**[National Environmental Coalition on Invasive Species]{.underline}**

Defenders of Wildlife, National Audubon Society,

National Wildlife Federation, Natural Resources Defense Council,

Union of Concerned Scientists, and the Florida Wildlife Federation[^1]

April 30, 2008

Public Comment Processing

U.S. Fish and Wildlife Service

Division of Policy and Directives Management

4401 N. Fairfax Dr., Suite 222

Arlington, VA 22203

Attn: R1N 1018-AV68

Filed at: [www.regulations.gov](http://www.regulations.gov/), docket
no.: FWS-R9-FHC-2008-0015

Re: notice of inquiry; constrictor snakes as injurious wildlife; R1N
1018-AV68

Dear Sir/Madam:

Thank you for the opportunity to comment on the above-referenced notice
of inquiry, published in the Federal Register on Jan. 31, 2008, vol. 71,
pp. 5784-85. The notice seeks information related to a possible listing
of large constrictor snakes in the *Python*, *Boa* and *Eunectes* genera
(hereinafter referred to collectively as "large constrictor snakes"), as
injurious wildlife under the Lacey Act, 18 USC § 42. We, the undersigned
members of the **National Environmental Coalition on Invasive Species**
(NECIS) strongly support [immediate]{.underline} listing of these large
constrictor snakes as injurious and their prohibition from further
import and interstate commerce in the United States. Our organizations
together represent millions of Americans concerned about the severe
ecological disruption and other harms caused by non-native invasive
species, such as many commonly-sold species in these snake genera.

We reiterate the high level of concern several NECIS members have
expressed in the past regarding the severe delays in the Fish and
Wildlife Service (FWS) approach to listing injurious animal species. We
believe Congress could not have intended that the FWS would take so long
to finalize individual Lacey Act listing proposals. In the present case,
the South Florida Water Management District (SFWMD) filed its listing
petition that led to the current notice of inquiry on Sept. 21, 2006,
yet it is now almost **two years later** and the FWS is merely making an
"inquiry," without yet issuing even a proposed listing rule. It appears
the FWS is headed toward the typical time period of approximately **four
years** from the date of the listing petition to complete an injurious
species regulation. (See detailed analysis in, Fowler, A., D. Lodge, and
J. Hsia. 2007. Failure of the Lacey Act to protect U.S. ecosystems
against animal invasions. *Frontiers in Ecology and the Environment*
5:357-359.)

This reactive approach by the FWS of listing injurious species **many
years after** **their risk becomes manifest** is unacceptable as it
often is largely symbolic, with little "real world" regulatory
significance. That is, the regulation typically can become law too late
to make an appreciable difference in the invasion process, as Fowler et
al. documented. The FWS approach needs to change immediately to more
proactively protect the nation from invasive non-native animals, which
pose a broad array of ecological, economic and human and animal health
threats. (See generally, the Defenders of Wildlife 2007 report: *Broken
Screens - The Regulation of Live Animal Imports in the United States*,
online at:
[www.defenders.org/animalimports](http://www.defenders.org/animalimports).)

**Factual Background**

We defer to comments from SFWMD and from other agency and private
scientists who can provide up-to-date information on ongoing and
potential impacts of these large constrictor snakes. We provide some
undisputed background facts important to this comment related just to
the Burmese python. Native to South Asia, this species can grow up to 20
feet long and 250 pounds in weight. Animal importers have shipped tens
of thousands of them into the United States for the pet trade. Burmese
pythons were first discovered deep in the Everglades National Park in
the mid-1990s. It appears relatively clear they were clandestinely freed
by uncaring pet owners or breeders who no longer wanted them. The U.S.
Geological Survey (USGS) now estimates a breeding population of up to
30,000 Burmese pythons in south Florida and predicts they will continue
to multiply, absent a massive and expensive control effort, for which
agency personnel and resources are inadequate. According to the USGS
increased temperatures from global warming could expand the Burmese
python's potentially suitable habitat to roughly the southern one-third
of the nation.

Partly due to FWS's slow approach to injurious species listings, Burmese
pythons have continued to be allowed to be sold in south Florida (and
across the rest of the nation), and additional clandestine releases of
them could have occurred, facilitating further expansion of their
occupied range. These continuing sales and foreseeable continuing
releases frustrate effective management efforts by the dedicated, but
under-resourced and overwhelmed, public agencies, such as the Everglades
National Park and the SFWMD, whose missions compel them to try to
control these large, dangerous non-native animals.

According to news reports, Florida authorities have recently also found
pythons in Big Cypress National Park, Miami's water management areas,
Key Largo, and many state parks, municipalities, and public and private
lands. They are not poisonous, but they are very powerful constrictors
and could potentially kill children in an encounter. In their native
habitats they have killed people. They are top predators that can and do
eat Florida's native wildlife of all kinds, including but not limited
to, bobcats, deer, alligators, raccoons, rabbits, muskrats, possum,
woodrats, mice, ducks, egrets, herons and songbirds. In short, the
Burmese python invasion is an ecological calamity in progress. Had the
FWS adequately considered the risks of this species under its Lacey Act
listing authority years ago, in a timely fashion, the FWS could have
helped to prevent this invasion by having prohibited importation of, and
commerce in, the species.

As far as other large constrictor species that have been sold in high
numbers in the United States, detailed factual background is provided by
Reed, who three years ago published an assessment of the risk to U.S.
interests from the boa and python genera. (Reed, R. 2005. An Ecological
Risk Assessment of Nonnative Boas and Pythons as Potentially Invasive
Species in the United States. *Risk Analysis* 25:753--766; note: while
the title does not list the genus *Eunectes* \[anacondas\], Reed's
analysis did consider that genus.)

**Injurious Species Standard**

The FWS notice of inquiry poses several questions to the public about
sales figures, numbers of businesses potentially impacted by a listing
decision and the likely financial costs of control and eradication if
further invasions of *Python*, *Boa* and *Eunectes* occur. (Notice of
inquiry, questions numbered 2 through 8, inclusive.) However, the issue
properly before the FWS is not the economic impact of a possible Lacey
Act listing, it is whether these snakes meet the definition of
"injurious species" in 42 USC sec. 18(a), i.e., species that are:

> *"injurious to human beings, to the interests of agriculture,
> horticulture, forestry, or to wildlife or the wildlife resources of
> the United States"*

It is abundantly clear these large constrictor snakes meet the
definition. Reed's 2005 study basically did the FWS's work for it by
thoroughly assessing the status and risks that a large number of the
most commonly-sold species in those three genera pose. Reed described a
high level of overall invasion risks, as well as pathogen and parasite
risks. The current and potential injuriousness of these large
constrictor snake genera "to human beings .... or to wildlife or the
wildlife resources of the United States" is beyond reasonable doubt,
given the highly foreseeable likelihood that these large snakes will
continue to be released by irresponsible owners who no longer want them
and will continue to be able to establish breeding populations
throughout much of the southern portion of the nation.

**Endangered Species Act Duty**

We will not reiterate all of Reed's risk assessment here because one of
his findings stands out as [determinative]{.underline} on the issue of
an "injuriousness" determination by the FWS. That is his conclusion with
respect to the threats these snakes pose to threatened and endangered
species listed under the Endangered Species Act (ESA), which the FWS
also administers. Reed found that: "a number of ESA-listed mammals in
Florida could be negatively impacted by the introduction of large-bodied
boas and pythons (Table V)." His Table V is reproduced below:

most likely to be colonized by invasive snakes.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Reed's 2005 prediction of [foreseeable]{.underline} predation on listed
species has been validated by the recent reports from southern Florida
control officials who have discovered the listed Key Largo woodrat
(*Neotoma floridana smalli*) in the stomachs of trapped Burmese pythons.
(See, e.g., Austin, J. 2007. "Stopping a Burmese Python Invasion," The
Nature Conservancy -- Florida Chapter website, online at:
[www.nature.org/wherewework/northamerica/states/florida/science/art24101.html](http://www.nature.org/wherewework/northamerica/states/florida/science/art24101.html)
, and "Fla. Politicians Take Steps to Rid Everglades of Invasive
Pythons," posted on NBC6.net news site, on Mar. 26, 2008, online at:
[www.nbc6.net/news/15715572/detail.html](http://www.nbc6.net/news/15715572/detail.html).)

In short, large constrictor snakes are taking highly endangered animals
and will foreseeably continue to take more, potentially placing them in
greater jeopardy of extinction. The latter-cited news piece, above,
contains these quotes about a possible Lacey Act listing to reduce this
risk:

-   "...\[Florida's U.S. Senator Bill\] Nelson said he wants a ban on
    python imports and interstate sales, but Fish and Wildlife
    regulations take years to go through."

-   "It could be as long as seven (years), so you\'ve got a problem
    completely out of control,\" \[National Park Biologist Skip\] Snow
    said."

