Category Archives: Federal Issues

Administrative Rulemaking: The Horror! The Horror!

By Erika N. Chen-Walsh

donkey-elephant3One of the issues that most frequently arises in legislative disputes, at both the federal and state levels, is the issue of administrative rulemaking.

Administrative rulemaking is the process that executive and independent agencies use to create regulations that govern the execution of statutes. It has been the means by which some of the most far-reaching government regulations of the 20th century have been created. For example, it was through an administrative rule change that four species of constrictors were declared injurious under the Lacey Act. Exponential growth in regulations through the rulemaking process has reduced the transparency and accountability of state and federal government.

To understand what this means, you must first understand how a bill becomes a law (statute).

Bills may be introduced in either house of the Legislature.  Every bill must be read a specified number of times before it may be passed. In Illinois, a bill must be read three times in each chamber of the legislature.   Upon introduction, a bill is also referred to a standing committee

Committee members consider a bill by discussing and debating the bill. The committee may also hold public hearings on the bill.  This donkey_elephantis typically where the public is invited to give feedback for and against a bill.  The committee may report the bill with favorable recommendation, report the bill with amendments with favorable recommendation, report a substitute bill in place of the original bill, report the bill without recommendation, report the bill with amendments but without recommendation, report the bill with the recommendation that the bill be referred to another committee, take no action on a bill, vote to not report a bill out of committee.  In the latter two cases , the bill, upon being reported from committee, is tabled on the floor (temporarily removed from consideration). The rules for getting a tabled bill out of committee vary by state.

On being reported favorably from committee, the bill and recommended committee amendments (if any) are given a second reading and may be voted on.  Amendments to the bill maybe offered by any member when the bill is being considered at this stage of the legislative process.   Once the bill is ready in its originating chamber, it will receive its third reading.  At the conclusion of third reading, the bill is either passed or defeated.

biggovernmentIf it is passed, it goes to the other chamber and the process begins again with a first reading and referral to committee.  If a bill passes, it is sent to the other house of the Legislature where the bill follows the procedure outlined above, resulting in defeat or passage.

If a bill is passed by both houses in identical form, the bill is ordered enrolled by the house in which the bill originated. Following enrollment and printing, the bill (at the state level) is sent to the Governor.

If a bill is passed in a different form by the second house, the bill must be returned to the house of origin and be voted upon there again before being sent to the governor.

In other words, passing a bill into law should be a long and arduous process during which there is a lot of opportunity for stakeholder input.  There are multiple opportunities to influence the outcome and there are nearly endless opportunities for amendments and change to a bill.

The same process must be followed to amend, or change, an existing law or statute.  For example, if there is a law in a state that prohibits the ownership of orange lizards and a special interest group decides it would be good to prohibit the ownership of blue lizards and red lizards, too, they must first find a legislator willing to sponsor a bill and start from square one, above.

a-aabiggovIn the case of administrative rulemaking, the entire legislative process can be bypassed.  Instead of bills and chambers and committees and votes, the discretion to change the rules is vested with a specific officer, council or committee.  Using the orange lizard statute, if the statute were written to say that orange lizards are prohibited and other colors as determined by the Director of Agriculture through administrative rule, this means that the Director of Agriculture can just write a rule making all other lizards illegal, too.  No legislative process.  No protection for stakeholders.  (More often, it is a committee or a council than an individual, but the discretion is vested with a handful of people with absolute authority.)  Sometimes there can be public hearings or opportunities for stakeholder input, but that input is provided to people who are not elected officials and who are not accountable to voters.

They did a hybrid of this in Ohio to try to dupe the exotic animal owners in SB 310.  Although Balderson promised full legislative process to add additional species to the restricted lists, in the final statute, it says they cannot be added without “approval of the General Assembly.”  This bypasses full legislative process and allows the addition of species to the restrictive list through resolution as opposed to full legislative process.  This was political trickery.

Ohioans are experiencing the effects of administrative rulemaking right now.  The Director of Agriculture is railroading through emergency temporary rules for the housing requirements of animals.  These rules included hyena caging 25 larger than the Zoological Association of America standards, and rules on Komodo Dragons, although the only Komodos kept in Ohio were at zoos, which are exempt from the requirements. Private individuals will now be subject to larger caging requirements than zoos.

Administrative rulemaking is the equivalent of Government Gone Wild.  023-0418104436-Government-Gone-Wild!

It can be a tool used to increase housing requirements such that no private individual can afford to comply.  It can increase insurance liability requirements such the requisite policies do not exist.  Rulemaking can empower a single government agency to enact rules so stringent that they are defacto bans.

