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Castlewood Products, L.L.C. v. Norton

April 30, 2004

CASTLEWOOD PRODUCTS, L.L.C., ET AL., APPELLEES INTERFOREST CORP., ET AL., APPELLANTS
v.
GALE A. NORTON, IN HER OFFICIAL CAPACITY AS SECRETARY OF U.S. DEPARTMENT OF INTERIOR, ET AL., APPELLEES



Appeal from the United States District Court for the District of Columbia (No. 02cv01457)

Before: Edwards and Henderson, Circuit Judges, and Williams, Senior Circuit Judge.

The opinion of the court was delivered by: Edwards, Circuit Judge

Argued March 12, 2004

Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.

This case concerns the United States' detention of several shipments of bigleaf mahogany from Brazil. The United States and Brazil are both signatories to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087 ("CITES" or "Convention"). The Convention governs trade in endangered species that are listed in its appendices. Article V provides that an export permit for species included in Appendix III can be granted by the exporting country only when, inter alia, the designated Management Authority of the exporting country is satisfied that the specimen was not obtained in contravention of its laws. CITES, art. V(2)(a), 27 U.S.T. at 1097. Brazil has included bigleaf mahogany in Appendix III. In the United States, the Endangered Species Act, 16 U.S.C. §§ 1531-44 (2000) ("ESA"), prohibits trade in violation of the Convention and authorizes the Secretary of the Interior and the Secretary of Agriculture to enforce the ESA.

This case arose when the Animal and Plant Health Inspection Service ("APHIS") of the United States Department of Agriculture ("USDA") refused entry at U.S. ports to certain shipments of bigleaf mahogany after Brazil's Management Authority gave information to the United States Department of the Interior's Fish and Wildlife Service ("FWS") suggesting that the specimens in the shipments were not legally obtained. On July 23, 2002, Castlewood Products, L.L.C., Interforest Corp., M. Bohlke Veneer Corp., Marwood, Inc., United Veneer, L.L.C., Veneer Technologies, Inc., and Aljoma Lumber, Inc., the U.S. corporate consignees of the disputed shipments, brought this action in the United States District Court for the District of Columbia to compel delivery of the shipments. The plaintiffs claimed that, because the export permits accompanying the shipments were signed and issued by Brazil's Management Authority, APHIS's detention of the shipments was arbitrary and capricious. The District Court denied the plaintiffs' motion for summary judgment and granted summary judgment to the Government, holding that the decision to detain the shipments was authorized by treaty, statute, and regulation. Castlewood Prods. v. Norton, 264 F. Supp. 2d 9, 14 (D.D.C. 2003). Interforest, Marwood, Veneer Technologies, and Aljoma Lumber appealed and we now affirm the judgment of the District Court.

I. BACKGROUND

A. Regulatory Background

The Convention governs the import and export of certain species of endangered fauna and flora that are listed in its appendices. This case concerns bigleaf mahogany, which Brazil has included in Appendix III. Article V of CITES provides that the export of any species listed in Appendix III requires "the prior grant and presentation of an export permit." CITES, art. V(2), 27 U.S.T. at 1097. That article provides:

An export permit shall only be granted when the following conditions have been met:

(a) a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora;

(b) a Management Authority of the State of export is satisfied that any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment.

Id.

A Management Authority is designated by each state to "grant permits or certificates on behalf of that Party." Id., art. IX(1)(a), 27 U.S.T. at 1103. The United States has designated the Secretary of the Interior as the CITES Management Authority, and the Secretary's functions in this capacity are carried out through FWS. See 16 U.S.C. § 1537a(a). In Brazil, the Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renovaveis or the Brazilian Institute of the Environment and Renewable Natural Resources (also known as "IBAMA") is the Management Authority under CITES.

Article VIII of the Convention provides:

(1) The Parties shall take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof. These shall include measures:

(a) to penalize trade in, or possession of, such specimens, or both; and

(b) to provide for the confiscation or return to the State of export of such specimens.

CITES, art. VIII(1)(a), 27 U.S.T. at 1101. Article XIV makes it clear that the Convention does not purport to limit the right of the Parties to adopt "stricter domestic measures regarding the conditions for trade, taking possession or transport of specimens of species included in Appendices I, II, and III, or complete prohibition thereof...." Id., art. XIV(1)(a), 27 U.S.T. at 1108.

Article XI provides for regular meetings of the Parties to the Convention, at which they may, inter alia, "make recommendations for improving the effectiveness of the present Convention." Id., art. XI(3)(e), 27 U.S.T. at 1105. These recommendations, adopted through resolutions, are intended to give guidance to the Parties in implementing the Convention. Since ratification, the Parties have adopted two resolutions ...


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