Big Cat Public Safety Act: USFWS v. USDA

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UPDATED June 29, 2017

On March 30, 2017 the Big Cat Public Safety Act (H.R. 1818) was introduced into the U.S. House of Representatives. Proponents of H.R. 1818 laud it as a bi-partisan effort to “prohibit private ownership of captive lions, tigers, and other big cats in the US.” — in other words, pets. However, this characterization appears not only disingenuous, but it is duplicative, as most states already prohibit the ownership of big cats as pets. If passed as written, the primary impact of H.R. 1818 would not be on pet owners, but on zoos and sanctuaries that are not ideologically aligned with animal rights advocates espousing historical anti-captive wildlife sentiments.

Usurping the Animal Welfare Act
In a joint press release animal rights groups claimed H.R. 1818 would strengthen the Captive Wildlife Safety Act (CWSA). The CWSA is the 2003 Lacey Act amendment mandating interstate transport of big cats be limited to facilities licensed by the U.S. Department of Agriculture (USDA) and their registered agents. This amendment was consistent with the primary directive of the Lacey Act— to combat “trafficking” in “illegal” wildlife. The Lacey Act was never intended to regulate animal welfare. That is the dominion of the Animal Welfare Act (AWA). However, H.R. 1818 seeks to expand the authority of the Lacey Act empowering U.S. Fish and Wildlife Service (FWS) to regulate “animal welfare” and “legal” wildlife; points of law already established under the AWA, and administered by USDA through the licensing and inspection of qualified facilities.

Dan Ashe, former Director of FWS under the Obama Administration and current CEO of the AZA, has long maintained working relationships with animal rights proponents of the Big Cat Public Safety Act, particularly Wayne Pacelle of the Humane Society of the United States (HSUS), as well as the International Fund for Animal Welfare (IFAW).

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Dan Ashe, CEO of the Association of Zoos and Aquariums— © Greg Nash

Three previous iterations of H.R. 1818 have been shopped around Capitol Hill since at least 2012. While touting public safety concerns, all have failed to get even a hearing because they are transparent attempts to establish the inequitable ideology of animal rights into the law. Previous versions of the Big Cat Public Safety Act offered an exemption to zoological facilities accredited only by the Association of Zoos and Aquariums (AZA), a trade association favored by bill proponents for instituting animal rights policies into their accreditation. These same proponents, led by the Humane Society of the United States (HSUS), have been engaged in an ongoing smear campaign against any zoo or aquarium not accredited by the AZA.

H.R. 1818 would continue to favor AZA, although no longer exempting them by name. The exemption is accomplished through a bit of “slight of hand,” calling for a USDA exemption, but then qualifying the exemption with a laundry list of AZA/HSUS negotiated policies inserted into the bill language. These qualifications effectively usurp authority from the AWA, placing it under the authority of the Lacey Act.

By writing animal rights policy into the Lacey Act, H.R. 1818 seeks to rewrite a broad swath of USDA animal welfare regulations by doing an end run around the AWA. These animal rights groups hope to supersede USDA regulations they were unsuccessful in changing through the administrative process by pushing legislation at the House Natural Resources Committee with lawmakers unfamiliar with animal welfare issues. If H.R. 1818 were to pass as written, FWS, without any experience regulating captive wildlife, would administer and enforce the new regulations.

H.R. 1818- Big Cat Public Safety Act:
Section 3 Prohibitions, (e) Captive Wildlife Offense, (2) Limitation on Application,  paragraph (1)(A), subparagraphs i, ii, iii, iv, v, vi, vii and viii, presumes to rewrite and supersede an area of established law pertaining to the “animal welfare” of “legal” wildlife already regulated by USDA under authority of the Animal Welfare Act, while maintaining a de facto exemption for AZA zoos.

Public Safety or Animal Rights?
Proponents of H.R. 1818 cite an incident in Zanesville, Ohio in 2011 as an example of why this bill is needed. However, while tragic, Ohio recently past legislation addressing the issues. Most states already strictly regulate the possession of big cats. South Carolina just passed a ban on big cats as pets in this legislative session.

