Details on Court Ruling

Newsletter on ruling at

1) The Court, in its review of the government’s appeal of the preliminary injunction, has held that “as a matter of law the government lacks authority under the [Lacey Act Injurious Species] shipment clause to prohibit shipments of injurious species between the continental States.”

2) What this means is that the Court has made a final decision, beyond just the merits of the preliminary injunction (which is what was appealed by U.S. Fish and Wildlife Service, or FWS).

3) The Court did not limit its decision to the context of USARK’s preliminary injunction, but rather reached “a definitive judgment on the shipment clause’s meaning in order to ‘save the parties the expense of future litigation.’”[1] That means this issue does not need to be further litigated in the lower court.

4) The government still has the right to seek a rehearing (within 45 days) or appeal the judgment to the Supreme Court (within 90 days). We believe either to be highly unlikely, but FWS has not made us aware of their decision. The decision by the Court of Appeals will not become final until 7 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 by May 30, 2017, or 52 days after the decision was rendered.

5) We advise, therefore, that herpetoculturists refrain from shipping species listed as injurious until FWS issues guidance to its field offices and to stakeholders in response to the court order. We will notify you as soon as this and other procedural issues are addressed so that trade can resume.

6) Remember also that although the Court has ruled definitely on the interstate shipment clause of Lacey, other claims are still pending before the lower court. USARK also challenged the initial basis for the actual listing of the constricting snake species as injurious under the Lacey Act.

7) Keep in mind, now and always, the Lacey Act: still bans shipments/transportation between the District of Columbia, Hawaii, U.S. possessions or territories, and the 49 continental states (as one geographic entity). It also bans the importation of listed species into the U.S.

8) Transportation/shipment in violation of any State or local law is still prohibited. For example, Florida has laws regulating the possession and importation of certain large constrictor snakes.

9) Interstate transportation/shipment in violation of state or foreign law can still violate another part of the Lacey Act.


[1]  See pages 7-8.  “At the outset, we note that the procedural context of this appeal does not prevent us from definitively deciding the merits of the shipment clause’s meaning. The district court’s entry of a preliminary injunction turned on whether the party seeking relief (here, ARK) is “likely” to succeed on the merits, rather than on a final disposition of the merits. See Reptile Keepers, 103 F. Supp. 3d at 141. Our review, however, “is not confined” to the grant or denial of injunctive relief. See Ark. Dairy Co-op Ass’n, Inc. v. U.S. Dep’t of Agric., 573 F.3d 815, 833 (D.C. Cir. 2009) (quoting Munaf v. Geren, 553 U.S. 674, 691 (2007)). We reach a definitive judgment on the shipment clause’s meaning in order to “save the parties the expense of future litigation.” See id. at 756-757; see also 16 Charles A. Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 3921.1 (3d ed. 2017). “ Link to full court document: