USARK Legal Action Against FWS Constrictor Rule

Approximately three months have passed since U.S. Fish & Wildlife Service (FWS) took the unprecedented action of adding four constricting snakes to the Injurious Wildlife list of the Lacey Act. Never before have animals widely held by the American public been listed. Originally FWS suggested the addition of all of Boa, Python and Eunectes. The list was whittled down to nine constricting snakes after the highly controversial “Risk Assessment” was published by Gordon Rodda and Robert Reed of the U.S. Geological Survey (USGS). The final rule was announced in January 2012. USARK was able to block five of the nine proposed snakes by taking dynamic action against the rule. Never before had a Injurious Wildlife listing been challenged or blocked. Nevertheless, the final rule was enacted March 23rd 2012 with four constricting snakes.

U.S. Geological Survey

From the very beginning of this process USARK has been very careful to lay the groundwork and establish the public record that would afford us the ability to take legal action if necessary. Scientists from all over the world have criticized the sloppy and speculative work used by FWS to justify Lacey Act listing. In 2010 USARK filed a formal challenge of the USGS “Risk Assessment” under the Information Quality Act. In 2011 Georgetown Economic Services (GES) published “The Modern Reptile Industry”, an independent and comprehensive economic survey that included the impact that a Lacey Act listing was likely to have on legitimate business interests. The GES report demonstrated how the listing could impact as much as $104 million in trade annually. USARK built a clear and convincing case that FWS was potentially arbitrary and capricious in their zeal for a listing.

USARK and its counsel are carefully reviewing their legal options for addressing the U.S. Fish and Wildlife Service’s unwarranted listing of four constricting snakes, including Burmese pythons, on the Lacey Act’s Injurious Wildlife list. We believe the listing decision was precipitous, unsupported by the best available science, and poor policy. USARK is also concerned about the five other species of snakes, including Boa constrictor, that FWS has deferred addressing.

High quality captive bred Burmese python morphs

We believe FWS has exceeded its Lacey Act authority in terms of the breadth of the restrictions placed on the four listed species. The organization will continue to develop its legal theories and develop a plan for addressing the industry’s legitimate concerns with the proposed and final rules.

These legal maneuvers are not inexpensive, and will be even more costly if it is necessary to file a federal lawsuit. Our goal is to raise $250,000 between now and the end of the year. This is only a start. If we file a lawsuit it could easily require twice that amount. FWS doesn’t think that the Reptile Nation is capable of fielding a serious legal challenge to their arbitrary Lacey Act listing. They don’t think we can raise the money. We have waited until our legal team gave us the word that they felt we have a strong and clear course of action to follow. Now is the time for the Reptile Nation to stand up and take back what is ours!

Please use PayPal to donation@usark.org. Please put “LAW” in the comment or note area; or you can mail a check to: USARK, PO Box 279, Grandy, NC 27939. Please put “LAW” in the memo line.

donate

 

This blog has been shared directly from http://usark.org/action-alert/usark-legal-action-against-fws-constrictor-rule/

The United States Association of Reptile Keepers (USARK) is a registered non-profit organization duly incorporated in the state of North Carolina. We are advocates for the practice of Herpetoculture; the non-traditional agricultural pursuit of farming high quality captive bred reptiles & amphibians for conservation projects, zoos, museums, research facilities, education, entertainment and pets. We are dedicated to conservation through captive propagation, and espouse the ideal of, “Preserving Reptiles & Amphibians for Our Future”. We endorse a ‘Keepers Code of Ethics’. Our members are veterinarians, researchers, breeders, manufacturers, feed producers, hobbyists and pet owners; collectively known as the Reptile Nation. Our membership accounts for annual trade revenues of $1.4 billion in the US. USARK is the only advocate of the conservation, responsible ownership and trade of reptiles and amphibians as a #1 priority with no conflicting interests.

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Python Ban: The Answers to Living Under the Lacey Act

 

 

Prehistoric Pets has long worked with a wide variety of species of large constrictors, over a span of many years. During that time, we have come to an intimate understanding of the animals we have worked with, their temperature and environmental needs, personalities, reproductive and feeding capabilities. With this background and some additional research it becomes clear the animals recently added to the Lacey act are neither capable of living outside of their current establishment in the Everglades or pose a reasonable threat to humans.

