Three days after Judge Moss ruled that he would be granting USARK a preliminary injunction, the Center for Biological Diversity (CBD) filed a joint motion along with the Humane Society of the United States (HSUS) to intervene in USARK’s case.

The extreme position of CBD had been announced promptly after the Lacey Act listing of reticulated pythons and three anaconda species by Collette Adkins, a CBD attorney and biologist focusing on reptiles and amphibians: "Unfortunately, it appears that the agency caved to pressure from snake breeders in its decision not to restrict trade in the boa constrictor — a snake that is clearly damaging to U.S. wildlife."

USARK has filed to oppose joint intervention by HSUS and CBD.

It seems very unlikely that CBD and HSUS will be allowed to intervene in the PI stage of the case, which would allow them to immediately appeal the PI even if USFWS decides not to appeal the PI at this time. (See my earlier discussion of a potential appeal of PI by USFWS.) Fortunately, the time period for CBD and HSUS to appeal the PI on their own has now expired.

It is also possible that the court will deny the motion to intervene because neither CBD nor HSUS established standing in their supporting declarations. Even if allowed to intervene, it is likely that the judge will limit the issues on which CBD and HSUS will be allowed to participate.

For the basics on the PI, please see http://www.kingsnake.com/blog/archives/2929-The-injunction-against-USFWS-What-you-need-to-know-now.html.

Photo: kingsnake.com user PSYCHOTRON

Governor Kasich, we are the "Snake People" -- also known as biologists, conservationists, and herpetologists!

All herpers, -- conservatives, liberals, moderates, independents, green party, and whatever else may be your affiliation -- must stand united to initiate the most vigorous grass roots campaign to publicly oppose the candidacy of Governor John Kasich (R-Ohio) for President of the United States.

On October 21, 2011, Governor John Kasich, by executive order, required a Dangerous Wild Animal Workgroup, within 39 days, to propose legislation regarding the regulation of "dangerous wild animals" in Ohio.

The workgroup recommendation was obviously predetermined. We know what happened regarding unreasonable restrictions being placed on responsible reptile owners; and that Governor Kasich was the driving force behind the Ohio DWA legislation (along with his friends at HSUS). Not only have Ohio herpers and exotic animal owners suffered (many moving out of Ohio), but we now have endured copy-cat legislation in West Virginia and who knows where else in the future.

Our numbers are not equivalent to those of some other groups, but due to our extreme passion for herpetology, our message to government officials and politicians has become loud and powerful: Don't tread on us! As I wrote before, USARK's preliminary injunction against USFWS has left the federal agency stunned. You had to be at the court hearings in Washington, DC to observe their sullen faces.

At the state level, USARK also laid down markers on behalf of reptile and amphibian owners. For example, a prolonged battle during 2014 and early 2015 resulted in the removal of all salamanders, tree frogs, clawed frogs, toads, turtles, large lizards, constrictor snakes, venomous snakes and crocodilians from the WV DWA list.

Then several weeks ago upon adjournment of a DWA Board meeting in WV, one of the DWA Board members politely asked those of us observing the meeting if we were "snake people." On behalf of our contingency, I responded: "Yes, we are 'snake people.'" One of our members then identified himself as an accomplished WV biologist-herpetologist. I wonder how they knew/guessed we were snake people?

Photo: kingsnake.com user eastbayexotics

In briefs and during recent hearings, United States Fish and Wildlife Service USFWS) informed the United States District Court for the District of Columbia that it would take 75 days to determine whether to appeal the preliminary injunction (PI) granted to USARK. However, the Federal Rules of Appellate Procedure appear to only provide 60 days in which a United States agency may file a Notice of Appeal. [Rule 4(a)(1)(B)(ii)] Nonetheless, USFWS requested a stay of the PI for 75 days.

In his order, United States District Court Judge Randolph D. Moss stayed most of the proceedings in the Federal District Court for 60 days or until the termination of any appeal of the PI. Judge Moss did not technically stay the PI, but he effectively did so temporarily by making the PI effective 14 days after his order, on Tuesday, June 2, 2015.

If it files a notice of appeal, USFWS may again seek a stay of the PI for the pendency of such appeal. It also appears that USFWS could technically file immediately for a stay of the PI with the United States Court of Appeals. [Rule 8(a)]

However, it seems unlikely the Court of Appeals would be inclined to take such a motion for stay very seriously if USFWS did not simultaneously file a notice of appeal. Why? The District Court has already considered and denied any stay of the PI beyond the 14 days already allowed through June 2, 2015.

Moreover, if USFWS sees the reversal of the PI as an extraordinarily important issue, then it should be able to expedite the administrative procedure for filing a notice of appeal.

