HB 4393: WV's DWA Law

WV’s 2014 DWA law creates a DWA Board, consisting of three individuals: representatives from WV’s Department of Agriculture, Department of Health and Human Resources and DNR.

The DWA Board is tasked with proposing rules/regulations, including creation of a list of DWAs. DWAs are defined in the statute as a mammal, bird, reptile, amphibian or aquatic animal that is dangerous to humans, other animals or the environment due to its inherent nature and capability to do significant harm.

The statute specifically excluded livestock, domestic animals and WV native wildlife from the definition of a DWA. The law provides that the DWA list may include, but is not limited to, bears, big cats, canids, and primates, constrictor snakes greater than six feet, venomous snakes, alligators and caimans.

Ownership of DWAs is prohibited, except by AZA zoos and similar exemptions generally inapplicable to individual pet owners. A grandfather clause allows existing DWA owners to retain ownership of their animals, subject to restrictive limitations often seen in DWA laws proposed by HSUS.

These restrictions include an annual fee, annual registration, liability insurance coverage of $300,000, a breeding ban, no previous suspensions of an animal permit, and permanent marking of each DWA. DWAs, including grandfathered animals, are subject to broad confiscation powers and essentially immediate euthanization.

Proposed Rules/Regulations

In June, 2014, the DWA Board released a “draft” list of DWAs, including Nile monitors, Komodo dragons, large constrictor snakes (including amethystine pythons), and all salamanders, clawed frogs, tree frogs, toads, turtles, crocodilians, and venomous snakes (excluding any WV native species).

The draft DWA list consisted of thousands of other pet species of birds, crayfish, snails, fish (including gobies), and mammals. The draft DWA list rarely listed individual species, but typically listed entire scientific orders or families, so one line of the DWA list could include thousands of species. The list was almost five pages long in small font.

On July 2, 2014, the draft DWA list was substantially carried over to Proposed Rule 61-30, which was submitted for a 30-day public comment period. Within two weeks, and after receiving hundreds of written objections from USARK supporters and various other sources, the Chairperson of the DWA Board (the Department of Agriculture representative) announced that the proposed list would be replaced with a new list, using the list under the Ohio DWA law as a starting point.

The DWA list contained in the final proposed rule submitted on August 1, 2014, was reduced to about two-and-a-half pages, eliminating from the list of prohibited reptiles and amphibians all turtles and almost all frogs, toads, and salamanders. Then in November at a hearing of the WV Legislative Rule-Making Review Committee (LRMRC), the following reptiles and amphibians were removed from the proposed DWA list: all large constrictor snakes, tiger salamanders, Cuban tree frogs, and African clawed frogs.

The reptiles, amphibians and other animals removed by the LRMRC from the DWA list again cut the DWA list in half, to approximately one page. However, the DWA list still includes venomous snakes (except timber rattlesnakes and copperheads) and crocodilians.

Violations of Rule-Making Process

The rule-making process in WV violated WV’s Administrative Procedures Act (APA) in numerous ways.

For example, the official record for Proposed Rule 61-30 is missing over 400 pages of comments. The official record contains 1,120 pages. So we know that at least over 25 percent of the submitted comments are missing (400/1520). All comments are legally required to be contained in the official record. Over 300 of the missing pages have been posted by USARK.

We have no way of knowing the total number of pages missing because the WV Department of Agriculture has stonewalled our effort to obtain this information. Efforts are continuing to get an official investigation into the missing comments.

An example of two more violations of the WV APA are the failure of the DWA Board to give meaningful consideration to all substantial objections of interested persons as a result of the comment period, and the failure to set forth in the official record the substance of such review of substantial objections. These requirements are clearly set forth in a Supreme Court of Appeals of WV case. State ex rel. White v. Parsons, 199 W.Va. 1, 483 S.E.2d 1 (1996).

The official record for Proposed Rule 61-30 contains no review of any objections, nor does it seem possible that such a review ever occurred since at least 25% of the comments are missing from the official record. The official record is posted here.

2015 WV Legislative Session

In 2015, the DWA list contained in Proposed Rule 60-31 along with the amendments made by the LRMRC will be submitted to the WV Legislature for consideration. During the 2015 WV Legislative Session, we also anticipate introducing significant amendments to the DWA law. In addition, we are informed that a bill may be introduced to prohibit ownership of animals determined to be invasive to WV.

Please feel free to ask questions regarding WV and other reptile and amphibian legislative and regulatory matters. I’ll try to include answers to as many questions as possible in future blog posts.