Today the listing of of 4 large constricting snake species as injurious under the Lacey Act officially goes into effect. At Prehistoric Pets we have had many customers, friends, and fans who have been calling in to find out exactly what this means to them. To provide a clear answer to the most commonly asked questions, today’s blog will highlight the most important changes with links to the government agencies where further resources and information can be found.

 

 

Q: When is the rule in effect?

A: Today, March 23, 2012

 

Q: What animals are included?

A:  Burmese Python, North African Python, Southern African Python, Yellow Anaconda, their eggs and hybrids.

 

Q: What does the listing entail?

A: No importation or interstate transport of the included animals.

 

Q: Is it still legal to own, breed, and display these animals?

A: Yes, if there are no further restrictions in your area of residence, these animals may still be kept for pets, display, and breeding, but at no point can move across state lines.

 

Q: If I move to another state can I bring my listed pet?

A: No. There is absolutely no interstate transport of the 4 listed species within the United States for personal purposes. All interstate transport of the listed species will result in penalty under the Lacey Act.

 

Q: What options do I have as an owner of one of these animals who is relocating to another state?

A: There are some options as provided by the Department of Fish and Wildlife below.

Pet Industry Joint Advisory Council’s Pet Pathway Toolkit: www.petpathwaytoolkit.com

Habitattitude www.habitattitude.net

 

Q: Can these animals be rescued from out of state?

A: No. Rescues may only care for animals currently within their state.

 

Q: Can these animals be purchased online or at trade shows?

A: Only if their original location is within your state. For example to purchase a Burmese python from Prehistoric Pets you must live within the state of California. If you live in the state of Colorado you will be unable to purchase a Burmese python from Prehistoric Pets and instead must locate a Colorado based breeder.

 

Q: Can these animals be exported out of the country?

A: Yes, if there are no US stops during transport. For example if a shipment from Los Angeles International Airport is headed to London’s Heathrow International Airport the flight cannot make a stop at John F Kennedy International Airport, this would be considered interstate transport between California and New York and furthermore a violation of the Lacey Act. NOTE: This listing also adds these animals in Appendix II of the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES) listing requiring CITES export permits.

 

Q: Are there any exceptions to the ban on importation or interstate transport?

A: There are only 4 exceptions to this rule which all must receive authorized and permitted approval BEFORE transport. These exceptions are medical (not veterinary), scientific, zoological, and education.

 

Q: Can I perform educational presentations outside of my state?

A: Yes, if the correct permitting requirements completed BEFORE transport. See below. NOTE: Please allow at least 60 days for permit processing.

 

Q: What steps are required to meet permitting requirements?

A:            1. Application Form 3-200-42 (www.fws.gov/forms/3-200-42.pdf)

                2. PERMANENT Housing in Double Escape-Proof Containment at ALL TIMES

               
Q: What does PERMANENT Housing in Double Escape-Proof Containment mean?

A: Under permit requirements all applied animals, including their offspring, must be kept in double escape-proof containment at ALL TIMES. Double escape-proof containment, just as it sounds, is defined as housing the animal in a secured area, within another equally as secured area. In regular housing this would mean in a locked cage within a locked room/building. During transport this would mean in a container within a larger secured container. If the animal is to be handled during an educational presentation it must be within a room with a closed door, which is within another room with a closed door. NOTE: This housing requirement is not only required during the permitted activity but for the life of the animal AND ALL OFFSPRING.

 

Q: What are the penalties for violating the Lacey Act?

A.   “Violations of the Lacey Act provisions may be prosecuted through either civil or criminal enforcement actions.  With respect to potential criminal penalties, a two-tiered penalty scheme exists, creating both misdemeanor and felony offenses, distinguished by a defendant’s knowledge of the underlying law.  For a Lacey Act violation to be a felony, the defendant must have knowingly imported or exported fish or wildlife or plants in violation an underlying law or regulation, or knowingly engaged in conduct during the offense that involved the sale or purchase of, the offer for sale or purchase of, or the intent to sell or purchase plants or wildlife with a market value of over $350 knowing that the fish or wildlife or plants were taken, possessed, transported or sold in violation of an underlying law or regulation.  A misdemeanor penalty requires that the defendant “in the exercise of due care” should have known the fish or wildlife or plants were taken, possessed, transported, or sold in violation of an underlying law or regulation. “ 