During the hearing, USFWS stated that it was time consuming to get administrative permission to appeal because an appeal had to be authorized by the Solicitor General, and also involved Department of Justice lawyers at the trial and appellate levels, as well as a number of folks at USFWS and The Department of Interior, at various levels.

Photo: kingsnake.com user eschmit04

USARK and its lawyers worked at a frantic pace to get a nationwide preliminary injunction (PI) for every single responsible reptile keeper in the continental United States since the recent USFWS Lacey Act listing of reticulated pythons and three species of anacondas.

We submitted multiple legal briefs/memoranda to, and had several hearings before, the Federal District Court for the District of Columbia. Hundreds of hours from numerous individuals have been invested. I am not sure when Phil Goss sleeps!

A PI is an extraordinary legal remedy that is only granted upon satisfying extremely stringent legal requirements. For example, USARK had to establish that its members would suffer irreparable harm without a PI and it is likely to prevail on the merits (when the court eventually hears the main case).

The law also requires the judge to grant a PI as narrow as possible. Because there is no full blown adversary process at the PI stage, the judge essentially assumes that the facts provided by USFWS are accurate for purposes of ruling on the PI. All of these strict legal principles and requirements are why you rarely see a PI granted, especially one on a nationwide basis enjoining enforcement of an environmental law.

Preliminary Injunction Granted

Against all odds, the judge ordered a nationwide PI "with respect to transportation by any Plaintiff or USARK member of the reticulated python and/or green anaconda" (1) out of any of the 49 continental United States, and (2) into all of those states except for Florida and Texas.

Questions and Limitations on Preliminary Injunction

When will the PI be effective?

June 2, 2015, unless USFWS appeals to the Federal Circuit Court and a stay of the PI is granted by the Federal Circuit Court before June 2, 2015. USFWS stated it would take them about 75 days to make a decision on such an appeal.

Does the PI allow every reptile keeper in the continental United States to ship/transport green anacondas and reticulated pythons across state lines?

At the last minute, USFWS made numerous arguments to try to restrict the scope of shipments. In response to USFWS arguments and to protect the PI ruling if appealed, the judge ruled that the PI allows transportation/shipment by anyone who was a member of USARK as of April 8, 2015.

A nationwide injunction for every reptile keeper, including shipments into Florida and Texas, will be issued if/when the judge rules favorably on the interstate transportation issue as part of the main case. Since the judge has already ruled during the PI stage of the case that USARK is likely to prevail on the interstate transportation issue on the merits, it is likely that such an injunction will be granted.

How do I determine my status/qualification for USARK membership?

ALL questions regarding USARK membership must be directed to contact@USARK.org. Please do not flood USARK with emails unless you have a current expectation of shipping/transporting green anacondas or reticulated pythons across state lines. The limited USARK resources are needed to focus on future issues in the case, etc.

Does the PI allow transportation/shipment to or from Hawaii, Puerto Rico, territories and possessions of the US or Washington, DC?

No. These activities are prohibited by a provision of the Lacey Act that was not challenged in the PI. This issue may be resolved in our favor when the court hears the merits of our case.

Does the PI allow importation from other countries into the United States?

No, but exportation to other countries is permitted. In addition, the ban on importation will be addressed when USARK presents the merits stage of the case.

Does the PI allow transportation/shipment into a state in violation of that state’s law?

No.

Does the PI allow transportation of Beni anacondas or DeShauensee’s anacondas across state lines?

No, such an injunction could not be granted because these anacondas have not previously been available in trade.

Does the PI allow me to ship out of the 47 continental US states through Miami or Dallas?

No. Shipments out of the 47 continental US states must go through one of the other 16 USFWS designated export ports. Shipments beginning in Florida can go through Miami and shipments beginning in Texas can go through Dallas.

Below is a full list of the other designated ports (Miami and Dallas are excluded):

Anchorage, Atlanta, Baltimore, Boston, Chicago, Dallas, Honolulu, Houston, Los Angeles, Louisville, Memphis, Miami, New Orleans, New York, Newark, Portland, San Francisco, and Seattle.

Is anyone restricted from making a shipment via plane solely because it flies over Florida, Texas, Washington, DC, Hawaii, Puerto Rico, or any territory or possession of the US?

No.

For a lawsuit timeline and other frequently asked questions, click here.

Photo: kingsnake.com user Joan Mas

In a short unreasoned response, USFWS refused an extension request of the effective date (April 9, 2015) of the Lacey Act listing of reticulated pythons, green anacondas, Beni anacondas, and DeSchauensees Anacondas.

USARK had requested an extension of the 30-day period from the date of the Lacey Act listing in the Federal Register.

