P. Metallica restricted sales question

[l4nsky]

Hola,

My belief is that it's coming, sooner rather then later. They are a subject of discussion for the upcoming meeting on May 23rd for CITES.

https://www.federalregister.gov/doc...rnational-trade-in-endangered-species-of-wild

I believe inclusion to the ESA wont be far behind. To be honest, I'm highly surprised metallica isnt CITES 1 already, considering they are only known to inhabit 39 square miles of fractured habitat.

As for the freebie approach to transporting Poecilotheria across state lines, I recently had a discussion with a dealer on the confusion that surrounds the idea. I'll quote my thoughts below.

I've done a fair bit of reading on the subject and I'm leery of the freebie approach to be honest. Reading the FAQ from the USFW website (https://www.fws.gov/endangered/permits/faq.html), the loans and gifts section reads :

'Loans and Gifts
Lawfully taken and held endangered and threatened species may be shipped interstate as a bona fide gift or loan if there is no barter, credit, other form of compensation, or intent to profit or gain. A standard breeding loan, where no money or other consideration changes hands but some offspring are returned to the lender of a breeding animal, is not considered a commercial activity and, thus, is not prohibited by the ESA and does not require a permit. Documentation of such an activity should accompany shipment.'

My fear is that the original transaction that prompted the freebie exchange could be interpreted as a barter for profit on the dealers part (as the freebie wouldn't have been sent without the profitable transaction); however I'm no lawyer and I'm referencing a FAQ, not the actual legislation. I dont want to chance putting anyone in that predicament and damaging a dealers reputation, the hobby, and the specimen.

I would be interested to hear if anyone has actually consulted a lawyer or found legal precedence regarding these freebie transactions. I guess the question that needs answering is does an established history of giving freebies with paid orders point to the legitimacy of a freebie pokie and the non profit motive of the seller required to transport them across state lines? Thoughts?

Thanks,
--Matt

 

[mack1855]

Im going to run it by a friend of mine,hes a lawyer for the EPA,and since hes off(government shutdown),and
get his take on it.But in regards to your concern,i get it.
Normally,when I receive a T from a shipper/dealer,i get an invoice indicating the number of animals
i.e P.cambridgi 2@ 15..00..30.00 total payment.And ,again this is my thought and opinion,
P.smithi or subfusca..no charge,shipped as gift/loan.Keep the invoice as proof of no payment
given or received on said Pokie.Again,ill run it by him,and let you know what his opinion is.
You have a valid concern.

 

[l4nsky]

Im going to run it by a friend of mine,hes a lawyer for the EPA,and since hes off(government shutdown),and
get his take on it.But in regards to your concern,i get it.
Normally,when I receive a T from a shipper/dealer,i get an invoice indicating the number of animals
i.e P.cambridgi 2@ 15..00..30.00 total payment.And ,again this is my thought and opinion,
P.smithi or subfusca..no charge,shipped as gift/loan.Keep the invoice as proof of no payment
given or received on said Pokie.Again,ill run it by him,and let you know what his opinion is.
You have a valid concern.

Hola,

It's not the documentation of no payment on the buyers part that I'm questioning. The key word here in the legal documentation is intent. Is the dealer intending to use an endangered species that can't cross state lines with payment as an incentive for a buyer to do business with them as opposed to the buyer's competition solely because that is the only way to get said endangered species? It can certainly be argued that way, the question is how do you show that that's not the case, since the freebie tarantula (the endangered species) wouldn't have been sent if their was no profitable transaction with the dealer? Would the history that the dealer offers freebie species that they have surplus of or cant sell due to low demand be enough evidence to show no intent for profit for the endangered species or would the dealer have to have a history of sending completely free tarantulas with no profit gained for the entire shipment to prove their is no intent to profit off the endangered species?

Intent is always legally tricky to prove or disprove. Just my thoughts.

Thanks,
--Matt

 

[cold blood]

Right,or I could sell that person in Santa Fe a G.pulchripes for $100.00:wideyed:,its a really,really nice pulchripes
and throw in a free P.smithi sling as a freebe,i.e gift.

nope....that would be considered part of or inventive for a purchase.