“Felony criminal sanctions are provided for violations involving imports or exports, or violations of a commercial nature in which the value of the wildlife is in excess of $350. A misdemeanor violation was established, with a fine of up to $10,000 and imprisonment of up to 1 year, or both. Civil penalties up to $10,000 were provided. However, the Criminal Fines Improvement Act of 1987 increased the fines under the Lacey Act for misdemeanors to a maximum of $100,000 for individuals and $200,000 for organizations. Maximum fines for felonies were increased to $250,000 for individuals and $500,000 for organizations.

Those enforcing the Act are authorized to carry firearms, make qualified warrantless arrests for felony and misdemeanor violations of any law of the U.S. when enforcing the Act, search and seize under Attorney General guidelines, issue subpoenas and warrants, inspect vessels, vehicles, aircraft, packages, crates, and containers on arrival in the United States from outside the United States or prior to departure from the United States.” 

 

Sources:

http://www.fws.gov/home/feature/2012/pdfs/ImplicationsoftheInjuriouslistingforthe4constrictorsnakes.pdf

http://www.fws.gov/laws/lawsdigest/LACEY.HTML

http://www.fws.gov/home/feature/2012/pdfs/FoursnakesQsAs11612.pdf

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&ved=0CEsQFjAE&url=http://www.fs.fed.us/global/aboutus/policy/tt/illegal_logging/Lacey_Act_amendments_public_summary.doc&ei=Ie9sT-mIKKSxsgLOiK2bBg&usg=AFQjCNGZjhxeb3UmdQ1KqzxzaZzgk-E0kw

 

 

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Python Ban: The "Good Science" Argument

 

 

Prehistoric Pets has long worked with a wide variety of species of large constrictors, over a span of many years. During that time, we have come to an intimate understanding of the animals we have worked with, their temperature and environmental needs, personalities, reproductive and feeding capabilities. With this background and some additional research it becomes clear the animals recently added to the Lacey act are neither capable of living outside of their current establishment in the Everglades or pose a reasonable threat to humans.

We’ve compiled just some of the facts we’ve found within the documentation supposedly backing this faulty legislation. We urge you to read these excerpts, examine the sources and develop your own opinion on the subject, but please please do not rely on sensationalized images and articles with an underlying agenda. Today we will cover the "good science" argument examining the quality and biases of the research backing country wide bans on large constrictors.

 

 

 

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Question 3:  What scientific data are evaluated for an injurious wildlife listing?

First, the agency evaluates the factors that contribute to a species being considered injurious, including:

·         the likelihood of release or escape;

·         potential to survive, become established, and spread;

·         impacts on wildlife resources and or ecosystems through hybridization and competition 

·         for food/habitats, habitat degradation/destruction, predation, and pathogen transfer;

·         impact to threatened and endangered species and their habitats; 

·         impacts to human beings, forestry, horticulture, and agriculture; and 

·         wildlife or habitat damages that may occur from control measures 

Second, the Service evaluates factors that reduce the likelihood of the invasive species causing harm, including the:

·         ability to prevent escape and establishment; 

·         potential to eradicate or manage established populations;

·         ability to rehabilitate disturbed ecosystems;

·         ability to prevent or control the spread of pathogens or parasites; and

·         any potential ecological benefits to introduction.

http://www.fws.gov/home/feature/2012/pdfs/FoursnakesQsAs11612.pdf

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Question 9:  There have been other studies on constrictor snakes and the risk of their establishment in wild populations in the U.S.  Does the 2009 USGS risk assessment on these four constrictor snakes continue to represent the best available science on this subject?