USFWS specified that it was rejecting the request for breeders and other sellers to try to minimize the economic impact of the listing of these species. USFWS has broad authority to set the effective date or extend the effective date of Lacey Act listings, but argued that an extension would undermine the purpose of the listing. USFWS also argued it did not have time to complete any process necessary to grant such an extension.

In response, USARK has filed for a preliminary injunction and temporary restraining order to obtain the requested extension by an order of the Federal District Court already hearing the USARK case filed to challenge the listing of the Burmese python, yellow anaconda, and Southern and Northern African rock pythons (and amended now to include the reticulated python etc.).

The hearing will be held at 2 PM on Tuesday, April 7. USFWS'opposition will be filed by noon, Monday, April 6. USARK's reply will be filed by noon, Tuesday, April 7.

Although courts are reluctant to grant the extraordinary relief of a TRO and PI, USARK's memorandum makes a very compelling case. The memorandum sets forth in detail why USARK meets the requirements of "likelihood of success on the merits" and "irreparable harm" that will be suffered. In addition, the memorandum explains why USFWS would suffer little or no harm if an extension of the effective date was delayed until a final decision on the merits of the USARK case.

Photo: kingsnake.com user JonMIller

The Humane Society of the United States (HSUS) has lobbied for dangerous wild animal bills in various states throughout the country. As we enter the legislative season in many states, it seems timely to review the stated position of HSUS regarding wild animals as pets.

The organization states it "strongly opposes keeping wild animals as pets." It defines wild animals broadly to include "any non-domesticated native or exotic mammal, bird, reptile, amphibian, fish, or invertebrate, regardless of whether the animal is wild caught or captive bred." Thus, HSUS considers most pets to be wild animals.

HSUS asserts wild animals make unsuitable pets under virtually all circumstances because very few people are properly equipped or have the expertise to maintain them.

The extreme reach of dangerous wild animal legislation was revealed during a rule-making process in West Virginia last year. Pursuant to a DWA law supported by HSUS in the state, the proposed list of DWAs included all salamanders, tree frogs, clawed frogs, toads, and turtles (except those native to West Virginia).

In response to this proposed list, the WV director for HSUS supported (on page 987) the proposed list with the exception of a suggestion to clarify that domestic rabbits were not DWAs, and a request to add boa constrictors.

Although turtles, salamanders, tree frogs, clawed frogs and toads have been removed from the DWA list, it is very clear that HSUS supported their listing as DWAs.

Image: Sixth grade class learning about snakes, uploaded by kingsnake.com user leslonsdale1.

The owner of an exotic pet store in Campbellton, New Brunswick, Canada, was arrested on February 5, 2015, and then promptly released to face charges to be made public at a hearing to be held on April 27.

A statement released by the New Brunswick Royal Canadian Mounted Police (RCMP) disclosed the pending charges are in connection with the death of two young boys in the pet store owner’s apartment, which was above the store.

The RCMP statement also stated "[a]utopsies determined the boys died as a result of being asphyxiated by an African rock python that was being housed in the same apartment where the boys were attending a sleepover."

This new information suggests the store owner will be charged with negligent homicide, i.e., the store owner's negligence caused the death of the children. A key fact in any such prosecution is likely to be the first-hand report that a ventilation fan removed from the ceiling of the snake's enclosure left an opening for the snake to escape and crawl onto the drop-ceiling in the adjacent room where the children were sleeping.

Questions have remained in the reptile community and elsewhere about exactly what happened on that tragic night one and a half years ago, because it is extraordinarily rare for one of these large snakes to kill a human. Efforts are underway to obtain additional details from the autopsy report or any other documentation when such items become available.

In 2014, West Virginia enacted a Dangerous Wild Animal (DWA) law that resulted in the proposal of a regulation/rule that would create an absurdly long list of DWAs. For example, the proposed DWA list initially included all turtles and salamanders (except native W. Virg. species).

Months of hard work by reptile, amphibian, and other exotic owners in the state and across the U.S. has resulted in an opportunity to overturn West Virginia's DWA Act. On the third day of the 2015 legislation session, four senators submitted SB 247 to repeal the DWA Act. One of these senators had voted in favor of the DWA law in 2014. In a single sentence, SB 247 will remove every single word of the DWA Act as if it never existed. That will be a turning point for state legislation.

USARK and its associated chapter in W. Virg. have been coordinating efforts to fight against the state’s DWA law and proposed rule for approximately 10 months.

The opportunity to create a clear turning point in anti-reptile legislation is within reach. With their hundreds of millions of dollars, anti-pet groups like HSUS and PETA will certainly continue to campaign against your ownership of pet reptiles and amphibians. It is what they do. It is an integral part of their business model.

The repeal of the DWA law in W. Virg. would set a precedent that would be very influential in our continued battles against our extremist animal rights adversaries. This is an opportunity for the reptile nation to make a big statement. The question is whether the reptile and amphibian owners in W. Virg. and across the U.S. will capitalize on this opportunity by actively engaging in the legislative process.