For these reasons, herpetoculturists need to be exceedingly skeptical about administrative rulemaking in any proposed bill.  It is a device by which a government officer or agency can come back and make substantial modifications to the law which then become the law.  Administrative rulemaking is always a slippery slope. With exotic animals, it is an exceedingly steep slope with a massive herd of elephants and asses sliding down it, directly on top of  your property rights.

Exotic Animals as Pets

This article was originally posted in the American Bar Association’s GP/Solo Practice Magazine 2009.  The views expressed herein belong to the authors and do not reflect positions or philosophies of Herp Alliance.

By Katherine Hessler and Tanith Balaban

hsus-state-exotic animal lawsAccording to the 2007-2008 National Pet Owners Survey, about 63 percent of all households in America, or about 71.1 millions homes, have at least one pet, including cats, dogs, birds, fish, reptiles, hamsters, guinea pigs, and other common animals. But there is also a brisk trade in “exotic pets” such as giraffes, monkeys, zebras, lions, tigers, chimpanzees, and yes, bears. The Humane Society of the United States estimates that billions of wild animals are brought into this country each year, many of them bound for the exotic pet market. Experts believe the exotic pet trade is a booming business, ranging from $10 billion to $15 billion a year in this country alone.

Although the idea of owning an exotic pet may be appealing to some, these situations often result in problems for the owners of such animals, or their neighbors, and present significant concerns for the animals themselves. Owners, breeders, and sellers of exotic animals need to be aware of applicable federal, state, and local laws. Breeders and sellers importing animals must comply with federal legislation, not only relating to importation, but also for maintaining adequate living facilities for the animals. Owners are likewise responsible for the conditions in which the animals live, as well as the safety of their neighbors. The most well known legal concerns arise when an exotic animal injures someone. For example, news reports have focused on the problem of chimpanzees as pets after a recent mauling in Connecticut resulted in significant physical harm to a friend of the owner and subsequent death of the animal.

The legal issues relating to the exotic pet trade require balancing the property interests of owners, breeders, and sellers with the governments’ police power to regulate nuisance and to protect public health and safety. Not only can individuals be injured by exotic animals, but public health at large can be compromised by diseases brought to a community by non-native species, such as the monkeypox outbreak stemming from pet prairie dogs in Wisconsin in 2003. The environment is also at risk. To see the harm that can be done to an ecosystem by releasing non-native animals, one only has to search the Internet for “pythons” and “Everglades.”

Finally, the animals themselves are in significant jeopardy as they are often sold to individuals without the capacity to provide appropriate food, medical care, or habitat. This combination of risk factors often leads to legal concerns. In addressing the legal concerns related to the exotic pet trade, a practitioner must be aware of the relevant federal, state, and local regulation.

Local Legislation

The first place to look for regulations applicable to exotic pets is at the local level—the city, town, or county ordinances, especially zoning ordinances regulating real property to ensure public health and safety and to combat nuisance. Sometimes health departments have regulations in addition to the city laws. Should these ordinances be hard to find, a local humane society, animal shelter, or veterinarian may have advice as they are often involved with the consequences of exotic pet ownership.

This will usually be the level where the most restrictive laws have been enacted, but the degree of regulation, the types of animals regulated, and the consequences for violations all differ widely from locale to locale.

State Legislation

The next step is to check for state regulations. A good source of information on this type of regulation is the state’s department of wildlife or natural resources department.

Exotic pet regulations also vary widely from state to state. Where some states have a complete ban on exotic pets, others require permits for their possession, and some states have no regulations whatsoever. The definition of what constitutes an exotic pet will also vary widely.

In jurisdictions with licensing schemes, individuals must obtain a permit, usually from the state fish and wildlife department, prior to owning an exotic pet. Other states regulate (but do not ban or license) the possession of exotics, limiting the quantity of animals an individual may have or setting standards for importation and animal care.

Federal Legislation

The next step is to check federal legislation. The animal in question may require a license by the U.S. Department of Agriculture (USDA). Other agencies such as the U.S. Fish and Wildlife Service (FWS) and the U.S. Department of Agriculture’s Animal and Plant Health Inspection Services (APHIS) may oversee the import and export of animals that are sold as exotic pets. Federal law affects breeders and sellers of exotic animals more than owners of exotic pets.

The reach of federal regulation is far broader than the state and local level regulations but is limited to regulating the ownership, transportation, exhibition, importation, and exportation of captive wild animals through interstate commerce and foreign policy. Because the federal government does not have a general police power, most regulations occur at the state and local levels, where police power does allow for general regulations for the public welfare.

Importation

When presented with a case involving an exotic animal, one of the first questions to consider is whether the animal arrived in the United States legally. To answer this question, a lawyer needs to know if the animal is covered by the Endangered Species Act (ESA).

