Tag Archives: constrictor rule

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

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

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

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

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

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

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

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

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

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

Read the US Herpetoculture Alliance Official Public Comments here.

FWS To Finalize Python Ban: Public Comment Reopens Tomorrow!

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

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

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

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

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

Read Public Announcement Here

 

 

 

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

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

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

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

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

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

USARK v Jewell et al.: Back to Square One

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

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

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

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

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

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

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

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

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

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

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

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.