CatX — Quiet Storm of Lacey Act Overreach

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This is a very interesting article on a recent move by US Fish & Wildlife and the implications of the current overreach via the Lacey Act.

The Last Word on Wildlife

Captive Bred Reticulated Python Captive Bred Reticulated Python

In an unprecedented move, the U.S. Fish and Wildlife Service has empowered itself to shortcut the rule making process under the Lacey Act in order to more easily and arbitrarily declare “Injurious Wildlife” listings, and making way for the potential mass listing of species. Known as CatX, this newly enacted rule will negatively impact zoos and aquariums, research facilities, TV and film, aquaculture, herpetoculture, and the pet trade.

What is a Categorical Exclusion (CatX)?
The U.S. Fish and Wildlife Service (FWS) states:
A categorical exclusion is a class of actions under the National Environmental Policy Act (NEPA) that do not individually or cumulatively have a significant effect on the human environment. Under NEPA, Federal agencies are required to consider the potential environmental impact of agency actions prior to implementation. Agencies are then generally required to prepare either an Environmental Assessment (EA) or an Environmental Impact Statement…

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Virginia Bill Would Decriminalize Sex Outside of Marriage

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virginia is for loversVirginia is for Lovers?

The State of Virginia currently has an antiquated statute on its books that makes it a misdemeanor to engage in sexual intercourse outside of marriage.  Conviction of fornication carries with it a $250 fine.  It states as follows:

§ 18.2-344. Fornication.  Any person, not being married, who voluntarily shall have sexual intercourse with any other person, shall be guilty of fornication, punishable as a Class 4 misdemeanor.

On January 8, 2014, Delegate Mark Sickles (D) introduced Virginia House Bill 914 which would repeal the crime of fornication entirely, of which eight people were convicted in 2013, according to the Virginian-Pilot.

Unfortunately, HB 914 has stalled out in the Virginia House and is tabled for this session due to loopholes in changes to other crimes included in the bill, including other sex crimes.

Morality laws continue to be a hot topic in the state who bills itself as  “Virginia is for Lovers.” Adultery also is a misdemeanor in the state, and carries a $250 fine.

US Senate Approves Gay Rights Bill

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ENDAThis afternoon, the United States Senate passed historic gay rights legislation in its approval of the Employment Non-Discrimination Act, which would provide protections in the workplace to workers and job applicants who are lesbian, gay, bisexual, and transgender. Any private employer with more than 15 employees would be precluded from workplace discrimination based on sexual orientation or transgender status. However, an exemption is included for religious groups.

The measure adding sexual orientation and gender identity to the list of characteristics that cannot be discriminated against in the workplace passed by a vote of 64-32 — a slightly stronger showing than an earlier vote to move forward on the legislation, which passed 61-30.

The bill, widely referred to as ENDA, was introduced with bipartisan support.

Unfortunately, ENDA is not expected to come up for a vote in the House of Representatives, due to opposition to the measure voiced by Speaker John Boehner.

The Filthy Underbelly: Animal Abuse in California

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I need to begin by saying that I do not in any way support People for the Ethical Treatment of Animals (PETA). I do not believe that PETA is ethical and I do not believe that PETA treats animals ethically.  I believe that Ingrid Newkirk has a self admitted legacy of killing animals and that PETA’s practices result in the suffering of more animals.  For my complete thoughts on this, please see my blog “Why I Cannot Support PETA and Ingrid Newkirk.”

That being said, I cannot support the neglect, abuse and torture of animals in any capacity.  The video link below was taken by a PETA operative at the business of an animal dealer in California. I have heard rumors from people in the top eschelon of the reptile industry whose place this is, but I have not confirmed it so I will not say.  The video speaks for itself.

I have spent significant time and effort advocating for the protection of the rights of herpetoculturists so that people who responsibly and humanely keep and breed reptiles and amphibians may continue to be able to do so.  I hate to think that anything I have done protects the rights of people such as the business in this video, and if I have, that is a very bitter pill to swallow.

