Tag Archives: Herp Alliance

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.

 

UPDATE: Louisiana SB 357

LA MapHerp Alliance has opened a dialogue with Chairman Long’s office regarding Louisiana Senate Bill 357.  We have confirmed that SB 357 will not be called for hearing before the Senate Natural Resources Committee next week.  We will update the Reptile Nation with developments.

In the meantime, please review our Herp Alliance SB 357 Talking Points and if you are a Louisiana resident, please write, email or fax your Louisiana State Senator and members of the Senate Natural Resources Committee (below).

Committee Members

Senator Gerald Long (Chairman)
P.O. Box 151
Winnfield, LA 71483
(318) 628-5799
longg@legis.la.gov
Senator Rick Ward, III (Vice-Chairman)
3741 Highway 1
Port Allen, LA 70767
(225) 246-8838
wardr@legis.la.gov
Senator R.L. “Bret” Allain, II
600 Main Street
Suite 1
Franklin, LA 70538
(337) 828-9107
allainb@legis.la.gov
Senator “Jody” Amedee
2109 S. Burnside Ave.
Suite A
Gonzales, LA 70737
(225) 644-1526
amedeej@legis.la.gov
Senator Norbèrt N. “Norby” Chabert
P.O. Box 2417
Houma, LA 70361
(985) 858-2927
chabertn@legis.la.gov
Senator Jean-Paul J. Morrell
6305 Elysian Fields Ave.
Suite 404
New Orleans, LA 70122
(504) 284-4794
morrelljp@legis.la.gov
Senator Dan “Blade” Morrish
119 W. Nezpique Street
Jennings, LA 70546
(337) 824-3979
morrishd@legis.la.gov
Senator Page Cortez (Interim Member)
101 W. Farrell Road
Bldg. 5, Suite 100
Lafayette, LA 70508
(337) 993-7430
cortezp@legis.la.gov

UPDATE: West Virginia HB 4393

capitol buildingHerp Alliance has spoken to Governor Tomblin’s aide. The Governor has not yet received HB 4393 and has therefore not reviewed it.  Herp Alliance has opened a dialogue with the governor’s office and we will report on future developments.

Some tips on dealing with this issue:

  • Please do NOT contact Governor Tomblin unless you are a West Virginia resident or you do business in West Virginia.  You will cause them to have animosity to our issues, and West Virginia does not care about your opinion if you are not a constituent.
  • If you have already contacted Governor Tomblin’s office, do not contact them again unless you have something new to say or to add.  HB 4393 has already passed out of both chambers.  Alienating the Governor will damage our credibility.
  •  Governor Tomblin did NOT veto this bill last year.  In 2012 he vetoed a similar bill.  In 2013, a similar bill passed the Senate but was never called in the House Committee for hearing.   If you call, please be sure you have the correct facts.
  • Be courteous. This Governor has demonstrated the courage to do the right thing in the past.  Please do not alienate him or his office staff.
  • HB 4393 has the strong support of HSUS.  Please be clear on your facts, and be professional.  There are plenty of good, legitimate reasons for Governor Tomblin to veto this bill and the argument needs to be coherent and persuasive.

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.

VETO West Virginia HB 4393

veto HB 4393On March 6, 2014, the West Virginia Senate passed House Bill 4393, the Dangerous Wild Animals Act, on a vote of 69 yeas, 23 nays, and 8 not voting.

This bill is over reaching, unnecessary, creates an unfunded mandate for the state and is unconstitutionally vague.  The only hurdle that remains before it becomes law in West Virginia is Governor Tomblin’s signature.  In 2012, Governor Tomblin had the strength of conviction to veto a very similar bill, and Herp Alliance has asked him to use that same strength in exercising his veto again.

Please click on the links below to see our letter to Governor Tomblin and to download talking points on HB 4393.

Herp Alliance letter to Governor Tomblin urging him to veto HB 4393.

Herp Alliance HB 4393 Talking Points

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.

 

 

Reptiles and Advocacy and the Long Road Ahead

The 2014 legislative session has opened with a bang this year, with multiple bills affecting herpetoculture introduced in Wisconsin, West Virginia, Louisiana, Indiana, Missouri, and Maryland.  Bills introduced in New York, New Jersey and South Carolina in 2013 started moving again.

At this time, there is no national organization that is representing private keepers of herpetofauna directly at the state level.  PIJAC faded out with the departure of its CEO and president, Michael Canning.

Herp Alliance ceased its state level engagement (testifying and advocating directly with legislators) at the end of 2013 when it also stopped accepting donations and memberships.

Although USARK insists that it is engaged in statehouse disputes, no one from the organization has been testifying against state ballot initiatives impacting herpetoculture.  On information and belief, USARK has not testified at a single state level legislative committee hearing since Andrew Wyatt’s departure in 2012.  USARK recently stated on its Facebook page that, “the reason USARK has requested that state constituents speak up is because those are the voices that matter most.”

