The Government has filed a “motion to dismiss.” What does this mean?
Often, the first action a defendant (in this case the government) will take in response to a lawsuit is to ask the judge to dismiss the case in its entirety and each count individually. This is fairly routine and entirely expected, particularly here, as this is first ever challenge to a Lacey Act “injurious” listing.
There are several fairly common “grounds” for seeking dismissal. Some will challenge the legal basis for the complaint and others will challenge whether USARK has legal “standing” (i.e., the right to sue).
Can you explain the various arguments that the DOI has raised and how USARK will respond?
In terms of the substance, the government has challenged the complaint on several grounds. They have taken a “kitchen sink” approach (i.e. listing any and all possible arguments available). As an overreaching matter, FWS complains that USARK failed to identify individuals suffering the appropriate types of harm for the National Environmental Policy Act (NEPA) and Lacey Act claims. It also alleges that USARK itself does not have legal standing. The following are some of the claims raised by FWS and USARK’s response:
- FWS Claims that USARK has not demonstrated injury to the organization itself.
USARK need not allege injury to itself as an organization as we are not suing in our own right. Our standing is based on something known as “associational standing,” meaning that USARK is suing on behalf of our members. We are confident that we can meet the test for associational standing.
- FWS claims USARK members to do not have “prudential standing” to raise claims under NEPA and the Lacey Act.
Prudential standing is a judge-made doctrine that says when a plaintiff raises claims under a statute it must show that the injury asserted and claims made fall within the “zone of interests” the law is designed to protect. With regard to the NEPA claims, because it is an environmental statute, courts have held that those with purely economic interests cannot challenge an agency’s NEPA compliance. Aware of this, we have been careful to ensure that we’ve made appropriate claims and have sufficient member declarations that go beyond economics and demonstrate environmental harm. As a result, this claim is not of great concern.
The claim that we lack prudential standing under the Lacey Act poses a greater challenge. We have two claims under the Lacey Act: (1) that the prohibition on interstate commerce/transportation is unlawful and (2) that the rule is arbitrary and capricious.
We are less concerned about the first claim because case law supports a party’s ability to challenge a regulation without having to break the law to get into court. The arbitrary and capricious claim (unjust action or a decision that disregards reason and logic) is more of an issue. The government claims that the Lacey Act’s purpose is to prevent harm for injurious species, and USARK wants the opposite. This is a facially appealing argument, but every modern environmental statute, including the Endangered Species Act (ESA), allows those with an economic interest to challenge regulations.The Lacey Act is so old (written in 1900) and lacking in detail that it does not translate into our modern age. We feel that we can overcome this challenge as well.
Are there other grounds on which FWS is seeking dismissal?
Yes. FWS is claiming that USARK’s challenge to the interstate transportation and commerce claim untimely. The government asserts that this ban was included in regulations adopted in the 1960s and it is far past the six-year statute of limitations for challenging a rule.
However, as currently written, the statute does not include a ban on interstate commerce or transportation of injurious species within the "continental United States." Rather, it only repeats that the ”shipment between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any territory” of injurious species is prohibited. FWS interpreted that as a prohibition of interstate commerce with the listing of the four species of constricting snakes. USARK has six years to file a complaint against the initial listing of the four species, which happened in January 2012.
FWS challenges USARK over its two year delay in filing suit. Does this matter?
Not in any meaningful way. We are well within the statute of limitations of six years and can reasonably explain to the court that the reason for waiting was to both reach out to the agency and see what action FWS intended to take on the remaining species.
ACTION ALERT: West Virginia
Your legislators need to hear from you!
The other two WV bills (SB371 and SB428) have not seen movement. All three bills are viewable at www.usark.org/2014-legislation.
Your legislators must hear from you! They have heard plenty from the anti-pet groups that are pushing this bill. The below reptiles have been proposed to be on the initial list of prohibited species:
- Conststricting snakes including boa constrictor (boa constrictor), all subspecies, anaconda (eunectes murinus), indian python (python molurus), reticulate python (python reticulatus), rock python (python sebae);
- Alligators (family alligatoridae);
- Poisonous snakes including cobras, coral snakes (family elapidae), sea snakes (family hydrophidae), adders, vipers (family viperidae), pit vipers (family crotalidae), all venomous rear-fanged species (family colubridae);
West Virginia Senate Bill 428: The bill seeks to form a Dangerous Wild Animal Board which will have rulemaking authority (no public input) to list any species as a “dangerous wild animal.” View the Action Alert at www.usark.org/2014-blog/2014-west-virginia-senate-bill-428/.
