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.

Will Hunting Save Lions From Extinction?

african_lion_king-wideAfrican lions are one of the most charismatic species on the planet. Images of the King of the Jungle are etched deeply into our collective conscience. The debate on how best to conserve lions has been stirred anew with a recent Twitter post by TV hostess Melissa Bachman who killed a “trophy” lion while on safari in Africa. The image of a rifle-toting Bachman posing over the carcass of a dead lion offended activists and animal lovers alike. However, Twitter hype aside, the hunting/conservation of African lions is a controversial topic that begs a thorough understanding of the facts.

In 2011 US Fish & Wildlife Service (FWS) was petitioned by animal rights activists  to add African lions to the Endangered Species list, sharpening the divide of an already philosophically polarized conservation community. Contradicting the underlying premise of the petition, at a recent lion workshop hosted by FWS, three experts on African lions agreed that the lion, in their opinion, is not currently in danger of extinction. The International Union for Conservation of Nature (IUCN), the central body in conservation for the African lion, currently lists lions as “vulnerable” on their Red List of Threatened Species.

All agree that populations of lions have declined significantly. According to a study authored by Professor Stuart Pimm of Duke University in 2012, about 75 percent of Africa’s savannahs and more than two-thirds of the lion population once estimated to live there have disappeared in the last 50 years. There are likely between 32,00 and 35,000 free ranging lions on the African continent today. According to professor Pimm, “massive land-use change and deforestation, driven by rapid human population growth” is the primary reason for the decline of the lion.

lions-550Sixty percent of all lions harvested in Africa are destined for trophy rooms in the United States. Proponents of an Endangered Species listing claim the issue is a “no brainer.” Allowing hunters to harvest lions and export trophies back to the US sends the wrong conservation message. They say lions would be best conserved by blocking access to American hunters, thereby reducing pressure on lion populations. Jeff Flocken of the International Fund for Animal Welfare (IFAW), the group spearheading the petition to list lions on the Endangered Species Act (ESA), wrote, “Why should anyone spend money to protect an animal that a wealthy American can then pay to go kill?” Mr Flocken characterizes his argument as common sense, but acknowledges that, habitat loss and human-lion conflict, not hunting, are the primary causes of the lions’ disappearance from Africa.

“As human-lion contact increases, so does human-lion conflict, resulting in reductions in lion numbers (through poisoning, trapping and shooting) and lack of support for lion conservation among local communities.” ~ IUCN SSC Cat Specialist Group

It is absolutely essential that local communities identify the presence of lions as a direct benefit to them. Reducing human-lion conflict is critical to conservation success. According to Dennis Ikanda, of the Tanzania Wildlife Research Institute’s Kingupira Research Centre, his country generated $75 million in lion hunting from 2008 to 2011. Opponents of an Endangered Species listing assert that trophy hunting is the only thing standing between the lions and extinction. Although those claims may seem counter intuitive, the money generated by hunting is being plowed back into the local economy, into conservation measures and into protecting lions from poaching. Hunting advocates say the only chance for survival of the lions is management as a valuable and sustainable natural resource.

Melissa Simpson of Safari Club International Foundation wrote in an opinion piece for the National Geographic Society, “If the (FWS) were to take regulatory action and put the African lion on the Endangered Species list, it would be in spite of the overwhelming scientific evidence to the contrary. Such an overreaching decision would deprive the countries that grapple with lion management the resources they need the most. And the most essential resource is money.”  Hunting advocates believe that more closely monitored hunting and the millions of dollars injected into management, conservation and the local economy is the best way to conserve lions.

photo: Hilton

photo: Hilton

Additionally, proponents of listing insist that adult male lions being harvested are in fact dominant pride males in their breeding prime. They assert that harvesting pride males destroys pride stability by instigating less dominant males to cull the former pride male’s cubs in order to establish themselves, thereby disrupting the natural pride dynamic and throwing breeding cycles into chaos. If this were true, and management practices didn’t focus on males who have passed their prime, then damage to pride stability would be a serious problem.

Hunting advocates have argued that it is irresponsible and unsustainable to harvest pride males in their prime. Responsible game management practices dictate only aging males that have passed their prime and are often alienated from the pride should be harvested. These are males that were possibly once dominant, but have become too old (6+ years) to maintain status within the pride structure.

Although the idea of trophy hunting does not enjoy wide popularity, its value as a pragmatic conservation tool has proven to have merit. The questions are, will an Endangered Species listing relieve pressure on lion populations? Or will blocking American hunters from harvesting lions remove economic incentives necessary to protect a valuable resource?

Best-African-Safaris-Beyond-6

photo: Elana Castle

Animal rights advocates dismiss the conservation benefits of hunting. However, a study of trophy hunting by the University of Zimbabwe supports claims of conservation success tied to responsible hunting practices. Peter Lindsey, the lead author of the study, wrote,  “trophy hunting is sustainable and low risk if well managed.” Lindsey continued, “Trophy hunting was banned in Kenya in 1977, in Tanzania during 1973–1978, and in Zambia from 2000 through 2003. Each of these bans resulted in an accelerated loss of wildlife due to the removal of incentives for conservation.  Avoiding future bans is thus vital for conservation.” When local communities are not incentivized to protect lions they are subsequently killed.

To date there appears to be no clear evidence that would support the premise that listing lions as endangered in the USA would inure conservation benefit to lions in Africa; to the contrary, listing could undermine real conservation efforts by diminishing the value of lions to local African communities.

Admittedly, oversight of hunting practices in Africa is not likely to be commensurate to standards in the west anytime soon. Trophy hunting is by no means a perfect solution, but the IUCN Cat Specialists Group says, “Properly managed trophy hunting was viewed as an important solution to long-term lion conservation.” There will always be some abuse from unscrupulous individuals. But the monetary incentive to mange sustainable lion populations for hunting is the only protection lions currently have. Removing economic incentive for Africans to conserve lions has been demonstrated to be counterproductive. Working to improve oversight and lion management should be a priority. Until a better conservation model proves it’s mettle, responsibly managed hunts are the best chance for lions to survive in Africa.

photo: Philip Briggs

photo: Philip Briggs

“Well, we all worked together. Worthy deeds were accomplished.” ~ The Ghost and the Darkness

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WyattP2The position of FWS on listing African lions as Endangered Species under ESA is transitioning. The initial 90 day finding following the petition was concluded in November 2012 with a finding of “Substantial.” The subsequent 12 month finding prior to potentially posting a proposed rule in the federal register is due later this week. Expect FWS to fail to meet that deadline.

Because of the charismatic nature of the African lion this promises to be a politically charged process. Please follow The Last Word for important news and insight on this critical issue. If you would like to discuss the potential implications for you, and/or the advantages of a comprehensive government affairs strategy, please call or email me. ~ Andrew Wyatt

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

“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.