The FWS's excruciating pace of taking multiple years to act to protect
endangered species via a Lacey Act injurious species listing is utterly
inadequate. It is inconsistent with section 7(a)(1) of the ESA, which
provides the "Secretary shall review other programs administered by him
and utilize such programs in furtherance of the purposes of this
chapter." 16 U.S.C. § 1536(a)(1). The purposes of the ESA are to
"provide a means whereby the ecosystems upon which endangered species
and threatened species depend may be conserved, to provide a program for
the conservation of such endangered species." 16 U.S.C. § 1531(b). (See,
[Sierra Club v. Glickman]{.underline}, 156 F.3d 606, 616 (5^th^ Cir.
1998), which concluded that Congress "intended to impose an affirmative
duty on each federal agency to conserve each of the species listed
\[under the ESA\]".)

This "affirmative duty" to conserve each listed species, such as the Key
Largo woodrat and others listed in Reed's table, above, which are
threatened by snake predation, mandates that the FWS promptly take steps
within its authority to reduce the likelihood of continuing predation.
The FWS must "utilize such programs" that it administers, in this case
its program of listing injurious species under the Lacey Act, to
conserve listed species and their habitats in the face of this threat.
It is reasonably foreseeable that reducing further imports and
commercialization of the large constrictor snake genera at issue will
reduce the numbers of their clandestine releases into the wild. This
will eventually serve to reduce their overall numbers and occupied range
and will correspondingly reduce the potential jeopardy they pose to
listed native species.

This affirmative ESA conservation duty is not one that the FWS can
"weigh" along with the economic impact information the agency is seeking
in the bulk of the questions in its notice of inquiry. Nor is it a duty
that the FWS can reasonably delay for multiple years from the time the
potential jeopardy to listed species was first documented, especially in
view of the detailed threat information available to the agency at least
since the publication of Reed's analysis in 2005. An emergency-based
[immediate]{.underline} Lacey Act listing is called for now.

**Conclusion**

As top predators that will consume native threatened and endangered
species, the *Boa*, *Python* and *Eunectes* genera are clearly
"injurious ... to wildlife or the wildlife resources of the United
States" under the Lacey Act definition, above. Further delays in their
listing as injurious will add to the potential jeopardy they pose
[now]{.underline} to ESA-listed species. Their Lacey Act listing cannot
be delayed consistent with Sec. 7(a)(1) of the ESA while the FWS seeks
economic information related about snake sales numbers and about
potentially-impacted businesses, on which the agency's notice of inquiry
focuses. This ongoing delay amounts to a breach of the affirmative duty
the FWS has to conserve threatened and endangered species.

The FWS needs to learn from its past mistake of failing to prohibit
importation of Burmese pythons and to [timely]{.underline} issue a final
injurious species listing rule on an [emergency]{.underline} basis for
the three snake genera at issue. Then, the FWS needs to promptly assess
the many other incipient animal invaders that are in commerce now, for
which a Lacey Act listing could help to prevent future ecosystem
calamities comparable to the likely irreversible Burmese python invasion
the nation now faces.

If you have any questions on this comment, please contact me at
202-772-0293 or email: <pjenkins@defenders.org> .

Sincerely,

/s/

Peter T. Jenkins

Director of International Conservation

Defenders of Wildlife

1130 17th St. NW

Washington, DC 20036

CC: Gary Frazer, Assistant Director, Fisheries and Habitat Conservation,
FWS

Bryan Arroyo, Assistant Director, Endangered Species Program, FWS

On behalf of the undersigned:

Manley K. Fuller, III,

President

Florida Wildlife Federation

Tallahassee, FL

850-656-7113; <wildfed@aol.com>

Michael Daulton

Director of Conservation Policy

National Audubon Society

Washington, DC

202-861-2242; <mdaulton@audubon.org>

Corry Westbrook

Legislative Director

National Wildlife Federation

Washington, DC

202-797-6840; <westbrook@nwf.org>

Gabriela Chavarria, Ph.D.

Director, Science Center

Natural Resources Defense Council

Washington, DC

202-513-6268; <gchavarria@nrdc.org>

Phyllis N. Windle, Ph.D.

Senior Scientist and Director, Invasive Species

Union of Concerned Scientists

Washington, DC

202-331-5440; <pwindle@ucsusa.org>

[^1]: ^^ The Florida Wildlife Federation is an affiliate of the
    National Wildlife Federation but is not itself a member of the
    National Environmental Coalition on Invasive Species.