From
http://usark.org/2015-blog/7129/
Brief History of Recent Happenings
When reticulated pythons and green anacondas were added to the injurious species list in March 2015, USARK had the option to amend the existing case to also challenge the new listings. In addition, we had the legal recourse to request a preliminary injunction (PI) for the recently added snakes. USARK chose to do both. If we did not file for a PI, the Court would eventually get around to ruling on the case, but we have now seen how long it can take for a case to move forward (USARK filed our initial complaint in December 2013). The Government has every incentive to drag out the case as long as possible by filing motion after motion. By USARK filing for a PI, we essentially got an immediate hearing. At that hearing in April, Judge Moss granted our motion to amend the complaint. We got some action!
At the hearing, we learned that the Court was very interested in learning about our case. For example, Judge Moss seemed genuinely concerned about the impact of the interstate ban on owners who need to bring their listed snakes to a veterinarian in another state, as doing so is now illegal. There was also focus on the legal issues, and questions were asked that revealed an understanding of the well-founded points made by USARK.
Lawyers will tell you it is highly difficult to get a PI. That's true. The legal requirements are tough, but we have now proven to have a very strong case. USARK felt it was essential to file for a PI. Yes, it costs additional money, but we could not wait indefinitely for the case to be decided. What would happen to thousands of listed animals meanwhile? What would happen to the reptile community? What about emergency situations requiring immediate veterinary care with a qualified veterinarian being only 20 minutes, but in another state, while there are often not even qualified vets in-state?
Only fear of losing on the motion could have stopped us from moving forward with the PI. USARK showed no fear. USARK President Phil Goss stood at the press conference when the listing was officially announced by FWS and resolutely delivered the message that the Reptile Nation would fight.
Everyone who has contributed in whatever way possible should be proud. This fight is not over, but this is a big win. Celebrate and then refocus as this battle is far from over. The animal rights movement, which lies at the source of all state and federal anti-reptile legislation and regulation, will not stop until all pets are removed from our society. Reptiles, especially large snakes, are their chosen first target.
Thank you, Reptile Nation. Thank you for making this fight possible. Thank you for presenting a respectable and professional face for our community. Thank you for reinforcing the mission for which USARK was formed, to protect the freedom of responsible pet owners.
Please take the time to also read the two sections below (Frequently Asked Questions and lawsuit timeline) and bookmark this newsletter for future reference.
Past, Recent and Future Happenings
April 5, 2013: USARK submitted a lengthy document to FWS Director Dan Ashe calling the listing of the original constrictor snake species and proposal to list additional species “arbitrary and capricious” (decision that disregards reason and logic), and noting significant infractions made during the injurious listing process. USARK President Phil Goss stated, “FWS’ reliance on the flawed Reed/Rodda model led it to make absurd and plainly unlawful decisions. Finding the yellow anaconda, a snake found nowhere temperatures are below 50° F or above 86° F, such a grave threat to America is only one of the more obvious examples.” Newsletter at
www.usark.org/press-releases/1980/.
April 12, 2013: USARK met with the Department of Interior and U.S. Fish and Wildlife Service in Washington, D.C. USARK President Phil Goss and USARK’s counsel reiterated that the science did not support the current listing proposals. In reference to the meeting, Goss announced, “Our position remains unchanged. We oppose the listing of any of the remaining species and are committed to fighting any such restrictions with all of the resources at our disposal. Our legal case is strong and we fully intend to fight for the rights of our members to protect their freedom to engage in their passion.” Newsletter at
USARK Meets with Department of the Interior and USFWS | USARK.
December 18, 2013: USARK filed our initial complaint (lawsuit). The initial complaint included the constrictor snake species originally listed as injurious under the Lacey Act in January 2012. Those species were: Burmese, Indian, Northern and Southern African pythons, and Yellow anacondas. Newsletter at
www.usark.org/2013-blog/usark_takes_action/.
December 2013 - March 2015: USARK and FWS filed several briefs and rebuttals. Of note, USARK filed an amended complaint on May 9, 2014. The lawsuit changed judge assignments twice until finally assigned to Judge Randolph D. Moss. Newsletters with information can be found at any links (dates provided) marked “Lawsuit Update” at
United States Association of Reptile Keepers.
March 6, 2015: FWS announced the finalized Constrictor Rule. Four species were added: Reticulated python, DeSchauensee’s anaconda, Green anaconda and Beni anaconda. The rule was finalized and boa constrictors were not listed. Boa constrictors are not currently considered for injurious listing. Read about it at
Constrictor Rule Finalized | USARK.
March 10, 2015: The final Constrictor Rule was posted in the Federal register.
March 23, 2015: USARK filed our amended complaint. Newsletter at
Lawsuit Update.