Lacey Act quoteThis leaves no national organization advocating for the Reptile Nation at the state level.  The outcome of the Lacey Act Rulemaking will be irrelevant if it becomes illegal to own reptiles in every state.  The interstate transport of Burmese pythons will no longer matter if their ownership and breeding becomes illegal.

The Reptile Nation needs advocacy and it needs it now.  Advocating against the avalanche of animal rights legislation that is burying this industry and this hobby requires more than a flurry of Facebook status updates and blog posts in a helter skelter rush without any interpretation or organization.  In fact, that method only creates confusion and chaos.Peta Exotic Animals

Stakeholders within a jurisdiction are always critical to a fight. However, there are many situations in which those stakeholders cannot or will not speak.  Ohio has taught us many lessons, and one of those lessons is that every exotic animal owner who had the courage to suit up and show up in those unending committee hearings and deliver their carefully prepared testimony received a notice from the Department of Agriculture as soon as SB 310 became law that they had to bring themselves into compliance with the new, prohibitive regulatory scheme or their animals would be confiscated.  Their testimony made them targets.

hsus reptilesIt’s in those situations that a national organization can bring to bear the weight of its numbers under the cloak of safe anonymity.  It is the role of a trade organization to collect the data, to make the arguments, to lead, and to advocate on behalf of its constituents.  Advocacy happens when your back side is not in your easy chair with a computer screen shielding you from both legislatures and the people whose passions, hobbies and livelihoods depend on your competence and your determination.

Consider the biggest heavyweight in the animal rights arena, the Humane Society of the United States, that quarter billion dollar behemoth that decided that reptile ownership is inhumane.  (By the way, HSUS counts its total victory in Ohio as its #3 accomplishment for 2012.)

HSUS claims to “connect people of awareness with the reality of what’s advocacyoccurring with animals.”  HSUS does not sit on the sidelines and tell “people of awareness” in their respective states that they should lead their own legislative disputes.  HSUS operates like a finely tuned machine, with a network of attorneys and lobbyists doing the heavy lifting of engaging on ballot initiatives.  That is our model.  That is what is required.

What the Reptile Nation needs is simple:  advocacy.

USARK may have a very good reason for its apparent recalcitrance to personally engage in state level disputes:  the federal lawsuit challenging the Constrictor Rule of the Lacey Act.

logo5USARK used to publish its quarterly and annual financial statements on its web site.  As of now, its last financial report is from 2012 and no quarterly reports were published in 2013.  Although its total donations from 2012 were $244,485, its net income was -$35,766.

Facebook fans claim that USARK raised $137,000 to fund its federal lawsuit. USARK MoneyAssuming that figure is exclusively for its legal fund, it is a drop in the bucket.  A federal lawsuit, if it goes to trial, will easily run into the millions, and you can be sure that the defendants, whose pockets are deep with taxpayer money, will push it there.  USARK has never come close to raising a million dollars in a year.  The money simply doesn’t exist, and part of the government’s defense strategy has to be grinding USARK out of money to fight its legal battle.

If USARK is funneling all of its donations to try to fuel the federal lawsuit, then it makes sense that it cannot afford to fight at the state level as a matter of economics.  This will be a death knell for the Reptile Nation.  Under this scenario, even a hard fought victory against the US Fish & Wildlife Service will be meaningless if large constrictors are outlawed piece by piece.

In the vacuum of national representation, stakeholders in every state need to organize and now, and they need to start directing their donations toward their own organizations to fund their own legal defense funds.  Terry Wilkins and Polly Britton in Ohio emerged as industry and community leaders, retaining an attorney, finding named plaintiffs, and seeing a lawsuit all the way through to a federal appeal.

This is the model that the Reptile Nation is going to have to follow in order to have any chance at all because there is no one left at the national level with the talent and the resources to combat the tenacious march of legislation that is being pushed by the animal rights industry.

 

 

 

Wilkins et al. v Ohio Department of Agriculture – the Appeal is Lost

On March 4, 2014, the United States Court of Appeals for the Sixth Circuit issued its opinion on on Wilkins et al. v. Ohio Department of Agriculture affirming the lower court decision and denying the relief sought by the plaintiffs. (See 13-3112.)  We will provide legal analysis on the decision shortly.

It is unknown whether the plaintiffs will seek further review.

This unfortunate decision is the culmination of a two year battle in the state of Ohio on its broad reaching and onerous exotic animal ban.  Herp Alliance has written extensively on the topic  (see links at the end of this article).

In the mean time, Herp Alliance wishes to commend and to thank those responsible for fighting this fight, including Terry Wilkins of Captive Born Reptiles who was instrumental and at the battlefront at all stages in Ohio.  He testified in the congressional hearings and he was the first named plaintiff on the complaint.  Thanks also to Polly Britton of the Ohio Association of Animal Owners (OAAO), all of the named plaintiffs, and each and every person who donated funds to help with this litigation.

