Category Archives: Federal Issues

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.

Read more here…

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.

American Bar Association Recommends Constrictor Ban

No Boa
640px-American_Bar_Association.svgThe US Herpetoculture Alliance has learned that in August, the American Bar Association (ABA) Animal Law Committee took a stand against “Dangerous Wild Animals” in a report that can be read in its entirety here: ABA Animal Law Committee August 2014 Report on Dangerous Wild Animals.  The Report, which recommends a ban on the private ownership of ALL large constrictors, venomous snakes and crocodilians,  concluded 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.”

Without question, this Report will make its way into legislatures across the country as anti-reptile bills are introduced, and an edict from 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.

PIJAC Hires Animal Rights Fat Cat as CEO

Ed Sayres, who resigned his 10 year tenure as president and CEO of the ASPCA in June 2012.
Ed Sayres, who resigned his 10 year tenure as president and CEO of the ASPCA in June 2012.  Sayres has spent 40 years as a career animal rights activist.

In a shocking development this week, PIJAC announced today that it had hired as its president and CEO, Ed Sayres, a man who has made his 40-year career in the animal rights industry, including a decade as the president and CEO of the American Society for the Prevention of Cruelty to Animals (ASPCA).

The ASPCA has a written policy against exotic animal ownership, including all reptiles and amphibians.

In fact, ASPCA’s web site states that ownership of reptiles, even corn snakes, leopard geckos and dart frogs is, “bad for the animals, bad for us and bad for the environment.”

In recent years, there has been a split in the reptile community about PIJAC and PIJAC’s intentions.  However, certain members of the industry have encouraged the reptile community to cozy up to PIJAC.  PIJAC has raked in tens of thousands of donation and auction dollars from individual donors, NARBC auctions, and Ship Your Reptiles’ donation program.  In March 2013,  USARK announced that:

“USARK has established an open line of communication with PIJAC in 2013. The PIJAC Board of Directors voted unanimously to provide USARK an honorary membership. USARK looks forward to a working relationship with PIJAC, who has been protecting the pet industry over 40 years.”

As of today, Phil Goss and USARK are “Association Representatives” of PIJAC.  Reptile insider, John Mack, sits on the PIJAC board of directors.

In the wake of PIJAC’s announcement today, some industry members have sought to distance themselves from PIJAC.  NARBC announced that it will now be donating all of its auction proceeds to USARK (who, at this time, is still in bed with PIJAC).  Presumably, USARK will also eventually break its ties to PIJAC, but that remains to be seen.

aspca quote on reptilesNonetheless, the damage is done.  PIJAC has entrenched itself for years with the reptile community and several industry leaders have served on the controversial PIJAC Herp Committee, which has discussed, among other things, the reptile community’s greatest vulnerability:  the regulation of feeder rodents. In fact, the PIJAC Herp Committee published its PIJAC Herp Community Feeder Rodent Best Management Practices  in September 2013.

All the sensitive information collected in those PIJAC Herp Committee meetings is now at the disposal of Sayres, who for the last decade has spearheaded an animal rights organization with a written policy against the keeping of any reptile or amphibian.

And the acquisition of Sayres did not likely come cheaply.  According to the New York Times,

Several [ASPCA] board members had voiced misgivings about his $566,064 salary, more than double that of Wayne Pacelle, his counterpart at the Humane Society of the United States.

Bernstein, J. June 28, 2013.  Angst at the A.S.P.C.A., New York Times.

In addition to his fat cat salary, Sayres’ actions at ASPCA raised a number of eyebrows regarding financial improprieties, including the $9.3M payout to Feld Entertainment for a lawsuit alleging mistreatment of elephants when it was discovered that ASPCA’s key witness was receiving monies from the other animal rights groups that had joined the suit, including HSUS.

The ASPCA board treasurer, James W. Gerard, was reported to have been livid over a $400,000 payment made to a consultant that netted just $14,000 for a dog cause, which Gerard called, “a failure of management disclosure to the board . . .As stewards of private donors’ monies, I felt it was an inappropriate expenditure.”  Ibid.

