USARK WINS

[JColt]

http://usark.org/wp-content/uploads/2017/04/USARK-Lawsuit-Appeals-Mem-Op.pdf

 

[bcr229]

We therefore decline to conclude that Congress, by implication, altered the meaning of the shipment clause’s terms so as to criminalize the interstate shipment of every Lacey Act species. Rather, the clause continues to mean what it has meant since its enactment: it prohibits the shipment of injurious species between the listed jurisdictions, including to and from the continental United States, but it does not speak to shipments between the 49 continental States.
* * * * *
For the foregoing reasons, we affirm the district court’s judgment and hold as a matter of law that the government lacks authority under the shipment clause to prohibit shipments of injurious species between the continental States.

SUCK IT UP FWS!!!!!!!!!!!!!!!!!!!

 

[AbsoluteApril]

FANTABULOUS NEWS!

 

[rodneynboalich]

heres a list of the things we can ship across state lines now................................................................
Invertebrate Invasive Species
Invertebrate species are animals which lack a spine or backbone. Example species include spiders and other insects; round, segmented, and flat worms; jellyfish; squids; sponges; and others.
Insects / Other Invertebrates
Africanized Honeybee (Apis mellifera scutellata)
Asian Citrus Psyllid (Diaphorina citri)
Asian Long-Horned Beetle (Anoplophora glabripennis)
Asian Tiger Mosquito (Aedes albopictus)
Brown Marmorated Stink Bug (Halyomorpha halys)
Cactus Moth (Cactoblastis cactorum)
Chilli Thrips (Scirtothrips dorsalis)
Citrus Longhorned Beetle (Anoplophora chinensis)
Common Pine Shoot Beetle (Tomicus piniperda)
Emerald Ash Borer (Agrilus planipennis)
European Grapevine Moth (Lobesia botrana)
European Gypsy Moth (Lymantria dispar)
European Spruce Bark Beetle (Ips typographus)
Formosan Subterranean Termite (Coptotermes formosanus)
Glassy-Winged Sharpshooter (Homalodisca vitripennis)
Hemlock Woolly Adelgid (Adelges tsugae)
Khapra Beetle (Trogoderma granarium)
Kudzu Bug (Megacopta cribraria)
Light Brown Apple Moth (Epiphyas postvittana)
Mediterranean Fruit Fly (Ceratitis capitata)
Mexican Fruit Fly (Anastrepha ludens)
Oriental Fruit Fly (Bactrocera dorsalis)
Pink Bollworm (Pectinophora gossypiella)
Pink Hibiscus Mealybug (Maconellicoccus hirsutus)
Red Imported Fire Ant (Solenopsis invicta)
Russian Wheat Aphid (Diuraphis noxia)
Silverleaf Whitefly (Bemisia tabaci)
Sirex Woodwasp (Sirex noctilio)..................................................................................................Giant African Snail (Lissachatina fulica)
Soybean Cyst Nematode (Heterodera glycines)............................................................................................Brown Tree Snake (Boiga irregularis)
Burmese Python (Python molurus bivittatus)
European Starling (Sturnus vulgaris)
Wild Boar (Sus scrofa)..............................................................................................Alligatorweed (Alternanthera philoxeroides)
Brazilian Waterweed (Egeria densa)
Caulerpa, Mediterranean Clone (Caulerpa taxifolia)
Common Reed (Phragmites australis)
Curly Pondweed (Potamogeton crispus)
Didymo (Didymosphenia geminata)
Eurasian Watermilfoil (Myriophyllum spicatum)
Giant Reed (Arundo donax)
Giant Salvinia (Salvinia molesta)
Hydrilla (Hydrilla verticillata)
Melaleuca (Melaleuca quinquenervia)
Purple Loosestrife (Lythrum salicaria)
Water Chestnut (Trapa natans)
Water Hyacinth (Eichhornia crassipes)
Water Lettuce (Pistia stratiotes)
Water Spinach (Ipomoea aquatica)

