ELR Citation: ELR 21097
No(s). 93-6508 (11th Cir. Apr 24, 1995)

The court affirms an individual's convictions under the Lacey Act, 16 U.S.C. §§3372-3373, for conspiring to sell alligator snapping turtles and under the Endangered Species Act for selling, possessing, and transporting Alabama red-bellied turtles, a listed endangered species. The court first holds that the Lacey Act does not unconstitutionally delegate federal legislative authority to state or their agencies, because the Act's enforcement provisions involve no delegation of power. The court next holds that the Alabama regulation listing the alligator snapping turtle as a protected species complies with state constitutional requirements. The court holds that Act No. 531, one of the regulation's authorizing statutes, meets the clear expression and single subject requirements of Alabama Constitution §45, because Act No. 531's provisions are germane to the section of the code that it amends. The court holds that because Act No. 531 is constitutional, one of the regulation's authorizing statutes is valid, and that the regulation under which the defendant was indicted is likewise valid. By rejecting the state-law invalidity predicate of the defendant's collateral challenge to the Lacey Act conviction, the court does not reach the issue of whether a viable state-law challenge to the underlying regulation would be a defense to a Lacey Act prosecution.

The court next notes that review of the defendant's collateral challenge to the validity of the listing of the Alabama red-bellied turtle as an endangered species is limited to the record from the Secretary of the Interior's 1987 decision to list the turtle as an endangered species. The DNA study the defendant sought to have the district court consider was never presented to the Secretary. Nor has the defendant ever presented the Secretary with any evidence or agrument that the Alabama red-bellied turtle is not a species. As a result, the Secretary has never had an opportunity to view the defendant's DNA study, let alone to undertake any agency action, finding, or conclusion regarding the validity of that study or its possible impact on the listing decision. Thus, the defendant is not entitled to challenge the regulation collaterally on the grounds of new scientific evidence. On direct review of the regulation, the court holds that the Secretary did not act arbitrarily or capriciously when he listed the Alabama red-bellied turtle as an endangered species. The agency record cites texts and studies from numerous herpetologists that support the Secretary's conclusion that the turtle is a separate taxonomic species.

Counsel not available at this printing.

Before CARNES and BARKETT, Circuit Judges, and JOHNSON, Senior Circuit Judge.