Ironically, most of the accidents with big cats, lethal and otherwise, have occurred at AZA zoos that would be exempted from this legislation; most notably, San Francisco Zoo in 2007 when a tiger killed a patron and injured two others— and more recently, Palm Beach Zoo in 2016 when a tiger killed a zookeeper. There are only a small handful of states that don’t strictly regulate big cats. Ohio now has some of the strictest regulations in the country. Outside of AZA accredited facilities, a death from a big cat hasn’t been recorded since 2003.

At the end of the day, animal welfare is not under the purview of the Lacey Act. The Lacey Act was designed to address wildlife trafficking. Further, FWS is not equipped to administer animal welfare regulations. Undoubtedly, funding for this unprecedented and duplicative overreach will be difficult to appropriate under the current administration. Proponents of the Big Cat Public Safety Act have misled bill sponsors and committee members. There is no crisis looming. The Big Cat Public Safety Act is not about public safety. It is about picking favorites and eliminating zoos and aquariums that will not voluntarily adopt the policies of the animal rights movement.

Compromise
With the help of Dan Ashe and the AZA, HSUS and IFAW are attempting to build political support for a hearing on H.R. 1818 before the U.S. House Natural Resources Committee. After years of failure petitioning USDA to institutionalize their ideology under the guise of public safety, these animal rights groups hope to have success by changing their tact and selling their brand of “public safety” to lawmakers at Natural Resources unfamiliar with animal welfare issues.

If proponents truly wanted only to stop pet ownership of big cats, the solution would be quite simple— amend the H.R. 1818 with a straight forward USDA exemption— without all of the qualifications that make it a de facto AZA exemption. The fact is, the USDA already regulates all legitimate zoos and aquariums regardless of trade association affiliation. Requiring USDA licensing would end the practice of keeping big cats as pets and legitimate non-AZA zoos would not be penalized or coerced into a choice between trade associations. Additionally, this compromise avoids using the Lacey Act to usurp the integrity of the Animal Welfare Act. Without an equitable amendment, zoos and aquariums across the country will likely oppose the Big Cat Public Safety Act.

Winds of Change: Opportunity for Gain?

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Eagle take is strictly regulated under the Bald and Golden Eagle Protection Act of 1962

Opportunity Knocks
Donald J. Trump, whether you like him or not, is the new President of the United States. That could mean big changes for wildlife policy. During his address to the joint session of congress last week, Trump made it clear that the priorities of his Administration will be far different from those of his predecessor. While life under the Obama Administration proved difficult for many wildlife stakeholders, opportunities to influence future policy at the Department of Agriculture (USDA) and the Fish and Wildlife Service (FWS), are within reach of those that seize the initiative.

After almost a decade under siege by powerful special interest groups and unfriendly government agencies, it will be interesting to see if stakeholders that were under the knife with Obama go on the offensive under Trump.

Change is in the Air
It’s no secret that agency culture at USDA and FWS became decidedly anti-business and anti-resource use under the Obama Administration. With Hilary Clinton the heir apparent as next in line for the Presidency, animal rights and environmentalist organizations were giddy with prospects for a further expansion of power and influence in a Clinton Administration. However, the unexpected victory of Donald Trump brought those aspirations to a screeching halt. In this new political climate, like their opposition before them, wildlife stakeholders stand to make significant gains of their own.

Unless there are significant economic implications, most wildlife issues will not be a priority for the new Administration. The President made it clear that his focus will be on replacing Obama-care, tax reform, energy production and infrastructure. Most of the administrative regulatory changes previously under review, will likely never see the light of day. But while that may be a relief to many, it is a double edged sword for those who are faced with trying to garner attention to a much needed roll-back of bad regulations already put in place by the outgoing Administration.