Aquatic Invasive Animals
Alewife (Alosa pseudoharengus)
Asian Carps
Bighead Carp (Hypophthalmichthys nobilis)
Black Carp (Mylopharyngodon piceus)
Grass Carp (Ctenopharyngodon idella)
Silver Carp (Hypophthalmichthys molitrix)
Asian Clam (Corbicula fluminea)
Asian Shore Crab (Hemigrapsus sanguineus)
Asian Swamp Eel (Monopterus albus)
Bullfrog (Lithobates catesbeianus)
Channeled Apple Snail (Pomacea canaliculata)
Cane Toad (Rhinella marina)
Chinese Mitten Crab (Eriocheir sinensis)
Clubbed Tunicate (Styela clava)
Eurasian Ruffe (Gymnocephalus cernuus)
European Green Crab (Carcinus maenas)
Flathead Catfish (Pylodictis olivaris)
Lionfish (Pterois volitans)
New Zealand Mud Snail (Potamopyrgus antipodarum)
Northern Snakehead (Channa argus)
Nutria (Myocastor coypus)
Quagga Mussel (Dreissena rostriformis bugensis)
Round Goby (Neogobius melanostomus)
Rusty Crayfish (Orconectes rusticus)
Sea Lamprey (Petromyzon marinus)
Sea Squirt (Didemnum vexillum)
Spiny Water Flea (Bythotrephes longimanus)
Veined Rapa Whelk (Rapana venosa)
White Spotted Jellyfish (Phyllorhiza punctata)
Zebra Mussel (Dreissena polymorpha)......................................................................................this isnt all of them...i couldnt fine the whole list...theres plants too.....anybody that thinks this is going to work out well is beyond stupid........this is what the usark lawsuit win just did...

 

[NathanKS]

heres a list of the things we can ship across state lines now................................................................

*some lines removed*
this isnt all of them...i couldnt fine the whole list...theres plants too.....anybody that thinks this is going to work out well is beyond stupid........this is what the usark lawsuit win just did...

There are plants are on your list....

Attached is a list of 201+ Caudata species, not included in your list, that should have never been placed on the list.

While it is important to have regulations restricting the movement of injurious wildlife, The outright ban on transport was excessive and USFW saying I would need to kill my pets if I ever moved out of state was abhorrent.

We need legislation that makes sense and has some finesse. Banning all transport was about as blunt of an instrument as USFW could have possibly used.

 

[snowgyre]

This is only at the federal level. States are free to enact their own bans, so don't assume that you can ship anywhere now.

 

[rodneynboalich]

states can make their own laws that can be considered a lacey act violation to cross state lines some cases....since its illegal to bring burms into FL because FL has a ban on burms coming in,,,you can get hit with a lacey act violation for crossing a state line for bringing an animal thats illegal in FL...there is a clause in lacey act that says its a federal crime to cross a state line with an animal thats possession of it is illegal... so as far as i know its still a lacey act violation to ship those listed snakes to any state that has state laws banning their entry into the state...

 

[Reptiles 101]

So we can ship burmese as long as the state were shipping to allows it?

 

[JColt]

So we can ship burmese as long as the state were shipping to allows it?

This is still on going so no shipping. This does allow us to work on a common sense agenda with out the hysterics that caused ban in first place.

 

[JColt]

I should have said, I think no shipping yet as I'm not sure. Keep an eye on USARK for coming info.

 

[JColt]

On USARK Page

We’ll have a formal newsletter soon. MOST IMPORTANTLY! This is a time to continue to act as a responsible reptile community and for proper self-policing of those acting otherwise. There are still steps in the process before those without USARK verification letters should be shipping species which are part of the injunction, or any other species listed as injurious. USARK will keep the herp community posted as always. And please be aware that any relevant State laws are still effective.

 

[bcr229]

USARK should have guidance out this week.

Also USFWS could ask for a stay of the appellate court's decision pending while they prepare an appeal to the USSC, so this upcoming week could be very interesting.

 

[Herps Alive!]

The fact that the Appellate Court apparently ruled unanimously makes an en banc appeal unlikely. An appeal to the SCOTUS would not be heard until (most likely) spring 2018. This is not just about shipping though. It frees upo a number of educational activities for those of us who were handcuffed by permits with unreasonable limitations as well.,

 

[rodneynboalich]

people can ship again... with that court ruling that the lacey act doesnt give fws the authority to regulate it..you can ship.....this ruling also means that anyone thats every been fined, or convicted for a lacey act violation involving interstate commerce,,that didnt involve breaking a state law first before crossing state lines,,,,can now sue fws and the federal government

 

[JColt]

U.S. Court of Appeals says “We agree with ARK.

http://usark.org/2017-blog/u-s-court-of-appeals-says-we-agree-with-ark/

 

[AdamHess512]

So does this mean we can now ship yellow anacondas?

