Category Archives: Federal Issues

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.

 

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.

 

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.

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.

 

 

USARK v. Sally Jewell et al. Part One: Procedural Posture

logo5Herp Alliance is receiving a lot of inquiries regarding the complaint filed by the United States Association of Reptile Keepers on December 18, 2013 against Sally Jewell, Secretary of the Interior, and US Fish and Wildlife Service challenging the Constrictor Rule to the Lacey Act.  We are not involved in the litigation and are not consultants on the litigation.  However, we are glad that USARK has taken affirmative action on behalf of herpetoculture to challenge what we agree is a completely aribitrary and capricious rulemaking.

This will be a series of blogs intended to help clarify the proceedings for non-lawyers.  These blogs are not intended as legal advice; we are simply reporting on the case progression and offering opinions as we see the issues.

Procedural Posture:  Where do we stand?

What is the Constrictor Rule?  On March 12, 2010, the US Fish & Wildlife Service (“FWS”) proposed a rule to add nine large constrictors to the list of injurious species under the Lacey Act.  On January 23, 2012, Defendants enacted a partial rule, adding four of the nine species (Burmese python, North African python, South African python, and yellow anaconda) to the injurious list.  The Constrictor Rule prohibits not only importation, but all interstate transport of the four species of large constrictors.  Defendants have yet to act on the remaining five constrictors, but it appears that a finalization of the Constrictor Rule to add additional species is imminent.

USARK files its lawsuit.  

What is USARK asking for?

USARK filed a complaint for injunctive relief and declaratory judgment.  This means that they are asking the Court to enter an order stating:

  • That in issuing the Constrictor Rule, Defendants violated the Administrative Procedure Act (“APA”) and the National Environmental Policy Act (“NEPA”);
  • That the Defandants lack legal authority to ban interstate transportation and commerce in the listed species because the ban on interstate transportation and commerce of injurious species is through administrative rule making and exceeds the expressed language of the Lacey Act;
  • That the Defendants enactment of the Constrictor Rule is ultra vires (meaning beyond their powers) and contrary to law;
  • Enjoining (barring) Defendants from applying the Constrictor Rule;
  • That FWS be required to prepare a lawful environmental impact statement and rational basis for any new rule proposed; and
  • Awarding USARK its costs and attorneys’ fees.

USARK is not seeking monetary damages in its action for injunctive relief and declaratory judgment.  This means that if USARK were to win, the provisions set forth above are what it has requested in its prayer for relief.  That is what USARK is asking for from the Court.

USARK’s arguments.

USARK argues that FWS was arbitrary and capricious in its enactment of the Constrictor Rule under NEPA and APA.

NEPA argument.  USARK alleged that Defendants failed to follow NEPA’s statutory requirements in that FWS did not prepare an environmental impact statement (“EIS”) and that its environmental analysis (“EA”) was inadequate.

APA argument.  The APA provides a right of review to persons adversely affected by an agency action within the meaning of a relevant statute.

  • USARK is claiming that in prohibiting interstate transport of the four species of constrictor snakes, FWS has exceeded its authority under the statutory provisions of the Lacey Act.
  • It also argues that Defendants failed to provide  reasoned bases for the enactment of the Constrictor Rule.

The Motion to Dismiss

Once a complaint is filed, the defendants have a proscribed amount of time in which to respond or otherwise plead.  In this case, Defendants filed a Motion to Dismiss.  A motion to dismiss is a predictable response.  It is the first volley from a defendant to see if they can get rid of a case due to pleading defects or other bars to a cause of action.

Defendants brought their Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

FRCP 12(b)(1) states that a case should be dismissed when the court lacks subject matter jurisdiction.  Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter.

FRCP 12(b)(6) allows a motion to dismiss for failure to state a claim upon which relief can be granted (pleading deficiencies).

Defendants first attack USARK’s standing to bring the complaint.  In very general terms, standing is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case.  There are some nuances that fall under the umbrella of standing.  Here, Defendants claim that USARK lacks prudential standing as well as constitutional standing.

Without getting into a lengthy legal discussion on standing, Defendants make a good argument about USARK’s lack of standing and Herp Alliance believes that the USARK complaint will be dismissed without prejudice on the basis of standing.  

