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General Legislative Discussions Any general discussion concerning legislative issues or events. Not necessarily specific to a particular region, or even a type of animal group.

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Old 03-21-2014, 11:27 PM   #1
EricWI
USARK constrictor lawsuit update

FWS has filed their reply to support their motion to dismiss USARK’s complaint. Below is a summary, as well as what will happen next.

Lacey Act Claim, Arbitrary and Capricious (Count 4)

The government has backed off its contention that USARK lacks standing under the Lacey Act. All FWS now states is that USARK’s complaint must be amended to add the words “Lacey Act” to Count 4.

Lacey Act Ultra Vires Claim (Count 1)

In terms of Count I, the ultra vires challenge to FWS’ prohibition on interstate transportation and commerce of the listed snakes, the government continues to insist that the claim is barred by the six-year statute of limitations. Importantly, FWS only addresses the question of whether the challenge to its substitution of the word “transportation” for Lacey Act’s term “shipment” is timely. On that issue, there are good arguments on both sides. It is thus impossible to predict how the court will decide this question.

More importantly, FWS fails to address the Count 1 argument that neither the Lacey Act nor its regulations bar interstate transport and commerce among the continental states. In 1966 and today, its regulation simply copies the words of the statute. Because the regulation echoes the language of the law, the government cannot claim to have issued an interpretative rule in 1966 or since. FWS’ failure to make any case that USARK is barred from raising this claim should mean that it waives this argument and Count 1 should go forward, at least on this question.

NEPA Claims (Counts 2 and 3)

The government hits very hard on NEPA standing, perhaps due to the weak legal defense it has to these claims. FWS dedicates half of its reply arguing that USARK and its members lack “prudential” standing under NEPA. Our assessment is that USARK alleged sufficient environmental injury to get past the pleading stage.

The government’s argument is that NEPA’s concern is for what it refers to as the “natural or physical” environment, by which it seems to mean land and air, and not animals themselves. Mixed in the brief is the inference that USARK’s members are only concerned with captive, as opposed to, wild snakes. (For example, on page 6: “Simply put, captive snakes are not a part of the ‘natural and physical environment’ contemplated by NEPA.”) The first principle is not supported by case law. The government has simply stretched a general statement about NEPA’s purpose far beyond what it will bear. The second is flatly contradicted by USARK’s specific allegations regarding the purpose of developing captive breeding techniques.

When convenient, FWS also combines allegations of economic interests and injury with claims relating to environmental interests. For instance, in its discussion of captive breeding for conservation purposes, the brief focuses on the Indian python (which is considered “threatened” under the ESA and which FWS considers to be a “subspecies” of Burmese python). Defendants claim this is not an environmental concern because not only do USARK members have, “no intent to release [captive-bred pythons] into the wild,” but also because, “Plaintiff’s members’ captive-bred specimens would not be suitable for reintroduction.” The basis of that claim is the reference to morphs, which were discussed in the complaint and in some declarations for their economic value. In other words, these are two completely different issues.

FWS also contends that USARK’s members’ efforts to eradicate Burmese in southern Florida amounts to a concession that, “these species are non-native and invasive.” While true, it does not address the point that the listing has impeded what is clearly an environmental activity designed to preserve the Everglades ecosystem. All the government claims is that listing does not prohibit removing these snakes from the wild. It misses the central point that the ban on interstate transportation and commerce acts as both a burden and impediment to private efforts to eradicate these snakes.

FWS goes so far as to assert that USARK’s “interest in these snakes is in breeding and raising them in captivity, not maintaining a wild population of the snakes in the United States.” To be sure, the implication that USARK would have environmental interests if its purpose was to establish non-native species in the wild here in the U.S., but does not if it seeks to mitigate ecological damage from those inadvertently established, can only help.

Finally, the government contends that even if USARK’s members have environmental interests, those interests are not harmed by the rule. As a legal matter, this charge of lack of injury is not relevant to the point of prudential standing, which is all FWS claims to be arguing here. Prudential standing is a matter of showing that a plaintiff’s claims arguably fall within the “zone of interests” that NEPA protects. Injury goes to constitutional standing. Beyond that, however, we are confident that USARK has demonstrated sufficient injury to its conservation interests.

Next Steps

The government’s motion is now submitted for decision. Typically for such a consequential motion, one that puts in question whether some counts can go forward, the court holds oral argument. This is not required, however, as the judge could decide the issues on the briefs alone. Either way, the next step will be an order from the court that sets a date for argument or decides the merits. There is no time frame for issuing such an order. If Judge Sullivan wants oral argument, however, it will most likely be issued in the next few weeks.

The reply can be found at http://www.usark.org/wp-content/uplo...ply_re_MtD.pdf.
 
