United States Association of Reptile Keepers, Inc. v. Jewell , 103 F. Supp. 3d 133 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES ASSOCIATION OF )
REPTILE KEEPERS, INC., )
)
Plaintiff, )
)
v. ) Civil Action No. 13-2007 (RDM)
)
THE HONORABLE SALLY JEWELL, )
et al., )
)
Defendants. )
)
MEMORANDUM OPINION
The Department of the Interior undeniably has the authority to prohibit the importation of
species of wild animals deemed by the Congress or the Department to be injurious to human
beings, agriculture, horticulture, forestry or other wildlife. This case presents the question
whether Congress has also authorized the Interior Department to ban the interstate transportation
of these “injurious species.” The case addresses, in particular, whether the Department acted
within its authority when it issued regulations purporting to prohibit the interstate transportation
of certain species of large constricting snakes, including the reticulated python, which can grow
to over 20 feet in length, and the green anaconda, which is almost certainly the heaviest snake in
the world. Ultimately, however, the scope of the Interior Department’s authority to regulate the
interstate transportation of “injurious species” depends on the history of the zebra mussel, which
is a mollusk about the size of a quarter, and the bighead carp, which is a freshwater fish with a
voracious appetite. For the reasons explained below, Defendants have failed to establish at this
point in the litigation that this history is sufficient to confer an authority on the Department that
Congress did not confer when it enacted the controlling statutory text.
Before the Court is Plaintiffs’ motion for a preliminary injunction (Dkt. 28). Plaintiffs
seek an order enjoining the Secretary of the Interior, Sally Jewell, and the U.S. Fish and Wildlife
Service (collectively, “Defendants”) from implementing the final rule promulgated on March 10,
2015, which adds four species of constricting snakes to the list of injurious species under the
Lacey Act, 18 U.S.C. § 42. A hearing on the motion was held on April 7, 2015, and, upon
consideration of the parties’ arguments and submissions, and for the reasons explained below,
the motion is GRANTED in part and a preliminary injunction will issue. In light of the
requirement that injunctive relief be “narrowly tailored to remedy the specific harm shown,”
Neb. Dep’t of Health & Human Servs. v. Dep’t of Health & Human Servs., 435 F.3d 326, 330
(D.C. Cir. 2006), the parties are ORDERED to submit supplemental briefs on the proper scope
of the injunction and whether a brief stay is appropriate. The parties are further ORDERED to
appear for a status conference on May 18, 2015 at 10:00 AM to address the scope of the
injunction. The Court will issue a preliminary injunction after hearing from the parties regarding
its proper scope.
BACKGROUND
This action challenges rules promulgated by the Department of the Interior
(“Department”) that prohibit the importation and interstate transportation of certain species of
constricting snakes. In 2010, the Department proposed a rule listing nine constricting snake
species as “injurious” under the Lacey Act, 18 U.S.C. § 42. See 75 Fed. Reg. 11808 (March 12,
2010). When the Secretary of the Interior designates a species as “injurious to human beings, . . .
agriculture, horticulture, forestry, or . . . wildlife or the wildlife resources of the United States,”
the Lacey Act prohibits “importation” of that species “into the United States, any territory of the
United States, the District of Columbia, the Commonwealth of Puerto Rico, or any possession of
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the United States.” 18 U.S.C. § 42(a)(1). It also prohibits “any shipment” of the species
“between the continental United States, the District of Columbia, Hawaii, the Commonwealth of
Puerto Rico, or any possession of the United States.” Id.
On January 23, 2012, after a notice and comment period, the Department issued a final
rule listing four of the nine species as “injurious.” 77 Fed. Reg. 3330 (Jan. 23, 2012) (the “2012
Rule”). The rule prohibited “the importation into the United States and interstate transportation
between States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or
possession of the United States of any live animal, gamete, viable egg, or hybrid” of those four
snakes. Id.
The United States Association of Reptile Keepers (“USARK”) filed this lawsuit on
December 18, 2013. On May 9, 2014, with leave of the Court, USARK filed an amended
complaint alleging (1) that the ban on interstate transportation of listed species in the 2012 Rule
exceeded the Interior Department’s powers under the Lacey Act (Dkt. 21 ¶¶ 78-84); (2) that the
2012 Rule failed to comply with the requirements of the National Environmental Policy Act
(“NEPA”) (Dkt. 21 ¶¶ 85-94); and (3) that in promulgating the 2012 Rule the Department of the
Interior abused its discretion and acted arbitrarily and capriciously (Dkt. 21 ¶¶ 95-97).
Defendants moved to dismiss the amended complaint (Dkt. 22).
On March 10, 2015, the Interior Department promulgated another final rule listing four
additional constricting snake species—the reticulated python, DeSchauensee’s anaconda, green
anaconda, and Beni anaconda—as “injurious.” 80 Fed. Reg. 12702 (Mar. 10, 2015) (the “2015
Rule”). Like the 2012 Rule, the 2015 Rule prohibited both “importation” and “interstate
transportation between States” of the newly listed species. 1 Id. It explained that two of the listed
1
The language prohibiting interstate transportation of the listed species appears in the preamble
to the 2015 Rule. As Defendants acknowledge, “[a]n agency’s interpretation of a statute in the
3
species—the reticulated python and the green anaconda—were among the “largest snakes in the
world”; that both were already “present in U.S. trade”; and that examples of both “ha[d] been
found in the wild in south Florida.” Id. at 12704. The Department was chastened by its
experience with the Burmese python, which it cited as an “example of a species that may not
have become so invasive in Florida if it had been listed before it had become established.” Id.
And it noted that the listed snakes were “highly likely to prey on U.S. native species” and, if
introduced into the wild, would rank among the most powerful predators in North America. Id.
at 12713 (reticulated python); see id. at 12716-17 (green anaconda). The 2015 Rule took effect
on April 9, 2015—30 days after the final rule was published.
USARK moved for leave to file a Second Amended Complaint on March 23, 2015. Dkt.
27. The Second Amended Complaint challenges both the 2012 and 2015 Rules. In addition to
the arguments raised in the First Amended Complaint, it alleges that the Rules’ prohibition on
interstate transportation of listed snakes impermissibly burdens snake owners’ constitutional
right to travel (Dkt. 38 ¶¶ 109-117) and that the Interior Department failed to satisfy the
requirements of the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. (Dkt. 27-1 ¶¶ 131-135).
The Second Amended Complaint also adds four individual plaintiffs, all of whom allege that
they will be harmed by one or both of the challenged Rules. Dkt. 38 ¶¶ 13-16. The Court
granted the motion for leave to amend on April 8, 2015. Dkt. 37.
On April 1, 2015, Plaintiffs filed an Application for Temporary Restraining Order. Dkt.
28 (“TRO Application”). The TRO Application sought to enjoin implementation of the 2015
Rule. Plaintiffs argued that they are likely to prevail on the merits based on their statutory
preamble to a rule may be subject to challenge.” Dkt. 44 at 4 (citing Fertilizer Inst. v. EPA, 935
F.2d 1303, 1308-09 (D.C. Cir. 1991) (invalidating statutory interpretation that was set out in
preamble to promulgated rule)).
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construction and Regulatory Flexibility Act arguments. 2 They further argued that the individual
plaintiffs and members of USARK will suffer irreparable harm if the 2015 Rule takes effect.
The TRO Application addressed only the reticulated python and green anaconda; Plaintiffs
acknowledge that “[t]he other two species” listed in the 2015 Rule, “the Beni and
DeSchauensee’s anaconda, are not even found in the United States, in trade or otherwise.” Id. at
4. Thus, Plaintiffs have not requested that the Court enjoin application of the 2015 Rule as to
those snakes (and it is unlikely Plaintiffs would have standing to do so). After briefing on the
TRO Application, the Court held a hearing on the application. At the hearing, the parties agreed
the TRO Application could be treated as a motion for a preliminary injunction; accordingly, the
Court denied the request for immediate relief and ordered the parties to submit supplemental
briefing on a number of issues. See Dkt. 37; Dkts. 44, 45, 48, 49. 3 The motion for a preliminary
injunction is now before the Court.
LEGAL STANDARD
To prevail on a motion for a preliminary injunction, the party seeking relief must show
“(1) a substantial likelihood of success on the merits; (2) that the moving party would suffer
irreparable injury if the relief were not granted; (3) that the balance of equities tips in the
movant’s favor; and (4) that an injunction is in the public interest.” EDF Res. Capital, Inc. v.
U.S. Small Bus. Admin., 910 F. Supp. 2d 280, 283 (citing Chaplaincy of Full Gospel Churches v.
England, 454 F.3d 290, 297 (D.C. Cir. 2006)). The Court of Appeals for this Circuit long
evaluated these factors on a “sliding scale.” E.g., Davenport v. Int’l Bhd. of Teamsters, AFL-
2
Because those claims will require review of the yet-unfiled administrative record, Plaintiffs
assert that they do not rely on their NEPA and arbitrary-and-capricious claims for purposes of
the TRO Application. Dkt. 28-1 at 14.
3
The Court also received amicus briefs from the Humane Society of the United States (see Dkt.
39) and the Center for Invasive Species Prevention, the Natural Areas Association, and the
Wildlife Society (see Dkt. 47). The Court thanks amici for their assistance in this matter.
5
CIO, 166 F.3d 356, 360-61 (D.C. Cir. 1999). It has recently read the Supreme Court’s decision
in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), however, “at least to
suggest if not to hold” that plaintiffs face “a more demanding burden” under which “a likelihood
of success is an independent, freestanding requirement for a preliminary injunction,” Sherley v.
Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011) (quotation marks omitted). This issue remains
the subject of some uncertainty in this Circuit. See Am. Meat Inst. v. U.S. Dep’t of Agric., 746
F.3d 1065, 1074 (D.C. Cir. 2014), reinstated in relevant part by 760 F.3d 18 (D.C. Cir. 2014) (en
banc) (“[t]his circuit has repeatedly declined to take sides . . . on the question of whether
likelihood of success on the merits is a freestanding threshold requirement to issuance of a
preliminary injunction”). Nonetheless, it is clear that the plaintiff’s likelihood of success on the
merits is a “key issue [and] often the dispositive one” at the preliminary injunction stage.
Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dep’t of Hous. & Urban Dev., 639 F.3d
1078, 1083 (D.C. Cir. 2011). At a minimum, where movants make “a weak showing on the first
factor,” they need “to show that all three of the other factors so much favor the [movants] that
they need only have raised a serious legal question on the merits.” Am. Meat Inst., 746 F.3d at
1074 (quotation marks omitted).
DISCUSSION
I. Likelihood of Success on the Merits
Plaintiffs rely on their statutory construction and Regulatory Flexibility Act claims in
their attempt to show that they are likely to succeed on the merits. Because the Court concludes
that there is a substantial likelihood that Plaintiffs will prevail on their statutory construction
claim, Plaintiffs have satisfied this prong of the preliminary injunction test.
A. Plaintiffs’ Statutory Construction Claim
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The crux of Plaintiffs’ statutory construction claim is their contention that, with the
exception of Hawaii, the Lacey Act does not prohibit interstate shipment of species listed as
“injurious” by the Department of the Interior. Defendants dispute this contention, and further
argue that Plaintiffs’ claim is barred by the applicable statute of limitations.
1. The Statute of Limitations
Defendants argue, as a threshold matter, that the Court lacks jurisdiction to review
Plaintiffs’ statutory construction claim because that claim is time-barred under the six-year
statute of limitations in 28 U.S.C. § 2401(a). 4 They claim that, although the preamble to the
2015 Rule states that the Rule’s effect is to prohibit interstate transport of the four listed species,
the prohibition actually stems from the Interior Department’s 1965 Lacey Act regulations
(50 C.F.R. § 16.3; the “1965 Regulations”). They reason that because the 1965 Regulations
prohibited interstate transportation of listed species, and the 2015 Rule simply listed the four
species at issue here, any claim challenging the prohibition on interstate transportation of listed
species accrued in 1965 and must have been brought before 1971.
This argument has a serious flaw. The 1965 Regulations do not “interpret” the Lacey
Act’s language governing transportation of listed species within the territory of the United
States; they simply copy the relevant language. Compare 50 C.F.R. § 16.3 (“the transportation
of live wildlife or eggs thereof between the continental United States, the District of Columbia,
4
As Defendants note, the Court of Appeals for this Circuit has held that the limitation period
prescribed in § 2401 is jurisdictional. See Spannaus v. U.S. Dept. of Justice, 824 F.2d 52, 55
(D.C. Cir. 1987) (section 2401 creates a “jurisdictional condition attached to the government’s
waiver of sovereign immunity”). This proposition has been called into question by some courts
in light of recent Supreme Court decisions criticizing overuse of the “jurisdictional” label. See
Appalachian Voices v. McCarthy, 989 F. Supp. 2d 30, 44 n.5 (D.D.C. 2013) (citing Harris v.
FAA, 353 F.3d 1006, 1013 n.7 (D.C. Cir. 2004) and P & V Enters. v. U.S. Army Corps of Eng’rs,
516 F.3d 1021, 1026 (D.C. Cir. 2008)). The parties have not addressed whether characterization
of the limitation period in § 2401 as jurisdictional affects Plaintiff’s likelihood of success on the
merits, and the Court need not decide the question.
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Hawaii, the Commonwealth of Puerto Rico, or any territory or possession of the United States by
any means whatsoever, is prohibited . . .”) with 18 U.S.C. § 42(a)(1) (“any shipment between the
continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico,
or any possession of the United States . . . is hereby prohibited”). Plaintiffs’ claim challenging
Defendants’ interpretation of the Lacey Act cannot have accrued when the Department
promulgated regulations merely repeating the relevant language of the statute.
As a fallback position, Defendants argue that Plaintiffs’ claim accrued either when the
Department first interpreted the Lacey Act to bar interstate transportation of a listed species
(1989) or when the Fish and Wildlife Service first issued a rule purporting to bar interstate
transportation of a reptile species (1990)—ostensibly the first point at which USARK might have
had organizational standing to challenge the rule. 5 See 54 Fed. Reg. 22286, 22,287 (May 23,
1989); 55 Fed. Reg. 17439, 17440 (Apr. 25, 1990).
Defendants offer no convincing reason to treat these prior rules, rather than the 2012 and
2015 Rules, as the agency actions triggering the running of the limitation period under § 2401.
The limitation period under § 2401 begins to run on the date of the “final agency action,” Harris
v. FAA, 353 F.3d 1006, 1010 (D.C. Cir. 2004), which the Court of Appeals defines as “one by
which rights or obligations have been determined or from which legal consequences will flow,”
Mendoza v. Perez, 754 F.3d 1002, 1018 (D.C. Cir. 2014) (quotation marks omitted). “[A]n
agency’s renewal of an earlier decision [that] does not alter the status quo,” however, will not
“restart the statute of limitations.” Mendoza, 754 F.3d at 1018. The question, then, is whether
the 2012 and 2015 Rules were final agency actions that altered the status quo. Plainly, they
were. The Rules determined the rights of persons in the United States to transport animals of the
5
There is no evidence before the Court, however, that any member of USARK actually owned
or sought to transfer or acquire a brown tree snake during the relevant period of time.
8
listed species domestically and internationally, and the restrictions they imposed did not exist
before the final Rules took effect. A plaintiff who could lawfully transport reticulated pythons or
green anacondas across state lines in 2009 now cannot do so. The agency’s actions that made
that so triggered the start of the six-year limitation period here. See id. at 1019 (holding that
regulations that had “long existed” as to shepherds and goatherds re-started the limitation period
when they were extended to reach cattle herders).
Moreover, if a rule targeting a different species could start the limitation period under
these circumstances, the Interior Department could easily avoid facial review of new statutory
interpretations. The Department could simply announce a new interpretation with respect to a
listed species not present in the United States (like, for example, the Beni or DeSchauensee’s
anacondas), allow the six-year limitation period to run, and then promulgate new rules applying
that interpretation to far more popular species. There is no suggestion, of course, that the
Department has intentionally pursued such a strategy here, but the effect of its limitation
argument is to cut off a presumptively available avenue for judicial review. See Abbott Labs. v.
Gardner, 387 U.S. 136, 140 (1967) (“judicial review of a final agency action by an aggrieved
person will not be cut off unless there is persuasive reason to believe that such was the purpose
of Congress”). Nothing in the language of § 2401 compels the conclusion that Congress
intended to bar facial challenges to rules that extend previous agency interpretations to reach new
spheres of previously unregulated activity.
Finally, the Court notes that even were Defendants correct that the final agency action
establishing the Interior Department’s interpretation of the relevant statutory language took place
more than six years before Plaintiffs brought suit, the Department’s subsequent actions would
render this lawsuit timely because the Department re-opened the issue. “[A]n agency has
reopened a previously decided issue in a case where the agency (1) proposed to make some
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change in its rules or policies, (2) called for comments only on new or changed provisions, but at
the same time (3) explained the unchanged, republished portions, and (4) responded to at least
one comment aimed at the previously decided issue.” Public Citizen v. NRC, 901 F.2d 147, 150
(D.C. Cir. 1990). Here, the Department clearly “proposed to make some change in its rules or
policies” when it issued its proposed rule in 2010. See 75 Fed. Reg. 11808 (Mar 12, 2010). The
proposed rule “called for comments” on the listing of constrictor species under the Lacey Act.
See id. at 11811. It “explained the unchanged” interpretation of the Lacey Act that Plaintiffs
now challenge. See id. at 11808 (“The proposed rule, if made final, would also prohibit any
interstate transportation of live snakes, gametes, viable eggs, or hybrids of the nine species
currently held in the United States.”). And the Department “responded to at least one comment
aimed at” that issue. 80 Fed. Reg. 12702, 12732 (Mar. 10, 2015) (“Comment: . . . The Service
lacks the authority to restrict interstate transportation and commerce of a listed species between
and among continental States. Our response: The Service interprets the Lacey Act as giving us
the authority to restrict transportation between any of the States, territories, and other
jurisdictions (the District of Columbia) of the United States. We believe that this interpretation
is consistent with the language and intent of the statute.”).
Because the final agency action at issue was the promulgation of the 2015 Rule, and, in
any event, that Rule re-opened the question whether the Department’s interpretation of the
relevant Lacey Act provision is correct, this suit was timely filed.
2. Interpretation of the Lacey Act
Plaintiffs allege that, by prohibiting interstate transportation of listed snakes, the 2012
and 2015 Rules exceed the authority granted to the Secretary under the Lacey Act. The relevant
statutory language states:
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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 [certain enumerated species] 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.
18 U.S.C. § 42(a)(1) (emphasis added). Plaintiffs argue that the phrase “any shipment between
the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto
Rico, or any possession of the United States” does not encompass transportation of listed species
between two states within the “continental United States”—thus, in their view, the Interior
Department lacked authority to prohibit all interstate transportation of the four species at issue in
the 2015 Rule. Plaintiffs contend that the language and legislative history of the 1960
amendments unambiguously show that Congress “expressly intended to limit” transportation of
listed species “only between all forty-nine continental states as a singular entity and the other
listed jurisdictions (or between those jurisdictions), not within or between the continental states.”
Dkt. 28-1 at 20.
In response, Defendants argue that the Interior Department interpretation is compelled by
the plain language of the statute and bolstered by subsequent congressional actions, and, in the
alternative, that it is entitled to deference under Chevron, U.S.A. v. Natural Resources Defense
Council, 467 U.S. 837 (1984).
a. Chevron U.S.A. v. Natural Resources Defense Council
Under the framework set out in Chevron, a court reviewing an agency’s interpretation of
a statute first asks “whether Congress has directly spoken to the precise question at issue.” 467
U.S. at 842. “If the intent of Congress is clear, that is the end of the matter.” Id. However, if
11
“Congress has not directly addressed the precise question at issue . . . the question for the court is
whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843.
The principle in Chevron is “rooted in a background presumption . . . ‘that Congress, when it left
ambiguity in a statute’ administered by an agency, ‘understood that the ambiguity would be
resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to
possess whatever degree of discretion the ambiguity allows.’” City of Arlington, Tex. v. FCC,
133 S. Ct. 1863, 1868 (2013) (quoting Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 740-41
(1996)).
There is significant reason to doubt, however, whether Chevron applies in this context.
The Lacey Act is a criminal statute, see 18 U.S.C. § 42(b) (“Whoever violates this section, or any
regulation issued pursuant thereto, shall be fined under this title or imprisoned not more than six
months, or both.”), and the Supreme Court recently observed that it “ha[s] never held that the
Government’s reading of a criminal statute is entitled to any deference,” United States v. Apel,
134 S. Ct. 1144, 1151 (2014). Instead, “[w]hether the Government interprets a criminal statute
too broadly . . . or too narrowly . . . a court has an obligation to correct its error.” Abramski v.
United States, 134 S. Ct. 2259, 2274 (2014) (“We think [the agency’s] old position is no more
relevant than its current one—which is to say, not relevant at all.”). This principle is particularly
important where, as here, the government advances an “expansive view” of the scope of
activities that will subject citizens to criminal penalties. Whitman v. United States, 135 S. Ct.
352, 353 (2014) (Scalia, J., respecting the denial of certiorari). Deferring to such a view would
“upend ordinary principles of interpretation,” including the “rule of lenity[, which] requires
interpreters to resolve ambiguity in criminal laws in favor of defendants.” Id. In sum, recent
Supreme Court authority suggests that “criminal laws are for courts, not for the Government, to
construe.” Abramski, 134 S. Ct. at 2274.
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The Court of Appeals has not yet addressed the Supreme Court’s recent statements
suggesting that Chevron deference does not apply to agency interpretations of criminal statutes.