I do not believe that there should be blanket legislation prohibiting the keeping and breeding of reptiles and amphibians. However, I do believe that animal welfare statutes need to be strong, clear and enforceable. People who commit these atrocities should be subjected to the full force of the law, and the punishments for these egregious crimes need to be stronger.

I have written about the shared responsibility of reputable dog breeders to help ameliorate the suffering of dogs mistreated within the dog community.  Herpetoculturists need to exercise the same responsibility.  No animal deserves to be tortured and neglected.  The privilege of engaging with these marvelous creatures inures a responsibility on the entire community to act against people who abuse and neglect.

Something is Rotten in the State of Ohio and its Name is HSUS

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HSUSOn November 27, 2012, the Humane Society of the United States (“HSUS”) filed its Motion to Intervene in Wilkins et al. v. Daniels et al., Case No. 2:12-CV-01010-GC., seeking to have the Ohio Dangerous Wild Animals Act (“DWA”) declared unconstitutional.  Normally, a lawsuit involves the plaintiffs (who bring the suit), and the defendants (whom the suit is brought against).  Sometimes, an entity who is not party to a lawsuit in progress seeks to become a party.  Such a party must file a Motion to Intervene.  Generally, to be admitted into the lawsuit, the intervenor must have an interest in the subject matter of the original suit.  The Motion to Intervene was granted on December 3, 2012.  This case is set to begin trial on Monday, December 10, 2012.

In its Motion to Intervene, HSUS has revealed its true intent with uncharacteristic candor.  The message is simple:

  • HSUS needs to prevail in Ohio in order to ensure its flow of private donations;
  • HSUS plans to bring similar legislation in other states;
  • If HSUS loses in Ohio, its ability to impose similar burdensome legislation in other states will be lessened; and
  • HSUS spent significant organizational funds to push the DWA through.

(See HSUS Motion to Intervene, excerpts included at the end of this post.)

All members of the reptile community, as well as the exotics community, as well as anyone who is interested in a government that is not empowered to take private property from citizens without compensation and without due process of law, should join together in opposing the DWA in Ohio.  HSUS has announced that it is poised to take this legislation to other states.  If the State of Ohio upholds legislation that allows the DOA to take exotic pets from its residents without due process, it will set precedent for the taking of dogs, cats, and farm animals.

Please support the plaintiffs in Ohio.  If they lose this case, they will need funding to appeal.  If they win, they will need funding to address whatever modifications the legislature proposes in its stead.  Polly Briton and the Ohio Association of Animal Owners (OAAO) need funding to keep this fight going.

Key Excerpts from HSUS’s Motion to Intervene:

“The Humane Society is funded in part by private donations, and its ability to generate continued donor support depends heavily on the success of its efforts . . . It follows that if the legislative achievements of the Humane Society —like the DWA
Act—are overturned, the organization will lose . . . financial support.”  

“This case marks the first constitutional challenge to a state dangerous wild animal law, and many states are currently considering adopting similar laws to address the problem of private possession of dangerous wild animals. The Humane Society is expending resources to support passage of those laws and, therefore, the precedential nature of this lawsuit could have an impact on the organization’s other legislative efforts and future possible litigation concerning those legislative efforts.”

“[A] ruling striking down the [DWA] could have a significant impact on the Humane Society’s pecuniary and reputational interests.”

“[T]he DWA Act provides a concrete and substantial benefit to the Humane Society.”

“The Humane Society undeniably has an interest in upholding the DWA Act because the Humane Society was an active proponent of the legislation, directly participating in policy discussions to develop a legislative framework, analyzing proposed legislative language, and promoting passage of the bill.”

“The Humane Society . . . expended significant resources in order to ensure the law’s passage.”