The ESA is a broad regulatory regime under which more than 1,000 species of animals and plants are officially listed as endangered or threatened in the United States. With limited exceptions, none of these animals may be imported or exported either alive, as parts or products, or as hunting trophies.

Generally, an importer/exporter must use one of the FWS designated ports, and the shipment must be declared through a FWS Form 3-177 (Declaration for Importation or Exportation of Fish or Wildlife) and receive clearance. In most cases, the importer/exporter also must be licensed through the FWS and pay certain fees with each shipment.

U.S.-based shipments do not have to be declared through FWS; however, the shipment must comply with foreign wildlife laws, and live wildlife must be transported humanely. A person who ships certain species (such as those listed as endangered and threatened species, migratory birds, marine mammals, or injurious species) may not be transported through the United States. There are some exceptions for those who engage in conservation of endangered and threatened species.

The APHIS, the U.S. Customs and Border Protection, the U.S. Public Health Service, the U.S. Food and Drug Administration, and the National Marine Fisheries Service also regulate the importation and exportation of wildlife and may impose additional requirements.

If the animal in question came from abroad, the importer may have needed to comply with the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). CITES is a multinational agreement to regulate trade in endangered or threatened plant and animal species to protect the survival of wild populations. CITES is implemented pursuant to the ESA.

Some states may also impose requirements. A practitioner should contact the state fish and wildlife agency about any state-level requirements or restrictions of importation, exportation, and transportation of wildlife.

Ownership

The next question to consider is whether ownership of the animal is regulated by federal law and subject to additional conditions on its treatment and care. Relevant laws include the ESA, the Captive Wildlife Safety Act (CWSA), and the Animal Welfare Act (AWA). There are no federal laws that regulate or prohibit keeping exotic animals as pets.

The ESA (7 U.S.C. § 136, 16 U.S.C. § 1531 et seq.) prohibits a person from possessing, selling, delivering, carrying, transporting, importing, exporting, or shipping, by any means whatsoever, any endangered species of fish or wildlife. The ESA also prohibits any action that causes a “taking” of any listed species of endangered fish or wildlife—this includes harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting. It is unlawful for a person to trade or possess any specimens traded in violation of CITES. There are some exceptions to this rule (for scientific purposes, for example). In these specific instances, the person must get a permit through FWS.

The CWSA (Pub. L. 108-191, 117 Stat. 2871-2872), which went into effect September 17, 2007, prohibits the interstate commerce of live big cats across state lines or U.S. borders unless the person qualifies for an exemption. Big cats covered by the CWSA include lions, tigers, leopards, snow leopards, clouded leopards, jaguars, cheetahs, and cougars; all subspecies of these species; and hybrid combinations of these species. Penalties can result in jail terms of up to five years and fines of up to $500,000.

Also note that any retail pet store that sells exotic pets must be licensed as a dealer under the AWA (7 U.S.C. 2131 et seq.). The AWA ensures that animals kept for use in research facilities, for exhibition purposes, or as pets are provided humane care and treatment; the AWA also ensures humane treatment during transportation. Under the AWA, the secretary of agriculture is authorized to promulgate standards and other requirements governing the humane handling, housing, care, treatment, and transportation of certain animals by dealers and other regulated businesses, such as pet stores. (Regulations established under the AWA are contained in 9 CFR parts 1, 2, and 3.)

In addition, the administrator of the APHIS regulates animal dealers by issuing them annual licenses and conducting unannounced inspections of their premises to check for compliance with the AWA standards and regulations.

There are no private rights of action under the AWA. Penalties for violations under the AWA range from $1,500 to $2,500 for each day of each violation and up to one year in prison.

Possible Claims

What are the consequences to an exotic pet owner or seller/breeder if they violate a statute or if their animal causes injury to another? What happens to the animal?

Claims against pet owners, breeders, and sellers will most likely be tort actions—such as nuisance, conversion, trespass, negligence, and ultra-hazardous activities. In addition, if the animal has been abused or neglected, there may be separate charges under the applicable animal cruelty law.

An offending owner or breeder may be fined or imprisoned, and the animal may be taken, either to be euthanized or sent to a wildlife sanctuary.

However, a practitioner should be aware there may not be a claim for damages that flow from an injury through the federal or state statutes. Some federal legislation does not allow for a private right of action; instead, the aggrieved files a complaint with the appropriate federal agency.

Representing an aggrieved pet owner or breeder/seller changes the way one looks at the problem. A breeder/seller needs to comply with certain federal provisions. If these have been complied with, then state legislation should be examined. Lastly, local regulations should be consulted. When defending an exotic pet owner, the order of research should be the opposite—local, then state, then federal—because the regulations will mostly likely be more applicable at the local level.

