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3.19.14 FWS Reply to USARK Opposition

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. The reply can be found at www.usark.org/wp-content/uploads/2014/03/3.19.14-FWS-Reply-Dkt_17_Governments_Reply_re_MtD.pdf.

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.

Article written by USARK