Ed Sayres, a career animal rights activist who has lined his pockets with a salary in excess of a half a million dollars, a man who left ASPCA amid questions regarding financial improprieties, and a man who opposes all exotic animal ownership, including reptiles and amphibians, this is who PIJAC has chosen as its new leader, and a leader that the reptile industry, through its auctions and donations has helped to fund.

NO PIJACToday on Facebook, some members of the reptile community were suggesting a “wait and see” approach, likening the Sayres appointment to a BlackOps mission.  Rest assured, Sayres is not a double agent for the reptile community, or even the animal community at large.  If this is like a BlackOps mission, it is the opposite:  the coup is that the animal rights industry just took over PIJAC.

We hope that USARK will join the rest of the reptile community in boycotting PIJAC.

Herp Alliance Comments on Federal Boa & Python Ban: Did you?

US Fish & Wildlife Seeks to Add Five Snakes to Injurious List
US Fish & Wildlife Seeks to Add Five Snakes to Injurious List

Will 5 More Constricting Snakes be Added
to the Injurious Wildlife List?

The US Herpetoculture Alliance alerted the reptile community back in May that US Fish and Wildlife Service (FWS) planned to re-open the public comment period regarding the “Constrictor Rule.” On June 23rd FWS officially announced the re-opening of a 30 day public comment period as expected; deadline of July 24th at 11:59pm EDT. Herp Alliance filed detailed public comments prior to the deadline. Did you make public comment? Please share your official comment in our comment section below.

In January 2012 FWS published a rule in the Federal Register that added the Burmese python, Indian python, northern and southern African pythons, and the yellow anaconda to the Injurious Wildlife List of the Lacey Act. The Constrictor Rule added 5 of the 10 snakes originally proposed for listing, however five remaining snakes (Boa constrictor, reticulated python,  green anaconda, DeShauensee’s anaconda and Beni anaconda) were not listed at that time, but remained “under consideration.”

Although the reopening of public comment was welcome news and an additional opportunity to provide critical information for the public record, the Herp Alliance believes this action is a clear signal that FWS is prepared to finalize the Constrictor Rule that was finalized in part on January 23, 2012 (77 FR 3330)– adding some or all of the remaining five species of constricting snakes to the Injurious List. Any species listed on the Injurious List cannot be imported into the country nor transported across state lines without a special permit from FWS.

The US Herpetoculture Alliance filed detailed public comment with FWS opposing the proposed rule to add the remaining five species to the Injurious list. We urge you to read them. Our argument focused on the “best available economic and scientific data” and pointed out the egregious flaws in the FWS justification for rule making. Some of the points included:

  1. Major Rule
  2. Scientific Underpinnings
  3. Best Available Science
  4. Arbitrary and Capricious
  5. Conclusions

Additionally, Herp Alliance worked with the best and the brightest in the scientific and legal community coordinating many high quality comments. Please read our public comment and post your thoughts below in our comment section. If you made public comment with FWS, please SHARE with us and please include the tracking number assigned to you.

Herp Alliance tracking number: 1jy-8der-hvz9

Read the US Herpetoculture Alliance Official Public Comments here.

HR 2158 “Snakes on a Plane” Goes to Markup

OperatingAirlinesHeader_tcm14-4317The US Herpetoculture Alliance has learned that, HR 2158: Expedited Departure of Certain Snake Species Act, dubbed the “snakes on a plane” act will go to a markup hearing tomorrow, July 16th, before the full US House Natural Resources Committee. Congressman John Fleming (R-LA), Chair of the Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs, is the sponsor.

HR 2158 would allow for greater flexibility in the export of Burmese pythons (Python molurus bivittatus), Indian pythons (Python molurus molurus), Northern African pythons (Python sebae), Southern African pythons (Python natalensis) and Yellow anacondas (Eunectes notaeus) out of the United States.

Currently export may occur only through designated ports as defined by the United States Fish and Wildlife Service (USFWS).  When an aircraft departs with export from one of these ports, it may not land within the United States.

HR 2158 would continue to allow for export from 17 designated ports. In addition, it would allow such carriers to make  intermediate stops in other states prior to final departure within a 48 hour time period as long as secure containment protocols are maintained.  HR 2158 does NOT address interstate transport.