According to them, loans must be just that, loans, with no strings attached and NO exchange of money in any manner.

t we won’t get anymore warning than we did last time

we had years of warning...there was a post stickied here on AB for quite a long time before this went into effect.

 

[mack1855]

nope....that would be considered part of or inventive for a purchase.

Ok,i get what your saying.But,if you and I,for example,have a conversation,and you tell me
hey.i have a P.whatever sling,im shipping to you as a loan/gift.By its self,no other animal included in this
transaction.No monetary transaction has occurred.And the G.pulchripes is a separate shipment.A separate transaction.
There is no connection what so ever between the two transactions.No where does it say in the regulation
that two individuals cant discuss or arrange a loan/gift.Even if I have paid for an animal ,that is not
included in the regulations.
On Monday the G.pulchripes is shipped for $100,on Tuesday I ship the P.whatever as a loan/gift if
that's a concern,which I will ask about.

Allow me add this...Loan/gift/freebie...no money exchanged.even our awesome government juggernaut cant alter
the meaning of statements made by them.

 

[l4nsky]

Allow me add this...Loan/gift/freebie...no money exchanged.even our awesome government juggernaut cant alter
the meaning of statements made by them.

Please ask your lawyer friend about conspiracy as well...

I'm all for the inter state transportation of certified CAPTIVE BRED endangered species between advanced and dedicated keepers, but if there is to be any hope of acquiring these animals in the future, we cant give the powers that be any more reason to restrict us further in the future.

Thanks,
--Matt

 

[mack1855]

powers that be

This whole thing was started by this group..info@wildearthguardians.org.
A small group of screamers/drumbangers,who have probably never cared for,
liked or know very little about T,s.
Old saying.."squeaky wheel gets the grease".Or,those that scream loud and often get heard.

 

[Ungoliant]

I would be interested to hear if anyone has actually consulted a lawyer or found legal precedence regarding these freebie transactions. I guess the question that needs answering is does an established history of giving freebies with paid orders point to the legitimacy of a freebie pokie and the non profit motive of the seller required to transport them across state lines? Thoughts?

Disclaimer: Nothing in this post is intended to create an attorney-client relationship or to be used as legal advice. The content of this post is offered for informational purposes only. This post should not be used as a substitute for obtaining legal advice from an attorney licensed to practice in your jurisdiction. You should always consult a competent attorney regarding any legal matter.

My posts on including ESA species freebies from an earlier discussion:

Including one of the listed species a "freebie" (along with a purchase) to promote one's business or entice sales would probably still be considered "in the course of commercial activity" for the purposes of the Act.

Giving it away would be allowed if you had a spider, and you wanted to give it away. However, "freebies" are only included with purchases, and they are done to promote the business and induce sales. If that's not "in the course of commercial activity," I don't know what is. (The term "in the course of commercial activity" is broader than just selling or bartering.)

In fact, the Endangered Species Act FAQ seems to support this interpretation:

Loans and Gifts
Lawfully taken and held endangered and threatened species may be shipped interstate as a bona fide gift or loan if there is no barter, credit, other form of compensation, or intent to profit or gain.

At best, the practice of giving away protected species conditioned on the purchase of other merchandise is something that regulators would likely take issue with if you were caught. You can argue that this is not a commercial activity and, thus, is not prohibited by the ESA. However, if you are arguing about definitions to a judge or jury, you have already lost, IMO. In a best-case scenario, you have spent thousands of dollars in legal fees defending something that probably netted you a lot less.

I think that would still be questionable, since no Pokie would have been offered but for the purchase of other merchandise. Even though it wasn't mentioned in advance of the sale, one can argue it's still being done to promote the business and induce future sales, as you are likely to return to that seller (or recommend him to others) if your experience is that he includes good freebies.

