If you would study the law of a country, consider yourself on an ambling tour of that “ship of state,” its deck filled with crew hubbub and the creaking of mooring — a massive, labyrinthine ship, which turns only deadeningly slow in the water.

In August, the US Fish & Wildlife Service (FWS) promulgated a Schedule 4(d) schema for hyacinth macaws, which the Service designated as “threatened”  under the federal Endangered Species Act (ESA), 16 USC 1531 et seq. This action concluded a six-year long initiative to settle the rapidly evolving status of that signature Gentle Giant of Parrots, the hyacinth macaw.

To understand the posture of this determination, it helps to have a perspective on the framework of animal conservation law in the US, a structure that had the Lacey Act of 1900 as its first cornerstone. The Lacey Act criminalizes illegal trade in animals and plants and establishes a system of both civil and criminal penalties for such violations. The Lacey Act prohibits the importation, exportation, transport, sale, receipt, acquisition, or purchase of any fish, or other wildlife taken, possessed, transported, or sold: (1) In violation of any federal regulation, law, or treaty, or regulation or any Indian tribal law; or (2) In violation of any law or regulation of any State or any foreign law, whether the act be in the international or interstate context.

Thus, by example, under the Lacy Act, any importation, exportation, transport, sale, receipt, acquisition, or purchase of a wild-sourced hyacinth macaw, whether internationally or in interstate commerce, implicates civil or criminal liability because removing a wild-sourced hyacinth macaw violates Brazil’s Environmental Crimes Law (9605/98). Likewise, any importation, exportation, transport, sale, receipt, acquisition, or purchase of a species listed on CITES Appendix I would give rise to criminal liability under the Lacy Act.

New students of US conservation law may perceive an inconsistent redundancy, a seemingly senseless duplication, overlap and inefficiency in the parallel but independent endangered species protections established separately in the federal ESA and the Wild Bird Conservation Act (WBCA). Yes, a particular species at a given time may be subject simultaneously to multiple federal conservation initiatives. Even while jurisdiction for separate regulatory jurisdiction may lie within the same Cabinet-level Department, the programs may be administered by separate offices within that bureaucracy.  And those separate programs cannot foresee, nor would they necessarily confer and resolve were they to foresee, contradictory outcomes in a given case of first impression.

Yes, where an organizational efficiency consultant would insist such programs merge to resolve the discrepancy, the two independent programs more likely have the “territorial” budget incentive to ignore each other one more year, or deny the conflict one more year, in order to sustain or increase their office’s annual budget.  That’s just a proactive career protection strategy.

In the 1970s the United States actually exemplified the cutting-edge in conservation law with ESA’s enactment.  The CITES multilateral treaty did not have effect until nearly twenty years later in 1992. The Schedule 4(d) regimen FWS promulgated in August takes its authorization, content and significance from ESA, not the later WBCA. While the rule references CITES, and while the rule uses similar terminology, its energizing principles are rooted in a preexisting and independent framework.

The WBCA  restricts importation of most CITES-listed exotic birds. Depending on the species, official findings about that species and properly implemented licensing programs, specific listed bird species may after all be imported or traded pursuant to such licenses for scientific research, zoo programs or even the companion animal industry, pets, when certain criteria are met.

 The FWS August rule designates hyacinth macaws as “threatened” not “endangered” and so, under color of 50 CFR 17.31,  generally prohibits imports and exports. Although ESA authority and structure preexisted CITES, the 4(d) rule basically incorporates CITES and the WBCA authority by reference. However, the 4(d) rule allows a person to import or export without a permit under each of two different circumstances:

(1) The wild-sourcing of the macaw in question demonstrably occurred prior to the date the species was listed under CITES, e.g., the “grandfathered” macaw; or

(2) the hyacinth was demonstrably not only aviary- raised but also at least F2.

Obviously, integrating CITES reference points was the easy way out. But this left a very real world problem: none of the applicable paperwork requirements had been imposed on the parties with ownership. Thus current owners should be able to prove through original records the importation dates of wild-sourced “grandfathered” birds, pr sufficient pedigree or breeding records of  F2 grandchildren of those grandfathered parrots.

And that’s where the proverbial sh*t hits the fan. First of all, the only parties ever obligated to maintain importation documentation were the Quarantine operators. But FWS now claims the designated document retention period for such records was only five years. As hyacinth macaws are not sexually mature until seven or eight years, may not breed until fifteen years, and have a potential reproductive lifespan of about 65 years, the adoption of a five year document retention policy was at best short sighted and at worst something from Theatre of the Absurd. Shall you or I Wait For Godot, or has the Quarantine operator already diverted him?!

Second, no law or regulation ever imposed pedigree record-keeping requirements on breeders, nor did any law or regulation every designate a self-regulatory national aviculture organization as the body authorized to impose such requirements on its members.

The overarching purpose of the constitutionally sufficient Notice and Comment procedure for federal government agencies is to prevent arbitrary and capricious post hoc decision making. In other words, our legal system generally does not charge unwitting parties with achieving the impossible: when a new legal requirement is imposed and logical demonstrates that in certain circumstances a party had no possible means of meeting the post hoc requirements, those parties are “grandfathered” into the class of people deemed compliant.

Either the FWS should observe the culturally appropriate practice of grandfathering, or the agency officers should “return to the drawing board” and specify rational and realistic requirements rather than, as it has to this point, incorporate impractical rules arising from a later, inapplicable parallel legal construct.

 

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