Herp Alliance expects that HR 2158 will be marked up and reported out of the US House Natural Resources Committee tomorrow. Whether this bill has the momentum to move further than this remains to be seen.

Stay tuned for updates and analysis from the Herp Alliance.

FWS To Finalize Python Ban: Public Comment Reopens Tomorrow!

The US Herpetoculture Alliance has just learned that the US Fish & Wildlife Service (FWS) will reopen public comment on the “Constrictor Rule” tomorrow. The FWS has announced that public comment will be reopened for 30 days. Further, FWS has decided to reopen the public comment period, but only for the five remaining species that were NOT listed in 2012. The Herp Alliance expects to see FWS publish this announcement in the Federal Register on June 24, 2014.

This action was announced by the Office of Information and Regulatory Affairs (OIRA) last month, but when reported on by Herp Alliance, was discounted by those with poor access to information in Washington DC as “fear mongering.” Our information is always the most accurate and timely available regarding the future of herpetoculture.

Although reopening public comment is positive news, the Herp Alliance believes this action to be a clear signal that FWS is prepared to finalize the Constrictor Rule that was finalized in part on January 23, 2012 (77 FR 3330)– adding 4 species of constricting snakes to the In jurious Wildlife List of the Lacey Act. Any species listed on the Injurious List cannot be imported into the country nor transported across state lines without a special permit from FWS.

In January 2012 FWS published a rule in the Federal Register that added the Burmese python, northern African python, southern African python and yellow anaconda to the Injurious Wildlife List of the Lacey Act. The Constrictor Rule accounted for 4 of the 9 snakes originally proposed for listing. The remaining 5 snakes, Boa constrictor, reticulated python,  green anaconda, DeShauensee’s anaconda and Beni anaconda were not listed at that time, but remained “under consideration.”

FWS is likely hoping to add information to support their case to list the 5 remaining snakes.  It is imperative that the Reptile Nation respond with quality comments to counter their case. Time is of the essence. Hopefully the United States Association of Reptile Keepers (USARK) has been coaching it’s members in making quality comment, apprising members of the scientific community of the impending comment period, and updating economic surveys and profiles since the economic survey done in 2011. This is an unparalleled opportunity to influence the final disposition of the Constrictor Rule. The Reptile Nation cannot afford a misstep now.

Read Public Announcement Here

 

 

 

FWS to Re-open Public Comment on Boas and Pythons!

Boas, retics and green anacondas could be listed as Injurious under the Lacey Act.
Boas, retics and green anacondas could be listed as Injurious under the Lacey Act.

The US Herpetoculture Alliance has just learned that US Fish & Wildlife Service (FWS) has given notice to the Office of Information and Regulatory Affairs (OIRA) that public comment on the Constrictor Rule will be re-opened. Although positive news, the Herp Alliance believes this action to be a clear signal that FWS is prepared to finalize the Constrictor Rule that was finalized in part on January 23, 2012 (77 FR 3330)– adding 4 species of constricting snakes to the In jurious Wildlife List of the Lacey Act. Any species listed on the Injurious List cannot be imported into the country nor transported across state lines without a special permit from FWS.

In January 2012 FWS published a rule in the Federal Register that added the Burmese python, northern African python, southern African python and yellow anaconda to the Injurious Wildlife List of the Lacey Act. The Constrictor Rule accounted for 4 of the 9 snakes originally proposed for listing. The remaining 5 snakes, Boa constrictor, reticulated python,  green anaconda, DeShauensee’s anaconda and Beni anaconda were not listed at that time, but remained “under consideration.”

FWS has now given formal notice to OIRA that is is prepared to move forward to finalize the rule adding Boas, Retics and 3 anacondas to the Injurious List. Although FWS has announced to OIRA that they will re-open public comment on the Constrictor Rule, they have not indicated when it will re-open, or for how long. Details will be published in the Federal Register. Herp Alliance expects it to be very soon.

Stay tuned to Herp Alliance for fast breaking updates, news and analysis.

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.