The Constrictor Rule
After reading below, find additional information at www.usark.org/2015-blog/7129/.
Following an attack from anti-pet special interest groups upon the herp community with respect to large constrictor snakes, USARK has been forced to respond to the influence these extremist groups wield with government agencies and officials. The animal rights (AR) movement, most notably the Humane Society of the United States (HSUS), relentlessly pursues the complete decimation of the entire herp community. It is important that the Reptile Nation have a clear understanding of what has occurred and what to expect going forward.
In 2006, the South Florida Water Management District petitioned the U.S. Fish and Wildlife Service (FWS) to list the Burmese python as a federal injurious species. According to the latest interpretation by FWS, an injurious listing bans importation into the U.S., as well as interstate commerce and transportation. Originally, only the Burmese python was proposed to be listed as injurious. Following this foot in the door, the AR movement used their lobbying of government agencies and legislators to harm our community. Though there was only a single offending species, AR charged after additional constrictor snake species, including a push for ball pythons at one point. This would set the table for the end game, as far as AR was concerned.
Once initiated, the American public has very limited control or influence over this process. FWS submitted a “notice of inquiry” for a rule change disclosing it proposed to add nine species, including any subspecies of those nine species, as injurious under the Lacey Act. The public was allowed to comment, as the law requires.
By law (under the National Environmental Policy Act and the Lacey Act), FWS was required to incorporate all public comments and best available science, then decide which species, if any, should be added to the injurious species list. Once FWS posts a possible rule change in the Federal Register, a boulder begins rolling downhill and is not easily stopped. The final decision lies entirely with FWS.
For the Constrictor Rule, valid arguments and legitimate science were displaced as FWS fell back upon their highly-discredited (by numerous scientists, veterinarians, biologists and professional herpetologists) USGS climate match report. Pointing out numerous flaws and that the report was only internally-reviewed didn’t matter. FWS made the final decision. The comments submitted by USARK and others overwhelmingly illustrated that the singular “scientific” evidence supplied by the USGS study was dramatically flawed.
This flawed science, according to the USGS website as of May 5, 2015, claims that “Burmese pythons—an invasive species in south Florida—could find comfortable climatic conditions in roughly a third of the United States according to new ‘climate maps’ developed by the U.S. Geological Survey (USGS).” According to USGS, under current U.S. climate, Burmese pythons could definitely inhabit northern California and southern Maryland. The same study claims that southeastern Indiana may potentially provide the proper climate. (View the USGS range map at the bottom of this article.) These assertions are under our current climate and not predicted climate due to a potentially warming world. As anyone with even moderate knowledge of these non-native species can validate, these accusations are absurd. Not only will one night of freezing temperatures kill these species, but exposure to temperatures from 33 to the low-70s Fahrenheit will lead to fatal respiratory illness.
On the opposite end of the spectrum, temperatures that are too hot, especially with lack of proper humidity, will quickly kill these species. Much of the range cited as suitable by USGS is desert region. These areas are far too extreme. The listed species come from very tropical climates and lack the natural instinct to seek refuge from severe heat or cold.
In addition, these snake species vary greatly. The newly-listed species are much less hardy than Burmese pythons. Comparing reticulated pythons to Burmese pythons is not comparing apples to apples.
FWS could have chosen at any time to modify their original proposal of adding nine species to the injurious species list. The options included adding only the Burmese python or no species, as the risk of invasive populations is a southern Florida issue, not a national concern. Since FWS did not show any intention to modify its position, USARK was forced to prepare for a lawsuit. This effort elevated following the listing of four species as injurious in January 2012: Burmese and Indian pythons, Northern and Southern African pythons and Yellow anaconda. Without a finalization of the rule, five species remained in limbo.
USARK has reached out to FWS numerous times, including a meeting with the Department of the Interior and FWS in April of 2013 by USARK President Phil Goss and USARK’s D.C. counsel, in attempt to craft policy that actually makes sense. The hope being policy that addresses any environment concerns without harming the tens of thousands of families who keep constrictor snakes. FWS chose not to work with USARK and listed eight of the nine species they proposed.
With the finalized rule published in March 2015, reticulated pythons, green anacondas, DeSchauensee’s anacondas and Beni anacondas were added. Only reticulated pythons and green anacondas are part of the reptile trade in the U.S. Boa constrictors were dropped from consideration in the final rule.
