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Cat Ex update and USARK in D.C.

USARK President Phil Goss traveled to Washington, D.C. last week. In addition to meetings, strengthening relationships with our allies and tireless networking, USARK sat as one of five witnesses for a hearing concerning the USFWS categorical exclusion proposal. Three of the five witnesses testified against the proposal: USARK, PIJAC and AZA (Association of Zoos and Aquariums). During the hearing, a letter signed by John Fleming, Rob Bishop, Steve Southerland and Don Young was submitted to record. USARK was instrumental in gaining these signatures during a Capitol Hill visit earlier this summer (view the letter HERE). This letter urges that USFWS Director Dan Ashe immediately withdraw the CatEx proposal. USARK's testimony illustrated the proposal is unjustified and overreaching, giving the power to terminate small businesses and potentially an entire $1.4 billion industry at the discretion of a few individuals at USFWS. USARK's legal team at Kelley Drye has proven indispensable throughout this fight. There is a summary of USARK's testimony at the bottom of this email.

Deadline February 21, 2014

The deadline was extended to February 21, 2014. Now is the time to send your letters and more emails. Thousands of voices from the Reptile Nation have already spoken but now we need another wave. There are 3 simple steps at the Action Alert below. Do them, share the alert and support your herp community.

CatEx Action Alert: http://usark.org/action-alert/usfws-categorical-exclusion-2/

Cat Ex Testimony Summary

USARK believes the Service’s proposal for a categorical exclusion for its Lacey Act listings is unjustifiable and wholly unnecessary. There may be instances when employment of a categorical exclusion is warranted, particularly for species not in trade or not currently present in the United States. In such circumstances, however, the Department of Interior already has an appropriate categorical exclusion of which the Service has availed itself in past listing decisions. For most listings, however, NEPA provides for both public participation and rigorous scientific assessment, elements that are currently otherwise lacking in the law.

The Lacey Act invests the Secretary of Interior with discretion, delegated to FWS, to declare species of wildlife “to be injurious to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States.” 18 U.S.C. § 46(a)(1). The law is unique among this Nation’s conservation laws in that it provides neither standards, such as a “best science” requirement, nor procedural requirements to which the Service must adhere in making such decisions. The only prerequisite is that the listing be done “by regulation,” which assures only the provision of notice-and-comment rulemaking and a minimally sufficient explanation of the basis of the decision.

It is important to understand why Administrative Procedure Act (“APA”) processes alone are not sufficient to protect the public interest. A determination that a species is “injurious” under the Lacey Act involves judgment by agency experts involving determinations both technical and scientific. Congress has vested the authority to make such determinations in the Secretary, while providing no criteria to guide her decisionmaking.  Under such circumstances, the agency is given the utmost deference by courts. In fact, so long as some rationale is presented, it is unlikely a listing decision could ever be successfully challenged.

This makes FWS’ continued adherence to NEPA essential. Years of judicial interpretation have established a clear framework for agencies to follow in making regulatory decisions. For example, it must evaluate the opinions of the public and outside experts, respond to all legitimate concerns brought forth relating to the environmental impacts of their actions, and consider significant proposed alternatives. If an agency fails to take the required “hard look” or adhere to processes the law requires, it can be held accountable. By contrast, utilization of a categorical exclusion shortcuts these procedures and places the burden of assuring FWS’ NEPA compliance in the hands of the public.

In fact, the Service has a checkered past with respect to NEPA compliance in conjunction with Lacey Act listings. When it listed four species of constricting snakes as injurious in 2012, the Environmental Assessment (“EA”) prepared was legally inadequate and FWS’ accompanying “finding of no significant impact” (“FONSI”), wholly unjustified. This listing, done in partial completion of a 2010 proposal to list nine species of constricting snakes (five others, including the Boa constrictor and Reticulated python, remain outstanding).

This was the first Lacey Act listing of species that are widely held in pet ownership and the foundation of a domestic industry. The proposal was highly controversial – one of the key NEPA criteria for producing a full environmental impact statement (“EIS”) – for social and economic as well as scientific reasons. This response is inadequate, and the proposed exclusion, more generally, is unjustified and should be rejected.

Article written by USARK