The 2009 USGS risk assessment still represents the best available science.  Scientists associated with academic and other institutions are working on similar research questions, but none has reached new conclusions through comparable process or analyses to date. Please also see the accompanying fact sheet Global Experts Concur with Science to Predict Spread of Large Constrictor Snakes for more information.

http://www.fws.gov/home/feature/2012/pdfs/FoursnakesQsAs11612.pdf

The Information Quality Act governs the standard of quality of information used to substantiate a federal rule making such as the Constrictor Rule. Because, at the behest of USARK, it was confirmed from scientists round the world that the USGS Constrictor Report was NOT the kind of quality scientific work to base policy or legislative changes on, USARK filed a formal challenge in 2010 of the Constrictor Report in the form of a Request for Correction of the myriad of errors, misstatements and inconsistencies within the document. USGS responded that they were not held to information quality standards under the IQA because their "Grey" paper was NOT deemed at the time of publication to be a "Highly Influential" document; meaning that their estimate of the economic impact of the rule it was supporting fell below the $100 million threshold that constitutes a major rule. Unfortunately for them USARK commissioned Georgetown Economic Services to do a comprehensive economic assessment of the reptile industry. They researched the entire industry and determined that the rule, in fact, reached beyond the threshold to approximately $104 million. This put the entire rule making process in jeopardy, because now USGS and FWS could be held to account in a federal courtroom for bypassing information quality standards under IQA. After USARK proved that this would indeed fall into major rule territory, White House oversight officials appeared ready to bury the rule.... Until HSUS, The Nature Conservancy and Defenders of Wildlife pressured Florida politicians to ask Obama to push rule through. Then government did what it always does, it compromised. They chose 4 snakes that would not carry the economic impact constituting a major rule and enacted this limited version avoiding the mandatory integrity in science demanded by going after all 9.

https://www.facebook.com/pages/USARK-United-States-Association-of-Reptile-Keepers/93475517723

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Question 17:  What steps related to the Lacey Act were taken to evaluate large constrictor snakes as injurious wildlife?

The completion of the risk assessment done by USGS was an important milestone in our evaluation and a requirement before additional steps could be taken. 

http://www.fws.gov/home/feature/2012/pdfs/FoursnakesQsAs11612.pdf

USGS responded that they were not held to information quality standards under the IQA because their "Grey" paper was NOT deemed at the time of publication to be a "Highly Influential" document.

https://www.facebook.com/pages/USARK-United-States-Association-of-Reptile-Keepers/93475517723

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The Peer Review process is the scientific standard which every legitimate scientific paper (that is published in scientific journals) must go through to become accepted as reliable science. Not surprising however is fact that no such standard is utilized by the USGS, even though it is a necessary legal process used to determine the legitimacy of any proposed and intended) act: in this case, the ruination of a legitimate business which seeks to promote the establishment of populations of species otherwise destined for survival challenges or worse, extinction. In fact their “reports” are purportedly reviewed by anonymous “scientists” of the USGS choosing and follow NONE of the necessary Peer Review protocols to substantiate their claims. 

http://axcessnews.com/index.php/articles/show/id/22357

 

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Let me correct two common misconceptions first. This study was not done by the National Academy of Sciences as many stories reported; it was published in the Proceedings of the National Academy of Sciences -- big difference. Likewise this was not a nine-year study in that we did not start this study nine years ago. We started this study 1-2 years ago and collected information that was available over a nine-year period (2003-2011) and compared it to similar data collected earlier (1993-1999). And sure enough a very dramatic pattern did exist. I liken what we did to a grand jury investigation. We amassed the available evidence and asked if it was sufficient to demonstrate that a crime had occurred (mammal populations had declined) and to suggest that pythons could be responsible (they had motive, means, and opportunity). An indictment was handed down. That does not mean the pythons are guilty. It does mean we need to go to trial. According to English law the accused should be considered innocent until proven guilty. In science terms we call this a null hypothesis, or a statement of no effect. Of course none of this sells newspapers, draws viewers to a television station, or causes hits on a website.

http://www.huffingtonpost.com/frank-mazzotti/pythons-everglades-study_b_1257911.html

 

 

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Python Ban: The Precedent Argument

Prehistoric Pets has long worked with a wide variety of species of large constrictors, over a span of many years. During that time, we have come to an intimate understanding of the animals we have worked with, their temperature and environmental needs, personalities, reproductive and feeding capabilities. With this background and some additional research it becomes clear the animals recently added to the Lacey act are neither capable of living outside of their current establishment in the Everglades or pose a reasonable threat to humans.

