16/08/2020
Today, August 12, 2020, Tallahassee Circuit Judge John Cooper did not rule on USARK Florida’s request for injunction. However, he did expedite our lawsuit. Rather than going through witness testimony and hearing the arguments on the injunction, he chose to fast forward the lawsuit schedule. We find this to be a very favorable outcome. The next hearing, which will decide summary judgment and possibly even final judgment, will be Thursday, August 27.
At this time, our legal counsel is seeking clarification from FWC as to what business can currently be conducted. One specific is whether current Conditional Species Permit (CSP) holders can sell animals out of state during the rulemaking process rather than waiting until the rule is finalized. Another specific is what happens to CSP licenses that lapse during this time.
The good news from today is that Judge Cooper will decide the case sooner rather than later. We will have an answer at the end of the month, instead of possibly waiting many months for a decision.
Our attorneys at Holland & Knight have shined from the beginning. All filings have been timely and exquisitely written.
USARKFL is throwing all we can at this lawsuit to protect your freedoms. If you have not, please read and share our newsletter at www.usarkfl.org/lawsuit-newsletter-1. We appreciate everyone who supports this cause. This effort is being done on behalf of all responsible Florida herpetoculturists and we need to support our whole community no matter what our species of interest may be. Thank you.
Original Newsletter dated July 15, 2020:
USARK FL has filed a lawsuit against the Florida Fish and Wildlife Conservation Commission (FWC). What does this mean?
The responsible herpetocultural community in Florida faces an uncertain future in the wake of the state legislature’s decision to take it upon themselves to ban several reptile species from being kept, bred, sold, or used in most educational programs. This legislative action lacked supportive science. It lacked knowledge of current FWC regulations that have proven effective at regulating reptiles for over a decade. It lacked common sense. Frankly, it lacked everything that good legislation and governance should possess.
While we were able to get some important amendments made to the legislation along the way, at the end of the day the legislature failed to comprehend why any more amendments were needed. A bill that had its first hearing late in the legislative session was hastily cannonballed through the system. After the bill had been stopped during the three previous legislative sessions, the tactic of using a rider (attaching one bill to another bill that is guaranteed to pass) was incorporated to hurl this gr***de of a bill at herpetoculture. We say “gr***de,” as the writing is on the wall that this is just one of many of such efforts that will follow. We can expect further legislative and regulatory efforts to continue to sabotage our established community of reptile breeders and keepers within the state if we do not act now.
While FWC is the named Defendant, we must note that this is simply how our lawsuit must be filed. Our lawsuit is challenging action taken by the Florida legislature. Action that has triggered this battle.
Before summarizing the lawsuit (complaint), know that we have also filed a motion for temporary injunction (AKA injunctive relief or preliminary injunction). The goal here is to stop enforcement of the new law (the legislation became law) by FWC. If we are awarded full injunctive relief, it would essentially mean that we go back to 2019 and the regulations that were in place prior to the passage of the recent bill. However, a temporary injunction is just that, temporary. The injunctive relief would only remain effective until the Court rules on the lawsuit.
Prevailing on a preliminary injunction is a high bar to pass. We must demonstrate that we are likely to prevail on the merits of our case and that stakeholders will suffer irreparable harm if relief is not granted. We have a strong argument and our attorneys have created a first-class complaint. We do not have a better chance than we have with our team at Holland & Knight.
About the lawsuit
This is a very brief synopsis and we suggest anyone interested to read through the court documents (link below).
USARK FL and select plaintiffs have filed a lawsuit against FWC. Our complaint challenges the constitutionality of section 379.372, Florida Statutes (the Statute), as amended by 2020 Senate Bill 1414, and Executive Order No. 20-19, issued by the Executive Director on behalf of the Commission on June 30, 2020. This means we find that the legislative action was unconstitutional under the Florida Constitution at article IV, section 9. Quite simply, the politicians did not have the authority to pass this.
The Florida Constitution reads:
“The commission shall exercise the regulatory authority and executive powers of the state with respect to wild animal life and fresh water aquatic life…”
This removes power from the legislature and provides that total authority regarding “wild animal life” (which by its definition includes the reptiles we keep) falls under FWC jurisdiction. FWC has exclusive constitutional authority. This is clear.
