DO SOMETHING ABOUT THE INTERSTATE BAN NOW: easy version

[esherman]

Just hope the ban gets lifted soon I want more ..newts lol

 

[BwKilcoyne]

I know many people may think that the salamander ban under the Lacey Act ended the interstate transport of salamanders as the FWS says it does, but that's not what it says in the law. The law 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.” based on this language, the continental states in the US are grouped together and counted as one, meaning that it would be illegal to transport salamanders between, for example, Florida and Puerto Rico, but not interstate transport for states in the continental US.

 

[Mark]

That's not the current interpretation of the Lacey Act. Until the current FWS interpretation has been challenged and amended through the legal system you'd be wise not to ship any listed species interstate.

 

[Otterwoman]

But I do like your thinking!

 

[michael]

I know many people may think that the salamander ban under the Lacey Act ended the interstate transport of salamanders as the FWS says it does, but that's not what it says in the law. The law 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.” based on this language, the continental states in the US are grouped together and counted as one, meaning that it would be illegal to transport salamanders between, for example, Florida and Puerto Rico, but not interstate transport for states in the continental US.

Tell that to the USFW agent when they confiscate all of your caudates.

 

[BwKilcoyne]

Tell that to the USFW agent when they confiscate all of your caudates.

Oh, I would trust me. They would have a hell of a lawsuit on their hands. My brother is a cop, a judge is a family friend, and one of my best friend's dad is a lawyer. I would love to take them to court over it. I was reading that USARK has a lawsuit currently against FWS because of the Lacey Act. USARK is suing over the legality of the FWS's interstate ban. So far, two of the three judges hearing the cause side with USARK that the FWS interpretation of the interstate ban is wrong, and the third judge is on the fence. They are supposed to meet again later this year. I can see the logic in it banning trade between the continental United States as a whole and other areas such as Puerto Rico, Guam, and Hawaii, but between states in the continental United States is inconsistent with the language of the law and doesn't make sense. Hopefully we can get some good news with it.

 

[jewett]

Is there any public forum where this case can be followed? I know progress on it will continue to be slow, but if there is a website where updates or the involved judges comments/ statements are posted I would like to check on it periodically. (And sorry if this information has been posted previously - I must have missed it!)

HJ

 

[michael]

FrogEyes,
Do you recommend hand carrying caudates listed in the emergency ban across state borders at this time? Do you do it?

 

[BwKilcoyne]

The USARK website gets updates on it on occasion. There's a good deal of background information on it too if you go to the link saying lawsuit update.

 

[FrogEyes]

I don't know if I would "recommend" it. I don't have any opportunities to do it, but wouldn't hesitate. My main concern would be my immigrant status, and I don't know how much of a police state this really is. Many seem to be paranoid about the USFWS Gestapo which to me seem more mythical than real. For a citizen with very little to confiscate, I think that 1) almost certainly nothing will happen, 2)if anything DID happen, USFWS now has to go to court and face the likelihood that their wanna-be interpretation is out to lunch. And then lawsuits from any illegal confiscations.

I think that what's more likely to happen, is that someone will either collect illegally, export from a state illegally, or import into a state illegally, in which case USFWS WILL have a Lacey Act violation. This will of course be widely viewed as validation of their views and enforcement of a transport ban, when in fact it's nothing of the sort.

 

[michael]

I don't know if I would "recommend" it. I don't have any opportunities to do it, but wouldn't hesitate. My main concern would be my immigrant status, and I don't know how much of a police state this really is. Many seem to be paranoid about the USFWS Gestapo which to me seem more mythical than real. For a citizen with very little to confiscate, I think that 1) almost certainly nothing will happen, 2)if anything DID happen, USFWS now has to go to court and face the likelihood that their wanna-be interpretation is out to lunch. And then lawsuits from any illegal confiscations.

.

I've dealt with USFW agents many times. I did everything legal and forthright. I found some agents to be deceptive, unhelpful, and not willing to fulfill commitments. Their lack of follow up on commitments and last minute changes are manipulative ways to make things more difficult for hobbyists following regulations.

 

[AdvythAF]

I've heard about the USFWS being corrupt, so this doesn't surprise me.