April 1, 2015: USARK submitted our request for injunctive relief (Preliminary Injunction). Newsletter at
Lawsuit Update and Newsletter: 4/1/15 | USARK.
April 7, 2015: This was the first hearing concerning USARK’s lawsuit. Of key importance, Judge Moss issued an order granting the filing of USARK's second amended complaint and accepted our motion to seek injunctive relief. Newsletter at
Lawsuit Update: 4.9.15 | USARK.
April 9, 2015: The final Constrictor Rule went into effect.
April 20, 2015: USARK and FWS submitted supplemental briefs: Newsletter at
Blog Post 4/21/15 | USARK.
April 27, 2015: USARK and FWS submitted final briefs before Court decided upon USARK’s request for injunctive relief. Newsletter at
Newsletter: 4/29/15 | USARK.
May 5, 2015: USARK sent an important newsletter that reptile keepers and pet owners should read. View it at
www.usark.org/2015-blog/7081/.
May 12, 2015: The Court issued a ruling that USARK is entitled to injunctive relief. Newsletter at
www.usark.org/2015-blog/7109/.
May 15, 2015: USARK and FWS will submit supplemental briefs addressing concerns raised by the Court.
May 18, 2015: USARK and USFWS will appear for a status conference and the D.C. Federal District Court will enter an appropriate injunction after reviewing the parties' briefs and hearing oral arguments. The Reptile Nation will have an answer on the effective date of the injunction on May 18 or shortly thereafter.
Indefinite: The lawsuit will continue until the Court makes a ruling.
Frequently Asked Questions:
Q. What are the chances we will win this lawsuit?
A. USARK has a strong case. This has been proven multiple times.
FWS has entered motions to dismiss our complaint on several occasions without success;
The Court allowed USARK to amend our lawsuit to include the species listed as injurious in March 2015;
The Court granted our motion to seek injunctive relief (preliminary injunction);
By granting the preliminary injunction, the Court has shown that the statute of limitations has not passed to bring this case, which FWS claimed had happened;
The first hearing was held and a second hearing assigned;
The Court ruled in our favor and granted our preliminary injunction, which in itself was a momentous event;
Finally, if the final ruling is based upon fact and legitimate science, USARK and the Reptile Nation will prevail.
Q. Is it a big deal that USARK got a preliminary injunction?
A. YES. It is a huge deal! One of the four requirements for being granted a preliminary injunction (PI) is to prove that you are likely to prevail on the merits of the case. The Judge has found that we are likely to prevail on our count asserting that FWS does not have the authority to ban interstate transportation of injurious species. However, FWS will have the opportunity to make additional arguments that it holds this authority, though the arguments and authorities FWS have submitted so far have been insufficient. In other words, FWS would have to provide new authorities and convincing arguments to change the Judge's mind.
Q. What happens if we win on the interstate transportation issue?
A. If we prevail on our count with respect to the ban over interstate transportation, which has been ruled upon favorably thus far, then all of the eight listed constrictor snake species will be allowed to be transported within the 49 continental United States (subject to any state law restrictions).
Q. What about the statute of limitations?
A. FWS has attempted several times to have USARK’s case dismissed, claiming that the statute of limitations has expired. The favorable ruling on the preliminary injunction has essentially shot down the FWS argument that our case is barred by the statute of limitations. Therefore, we are more likely to have our case continue past the outstanding motion for dismissal and proceed.
Q. Does the preliminary injunction include Burmese pythons and yellow anacondas?
A. No. The time frame for seeking injunctive relief for the species listed in 2012 has passed. The injunction regards reticulated pythons and green anacondas only. However, ALL listed constrictor snake species are included in USARK’s lawsuit.
Q. Can I ship retics or green anacondas into another state or buy from an out-of-state breeder?
A. No. Interstate commerce is still illegal. Interstate shipping cannot be done until the injunction is effective. We will know that date on or shortly after May 18.
Q. Can I take my retic or green anaconda to a vet in another state?
A. No, not legally. While this is certainly a hardship and may result in the loss of a life, especially in an emergency situation, an injurious listing bans interstate transportation for any reason. Once the injunction is effective, you may visit your closest herp veterinarian, which is often only minutes away across a state border.
Q. Why are Texas and Florida not being included in the injunction?
A. This is not true! The final scope of the injunction has not yet been decided. The USGS model used to list these species claims that very small portions of Texas and Florida have potentially suitable habitat for reticulated pythons and green anacondas. For this reason, the Court has asked USARK and FWS to address this issue in our briefs that are due on May 15. Shipping into Texas and Florida may or not continue to be banned. Shipping out of these states should not be an issue. The decision will be made with the final injunction ruling.