On at least two occasions before the Supreme Court’s decision in Apel and Abramski, it did
apply Chevron to agency interpretations of statutes that imposed criminal penalties. See United
States v. Kanchanalak, 192 F.3d 1037, 1047 (D.C. Cir. 1999) (in a criminal case, applying
Chevron and deferring to FEC’s interpretation of statute regulating foreign soft money
contributions); In re Sealed Case, 223 F.3d 775, 780 (in a criminal case, applying Chevron
deference to reject statutory interpretation that had been rejected by the FEC). Although it is not
clear whether the Court of Appeals would follow this practice after Apel and Abramski, there is
no need to reach that question here. Rather, as explained below, the Court concludes that, when
Congress amended the Lacey Act in 1960, it did not leave an ambiguity or gap for the Interior
Department to fill on the fundamental question whether the Act applies to all interstate shipments
of listed species or merely shipments between the continental United States and other portions of
the territorial United States. Thus, regardless whether Chevron applies, Plaintiffs have
demonstrated a likelihood of success on this claim.
b. Plain Meaning of the Statute
Whether proceeding under Chevron or not, the Court must “exhaust the traditional tools
of statutory construction to determine” the plain language of the statute, including “examination
of the statute’s text, legislative history, and structure, as well as its purpose.” Petit v. U.S. Dept.
of Educ., 675 F.3d 769, 781 (D.C. Cir. 2012) (quotation marks omitted). This inquiry “begins
where all such inquiries must begin: with the language of the statute itself.” United States v. Ron
Pair Enters., Inc., 489 U.S. 235, 241 (1989). Here, the statutory phrase “any shipment between
the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto
Rico, or any possession of the United States” does not, standing alone, compel either side’s
13
interpretation. The jarring juxtaposition of “between” and “or” renders the whole statement
grammatically confounding, and neither party’s plain-language argument settles the question.
Plaintiffs, for example, could make a strong case that the statute targeted only the spread
of invasive species between “the continental United States” and its insular state and territories—
areas whose unique biodiversity could be threatened by imports from “the continental United
States,” and vice-versa. In this view, the “continental United States” is a single, undifferentiated
entity—the portion of the United States located on the North American continent. On this
reading, though, the separate inclusion of the District of Columbia is baffling. It is unclear why
transportation of injurious species between Maryland and the District would merit prohibition
while transportation of the same species from Maryland to Virginia could persist unabated. And
although Plaintiffs point to other statutes referring to transportation “between the continental
United States and” other locales, see Dkt. 45 at 5, these statutes shed little light on the proper
interpretation of the perplexing “between . . . or” construction in the Lacey Act.
Defendants’ interpretation, on the other hand, treats the “continental United States” as a
set of separate entities between which transportation may be prohibited. This interpretation
avoids the problems noted above, but creates difficulties of its own. Congress could easily have
used much clearer language if it wished to bar all interstate transportation of listed species. And,
even though Hawaii had only recently become a State, it is puzzling that in 1960, Congress listed
the “continental United States” and Hawaii separately, rather than simply referring to
transportation between the “States.”
The problem with Defendants’ position is heightened by the fact that Congress used very
different language to prohibit the interstate transportation of certain wildlife species in another
provision of the 1960 Lacey Act amendments. Amending former 18 U.S.C. § 43—now codified
at 16 U.S.C. § 3372—Congress replaced the phrase “whoever delivers or knowingly receives for
14
shipment, transportation, or carriage in interstate or foreign commerce” with the following
formulation:
Whoever delivers, carries, transports, ships, by any means whatever, or
knowingly receives for shipment, to or from any State, territory, the District of
Columbia, the Commonwealth of Puerto Rico, any possession of the United
States, or any foreign country[.]
Pub. L. 86-702 (1960) (emphasis added); see Dkt. 31-1 at 13-14. The clear language used to
prohibit interstate shipment of listed species under former § 43 strongly suggests that Congress
did not intend the prohibition on shipments under § 42 to reach as broadly as Defendants
contend. On balance, Plaintiffs thus offer the slightly better reading of the text. Still, in light of
the difficulties plaguing both proffered interpretations, the Court concludes that the language of
the statute, standing alone, does not conclusively foreclose either of the interpretations advanced
here.
Because the language of the Lacey Act does not compel either side’s interpretation, the
Court looks to the statute’s legislative history to determine its plain meaning. See Petit, 675 F.3d
at 781. In this case, the legislative history of the 1960 Lacey Act amendments unambiguously
supports Plaintiffs’ position.
The 1960 amendments to the Lacey Act were drafted by the Department of the Interior
and forwarded to Congress in early 1960. Dkt. 31-1 at 40. Prior to the 1960 amendments, the
Lacey Act prohibited “importation into the United States or any Territory or district thereof” of
listed species, but did not address their domestic transportation. See Dkt. 31-1 at 6. A
Department of the Interior witness who testified before a subcommittee of the House Judiciary
Committee regarding the proposed amendments spoke directly to the purpose of the proposed
language:
Mr. Parker. . . . And we have broadened the language a bit to prohibit the
shipment between the Continental United States and Hawaii, Puerto Rico, and the
15
Virgin Islands of the Mongoose, for this reason: Currently, the Mongoose occurs
in Hawaii, Puerto Rico, and the Virgin Islands . . . and we have no desire to have
them introduced in the United States other than under strict regulations.
Dkt. 31-1 at 48 (emphasis added). This explanation supports the conclusion that the relevant
language was added to the statute to prevent the spread of invasive species between Hawaii and
overseas possessions and the continental United States. Not only did the Interior Department
witness describe the immediate purpose of the provision in these narrow terms, but he explained
that the prior version of the Lacey Act was broadened only “a bit.” That description is at odds
with Defendants’ argument. Amending a law that previously reached only foreign imports to
criminalize all interstate shipments of listed species would have gone far beyond an incremental
broadening of the statute’s scope.
The Department of the Interior’s testimony also describes the amendment in terms that
avoid the textual ambiguity described above. According to the Department’s witness, the
amendment “prohibit[s] the shipment between the Continental United States and Hawaii, Puerto
Rico, and the Virgin Islands.” Id. (emphasis added). Although directed at the problem of the
mongoose, this description of the law’s reach is unambiguous: It reaches shipments between
“the Continental United States” and the offshore portions of the territorial United States.
Other statements in the legislative history confirm that the language was not intended
dramatically to expand the scope of conduct prohibited under the Lacey Act. Before the 1960
amendments, the Lacey Act barred “importation into the United States or, any Territory or
district thereof” of listed species, but did not address their domestic transportation. Dkt. 31-1 at
12-13. The Department of the Interior’s statement describing the draft legislation as “a bill to
clarify certain provisions of the criminal code,” id. at 10 (emphasis added), suggests that the
agency that drafted the legislation did not intend to ask that Congress criminalize a broad swath
16
of previously legal activity. 6 Importantly, the House and Senate committee reports on the
legislation confirm that view. The House Report described the legislation as “clarifying certain
provisions of the criminal code relating to the importation or shipment of injurious [animals],”
and noted that the “amendments [were] technical in nature and designed to bring the legislation
in accord with the general structure of title 18, United States Code.” Dkt. 31-1 at 7-8. The
Senate Report used very similar language. Id. at 15-16 (“The purpose of the bill is to clarify and
to make more inclusive, in the interest of good administration and enforcement, certain
provisions of the Criminal Code . . . .”).
Even more striking is the absence in either the House or Senate Reports of any discussion
of whether, or how, the law might apply to purely domestic shipments within the continental
United States. When describing which agencies would implement the amendment, the
Department of the Interior stated that the Secretary would “establish a permit system,” the
Department “would need to check the facilities of applicants for such permits, and also issue the
permits,” and “[i]t would fall to the U.S. Customs Service to effect inspection at the points of
entry and reject or admit such items on the basis of existing regulations and appropriate related
permits.” Id. at 43 (emphasis added). The Interior Department never described any plan or
proposed delegation of authority to investigate interstate shipment of listed species.
The Department’s testimony also indicates that it was aware that criminal statutes are
interpreted narrowly and that it took care when drafting the legislation to speak unambiguously
6
Other portions of the Department’s testimony note that the amendment was “aimed [at
reducing] more effectively the hazards arising from the importation of injurious wild animals, [at
curtailing] traffic in such species, [at defining] the types of wild animals and methods of
transportation to which the code applies, and otherwise [at clarifying] the code in the interest of
good administration and law enforcement.” Dkt. 31-1 at 40-41. None of this, however,
addresses the scope of the “traffic” that Congress sought to “curtail.” This more general
language, moreover, does not distinguish between the amendments to § 42, which previously
applied only to imports, and former § 43, which previously applied to interstate transportation of
animals taken or possessed in violation of state or federal law.
17
where it intended to expand the scope of prohibited conduct. When discussing amendments to
former § 43, which prohibits transportation of species possessed or taken in violation of state or
federal law, the Department noted that it “must be borne in mind that the statute is penal in
nature and under a well-established rule of construction it must be construed strictly and all
reasonable doubts in its interpretation resolved in favor of persons accused of violating its
provisions.” Dkt. 31-1 at 45. It strains credulity to imagine that criminal legislation drafted and
enacted with this principle in mind would adopt a sweeping expansion of the conduct it
prohibited through the (at best) obscure language at issue here, without any mention by the
Department of the Interior or the congressional committees of jurisdiction. The Court has been
unable to identify any evidence—and Defendants have not pointed to any—that Congress or the
Department of the Interior believed in 1960 that the Lacey Act amendments would prohibit all
interstate transportation of listed species.
The narrow reach of the 1960 amendments is confirmed, moreover, by the Department of
the Interior’s consistent interpretation in the two decades following their enactment. Beginning
in 1973, the Department issued a series of proposals that would have effectively reversed the
species-designation procedure under the Lacey Act: Rather than enumerate a list of injurious
species, the Interior Department proposed categorizing all species as injurious by default,
exempting only those it determined to be “low risk.” See 38 Fed. Reg. 34970 (Dec. 20, 1973).
In the course of this rulemaking effort, the Department repeatedly proposed rules that explicitly
adopted the narrow reading of the Lacey Act’s prohibition on shipments of listed species. See 40
Fed. Reg. 7935, 7936 (Feb. 24, 1975) (“Interstate shipments are not affected, except shipments
between noncontinental parts of the United States (island ecosystems such as Hawaii and Puerto
Rico) and the continental United States.”); 42 Fed. Reg. 12972, 12974 (Mar. 7, 1977) (“Pursuant
to the statute, the proposed regulations would also prohibit the shipment of injurious wildlife
18
between any two of the following geographic areas: the continental United States, the State of
Hawaii, Puerto Rico, or any possession of the United States.”).
A Department representative confirmed this view in a 1974 hearing before the House
Subcommittee on Fisheries and Wildlife Conservation and the Environment. When asked how
the proposed rule would address “the problem of exotic species that are already in this country,”
a witness from the Fish and Wildlife Service testified that “there [was] no restriction . . . 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.” Dkt. 28-3 at 3. Thus, “the breeder of pheasants, or black buck, or what have you, in
the United States [would] not have any restrictions on the movement or possession of the
animals that are already present in the United States. The restrictions . . . apply to importations.”
Id.
The Department of the Interior did not ultimately adopt its injurious-by-default approach
in a final rule, but its statements in proposed rules and in testimony before Congress made clear
that the Department did not understand the Lacey Act to prohibit interstate shipments of
injurious species, with the “possible exception” of shipments between outlying territories and the
continental United States. This evidence reflects the view of the agency that drafted the 1960
Lacey Act amendments and confirms the clear import of the amendments’ legislative history. It
also vindicates the better reading of the admittedly unclear language of the Lacey Act itself. In
light of these considerations and applying the “traditional tools of statutory construction,” the
Court concludes that Plaintiffs’ interpretation reflects the unambiguous intent of Congress.