Damages Done
Particularly hard hit by rule changes were herpetoculture and antique ivory interests. The arbitrary nature of these rules from FWS have yielded damages to stakeholders that could measure upwards of $100 million in lost jobs, assets and income. The challenge then becomes, when the new Administration is focused on weighty issues like repealing Obama-care and tax reform, how to bring attention to issues like Lacey Act over-reach or the trade of certain rare antiquities?

Wildlife Rules Enacted Under Obama Administration

  • FWS — Injurious Wildlife Listing of 9 Constricting Snakes — Python Ban
  • FWS — Categorical Exemption from NEPA Requirements on Lacey Act listings — CatX
  • FWS — Injurious Wildlife Listing of 201 Salamander Species– Salamnder Ban
  • USDA/Aphis — Handling and Husbandry of Neonatal Nondomestic Cats
  • FWS — Rule for the African Elephant, Endangered Species Act — Ivory Ban

There are also questions of internal decisions at regional FWS offices regarding limits on the issuance of wildlife take permits for species that have already been approved for specific use. The decision making process appears to be colored by a culture that is decidedly anti-hunting. Mid-level agency administrators are making decisions that are contrary to approved FWS policy. But where there is minimal economic impact, it can be difficult to bring these injustices to the attention of policy makers.

Fear of Loss is a Greater Motivator than Opportunity for Gain
Some believe, contrary to the results they have been able to produce, that grass roots activism has a significant influence on policy direction. There is no doubt that grass roots can have its place, especially in the legislative arena. Ten years ago, when I was the CEO of a trade association, we mounted a massive grass roots campaign defeating HR 669 in the House Natural Resources Committee. Our 50,000 hand written letters had to be carted into committee, and gave members more than enough cover to kill HR 669. However, “fear of loss” motivated that unprecedented response at committee. We are now talking about “opportunity for gain.” If you have been unable to accomplish your agency goals, it is unlikely that writing more letters and making more calls will provide the political leverage needed to effect that change. It can help, but it won’t win the day.

You Need a Plan
Don’t get me wrong, grass roots activism can be very effective, but it works best when it is part and parcel of a comprehensive strategy, not the alpha and omega of your advocacy efforts. You must have a comprehensive plan that sets benchmarks and creates an integrated blueprint for business, communications, fundraising and government affairs. If you can’t clearly see how to reach your goals, the chances of realizing them are slim to none. One thing is for sure, if you continue to do what you have always done, you will continue to get what you have always gotten.

It would be a monumental waste for stakeholders not to take advantage of this unprecedented opportunity for gains in the wildlife sector. Whether it’s making new law, roll-back of bad regulations, or holding agencies accountable, it won’t happen by itself. In order to realize positive change, you must be able to open doors and get your issues in front of those who can make a real difference. You need a plan. It’s not too late, but you have to be in the game to have a chance to win.


Frequently Asked Questions

  • What are the benefits of professional advocacy?
  • Does grass roots advocacy really work?
  • How do I create a strategic business/government affairs plan? 
  • Is a communications strategy important?
  • What is the difference between a bill and a proposed rule?
  • How do we get a rule “rolled back?”
  • Can we get permitting expedited?
  • How can creating a caucus help?
  • What is an issue campaign?
  • How do we get more than “lip service” from my member of congress?
  • How do we get accountable answers from federal agencies?
  • Why don’t agency employees care what we want?
  • How can we raise funds to pay for advocacy/legal assistance?

Andrew Wyatt is a government affairs and policy consultant that works exclusively in the wildlife sector.

WyattP1“Wildlife issues are highly charged and contentious. I specialize in articulating clear policy ideas and getting them in front of key decision makers. Please follow ‘The Last Word on Wildlife’ for insight and analysis particular to the 21st century wildlife sector. If you would like to discuss the potential advantages of creating a comprehensive business/government affairs strategy, or a more targeted issue campaign, please call or email me.” ~ Andrew Wyatt


© Andrew Wyatt and The Last Word on Wildlife, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Andrew Wyatt and The Last Word on Wildlife with appropriate and specific direction to the original content.