Q. What does it mean if we win the lawsuit?
A. While our lawsuit has many counts (components or claims raised), there is one major point we’ll address here. If USARK prevails and receives a favorable ruling on certain counts, interstate transportation and commerce will no longer be federally banned for any constrictor snake species listed as injurious. This includes species listed in both 2012 and 2015, which totals eight species. However, this is just one potential outcome.
Q. When will the Court decide on USARK’s case?
A. This lawsuit was filed on December 18, 2013. We are already 18 months into this process. A final decision may be many additional months away. Thus, it’s easy to comprehend why it was critical for USARK to seek injunctive relief.
Q. Since Texas and Florida are the only two states listed in the USGS study as having potentially suitable habitat, why is interstate transportation banned for all states?
A. Great question! This is clearly not a federal issue, even using FWS’ own science, and none of these species should have been listed as injurious under the Lacey Act. Unfortunately, due largely to political pressure from animal rights groups, FWS decided to take federal action rather than allowing individual states to handle any concerns. Florida and Texas already have regulations. Other areas of concern were Hawaii and Puerto Rico. Both have importation bans for these species.
Q. Why wasn’t the arbitrary and capricious claim involved in the preliminary injunction?
A. With respect to the allegations in our complaint that the FWS listing is "arbitrary and capricious" (disregards reason and logic) because it relies on faulty science: For numerous legal and practical reasons, our motion for preliminary injunction did not present arguments that we would prevail on this count. USARK intentionally focused on the interstate transportation issue. This is the reason the judge has accepted at face value the assertions of FWS regarding these issues, such as the invasive ability of reticulated pythons and green anacondas in Florida and Texas. We have a lot of work ahead of us before we reach the science issues in our case. We are limited to seven pages in the brief due May 15, but we will heavily address the Florida and Texas issues, therein.
Q. Why are there more briefs?
A. The Court has asked for additional information from both parties. There are two main questions raised by the Court to be discussed in the May 15 briefs and May 18 hearing:
Should the injunction be tailored to exclude shipment into Florida and Texas?
This has not yet been decided, so shipping into Texas and Florida may or not continue to be banned. Shipping out of these states should not be an issue. Obviously, USARK will fight to allow shipment into these states as both states already have regulations regarding these species. (These are the only two continental states listed in the USGS model as having potentially suitable habitat for these species.)
Is it necessary or appropriate for FWS to seek interim relief from the Court of Appeals?
Q. Can I get a permit for interstate transportation?
A. There is a permit given in rare instances, though some with legitimate requests have been refused by FWS. The permit includes reasons such as species study or display by accredited institutions, and educational permits (i.e. reptile-related educational school outreach). The permit cannot be obtained for new animal ownership, veterinary care, commerce, relocation of animals, etc. The permit can be found at
www.fws.gov/forms/3-200-42.pdf.
Q. What is all this?
A. This is known as the 'Constrictor Rule.' This rule has listed species of constrictor snakes as injurious under the Lacey Act. That makes interstate transportation/commerce and importation illegal.
Q. Is this same as the Burmese python listing?
A. There were 9 species originally proposed. Four species were listed as injurious on January 23, 2012, and the rule remained open. Those species were: Burmese, Indian, Northern and Southern African pythons, and Yellow anacondas. The remaining five species (Boa constrictor, Reticulated python, DeSchauensee’s anaconda, Green anaconda and Beni anaconda) stayed in limbo of being listed until four were added on March 10, 2015. Boa constrictors were not added and are no longer in consideration for injurious listing.
Q. Is this a ban and are my pets illegal?
A. This is not a ban to own any of the listed species, so your animals are legal to keep. FWS interprets this as a ban on any interstate transportation and commerce. It also makes importation into the U.S. illegal. This is known as the "Constrictor Rule." You can keep your pets and can get more pets of these species. You can even breed these species. However, as FWS chooses to interpret the Lacey Act, all those actions must be done within your state. You cannot get new pets from out of state, sell any offspring out of state, take your pets with you if move to another state, or visit a veterinarian in another state. Of course, all these statements are made under the assumption that these species are currently legal to have within your state of residency.
Essentially, and the primary goal of the animal rights groups who pushed this agenda, these species may no longer be in the reptile community due to the hardships faced from ownership.
Q. Is this because large snakes may be considered a public safety risk or does it have anything to do with animal welfare?
A. The Lacey Act deals with injurious, similar to invasive, species. It is not intended to deal with the sensationalized and inaccurate claims of public safety risks, or animal welfare. While the animal right (AR) groups pushed for a listing due to these reasons, because even they know there is no legitimate science to warrant a listing on injurious grounds, that is not the role of the Lacey Act.
Re: Lacey act injunction update
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