All posts by Erika

USARK and the Preliminary Injunction

Seal_of_the_U.S._District_Court_for_the_District_of_ColumbiaThe US Herpetoculture Alliance is getting a lot of private inquiries with questions regarding the preliminary injunction that was entered by the Hon. Randolph Moss on May 19th in lawsuit captioned as United States Association of Reptile Keepers, Inc. v. The Honorable Sally Jewell et al., Civil Action 13-2007 (RDM).

The May 19, 2015 order by Judge Moss (the “Preliminary Injunction”) states in pertinent part that:

  • Effective June 2, 2015, the US Fish and Wildlife Service (“FWS”) is enjoined (stopped) from enforcing the Final Rule promulgated March 10, 2015 (the “2015 Rule”), 80 Fed. Reg. 12,702 (March 10, 2015) against any Plaintiff or member of USARK as of April 8, 2015 with respect to transporting a reticulated python and/or green anaconda between any two States within the continental United States other than Texas and Florida, and
  • with respect to transporting a reticulated python and/or green anaconda from either Texas or Florida to any State within the continental United States other than Texas and Florida.
  • This injunction does not prohibit, among other things,
    • enforcement activity targeting importation of any listed species from the March 10, 2015 Final Rule into the United States from a foreign nation;
    • enforcement of any activity targeting any transportation of the Beni anaconda or DeSchauensee’s anaconda;
    • enforcement activity predicated on a violation of the law of any State pursuant to 16 U.S.C. § 3372(a)(2);
    • enforcement activity targeting transportation of any species between the District of Columbia, Hawaii, Puerto Rico, or any territory or possession of the United States and any State within the continental United States.

Click this link for the full text of the Preliminary Injunction.  Judge Moss also issued a Memorandum Opinion, which sets forth his legal reasoning.  It is the Order that enjoins FWS, not the Memorandum Opinion.

Herp Alliance’s formal opinion on this matter is set forth below.

  • Herp Alliance congratulates USARK on this significant milestone.  While the case is not over, preliminary injunction is considered an “extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and consider the effect of granting or withholding the requested relief, paying particular regard to the public consequences.”  To be clear: this is a huge win for the Reptile Nation.
  • The Preliminary Injunction applies to USARK members as of April 8, 2015.  If you were not a formal member on that date, we recommend against claiming membership based on donation status.  USARK will lose credibility (and may be committing fraud) if it now claims to have thousands of members who did not apply for membership between April 8, 2014 and April 8, 2015.
  • The Lacey Act carries criminal penalties.  Herp Alliance recommends against risking criminal penalties in order to take advantage of the preliminary injunction.
  • USARK is not at fault for the limited scope of the preliminary injunction.  Judge Moss is the ultimate arbiter of this lawsuit. USARK sought a blanket injunction against FWS in terms of enforcing the Final Rule.  The fact that it was granted at all is a victory.  The battle is not over.
  • Support USARK now.  The Humane Society of the United States and the Center for Biological Diversity have filed motions seeking to intervene as defendants on the side of FWS.  There is a lot of legal runway ahead of us and USARK will need all the donations it can get for the battles ahead.

 

American Bar Association Recommends Constrictor Ban

No BoaThe US Herpetoculture Alliance reported on September 1, 2014 that the Animal Law Committee of the American Bar Association (ABA) had taken a stand against “Dangerous Wild Animals,” recommending a ban on the private ownership of ALL large constrictors, venomous snakes and crocodilians.  640px-American_Bar_Association.svg

Today, the ABA House of Delegates approved ABA Animal Law Committee
Resolution 105
, urging the passage of laws that “prohibit, the possession,sale, breeding, import, or transfer of dangerous wild animals.”
 Resolution 105 states that:

“Dangerous wild animals do not make good pets. Only through private prohibition can there exist  a uniform U.S. legal regime that safeguards the public, protects animals, allocates legal liability and insurance risk properly, furthers a policy of respect for nature, and considers the interests of present and future generations in accordance with the goals of the American Bar Association.”

