CISP and I are mentioned in this Newsweek article of April 12 about a court ruling that undercut the past 28 years of the U.S. Fish and Wildlife Service’s (FWS) program of regulating “injurious species” under the Lacey Act at the level of interstate transportation within the 49 continental States.
LANDMARK CASE PAVES WAY FOR ANIMALS LIKE PYTHONS TO BE TRADED IN U.S.
http://www.newsweek.com/landmark-case-paves-way-animals-pythons-be-legally-traded-us-583137
What happened? In 2013, in DC District Court, the U.S. Association of Reptile Keepers (USARK) brought a suit that, among other arguments, claimed the Government (the USFWS), lacked statutory authority under the Lacey Act to regulate interstate commerce in large constrictor snakes among the 49 continental States. The DC District Court agreed and that issue was promptly appealed to the DC Circuit Court of Appeals. Its April 7th opinion frames the issue like this (pp. 2-3):
When a species is designated as injurious, the Act prohibits any importation of the species into the United States or its possessions or territories. 18 U.S.C. § 42(a)(1). The Act additionally bars “any shipment” of the species“ between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States.” Id.
This case concerns the proper interpretation of the latter provision, which we will refer to as the shipment clause. All agree that the clause bars shipments of injurious species between each of the listed jurisdictions—for instance, shipments of animals between “Hawaii” and “the continental United States,” or between “the Commonwealth of Puerto Rico” and a “possession of the United States.” But what about shipments between the states making up “the continental United States”—for instance, shipments between Virginia and Maryland? Does the clause prohibit those shipments as well?
The Court of Appeals answered the last question with a convincing “no”.
It is important to note the effect is only on interstate commerce (“IC ”) among the 49 States and it does not change the FWS’ authority to regulate commerce between those named locations, that is, Hawaii, DC, PR, the possessions and the 49 States considered as one block. Also, the ruling does not at all affect the FWS’ authority to regulate imports of injurious species from other nations.
Was it unexpected? No. The USARK attorneys did outstanding legal work in revealing the early Legislative history of the 1960 Lacey amendments at issue and the fact that, from 1960 through 1989, the FWS itself interpreted the statute not to allow it to regulate IC. The FWS only began regulating IC in its Lacey injurious species listings in about 1989, but it has continued to do that in every listing since 1989, under the last 5 Presidential administrations. The long delay in the Court challenge was largely due to lack of enough economic incentive for a regulated industry to bring a lawsuit to challenge the FWS changed approach. It was not until USARK was motivated to raise a vast amount of contributions from its members to pays it large legal fees that a challenge was organized.
How broad is the ruling? Sweeping. It is neither limited to the parties in the case nor to the snakes involved. The opinion makes clear that the correct legal interpretation by the FWS from now on must be not to regulate IC among the continental 49 States, with this statement on p. 22:
we …. hold as a matter of law that the government lacks authority under the shipment clause to prohibit shipments of injurious species between the continental States.
Will there be more proceedings in the District Court? Likely yes, as USARK had brought other legal arguments claiming that the entire listings of their snakes (including regulation of foreign imports too) was illegal. Now that the pressing issue of the IC restriction for injurious species under the Lacey Act has been resolved, USARK can still make those arguments back in the District Court. My judgment as an attorney is those were all weak arguments and ultimately the listing of the snakes and trade restrictions will be upheld as legal by the Courts as far as regulating foreign imports and the commerce among the listed locations.
Is the ruling disallowing IC restrictions likely to have more appeals? No. It is theoretically possible that the Government could seek review from the Supreme Court, but doubtful that the Government will do that or that the Supreme Court would take the case. Both the District Court Judge and the DC Circuit Court of Appeals (3 Judges) wrote very well-reasoned opinions, and there is no dissenting opinion or conflicting decision from any other Court. Given those circumstances, it is not the sort of case the Supreme Court would take, so the DC Circuit’s opinion should be considered the final word unless Congress changes the law.