To prevent the Constrictor Rule from becoming a “major rule,” FWS chose to finalize it without adding boa constrictors. If the rule were to exceed the ceiling of $100,000,000 in annual economic impacts, it would have been considered a major rule. An economic impact of this level mandates much greater scrutiny and additional requirements. Obviously, avoiding this allows action to be taken more easily.
Properly peer-reviewed science does not exist to support these injurious listings. This USGS study even deceptively identified the Burmese python as synonymous with the Indian python to make the numbers work. FWS used this USGS study as the best available science to support their decision.
The exact time table used by FWS has always been unknown to USARK. FWS’s precise next move was also unknown. Some people claiming to have inside knowledge mispredicted a rule finalization multiple times over the last several years. We had always hoped that FWS would act honestly and in the best interest of American citizens. While we did not know FWS would make the decision it did, the decision did not come as a complete surprise given the unwillingness to be reasonable in any way previously.
Federal action was clearly unjustified. Even using the highly-criticized USGS model, only isolated southern portions of Florida and Texas have even potentially suitable habitat in the continental U.S. Both states already have regulations in place for large constrictors. Hawaii and Puerto Rico have importation bans.
The USARK lawsuit battles AR and FWS, involving the federal courts as part of the system of checks and balances. A court will ultimately decide the merits of the case we have built. This may prove to be the very first time that any affected pet group will have a say in what FWS lists under the Lacey Act.
Our lawsuit was filed in December of 2013. We are currently working to obtain a preliminary injunction (PI) regarding the recently added species. The D.C. District Court decides the PI on May 7, 2015 and there is no valid reason to deny the PI. This will be a decision only on the PI, not the entire lawsuit.
AR and FWS have harmed many in the Reptile Nation tremendously with their arbitrary and capricious disregard of facts and law. They have clearly displayed their unwillingness to act honestly, reasonably and fairly. USARK holds the advantage of having the truth on our side, which we intend to prove in court. As we all know, the truth is the most powerful weapon of all, but only if it is heard.
This is unjust, overreaching and an extreme abuse of government authority. Animal rights groups working to end the freedom of Americans to have pets are lobbying powerhouses possessing government influence. Some groups raise over $100,000,000 annually. This money is often collected through fraudulent fundraising claiming the money goes to help dogs and cats in local animal shelters. Depending on the organization, less than 1% of your donation will actually go to shelters. HSUS does not run any local humane societies and the ASPCA only runs one shelter in New York City (not local SPCAs). All pet owners and anyone who works with animals, especially farmers, should be aware of their agenda and must educate others. While many groups were once truly focused on animal welfare, many have now set animal rights goals which plan to remove all interactions between animals and humans which benefit humans.
The Reptile Nation has supported USARK, allowing us to build a strong case. USARK has worked doggedly to build this impressive suit. The Reptile Nation can stand proudly as USARK presents a world-class campaign against overstepping regulation.
For those who have not followed all that has happened, updates can be found at www.USARK.org. Simply click any link reading “Lawsuit update” or "Constrictor Rule." The most recent lawsuit update is included below.
USARK continues to strengthen our case! On Monday (4/27), USARK submitted the final brief (link below) to bolster our arguments before the preliminary injunction ruling to be made on May 7. In opening, we forcefully announce that FWS' previous supplemental memorandum provided no valid reasoning for the Court to deny our application for injunctive relief.
USARK again demonstrates that the statute of limitations to bring our claims has not expired. FWS has continually pushed for this lawsuit to be dismissed under the notion that the six-year clock began decades ago, rather than with the listing of these constrictor snake species as injurious. USARK has repeatedly countered and reinforced the fact that a new time period began when these species were listed, furthermore noting that a statute of limitations doesn't apply here.
In the latest brief, USARK markedly rebuts the limited and narrowly-scoped legislative history used by the Defendants and amici curiae ("friends of the court"). We also plainly establish that Congress has never ratified (confirmed or adopted) FWS' interpretation to hold jurisdiction to ban interstate transportation and commerce for these species. USARK's brief showed great foresight into the arguments that would be presented by FWS.