Old 03-25-2014, 06:57 PM   #2
EPICRATES
So what does this mean in layman terms?

Jay
 
Old 03-30-2014, 12:17 PM   #3
Herps Alive!
I am one of the "declarants" in this case, and one of two who was admitted even by FWS to actually have standing. Very, very simply, , it basically means that they are arguing that the economic impact being felt is not mundane to this clause of the law which is environmental, not economic.
They also claim a 6-year statute of limitations bars the suit (this is BS from a legal standpoint and is just one more point they are using to obfuscate the issue).
Finally, they say even IF the environmental claim is valid that there is no injury to USARKK or its members.
 
Old 04-02-2015, 12:40 AM   #4
bcr229
Wow it's been a year since the last post. In that time the Lacy list went through the process to include the other constrictor species, except boas, on the list. As a result USARK has amended its complaint in the case, and the following is today's USARK update and is a great synopsis of what has happened in the past few weeks for those who haven't been able to keep up:

Lawsuit Update (read it here or at http://www.usark.org/2015-blog/lawsu...wsletter-4115/)

USARK has been diligently working on several aspects of our lawsuit regarding the injurious listing of eight species of constrictor snakes under the Lacey Act. As posted earlier, USARK sent a letter to FWS on March 16 requesting an extension of the effective date for the latest listing, which includes Reticulated pythons and Green anacondas. The Reptile Nation was only given 30 days from the federal register publishing of the finalized rule on March 10 before FWS enforces import and interstate transportation bans of the newly-listed species.

We received a response from FWS denying this extension request yesterday (3/31/15). This was expected and USARK has not simply been waiting around hoping FWS would grant an extension. In their response, FWS showed complete disregard for the majority of our letter.

Since we were expecting biased rejection from FWS, our preliminary injunction (PI) simply needed a quick edit to include mention of this denial letter. The PI was filed today (4/1/15) along with a motion for a temporary restraining order (TRO) and proposed order to be signed by Judge Moss granting the TRO and motion for relief (or PI). The TRO will expedite the process. Judge Moss has already scheduled a conference with the attorneys to set a schedule for briefing the motion.

It would be an understatement to say the USARK complaint and motion for relief are strong. The Reptile Nation could not have a better case or team working on this lawsuit.

USARK has continued to build this case after filing our complaint in late 2013. This followed a document sent to FWS Director Dan Ashe and presented personally by USARK President Phil Goss and the USARK D.C. team to senior staff from the Department of the Interior (DOI) and FWS earlier in 2013. Among many other aspects, this document highlighted faults with the agency's compliance with regulatory procedures and an overall lack of reasoned analysis.

Members of the Reptile Nation received validation of USARK's intention and competence to proceed with a lawsuit, if needed, in a newsletter following this 2013 meeting with the DOI and FWS:

"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." - USARK President Phil Goss (2013)

The strength of our case far surpasses impressive. USARK has worked tirelessly to build this formidable suit. The Reptile Nation can stand proudly and USARK appreciates your continued support.

Links to documents:

FWS Denial Letter: http://www.usark.org/wp-content/uplo...al-3.31.15.pdf

USARK Preliminary Injunction: http://www.usark.org/…/USARK_M..._PI-4.1…

USARK TRO: http://www.usark.org/…/Motion-...view-4.…

USARK Proposed Order: http://www.usark.org/wp-content/&#82...der-4.1.15.pdf
 
Old 05-13-2015, 12:02 PM   #5
bcr229
Preliminary Injunction Granted!

Court Rules in Favor of the Reptile Nation!

View as a Press Release

Reptile Nation, we have good news! USARK is pleased to announce the Court ruled in our favor, granting our motion for preliminary injunction. This injunction will suspend the ban on interstate transportation of reticulated pythons and green anacondas under the Lacey Act. Given the high bar that must be met for an injunction, this is indeed a tremendous milestone in USARK’s history.

USARK President Phil Goss knew immediately that USARK must fight for this preliminary injunction after hearing the Fish and Wildlife Service announce additional snake species would be unjustly listed as injurious during their March 2015 press conference. It’s been tireless work by those involved, and Goss had this to say today, “Truth is a powerful weapon, but only if it’s heard. The Reptile Nation has been heard! This would not have happened without a united reptile community supporting this pivotal cause. Thank you, Reptile Nation!”

Our case involves much more than snakes, and the reptile community has made it glaringly evident to anti-pet groups that we can and will fight. We fight not only for ourselves, but for all responsible pet owners. We hold the truth and legitimate science. We will prevail over disgraceful sensationalism and nefarious propaganda.