While the legislature can “aid” FWC under the Florida Constitution, that is unquestionably not what happened. Under appropriate conditions, sometimes a plain review of the black and white letter of the law is needed. This means we simply need to know what the words mean. “Aid” means “help” or offering “tangible means of assistance.” The legislature did not “aid” or “help” FWC. They blatantly violated the Florida Constitution by writing a new law for FWC to enforce.
Not only did the legislature violate the Florida Constitution by creating a new law regarding these reptiles, but it also repealed FWC’s own regulations. The lawsuit additionally states that FWC failed to follow its own due process procedures in issuing Executive Order 20-19 on June 30.
Our complaint affirms that USARK Florida’s members will suffer irreparable harm. Unconstitutional action has occurred and we are not rolling over.
Lawsuit breakdown
Count I is an action for declaratory relief under Chapter 86, Florida Statutes. We seek a decision on the constitutionality and validity of the Statute (result of SB1414) as amended.
Count II calls for both temporary and permanent injunctive relief from the Statute (new law). Permanent injunctive relief means the amended statute will be repealed.
Count III challenges the constitutionality and validity of the Executive Order (FWC EO 20-19).
Count IV asserts that we have constitutionally protected property interests in our businesses, livelihoods, and personal property. Under the Due Process Clause of the U.S. Constitution, a state may not deprive “any person of . . . property, without due process of law.” FWC’s Executive Order 20-19 violated due process under both the Florida and U.S. Constitutions.
Count V is an action for temporary and permanent injunctive relief from FWC Executive Order 20-19.
What has happened
Senate Bill 1414 (SB1414) passed the Florida legislature and went to the Governor. We attended all hearings in Tallahassee along the way, met with legislators, and took other actions to fight SB1414. We did succeed with some amendments but not enough. While we pressed for a veto, the Governor does not have authority to line veto (veto only part of the bill) SB1414. So, Governor DeSantis could only veto the entire bill (which would have been a horrible career move as the remainder of the bill protects outdoorsmen from radical animal rights activist attacks). The hunting/fishing regulation is why this bill was a slam dunk and the reptile portion was just along for the ride. This was achieved through a very deceptive and manipulative political practice called a rider.
SB1414 became law after DeSantis signed it. However, the legislature does not enforce laws. This law has now been handed over to FWC. It is now on FWC to write regulations that reflect the law. While FWC can modify and interpret as they see fit, we anticipate FWC will now lean on a legislative intent argument (what the politicians want) to make this as overbearing as possible. Since the legislature was clearly inexpert and uneducated on current regulations and these species, claiming to follow legislative intent seems disingenuous at best.
While there is much activity right now, the regulations (what matters in the end) are not final until the FWC Commissioners provide their final vote. FWC has posted draft regulations (rules) and Frequently Asked Questions (FAQ’s) at the links below. Please read if you are affected. Obviously, the outcome of our lawsuit also matters but we are informing you about the FWC rulemaking process.
The first FWC Commission Meeting discussing this matter occurs on July 22-23. This topic is scheduled to be heard on July 23. That will be an introduction on the draft rules and presentation to the Commissioners. We will need to see the direction given to FWC by the Commissioners to have a better idea of the future actions and schedule during the process, but the regulations will not be final on that date.
There will be a “limited exception” period following final passage of the regulations. That should be 90 days after the Commissioners give their final vote. This will be a time for pet owners to register animals and for businesses to come into compliance. There will be no future pets allowed of any species affected by this legislation. There will also be no new business opportunities for any of these species. That even includes using them in educational programs.
Some businesses (those that had tegus and/or green iguanas on their 2019 inventories and accepted by FWC) will be allowed to continue breeding/selling only those species with all sales going out of state. For Conditional Species Permit (CSP) holders, that regulation which has proven effective for over a decade will be repealed. This means that anyone working with Conditional Species (including some large constrictor snakes, Nile monitors, etc.) will no longer be allowed to breed and sell those animals.
Current pet owners will be able to keep animals in their possession (by applying for a Prohibited Species for Personal Use Permit), but any investments made for future business with these animals will be gone. All reptile species currently listed as Conditional Species will now be Prohibited Species, in addition to all tegus and the green iguana (species).