Besides bringing suit, exotic pet owners or breeders whose animals have been confiscated may also either challenge the applicability of the regulation to their situation or challenge the legitimacy of the regulation.

If an exotic animal has been seized by animal control or by a state or federal wildlife department, owners may challenge the agency’s application of the regulation to their specific case by arguing that the animal does not fall within the parameters of the regulation. In administrative law, however, courts are deferential toward administrative determinations. A pet owner may also challenge the legislative or administrative body’s authority to have passed the regulation at all.

An exotic pet owner or pet breeder may also bring constitutional challenges, both facially and as-applied. An equal protection challenge under the Fourteenth Amendment may be brought if cities or counties enact zoning ordinances restricting people from owning exotic pets but do not include an allowance for those who already own these animals to continue to do so as a non-conforming use. In addition, any zoning ordinances must apply equally to those possessing permitted wildlife and other property owners; otherwise, the ordinances may be found invalid as applied. A procedural due process challenge under the Fifth and Fourteenth Amendments may be brought in cases where the government deprives a pet owner or breeder of property without giving appropriate notice or the opportunity to be heard. A regulatory taking challenge can also be brought under the Fifth and Fourteenth Amendments, which require “just compensation” when private property is taken for public use. If an owner or seller has violated exotic pet regulations, however, the courts have found this not to be a regulatory taking.

Conclusion

Significant legal issues arise when an individual chooses to buy, sell, or own an exotic animal. Given the serious negative consequences that can result from this activity, significant protection is afforded by local, state, and federal law to the people adversely affected by the presence of these animals. Additionally, there are often terrible outcomes for the animals themselves, which are often not considered at the outset. Practitioners advising individuals in this context need to familiarize themselves with a very broad set of laws and regulations; the number and variety of these regulations is only likely to increase in the future owing to rising concern about the health and safety implications of exotic animals as well as concern for the welfare of the animals themselves.

Some Federal Laws That Implicate the Exotic Pet Trade

African Elephant Conservation Act
Animal Welfare Act
Asian Elephant Conservation Act
Captive Primate Safety Act
Captive Wildlife Safety Act
Eagle Protection Act
Endangered Species Act
Lacey Act
Marine Mammal Protection Act
Migratory Bird Treaty Act
Rhinoceros and Tiger Conservation Act
Wild Bird Conservation Act
For More Information

For copies of applicable state and federal regulations and lists of protected species, write to the Assistant Regional Director for Law Enforcement of the U.S. Fish and Wildlife Service Office in your region.

AS, CA, GU, HI, ID, MP, NV, OR, WA
Assistant Regional Director for Law Enforcement, Region 1
U.S. Fish and Wildlife Service
P.O. Box 9
Sherwood, OR 97140-0009
503/521-5300

AZ, NM, OK, TX
Assistant Regional Director for Law Enforcement, Region 2
U.S. Fish and Wildlife Service
P.O. Box 329
Albuquerque, NM 87103
505/248-7889

IA, IL, IN, MI, MN, MO, OH, WI
Assistant Regional Director for Law Enforcement, Region 3
U.S. Fish and Wildlife Service
P.O. Box 45, Federal Building
Fort Snelling, MN 55111-0045
612/713-5320

AL, AR, FL, GA, KY, LA, MS, NC, PR, SC, TN, VI
Assistant Regional Director for Law Enforcement, Region 4
U.S. Fish and Wildlife Service
P.O. Box 49226
Atlanta, GA 30359
404/679-7057

CT, DC, DE, MA, MD, ME, NH, NJ, NY, PA, RI, VA, VT, WV
Assistant Regional Director for Law Enforcement, Region 5
U.S. Fish and Wildlife Service
300 Westgate Center Drive
Hadley, MA 01035
413/253-8274

CO, KS, MT, NE, ND, SD, UT, WY
Assistant Regional Director for Law Enforcement, Region 6
U.S. Fish and Wildlife Service
P.O. Box 25486-DFC
Denver, CO 80225
303/236-7540

AK
Assistant Regional Director for Law Enforcement, Region 7
U.S. Fish and Wildlife Service
1011 E. Tudor Road, Suite 155
Anchorage, AK 99503-6199
907/786-3311

Headquarters
Chief
Office of Law Enforcement
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive, Room 520
Arlington, VA 22203-3247
703/358-1949

Additional information can be found at the U.S. Fish and Wildlife Service website ( www.fws.gov).

