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-   -   Ban lawsuit? (http://www.caudata.org/forum/f1173-advanced-newt-salamander-topics/f1175-herpetological-science-politics/f1176-laws-legality-ethics/106257-ban-lawsuit.html)

schmiggle 10th May 2016 14:22

Ban lawsuit?
 
USARK (whom I'm not sure I like, but any port in a storm?) had a lawsuit going in April against the injurious salamander listing. Does anybody know how that's going/how it went?

esherman 11th May 2016 13:25

Re: Ban lawsuit?
 
I just heard about this crazy

FrogEyes 11th May 2016 21:13

Re: Ban lawsuit?
 
I doubt there's any progress. It's been several years so far for the python lawsuit. In both cases, USFWS is basically in the wrong, so I don't see the necessity of a lawsuit to prove it, except to formally acknowledge that there's no such law for people to violate. The Lacey Act does not prohibit interstate transport of injurious species. In fact, when the injurious species provisions were added/revised, the arguments [and subsequent wording of the Act] were to bar the commercial shipping [I think they intended to bar intentional movement, not accidental, and may not have considered the chance of people intentionally moving injurious species personally], and then only between Hawai'i, Puerto Rico, USVI, other ocean territories, and the mainland USA. It was not intended to bar movement of any kind within CONUS because injurious species could easily move between those states all on their own, and any such law would be pointless and unenforceable. USFWS has its stance and arguments to go with it, but the actual written law, congressional arguments preceding the law, and court precedence all disagree with their position.

Rupert 12th May 2016 11:29

Re: Ban lawsuit?
 
Quote:

Originally Posted by FrogEyes (Post 465516)
I doubt there's any progress. It's been several years so far for the python lawsuit. In both cases, USFWS is basically in the wrong, so I don't see the necessity of a lawsuit to prove it, except to formally acknowledge that there's no such law for people to violate. The Lacey Act does not prohibit interstate transport of injurious species. In fact, when the injurious species provisions were added/revised, the arguments [and subsequent wording of the Act] were to bar the commercial shipping [I think they intended to bar intentional movement, not accidental, and may not have considered the chance of people intentionally moving injurious species personally], and then only between Hawai'i, Puerto Rico, USVI, other ocean territories, and the mainland USA. It was not intended to bar movement of any kind within CONUS because injurious species could easily move between those states all on their own, and any such law would be pointless and unenforceable. USFWS has its stance and arguments to go with it, but the actual written law, congressional arguments preceding the law, and court precedence all disagree with their position.

But for some reason USFWS stilll can and will punish people for interstate transportation of said injurious species, right?

schmiggle 12th May 2016 15:28

Re: Ban lawsuit?
 
...But no news on the lawsuit?

FrogEyes 12th May 2016 19:34

Re: Ban lawsuit?
 
Quote:

Originally Posted by Rupert (Post 465556)
But for some reason USFWS stilll can and will punish people for interstate transportation of said injurious species, right?

Well, in fact they never have. Lacey Act was intended to be enforced by state agencies. USFWS doesn't have the ability, for the most part to enforce away from borders/ports of entry, unless there's some kind of extensive paper trail for them to latch onto. In any case though, they can't 'punish' anyone. That's for the courts to do. Such a case has never been before the courts, and that might be partly because the law doesn't say what USFWS wants it to say. Logically, if the law doesn't agree with what you want it to, do you REALLY want to take someone to court and have your position PROVEN wrong? Probably not. Better to intimidate people into following your "rules", than to try and prove your case. There is very little ability to enforce their view regarding "shipping", and much less regarding personal transport [roughly zero, in my view]. I think what's really needed is for someone to force them into the courtroom. A lawsuit takes forever, especially if the courts have any reason to reject the case [they do, where USARK is concerned]. A "prosecution" probably happens faster, and if you read the law, the arguments for its original legislation, and congressional commentary for it, there's virtually nothing in USFWS favor.

As for current progress - I don't think so. There hasn't even been time to evaluate all the comments for the "interim" rule.

esherman 12th May 2016 21:20

Re: Ban lawsuit?
 
Is the ban for frogs too ?

FrogEyes 12th May 2016 22:03

Re: Ban lawsuit?
 
There was an attempt to cat-x frogs too, but it failed. The salamanders affected by this interim listing are listed in another post, although that listing is slightly incomplete and also includes some incorrect or improperly listed species.

esherman 12th May 2016 23:36

Re: Ban lawsuit?
 
I do think this will get dropped its so dumb really

Rupert 16th May 2016 09:44

Re: Ban lawsuit?
 
I really don't know how the administrative system of US works, but most countries often allow their administrative bureaucracies/ministries to make regulations (within the boundaries of law "in principle"), AND enforce the regulations without going to court over. It's often unlawful, but in most countries the suffering individual must go to court over to "prove the government's enforcement/regulation is unlawful", and not the other way around.

I was wondering if it was the case for US as well.

BwKilcoyne 4th June 2016 02:57

Re: Ban lawsuit?
 
I definitely agree that the USFWS does not have a leg to stand on. They do not have a legal basis of it so even if they tried to enforce it, they would not have an argument in court. What they are trying to do basically is bully people into not getting, or giving up their pets. This is a lot like the situation with mini potbelly pigs. Many people are bullied by their city government, etc. to try to get them them to give up their pet pig. Almost every time someone went to court over it, the case was dismissed because it is not illegal. This seems to be the case with the salamander ban. The Lacey Act states "any shipment between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States of [an injurious species] is hereby prohibited." According to this, all the states that make up the continental US are grouped together and counted as one, and because of that, interstate transport of states within the continental US is perfectly legal. Transport between any of the states in the continental US and for example, Hawaii, would be illegal though because Hawaii is not a part of the continental US.


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