Regarding red-eared sliders, we have been informed by FWC that they do not intend to stop business with that species for those with Aquaculture Permits from the Florida Department of Agriculture and Consumer Services (DACS). However, the regulations are not final so we cannot guarantee the status quo will remain intact for red-eared sliders.
Know that we appreciate FWC and its role in Florida. Historically, FWC worked well with responsible herpetoculturists to create common-sense regulations. Unfortunately, we have seen an ideological shift away from this in recent years. We are hopeful we could return to the collaboration that once existed.
For those who do not like snakes
We understand that many believe the false reporting from most media and are not fully informed about these animals or the current regulations in Florida. For over a decade, some reptile species have been heavily regulated by FWC. This regulation requires that anyone desiring to keep these species must abide by the exact same regulations and standards that accredited zoos must follow. Heavily regulated is an understatement!
This legislation fails to properly address current invasive species issues while being fully effective at punishing responsible citizens. Rather than working to resolve problems and punish criminals, the Florida legislature instead enacted injustice and turned to bias against good reptile keepers.
Forget that this situation involves snakes, lizards, and turtles. Imagine your government not only violating the Constitution but also telling you that something you have done conscientiously for over a decade is now illegal. Imagine your government telling you that your million-dollar investment was all wasted time and money. Imagine your government telling you that your family’s future and stability are now in jeopardy. That is what has happened. That is the story.
If you did not know about this…
We posted updates often during this legislative session. USARK announced this legislative effort in November 2019 and we (USARK FL) kept you apprised throughout the legislative process. We continue to provide updates during rulemaking.
All old updates can still be viewed on our page. We will continue to update via our website and Facebook. The website has already had many revisions. If you are affected and were unaware of our previous efforts and communications, this highlights the importance of following what we do and becoming a member. We are fighting for you and will continue to provide all the relevant information while doing our best. Please aid our community by following what we do, spreading awareness, and taking action when necessary.
What can you do?
Currently, we need donations! This lawsuit will be expensive and we have retained one of Florida's top law firms, Holland & Knight. We could not have a better firm and team representing us.
You can donate:
1. via our website (DONATE button)
2. via PayPal or Credit Card at https://www.paypal.com/donate/?token=qGebmKe2Shpl1PxPtK0IN6xokNVdiBlmNMt04zZ7GnV5MBTbcls57ktyVZFJcTrOrYWv_0&country.x=US&locale.x=
3. directly via PayPal using [email protected]
4. send checks to:
USARK FL
4525 S Florida Ave #19
Lakeland, FL 33813
We also need people to keep submitting opposition to FWC. Even if the deadline for “advanced comments” has passed, keep sending them. We were only granted two days after posting the extensive new draft regulations so it must be expected that comments will continue.
We will have more details about commenting soon but feel free to take initiative and comment. Always remember to be civil and professional. We understand that is beyond difficult following these overreaching measures, but we must present ourselves properly.
THANK YOU for your support! Please share and help us collect the financial backing to make this lawsuit possible and to fight for your freedoms.
Relevant links
Court documents: www.usarkfl.org/lawsuit
FWC Executive Order 20-19: https://myfwc.com/media/23982/eo20-19.pdf?
FWC July 22-23 Commission Meeting Agenda. See agenda item 8A (July 23) for relevant links including draft regulations:
https://myfwc.com/about/commission/commission-meetings/july-2020/
FWC FAQ for reptile businesses: https://myfwc.com/wildlifehabitats/nonnatives/2020-rule-change/industry/
FWC FAQ for pet owners of affected species: https://myfwc.com/wildlifehabitats/nonnatives/2020-rule-change/pet-owners/
FWC FAQ on new law and rules (several links mid-page): https://myfwc.com/wildlifehabitats/nonnatives/2020-rule-change/
Species affected
Burmese python (Python bivittatus);
Indian python (Python molurus);
Reticulated python (Malayopython reticulatus, or Python reticulatus);
Northern African python (Python sebae):
Southern African python (Python natalensis):
Amethystine python (Simalia amethistina, or Morelia amethistina);
Australian scrub python (Simalia kinghorni, or Morelia kinghorni);
Green anaconda (Eunectes murinus):
Nile monitor (Varanus niloticus);
Green iguana (Iguana iguana);
Tegu lizards (any species of the Genera Salvator or Tupinambis);
Red-eared sliders (Trachemys scripta elegans);
any species designated by FWC in the future.