Katherine Hessler is the director and clinical professor for the Center for Animal Law Studies at Lewis and Clark Law School, Portland, Oregon; she may be reached at khessler@lclark.edu. Tanith Balaban is a member of the Oregon State Bar; she may be reached at tbalaban@gmail.com.

This article was originally posted in the American Bar Association’s GP/Solo Practice Magazine 2009.

US Fish & Wildlife Rule Making Authority: A Moral Dilemma

By Andrew Wyatt– CEO of the US Herpetoculture Alliance, Inc

        “Working for the Future of Herpetoculture”

The US Herpetoculture Alliance is calling for closer scrutiny for an already broken and out of control bureaucratic process in our federal government.

Senate EPWYesterday, Senator David Vitter Ranking Member of the Environment and Public Works Committee, along with 23 additional Senators from both parties, sent a letter to the Obama administration questioning the administration on how proposed changes to economic impact analyses required by the Endangered Species Act (ESA) could potentially hide the true impact of a species listing on jobs and private property rights across the nation.

In their letter to Dan Ashe, Director of US Fish & Wildlife Service (FWS), they expressed concerns about FWS attempting to change the rules required for reporting economic impact to bury reality by statistical manipulation in an attempt to hide the ball on the actual impact to business and agriculture. There has been a disturbing trend of late in the lengths to which FWS is willing to go to avoid accounting for the economic impact of their rule making process, especially in regards to the ESA and the Injurious Wildlife list under the Lacey Act. This trend has become more pronounced under the direction of Dan Ashe.

FWS has systematically avoided having to make economic justifications for its actions. In a calculated strategy of using rule making to avoid the legislative process, Ashe and the Obama Administration have pushed for an aggressive, yet critically incomplete, rule making process. With the support of radical environmental and animal rights advocates, Ashe has shortcutted the rule making process, seemingly ignoring the Administrative Procedures Act (APA), the Information Quality Act (IQA), and more to the point, ignoring the required economic impact analyses.

FWS Director Dan Ashe with Senator Bill Nelson and DOI Secretary Ken Salazar
FWS Director Dan Ashe with Senator Bill Nelson and DOI Secretary Ken Salazar

By-passing these important institutional checks and balances is having a dire negative impact on agriculture and small business. Billions of dollars of economic impact and tens of thousands of jobs are at stake while FWS tries to play a bureaucratic shell game with the American public. Special interests such as the Defenders of Wildlife pressure their friends at FWS to expedite rule makings as a moral imperative.

There is no doubt that Director Ashe and the NGO’s that support him feel that they hold the moral high ground on these issues. Protecting the nation’s wildlife and environment are indeed noble causes. However, corrupt means do not lead to a noble end. Circumventing legal and administrative processes designed to protect the integrity of rule making is not noble. Decisions cannot be arbitrarily made based on the ideals of a government agency or a powerful lobbying group seeking to bypass reasonable and established mandates for process, procedure and information quality standards in order to appease special interest groups.

us-district-court1On December 14, 2010, in a decision by US District Court Judge Oliver Wanger regarding an FWS rule to cut water off from the Central Valley of California to protect the Delta Smelt under the ESA, Judge Wanger ruled against FWS calling the sloppy science and fudged process, “arbitrary, capricious and unlawful”.

The rule cut off billions of gallons of water from human and agricultural use without scientific and procedural justification. It devastated the family owned agricultural businesses that relied on water to irrigate their crops in the Central Valley of California. What was left of these family farms in the wake of the FWS action was characterized as “dust bowl” like conditions. Government ideals cannot be permitted to take precedent over facts and science in order to expedite action that hurts jobs and the economy, all under the ruse of a moral imperative to protect endangered species and the rule making process.

In 2011 Congressman Darryl Issa held a hearing before his Government Oversight & Reform Committee to investigate a “broken government” rule making process. During this hearing he points out that, “it appears the FWS violated the administrative process in a number of ways” in regards to the Constrictor rule making, a proposed rule to add 9 constricting snakes to the Injurious Wildlife list of the Lacey Act. Under questioning of committee members, then Director of the White House Office of Management & Budget, Cass Sunstein, was asked about the trend in rule making where agencies were systematically avoiding economic impact analysis. Sunstein assured the committee that economic impact analysis would be done for all outstanding rules.

The Small Business Administration’s Office of the Advocate, also commenting on the sbaproposed Constrictor rule, informed the FWS that its Initial Regulatory Flexibility Act Analysis (IRFA) was sorely lacking. Scientists from around the world questioned the highly controversial science used to substantiate the rule. When the science was further questioned under the Information Quality Act (IQA), agency officials replied that they weren’t held to the mandates for information quality required by IQA. On January 17, 2012 the Constrictor rule was partially enacted without an economic impact analysis having been done. Again FWS justifies rule making actions circumventing due process with the moral authority of expediting the protection of the environment.