 

Wilkins et al. v. David Daniels and the Ohio Department of Agriculture

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© 2012 Erika N. Chen-Walsh

From April of this year until I resigned on October 12, 2012, I was formally involved with USARK and engaged heavily in Ohio against Troy Balderson’s balderdash bill, SB 310.  I have blogged extensively on this over reaching, unconstitutional, unfunded mandate of a legislative disaster.  (See “SB 310:  Kasich’s Big Expensive Blunder Poised to Kill Small Business in Ohio.”)  In June 2012, the Ohio legislature enacted and Governor Kasich signed the Ohio Dangerous Animals Act (“DAA”).

On November 2, 2012, a group of Ohio residents filed a suit in federal court captioned as Wilkins et al. v. Daniels et al., Case No. 2:12-CV-01010-GC.  In the underlying suit, plaintiffs seek declaratory judgment, temporary restraining order, preliminary and permanent injunction and nominal damages for violations of the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution.

I will explain the legal nomenclature in lay terms for ease of understanding.

A declaratory judgment is an adjudication of the rights and status of litigants.  Here, the plaintiffs are seeking to have the Court declare that the imposition of the burdens of (1) joining and funding the objectionable views of a private organization; (2) having one’s private property seized; or (3) obtaining and maintaining a license under Chapter 935 of the Ohio Revised Code are unconstitutional on their face and as applied to Plaintiffs because they violate the rights to freedom of speech, private property, and due process of law guaranteed under the First, Fifth, and Fourteenth Amendments to the Constitution.

A temporary restraining order is a court order of limited duration. It commands a defendant in a case to maintain a certain status until the court can hear further evidence and decide whether to issue a preliminary injunction.

A preliminary injunction is a temporary court order that prevents the other party from pursuing a particular course of conduct until the conclusion of a trial on the merits.  A permanent injunction is a permanent order that precludes the other party from engaging in a particular course of conduct.

Nominal damages are nominal money damages.

Temporary restraining orders and preliminary injunctions are considered extraordinary relief.  In order to prevail on a preliminary injunction, the moving party must show (1)  a strong likelihood of success on the merits; (2) that the movant would otherwise suffer irreparable injury; (3) whether the issuance of a temporary restraining order or preliminary injunction would cause substantial harm to the non moving party; and (4) whether the public interest would be served by the issuance of a temporary restraining order or preliminary injunction.

In this case, the Plaintiffs have petitioned for a Temporary Restraining Order and Preliminary Injunction.  Although no order has been entered, sources close to the lawsuit have stated that the attorneys in the case have a “gentlemen’s agreement” that the Ohio Department of Agriculture (“ODA”) will not enforce the DAA on a temporary basis.  This should be a matter of grave concern to all exotic animal owners in Ohio because the deadline to register exotic animals restricted by the DAA has passed.  Those who did not register face repercussions.  On the other hand, registering exotic animals under the current law strengthens the position of ODA in the lawsuit.  It is a very slippery slope with significant risk.  Plaintiffs should push hard for a court order granting the preliminary injunction to protect their property rights.

The allegations of unconstitutionality are as follows:

First Amendment – freedom of association.  Plaintiffs claim that the DAA abrogates their right to freedom of association by forcing their involvement with the American Zoological Association and the Zoological Association of America.

The Fourth Amendment guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.  The allegations are vague as to the Fourth Amendment implications, but ostensibly, the objection is to the ability of ODA to inspect private property without a warrant.

The Fifth Amendment, inter alia, sets out rules for eminent domain and protects the right to due process.  Eminent domain is a governmental takings without compensation argument.  Plaintiffs make a claim that the DAA is tantamount to the Ohio government depriving them of their animals without procedural due process, and that their animals are property as a matter of law.

The Fourteenth Amendment contains the Due Process and Equal Protection clauses.  In very short terms, Due Process requires the government to give a party due process of law before depriving the party of property.  The Equal Protection clause says that, “no state shall … deny to any person within its jurisdiction the equal protection of the laws.”  Here, it means that Ohio exotic animal owners who are not members of AZA or ZAA are not receiving equal protection under the law.

When I was part of USARK, I summarized constitutional issues that I saw in SB 310 for Andrew Wyatt with an eye on a potential lawsuit, and Wyatt agreed.  However,  certain members of the USARK board are risk averse and have an organizational aversion to lawsuits, so those issues never came to fruition.