Thus, even were Chevron to apply, Plaintiffs would prevail at step one of the analysis because
Congress did not leave a gap for the agency to fill.
c. Subsequent Legislative History
19
Defendants base their contrary view of the legislative history on developments that took
place decades after the language at issue was enacted. At some point in the 1980s, the Interior
Department abandoned the interpretation of the relevant language that it had previously
presented to Congress and applied for approximately two decades. As noted above, in 1989 the
Department began inserting language in rules listing species as injurious that purported to
prohibit all interstate transportation of the listed species. See 54 Fed. Reg. 22286, 22287 (May
23, 1989) (“[I]nterstate transportation [of mitten crabs] . . . for any purpose not otherwise
permitted, would be prohibited.”). This view has been reflected in the legislative history of
subsequent amendments to the Lacey Act. In one case, Congress passed a law exempting a
water district’s pipeline from the Lacey Act because the pipeline would transport a listed species
across state lines. In two other cases, Congress has passed laws explicitly listing species under
the Act based, in part, on at least some members’ understanding that the Act would prohibit
interstate transportation of the newly listed species.
i. The 1990 zebra mussel legislation
The Department’s new view was promptly reflected in the legislative history of an
amendment to the Lacey Act. In 1990, Congress passed the Nonindigenous Aquatic Nuisance
Prevention and Control Act, Pub. L. 101-646, which, among other provisions aimed at limiting
the spread of the zebra mussel in the United States, amended 18 U.S.C. § 42 to list the zebra
mussel as an injurious species.
Congress was alarmed that the zebra mussel had, in the two years since it was first
discovered in the United States, “spread over a 10,000 square mile area, infesting the Lake Erie
shoreline from Detroit to Buffalo.” Dkt. 44-1 at 11 (1990) (statement of Sen. Specter). Zebra
mussels are unimposing mollusks about “the size of a quarter.” Id. They can affix themselves to
almost any surface, however, and form massive agglomerations large enough to block water
20
intake pipes. Id. They also reproduce prolifically and compete with local fish populations for
nutrients—so successfully that members of Congress predicted that economic damage
attributable to the zebra mussel could reach as much as $5 billion in the 1990s. Id. (“Projections
of the economic damage caused by the zebra mussel are $500 million each year in Lake Erie
alone and $3 to $4 billion for all areas impacted by the mussels in the next 10 years.”); see also
id. at 11-12 (“Some estimate that the combined costs of the damage to infrastructure and fishery
of the Lakes could climb to $5 billion over the next 10 years.”) (statement of Sen. Glenn); Pub.
L. 101-646 § 1002(a) (“the potential economic disruption . . . has been estimated at
$5,000,000,000 by the year 2000, and the potential disruption to the diversity and abundance of
native fish and other species could be severe”).
Congress also evinced concerns about the spread of the zebra mussel outside the Great
Lakes. Senator Glenn warned that it was “only a matter of time before the zebra mussel
infestation spreads to two-thirds of the Nation’s freshwater system unless we work to control it.”
Id. at 12; see also id. at 11 (“Experts anticipate that within 10 years this creature is likely to be
found in two-thirds of the United States”) (statement of Sen. Specter); Pub. L. 101-646 § 1002(a)
(“the zebra mussel . . . if left uncontrolled, is expected to infest over two-thirds of the continental
United States through the unintentional transportation of larvae and adults by vessels operating
in inland waters”). Senator Glenn explained, “[t]he bill also addresse[d] other probable
pathways of zebra mussel spread. In particular, it amende[d] the Lacey Act to prevent the
interstate transportation of the zebra mussel in commerce.” Dkt. 44-1 at 12 (emphasis added).
The Senate committee report on the zebra mussel legislation noted Congress’s finding that the
zebra mussel “currently infest[ed] the lower Great Lakes basin with the potential to spread to
areas outside the basin.” S. Rep. 101-523 (1990). Significantly, the report also stated that the
21
provision amending the Lacey Act “would lead to the prohibition of the interstate transport of
zebra mussels for commercial purposes.” Id. (emphasis added).
There is, however, at least one statement in the legislative history of the bill evincing the
Department’s original understanding of the Lacey Act’s scope. In written testimony on a similar
bill introduced in the House of Representatives, the Assistant Secretary for Fish and Wildlife and
Parks stated that “designation of zebra mussels as injurious wildlife” would “have no [e]ffect on
the interstate transport of zebra mussels.” Dkt. 50-1 at 32. She made an identical statement in
written testimony before a Senate subcommittee. Dkt. 50-2. This is inconsistent with the
Interior Department’s almost-concurrent statements in promulgated rules indicating that the
effect of a listing under the Lacey Act would be to ban interstate transportation of the listed
species. See 54 Fed. Reg. 22286, 22287 (May 23, 1989); 55 Fed. Reg. 17439, 17440 (Apr. 25,
1990). It injects at least some uncertainty into the 1990 legislative record.
ii. The 2010 bighead carp legislation
Twenty years after Congress amended the Lacey Act to list the zebra mussel as an
injurious species, it enacted the Asian Carp Prevention and Control Act to target another invasive
species. See Pub. L. 111-307 (2010). Once again, the legislative history of its amendment
suggested that Congress understood the Lacey Act to prohibit all interstate transportation of
listed species. Bighead carp—a species of Asian carp—can grow to five feet in length and more
than 100 pounds, and they eat up to 20 percent of their body weight per day in plankton,
depriving native aquatic species of needed nutrients. See, e.g., Margaret E. Vroman, The Asian
Carp: An Imminent Threat to the Great Lakes?, 90 Mich. Bar J. 25, 26 (2011). The species was
introduced into the United States from China in the 1970s “to eat the algae clotting fish farms in
the South,” but “a series of floods over the years helped them to escape their controlled
environment.” Dan Barry, On an Infested River, Battling Invaders Eye to Eye, The New York
22
Times, September 15, 2008 at A13 (“Cue the ‘Jaws’ theme.”). The species received wary
attention as it spread north up the Mississippi river in the decades following its introduction, but
concern intensified dramatically after researchers discovered bighead carp DNA “in the Great
Lakes vicinity” and past an electric dispersal barrier intended to repel the fish. S. Rep. 111-181
(2010).
These events spawned considerable congressional concern. Representatives noted that
“these enormous fish have become a menace to native species and their habitats,” Dkt. 44-5 at 2
(remarks of Rep. Poe), and worried that the bighead carp would “threaten not only the
commercial but recreational fishing” throughout the Great Lakes, id. (statement of Rep.
Conyers); see also id. at 3 (“Asian carp are the single greatest biological threat to [the Great
Lakes ecosystem].”) (statement of Rep. Biggert). Importantly, Congress appears not to have
acted under the impression that it could eradicate the bighead carp from the Mississippi—
instead, members focused on the need to “do everything possible to prevent these invasive fish
from harming other areas of the United States.” Id. (statement of Rep. Pitri).
Congress’s solution to the problem was a single-purpose law designating the bighead
carp as an injurious species under the Lacey Act. The legislative history contains a substantial
number of statements suggesting that Congress understood the listing would prohibit interstate
transportation of bighead carp. The Senate Report states that the legislation would “add the
bighead carp . . . to the list of injurious species that are prohibited from being traded in interstate
commerce or imported into the United States.” S. Rep. 111-181 (2010). Representative Conyers
described the bill as “prohibit[ing] importation and interstate shipment of certain species of carp
and . . . add[ing] the bighead variety of the species commonly known as Asian carp to the list of
injurious species that are prohibited from being shipped in or imported into the United States.”
Dkt. 44-5 at 2. Several other members of Congress made similar statements. See id. (“This
23
designation prohibits the importation and interstate shipment of Asian carp.”) (statement of Rep.
Poe); id. at 3 (“For many years . . . a number of us from the Great Lakes region have been urging
the Fish and Wildlife Service to include bighead carp on the list of injurious species under the
Lacey Act and so minimize the risk of further harm by prohibiting the importation and interstate
transportation of live Asian carp without a permit.”) (statement of Rep. Levin); 155 Cong. Rec.
7319 (2009) (“Listing the Bighead carp as injurious would minimize the risk of intentional
introduction by prohibiting the importation and interstate transportation of live Asian carp
without a permit”) (statement of Sen. Levin).
Plaintiffs note that other representatives who spoke on the bill did not indicate whether
they believed that a listing under the Lacey Act barred interstate transportation of the listed
species. See Dkt. 44-5 at 3 (Dec. 1, 2010) (“This legislation takes an important step in restricting
the transportation of the Big Head Asian Carp by listing it as an injurious species under the
Lacey Act, prohibiting this fish from being shipped or imported into the United States.”)
(Statement of Rep. Kaptur); id. (bill would add bighead carp to the “list of injurious species
under the Lacey Act and prevent their sale or importation into the United States”) (statement of
Rep. Biggert). Although Plaintiffs are correct that both mentioned importation without
discussing interstate shipments, both Representative Biggert and Representative Kaptur
previously signed a letter to the Fish and Wildlife Service (“FWS”) stating that “[l]isting these
fish would . . . prohibit interstate transportation.” Dkt. 44-3. Plaintiffs have not identified any
statement in the legislative history of the bighead carp bill that disputes or contradicts the Senate
report’s characterization of the law.
iii. The 2012 Lake Texoma legislation
A third, more recent legislative development also suggests that recent Congresses have
understood the Lacey Act to reach interstate transportation. In 2012, Congress passed a law that
24
exempted certain water transfers between Oklahoma and Texas from the Lacey Act. See Lake
Pontchartrain Basin Restoration Program, § 5, Pub. L. 112-237 (Dec. 28, 2012). In 1989, the
North Texas Municipal Water District (the “Water District”) obtained approval to construct a
pumping station that would transport water from Lake Texoma, a reservoir on the Red River, to
supply a reservoir in the Trinity River system. See H.R. Rep. 112-657 (2012). Unlike the Red
River, which forms much of the border between Oklahoma and Texas and flows east into the
Mississippi, the Trinity River flows south through eastern Texas into the Gulf of Mexico. In
2000, a realignment of the Texas-Oklahoma border left a portion of the Lake Texoma water
intake facility in Oklahoma. Id. Thus, when zebra mussels were discovered in Lake Texoma in
2009, the FWS advised the Water District that transfer of water out of Lake Texoma via the
intake facility would constitute a “violation of the Lacey Act because invasive zebra mussels
would be transported across state lines” and into the uninfested Trinity River basin. Id.
The Water District eventually determined that it would construct a closed pipeline
connecting the pumping station on Lake Texoma to a water treatment facility in Texas, “where
the zebra mussels w[ould] be completely destroyed.” Id. The FWS, however, “indicated [it]
lack[ed] the statutory authority to tell the Water District that this pipeline w[ould] comply with
the Lacey Act.” Id. The proposed legislation “solve[d]” this “problem . . . by recognizing that
the Lacey Act does not apply to the Lake Texoma water transfers.” Id. In a separate statement,
Representative Markey also noted that zebra mussels were “a species designated by the Fish and
Wildlife Service as ‘injurious’ and therefore illegal to transport across state lines,” and
emphasized that, although he supported the proposed legislation, he believed it “should not set a
precedent for making exemptions to the Lacey Act.” Id. This legislation, at a minimum, further
evidences recent congressional awareness of the Interior Department’s interpretation of the
Lacey Act.