Specifically regarding the preliminary injunction, which is all that will be ruled upon on May 7, USARK highlights that there is no national threat from Reticulated pythons and Green anacondas. Even from FWS' own environmental analysis, only Hawaii, Puerto Rico, and limited areas of Florida and Texas hold potentially suitable habitat for these two species. Hawaii and Puerto Rico already have import bans. Florida and Texas have stringent regulations in place. FWS gives no recognition that these restrictions currently exist, though FWS declared state regulation was acceptable for Boa constrictors, which were not listed as injurious.
FWS chose to attack a declaration submitted on behalf of USARK with our previous brief by renowned herpetological veterinarian Dr. Scott Stahl. This declaration clearly illustrates a lack of proficient herp veterinarians. Included in this declaration is a list of herp vets supplied by the Association of Reptilian and Amphibian Veterinarians (ARAV). This list definitively displays a shortage of herp vets in the U.S. Twelve states have no ARAV-listed vets and another twelve states only have only one ARAV-listed veterinarian. That is nearly half of the United States with minimal or no disciplined herp veterinary representation.
In addition, even if there is a veterinarian in a state who will see reptiles, the drive to that vet could be hours (possibly eight or more) away while an eminent herp vet may be only 30 minutes away by simply crossing a state line. In emergency situations, owners of listed species cannot legally drive just a few minutes across a state line, but are instead handcuffed with the only lawful option which is to drive many hours to see an under-qualified and unprepared veterinarian. FWS chose to imply that USARK was claiming economic loss, while that is not what we were exhibiting at all. In contrast, we were undoubtedly showing non-economic, irreparable harm and hardship forced upon owners of listed species.
Finding a competent herp vet is quite difficult. Even if a veterinarian will take herp patients, most only provide basic care and are not prepared to treat large snakes. There are reasons that reptile owners travel from all over the U.S. to seek specialized care from distinguished herp vets. One can easily parallel this to human healthcare. People trek from around the country, and even the world, to see preeminent doctors for surgery or complicated medical treatment. They do this even though there is "on paper" a suitable physician in every state. By constraining a pet owner's choice of vets to those within a state, especially for large snakes that require experienced vets, it is functionally equivalent to depriving them of any choice. For many reasons, treating large constrictors cannot be compared to treating smaller snake species. Additionally, treating herps cannot be compared to treating other species of animals.
Obviously, in conclusion, USARK requested that the Court grant injunctive relief until a final ruling is made on the lawsuit. There does not exist valid reasoning for the Court to deny this request. Stand strong, Reptile Nation!
USARK's 4/27 brief: www.usark.org/wp-content/uploads/2015/04/Dkt-No-49-Plaintiffs-Supp-Reply-Brief.pdf
FWS' 4/27 brief: www.usark.org/wp-content/uploads/2015/04/Dkt-No-48-Defendants-Supp-Reply-Brief3.pdf
MAINE ACTION ALERT
The Maine herp community has been working for years to make the current overbearing system less restrictive for responsible pet keepers. HP 499 (LD 746) has been introduced and will hopefully go to hearing next week. Let your legislators know you support this bill!
The current law requires importation and ownership permits for most herps. This bill would require permits for a greatly reduced list of species. The Action Alert below provides all the details to contact legislators and let them know you support this pro-herp legislation.
View the full Action Alert at www.usark.org/2015-blog/action-alert-maine-ld-746/.
Donate to the USARK Legal Defense Fund
Information for making donations online and via check/money order can be found at www.usark.org/reptile-defense-fund-2/. You can make one-time, weekly, monthly or annual donations. You can also include a message that will be posted on the Legal Defense Fund Donor Wall at www.usark.org/usark-announcement/reptile-defense-donor-wall/ for all to see. You can even choose to make your donation or donation amount anonymous. Thanks for your support as we battle FWS to restore the freedoms of the Reptile Nation.
Join RAACA 2.0 Today!
There is a new anytime RAACA! Check out the format for listing auctions to benefit USARK via RAACA USARK Auctions at www.facebook.com/groups/1623588901209232/. These auctions will allow donations at any time and not just during fundraiser events. Anyone can bid, donate and support the Reptile Nation!
RAACA USARK Auctions raised over $2,600 during their first three weeks. Thank you, RAACA, Jordan, Tammy, Houssam, Christine, donors and all the admins in this group!