USARK Complaint
I just read the full text of the legal complaint in USARK's suit against US Fish and Wildlife, and I have to say, I haven't felt this optimistic in a while.
While I'm not an attorney, the case is laid out so clearly, that I think most laymen will have no trouble following the argument. You can read the entire complaint here:
http://usark.org/wp-content/uploads/...-Complaint.pdf
If you're not inclined to read 23 pages of “legalese,” let me hit a few high points:
First, and probably most significant for the reptile industry, concerns interstate shipping of animals listed in the Lacey Act. In 1981, the Lacey Act was amended so that listed animals are no longer prohibited from interstate shipping (see Section IV. A. 32 and 33, on pages 9 & 10 of the complaint). While they can't be imported, captive bred and born animals can be shipped within the continental US. So, when the USFWS stated in the listing that the four listed species couldn't be shipped interstate, they exceeded their authority, and made a ruling inconsistent with the rest of the Lacey Act.
So what? If the USARK suit is successful in nothing else but striking this prohibition on interstate sales and shipping, it is a tremendous victory for all US reptile keepers and breeders. It means you can sell and ship your Burms, Rocks, and Anacondas anywhere in the continental US (unless local state laws prohibit it), without the competition of cheap imports. Even if the listing doesn't get overturned, by winning on this one point, we're back in the same position we were prior to the listing; we can still breed, sell, ship, export our animals (listed and non-listed) without the “Sword of Damocles” hanging over our heads. If we only win half this suit, we're still huge winners!
Second, the suit details that the USFWS blatantly ignored the legal processes required to list any species in the Lacey Act. They arbitrarily decided to not complete and file an Environmental Impact Statement. They not only ignored science that disagreed with their position, but they also ignored scholarly criticism of the “research” supporting their position. They ignored the economic impact of the listing, the amount of which requires a higher level of consideration before listing species (which wasn't done). All the while, publicly signaling that the listing of the big constrictors was a foregone conclusion.
The suit describes all this behavior as “arbitrary and capricious” and cites the APA in seeking the overturning of the listing of the four species in the Lacey Act.
“The APA proscribes agency action that is
(A) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] (D) without observance of procedure required by law . . . . “
A simple computer search of USFWS and “arbitrary and capricious” shows that the courts regularly find that agency to be acting outside of its own guidelines in subjective and agenda-driven ways. It would seem that given the evidence in this case, we stand a great chance of the court finding this to be yet another instance of USFWS's abuse of discretion.
So what? A win on this point could result in the total reversal of the Lacey Act listing. It could also result in the court directing the USFWS to go back and complete the process correctly, which would almost certainly prevent the listing.
As it pertains to Boa Constrictors, which the USFWS says it is still considering for listing, if the court simply forces USFWS to follow the prescribed process, that species would not be listed because the economic impact of over $100 million requires a much higher level of scientific evidence of harmfulness, which we know doesn't exist.
Also, once the precedent is set that the original listings were “arbitrary and capricious,” the scrutiny on further listings would be higher.
For all these reasons, I'm optimistic that we're going to see positive outcomes for the US reptile community as this case is decided. Obviously, total victory is best, but even a return to normal interstate commerce and an end to the “what's next?” sense of doom and gloom will be a wonderful thing.
A big thanks to everyone at USARK for moving this legal challenge forward! And thank you to everyone who has donated time, treasure, and talent to defending our hobby/industry.
Are you a USARK member? Have you done anything to support your own cause? It's not too late.
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