The continued and relentless attempt by FWS to expedite their rule making process at the expense of jobs and the economy, while justifying their actions by claiming the moral high ground, is irresponsible and reckless.

The US Herpetoculture Alliance is urging better scrutiny and oversight for a bureaucratic process gone amok. If facts and science are going to be held hostage to ideology, then expect the Herp Alliance to be shining a bright light for a growing audience of concerned Americans to be able to clearly see where government actions appear to have no regard for jobs, private property or due process. Unbridled government has become one of the biggest obstacles to economic growth and jobs. It is time that agency staff be held to account for their actions.

The Python Challenge: Let’s Look at the Numbers

By Erika N. Chen-Walsh

Herp Alliance blogged yesterday about the 2013 Florida Python Challenge that has been underway since January 12, 2013 and lasts until February 10th.  In the first two weeks of this event, more than 1,000 hunters had killed exactly 30 snakes, a very underwhelming result for those who speciously claim that there are as many as 150,000 Burmese pythons living wild in the Florida Everglades.  (With such a grandiose population, how come the army of 1,000 hunters cannot find them?)

Let’s take a look at the numbers.  Thirty snakes have been killed in 14 days.  This equates to 2.14 snakes per day.  Assuming that there are exactly 1,000 hunters in the Challenge, this means that each day, they have a 0.2% chance per day of killing a Burmese python wild in the Everglades.

If the grossly exaggerated “problem” of 150,000 Burmese pythons in the Everglades were correct, at the current kill rate, it would take these 1,000 hunters, working every single day, 192 years to kill them all, if they existed.

The numbers do not add up.  The numbers are not there because the pythons are not there.  As Andrew Wyatt testified before the US House Committee on Natural Resources, Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs on November 29, 2012:

The population of pythons peaked in summer 2009. This was followed quickly by a population crash in the winters of 2009 and 2010.The decline in python numbers since the summer 2009 peak have been significant. The Florida Fish & Wildlife Commission believes 30-50 percent of the remaining wild Burmese python population died in January and February 2010.

The “problem” of Burmese pythons in the Everglades has been exaggerated and embellished by the Animal Rights industry and political propaganda for ulterior motives.

As of 2009, over 192 invasive animal species (not including insects) have made their home in the Everglades (Ferriter et al., 2009).

feral catPythons tend to get more headlines than other species of animals because of animus toward snakes by the general public, animus that is fomented and encouraged by groups such as HSUS.  Seemingly innocuous animals like the island apple snail and Asiatic clam may be causing more damage to to the ecosystem of the Everglades.  Feral (and domestic) cats are one of the most detrimental invasive species in the Everglades (and elsewhere), yet there is no widespread call to outlaw cats.

This is not a problem that is limited to large constrictor owners, keepers and breeders.  If propaganda and embellished hysteria in the absence of factual data can fuel arms of the State and Federal Government to seek to limit private property rights, the ownership of all species of animals, both domestic and exotic is in jeopardy.

The time to act is now, and the community of reptile and amphibian breeders must come together in a cohesive, organized voice before there is nothing left for us to talk about.

Florida Python Challenge: More Than 1,000 Hunters, 2 Full Weeks, Only 30 Snakes

python-challenge

More than 1,000 people signed up to hunt Burmese pythons in the Florida Everglades, but just a fraction of them have been successful so far.

The Florida Fish and Wildlife Conservation Commission said Friday that 30 of the invasive snakes have been killed in the competition that began Jan. 12.

Wildlife officials say eradicating pythons from the Everglades was never the goal of the monthlong “Python Challenge.” Instead, they hoped to raise awareness about the snake’s threat to native wildlife and the fragile Everglades ecosystem. The snake faces both state and federal bans.

No one knows for sure how many pythons live in the Everglades. Researchers say the hunt is helping them collect more information about the pythons’ habits.

The competition ends Feb. 10.

Associated Press, January 25, 2013

Herp Alliance Signs Prominent DC Consultant

Frank Vitello of Vitello Consulting
Frank Vitello of Vitello Consulting

The Herp Alliance is excited to announce that we have engaged Vitello Consulting to represent the interests of herpetoculture in Washington DC for the 113th Congress. Vitello Consulting is a full-service government affairs consulting firm assisting clients whose concerns and interests intersect with the United States Congress, federal agencies, and international regulatory organizations. Vitello Consulting’s current and prior clients include organizations such as the Zoological Association of America, The Institute of Greatly Endangered and Rare Species (TIGERS), the City of Niagra Falls, and the South Carolina Aquarium, among others.

