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.
On 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.
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 2014. 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.”
Debbie 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.”
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.