We’ve compiled just some of the facts we’ve found within the documentation supposedly backing this faulty legislation. We urge you to read these excerpts, examine the sources and develop your own opinion on the subject, but please please do not rely on sensationalized images and articles with an underlying agenda. Today we will cover the expandability argument that is so often pushed to the background. Although the number of species was limited from 9 to 4 these articles show a clear direction.

 

 

PRECEDENT ARGUMENT

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Question 6:  One of the pet industry’s concerns is:  If the government can restrict the movement of these species, it could also do it for other species that people hold as pets. 

This could set a precedent.  What do you say to that?

Since its enactment in 1900, the Lacey Act has authorized the federal government to prohibit the importation and transport of certain, harmful species in the United States.  Both Congress and the Administration, have restricted the importation and interstate movement of species or groups of species involved in the pet trade. 

This rule sets no broad policy precedent; it is consistent with similar Administration rules under the Lacey Act and Congressional amendments to the Lacey Act.   It is promulgated under the statutory parameters and restrictions imposed by the Lacey Act and other statutes relevant to the federal promulgation of Administrative law, including both its scope and the policy issue it addresses.

[2 Paragraphs Above] The Service is continuing to consider the status of the other five species and will publish final determinations for those species when that process is completed. 

http://www.fws.gov/home/feature/2012/pdfs/FoursnakesQsAs11612.pdf

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Environmental groups say the rule is a small but important step toward preventing entry of animal imports that pose significant risks to ecosystems and public safety.

“This listing is one step toward limiting the massive flow of harmful species into this country, but the current listing approach doesn’t even come close to keeping up with the 21st century trade of live animals.” “We are urging Congress and the Administration to advance broader regulatory reforms of the injurious species listing process.”

-Peter Jenkins spokesperson for the National Environmental Coalition on Invasive Species (NECIS)

http://www.necis.net/2012/01/obama-administration-releases-rule-to-prohibit-import-of-some-large-constrictor-snakes/

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Salazar Announces Ban on Importation and Interstate Transportation of Four Giant Snakes that Threaten Everglades

Ashe said the Service will continue to consider listing as injurious the five other species of nonnative snakes that the agency also proposed in 2010 – the reticulated python, boa constrictor, DeSchauensee’s anaconda, green anaconda and Beni anaconda.

http://www.doi.gov/news/pressreleases/Salazar-Announces-Ban-on-Importation-and-Interstate-Transportation-of-Four-Giant-Snakes-that-Threaten-Everglades.cfm

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Python Ban: The Adaptability Argument

 

 

Prehistoric Pets has long worked with a wide variety of species of large constrictors, over a span of many years. During that time, we have come to an intimate understanding of the animals we have worked with, their temperature and environmental needs, personalities, reproductive and feeding capabilities. With this background and some additional research it becomes clear the animals recently added to the Lacey act are neither capable of living outside of their current establishment in the Everglades or pose a reasonable threat to humans. We’ve compiled just some of the facts we’ve found within the documentation supposedly backing this faulty legislation.

We urge you to read these excerpts, examine the sources and develop your own opinion on the subject, but please please do not rely on sensationalized images and articles with an underlying agenda. Today we will cover the adaptability argument that is so often misconstrued and sensationalized by hypothetical ideas instead of the facts proven by multiple tests.

 

 

 

 

 

ADAPTABILITY/SURVIVABILITY ARGUMENT

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Large constrictor snakes released into federal lands, such as National Parks or National Wildlife Refuges, not only present a threat to the living resources protected for the benefit of the public on those lands but they also present the potential for the establishment of reproducing populations, which can then become a source for the spread of these species into surrounding states.

http://www.fws.gov/home/feature/2012/pdfs/FoursnakesQsAs11612.pdf

Jewell says the import ban won't help the Everglades — it's too late there. It's meant to keep pythons and other constrictors from spreading. The Fish and Wildlife Service's research suggests that they could live almost anywhere in the Southern U.S.

http://www.npr.org/2012/01/31/146124073/pythons-blamed-for-everglades-disappearing-animals

In a related study, Dorcas et al. (2010) relocated 10 Burmese pythons from the Everglades to an outdoor research setting in South Carolina in June 2009. The following January, the pythons all died.