ABA’s list is broad and over-inclusive, and it has defined “Dangerous Wild Animals” to include, among multiple species of mammals, the following reptiles:

  • All species of alligators, crocodiles, caimans, gharials.
  • Family Atractaspidae: all species, such as mole vipers.
  • Anacondas (Genus Eunectes), boa constrictors (Boa constrictor), Burmese pythons (Python molurus), reticulated pythons (Python reticulatus), amethystine pythons (Morelia amethistinus), scrub pythons (Morelia kinghorni), Northern African pythons (Python sebae), Southern African pythons (Python natalensis).
  • Family Colubridae: boomslangs (Dispholidus typus), twig snakes (Genus Thelotornis).
  • Family Elapidae: all species, such as cobras, mambas, and coral snakes.
  • Family Hydrophiidae: all species, such as sea snakes.
  • Family Viperidae: all species, such as rattlesnakes, pit vipers, and puff adders.

The Report presents new problems for all exotic animal owners and keepers, including reptile owners.  The Report states that,

“the American Bar Association urges all federal, state, territorial, and local legislative bodies and/or governmental agencies to enact comprehensive laws that prohibit the private possession, sale, breeding, import, or transfer of dangerous wild animals, such as big cats, bears, wolves, primates, and dangerous reptiles, in order to protect public safety and health, and to ensure the humane treatment and welfare of such animals.”

This edict, adopted and approved by the ABA, will be a persuasive argument to politicians.

The Reptile Nation needs, now more than ever, effective advocacy, or the Lacey Act’s Injurious Wildlife List will be a moot point because large constrictors will be illegal at the state and local levels.

Governor Quinn Signs the Herptiles-Herps Act!

illinois capitolBREAKING NEWS!!!

Today, Illinois Governor Pat Quinn signed SB 902, the Illinois Herptiles-Herps Act, into law.  Effective January 1, 2015, Illinois will have an historic law in effect and will be the only state in the US with a code section devoted exclusively to reptiles and amphibians.

SB 902 will lift the current ban on keeping of large constrictors and improves existing law with respect to the keeping of venomous snakes.  Most importantly, it removes reptiles completely from the Illinois Dangerous Animals Act.

Special thanks to Scott Ballard, Natural Heritage Biologist/Herpetologist, Illinois Department of Natural Resources, who drafted and edited this bill over many years and who sought and considered extensive feedback from the reptile community in Illinois.

Governor Quinn Takes Bill Action Wednesday, July 16, 2014.

Full Text of SB 902.

 

Illinois Herptiles-Herps Act Goes to Governor Quinn

ILIllinois Senate Bill 902 (the Herptiles-Herps Act) took another step forward to becoming law today when the Senate voted to concur with House Amendment 1 by a vote of 51-1 .   The enrolled bill now goes to Governor Quinn.

SB 902 would remove all reptiles and amphibians from the Illinois Dangerous Animals Act and implement a new code section exclusively for them. It will lift the current ban on constrictors over 15′ and will ease restrictions on certain venomous animals.

Herp Alliance’s Committee Testimony in favor of SB 902 can be viewed here:
http://usherp.org/wp-content/uploads/2014/05/ENW-Testimony-in-favor-of-SB-902.pdf

Congratulations, Illinois, on moving another step forward toward passing an historic law!

Please contact Governor Pat Quinn to voice your support:
217.782.0244 or 312.814.2121

Illinois SB 902 Amendment 2 Introduced – 4″ Turtle Provisions Lifted!

DNR-welcomeThe Illinois legislature will publish later today the Second Amendment to SB 902 (House Amendment 1).  There are three substantive changes in the Second Amendment, and they are as follows:

  • Malagasy cat-eyed snakes (Madagascarophis) are being removed from the definition of “Venomous Reptiles.”
  • Section 30-5, the prohibition on the sale of aquatic and semi-aquatic turtles whose carapaces are less than 4″ has been removed entirely.
  • Zoos accredited by the Zoological Association of America will be included in the exempt organizations.

These changes have been made in response to feedback from Illinois residents.

It has been erroneously reported on the internet that SB 902 will illegalize all turtle and tortoise breeding in Illinois.  This is false, and it is a misinterpretation of that section.

First, “Turtle farming”  is defined in the bill as “the act of breeding, hatching, raising, selling turtles, or any combination commercially for the purpose of providing turtles, turtle eggs, or turtle parts to pet suppliers, exporters, and food industries.”

Illinois seeks to preclude commercial turtle farming.  This language is specifically drafted to affect only turtle production for sale to pet suppliers, exporters and food industries.  This is not hobby breeding.

This bill provides overwhelming benefits to the Illinois herp community.  It has broad support of Illinois reptile keepers, multiple Illinois herp societies, reptile rescues and individuals.

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.

Some of the benefits of SB 902:

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 also removes all herpetofauna from the purview of the Illinois Dangerous Animals Act.

Herp Alliance continues to support SB 902.

USARK v Jewell et al.: Back to Square One

logo5On April 26, 2014, Judge Emmet G. Sullivan issued his Minute Order dispensing at last with the Motion to Dismiss filed by the government.

As predicted, USARK was granted leave to amend its complaint to cure its pleading defects.  In lay terms, USARK gets a “do-over” to include facts that should have been plead in its complaint.

Judge Sullivan granted this relief based on USARK’s Response, stating specifically:

[USARK] argues that it can establish both prudential and constitutional standing … and that they have the kind of concrete, particularized injuries required by Article III. Pl.’s Opp’n at 2-14. [USARK] also seeks leave to amend Counts 1 and 4 of its Complaint pursuant to Fed. R. Civ. P. 15(a)(2).

In other words, in its  Corrected Response to the Motion to Dismiss, USARK asked that it be permitted to fix its original pleading defects, and the judge granted that request.

The Amended Complaint is now due by May 9th, after which the government may file another Motion to Dismiss, depending on how well USARK is able to fix its original pleading.

The net result is that we are back to square one:  USARK will redraft and file a new complaint that will hopefully include factual allegations necessary to survive another Motion to Dismiss.

We are confident that in the six months that will have lapsed between the filing of its original complaint (December 18, 2013) and May 9, 2014 (when the Amended Complaint is due), USARK’s legal team should be able to draft a pleading that will stand so that we can eventually get to the heart of the matter.

  • With these additional six months of legal wrangling over pleading defects, how much remains in the budget to fund this litigation?
  • How much has been spent at this point arguing over defective pleadings?
  • And how much do they anticipate spending on the lawsuit going forward?

USARK just released its 2013 Financial Statement and 2013 Breakdown, showing that in 2013, USARK spent $153,067 on lobbyists and $41,910 in Legal and Professional fees.  

As USARK beats the fund raising drum to continue to raise funds for this necessary litigation, they should provide more transparency about how those funds are being allocated and how much more is needed, especially in light of Kelley Drye’s published statement that they have provided a budget to USARK for this lawsuit.

Illinois SB 902 Update

shieldIL-RightAmendment 2 to Illinois SB 902 will be published, if not today, within a couple of days. It was expected on Friday, but had not quite made it out of bill drafting. Amendment 2 will have three specific changes, all of which are positive in terms of the Reptile Nation.  Although it may seem like amending a bill is a simple task, the Illinois legislature has not been in session and all amendments must go through JCAR (bill drafting).

Although SB 902 is the only bill that has been proposed in the current legislative session in any state that is favorable to reptile ownership, it is receiving criticism on Facebook and on the internet, mostly by people who do not reside within Illinois.  Herp Alliance’s position on SB 902 and our summary of Amendment 1 can be found here.

Herp Alliance will publish Amendment 2 promptly upon its release.

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.