25
d. Effect of the Subsequent History
The parties disagree about the significance of these post-enactment congressional actions.
According to Plaintiffs, the Department of the Interior’s interpretations of the Lacey Act in the
1970s confirm what Plaintiffs view to be the better reading of the statutory language—that the
Act does not bar interstate transportation of listed species within the continental United States.
The developments after 1980, in their view, have no interpretative significance. Dkt. 45 at 6.
Plaintiffs contend that these events reflect isolated congressional responses to “discrete
exigencies,” rather than any intent to re-evaluate the scope of the Lacey Act for all purposes. Id.
Plaintiffs emphasize that the zebra mussel and bighead carp bills received comparatively little
attention when they were enacted, id. at 8, and argue that, in any event, neither is sufficient to
establish that Congress ratified the Interior Department’s more recent interpretations of the
statute. Although they acknowledge that “reenactment” of a statute “without change after a
course of administrative interpretation is tantamount to legislative ratification of the
interpretation,” Thompson v. Clifford, 408 F.2d 154, 164 (D.C. Cir. 1968), they argue that the
Lacey Act has never been “reenacted” or so significantly amended to establish ratification, see
Dkt. 45 at 10-11 (citing Pub. Citizen, Inc. v. Dep’t of Health & Human Servs., 332 F.3d 654, 668
(D.C. Cir. 2003), and Alexander v. Sandoval, 532 U.S. 275, 292 (2001)). They also dispute that
Congress was, as a whole, sufficiently aware of Department’s more recent interpretations of the
Lacey Act to support an inference of ratification. See Dkt. 45 at 11.
Defendants, unsurprisingly, view the significance of these developments differently.
They note that the Department of the Interior’s statements in proposed rules and before Congress
in the 1970s were made in the course of an abortive regulatory effort that would have greatly
expanded the number of species listed under the Lacey Act. Although a more circumspect view
of the interstate transportation bar may have made sense in the context of that proposed scheme,
26
they assert that the Department was free to assume its current position when it abandoned that
effort. See Chevron, 467 U.S. at 863 (when an agency changes its interpretation of a statute, the
new interpretation is still entitled to deference so long as it is reasonable). Defendants also stress
that Congress actually amended the Lacey Act to list additional species after the committee
reports they cite, and that the amendments involved species that were already present in the
continental United States. Indeed, in Defendants’ view, the zebra mussel and bighead carp
amendments bear more weight than normal “post-enactment legislative history” because they
amended the precise statute at issue and, by refraining from changing the language of the
interstate shipment provision, declared “the intent of [the] earlier statute.” Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 380-81 (1969) (“Subsequent legislation declaring the
intent of an earlier statute is entitled to great weight in statutory construction”). According to
Defendants, those two amendments show that Congress understood the Lacey Act to bar all
interstate transportation of listed species and that Congress “ratified” that permissible
interpretation of the law. Dkt. 48 at 5.
In general, “‘the views of a subsequent Congress form a hazardous basis for inferring the
intent of an earlier one.’” Public Citizen Health Research Grp. v. FDA, 704 F.2d 1280, 1289
n.26 (D.C. Cir. 1983) (quoting Consumer Prod. Safety Comm’n v. GTE Sylvania Inc., 447 U.S.
102, 117 (1980); see also O’Gilvie v. United States, 519 U.S. 79, 90 (1996) (“[T]he view of a
later Congress cannot control the interpretation of an earlier enacted statute.”). The actions of a
subsequent Congress can, however, inform the meaning of an earlier enacted statute under two
narrow circumstances: Congress may ratify an administrative interpretation of a law when it re-
enacts or substantially amends the earlier enactment, and Congress may repeal or amend a law
by implication. Neither approach to interpretation is favored under the law, and both are subject
to significant limitations.
27
i. Ratification
Defendants frame their argument in terms of congressional ratification of the Department
of the Interior’s broad interpretation of the Lacey Act. Under the ratification canon, “Congress is
presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change.” Public Citizen v. FAA, 988 F.2d 186,
194 (D.C. Cir. 1993) (citation and quotation marks omitted). Three considerations, however,
weigh—to varying degrees—against application of that canon here.
First, the ratification canon is of “little assistance” where Congress has not re-enacted the
entire statute at issue or significantly amended the relevant provision. See Public Citizen, Inc. v.
Dep’t of Health and Human Servs., 332 F.3d at 668. As the Supreme Court has explained,
“when . . . Congress has not comprehensively revised a statutory scheme but has made only
isolated amendments,” a court cannot “assert with any degree of assurance that congressional
failure to act represents affirmative congressional approval of the [administrative] statutory
interpretation.” Alexander v. Sandoval, 532 U.S. at 292 (citations and internal quotations
omitted). Here, Congress did not re-enact the entire Lacey Act and did not amend the relevant
language in any of the three subsequent enactments upon which Defendants rely. Defendants
point to Kay v. FCC, 443 F.2d 638, 646-47 (D.C. Cir. 1970), where the Court of Appeals
concluded Congress had ratified an interpretation of one statutory provision by amending a
related provision. In that case, however, the Court of Appeals had already concluded that the
administrative interpretation was, in any event, the better reading of the statute, and the Court
merely concluded that related legislative amendments made after Congress “fully reviewed” the
agency’s rulings provided some additional “persuasive weight.” 7 Id. at 646.
7
To the extent the Kay decision includes more sweeping dicta (“a consistent administrative
interpretation of a statute, shown clearly to have been brought to the attention of Congress and
28
Second, the Supreme Court has cautioned that courts should be “extremely hesitant to
presume general congressional awareness of the [agency’s] construction based only upon a few
isolated statements in the thousands of pages of legislative documents.” SEC v. Sloan, 436 U.S.
103, 121 (1978). As the Court explained in TVA v. Hill, 437 U.S. 153 (1978), its hesitation to
presume congressional awareness in Sloan came against the backdrop of “a 34-year-old practice
of the Securities and Exchange Commission,” and “despite the fact that the Senate Committee
having jurisdiction over the Commission’s activities had long expressed approval of the
practice.” Id. at 192 (emphasis omitted); see also Sloan, 436 U.S. at 121 (“[L]anguage in a
Committee Report, without additional indication of more widespread congressional awareness, is
simply not sufficient to invoke the presumption in a case such as this.”). Here, although it is
clear that many members of Congress were aware of the Interior Department’s broad
construction of the Lacey Act at the time Congress enacted each of the three subsequent
statutes—and, indeed, that construction is referenced in committee reports, see S. Rep. 101-523
(1990); S. Rep. 111-181 (2010); H.R. Rep. 112-657 (2012)—the legislative record is not
uniform, see Dkt. 50-1 at 32, and, more importantly, the Supreme Court has suggested that even
this type of broad awareness of an administrative practice may not be enough for purposes of the
ratification canon. The Court need not, however, decide this issue in light of the remaining
hurdles Defendants face.
The third difficulty with Defendants’ efforts to invoke the ratification doctrine is the
not changed by it, is almost conclusive evidence that the interpretation has congressional
approval”), Kay, 443 F.2d at 646-47, that language has been superseded by more recent Supreme
Court and Court of Appeals precedents, see, e.g., Solid Waste Agency v. U.S. Army Corps of
Eng’rs, 531 U.S. 159, 169 (2001) (“Although we have recognized congressional acquiescence to
administrative interpretations of a statute in some situations, we have done so with extreme
care.”); Alexander v. Sandoval, 532 U.S. at 292 (“It is impossible to assert with any degree of
assurance that congressional failure to act represents affirmative congressional approval of [a]
statutory interpretation.”) (quotation marks and citations omitted); Public Citizen, Inc. v. Dep’t of
Health & Human Servs., 332 F.3d at 668.
29
clearest, and it is dispositive. The Supreme Court has repeatedly recognized that “re-enactment
cannot save a regulation which contradicts the requirements of the statute itself.” Leary v.
United States, 395 U.S. 6, 24 (1969) (quotation marks and alterations omitted); see also
Demarest v. Manspeaker, 498 U.S. 184, 190 (1991) (“Where the law is plain, subsequent
reenactment does not constitute an adoption of a previous administrative construction.”). These
cases rely on the basic principle that Congress cannot “‘add to or expand’” the scope of a statute
whose meaning is plain without affirmatively amending the law. Leary, 395 U.S. at 25 (quoting
Comm’r of Internal Revenue v. Acker, 361 U.S. 87, 93 (1959)). Following Sloan, 436 U.S. at
122, which questioned, in dicta, whether a subsequent re-enactment could trump “the rather plain
meaning of” the statutory language at issue, the Court of Appeals has observed “that Congress
cannot by its silence ratify an administrative interpretation that is contrary to the plain meaning
of the Act.” Ashton v. Pierce, 716 F.2d 56, 63 (D.C. Cir. 1983). The principle applies,
moreover, even where the competing construction of the Act is “perhaps not an impossible” one,
Sloan, 436 U.S. at 112, and where a court arrives at the “plain meaning” by relying, at least in
part, on “the legislative history,” Ashton, 716 F.2d at 61-63.
Because the Court has concluded that the meaning of the Lacey Act’s relevant language
was clear at the time of its enactment in 1960, Congress cannot be deemed to have adopted an
alternative construction of the statute through ratification, particularly where it did not amend—
or even discuss—the relevant language. Applying the ratification doctrine to change the plain
meaning of a statute crosses the line from embracing a legitimate interpretation of the law to
changing its meaning. Accordingly, the relevant question is not whether Congress ratified the
Department of the Interior’s interpretation but, rather, whether Congress amended the Lacey Act.
ii. Implied amendment
Congress has not changed the relevant language of the Lacey Act since it was enacted in
30
1960. Thus, the meaning of the phrase “any shipment between the continental United States, the
District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the
United States” must remain unchanged unless it was implicitly amended when Congress enacted
the 1990 (zebra mussels), 2010 (bighead carp) or 2012 (water transfers from Lake Texoma) laws.
The hurdle of establishing an amendment by implication, however, is a high one. Although more
frequently invoked in the context of implied repeals, the standards are “conceptually identical,”
Vill. of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 661-62 (D.C. Cir. 2011), and
“implied amendments are no more favored than implied repeals.” Nat’l Ass’n of Home Builders
v. Defenders of Wildlife, 551 U.S. 644, 664 n.8 (2007). “A new statute will not be read as wholly
or even partially amending a prior one unless there exists a positive repugnancy between the
provisions of the new and those of the old that cannot be reconciled.” Id. (quotation marks
omitted). An amendment or repeal “is to be implied only if necessary to make the (later enacted
law) work, and even then only to the minimum extent necessary.” Howard v. Pritzker, 775 F.3d
430, 437 (D.C. Cir. 2015) (quotation marks omitted). Accordingly, “when two statutes are
capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional
intention to the contrary, to regard each as effective.” Id. (quotation marks omitted); see also
Mittleman v. Postal Regulatory Comm’n, 757 F.3d 300, 306 (D.C. Cir. 2014) (“We will not infer
a statutory repeal unless the later statute expressly contradicts the original act or unless such a
construction is absolutely necessary in order that the words of the later statute shall have any
meaning at all.”) (alterations omitted) (quoting Nat’l Ass’n of Home Builders, 551 U.S. at 662-
63).
