H.R. 6362: Injurious Wildlife Revisited

Burm_2018

Large Burmese python captured in the Florida Everglades

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

Legislative History
“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.

Conclusion
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!

Andrew_Bolton 2018

Andrew Wyatt and National Security Advisor John Bolton in the “Green Room” at FOX News

“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


©Andrew Wyatt and The Last Word on Wildlife, 2018. 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. Material posted from guest writers is the sole intellectual property of the author. Please seek permission directly from the author prior to reproducing in whole or in part.

Animal Ambassadors: 21st Century Conservation — Doc Antle’s Tiger Tales

I attribute the perfect safety record here at TIGERS/RSF to the fact that we have evolved our zoological model to focus on socialization, training and rigorous enrichment opportunities. — Doc Antle, October 2017

Read more via Animal Ambassadors: 21st Century Conservation — Doc Antle’s Tiger Tales

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…

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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.