Frank Vitello, the principal at Vitello Consulting, and Herp Alliance CEO Andrew Wyatt have a very successful history of working together as the architects of one of the most dynamic and effective animal advocacy teams on Capitol Hill. With the help of Vitello Consulting, Wyatt put the herpetoculture community on the map by establishing it as a $1.4 billion industry and defeating HR 669. Vitello and Wyatt garnered the support in both the House Natural Resources Committee and the Senate Environmental & Public Works Committee to stifle Senator Bill Nelson’s move to add all pythons to the ‘Injurious Wildlife’ list of the Lacey Act, and eventually defeated HR 2811 and S 373 (aka “The Python Ban”). Vitello and Wyatt also laid all the legal ground work for the federal lawsuit that the Herp Alliance and Vitello Consulting will aggressively pursue. There has been no more effective team on herpetoculture issues at the federal level than Andrew Wyatt and Vitello Consulting. The Herp Alliance is proud to announce that the “A Team” is back together again! Welcome back, Vitello Consulting.

Andrew Wyatt will be back in Washington DC next month for Congressional briefings on the Herp Alliance agenda for 2013.

HSUS: The Pacelle Propaganda Machine Hampers Progress For Animals

By Erika N. Chen-Walsh

This post was previously published on my personal blog, A Legal Perspective, on December 3, 2012.

Wayne Pacelle, CEO and president of the Humane Society of the United States (HSUS) blogged today, lambasting Andrew Wyatt and U.S. Rep. Steve Southerland (R-FL) for opposing  U.S. Rep. Tom Rooney’s (R-FL) animal rights driven House Resolution 511.  HR 511 seeks to amend title 18, United States Code (the “Lacey Act”), to prohibit the importation of nine species of constrictor snakes as injurious species.  These include the Burmese python, the reticulated python, the North African rock python, the South African rock python, the Boa constrictor, and three species of anaconda.

Andrew Wyatt preparing to testify before the House Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs

Apparently, the reptile community, led by Andrew Wyatt, has struck a nerve with the $200 million plus per year animal rights legal behemoth, HSUS.  Pacelle’s angst at Wyatt is not particularly surprising.  Since co-founding the United States Association of Reptile Keepers in 2008, Wyatt has emerged victorious in more than two dozen state engagements defending the rights of herptile owners as well as multiple federal entanglements.  These victories have come on a shoestring budget and against HSUS’s powerhouse millions.  Wyatt is most certainly a bothersome thorn in Pacelle’s manicured paw, and one that will not go away.

Pacelle said today, “But the reptile lobby—yes, there is such a thing—has been thrashing its collective tail and saying how benign these snakes are and that cold weather will prevent the snakes from going much farther than the Everglades (I guess it’s no matter to these supposed snake “lovers” that the snakes will freeze to death).”

Pacelle’s comment is interesting for two reasons.  First, using HSUS’s own statistics, 17 people have been killed by large constrictors in the US since 1978.  HSUS further claims that there have been 1,111,768 large constrictors imported since 1977.  Using those figures alone, without factoring in the millions of large constrictors bred in captivity this country since 1978, it makes the risk of death from a large constrictor less than 0.01%.  Large constrictors may not be “benign,” but the risk of being killed by a vending machine, a clothes dryer, a sand hole, a shark attack, a dog or a bee are significantly higher than the statistical risk of being killed by a large constrictor.

Second, Pacelle seems to concede that the snakes will freeze to death if they travel north of the most southern tip of Florida.  HSUSclaims on its own web site about reptiles, “Wild animals are best left in the wild where they belong.”  As great a shock as it may come to HSUS, animals in the wild are not frolicking about making daisy chains and counting stars as they do in Disney movies.  Wild animals die of disease, injury, predation, starvation, and yes, from the elements of nature.

Clearly, Pacelle’s remark is intended only to inure sympathy from animal lovers who don’t truly understand the issue. HSUS has used similar rhetoric about dog breeders, showing a decided recalcitrance to distinguish between responsible breeders and puppy mills.  Responsible reptile owners and breeders do not want to see the suffering of any herptile, and they certainly don’t advocate releasing any captive reptiles into the wild.

Pacelle’s tantrum continues, “Somehow the snake lobby, in the form of the U.S. Association of Reptile Keepers, has hoodwinked a number of Republican House members and apparently convinced them that this is a matter of “economic freedom.”