As the Supreme Court explained in Blanchette v. Connecticut General Insurance
Corporations—quoting Judge Friendly’s opinion for the lower court—the demanding standard
for finding an amendment by implication “rests on a sound foundation.” 419 U.S. 102, 134
31
(1974) (quotation marks omitted). In particular, courts presume that “Congress had given
serious thought to the earlier statute,” and, as a result, “[b]efore holding that the result of the
earlier consideration has been repealed or qualified, it is reasonable for a court to insist on the
legislature’s using language showing that it has made a considered determination to that end.”
Id. at 134 (quotation marks omitted). None of the subsequent enactments Defendants identify
satisfy this high standard.
The most recent enactment—the statute exempting water transfers from Lake Texoma—
constitutes a pragmatic congressional response to the Interior Department’s interpretation of the
statute in one particular case. The Department took the position that operation of the Water
District’s new pipeline would violate the Lacey Act. Congress responded to that concern and
exempted the water transfers at issue from the Act. It is clear that Congress concluded that the
Lacey Act should not apply to those water transfers. It is far from clear, however, that Congress
as a whole concluded that the Lacey Act should be construed to prohibit all interstate transfers of
listed species. Rather, it seems far more likely that Congress merely concluded that the Interior
Department’s view of the law—whether right or wrong—should not force the Water District to
abandon its pipeline. In any event, Congress did not clearly express an intent to amend the
Lacey Act, and there is no “positive repugnancy” between Congress’s plain intent in 1960 and
the 2012 legislation. Blanchette, 419 U.S. at 134. Under both enactments, the interstate
transportation of zebra mussels through the Water District’s pipeline would be permitted.
Although Congress’s 1990 amendment listing zebra mussels under the Lacey Act
expanded, rather than limited, the reach of the statute, it is also insufficient to establish an
implied amendment. Congress listed the zebra mussel among a number of other provisions
intended to staunch the flow of zebra mussels into the United States and to curb their spread
within the country. See Pub. L. 101-646. Perhaps most significantly, Congress adopted a system
32
requiring vessels entering the United States from international waters to exchange their ballast
water at sea before “enter[ing] a United States port on the Great Lakes.” Id. § 1101. Because
Congress was concerned both with the continuing importation of zebra mussels and with their
interstate transportation, listing the zebra mussel under the Lacey Act would have significantly
furthered Congress’s purpose by imposing a criminal penalty for the importation of the species.
Thus, as with the 2012 legislation, Congress did not clearly express an intent to amend the Lacey
Act in 1990, and the 1990 legislation can be given effect without disturbing the plain intent of
the 1960 Lacey Act amendments. As a result, the 1990 legislation also does not meet the high
standard for amendments by implication.
Plaintiffs’ strongest argument rests on the significance of the 2010 amendment listing
bighead carp as an invasive species. The bighead carp was already well established in regions of
the continental United States when Congress added it to the list of injurious species under the
Lacey Act in 2010. See S. Rep. 111-181 at 1 (2009) (the bighead carp “is now established in the
Ohio, Mississippi and Missouri Rivers . . . . Since the Mississippi River is connected to the
Great Lakes by canal, bighead carp threaten to infest the Great Lakes”). There is no evidence
that simply prohibiting importation of the bighead carp into the United States or its transportation
between the insular portions of the United States and the continental United States would have
slowed the species’ spread from the Mississippi River system into the Great Lakes. And the
legislative history of the 2010 amendment makes clear that at least the relevant committees and
interested members believed—and intended—that the law would have the effect of prohibiting
interstate transportation of the species.
As Defendants concede (Dkt. 48 at 6, n.6), “there is no irreconcilable conflict between
the 1960 amendments and the . . . 2010 amendments.” It is logically possible to apply both laws
simultaneously and to give both enactments meaning: Bighead carp initially arrived in the
33
United States as an imported species, and under the 1960 amendments their listing would still
criminalize any further importation. Plaintiffs argue, moreover, that even prohibiting interstate
transportation of the species would not have been particularly effective—the major threat posed
by bighead carp was not a bustling domestic trade in the species, but rather that fish would cross
from the Mississippi River system into Lake Michigan “by their own volition.” Dkt. 45 at 8 n.7.
It is nonetheless evident that the principal purpose of the 2010 amendment was to prohibit
interstate transportation of bighead carp.
Although the question is close, the Court concludes that even the bighead carp legislation
did not impliedly amend the Lacey Act. The relevant question is not whether Congress intended
to ban interstate transportation of bighead carp, but, ultimately, whether it intended to criminalize
the interstate transportation of all species currently listed under the Lacey Act, and all species
that the Interior Department or Congress might someday list. Notably, the change from the 1960
version of the Lacey Act—which criminalized only imports and shipments between the insular
and the continental United States—to the version of the law that Defendants posit—which would
bar all interstate transportation of listed species—is a fundamental one. The authority to regulate
imports is far narrower than the power to regulate interstate activity. Had Congress intended to
make or embrace such a significant change in the law—even implicitly—one would have
expected to see some debate or mention of the expansion. As the Supreme Court has observed,
“Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or
ancillary provisions— it does not, one might say, hide elephants in mouseholes.” Whitman v.
Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001).
This absence of any mention of an expansion in the scope of the law, moreover, is all the
more troubling because the Lacey Act is a criminal statute. “[B]ecause of the seriousness of
criminal penalties, and because criminal punishment usually represents the moral condemnation
34
of the community, legislatures and not courts should define criminal activity.” United States v.
Bass, 404 U.S. 336, 348 (1971). Importantly, this maxim follows from “the instinctive distaste
against men languishing in prison unless the lawmaker has clearly said they should.” Id.
(quoting H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196,
209 (1967)). Here, there is no evidence that Congress ever affirmatively considered whether the
interstate shipment of listed species should constitute a crime. To the contrary, the history of the
2010 amendment adding bighead carp to the list of injurious species suggests that it is equally, if
not more, plausible that Congress merely intended to apply whatever existing tools were
available to stem the spread of the carp. That is a very different judgment than the decision that
the Lacey Act should apply in all cases to interstate shipments. Because Congress simply
assumed that the Lacey Act applied to interstate shipments—presumably based on input from the
Department of the Interior, which by 2010 had adopted that interpretation of the law—it never
considered whether it should apply to all interstate shipments. Given the demanding standard for
finding amendments by implication, the Court concludes that this was not enough to change the
meaning of the law.
The Supreme Court’s rejection of an implied amendment argument in TVA v. Hill, 437
U.S. 153 (1978), further supports this conclusion. There, Congress learned that a dam under
construction on the Little Tennessee River would threaten the population of endangered fish—
the snail darter—that lived only in that river. Id. at 158-59. Congress continued to appropriate
funds to the project, and both the Senate and House Appropriations Committees issued reports
expressly stating their view that the Endangered Species Act did not prohibit the Project’s
completion. Id. at 170-71. The Supreme Court nonetheless held that the project should be
enjoined, reasoning that the “language, history and structure” of the Endangered Species Act
indicated “beyond doubt that Congress intended endangered species to be afforded the highest of
35
priorities.” Id. at 174.
The Court rejected the TVA’s argument that three appropriations statutes dedicating
millions of dollars to the project after the snail darter was listed as an endangered species
impliedly repealed the Endangered Species Act. Aspects of its reasoning are distinguishable
from this case: For example, the Court noted that appropriations measures may be particularly
poor bases for inferring Congress’s intent to amend substantive legislation, and it questioned the
extent to which members of Congress who did not sit on the Appropriations Committees were
aware of the Committees’ interpretations. “Quite apart from the foregoing factors,” however, the
Court was “unable to find that in this case the earlier and later statutes [were] irreconcilable.” Id.
at 192 (quotation marks omitted). It noted that “TVA confidently reported to the Appropriations
Committees that efforts to transplant the snail darter appeared to have been successful,” which
would have given “those committees some basis for the impression that there was no direct
conflict” with the Endangered Species Act. Similarly, the Court considered that the district
court’s decision in favor of the government would have given the Committees some hope that
the project would survive review, thus justifying the appropriation of funds for its completion.
Id.
Even if not on all fours with the present dispute, Hill provides relevant guidance. In both
cases, Congress enacted subsequent legislation with an understanding detailed in the legislative
history of how the new law would interact with an earlier statute. In both cases, understanding
of the law set forth in committee reports was mistaken. And in both cases, the mistake
substantially undermined the effect of the subsequent legislation. Indeed, if anything, the intent
of the subsequent Congress was more completely frustrated in Hill: The specific appropriation at
issue was for the construction of a dam that the Endangered Species Act flatly prohibited. Here,
listing the bighead carp under the Lacey Act, as it was amended in 1960, would further
36
Congress’s intended result by at least prohibiting additional importation of the species. The
Court concludes that, as in Hill, even where Congress acts against the backdrop of an
understanding of the law that is set forth in committee reports and that understandably bears a
close connection to Congress’s current legislative purpose, more is required to amend a pre-
existing statute.
If it had faced the question, the 2010 Congress may well have decided as a general matter
to criminalize importation of species listed under the Lacey Act—or it may have declined to do
so. But Congress did not decide that broader question, and there is nothing in the legislative
history of the 2010 amendment to suggest that Congress considered it at all. A debate on
whether to amend the Lacey Act to bar interstate transportation of all listed species would raise
policy issues unrelated to the spread of the bighead carp: how the listing or potential listing of
commercially traded species might affect the economy, for example, or whether the existing
restrictions on interstate transportation of illegally possessed species might, in conjunction with
state law, be adequate to achieve Congress’s purpose. See 16 U.S.C. § 3372(a), (b). There is no
indication that Congress gave these questions any consideration in 2010. For the Court to
conclude that Congress impliedly amended the law in this fundamental respect without further
evidence of affirmative congressional intent—or an irreconcilable conflict—would short circuit
the legislative process.
Accordingly, the Court concludes that Plaintiffs are likely to succeed on the merits of
their statutory interpretation claim.
B. Plaintiffs’ Regulatory Flexibility Act Claim
Plaintiffs also argue that they are likely to succeed on the merits of their Regulatory
Flexibility Act claim. The Regulatory Flexibility Act (“RFA”) “obliges federal agencies to
assess the impact of their regulations on small businesses.” U.S. Cellular Corp. v. FCC, 254
37
F.3d 78, 88 (D.C. Cir. 2001). At the final rulemaking stage, the RFA requires an agency to
prepare a “final regulatory flexibility analysis” that contains, among other things, “a statement of
the significant issues raised by the public comments in response to the initial regulatory
flexibility analysis,” as well as the agency’s assessment of those issues and a statement of
changes made as a result of public comments. 5 U.S.C. § 604(a). The analysis must also contain
“a description of the steps the agency has taken to minimize the significant economic impact on
small entities consistent with the stated objectives of applicable statutes,” including an
explanation why the agency chose the final rule rather than potential alternatives. Id. If the
Court finds that the Interior Department failed to comply with the RFA, it “shall order the
agency to take corrective action” that may include “remanding the rule to the agency” or
“deferring the enforcement of the rule against small entities.” 5 U.S.C. § 611(a)(4).
