New Lacey Act Amendments

[Homebody]

Just to continue the discussion because there is still a lot of confusion among us.

Under the newly amended Lacey Act, there will be both what we're calling a "black" and a "white" list. The black list (described in section (a)(1)) will prohibit both the importation and interstate transport of species deemed "injurious" by the Secretary of the Interior. The black list currently bans only the importation of "injurious" species. The Secretary tried to interpret it to prohibit also the interstate transport of these species but a federal appeals court in 2017 disagreed. The proposed amendments will reverse that victory and again prohibit the interstate transport of "injurious" species. The amendments also give the Secretary the emergency power to add species to the "injurious" list, without notice, for up to 3 years.

The white list is new. It's being added by amendment as section (d)(1). This amendment will prohibit the importation of all non-native species that are not already prohibited under section (a)(1), the black list, unless during the year prior:

1. the species was imported in more than minimal quantities;
2. the species was transported between the states in more than minimal quantities;
3. the Secretary determines the species does not pose a significant risk of invasiveness.

The Secretary has a year to decide what constitutes "minimal quantities." Whatever the Secretary decides, this will effectively ban the importation of millions of species with the only recourse being to convince the Secretary that the species doesn't pose a significant risk of invasiveness.

I think it's important to know that, even if these amendments are enacted, any action the Secretary takes under these amendments will be challenged. If the Secretary uses her new emergency powers to add a species to the "injurious" species list, she will have convince the courts that there is, in fact, an emergency. Otherwise, she doesn't have the power to act. She can't just add species because she doesn't like them. In addition, the white list will automatically include species imported in more than minimal quantities or transported between the states in more than minimal quantities. The danger, of course, is that she gets to decide what constitutes "minimal quantities." Theoretically, she could ban the importation of all exotic species just by defining "minimal quantities" as a very high number, but that will also have to hold up to a legal challenge. I'm also concerned about how the Secretary will determine how many of each species was imported or transported between the states. There are probably fairly reliable records on imports, but I don't know how the Secretary will count the number transported between states. I'm sure that whatever method she uses will be challenged.

But let's not let it come to that. Continue to educate yourself, mobilize and stay tuned to USARK's alerts.