Today's Ninth Circuit opinion features the misnomer of the week.
The appellant, a Louisiana-based non-profit called Conservation Force, sounds like a superhero union in vein of Captain Planet and the Planeteers. Instead, it is "wildlife conservation" group that explains on its website that "hunting uniquely provides self actualization, completeness and expression which are complex, higher order needs deserving of protection." So it should come as no surprise that Conservation Force sued Secretary of Interior Ken Salazar after the Fish and Wildlife Service (FWS) seized two leopard trophies that American hunters imported into the U.S. from Africa.
Under the Endangered Species Act, it is unlawful to import into the United States wildlife that is listed as an endangered species, like the leopard, unless the importer obtains the permits required under the Convention on International Trade in Endangered Species of Wild Fauna and Flora. In this case, the hunters separately killed leopards in two different African countries and then attempted to import the leopard trophies with deficient export permits.
In 2008, FWS sent each hunter a Notice of Seizure and Proposed Forfeiture regarding their leopard trophies. This notice provided that the hunters should, by May 24, 2008, file either a petition for remission with the Office of the Solicitor or file a claim to initiate a judicial forfeiture proceeding. Both hunters filed petitions for remission with the Office of the Solicitor. Both petitions were denied.
In 2009, the hunters and Conservation Force filed suit in federal court asserting that the defendants had violated their rights under Civil Asset Forfeiture Reform Act (CAFRA), the Eighth Amendment, and Due Process Clause. The CAFRA claims were dismissed on the defendants' 12(b)(1) motion and the remaining claims were dismissed under Federal Rule of Civil Procedure 12(b)(6). The Ninth Circuit found that the district court properly held that plaintiffs' CAFRA claim is barred from judicial review. Because the plaintiffs chose to pursue their case through administrative remedies, they waived the opportunity for judicial forfeiture proceedings.
Lessons learned: choose your venue carefully, and make sure your foreign export permits for endangered species trophies are in order before you return stateside. Outstanding question: where does the government store a pair of forfeited leopard trophies? We can only hope that they are now flanking Ken Salazar's desk.
- Conservation Force v. Salazar (Ninth Circuit Court of Appeals)
- Wild Fish Conservancy v. Salazar, No. 09-35531 (FindLaw's Ninth Circuit Blog)
- Saving Endangered Wildlife by Killing It? (FindLaw's Writ)