This is about economic freedom. HSUS does not have the right to deprive American citizens of their property interests and their livelihoods simply because Pacelle doesn’t agree with reptile ownership.  It must be incredibly empowering for one person to believe that his ideology should translate into law for every American citizen, but it is the duty of lawmakers to protect the interests of their constituents, no matter how much it upsets Mr. Pacelle.  The majority of people involved in true herpetoculture, the breeding and ownership of captive bred reptiles, care immensely about the health and welfare of the animals they keep.  (If Pacelle is truly concerned about the welfare of animals, perhaps he should revisit his endorsement of convicted dog fighting felon, Michael Vick, who, for a monetary donation, now receives Pacelle’s endorsement.)

Pacelle speciously condemns U.S. Rep. Southerland for condoning the import of  “dangerous invasive species into the country for use as pets, even if they are creating ecological havoc, injuring and killing private citizens, and costing the nation millions of dollars in terms of containment activities.”  (When he hasn’t got facts, he embellishes.)  Notably, Pacelle provides no back up for his inflammatory and false rhetoric.  HSUS’s fall back plan is to continue to terrify the public about non existent threats in order to feather HSUS’s own legal nest.  (HSUS has conceded in its Motion to Intervene in Ohio that it has an economic interest in winning legislative engagements because doing so attracts more monetary donations.  I will be writing on that topic next.)  If Pacelle needs to succeed in state and federal legislatures in order to attract the hundreds of millions of dollars that pay his six figure salary, perhaps he should set his sights on those more dangerous predators, such as vending machines, clothes dryers and sand holes.

U.S. Representatives Fleming and Southerland, Dr. Brady Barr, Shawn Heflick, Colette Sutherland and Andrew Wyatt should be commended for bringing facts to the table regarding the threat of pythons in the Everglades and the economic impact of arbitrary and capricious government action.  The role of our representatives in Congress is to protect our rights from unnecessary and harmful legislation, not to ensure that Pacelle has enough “wins” to fund HSUS into perpetuity.

The Death of HR 511

congressBy Andrew Wyatt

Today the 112th Congress came to a close, and with that HR511, aka “The Python Ban” died a quiet death. HR511 was a legislative version of the recent rule making by US Fish & Wildlife Service to add nine constrictor snakes to the Injurious Wildlife list of the Lacey Act. Where the rule making fell short by adding only the Burmese python and 3 other snakes, HR511 would have superseded the rule making adding all nine snakes to the Injurious list. Much to the chagrin of animal rights advocates, after two years and two congressional hearings, HR511 has finally been defeated.

Introduced in early 2011 by Congressman Tom Rooney (R-FL), HR511 languished with very little attention for about one year. In early 2012 the bill moved to a mark up hearing and was reported out of the House Judiciary Committee with two amendments that would require “knowingly violating” the law, and provide exemptions for certain shippers. Uncharacteristically, HR511 was held for legal review until September.

Upon its final release by the Judiciary Committee, HR511 was picked up by the House Natural Resources Committee for hearing. Andrew Wyatt was the first expert witness chosen to testify on behalf of herpetoculture by committee staff. Wyatt nominated Dr. Brady Barr of the National Geographic Society and Shawn Heflick of NatGeo WILD also be called as expert witnesses. PIJAC recommended Colette Sutherland to represent the pet industry.

On November 29th, 2012, Chairman John Flemming (R-LA) the Subcommittee on Fisheries, Wildlife, Oceans and Insular Affairs held a full hearing. Wyatt used the new cold weather study by Jacobson et al, 2012 as the central argument demonstrating why pythons were unable to survive north of the southern tip of Florida. Heflick and Barr related their “boots on the ground” experience with pythons in the Everglades supporting the findings of Jacobson et al. Colette Sutherland gave a heartfelt depiction of the impact that unjust legislation would have on her family, business and other similar businesses. Wyatt reinforced that HR511, if passed, would have an economic impact of as much as $104 million annually.

Wyatt, Heflick and Barr were extremely effective in convincing the subcommittee that HR511 was based on fundamentally flawed science and would be a “job killer” in a time of economic hardship. With herpetoculture advocates now proactively dictating the narrative regarding the question of south florida pythons, the committee decided to discharge HR511 without a vote; thus curtailing all momentum from the bill.

Today HR511 died with the close of the 112th Congress.

Herp Nation Radio Network's Dan Krull interviews Andrew Wyatt about the Herp Alliance

radio

From the Herp Nation web site:

The Herp Nation Radio Network’s Dan Krull talks with Andrew Wyatt about his resignation from USARK that was first reported to you here on HerpNation.com. Dan asks the questions the herp community wants answers to about Andrew’s departure, and also what the future holds for his new organization. Herp Nation has reached out to USARK and will bring you that information as soon as it becomes available. Listen now….

http://www.herpnation.com/audio/dks-sr2-010112/