http://www.fws.gov/home/feature/2012/pdfs/ColdWeather.pdf

In a study conducted in the Everglades, nine of ten radio-tracked snakes in shallow marsh habitat perished either from the cold temperatures or from complications experienced as a consequence of the cold temperatures.

http://www.fws.gov/home/feature/2012/pdfs/ColdWeather.pdf

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The Service’s injurious wildlife evaluation indicates these snakes have this potential, particularly the potential to expand beyond south Florida. Large constrictor snakes have demonstrated that they are highly adaptable to new environments, consuming any prey available, and they are observed to efficiently use habitats available to them in their existing U.S. locations.

http://www.fws.gov/home/feature/2012/pdfs/FoursnakesQsAs11612.pdf

In a related study, Dorcas et al. (2010) relocated 10 Burmese pythons from the Everglades to an outdoor research setting in South Carolina in June 2009. The following January, the pythons all died.

http://www.fws.gov/home/feature/2012/pdfs/ColdWeather.pdf

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Question 11:  Why not just allow each State to decide whether or not these four species of snakes or any other species should be banned?

The application of the Lacey Act prohibitions on these snake species is necessary because public interests of U.S. citizens are, and may reasonably be assumed to be in the future, affected across state boundaries.  Large constrictor snakes released into federal lands, such as National Parks or National Wildlife Refuges, not only present a threat to the living resources protected for the benefit of the public on those lands but they also present the potential for the establishment of reproducing populations, which can then become a source for the spread of these species into surrounding states.

http://www.fws.gov/home/feature/2012/pdfs/FoursnakesQsAs11612.pdf

In a related study, Dorcas et al. (2010) relocated 10 Burmese pythons from the Everglades to an outdoor research setting in South Carolina in June 2009. The following January, the pythons all died.

http://www.fws.gov/home/feature/2012/pdfs/ColdWeather.pdf

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Snakes Get Lobbyists in Fight Over Boa Ban

The snake species considered for the federal listing could survive in about one-third of U.S. states and territories, the U.S. Geological Survey said in a report by scientists at its Fort Collins Science Center in Colorado.

 

Climate change may extend their habitat as far north as New York and Washington state by 2100, according to the study.

http://www.bloomberg.com/news/2011-08-05/snakes-get-lobbyists-too-as-breeders-charm-congress-to-fight-u-s-boa-ban.html

 

Question 8:  In making this determination, how much consideration did the U.S. Fish and Wildlife Service give to climate change and its potential to increase the geographic range of habitat that can support populations of these snakes? 

 

Answer:  Our final rule is based on current climate conditions.

http://www.fws.gov/home/feature/2012/pdfs/FoursnakesQsAs11612.pdf

 

The threat of Burmese pythons slinking toward Manhattan is overblown, according to a 2008 study by scientists at the City University of New York. They said weather patterns will confine them to the Everglades and far-southern Texas.

http://www.bloomberg.com/news/2011-08-05/snakes-get-lobbyists-too-as-breeders-charm-congress-to-fight-u-s-boa-ban.html

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Moving snakes into unfamiliar territory may compromise their chances to survive.

http://www.humanesociety.org/animals/snakes/tips/solving_problems_snakes.html

 

Given the climate flexibility exhibited by the Burmese python in its native range (as analyzed through the U.S. Geological Survey’s climate-matching predictions in the United States), new generations within the leading edge of the population’s nonnative range could become increasingly adaptable and able to expand to colder climates.

http://www.fws.gov/home/feature/2012/pdfs/ColdWeather.pdf

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A report recently issued by Dave Hallac and colleagues at Florida's Everglades National Park determined that at least 70 crocodiles, more than 60 manatees, and countless plants, butterflies and snakes have died within the Everglades marshes and mangroves so far this winter. Hallac said the impact of the cold weather has been "substantial" in South Florida.

But Behnke believes at least some of the snake deaths could help local ecosystems. Burmese and African rock pythons, along with other animals, are not native to the area and are considered to be "invasive." Because they are tropical species, these animals have very low cold tolerance. Some Burmese pythons have even been found frozen stiff in the Everglades.

Scott Hardin, the FWC's exotic species coordinator, said half of South Florida's python population might have died in the recent cold weather.

http://news.discovery.com/animals/florida-wildlife-cold-weather.html

 


 

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