Friday, May 15, 2009

Salmon Case Continues Upstream Battle

The effort to force Customs and Border Protection to enforce the requirements of the Endangered Species Act with respect to certain salmon imported from Canada has been a tough swim upstream against a swift procedural current.  [Note to self: no more extended metaphors.] Here, I reported on the Federal Circuit decision requiring the Court of International Trade to determine whether it had subject-matter jurisdiction over the issue.

The CIT has now done that.  The question presented is whether the Endangered Species Act prohibition on the importation of these fish constitutes an embargo for purposes of engaging the Court's jurisdiction.  An embargo is a government-imposed cap of zero on the importation of some merchandise.  But, an embargo is not based on a private party's right to prohibit importation (e.g., where Customs seizes counterfeit trademarks to enforce a private right). Section 7(a)(2) of the Endangered Species Act does not create an embargo.  Rather, it creates an obligation for federal agencies to consult regarding enforcement of the Act.  The ESA consultation requirement is also unlike embargoes that are put in place to promote government policy considerations (think Cuba), morality (think lottery tickets), or safety (pick any dangerous thing you can't import).  No embargo, no jurisdiction in the CIT.

Next, there was a question as to whether the ESA section 11 conflicts with the CIT's exclusive jurisdiction over actions brought against the U.S. involving import transactions.  Section 11 permits individuals to bring suits in the district courts under the ESA.  On this point, the Court quickly found there to be no conflict because the CIT falls within the meaning of district court for purposes of the ESA.  Style points go to Judge Barzilay for using the "concinnity" to reach that conclusion.

In the end, the case was dismissed from the CIT and transferred back to Washington, where it had originally spawned.  [Metaphor -- D'Oh!]

No comments: