USARK v Jewell et al.: An Update as of April 9th

320px-Caramel_burmese_pythonThere has not been much action since the defendants in USARK’s lawsuit filed their Reply in support of their Motion to Dismiss USARK’s complaint.

On or around March 25th, USARK issued a statement, ostensibly written by Kelley Drye (“KD”), defending their performance to date in the lawsuit.   Since that time, two things have been filed.

First, on March 31st, KD partner, David E. Frulla, filed his Appearance on behalf of USARK.  Although Shaun Gehan will apparently remain on the case, KD has assigned a partner to the matter now as well. This should be a welcomed change. Frulla has impressive credentials.  Although a partner with his qualifications is going to come at a handsome price, his experience and oversight can only help.

Second, on April 1, 2014, USARK filed its Motion for Oral Argument.  The Court has discretion to hear oral arguments on the Motion to Dismiss or to rule on the pleadings.  In this case, USARK feels that the complexities of its position require clarification in the form of oral arguments to the Court.  No decision yet as to if and when the Court will hear oral arguments.

In its March 25th statement, KD claims that they have developed, a “reasonable budget” for this lawsuit.  However, they have declined to name a figure.  The frenetic fund raising that ushered in this lawsuit seems to have subsided to a certain degree, but stating their fundraising goals and how close they are to achieving those goals would probably assist with their fundraising efforts.

KD goes on to opine that discovery in this case will somehow be cheaper because the government is required to produce its record.  Regardless of the source of the documents, properly preparing a case for litigation will require a thorough review of those documents, a review that must now be done by two partners at two law firms.  Although discovery requests can be expensive, the bulk of the fees incurred lie in reviewing, analyzing and strategizing on how to use those documents.

281px-Ball_python_lucyNonetheless, KD has a budget. Hopefully that budget is not in the nature of a flat fee.  After all, if a buyer offers to pay a seller a $10,000 flat fee and tells the seller to send him snakes, the seller has the option to send one normal ball python or 25 coral glow ball pythons.  It is not difficult to surmise what the buyer is likely to receive.  The more snakes he sends, the lower his profit margin.  Law firms operate on the same economics as any other service business.

This is not a simple case and it is, in some respects, a case of first impression. We continue to like some of USARK’s legal arguments, but winning them will require sophisticated lawyering, creative and competent arguments, and more attention to detail.  One thing that KD did not address in their post was why USARK’s response brief to the Motion to Dismiss was filed with so many errors that a Notice of Errata was required.

KD has incorrectly stated that Herp Alliance has criticized the lawsuit for not seeking monetary damages.  We have never done so, but we have taken the time to summarize issues at various times when explanations were not forthcoming elsewhere, and we will continue to do that.  Rather than wasting time in a defensive posture to our posts, we wish KD would focus their attentions and their billable hours on the case at hand, a case that has drastic ramifications for the Reptile Nation, for herpetoculture, and to the thousands of species whose ultimate survival may depend on captive breeding.

We have said every time we have mentioned this suit that those who have an interest in large constrictors should dig deep and donate to this lawsuit, and we will repeat that request now.

 

Illinois Introduce the Herptiles-Herps Act

IDNROn January 23, 2014, Illinois Senator John J. Cullerton (D) introduced Senate Bill 902 which pertained to deer hunting.  On February 18, 2014, the primary sponsor of SB 902 was changed to Senator James F. Clayborne, Jr. (D).  On March 17, 2014, Senator Clayborne amended SB 902 into The Illinois Herptiles-Herps Act .  See SB 902 First Amendment.

SB 902 is substantially similar to SB 2362 which was introduced in the 2013 session.  It seeks to carve out all herpetofauna and to deal with them in a separate statutory section all to themselves. It is a proposed “herp code.” It states specifically that:

For purposes of this Act, reptiles and amphibians shall be exempt from the definition of “aquatic life” under Section 1-20 of the Fish and Aquatic Life Code. All rules and enforcement actions under the Illinois Conservation Law and the dangerous animals provisions in Section 48-10 of the Criminal Code of 2012 related to reptiles and amphibians shall be covered exclusively by this Act.

Under current Illinois law, it is illegal to privately keep any venomous or life threatening reptile. The Illinois Supreme Court has ruled that pythons of 15′ in length are life threatening and therefore illegal.

SB 902 would lift the prohibition on large constrictors currently in place, and instead proposes certain “captive maintenance requirements” as set forth in the bill are met.

SB 902 would also make it legal to keep certain venomous snakes, crocodilians, Komodo dragons and crocodile monitor lizards with a permit only if used for bona fide educational purposes.

SB 902 makes it unlawful to buy, sell or offer to sell any aquatic or semi-aquatic turtles with a carapace of under 4″ or their eggs in the state. This means that the Illinois State Department of Natural Resources could enforce the 4″ provision of aquatic or semi-aquatic turtles without FDA.

SB 902 imposes insurance requirements and liability on owners of all of the “special use herptiles” within the bill and provides for criminal and civil penalties for noncompliance.

Herp Alliance endorses SB 902.

 

Ohio Budgets $995,000 to its Dangerous Wild Animals Act

Ohio Governor Kasich

Ohio Governor Kasich

Ohio Representative Ron Amstutz (R) introduced Ohio House Bill 483 on March 18, 2014 to make operating and other appropriations and to provide authorization and conditions for the operation of state programs.  Out of its $2.38 billion appropriations bill, Ohio has budgeted $995,000 toward its ill conceived Dangerous Wild Animals Act. Of this amount, $800,000 is earmarked for the administration of its  Dangerous and Restricted Wild Animal Permitting Program.

As of December 31, 2013, no permits had been issued pursuant to the Dangerous Wild Animals Act.  (http://wosu.org/2012/news/2013/12/31/no-permits-issued-yet-for-ohio-exotic-animal-owners-in-2014/ )

The $2.9M Exotic Animal Penitentiary in Reynoldsburg, Ohio.

The $2.9M Exotic Animal Penitentiary in Reynoldsburg, Ohio.

During the hearings on SB 310, the ballot initiative that became the Ohio Dangerous Wild Animals Act, Senator Troy Balderson, the bill’s sponsor claimed that it would cost the state of Ohio $800,000 to implement SB 310 into law.  Already, Ohio has spent $2.9M on its exotic animal containment facility in Reynoldsburg that sat empty for all of 2013, and now it is allocating another $995,000.

SB310 bill signing

Governor Kasich, Senator Balderson and Jack Hannah, at the SB 310 bill signing.

Governor Kasich’s Big, Expensive Blunder is now 487% over budget, and they are only three months into the program.  Ohio voters, particularly those in Senator Balderson’s district, should pay attention.

Governor Kasich’s 2014-2015 budget cut $1.9M in taxes, shifting the tax burden from the affluent to middle- and lower-income families.  It denies Medicaid funding to 275,000 low income workers, and Ohioans will foot the bill for oil and gas drilling.  His education funding is $607M lower than it was in 2010-2011, and Ohio homeowners are losing their tax rollback on future new and replacement levies.  But they have a $2.9M exotic animal penitentiary and $995,000 to spare on their over bearing, unnecessary permit system.

Ohioans should be very ashamed of their local government.

 

USARK v. Jewell et al. Haste Makes Waste

haste-makes-waste-printAs Herp Alliance previously reported, USARK filed its brief in opposition to the motion to dismiss filed by the government defendants.  In our report, we noted signs of haste in USARK’s pleading.

On March 10, 2014, USARK filed its USARK Notice of ErrataUSARK Corrected Response and Exhibits to Corrected Response.  (Copies of all three documents can be viewed through the linked text.)  Although USARK will not be penalized because it took advantage of a three day extension in filing its corrected version of its Opposition, it is likely that the government’s Reply brief will now be delayed as well.

 

UPDATE: Louisiana SB 357

LA MapHerp Alliance has opened a dialogue with Chairman Long’s office regarding Louisiana Senate Bill 357.  We have confirmed that SB 357 will not be called for hearing before the Senate Natural Resources Committee next week.  We will update the Reptile Nation with developments.

In the meantime, please review our Herp Alliance SB 357 Talking Points and if you are a Louisiana resident, please write, email or fax your Louisiana State Senator and members of the Senate Natural Resources Committee (below).

Committee Members

Senator Gerald Long (Chairman)
P.O. Box 151
Winnfield, LA 71483
(318) 628-5799
longg@legis.la.gov
Senator Rick Ward, III (Vice-Chairman)
3741 Highway 1
Port Allen, LA 70767
(225) 246-8838
wardr@legis.la.gov
Senator R.L. “Bret” Allain, II
600 Main Street
Suite 1
Franklin, LA 70538
(337) 828-9107
allainb@legis.la.gov
Senator “Jody” Amedee
2109 S. Burnside Ave.
Suite A
Gonzales, LA 70737
(225) 644-1526
amedeej@legis.la.gov
Senator Norbèrt N. “Norby” Chabert
P.O. Box 2417
Houma, LA 70361
(985) 858-2927
chabertn@legis.la.gov
Senator Jean-Paul J. Morrell
6305 Elysian Fields Ave.
Suite 404
New Orleans, LA 70122
(504) 284-4794
morrelljp@legis.la.gov
Senator Dan “Blade” Morrish
119 W. Nezpique Street
Jennings, LA 70546
(337) 824-3979
morrishd@legis.la.gov
Senator Page Cortez (Interim Member)
101 W. Farrell Road
Bldg. 5, Suite 100
Lafayette, LA 70508
(337) 993-7430
cortezp@legis.la.gov

UPDATE: West Virginia HB 4393

capitol buildingHerp Alliance has spoken to Governor Tomblin’s aide. The Governor has not yet received HB 4393 and has therefore not reviewed it.  Herp Alliance has opened a dialogue with the governor’s office and we will report on future developments.

Some tips on dealing with this issue:

  • Please do NOT contact Governor Tomblin unless you are a West Virginia resident or you do business in West Virginia.  You will cause them to have animosity to our issues, and West Virginia does not care about your opinion if you are not a constituent.
  • If you have already contacted Governor Tomblin’s office, do not contact them again unless you have something new to say or to add.  HB 4393 has already passed out of both chambers.  Alienating the Governor will damage our credibility.
  •  Governor Tomblin did NOT veto this bill last year.  In 2012 he vetoed a similar bill.  In 2013, a similar bill passed the Senate but was never called in the House Committee for hearing.   If you call, please be sure you have the correct facts.
  • Be courteous. This Governor has demonstrated the courage to do the right thing in the past.  Please do not alienate him or his office staff.
  • HB 4393 has the strong support of HSUS.  Please be clear on your facts, and be professional.  There are plenty of good, legitimate reasons for Governor Tomblin to veto this bill and the argument needs to be coherent and persuasive.

The Elephant in the Room with the Reptiles

As a litigator myself, I have always told clients that litigation is like finding a piece of string on the floor that leads out a closed door. Sometimes, when you pull on that string, a ball of yarn rolls to your feet.  But sometimes, you pull that string, and an elephant walks into your sitting room.

boa constrictor elephant2On December 18, 2013, USARK filed its Complaint against Sally Jewell, Secretary of the Interior, and US Fish and Wildlife Service challenging the Constrictor Rule to the Lacey Act.

The Defendants responded with a highly technical Motion to Dismiss and USARK responded with an even more technical Response containing a tortured explanation of how USARK is now a conservation organization.  We await the government’s Reply which is due within the week.  So far, all of the legal wrangling pertains to pleading deficiencies alleged by the government in USARK’s Complaint.

As Herp Alliance has stated repeatedly, we think that USARK will be able to amend its Complaint to correct those pleading deficiencies such that it can overcome the hurdle of standing.

So far, this has little to do with arbitrary and capricious rule making or a reach by the government through the Lacey Act to try to restrict interstate commerce, which is the meat of USARK’s complaint.

We have been asked repeatedly for our opinion of USARK’s case.  The strength of a lawsuit does not lie solely in the application of facts to the law.  We like USARK’s legal argument.  Nonetheless, the case is weak, very weak, and for one major reason:  money.

If the rumors on Facebook are true, USARK has raised $137,000 toward the lawsuit.  If this lawsuit goes to trial, it will easily cost more than ten times that amount, which is far more money than USARK has.  Without the funds to continue the fight, the case will die on the vines.  The government knows that USARK is underfunded, and their legal team is probably acutely aware that USARK is going to labor intensely just to make it through discovery, much less early dispositive motions like the pending Motion to Dismiss.

Individuals who are invested in the interstate commerce of large constrictors should reach deeply into their pockets now and donate to USARK’s Legal Defense Fund if they want this lawsuit to continue, otherwise there will be little chance to succeed.

USARK's lead attorney, Shaun Gehan, announced today that he has left Kelley Drye and started his own firm.

USARK’s lead attorney, Shaun Gehan, announced today that he has left Kelley Drye and started his own firm.

Another problem for USARK is that their lead counsel, Shaun Gehan, the attorney who has so far signed all of USARK’s pleadings, announced today on LinkedIn that he is no longer with Kelley Drye and has started his own firm.  Although Kelley Drye is a very large firm with tremendous legal resources, the abrupt departure of USARK’s lead counsel and presumably the attorney most knowledgeable about the case, is very bad news for USARK.  Yes, another attorney can step into those shoes, but it will be expensive to bring that attorney up to speed.

But the frailties of the federal lawsuit are not the elephant in the room with herpetoculture today.  We have a much bigger problem on our hands, and that problem is the landslide of state ballot initiatives that are marching unfettered across the country right now.  Even if USARK wins the federal lawsuit, it will be immaterial if it is illegal to own herps at the state level.

USARK has not testified at any of the state level committee hearings in 2013 or states2014.  Andrew Wyatt, former President and CEO of the Herp Alliance, testified at the Committee Hearing of Maryland House Bill 1124 (Criminal Possession of Dangerous Wild Animals), where the bill sponsor had Debbie Leahy (Captive Wildlife Regulatory Specialist, HSUS) seated at his side to present the bill to the House Committee.  Prior to joining HSUS, Leahy founded the animal rights group Illinois Animal Action, which she headed for eight years. She then joined PETA and lead their nationwide campaign against circuses and roadside zoos. PETA has bragged about Leahy that she “has dashed onto killing fields to disrupt pheasant hunts,” and “dressed as a giant rabbit to protest cruel animal tests.”

stop_sign_HSUSDebbie Leahy is not an attorney.  She is an extreme animal rights activist.  And she sat in the Maryland General Assembly aside Representative Eric Luedtke and presented a piece of legislation to the House Environmental Matters Committee and helped deliver a first reading of a bill.  This is a single example.  Lousiana is currently trying to outlaw carpet pythons, among others, and the enormous, over-reaching West Virginia Dangerous Wild Animals Act sailed through both chambers virtually unopposed and now sits on Governor Tomblin’s desk.  HSUS is clear on its web site that it believes all reptile ownership should be forbidden:

“Captive snakes and other reptiles are difficult and dangerous to care for, and released or escaped snakes wreak havoc on the environment.”

HSUS (http://www.humanesociety.org/issues/exotic_pets/).

The animal rights industry is winning the war against reptiles with bill after bill going unopposed across the United States.  Being allowed to ship Burmese pythons between states will be an expensive and meaningless victory if it is a criminal act to own them privately.

2014 may be a turning point for herpetoculture and the time to act is upon us.

VETO West Virginia HB 4393

veto HB 4393On March 6, 2014, the West Virginia Senate passed House Bill 4393, the Dangerous Wild Animals Act, on a vote of 69 yeas, 23 nays, and 8 not voting.

This bill is over reaching, unnecessary, creates an unfunded mandate for the state and is unconstitutionally vague.  The only hurdle that remains before it becomes law in West Virginia is Governor Tomblin’s signature.  In 2012, Governor Tomblin had the strength of conviction to veto a very similar bill, and Herp Alliance has asked him to use that same strength in exercising his veto again.

Please click on the links below to see our letter to Governor Tomblin and to download talking points on HB 4393.

Herp Alliance letter to Governor Tomblin urging him to veto HB 4393.

Herp Alliance HB 4393 Talking Points

USARK Responds to the Motion to Dismiss

Seal_of_the_U.S._District_Court_for_the_District_of_ColumbiaOn February 8, 2014, USARK filed USARK’s Response to the Defendants’ Motion to Dismiss  USARK’s Complaint. Also attached to the filing were Exhibits, which include a number of declarations (affidavits) of individuals, including USARK president, Philip Goss as well as members and supporters of USARK.  The Response filing date was one day past the due date.

It’s important to understand the procedural posture.  A motion to dismiss challenges the legal sufficiency of a claim.  It does not consider the merits of a case.  Here, the government challenged USARK’s complaint based on standing, a statute of limitations argument, and an argument that one count is duplicative of prior counts.

If USARK loses the motion to dismiss, it is nearly a certainty that the Court will give USARK an opportunity to amend its complaint in order to meet the federal pleading requirements.  Losing the motion to dismiss, if it happens, is not at all equivalent to losing the case, unless it is dismissed without leave to amend.  The court will conduct a hearing on the Motion to Dismiss before it rules.

In either case, winning or losing the motion to dismiss, does not in any way forecast the outcome of this lawsuit. (Not unless the complaint is dismissed without leave to amend.)

USARK’s Response takes a fair run at the legal substance of the Motion to Dismiss and the exhibits attached to it include factual allegations which should be sufficient for the complaint (or an amended complaint) to ultimately survive this volley.  Including some of those allegations in the original complaint may have avoided the time and expense of briefing and arguing the present motion to dismiss.

The bigger question that is raised by the Response is USARK’s allegations that  USARK “is dedicated to conservation through captive propagation” and “espouses the ideal of … supporting programs that ensure the preservation of threatened and endangered species around the world.” (Response at pp. 3-4.)

USARK is organized as a 501(c)(6) trade organization, not a 501(c)(3) conservation organization.  Historically, it has not been involved in “supporting programs that ensure the preservation of threatened and endangered species around the world.” If it cannot provide evidence in support of that, it will lose tremendous credibility with the court.

Also suspect are some of the claims USARK puts forth regarding the support of certain individuals and organizations, which are tenuous at best.

The next step:  hearing on the Motion to Dismiss.

 

 

Reptiles and Advocacy and the Long Road Ahead

The 2014 legislative session has opened with a bang this year, with multiple bills affecting herpetoculture introduced in Wisconsin, West Virginia, Louisiana, Indiana, Missouri, and Maryland.  Bills introduced in New York, New Jersey and South Carolina in 2013 started moving again.

At this time, there is no national organization that is representing private keepers of herpetofauna directly at the state level.  PIJAC faded out with the departure of its CEO and president, Michael Canning.

Herp Alliance ceased its state level engagement (testifying and advocating directly with legislators) at the end of 2013 when it also stopped accepting donations and memberships.

Although USARK insists that it is engaged in statehouse disputes, no one from the organization has been testifying against state ballot initiatives impacting herpetoculture.  On information and belief, USARK has not testified at a single state level legislative committee hearing since Andrew Wyatt’s departure in 2012.  USARK recently stated on its Facebook page that, “the reason USARK has requested that state constituents speak up is because those are the voices that matter most.”

Lacey Act quoteThis leaves no national organization advocating for the Reptile Nation at the state level.  The outcome of the Lacey Act Rulemaking will be irrelevant if it becomes illegal to own reptiles in every state.  The interstate transport of Burmese pythons will no longer matter if their ownership and breeding becomes illegal.

The Reptile Nation needs advocacy and it needs it now.  Advocating against the avalanche of animal rights legislation that is burying this industry and this hobby requires more than a flurry of Facebook status updates and blog posts in a helter skelter rush without any interpretation or organization.  In fact, that method only creates confusion and chaos.Peta Exotic Animals

Stakeholders within a jurisdiction are always critical to a fight. However, there are many situations in which those stakeholders cannot or will not speak.  Ohio has taught us many lessons, and one of those lessons is that every exotic animal owner who had the courage to suit up and show up in those unending committee hearings and deliver their carefully prepared testimony received a notice from the Department of Agriculture as soon as SB 310 became law that they had to bring themselves into compliance with the new, prohibitive regulatory scheme or their animals would be confiscated.  Their testimony made them targets.

hsus reptilesIt’s in those situations that a national organization can bring to bear the weight of its numbers under the cloak of safe anonymity.  It is the role of a trade organization to collect the data, to make the arguments, to lead, and to advocate on behalf of its constituents.  Advocacy happens when your back side is not in your easy chair with a computer screen shielding you from both legislatures and the people whose passions, hobbies and livelihoods depend on your competence and your determination.

Consider the biggest heavyweight in the animal rights arena, the Humane Society of the United States, that quarter billion dollar behemoth that decided that reptile ownership is inhumane.  (By the way, HSUS counts its total victory in Ohio as its #3 accomplishment for 2012.)

HSUS claims to “connect people of awareness with the reality of what’s advocacyoccurring with animals.”  HSUS does not sit on the sidelines and tell “people of awareness” in their respective states that they should lead their own legislative disputes.  HSUS operates like a finely tuned machine, with a network of attorneys and lobbyists doing the heavy lifting of engaging on ballot initiatives.  That is our model.  That is what is required.

What the Reptile Nation needs is simple:  advocacy.

USARK may have a very good reason for its apparent recalcitrance to personally engage in state level disputes:  the federal lawsuit challenging the Constrictor Rule of the Lacey Act.

logo5USARK used to publish its quarterly and annual financial statements on its web site.  As of now, its last financial report is from 2012 and no quarterly reports were published in 2013.  Although its total donations from 2012 were $244,485, its net income was -$35,766.

Facebook fans claim that USARK raised $137,000 to fund its federal lawsuit. USARK MoneyAssuming that figure is exclusively for its legal fund, it is a drop in the bucket.  A federal lawsuit, if it goes to trial, will easily run into the millions, and you can be sure that the defendants, whose pockets are deep with taxpayer money, will push it there.  USARK has never come close to raising a million dollars in a year.  The money simply doesn’t exist, and part of the government’s defense strategy has to be grinding USARK out of money to fight its legal battle.

If USARK is funneling all of its donations to try to fuel the federal lawsuit, then it makes sense that it cannot afford to fight at the state level as a matter of economics.  This will be a death knell for the Reptile Nation.  Under this scenario, even a hard fought victory against the US Fish & Wildlife Service will be meaningless if large constrictors are outlawed piece by piece.

In the vacuum of national representation, stakeholders in every state need to organize and now, and they need to start directing their donations toward their own organizations to fund their own legal defense funds.  Terry Wilkins and Polly Britton in Ohio emerged as industry and community leaders, retaining an attorney, finding named plaintiffs, and seeing a lawsuit all the way through to a federal appeal.

This is the model that the Reptile Nation is going to have to follow in order to have any chance at all because there is no one left at the national level with the talent and the resources to combat the tenacious march of legislation that is being pushed by the animal rights industry.