Stand ready.  If after consulting with their attorneys, the plaintiffs decide to appeal further, they will need your donations.

Further reading on SB 310 and the situation in Ohio:

Louisiana Reptile Ban Talking Points

Louisiana_State_Capitol_at_nightEarlier today, Herp Alliance  announced the introduction of Louisiana Senate Bill 357.  SB 357 seeks to change existing Louisiana law.  Currently, to own one of the listed constrictors that is over 8′ in length, or to own a restricted venomous snake, a keeper must fall into one of the organizational exemptions (animal sanctuaries, zoos, aquariums, wildlife research centers, scientific organizations, and medical research facilities as defined in the Animal Welfare Act) or have a permit from the Louisiana Department of Wildlife and Fisheries.

SB 357 will change all of that so that all of the listed constrictors will be prohibited as well as all of the listed venomous snakes.  Private ownership will be banned and only the exempted organizations will be permitted to keep these animals.  The bill is slated to go into effect August 1, 2014, and there is no grandfathering for existing animals.

The Herp Alliance talking points against this bill can be found in the link below.  In addition, full contact information for every member of the Natural Resources Committee can be found below as well.  If you live in Louisiana or do business in Louisiana, please contact these committee members.  Keep your comments, brief, polite and professional.

Herp Alliance SB 357 Talking Points.

Natural Resources Committee

Committee Members

Senator Gerald Long (Chairman)
P.O. Box 151
Winnfield, LA 71483

(318) 628-5799
longg@legis.la.gov
Senator Rick Ward, III (Vice-Chairman)
3741 Highway 1
Port Allen, LA 70767

(225) 246-8838
wardr@legis.la.gov
Senator R.L. “Bret” Allain, II
600 Main Street
Suite 1
Franklin, LA 70538

(337) 828-9107
allainb@legis.la.gov
Senator “Jody” Amedee
2109 S. Burnside Ave.
Suite A
Gonzales, LA 70737

(225) 644-1526
amedeej@legis.la.gov
Senator Norbèrt N. “Norby” Chabert
P.O. Box 2417
Houma, LA 70361

(985) 858-2927
chabertn@legis.la.gov
Senator Jean-Paul J. Morrell
6305 Elysian Fields Ave.
Suite 404
New Orleans, LA 70122

(504) 284-4794
morrelljp@legis.la.gov
Senator Dan “Blade” Morrish
119 W. Nezpique Street
Jennings, LA 70546

(337) 824-3979
morrishd@legis.la.gov
Senator Page Cortez (Interim Member)
101 W. Farrell Road
Bldg. 5, Suite 100
Lafayette, LA 70508

(337) 993-7430
cortezp@legis.la.gov

 

 

Louisiana Seeks to Ban Nearly All Pythons and All Venomous Snakes

state_seal_color3On February 28, 2014, Louisiana Senator Norbert (“Norby”) Chabert (R) introduced Senate Bill 357.

Senate Bill 357 seeks to ban the private ownership of all Carpet and Diamond pythons, Papuan pythons, Olive Pythons, Scrub pythons, Amethystine pythons, South African pythons, African Rock pythons, Burmese pythons, Reticulated pythons, all species of the genus Boa, and all Anacondas.  It also is an outright ban on the ownership of all venomous snakes.  Full text of Louisiana Senate Bill 357.

SB 357 has been referred to the Senate Committee on Natural Resources.  Contacts for all committee members is included below.  Lousiana residents need to act NOW.

Committee Members

Senator Gerald Long (Chairman)
P.O. Box 151
Winnfield, LA 71483

(318) 628-5799
longg@legis.la.gov
Senator Rick Ward, III (Vice-Chairman)
3741 Highway 1
Port Allen, LA 70767

(225) 246-8838
wardr@legis.la.gov
Senator R.L. “Bret” Allain, II
600 Main Street
Suite 1
Franklin, LA 70538

(337) 828-9107
allainb@legis.la.gov
Senator “Jody” Amedee
2109 S. Burnside Ave.
Suite A
Gonzales, LA 70737

(225) 644-1526
amedeej@legis.la.gov
Senator Norbèrt N. “Norby” Chabert
P.O. Box 2417
Houma, LA 70361

(985) 858-2927
chabertn@legis.la.gov
Senator Jean-Paul J. Morrell
6305 Elysian Fields Ave.
Suite 404
New Orleans, LA 70122

(504) 284-4794
morrelljp@legis.la.gov
Senator Dan “Blade” Morrish
119 W. Nezpique Street
Jennings, LA 70546

(337) 824-3979
morrishd@legis.la.gov
Senator Page Cortez (Interim Member)
101 W. Farrell Road
Bldg. 5, Suite 100
Lafayette, LA 70508

(337) 993-7430
cortezp@legis.la.gov