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.

Comments

Post a Comment

Popular posts from this blog

Ruling of the Week 2015.8: Old Jersey and Pitcairn Island

Image
For today's ROTW, I set out looking for a ruling dealing with some far off and preferably warm location. Turns out that, with the exception of coastwise transit issues, there are no Customs and Border Protection rulings involving Pitcairn Island or any of several Pacific Ocean microstates including Tuvalu , Niue , and Kiribati . Pitcairn Island What I did find is an interesting question about the country of origin marking for products of the Bailiwick of Jersey Island, Channel Islands. The ruling is HQ 561938 (Mar. 18, 2002). For those of you who may not know, Jersey is an island off the coast of Normandy, France. It is an independent international actor and not part of the U.K. although the U.K. is responsible for its defense and external relations. Also, the Queen is the Head of State in her capacity as "the Crown in Right of Jersey." It is, according to the U.S. Department of State, a " Crown Dependency " along with the Isle of Man and the Bailiwick o...
Read more

CAFC Decision in Double Invoicing Case

The Federal Circuit has issued a decision on the merits in United States v. Inn Foods, Inc.  There had been a previous decision on jurisdiction, which was followed by a trial at the Court of International Trade and then this appeal on the substance. The initial issue is whether Inn Foods' invoicing practice amounts to fraud.  Inn Foods had been receiving an invoice from growers in Mexico that had a relatively low sales prices on it.  Subsequent to entry, Inn Foods created a second invoice at something more similar to market value, retaining the original invoice number, and paid at that higher amount.   Superficially, this looks like a standard-issue double-invoicing scheme.  But, in the age of reconciliation, is it really more like a provisional pricing mechanism?  It might have been possible to make that argument had Inn Foods adjusted its entries accordingly.  It didn't and the loss of revenue was approximately $624,000.  Based on testimony and evidence indicating both knowl...
Read more

Ninestar and UFLPA Exhaustion

Image
Exhaustion is a key doctrine in administrative law. When applicable, it requires that a party unhappy with an agency’s determination complete the administrative appeal process before turning to the courts for judicial review. Requiring exhaustion typically promotes judicial efficiency by ensuring that disputes are resolved at the agency and, if they are not, that there is a complete record of the agency process. Exhaustion also ensures that the judiciary respects the executive agencies and their expertise.  There are, on the other hand, times when the courts will find that exhaustion is not necessary or appropriate. Such is the case in  Ninestar Corporation et al. v. United States  et al., a decision of the U.S. Court of International Trade.  Ninestar is also interesting because it is one of the first cases in the CIT involving the Uyghur Forced Labor Prevention Act, known as UFLPA. In my hiatus from active blogging, I missed the rise of UFLPA as a major compliance t...
Read more