 

[FrogEyes]

Every time that I've dealt with them at or pertaining to the Canadian border, they've been above and beyond helpful. Perhaps though, these are a bit of a different "crowd", and get to deal with the law as it is actually written.

 

[Mark]

I'm not sure if this has already been linked on here but here's some meat on the bones of the FWS's stance on the movement of listed salamanders, permitted movement and definition of escape proof containment. Makes for interesting reading.

https://www.fws.gov/international/pdf/injurious-listed-salamanders-permits-guidance.pdf

 

[Chinadog]

I can see people becoming very careful before they talk openly about the collections they have.

 

[BwKilcoyne]

Did you see what they said about if you need to move across state lines what to do with your pet? The FWS says if you can't give it to someone to turn it in for disposition. That's crazy. Who in their right mind would turn in their pet to be killed, especially because it is purely because they need to move?

 

[josh1990]

Well that was a headache inducing read.:dizzy:
What about pathogen control? Double escape-proof containment won’t sterilize surfaces and kill the
pathogen.
That’s true. Double escape-proof containment will prevent escape and loss; however it doesn’t sterilize
surfaces. That requirement is outside our regulatory authority under the Lacey Act. The Lacey Act does
not authorize the Service to directly regulate pathogens; though the Service can list species because of
pathogens those species may carry. However, we strongly recommend and support all efforts that can
be taken to reduce or eliminate the chance that pathogens, such as Bsal, can be transmitted. Individuals
that handle injurious-listed salamanders are strongly encouraged to handle and maintain samples within
best sanitary practices for pathogen control.

The ban is totally based on stopping the spread of a pathogen (which they clearly state) right there they would be breaking the Lacy Act. Okay so it totally legal to ban these animals because they may have bsal? I think my B.S. meter just went off. This is illegal and a knee-jerk reaction to stop the spread of bsal and most likely just to kill the hobby because Save The Frogs & Save The Salamanders (the PETA of the herp world) said it was the best action to take instead of consulting independent and non biased experts on amphibians to get a different set of opinions. This is just the start of trying to kill of the entire hobby of breeding and selling herptiles; they just started with the low hanging fruit. I hope the USARK lawsuit will over-turn this idiotic ban and let people enjoy what they love. I have been through a lot of illness in my life and taking care of my herps got me through some dark times, they can go pound sand.:angry:

 

[FrogEyes]

Definitely interesting reading. Ridiculous in two ways, but interesting.

First, the double containment is ridiculous, pure and simple. An animal with a permit requires double containment for it and all its descendants, in perpetuity. The double containment in itself isn't a problem, realistically. However, the same species without a permit, can be freely bought, sold, and reproduced forever, including movement of eggs across state lines. Foolish double standard which effectively DIScourages use of permits.

Second, the Lacey Act does not in fact, in text, or in original proposals, prohibit interstate movement of injurious species. So despite USFWS claims...they're wrong...

"The injurious species provision prohibits “the importation into the United States ... or any shipment between [the States]” of any listed animals, their offspring, or eggs." [http://nationalaglawcenter.org/wp-content/uploads/assets/crs/R43170.pdf page 1]

This BEGINS to help, but as I'll point out later, is abbreviated in a way which actually further detracts from what the law truly says. A first point is the use of "shipment". As the same document discusses, "However, there is a legal question as to whether FWS’s interpretation of the injurious species ban properly extends to transport, rather than only to import and shipment, as stated by the law" [summary]. Court precedent, and guidelines followed for passing judgement, dictate that when wording must be clarified, the following must be considered: 1) where terms are defined within the law, those definitions must be applied. When there is differential usage, those differences must be maintained. "Shipping" is defined and applied in contexts which exclusively involve commercial movements. "Transport" is used in contexts in which movements are not limited to commerce. Lacey Act says "shipping", USFWS says "transport", and they're NOT the same thing [see also page 6, 13, and other sections of above]. 2) where the wording is otherwise vague, does the government [ie, USFWS] interpretation fall within acceptable interpretation? I would say "no", but in this case the wording isn't vague, so the question is moot. 3) if the wording is vague, congressional intent must be considered. Did Congress INTEND to ban all interstate movements of "injurious species"? No, they did not. The first quote I provided above is part of the problem - it's incomplete and thus obscures the true intent and meaning of the law, which reads more completely thus; "The importation into the United States, any territory of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any possession of the United States, or 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 the mongoose of the species Herpestes auropunctatus; of the species of so-called “flying foxes” or fruit bats of the genus Pteropus; of the zebra mussel of the species Dreissena polymorpha; of the bighead carp of the species Hypophthalmichthys nobilis; and such other species of wild mammals, wild birds, fish (including mollusks and crustacea), amphibians, reptiles, brown tree snakes, or the offspring or eggs of any of the foregoing which the Secretary of the Interior may prescribe by regulation to be injurious to human beings, to the interests of agriculture, horticulture, forestry, or to wildlife or the wildlife resources of the United States, is hereby prohibited."

