By Erika N. Chen-Walsh
“The strictest law often causes the most serious wrong. The more laws, the less justice.” ~ Marcus Tullius Cicero
Recently the issue of Best Management Practices (BMPs), or defined standards of care for reptiles has been hotly debated within the reptile community. Although defined BMPs as suggestions for voluntary compliance by an organization are not, in themselves, a negative idea, the inclusion of BMPs into statute can make them a bar, or a very onerous hurdle, to working with certain animals. In order to understand the ramifications of BMPs, you must first understand legislative schemes.
Pick Your Poison
In simplest terms, there are three basic types of legislation that seek to restrict exotic animal ownership. The first is an all-out ban on ownership. Such a statute currently exists in Illinois. In Illinois, it is illegal to keep, harbor, care for, act as custodian of or maintain any “poisonous or life-threatening reptile” as a “dangerous animal.” 720 ILCS 5/48-10(a). Under a ban, ownership is prohibited except for certain, narrowly defined exceptions (i.e. accredited zoos and sanctuaries).
The second type of legislation is a permit/licensing/registration system. This is a gatekeeper system wherein to keep a restricted animal, the owner must get some kind of legal “permission” from the state, and the state has a defined set of requirements necessary to participate in the keeping of the restricted animal, as well as (usually) application and other fees.
The third type of legislation is a penalty system. Under this legislative scheme, citizens are allowed to keep the restricted animal, but there are civil and/or criminal penalties if the keeper is found to be in non-compliance with the statutorily defined requirements to keep the animal.
Both the permit system and the penalty system can operate as de facto bans. If the requirements to keep the restricted animals become so onerous that no one can meet the housing or insurance (or other) requirements, then it becomes a situation where no one can qualify. For this reason, it is imperative to carefully examine the language in a ballot initiative about rule making or administrative rule. If requirements to keep a restricted species can easily be changed by a committee, instead of through legislative amendment, a change in administration can lead almost seamlessly to a change in law that has drastic consequences on herpetoculturists.
When Legislation Comes Knocking
In the exotic animal community, members generally learn of ballot initiatives to restrict ownership or possession o f these animals either through word of mouth or through media hype. That is to say that either an alert community member learns of a bill that has been proposed in her state and shares that information within in the community and with advocacy organizations, such as the US Herp Alliance, or the sponsors of a bill, either the animal rights industry or a legislator, will publicize that a bill will be introduced.
In these scenarios, the community of citizens whose rights may be restricted are in a reactive role, seeking to defeat or modify the pending legislation to protect their private property and/or business interests. In these situations, we appeal to the relevant legislature to first establish why legislation must be enacted (statistics do not support the terror campaign of the animal rights industry that reptiles are statistically significantly dangerous animals); we impress upon the legislature what the economic and property interest impact of the proposed legislation will be; we point out the problems with the bill as proposed; and we educate the law makers as to the real facts, issues and statistics. In other words, we use all tools available to us to defeat the pending bill on its own lack of merit.
Although it seems negative to be in a reactive, rather than a proactive role, with legislation that is almost never the case for a variety of reasons.
You Cannot Trust a Shark Not to Bite the Hand That Feeds It
It’s easier to understand why proposing legislation is problematic.
When Andrew Wyatt and I were in Ohio fighting against the exotic animal ban known as SB310, we took an unyieldingly anti-legislation approach. SB310 was not about protecting citizens in the wake of Zanesville. SB310 was the culmination of a two-year, relentless campaign by the Humane Society of the United States (HSUS) to enact legislation in Ohio. That campaign endured through two governors and turned into a large, political embarrassment for current Governor Kasich who was determined to rehabilitate his public image at tremendous cost to Ohio citizens. (See SB310: Kasich’s Big Expensive Blunder, Poised to Kill Small Business in Ohio.)
Because of the multiple reversals of position and broken promises on the part of Senator Troy Balderson (the sponsor of SB 310) and the Ohio Department of Agriculture, Wyatt and I had determined that either Balderson did not have the authority to negotiate SB 310 or he was simply acting in extraordinarily bad faith. In either case, continued negotiations were fruitless and instead we chose to fight against the inclusion of any reptiles in SB 310. This approach was seen by some industry members as being too rigid, and when we submitted a substitute bill to the Ohio House of Representatives excluding all reptiles, we were criticized as taking too hard line an approach.
On June 5, 2012 Governor Kasich triumphantly signed SB 310 into one of the most restrictive pieces of exotic animal legislation in the country, stating that, “I think, in many ways, this will be a model piece of legislation for the way to get this done. . . I think it can serve as a real model for the rest of America about how to do this in a reasonable way.” (See Governor Kasich’s SB 310 Bill Signing Statement, June 5, 2012.)
The reason we did not negotiate is because once you make concessions, in a legislative negotiation, they become the floor of what you will receive. In other words, the proponents of the bill (in the case of SB 310, HSUS was its strongest proponent) will continue to negotiate additional restrictions and politicians who are always willing to split the baby, will concede.
This is also true for proposing alternate bills or substitute bills. In some legislative engagements, when faced with an undesirable bill, many people are tempted to propose their own alternate bill. This strategy is very fraught with risk. Trying to propose proactive ballot initiatives is an extremely dangerous gamble. No matter what is written in the proposed bill, once it has been introduced on the statehouse floor, you lose complete control over what changes will be made. Proposing legislation, therefore, means opening the reptile community up to unforeseen restrictions that were never intended or desired.
There are rare exceptions to this general proposition, and that is when a state already has statutes in place that are extremely restrictive and the proposed legislation will ease the restrictions or allow circumstances in which those restrictions can be ameliorated. For example, if a state were to have a statute in place making the ownership or possession of all venomous animals illegal (such as it is in Illinois), it might be advantageous to propose legislation allowing people to work with venomous animals as long as certain requirements were met. However, this is a very case specific situation and it exists only in a tiny minority of situations.
Best Management Practices in Worst Case Scenarios
There are extremely limited situations in which BMPs should ever be discussed in a legislative engagement and they are always when a situation requires a compromise in order to prevent a de facto or an actual ban from being passed into law. Using my example of Illinois again, where the keeping of venomous reptiles is already illegal, if proposing reasonable BMPs could persuade the legislature to allow private citizens to work with these animals, it might be acceptable. Similarly, in Ohio, imposing reasonable BMPs would have led to a far better outcome than the act that is now law.
By reasonable BMPs, I mean common sense safety requirements, such as posting a sign in the room where the venomous animals are kept identifying the location and contact information for the necessary antivenin; keeping venomous animals in locking enclosures or in a locked room; and identifying the species kept so that first responders are not jeopardized in case of emergency. However, BMPs are something that should only be proposed in worst case scenarios. They must be reasonable with a reasonable nexus of connection between the requirement and public safety. And they must be defined by experts in the field of each species and not by committees formed by politicians.
The Best Application of Best Management Practices
BMPs are something that private keepers should consider and implement themselves, specific to their situations and the specific animals that they keep. The best protection for the entire reptile community that will impact our rights to continue to work with the animals we choose is for individuals to police themselves. Animals should be kept with their welfare in mind, with clean, adequate housing facilities, appropriate food and medical care, including parasite control. In addition, animals that may pose a threat to human safety should be managed with appropriate care and precaution. Prevention of human injury and prevention of animal abuse and neglect are our best defenses against unreasonable legislation.