The U.S. Fish and Wildlife Service (FWS) interpretation that injurious listings under the Lacey Act, one of the nation’s oldest conservation laws, banned interstate commerce was tossed out by a federal court, in a ruling made on April 7th, 2017. In a case brought by us, the United States Association of Reptile Keepers (USARK), the United States Court of Appeals for the District of Columbia Circuit held that the law does not prohibit movement of animals listed as “injurious” among the 49 continental states. Although the case was specific to the FWS Lacey Act listing of eight non-native snake species, the final decision will reverse years of agency regulatory overreach regarding all listed species.
USARK’s case revolved around the interpretation of amendments made to the law in 1960. Congress banned import of injurious species into the “United States” broadly, as well as barring “shipments between the continental United States, Hawaii,” or other districts, possessions, and territories. Congress was addressing FWS concerns about invasive mongoose in Hawaii reaching the mainland or other territories.
Not until the 1980s did the FWS assert authority to prohibit all interstate shipments. Ours was the first case to challenge this interpretation, likely because the snake listing was the first to impact animals long and widely kept under human care. In ruling against the agency, the appellate court found that the law “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.”
Some environmental organizations, prominently the Center for Biological Diversity and Center for Invasive Species Prevention, warn this decision could have negative consequences. USARK’s attorney and architect of the case, Shaun Gehan of Gehan Law, LLC, notes that the Lacey Act supports states by federally enforcing their environmental laws, including those banning possession or trade in species deemed to threaten local ecosystems.
With respect to the listing, we would like to again make clear an obvious point. The fact is that only a few counties in southern Florida, where Burmese pythons unfortunately became established decades ago as a result of Hurricane Andrew, and perhaps a small part of south coastal Texas, have potential temperature ranges allowing these snakes to survive year-round. The Lacey Act listing was an appalling overreach, impacting snake owners, breeders, and hobbyists throughout the other 99% of the U.S. where these animals cannot possibly survive.
Additionally, it takes much more than a temperature range matching the species’ native range in order for it to survive and establish a population. Suggested habitat ranges must also have available prey species, shelter, water, lack of human interference, and other conditions. Note that Hawaii, Puerto Rico, Guam, and American Samoa already prohibit importation and ownership of non-native reptiles due to their climates, and are thus unaffected by either the listing, or the recent ruling.
Gehan believes this decision is a positive for FWS and the country. “The agency’s interpretation has caused problems for water districts in states like Texas with pumping systems from transboundary sources. It has also hurt aquaculture. This decision allows states to tailor regulatory programs to address real threats and working with partners to develop controls without fear of disruptive federal intervention.” Among other things, it will allow a fishery to develop for invasive Asian carp that have been threatening waterways throughout the country.
Final judgment in the case has not yet been entered, pending a decision by the government to either appeal or seek a rehearing in the matter.* Once the ruling is final, the remainder of the case challenging the decision to list the eight species of constrictor snakes will return to the lower court. This remains a time to continue conducting ourselves as a responsible reptile community and for proper self-policing of those acting otherwise.
Our newsletter following the ruling can be read at www.usark.org/2017-blog/u-s-court-of-appeals-says-we-agree-with-ark.
* The decision by the Court of Appeals will not become final until seven 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 on May 30, 2017, or 52 days after the decision was rendered, meaning the continental interstate shipping ban can no longer be enforced by FWS.
Details on Court Ruling
If you missed it, we highlighted some details of the ruling on our website including pertinent dates. You can find that information at www.usark.org/details-on-court-ruling/.
Constrictor snakes listed as injurious
The eight species of constrictor snakes currently listed as “injurious” under the Lacey Act are below. (Note that Indian and Burmese pythons were subspecies at the time of listing, but were later elevated to full species. This means the eight species have become nine.)
- Indian python (Python molorus)
- Burmese python (Python bivittatus)
- Yellow anaconda (Eunectes notaeus)
- Northern African rock python (Python sebae)
- Southern African rock python (Python natalensis)
- DeSchauensee’s anaconda (Eunectes deschauenseei)
- Beni anaconda (Eunectes beniensis)
- Reticulated python (Python reticulatus, AKA Broghammerus reticulatus and Malayopython reticulatus)
- Green anaconda (Eunectes murinus)