USARK Legal Position Update

Mar 26, 2014
The Reptile Report
by Editor in Chief

The Reptile Report - Once again some erroneous and misleading information regarding anti-reptile legislation has been brought forward by Herp Alliance. Here is a statement from USARK legal counsel clarifying a number of important issues.

A Statement from Kelley Drye & Warren:

We, at Kelley Drye, have been made aware of recent postings on the Herp Alliance website re: the ongoing legal challenge by USARK to the US Fish and Wildlife Service’s Lacey Act listing of the Burmese python and three other non-native species of constricting snakes.

While we welcome a robust discussion of the issues and legal theories in the challenge, it is important to ensure these discussions are based on an understanding of the administrative law process and legal theory under the Lacey Act, as well as USARK’s litigation team.

First, one of the primary attorneys of record in the case, Shaun Gehan, remains very much a part of the Kelley Drye/USARK legal team. While Mr. Gehan has formed an independent firm focused on natural resources and regulatory law, he continues to serve as consulting counsel with KDW and, therefore, continues as a primary counsel on the USARK case. We could not have a better or more knowledgeable advocate for the industry.

Secondly, HA raises concerns over the potential costs of the challenge, and in doing so, demonstrates a lack of knowledge of the legal process in a regulatory/administrative law challenge. For example, there is no resource-intensive “discovery” process, as in traditional civil litigation. Rather, the government produces the materials that comprise the “administrative record” – including comments, analyses, and other materials on which the regulatory decision was based. The judge makes a ruling based on the existing “record”.

HA is further critical of USARK for not seeking monetary damages in its action for injunctive relief and declaratory judgment. Again, this demonstrates a misunderstanding of the law. There is no cause of action for monetary damages under a Lacey Act challenge. USARK intentionally chose the Lacey Act and NEPA challenge in lieu of what would likely have been a futile “takings” claim in the Court of Federal Claims. Federal law requires plaintiffs to choose between the two.

Based on our extensive experience in these types of cases, we developed a reasonable budget for USARK, and we are committed to seeing the case through to its completion. And while there are no guarantees in terms of outcome when challenging a government action, we believe there is a strong case for USARK to make.

For those who are truly interested in the facts and theory of the case, as well as a discussion of the process and anticipated next steps, this information can be found on the USARK website, where regular posts are made in an effort to keep the community informed. Our goal is, and always has been, to help protect USARK and its members from unwarranted government regulation and interference.

Kelley Drye & Warren

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