When does it take effect? Immediately, unless it is somehow blocked. While the appeal was from a preliminary injunction, the ruling need not go back to the District Court now as far as the IC issue – that is decided as a matter of law. As the opinion pointed out (pp. 7-8):
We reach a definitive judgment on the shipment clause’s meaning in order to “save the parties the expense of future litigation”.
What is the effect on existing Lacey Act injurious species listings? All existing injurious species listing regulations that claim to regulate IC must from now on be interpreted not to regulate IC. The FWS may re-issue some new listing regulations to make its lack of authority more clear, but even if the FWS delays in doing that the language in those regulations on regulating IC is now a nullity, that is, that language should be treated as if it does not exist.
It should be noted that for the now 28 different injurious species listing decisions (some of which take in large numbers of species totaling ~ 300 or up to ~700 species if the disease regulations are included) the impact of this listing will vary greatly. In reality only 5 or 6listings are significantly harmed now by the ruling. Most of the Lacey species listed are not in the US yet, e.g., Racoon dog, so the elimination of the IC restriction will have no effect currently and the continuing regulation of importation is all that is needed , unless the species does appear somewhere within the 49 continental States.
One listed species, zebra mussel, is so widespread in the US already and/or its movement is generally unintentional so that the IC restriction has generally been unenforceable as a practical matter (with some important exceptions to that).
One listing — the “all-salmonids pathogens” listing — was by its terms limited to regulating foreign imports and not IC, so it was not affected at all by the ruling.
But, for the listings of the large constrictor snakes, the 4 Asian carps, the Northern snakehead and some others, the Court ruling eliminating IC regulation will greatly weaken Federal control over the many species within those listings. Several of them are already fairly widespread in the country with captive and/or wild breeding populations to draw stock from. So just regulating their foreign importation is almost meaningless – it is IC that is their most important risk. So, we are more likely to see more invasions by those species in more States due to more unregulated IC unless that legal gap is filled.
Bsal regulation effect: The Bsal-prevention salamander foreign import regulation has been successful in keeping the Bsal pathogen out of the US (it appears, based on monitoring so far), but the IC restriction had provided important insurance in the event that the pathogen is in fact here but just has yet to be detected. Or if the pathogen were to arrive, the IC restrictions would have facilitated a stronger preventative response, blocking or slowing spread from one State to another. Now, if the pathogen arrives with no IC restrictions in place, interstate trade in infected salamanders could rapidly spread a potentially devastating, nationwide, Bsal outbreak.
What is the effect on existing permits for interstate movement of listed species? To the extent the permits relate to foreign imports or movements between Hawaii, DC, PR, the possessions/
territories or the continental States considered as a whole, the permit system is still in effect. As far as permits for movements within the continental 49 States, it should be expected that the FWS will modify their terms. Until the FWS does that or provides clarification, the permit holders should follow the terms of their permits.
What might Congress do in response? Congress could pass a law filling the gap and returning the FWS IC regulation program to the status quo that has existed since 1989. Such a law could be quite narrow, targeting only the IC gap, or it could be broader, including an IC gap fix within a broader new law. Or Congress could take no action, leaving the effect of the Court ruling in place.
What might State fish and wildlife agencies do in response? Unless it appears that Congress will fill the IC gap quickly, then concerned States may wish to promptly adopt their own new laws /regulations restricting commerce into their States of the species involved. This seems the highest priority for the States most at risk from the species whose IC has been most liberalized by the ruling, that is, the large constrictor snakes, the 4 Asian carps, the Northern snakehead and the salamanders that the FWS listed as potentially carrying Bsal. (Some States already may have such restrictions on the books.)
Note that Hawaii is well-protected as a specially-designated State and need take no action, as is also true for DC, PR and the territories.
It is too soon to know what the policy responses may be, but the FWS, State agencies and stakeholders likely are evaluating options now.
We welcome comments that supplement or correct factual information, suggest new approaches, or promote thoughtful consideration. We post comments that disagree with us — but not those we judge to be not civil or inflammatory.
Posted by Peter Jenkins