This is not a fatal flaw.  It means that there are marks of haste in the USARK complaint and it was not drafted as carefully as it could have been.  If the Court dismisses the Complaint without prejudice, USARK will be given leave to amend its Complaint in order to cure its pleading defects.  The net result is that some time and money are wasted but USARK will likely be given a “do-over” for at least its actions under the APA, but only under NEPA if it can allege facts that establish that it has an environmental interest .

Defendants next argue that the statute of limitations has run on USARK’s challenge to the interstate transport issue because the regulation was established in 1965 and USARK is now time barred.  Herp Alliance believes that this argument is nonsensical and Defendants will not prevail on this argument.

Finally, Defendants argue that Count IV is duplicative of Counts I, II and III, which it likely is.

Conclusion

Herp Alliance believes that the Defendants’ Motion to Dismiss will be granted in part and denied in part.  As a result, we believe that USARK’s Complaint will be dismissed without prejudice and USARK will be granted leave to amend its complaint to cure the deficiencies that exist in the original pleading.

The net result is some lost time and money on attorneys’ fees without yet getting to the merits of any claim that can be asserted by USARK once its complaint is properly pled.  At this point, it is premature to conjecture as to Defendants’ responses to USARK’s substantive allegations because their Motion to Dismiss is technical and not a response to the factual allegations in USARK’s Complaint.

 

FWS Files Its Motion to Dismiss USARK’s Complaint

1-Logos_Revised_2_BW-002On December 18th, USARK filed its Complaint challenging the Constrictor Rule to the Lacey Act.

On February 21, 2014, the Federal Defendants, including Sally Jewell and the US Fish & Wildlife Service, filed their Motion to Dismiss USARK’s complaint.  While we at Herp Alliance are still analyzing the Motion to Dismiss (and will report on same shortly), it essentially alleges that USARK’s complaint is deficient for the following reasons:

  • USARK lacks standing to bring a private cause of action under NEPA, the APA or the Lacey Act; and
  • USARK fails to adequately plead a cause of action under multiple counts.

Copies of both pleadings can be read or downloaded at the links above.

Advocacy, Accountability and Unity

OPINION

A lot has changed over the last year in the reptile community.  In December 2012, Andrew Wyatt resigned from USARK, the trade organization that he co-founded in 2008.  In January 2013, we co-f0unded the US Herpetoculture Alliance.  Although originally designed and organized to be an advocacy organization on behalf of herpetoculture, it has evolved into an education, conservation and information organization.  We do not engage directly in legislative issues.  But we analyze them and we will report on them.  We do not accept donations and everyone involved with Herp Alliance does so on a volunteer basis.  Herp Alliance has never paid a salary to an employee or an independent contractor.

Mike Canning's Facebook page as of February 2, 2014, describing himself as the former president and CEO.

Meanwhile, changes have been afoot at the Pet Industry Joint Advisory Council (PIJAC) as well.  Although PIJAC has been conspicuously silent on the topic, Mike Canning has announced on his Facebook page that he is the former President and CEO of PIJAC.  Notably, former Vice President of Government Affairs & General Counsel, Mike Maddux has also disappeared from the PIJAC web site, as well as Bambi Nicole Osborne, Esq., Director of Government Affairs.  PIJAC has apparently done some quiet housecleaning.

People who are “Leaders in the Industry” have called for “unity.”  Any criticism of the way legislative issues have been handled (or not handled) that we have published has been criticized as “divisive” and not in the best interests of the industry.  I disagree.  HSUS is not going to back away from the persecution of reptile keepers because of unity in the community. Wayne Pacelle is not going to say, “Let them keep their large constrictors.  They are all such great friends.”

What this industry needs is competence, advocacy and accountability.

According to USARK, they have been on a banner run of fund raising in the few months that have passed since they announced the filing of their federal lawsuit challenging the Constrictor Rule of the Lacey Act.   USARK should be commended for retaining counsel and filing their lawsuit.  It is the only hope to reverse the damage done by the Constrictor Rule.

Rumors in the reptile community have circulated with some industry insiders claiming that there is a “99%” chance that USARK’s lawsuit will be victorious.  (These are odds that no lawyer could guarantee.)  And while wave after wave of information has leaked out of Washington DC, with Herp Alliance intercepting direct correspondence from HSUS to members of Congress, USARK continues to maintain that it is on top of the situation and is doing “much, much more.”  More of what, remains to be seen.

What we have not seen are advocacy letters from USARK to members of Congress pleading the case against listing five additional species to the Constrictor Rule.

The Categorical Exclusion Rule (or, CatX, as coined by Andrew Wyatt) just reopened for comment.  Although USARK has adopted the nomenclature of Cat Ex, it was Herp Alliance, last year, who secured this extension on the comment period.  Those of you who have not yet sent letters opposing CatX should do so immediately.

Bills that would dramatically affect herpetoculture and the right to privately keep reptiles are pending in Wisconsin, New Jersey, New York, West Virginia, Maryland, and South Carolina right now, with more bills in drafting departments of other states as I write.  The avalanche of legislation started by the animal rights industry that began a few years ago against reptile keeping continues to grow and to gain momentum.

On the state level, USARK has maintained a low profile.  Numerous supporters Wild Animals Are not petshave stated on Facebook that USARK will no longer engage at the state level.  Some announcements have been made. There have been a few action alerts encouraging stakeholders to write letters and emails.  Some bills have been overlooked until days after their introduction.  So far, USARK has not testified at a state committee hearing in this legislative session, either in person, or through written testimony.  Whether they will actually jump into the game or not remains to be seen.  It is possible that their hands are tied by funding a federal lawsuit which will certainly cost millions of dollars to fund if they intend to see it to its end.  Where will that money come from?  Gary Bagnall is not going to pony up seven figures to defend the right to keep large retics.  In fact, Zoo Med will be able to peddle more hot rocks and amateur equipment to corn snake keepers when the market is limited to the less controversial species.  The end game cannot be a full blown lawsuit.  The money is simply not there.

If  USARK abandons state level regulation, reptile bans at the state level will become a certainty.

The reptile community has donated tens of thousands of dollars to USARK.  If they are now exclusively a federal trade organization, they need to make that known.  When small business owners and private keepers are donating their hard earned dollars to the only trade organization that is left in existence to advocate for their rights, they have the right to know what is being done.  They have the right to be critical and they have the right to demand action.  They are the only recipient of your donations.  They are accountable to their constituents.  Competence, advocacy and accountability.  That is what they owe to herpetoculture and that is what should be demanded and delivered.

Unity in the face of inertia might make us all better friends so that we can comfort each other while our pets get criminalized.

HSUS Pushes to Finalize the Constrictor Rule

US Fish & Wildlife Service Seeks CatX to Avoid Due Process For Injurious Listings

Herp Alliance has learned this morning that the Humane Society of the United States has been pushing and is gaining support to finalize the Constrictor Rule of the Lacey Act to include all nine species of large constrictor snakes originally proposed.

Below is the text of a letter from Mike Markarian of HSUS trying to get members of Congress to sign a bipartisan letter in support of listing all  five remaining constrictor snakes and to elicit support for the finalization of the Constrictor Rule to include all nine species:  Burmese python, yellow anaconda, northern African rock python, southern African rock python, reticulated python, DeSchauensee’s anaconda, green anaconda, Beni anaconda, and boa constrictor.

January XX, 2014

Secretary Sally Jewell
United States Department of the Interior
Office of the Secretary
1849 C Street NW, Room 6156
Washington, DC 20240

Administrator Howard Shelanski
Office of Information and Regulatory Affairs
Office of Management and Budget
Executive Office of the President
Eisenhower Executive Office Building
1650 Pennsylvania Ave NW, Room 262
Washington, DC 20503

Dear Secretary Jewell and Administrator Shelanski,

We are writing to request that the U.S. Fish and Wildlife Service (FWS) move quickly—and with support from OMB and the White House—to complete its ruling on large non-native constrictor snakes by issuing a final regulation listing the reticulated python, the DeSchauensee’s anaconda, the green anaconda, the Beni anaconda and the boa constrictor as injurious under the Lacey Act.

