U.S. Ass'n of Reptile Keepers, Inc. v. Jewell

• Decision Date: 12 May 2015
• Docket Number: Civil Action No. 13–2007 RDM
• Citation: 103 F.Supp.3d 133
• Parties: United States Association of Reptile Keepers, Inc., Plaintiff, v. The Honorable Sally Jewell, et al., Defendants.
• Court: U.S. District Court — District of Columbia

103 F.Supp.3d 133

United States Association of Reptile Keepers, Inc., Plaintiff,

v.The Honorable Sally Jewell, et al., Defendants.

Civil Action No. 13–2007 RDM

United States District Court, District of Columbia.

Signed May 12, 2015

Paul Charles Rosenthal, David Earl Frulla, Kelley Drye & Warren, LLP, Shaun Michael Gehan, Law Office of Shaun M. Gehan, PLLC, Washington, DC, for Plaintiff.

Clare Marie Boronow, Meredith L. Flax, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

RANDOLPH D. MOSS, United States District Judge

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 GRANTEDin 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 ORDEREDto submit supplemental briefs on the proper scope of the injunction and whether a brief stay is appropriate. The parties are further ORDEREDto 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. See75 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 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.¹Id.It explained that two of the listed 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 construction and Regulatory Flexibility Act arguments.²They 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. SeeDkt. 37; Dkts. 44, 45, 48, 49.³The 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 (D.D.C.2012)(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–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, 129 S.Ct. 365, 172 L.Ed.2d 249 (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. SeeAm. Meat Inst. v. U.S. Dep't of Agric.,746 F.3d 1065, 1074 (D.C.Cir.2014), reinstated in relevant part by760 F.3d 18 (D.C...