The herp community is comprised of five million households in America. Community members care about their pet snakes, turtles, lizards, frogs and invertebrates just as other pet owners do their dogs, cats and horses. As the public becomes aware of the facts in our case, rather than reacting to an irrational fear of snakes and lies from anti-pet groups, support will grow from the tens of millions of American pet owners.

The Reptile Nation may be misunderstood, but we are responsible pet owners. We will not back down to animal rights groups seeking to remove our freedoms as Americans. We look forward to getting the facts out in public as this case proceeds.

CONTACT: Media and press may contact USARK with inquiries at info@USARK.com.

Preliminary Injunction: What you need to know now!

The Court has granted USARK’s motion for a preliminary injunction. This will eliminate enforcement of interstate commerce and transportation for reticulated pythons and green anacondas until the Court rules on USARK’s lawsuit. Judge Moss has requested USARK and FWS submit additional briefs by May 15, and has scheduled a hearing for May 18 to discuss this action.

The importation and interstate transportation/commerce bans are still in effect. Enforcement will likely be lifted shortly after the hearing on the 18th, once we have a ruling on the final scope of the injunction.

There are two main questions raised by the Court to be discussed in the briefs and hearing:1.Should the injunction be tailored to exclude shipment into Florida and Texas?a.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 used as having potentially suitable habitat for these species.)

2.Whether it is necessary or appropriate for FWS to seek interim relief from the Court of Appeals.
Also, USARK asks that the herp community present themselves in a civil and professional manner throughout the remainder of this lawsuit. USARK only represents responsible herp owners and businesses. Being irresponsible in any manner is not within USARK's mission statement. Thank you for maintaining your composure and representing us with dignity, Reptile Nation.

View the Court ruling at http://www.usark.org/wp-content/uplo...nion-on-PI.pdf.

USARK will provide additional information soon.
 
Old 05-13-2015, 12:17 PM   #6
Herps Alive!
Just the first step, but a very good one. Well-done.
 
Old 05-20-2015, 02:44 PM   #7
bcr229
Preliminary Injunction Granted!

***Final Verdict is in***

The Injunction was a success and it has been announced what it stands for.

1) You can transport retics across state lines again, including green anacondas, however, Florida and Texas did not make the list.
2) This means you can ship snakes out of Texas and Florida, however, you can not ship snakes into Texas and Florida
3) This is not in effect YET - you need to wait until all documents are officially signed into place
- This will go into effect 14 days from today!! June 3rd, 2015
4) This does NOT mean Burmese pythons, African Rock Pythons, Indian Pythons, or Yellow Anacondas can cross state lines again. These are still on the Lacy act, and the law suit to get these snakes removed from the list or at the least amend the working of the Lacy Act to show that they are allowed to cross state lines - just not be imported into the US is still in progress. DO NOT SHIP BURMS, AFROCKS, OR YELLOW ANACONDAS!!

Full report is available here:

http://usark.org/2015-blog/7182/

Decision is at:

http://usark.org/wp-content/uploads/...Injunction.pdf


*****************
*** IMPORTANT ***
*****************

According to the judge's ruling the preliminary injunction only applies to members of USARK. Non-members still may not transport retics or green anacondas across state lines. So, if you are a buyer or seller, make sure the person on the other end of the transaction is a USARK member if the animal is crossing a state line.
 
Old 05-20-2015, 03:20 PM   #8
Herps Alive!
Important to add that this applies only to plaintiffs and those who were USARK members as of 4/8/15.
 
Old 05-27-2015, 06:34 PM   #9
kevinscaesar
Let me get this straight,this ruling only benefits USARK members. so that means that the rest of us are left out in the cold? how is fighting for reptile rights boiled down to membership in an organization? true,i'm glad you won the battle,but that was for you and your members.i dare say that among herp keepers the vast majority are not usark members. so the battle was not for reptile nation(unless these is a code word for usark)this was a victory for a select few. if i'm wrong please explain why.
 
Old 05-27-2015, 08:26 PM   #10
bcr229
Quote:
Originally Posted by kevinscaesar View Post
Let me get this straight,this ruling only benefits USARK members. so that means that the rest of us are left out in the cold? how is fighting for reptile rights boiled down to membership in an organization? true,i'm glad you won the battle,but that was for you and your members.i dare say that among herp keepers the vast majority are not usark members. so the battle was not for reptile nation(unless these is a code word for usark)this was a victory for a select few. if i'm wrong please explain why.
The government (USFWS) made the request that the preliminary injunction be limited to only USARK members and participants in the lawsuit. USARK wanted the injunction to apply to everyone. The judge sided with USFWS.

Now, there are already USARK members in many states who are willing to help ship/transport for non-members. Networks are forming to keep shipments and transports both legal and flowing.

I would also hope that the non-members join USARK as this lawsuit will take years and a lot of $$$ while it makes its way through our court system.
 

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