 

[Teal]

Wouldn't it be great if the hobby pushed back against these nonsensical regulations by *actually* gifting each other these species? If the point is to own spiders and establish healthy populations of captive bred specimens to show we are NOT detrimental to wild populations, wouldn't that be a good way to go about it?

Signed,
Someone who doesn't understand being driven by money

 

[l4nsky]

Wouldn't it be great if the hobby pushed back against these nonsensical regulations by *actually* gifting each other these species? If the point is to own spiders and establish healthy populations of captive bred specimens to show we are NOT detrimental to wild populations, wouldn't that be a good way to go about it?

Signed,
Someone who doesn't understand being driven by money

I think you're on to something here. Just brainstorming here but...

What if we created and maintained a Poecilotheria rehome list on the board. A list of keepers who have kept poecilotheria or have experience with comparable species (Phormingochilus, Psalmopeus, Lampropelma, Tapinauchenius, etc) and who are willing to pay shipping costs and only shipping costs to acquire and indefinitely provide a home to the spiders. I know a lot of people gave up some Poecilotheria breeding projects when subfusca, ornata and the other Sri Lankan species fell under the ESA. It's probably hard to get rid of that many slings locally and they didnt want to be stuck with so many ravenous mouths. I dont believe that's what is good for the hobby or the species, dedicated breeders giving up passion projects. What if there was a way to link dedicated and passionate breeders (or those simply looking to rehome a poecilotheria) with equally passionate and experienced hobbyists who are interested in keeping and protecting the species, not just reselling them in state. Or is this a fantasy? Thoughts?

Thanks,
--Matt

 

[lostbrane]

I tried that. Although I attempted to take it further and have it set up as a separate thing, with it’s own easy to use online database.

However, I have to wait on the kindness of others because I don’t have the know how to set it up, and tbh i have no idea if any of it is coming together (which isn’t a problem people have lives to live and I’m sure it’s not a simple task).

There is a FB group that says they’re looking into ways of helping preserve them in the wild, but they’re starting to look like they’re trying tk be the USARK of tarantula keeping, which is a bit disappointing.

Wouldn't it be great if the hobby pushed back against these nonsensical regulations by *actually* gifting each other these species?

Every time a thread like this comes along I get really worked up. Most times it’s about the regulation and not about the spiders themselves. Out of all I have seen on this subject, the majority is something along the lines ‘they can’t tell me what to do, this is stupid’ instead of something like ‘how can we as keepers save these species in the wild, etc?’ and moreso than the whole ‘oh we have them in captivity! the species is saaaaaavvvveeeedddd!!!’ argument. Sure, the implementation might be based off crude data but that doesn’t change the fact that it’s in place.

And as an addendum, I definitely plan on giving slings away for free once I can.

 

[l4nsky]

I tried that. Although I attempted to take it further and have it set up as a separate thing, with it’s own easy to use online database.

However, I have to wait on the kindness of others because I don’t have the know how to set it up, and tbh i have no idea if any of it is coming together (which isn’t a problem people have lives to live and I’m sure it’s not a simple task)..

I have a lot of projects on my plate right now, but I'd be interested in helping in the future. I use python regularly to solve problems and automate tasks in both my personal and professional lives. I think I can lend my skillset to such a worthy cause. I'll be in touch.

For now though, a simple approach of creating and pinning a thread for people to signal they are both willing to accept and indefinitely provide for certain species and have the requisite skill level to care for them/breed them would be a great starting point and we can expand the scope of the project as time permits.

Oh, and I'm with you on providing free slings. Should I be successful in the future, I'd rather spread them to like minded hobbyists free of charge to keep them established in the hobby then try to seek out a profit from in state individuals who may lack the level of experience to deal with them, and only want the fabled blue spider.

Thanks,
--Matt

 

[Ungoliant]

For now though, a simple approach of creating and pinning a thread for people to signal they are both willing to accept and indefinitely provide for certain species and have the requisite skill level to care for them/breed them would be a great starting point and we can expand the scope of the project as time permits.

You would need to get approval from @Arachnopets or other site administrators before doing this, as we generally don't allow requests for giveaways.