Wednesday, July 16, 2008

The CIT and the Endangered Species Act

Federal Circuit has issued a decision in Salmon Spawning & Recovery Alliance.

The issue here is whether the CIT can hear a claim that Customs and Border Protection and Fish & Wildlife have failed to enforce the Endangered Species Act with respect to certain salmon imports from Canada. The CIT previously dismissed for lack of subject matter jurisdiction because the enforcement of the embargo lies within the discretion of the agencies and is not subject to review.

On this point, the CAFC affirmed the CIT finding the claim to be non-justiciable.

The plaintiff's second claim is that the agencies failed to conduct a required consultation on the enforcement of the embargo. The CIT dismissed this claim for lack of standing.

On this point, the CAFC reversed. The Court held that the plaintiff's members have an interest (even if only aesthetic) in observing the salmon in their natural habitat. Also, the right invoked is procedural (i.e., the requirement for consultation) and the standing requirement is, therefore, relaxed.

With respect to this claim under section 7 of the Endangered Species Act, there was a remaining issue as to subject matter jurisdiction. The CAFC characterized this as a "novel" issue of first impression. Thus, although it acknowledged that it could have decided the issue, the CAFC remanded the case to the CIT to decide the jurisdictional issue. If the CIT finds a lack of jurisdiction, the case goes back to the Western District pf Washington, where it originated.

Also, welcome to Mr. Micawber who is blogging on a number of issues, which may well include customs and trade law. I'll let you link over to figure out the identity behind the Dickensian pseudonym.

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