Nowhere does it say "transport". In fact, nowhere does it say "between the states" either. It specifies four places and one category of places between, but not within, which shipping is barred. Only one state, which is part of the USA, but not part of CONUS [military - "CONtinental US] is mentioned by name. The remainder are part of a single unit which you cannot "ship" into. Shipping between Montana and Guam is illegal. Shipping [or transport] between Pennsylvania and Arizona, is not, since both are within CONUS and there is no shipping between the single entity "continental United States" and elsewhere. See also PIJAC submitted comments and similar SBA comments (https://www.sba.gov/sites/default/files/Bsal_in_Salamanders_Comment_Letter.pdf). It's worth noting that in 1974, a USFWS representative testified in favor of this interpretation, which was followed by USFWS in the 1970s. The District Court for DC has also recently rejected current USFWS interpretation, in their temporary injunction favoring USARK and certain python and boa breeders. From USARK's case (http://usark.org/wp-content/uploads/2015/04/USARK_Memoradum_of_Law_in_Support_of_PI-4.1.15.pdf) "FWS special agent-in-charge Richard Parsons explained that, “there is no restriction

that we find in section 42 of the Lacey Act to interstate shipments, with the possible exception of restrictions from areas off the continental United States, such as Puerto Rico, the Virgin Islands, and Hawaii.”"​

​

See footnotes from the latter two documents for the actual propositions before Congress in 1974/1975 - they're absolutely clear that the ban would not apply to transport between the 49 continental states. Both documents are interesting and informative reading in their wholes.​

​

A further point, which is perhaps not worth even getting into [also discussed in Tim Hermann's submitted comments and in the last two documents] is the point that the "injurious species" provisions were initially and explicitly "foreign". While the word "foreign" was later dropped, the intent was not: any attempt to expand the law to specifically apply to native species was rejected. Consequently, there is no indication that a native species [Taricha, Siren, Plethodon, Notophthalmus, etc.] may actually legally be designated 'injurious'.​

​

So, on the whole, I would conclude that if you transport, or even "ship" an 'injurious' salamander within the 49 continental United States [especially a native species, but excepting other illegal activities tied to the animals], you would not be in violation of the Lacey Act. Sure, USFWS MIGHT [if they have the resources...resources which only allow them 1 or 2 people per year to research injurious species] confiscate, 'charge', and prosecute you...but you would not be breaking the law.​

 

[manderkeeper]

Just hang tight a little longer, regardless of the outcome of the court case, you don't want to end up in federal court. Regardless of legal obligation, all of us should be getting our animals tested.. It's a shame that USFW makes everyone so defensive that we cannot even focus on our role in solving the problem because we're so paranoid about what crazy rule they will implement next.

 

[Jake]

Now turn your attention to page 4/15:

https://www.fws.gov/international/pdf/injurious-listed-salamanders-permits-guidance.pdf
................................................................................................................................................
"Do I need a permit?

I’m sending injurious-listed salamanders or samples across state lines for the first time. Who has to
get a permit?

The receiving facility should apply for a multiple use interstate movement permit for authorization to
acquire the specimens. They can then receive samples from any sender.

I’m receiving injurious-listed salamanders or samples across state lines for the first time. Who has to
get a permit?

You need a permit. You should apply for a multiple use interstate movement permit to acquire the
specimens. Once you have that you can receive samples from any sender in any state for a period of
three years. "
.....................................................................................................................................................


So am I understanding this right, we can ship the salamanders to anyone over state lines and it's entirely the person on the receiving end's responsibility to get the permit? It doesn't say they need to prove they have it to the sender.....honesty policy?