 

[bcr229]

So does this mean we can now ship yellow anacondas?

Not yet. USFWS has several months to decide whether or not to file the appeal or seek reconsideration.

In addition, and as a general matter, a court will stay its order until the time has lapsed for the government to file an appeal or seek reconsideration of a decision. In the interim, our legal team advises that USARK members postpone any shipments or other related business decisions until the lower court’s order is lifted and the ruling is broadly applied. USARK will provide updates on these concerns.

 

[rodneynboalich]

has usark said anything about the other part of their lawsuit...the arbitrary and capricious listing of the pythons.... i havnt heard anything about that...which is the only part of the lawsuit that matters... back in 2015 i posted a thread about the dangers of the usark lawsuit being so focused on the interstate commerce issue................as i stated back in 2015 a win on the interstate commerce would make it legal to ship all invasive plants and animals on lacey act over state lines.......................and that win would push fws to get 18 usc 42 amended so fws can regulate interstate commerce.........which is what is going to happen now........if usark doesnt win the arbitrary and capricious part of their case the pythons will stay on the lacey act and will go back to being illegal to ship over state lines once fws gets the lacey act amended............i hope all the usark supporters are pushing usark to really focus on getting the pythons removed from the lacey act.......especially now that usark as forced fws hand in seeking an amendment to lacey act to regulate interstate commerce.....

 

[bcr229]

More Info

Another update with a lot more info: http://usark.org/details-on-court-ruling/. Based on point #3 below, USFWS has got to be kicking itself - it lost on the intercontinental transport issue for all Lacey-listed species, and the original complaint will still move forward.

1) The Court, in its review of the government’s appeal of the preliminary injunction, has held that “as a matter of law the government lacks authority under the [Lacey Act Injurious Species] shipment clause to prohibit shipments of injurious species between the continental States.”

2) What this means is that the Court has made a final decision, beyond just the merits of the preliminary injunction (which is what was appealed by U.S. Fish and Wildlife Service, or FWS).

3) The Court did not limit its decision to the context of USARK’s preliminary injunction, but rather reached “a definitive judgment on the shipment clause’s meaning in order to ‘save the parties the expense of future litigation.’”[1] That means this issue does not need to be further litigated in the lower court.

4) The government still has the right to seek a rehearing (within 45 days) or appeal the judgment to the Supreme Court (within 90 days). We believe either to be highly unlikely, but FWS has not made us aware of their decision. The decision by the Court of Appeals will not become final until 7 days after the period to seek a rehearing expires, assuming that the government does not move for a rehearing. In that case, the order will be entered by May 30, 2017, or 52 days after the decision was rendered.

5) We advise, therefore, that herpetoculturists refrain from shipping species listed as injurious until FWS issues guidance to its field offices and to stakeholders in response to the court order. We will notify you as soon as this and other procedural issues are addressed so that trade can resume.

6) Remember also that although the Court has ruled definitely on the interstate shipment clause of Lacey, other claims are still pending before the lower court. USARK also challenged the initial basis for the actual listing of the constricting snake species as injurious under the Lacey Act.

7) Keep in mind, now and always, the Lacey Act: still bans shipments/transportation between the District of Columbia, Hawaii, U.S. possessions or territories, and the 49 continental states (as one geographic entity). It also bans the importation of listed species into the U.S.

8) Transportation/shipment in violation of any State or local law is still prohibited. For example, Florida has laws regulating the possession and importation of certain large constrictor snakes.

9) Interstate transportation/shipment in violation of state or foreign law can still violate another part of the Lacey Act.

 

[rodneynboalich]

has anyone talked to usark about the arbitrary and capricious part of their lawsuit....or has anyone voiced their concern to usark about the fact that the courts ruling on interstate commerce just made it so every single planet and animal on lacey act can now be shipped around the country,,,and the concern for how fws is going to react to that....