West Virginia Senate Bill 371: The purpose of this bill is to prohibit the possession of wild and exotic animals (including herps) through a permit system, providing rulemaking authority (no public input) to authorities. View the Action Alert at www.usark.org/2014-blog/2014-west-virginia-sb-371/.
USARK is contacting state legislators concerning these issues but they must hear in large numbers from concerned citizens within each state. In the end, if they don't hear from you, our efforts are futile.
Other 2014 proposed legislation and information can be found at www.usark.org/2014-legislation/. This includes bills in Maryland, Indiana, New Jersey, New York and Oregon. This page is updated regularly and makes it easy to follow 2014 issues.
NRAAC Herp Law Symposium: The Reptile and Amphibian Law Symposium & Workshop will be held March 7-8 in Washington, D.C. This is an essential event for anyone interested in the impact of law and regulation on the keeping, breeding, care, and conservation of reptiles and amphibians. The conference will include two days of panels, workshops, breakout sessions and talks with the goal of bringing all parties interested in reptiles, amphibians and the law together for productive discussion. The event will cover issues with current and proposed herp laws and regulations at the local, state, federal, and international levels. Registration for the event is free but limited. You may register at www.nraac.org/register/ and additional information on the event can be found at www.nraac.org/symposium2014.html. If you are interested in volunteering or assisting in this event, please send an email to email@example.com.
David Northcott Health Battle: Dave is a remarkable person, award-winning photographer and cherished member of the herp community. He is battling a heart condition and has been informed he will need a transplant. You can support him at www.gofundme.com/6g1rak. We wish you well, Dave.
Cancer Battle: A fellow herper, Patrick Gerbert (TattooedGiants Reticulated Pythons), is battling stage 4 non-Hodgkin lymphoma. A fundraising page has been started at www.gofundme.com/Help-Patrick. Also, Travis Kubes and others are holding auctions on the Retic Nation Facebook page (www.facebook.com/groups/TheReticNation/) to benefit Patrick. We wish you the best in your fight, Patrick.
NARBC Tinley Park: March 15-16. NARBC once again brings top vendors from across the country to Illinois. Be sure to attend the USARK/PIJAC benefit auction, held Saturday night, to protect your rights to keep reptiles and amphibians as pets. NARBC raised over $100,000 to support the pet community and Rico Walder in 2013. Get all the details at www.NARBC.com.
Cin City Reptile Show: March 9th in Mason, OH. More details at www.cincityreptileshow.com.
Kentucky Reptile Expo: March 8th in Louisville, KY. More details at www.kentuckyreptileexpo.com/index.html.
Indiana Reptile Breeders' Expo: March 16th in Clarksville, IN and March 23rd in Richmond, IN. More details at www.irbexpo.com.
Pacific NW Reptile and Exotic Animal Show: March 29-30 in Hillsboro, OR. The PACNWRS is a public trade show exhibiting over 100 vendor booths offering exotic animals and their related merchandise. In addition to animals and products for sale, there are educational reptile and exotic mammal displays for the whole family. Get all the details at www.pacnwrs.com and www.facebook.com/pages/Pacific-Northwest-Reptile-and-Exotic-Animal-Show/.
Texas Rattlesnake Festival: This inaugural event will happen March 8-9 in Round Rock, TX. Share and spread the word. This is an educational event and no snakes will be harmed. This needs to be the future of rattlesnake-related events. Help make it a reality! More details at http://texasrattlesnakefestival.net/Home_Page.php and https://www.facebook.com/texasrattlesnakefestival?fref=ts.
OKC Elite Reptile Show: After a great first show, the second OKC Elite show hits Oklahoma City on May 3-4. More information will be posted at https://www.facebook.com/events/254930164657115/?fref=ts.
Snake Days: May 30, 31 & June 1 in Sanderson, Texas. Great educational lectures, field herping, photo contest, clean highways project and more. Get the details at www.facebook.com/events/690350000995984/ and www.snakedays.com.
Biology of The Pitvipers Symposium: June 4-7 in Tulsa, OK. Learn more at www.biologyofthepitvipers.com and www.facebook.com/BiologyOfThePitvipersSymposium.