Plaintiffs allege that the Interior Department impermissibly relied on the same 2010
“initial regulatory flexibility analysis” (“IRFA”) for the 2015 Rule that it had for the 2012 Rule.
Dkt. 28-1 at 31. According to Plaintiffs, this prevented the Department from considering
alternatives tailored to the changed circumstances in the reptile breeding industry after the 2012
Rule took effect—circumstances that put more pressure on reptile breeders. Pointing to the
Interior Department’s decision not to list the boa constrictor, they suggest that the Department
might have fashioned a combination of “state/federal cooperation, state regulation, and private
initiatives as an alternative to listing” the four snakes in the 2015 Rule. Id. at 34. Plaintiffs also
assert that the Department failed to consider extending the effective date of the 2015 Rule
beyond the 30-day period mandated by the Administrative Procedure Act, apparently implying
that the Interior Department might have done so had it issued and taken comments on a new
initial regulatory flexibility analysis after the 2012 Rule took effect. Id.
According to Defendants, Plaintiffs’ challenge is “invalid” because it turns on the
38
sufficiency of the IRFA used for the 2015 Rule, and IRFAs are not subject to the judicial review
provisions of the RFA. Dkt. 32 at 25. The IRFA requirement is codified at 5 U.S.C. § 603. See
5 U.S.C. § 603 (“[w]henever an agency is required . . . to publish general notice of proposed
rulemaking . . . the agency shall prepare and make available for public comment an initial
regulatory flexibility analysis”). The RFA’s judicial review provision, 5 U.S.C. § 611, however,
authorizes suits for review of “agency compliance” only with “the requirements of sections 601,
604, 605(b), 608(b), and 610”—not suits to review compliance with § 603. See Allied Local &
Regional Mfrs. Caucus v. EPA, 215 F.3d 61, 79 (D.C. Cir. 2000) (“We are without jurisdiction to
consider . . . challenges to EPA’s compliance with the initial regulatory flexibility analysis”).
In response, Plaintiffs re-cast their RFA argument as a challenge to the final regulatory
flexibility analysis (“FRFA”). See 5 U.S.C. § 611(a) (authorizing suits to challenge compliance
with “section 604,” which governs FRFAs). They claim the FRFA was deficient because it did
not “demonstrate[] the agency’s good faith engagement with the small business regulated
community” regarding the proposed 2015 Rule. Dkt. 36 at 14; see also id. at 15-16 (alternatives
considered in the FRFA were “not shared with the public in advance of the 2015 rule”; FWS did
not “make any effort to present to the public . . . their analysis of the state of the large constrictor
industry circa 2014” or “the impact [FWS] expected their proposal to have on the much-
diminished large constrictor snake industry circa 2014”). As a result of these alleged failures to
present information to the public before the final 2015 Rule was published, Plaintiffs were
allegedly unable to provide informed comments regarding the Department’s RFA analysis.
These allegations all boil down to objections to the fact that the Department re-used its
2010 IRFA rather than publishing a new IRFA that would have more fully advised interested
entities about the data and alternatives the Department was considering in 2014. And § 611
makes clear that challenges to the adequacy of an IRFA are not reviewable. The statute does not
39
only omit § 603 from the list of enumerated provisions subject to review. 5 U.S.C. § 611. It also
expressly allows that compliance with certain otherwise unreviewable provisions may be
reviewed “in connection with judicial review of section 604”—which is what Plaintiffs
effectively seek here—and conspicuously leaves § 603 off that list as well. Id. (“Agency
compliance with section 607 and 609(a) shall be judicially reviewable in connection with judicial
review of section 604.”). If Congress had intended to permit plaintiffs to piggyback challenges
to the adequacy of IRFAs under § 603 on reviewable claims under § 604, it knew exactly how to
do so. It chose not to. Although Plaintiffs have challenged the sufficiency of the 2010 IRFA as
applied to the 2015 Rule, they have not shown that the Interior Department failed to “respond to
significant points raised during the public comment period” or “consider significant alternatives”
in its final Rule. Allied Local, 215 F.3d at 80. Because this Court “has no jurisdiction to review
challenges to an agency’s compliance with” the IRFA requirement, Nat’l Ass’n of Home
Builders, 682 F.3d at 1041 (quotation marks omitted), Plaintiffs are unlikely to succeed on the
merits of their claim under the Regulatory Flexibility Act.
II. Irreparable Injury
Plaintiffs assert that they (or members of USARK) will suffer several types of irreparable
injury if the 2015 Rule goes into effect. Plaintiffs submitted several declarations from owners of
reptile breeding businesses stating that the viability of their businesses will be jeopardized by the
2015 Rule. See Decl. of Jay Brewer (Pls.’ Ex. D) ¶ 14 (“To be expected to” shift from
reticulated python breeding “under the current guidelines, with less than 30 days to prepare,
would be impossible and would effectively result in the bankrupting of a successful business I’ve
spent the past three decades building”); Decl. of Kevin McCurley (Pls.’ Ex. G) ¶¶ 9, 22 (“The
rule . . . will cause me ruinous economic injury. . . . I will no longer derive a considerable source
of my income from these species and feel it is unlikely my business can and will survive.”);
40
Decl. of Kristopher Brown (Pls.’ Ex. H) ¶ 28 (“If this regulation stays in place, our family will be
looking for a new means of support and the company . . . will cease to exist in a very short
amount of time.”); Decl. of Ryan Parker (Pls.’ Ex. J) ¶ 11 (“I will not be able to support my
family or my employee if this rule remains in place”). They also submitted declarations
explaining that the then-looming April 9 deadline rendered snakes subject to the 2015 Rule
virtually unsaleable, as breeders rushed to dispose of large numbers of snakes and buyers
withdraw from the market. See, e.g., Decl. of Jay Brewer (Pls.’ Ex. D) ¶ 21 (“on March 5, 2015,
when news of the addition of the Reticulated Pythons to the Lacy Act broke . . . we had virtually
all of our high end sales dissolve in a matter of moments”); McCurley Decl. ¶¶ 11, 21 (“There is
absolutely no way I can place, liquidate, or effectively accomplish the movement of my breeding
and educational stocks in just thirty days. . . . How can I possibly find people, zoos and
educators to take these animals while there is an incredible influx of other keepers, breeders and
educators scrambling to rehome their snakes, too?”); Brown Decl. ¶ 20 (“[C]ustomers are
backing out of the payment plans, and canceling the pre-orders.”)
Many of Plaintiffs’ declarants allege that the 2015 Rule forces them to make a difficult
choice between paying for the upkeep of snakes that cannot be sold or euthanizing them. See,
e.g., Declaration of Lynlee Renick (Pls.’ Ex. F) ¶¶ 8, 10 (“The volume of reticulated pythons and
green anacondas that we have . . . is a burden that even we, as a financially stable company, will
have trouble supporting and caring for. . . . [W]e may be faced with the heartbreaking decision
to euthanize these wonderful animals.”); Brown Decl. ¶ 16 (“Without the income derived from
selling the animals[’] offspring or future breeding potential offspring, there is no way we can
afford to devote the time and resources to properly house, feed, and care for these animals.”);
Declaration of Navarone Garibaldi (Pls.’ Ex. E) ¶¶ 7-9 (“I am deeply afraid I will not be able to
sell all of the babies [in a clutch of eggs] in just one state alone, and I cannot care for all of them
41
indefinitely on my own. What can I do? Euthanize them?”).
Defendants argue that Plaintiffs’ declarations are insufficient to establish irreparable
harm, for several reasons. First, they argue that Plaintiffs’ declarations fail to assert irreparable
economic harms. As Defendants note, economic harm in itself is generally not “irreparable”;
there are exceptions, however, when the harm “threatens the very existence of the movant’s
business,” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam), or where
economic losses are “certain, imminent, and unrecoverable,” Nat’l Mining Ass’n v. Jackson, 768
F. Supp. 2d 34, 53 (D.D.C. 2011). 8 Defendants maintain that snake owners had ample time to
prepare for the regulation to take effect, but they do not dispute that the 2015 Rule was published
only 30 days before its effective date. Dkt. 32 at 31-32. Even if Plaintiffs might have had
reasons to suspect for many years that the Department would issue a final rule listing the species
at issue here, it appears at this juncture that Plaintiffs were justified in continuing business
operations until the Rule was actually promulgated.
Defendants also claim that Plaintiffs’ asserted economic harms are too indirect to satisfy
the irreparable harm standard. Id. at 32 (citing Am. Meat Inst. v. Dep’t of Agric., 968 F. Supp. 2d
38, 81 (D.D.C. 2013), aff’d, 746 F.3d 1065, reinstated in relevant part by 760 F.3d 18 (en
banc)). There is an important difference, however, between the harms alleged by declarants here
and the speculation about “independent market variables” that the court in American Meat
Institute found insufficient to establish irreparable harm. 968 F. Supp. 2d at 81. Although the
meat suppliers in that case expressed concern that a new labeling requirement might reduce
future demand for their products among meatpackers and consumers, several declarants here
have stated that the impending effective date for the 2015 Rule has already resulted in lost sales.
8
Another line of district court cases finds irreparable harm where unrecoverable losses are
“serious.” Mylan Pharms. v. Shalala, 81 F. Supp. 2d 30, 42 (D.D.C. 2000) (quotation marks
omitted).
42
See, e.g., Brewer Decl. ¶ 21; Brown Decl. ¶ 20. Moreover, it would defy logic if an interstate
transportation ban did not significantly reduce sales for declarants like Kevin McCurley (see
McCurley Decl. ¶ 3 (“only 1% of my Reticulated business has been from within my state of New
Hampshire”)) or Kristopher Brown (see Brown Decl. ¶ 11 (“Our home state of Wisconsin sales
do not even account for 1% of our gross sales.”)). For similar reasons, the harm alleged by
breeder declarants in this case is distinguishable from that alleged by safari outfitters in Safari
Club International v. Jewell, 47 F. Supp. 3d 29, 37 (D.D.C. 2014). There, outfitters claimed that
they “may suffer economic losses if hunters cancel expeditions” in response to an elephant
trophy ban, but did not allege that they had actually suffered losses at the time of the suit. Id. 9
Defendants’ suggestions that international sales might sustain the businesses of some
declarants (who live in states with authorized ports), or that declarants might sell to permitted
scientific or educational purchasers, do show that the 2015 Rule will not entirely wipe out the
market for listed species in the United States. See Dkt. 32 at 32-33. Still, even in light of these
potential alternatives, Plaintiffs’ declarations demonstrate that breeders who substantially rely on
the listed species for their livelihoods are likely to suffer serious economic losses if the 2015
Rule takes effect. Because those breeders will have no recourse against the government (or
anyone else) to recoup those significant losses in the event they prevail on the merits in this
action, these losses constitute irreparable harm. See Mylan Pharms., 81 F. Supp. 2d at 42.