These snakes pose an unacceptable and preventable risk to the safety of the American people, and to some of our most treasured natural places.  Since 1990, 12 people have died from encounters with “pet” constrictor snakes, including a two year old Florida girl and a three year old Illinois boy who were both strangled in their cribs. Dozens more have been injured or sickened.  Further, these snakes have shown that they can adapt to, invade, and severely damaged native ecosystems, as we have seen with the Burmese python’s decimation of mammal populations in the Florida Everglades, and the boa constrictors displacement of native reptiles in Puerto Rico.  We cannot afford to risk the introduction of additional invasive species that will be expensive and difficult to eradicate.

In a comprehensive 323-page report issued in 2009, scientists with the U.S. Geological Survey (USGS) concluded that nine species of dangerous exotic constrictor snakes present a “high” or “medium” risk of becoming invasive since unwanted snakes commonly escape from cages,  or are turned loose by owners who were never informed their “pets” would grow to over 15 feet long. On January 23, 2012, FWS issued a rule listing four of the nine species—Burmese pythons, yellow anacondas, and northern and southern African pythons, which represent about 30 percent of the trade—as injurious under the Lacey Act. Unfortunately, two years have passed and FWS has failed to take action on the remaining 70 percent of the trade in large constrictor snakes. Unless these species are added to the list of injurious species, the trade will continue to threaten the environment as well as public safety.

The largely unregulated reptile industry poses a significant burden to taxpayers. The FWS, in partnership with many organizations, has spent more than $6 million since 2005 attempting to combat the growing problem of Burmese pythons and other large invasive constrictor snakes in Florida where they are consuming endangered and threatened species, have decimated as much as 99 percent of the area’s small and medium sized native mammals, and are killing family pets in residential neighborhoods.

The ability of an individual to own or sell a dangerous and exotic animal must be balanced against the interests of all Americans in preserving public safety.

Thank you for attention to this urgent matter.

Sincerely,

 

Cc:          Jeanne A. Hulit
Acting Administrator
Office of the Administrator
United States Small Business Administration
409 Third Street, SW, Suite 7000
Washington, DC 20416

Pythons, Politics, Rumor & Controversy: Clarification on the Constrictor Rule

The Thanksgiving notification given to the Office of Information and Regulatory Affairs (OIRA) by US Fish & Wildlife Service (FWS) that there would be another step toward the finalization of the Constrictor Rule in early 2014 has turned the herpetoculture industry on its ear. Confusion is rampant in the community. Accusations have been leveled as to responsibility, and the reptile and pet industry trade associations are scrambling trying to effect damage control. But the situation is not nearly as complicated as some would make it out to be.

11_Snakes
photo: USGS- Green Anaconda

At stake here is the trade in large constricting snakes that have been slated for addition to the Injurious Wildlife List of the Lacey Act. In 2011 FWS proposed a rule to add nine constricting snakes to the Injurious Species List. The trade in these nine species was estimated to be in excess of $100 million annually, potentially making the rule fall into the “major” rule classification which would mandate that the rule making process be rigorous and subject to information quality standards.

Subsequently, FWS published a partial rule in the Federal Register in January 2012; listing four of the proposed nine snakes on the injurious list, and holding the remaining five out as continuing to be “under consideration.” Since the rule was published USARK, PIJAC and US Herpetoculture Alliance have gone back and forth to Washington DC discussing further finalization of the ‘Constrictor Rule’ in order to remove the onus of the “under consideration” designation from the remaining five snakes that were not listed. The argument was this designation was tantamount to a de-facto listing and was destroying legal trade.