How to help

If you are a W. Virg. resident, you should sign up to help repeal the DWA Act by sending your contact information to wvusarc@gmail.com. USARK will be posting action alerts for everyone to help with repealing the Act, as well as responding to proposed legislation and regulations across the country.

The first step for W. Virg. residents is to identify your senatorial district and your two senators. Please immediately call your senators and email them asking them to cosponsor SB 247. It would be helpful to add a note about how this law has upset your life.

Also, please ask at least two of your exotic animal friends in W. Virg. to do the same thing, and for them to ask two more people (and so on), so we create a pyramid and each of the state's 34 senators is contacted multiple times by a constituent to sponsor SB 247.

An article about a supposed reptile ban has been making it's way around social media. It has a headline designed to frighten any herper: "BREAKING NEWS: NC Reptile Ban Legislation! HSUS to Push for Dangerous Wild Animal Legislation in NC; Boas, Pythons and Venomous at Risk." Sounds really ominous, doesn’t it?

The article was based on information posted on the website of Carolina Tiger Rescue (CTR), stating CTR will join with the Humane Society of the United States (HSUS) to introduce a bill that "bans bears, non-human primates, and wild cats." It further states this "legislation has nothing to do with farming practices. It is about bears, nonhuman primates, and wild cats. Not pigs. Not chickens. Not cows."

Nevertheless, that hasn't stopped speculation by voices intent on inflaming the community with messages saying things like “this legislation may cover more than big cats. The HSUS model Dangerous Wild Animal (DWA) legislation, for which they received the stamp of approval from the American Bar Association (ABA) Animal Law Committee in 2014, includes large constrictors (even boa constrictors) and venomous snakes."

It should be noted that the above referenced model legislation has not been adopted by the ABA; but is merely a recommendation by a committee.

A simple phone call to the executive director of CTR, Pam Fulk, immediately answered the speculation as to whether the legislation included or would include reptiles or amphibians. Fulk responded that such speculation is "absolutely untrue." She said the legislation is in its final process of review, adding, "People are already making things up."

When a group has any association with HSUS, USARK is vigilant to verify their statements to us. USARK has mechanisms in place to identify legislation introduced in all 50 states, including amendments to existing laws that would affect the herp community. Let's not speculate, and waste our energy and activism, when we can verify, and focus our efforts on confirmed threats.

There's been a change of judges in the USARK v. USFWS lawsuit about listing big constrictors as injurious species.

The case was recently transferred to Judge Raymond Daniel Moss. He will be the third judge assigned to the case. In August, we had been informed that the case had been transferred from Judge Sullivan to the Honorable Reggie B. Walton. In the case of both transfers, it appears to be simply a matter of trying to distribute the judicial workload.

On November 14, 2014, Judge Moss received his judicial commission to serve as a federal judge for the United States District Court for the District of Columbia. Upon his confirmation, Judge Moss left a large, prestigious DC law firm where he had chaired the Regulatory and Government Affairs Department. This is his first position as a judge, although upon graduation from law school he was a law clerk for a federal district court judge and then for Justice Stevens of the Supreme Court of the United States.

Judge Moss has spent considerably more time in private practice than working for the government. Hopefully, his private practice experience in regulatory and government affairs will help him be able to also see the issues from our perspective.

In March 2014, West Virginia enacted the Dangerous Wild Animal (DWA) law, which was lobbied for heavily by the Humane Society of the United States (HSUS) and its affiliated WV organizations.

Similar bills had previously failed in WV, dying in legislative committee and once progressing far enough to be vetoed by WV’s Governor. Although the state’s Governor vetoed a similar DWA bill in 2012, which veto occurred after the Zanesville animal release in 2011, he signed the 2014 DWA bill.

The Zanesville Connection

WV’s 2014 DWA Bill (HB 4393) is frequently justified by the 2011 release of 50 animals in Zanesville, Ohio (consisting of lions, tigers, bears and wolves). As covered in Esquire, the released animals had been accumulated via purchase and “rescue” by Terry Thompson and were housed in outdoor cages on his 73-acre farm.

Forty-nine of the released animals were killed by law enforcement on or near the farm on the evening of the release, and the remaining tiger was killed on the farm the next morning. It has been reported that officers closed the doors of several cages in which a few large cats had remained, only to discover that every cage had been cut open in addition to having its door left open. Thompson’s partially eaten body was discovered on the farm with bolt cutters and a pistol lying nearby.

The police theorized that before shooting himself in the head, Thompson cut open the sides of all the cages, as well as, opening all the cage doors. In Thompson's house, however, two monkeys, three leopards and a small bear remained alive in cages.