With respect to the allegations in the case at bar, some of the constitutional challenges are, in my opinion, very strong.  Some are not as strong.  I am not going to publicly criticize any of them because that is how lawsuits work, and I will endeavor not to write a single word that could lessen the chances of the Ohio plaintiffs from prevailing.  The doctrine of res judicata precludes litigants from later raising legal challenges in court that could have been brought in a prior lawsuit, unless new facts come to light.  In lay terms, this means that the Ohio plaintiffs need to bring every possible claim they have in one lawsuit or they will be barred from bringing them later.

On November 27, 2012, the Humane Society of the United States (“HSUS”) filed a Motion to Intervene in the Ohio lawsuit.  That request was granted in an order by United States District Court Judge George C. Smith on December 3, 2012. (See December 3, 2012 Order Granting HSUS Leave to Intervene.)

This is a very important development for the Ohio plaintiffs and the entire reptile community should pay very close attention.  Goliath has just entered the arena.  The HSUS legislative machine is fueled by hundreds of millions of dollars in donations.  The Ohio plaintiffs are operating on a very frugal budget.  The reason that HSUS is entering this case, with all of its clout and all of its money, is set forth explicitly in its Motion to Intervene:

“This case marks the first constitutional challenge to a state dangerous wild animal law, and many states are currently considering adopting similar laws to address the problem of private possession of dangerous wild animals. The Humane Society is expending resources to support passage of those laws and, therefore, the precedential nature of this lawsuit could have an impact on the organization’s other legislative efforts and future possible litigation concerning those legislative efforts.”

(HSUS Motion to Intervene at p. 13.)

It is extremely important to the rights of reptile keepers and all exotic animal keepers to prevail in Ohio.  HSUS could win this fight just by grinding this case into the ground financially.  Polly Briton and the Ohio Association of Animal Owners (OAAO) need funding to keep this fight going.  If they lose, we all lose.

There are many divisions within the reptile community, both organizationally and personally. Now is not the time for infighting among ourselves.  If reptile keepers and owners cannot come together for this common cause, the entire community is going to face an unprecedented onslaught of anti-reptile keeping legislation in the coming years.

Andrew Wyatt is a close personal friend of mine and a trusted colleague.  However, I would encourage any reptile or exotic animal keeper who has money to donate at this time to send it to the OAAO via Polly Briton and nowhere else.  The in-community fighting and rhetoric must stop or we fuel HSUS’s fight against us.  There will be another lawsuit coming down the pike shortly at the federal level, and that one is also going to need funding, but the pressing need right now is in Ohio.

 

HSUS: The Pacelle Propaganda Machine Hampers Progress For Animals

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By Erika N. Chen-Walsh

Wayne Pacelle, CEO and president of the Humane Society of the United States (HSUS) blogged today, lambasting Andrew Wyatt andU.S. Rep. Steve Southerland (R-FL) for opposing  U.S. Rep. Tom Rooney’s (R-FL) animal rights driven House Resolution 511.  HR 511 seeks to amend title 18, United States Code (the “Lacey Act”), to prohibit the importation of nine species of constrictor snakes as injurious species.  These include the Burmese python, the reticulated python, the North African rock python, the South African rock python, the Boa constrictor, and three species of anaconda.

Andrew Wyatt preparing to testify before the House Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs

Andrew Wyatt preparing to testify before the House Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs

Apparently, the reptile community, led by Andrew Wyatt, has struck a nerve with the $200 million plus per year animal rights legal behemoth, HSUS.  Pacelle’s angst at Wyatt is not particularly surprising.  Since co-founding the United States Association of Reptile Keepers in 2008, Wyatt has emerged victorious in more than two dozen state engagements defending the rights of herptile owners as well as multiple federal entanglements.  These victories have come on a shoestring budget and against HSUS’s powerhouse millions.  Wyatt is most certainly a bothersome thorn in Pacelle’s manicured paw, and one that will not go away.