US Fish & Wildlife Service Seeks To Add More Snakes To Constrictor Rule

Fast forward to Monday, December 2, 2013. The US Herpetoculture Alliance was made aware that FWS had notified OIRA of it’s intention to finalize in full, or in part, the listing of the remaining five snakes still “under consideration” as a part of the ‘Constrictor Rule’. As reported, the notification abstract published last week indicated: “We are making a final determination on the listing of five species of large constrictor snakes as injurious wildlife under the Lacey Act: Reticulated python, DeSchauensee’s anaconda, green anaconda, Beni anaconda, and boa constrictor. Four of the nine proposed species were listed in 77 FR 3330. This rule will determine the status of the remaining five species under the same RIN.” ~ US Fish & Wildlife Service, November 2013

In the wake of this discovery we began to further research the FWS/ OIRA records over the last year. We found an even more ominous notification from July 2013 that no one had ever reported on: “We are making a final determination to list four species of large constrictor snakes as injurious wildlife under the Lacey Act: Reticulated python, DeSchauensee’s anaconda, green anaconda, and Beni anaconda. The boa constrictor is still under consideration for listing. Four of the nine proposed species were listed in 77 FR 3330. This rule will list four more under the same RIN. One more species will remain under consideration for listing under the same RIN.” ~ US Fish & Wildlife Service, July 2013

Both of these notices are part of the public record. They are not privileged information. They are available to anyone who looks for them. Neither notice is subject to interpretation. They are both the exact language used by FWS. Please follow the links and read them for yourself.

“Three things cannot be long hidden: the sun, the moon, and the truth.” ~ Buddha

The reality is that this is not super secret national security stuff. It is all public record. No confidences have been breached. FWS has sent clear signals that they intend to finalize the ‘Constrictor Rule’ very soon; probably by February 2014. What is also very clear is that, according to their own notice, they will likely add reticulated pythons and the three remaining anacondas to the Injurious Wildlife list of the Lacey Act; while continuing to leave boa constrictors “under consideration” for future listing.

photo: USGS- Boa Constrictor
photo: USGS- Boa Constrictor

The biggest question in our mind is whether FWS will actually stop short of listing boa constrictor. We think that they will not include boa constrictors in this action, but they can do whatever they want, and publish whatever they want. They are NOT restricted by the notices they have made a part of the public record. The Herp Alliance truly hopes that FWS will decide NOT to list any more snakes. We will not know for sure until FWS publishes the final rule in the Federal Register.

In 2012 the “rumor” circulating among Washington insiders was that only two snakes would actually get listed in the final rule. As you know four were listed. Today our best guess is that four of the remaining five will get listed; with reticulated pythons being added to the list and boas escaping for the time being. We sincerely hope it will not be all five that get listed. Our endeavor is to make the best information available to the herpetoculture community. We hope this clarifies some of the confusion.

UPDATE: Reticulated Pythons To Be Added To Lacey Act

retic5The US Herpetoculture Alliance has just learned that reticulated pythons and green anacondas, along with two obscure species of anaconda, will be added to the Injurious Wildlife list of the Lacey Act. Boa constrictor will remain under consideration, but will not be listed at this time.

“We are making a final determination to list four species of large constrictor snakes as injurious wildlife under the Lacey Act: Reticulated python, DeSchauensee’s anaconda, green anaconda, and Beni anaconda. The boa constrictor is still under consideration for listing.” ~ US Fish & Wildlife Service 7/23/13

The Herp Alliance has not engaged in advocacy for some time. Funding for a first class federal advocacy program is extremely costly. We have reorganized as a conservation and education organization.

The Herp Alliance broke this story yesterday. We are incorporating a news and commentary component to our mission. To that end, this information was first published last July in the Department of Interior Semiannual Regulatory Agenda. This notice provides the semiannual agenda of rules scheduled for review or development between spring 2013 and spring 2014. So this information has been available for some time.

Reticulated pythons and the anacondas will officially be added to the Injurious Wildlife list of the Lacey Act when US Fish and Wildlife Service publishes the finalized portion of the ‘Constrictor Rule’ in the Federal Register.

The reptile and pet trade associations cannot sit fat, dumb and happy while the rights of herpetoculturists are regulated into oblivion.  By the time the collective coma is shaken off, the days of breeding Burmese pythons, reticulated pythons and Boa constrictors may be lost forever.

It is the opinion of the US Herpetoculture Alliance that the only real recourse is for one or both of the trade associations to file a federal lawsuit against the US Fish & Wildlife Service challenging the merits of the original ‘Constrictor Rule’ of 2012.