Defendants also argue that Plaintiffs’ declarants have provided insufficient evidence to
establish that their businesses will be put in jeopardy if the 2015 Rule takes effect. It is true that
some of the declarants who now allege significant risks to their business were able to survive
9
These cases do suggest, however, that the harms asserted by declarants whose businesses rely
on the reptile breeding industry generally are not tied directly enough to the 2015 Rule to be
considered here. See Declaration of Bob Ashley (Pls.’ Ex. K) (president of association of reptile
breeder trade shows); Declaration of Mark Daniel Krull, Jr. (Pls.’ Ex. L) (owner of “biotextiles”
company that purchases shed skins of captive snakes).
43
implementation of the 2012 Rule, which, among other things, prohibited interstate transportation
of the Burmese python. See, e.g., McCurley Decl. ¶ 5; Brewer Decl. ¶10. The fact that a
business survived a ban on interstate transportation of one popular species, though, does not
mean it would survive another. Kevin McCurley, for example, alleged that losses associated
with the 2012 Rule were “crippling to [his] business.” McCurley Decl. ¶ 5. The Court
understands that risks to businesses may be easily overstated, but it does not appear far-fetched
to suggest that some businesses that rely heavily on interstate trade in newly listed species face
an existential threat.
Defendants’ contention that declarants have failed to provide detailed proof—such as a
“projection of anticipated future losses” tied to “an accounting of the company’s current assets”
(Am. Meat. Inst., 968 F. Supp. 2d at 78)—is well taken. Some of Plaintiffs’ declarants provide
specific facts about the proportion of their business dedicated to listed species and the proportion
of their sales that require interstate transportation of snakes, and these facts seem to support the
contention that the 2015 Rule jeopardizes at least some reptile breeders’ businesses. Still, if the
Court based its irreparable harm determination solely on the averred threat to the continued
existence of Plaintiffs’ businesses, it is not clear that these statements would provide enough
specificity to warrant preliminary relief. In light of the other basis for finding irreparable
economic injury, however—that Plaintiffs’ declarants have identified losses that are imminent,
serious and unrecoverable—this potential defect does not defeat Plaintiffs’ showing of
irreparable injury.
Finally, the Court does not accept Defendants’ contention that Plaintiffs’ purported delay
in requesting preliminary injunctive relief precludes a finding of irreparable injury. Plaintiffs
filed their application for a temporary restraining order significantly less than one month after the
2015 Rule was published in the Federal Register. Along with a substantial memorandum of law,
44
their application attached thirteen declarations that presumably required time to obtain, review
and finalize. Under the circumstances, the Court does not find that Plaintiffs exhibited undue
delay in filing the instant application. 10
III. Balance of Equities
The final two factors in the Court’s analysis of a request for preliminary relief—the
balance of equities and the public interest—“merge” in cases where the relief is sought against
the government. Nken v. Holder, 556 U.S. 418, 435 (2009). Here, Defendants assert two
countervailing interests that must be weighed against Plaintiffs’ showing of irreparable harm:
harm to the environment, and economic harm to federal, state and local governments.
Defendants’ showing of potential environmental harm is serious and credible. As stated
in the Declaration of Jeffrey L. Underwood (Dkt. 32-1), the Department’s decision to list the four
species at issue in the 2015 Rule reflects careful consideration of several factors affecting the
environmental threat posed to each species, including “[t]he likelihood of release or escape,”
“[p]otential to survive, become established, and spread,” and impacts on wildlife resources,
ecosystems, threatened and endangered species, and humans and human activities. Id. ¶ 11. The
most significant environmental impact of the four listed snakes (if populations were established
in the wild) is direct predation: They are all “generalist predators” that would consume a wide
variety of other animal species. Id. ¶ 12. Reticulated pythons and green anacondas pose special
threats. They are both among the largest snake species in the world; indeed, if green anacondas
became established in the United States, they would rank with certain bears among the largest
predators in this Country. Id. ¶¶ 14-15. Native species have “no experience defending against”
10
The Court notes, however, that Plaintiffs have not submitted any evidence demonstrating that
a prohibition on shipments to Florida or Texas of the listed species would cause any irreparable
injury. As explained below, this fact may affect the balance of equities in at least a limited
context.
45
these “novel, giant predator[s].” Id. ¶ 14. These snake species also pose indirect threats to other
animal species. For example, reticulated pythons can carry ticks that can transmit diseases to
livestock and wild hoofed animals. Id. ¶ 28.
The reticulated python and green anaconda also have the potential to become established
as invasive species in some parts of the country. Reticulated pythons have a history of escaping
captivity and the disquieting capacity to reproduce parthenogenically. Id. ¶ 14. Although
Defendants appear to agree with Plaintiffs that most of the continental United States is too cold
to sustain populations of reticulated pythons or green anacondas, both species could survive in at
least parts of Florida and Texas. Id. ¶¶ 14-15. Indeed, the Underwood Declaration asserts that
green anacondas have “already been found in the wild in Florida.” Id. ¶ 15. 11 And once
established in the wild, it would be “extremely difficult, if not impossible, to eradicate” any of
the four species listed in the 2015 Rule because “all four species are cryptically colored and
blend in with their surroundings; have low profiles; can hide in thick brush, trees, or in water;
and are frequently inactive [and] thus undetectable.” Id. ¶ 27.
The Department of the Interior’s evaluation of the threat posed by the reticulated python
and green anaconda is understandably informed by its experience with the Burmese python.
According to the Underwood Declaration, Burmese pythons are “becoming the top predators in
the Everglades.” Id. ¶ 19. Burmese pythons have accomplished a staggering depletion of native
wildlife species in that region, and the Underwood Declaration predicts that “[t]he presence of
two or more of the large nonnative constrictor species would be expected to have increasing
cumulative negative effects on native wildlife.” Id. These impacts include both direct and
11
No declarant for Plaintiffs has asserted a cognizable interest in delaying the listing of the other
two species addressed in the 2015 Rule—the Beni anaconda and the DeSchauensee’s anaconda.
Because the Court will therefore not issue preliminary relief as to these species, it does not
consider their potential environmental impact in its evaluation of the balance of equities.
46
indirect threats to endangered and threatened native species, at least thirty of which would be
jeopardized by introductions of the listed snakes in Florida. Id. ¶ 21. Snakes of the listed species
are thus “likely to escape from captivity or be released into the wild”; are “likely to survive,
become established, and spread” if released in a suitable habitat; are “likely to prey on and
compete with native species for food and habitat”; are “likely to be disease vectors for livestock
and native wildlife”; “cannot be easily eradicated”; and are “likely to disturb ecosystems beyond
the point of recoverability.” Id. ¶ 30.
According to Defendants’ declarant, moreover, the Defendant’s interpretation of the
Lacey Act is an essential tool in preventing the spread of these species within the United States.
The Underwood Declaration states that the “pet and hobby trade” is the “primary pathway for
these constrictor snakes to cross State lines and be introduced into new areas of the United
States.” Id. ¶ 23. And hobbyists and pet owners are more likely to experience accidental escapes
than are zoos or research institutions. Id. ¶ 24. The Interior Department’s interpretation of the
statute would prohibit transportation of these snakes from other states into regions where their
release might lead to the emergence of an invasive population. Because the listed species “pose
significant risks to native wildlife and native ecosystems,” the Underwood Declaration states that
implementation of the 2015 Rule is “essential”: “Any delay in the implementation of
prohibitions on importation and interstate transport of these injurious species will increase risks
to native species and natural ecosystems.” Id. ¶ 33.
The economic harms Defendants assert flow from these environmental harms. They
claim that federal, state and local governments spend an average of nearly $600,000 per year to
prevent or reduce the spread of invasive constrictor species, apparently focused in South Florida.
Dkt. 32 at 41-42. Defendants reason that if a delay in implementation of the 2015 Rule allows
any of the listed species at issue to become established in the wild, governments at all levels will
47
have to expend substantial resources to control these new invasive populations.
Finally, one issue that is not fully addressed in the briefs is the extent to which shipments
into Florida and Texas—the two states in which reticulated pythons and green anacondas are
most likely to survive in the wild—might be restricted by effect of 16 U.S.C. § 3372(a). That
statute prohibits the interstate transportation of animals “taken, possessed, transported, or sold”
in violation of state or federal law. Id. The potential harm to the public interest would be
substantially ameliorated if Defendants could invoke § 3372 to impose criminal liability for
shipments of listed snakes into the states where the emergence of an invasive population is most
probable. Alternatively, the harm to the public interest might be minimized by limiting the scope
of any injunction to reach only shipments to States other than Florida and Texas. Plaintiffs,
moreover, have not demonstrated that they have any particular need to ship reticulated pythons
or green anacondas to Florida and Texas. See note 10, supra.
In sum, the potential for a new invasive constrictor species becoming established in any
part of the United States is an extremely serious threat to the public interest—much more serious
than any of the private harms asserted by Plaintiffs. The five-year period between the
promulgation of the proposed rule listing the four species at issue here and the final 2015 Rule
does cast some doubt on the threat that a delay of additional weeks or months poses to the public
interest. Cf. Dkt. 32 at 36 (arguing that “a delay in filing for an injunction by a month . . . despite
knowing for months or even, as here, year, that the alleged harmful action was likely and
imminent, militates against injunctive relief”). But even though the harms Plaintiffs assert are
more certain to come to pass than the risks identified by the government, the severity of the
potential public harms here is great enough that the public interest and balance of equities favor
Defendants. The balance, however, would likely favor Plaintiffs if shipments of the listed snakes
were not permitted to Florida or Texas.
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IV. Weighing the Elements of the Preliminary Injunction Standard
The Court has concluded that, although the question is close, Plaintiffs have
demonstrated a likelihood of success on the merits. They have also shown that they will suffer at
least some substantial irreparable harm if their request for injunctive relief is denied. In light of
the gravity of the threat of a new invasive constrictor species becoming established, however, the
balance of equities and public interest factors favor Defendants, at least to the extent shipments
of the listed snakes to Florida and Texas are permitted. Under these circumstances, Plaintiffs
have demonstrated that they are entitled to injunctive relief at least with respect to interstate
transportation of reticulated pythons and green anacondas into at least the 47 states in which
those snakes are unlikely to establish wild invasive populations.
The Court must “pay particular regard for the public consequences in employing the
extraordinary remedy of injunction,” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982),
and “narrowly tailor[]” the relief “to remedy the specific harm shown,” Neb. Dep’t of Health &
Human Servs., 435 F.3d at 330. Accordingly, on or before 5:00 PM on May 15, 2015, the parties
are directed to submit supplemental briefs of not more than seven pages addressing two
questions: first, whether it is necessary or appropriate for the Court to exclude transportation of
reticulated pythons and green anacondas into Florida and Texas from the scope of its injunction;
and second, whether a stay of the preliminary injunction is appropriate to allow Defendants an
opportunity to seek interim relief from the Court of Appeals. The parties shall then appear for a
status conference on May 18, 2015 at 10:00 AM. The Court will enter an appropriate injunction
after reviewing the parties’ submissions and hearing from the parties.
CONCLUSION
Plaintiffs’ motion for a preliminary injunction will be GRANTED in part. The Court
will enter an appropriate preliminary injunction after hearing from the parties on the scope of the
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injunction and whether the injunction should be stayed for any period of time pending review in
the Court of Appeals.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: May 12, 2015
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