize the ‘Constrictor Rule’ very soon; probably by February 2014. What is also very clear is that, according to their own notice, they will likely add reticulated pythons and the three remaining anacondas to the Injurious Wildlife list of the Lacey Act; while continuing to leave boa constrictors “under consideration” for future listing.

photo: USGS- Boa Constrictor

photo: USGS- Boa Constrictor

The biggest question in our mind is whether FWS will actually stop short of listing boa constrictor. We think that they will not include boa constrictors in this action, but they can do whatever they want, and publish whatever they want. They are NOT restricted by the notices they have made a part of the public record. The Herp Alliance truly hopes that FWS will decide NOT to list any more snakes. We will not know for sure until FWS publishes the final rule in the Federal Register.

In 2012 the “rumor” circulating among Washington insiders was that only two snakes would actually get listed in the final rule. As you know four were listed. Today our best guess is that four of the remaining five will get listed; with reticulated pythons being added to the list and boas escaping for the time being. We sincerely hope it will not be all five that get listed. Our endeavor is to make the best information available to the herpetoculture community. We hope this clarifies some of the confusion.

Lacey Act Listing Used to Limit Trade in Species: How you can succeed in today’s market.

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“The price of freedom is eternal vigilance.” ~ Thomas Jefferson

63208ab5-08b1-45a9-b6c8-7dc026a87be0fullIn recent years the 113 year old Lacey Act has been turned into a one size fits all tool used arbitrarily by US Fish & Wildlife Service (FWS) to limit trade in animal and plant species they hold in disfavor. As a conservation tool, the Lacey Act has proven cumbersome, rigid and ineffective. While it may be argued that continued import of certain species may not be necessary, Lacey also restricts interstate transport. Restricting interstate trade in exotic species that have been in the country for decades has little to no conservation value and seriously undermines legitimate business, research and conservation efforts.

The Lacey Act was originally passed into law in 1900 in order to control poaching of wild birds for the feathered women’s hat trade that flourished at the time. The act made it a felony to poach birds in one state and sell their feathers or parts across state lines. Over 264575_210697215640070_6306357_n5-300x225the years it has been amended over and over again into an ungainly, overcomplicated statute that has far overreached its original intent without providing practical value as a real conservation tool. FWS seeks to further expand powers by advocating further amendments and pushing new rules that would remove most of the due process in order to pursue mass listings of potentially hundreds of species at once. The current proclivity at FWS seems to be that anything non-native to the US is a danger.

The two most negatively impacted interests are vintage guitars and herpetoculture (closed system production of high quality reptiles & amphibians). In both cases, these interests are precluded from transporting their products across state lines because certain species of interest (wood for guitars and snakes for herpetoculture) have been listed on the Lacey Act. These animals and guitars, some of which have been in the US for decades, are land locked in the states in which they currently exist due to Lacey restrictions. Although in theory permitting is available, it is demanding and time consuming, with, in many cases, significant delays in processing by FWS.

It is clear that some of the actions by FWS regarding recent listings and rule changes areIC1111_CC380x300-resize-380x300 on a shaky legal foundation. Unfortunately the inability or unwillingness of pertinent trade associations to challenge these actions in federal court have emboldened FWS to take ever increasingly aggressive action toward the mass listing of hundreds of additional species. This leaves responsible business owners on their own in the face of an increasingly difficult business environment.

On the bright side, there is real potential to streamline the permitting process for interstate transport and export, in some cases the opportunity to obtain blanket permitting, and avoid costly shipping delays whether shipping is to another state, or for export to Europe and Asia. I am in a position to help vintage guitar dealers and animal professionals to navigate the maze of government bureaucracy. Whether you are a zoo or aquarium, research facility, or a private business, I can likely save you time and money.