Pacelle said today, “But the reptile lobby—yes, there is such a thing—has been thrashing its collective tail and saying how benign these snakes are and that cold weather will prevent the snakes from going much farther than the Everglades (I guess it’s no matter to these supposed snake “lovers” that the snakes will freeze to death).”

Pacelle’s comment is interesting for two reasons.  First, using HSUS’s own statistics, 17 people have been killed by large constrictors in the US since 1978.  HSUS further claims that there have been 1,111,768 large constrictors imported since 1977.  Using those figures alone, without factoring in the millions of large constrictors bred in captivity this country since 1978, it makes the risk of death from a large constrictor less than 0.01%.  Large constrictors may not be “benign,” but the risk of being killed by a vending machine, a clothes dryer, a sand hole, a shark attack, a dog or a bee are significantly higher than the statistical risk of being killed by a large constrictor.

Second, Pacelle seems to concede that the snakes will freeze to death if they travel north of the most southern tip of Florida.  HSUSclaims on its own web site about reptiles, “Wild animals are best left in the wild where they belong.”  As great a shock as it may come to HSUS, animals in the wild are not frolicking about making daisy chains and counting stars as they do in Disney movies.  Wild animals die of disease, injury, predation, starvation, and yes, from the elements of nature.

Clearly, Pacelle’s remark is intended only to inure sympathy from animal lovers who don’t truly understand the issue. HSUS has used similar rhetoric about dog breeders, showing a decided recalcitrance to distinguish between responsible breeders and puppy mills.  Responsible reptile owners and breeders do not want to see the suffering of any herptile, and they certainly don’t advocate releasing any captive reptiles into the wild.

Wayne Pacelle and convicted dog fighting felon, Michael Vick, following the Atlanta Falcon’s $50,000 donation to a cause related to HSUS.

Pacelle’s tantrum continues, “Somehow the snake lobby, in the form of the U.S. Association of Reptile Keepers, has hoodwinked a number of Republican House members and apparently convinced them that this is a matter of “economic freedom.”

This is about economic freedom. HSUS does not have the right to deprive American citizens of their property interests and their livelihoods simply because Pacelle doesn’t agree with reptile ownership.  It must be incredibly empowering for one person to believe that his ideology should translate into law for every American citizen, but it is the duty of lawmakers to protect the interests of their constituents, no matter how much it upsets Mr. Pacelle.  The majority of people involved in true herpetoculture, the breeding and ownership of captive bred reptiles, care immensely about the health and welfare of the animals they keep.  (If Pacelle is truly concerned about the welfare of animals, perhaps he should revisit his endorsement of convicted dog fighting felon, Michael Vick, who, for a monetary donation, now receives Pacelle’s endorsement.)

Pacelle speciously condemns U.S. Rep. Southerland for condoning the import of  “dangerous invasive species into the country for use as pets, even if they are creating ecological havoc, injuring and killing private citizens, and costing the nation millions of dollars in terms of containment activities.”  (When he hasn’t got facts, he embellishes.)  Notably, Pacelle provides no back up for his inflammatory and false rhetoric.  HSUS’s fall back plan is to continue to terrify the public about non existent threats in order to feather HSUS’s own legal nest.  (HSUS has conceded in its Motion to Intervene in Ohio that it has an economic interest in winning legislative engagements because doing so attracts more monetary donations.  I will be writing on that topic next.)  If Pacelle needs to succeed in state and federal legislatures in order to attract the hundreds of millions of dollars that pay his six figure salary, perhaps he should set his sights on those more dangerous predators, such as vending machines, clothes dryers and sand holes.

U.S. Representatives Fleming and Southerland, Dr. Brady Barr, Shawn Heflick, Colette Sutherland and Andrew Wyatt should be commended for bringing facts to the table regarding the threat of pythons in the Everglades and the economic impact of arbitrary and capricious government action.  The role of our representatives in Congress is to protect our rights from unnecessary and harmful legislation, not to ensure that Pacelle has enough “wins” to fund HSUS into perpetuity.