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

• Decision Date: 30 April 2004
• Docket Number: No. 03-5161.,03-5161.
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

365 F.3d 1076

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.

No. 03-5161.

United States Court of Appeals, District of Columbia Circuit.

Argued March 12, 2004.

Decided April 30, 2004.

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

Patrick D. Traylor argued the cause for appellants. With him on the briefs was James T. Banks.

Charles W. Scarborough, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were Peter D. Keisler, Assistant Attorney General, Roscoe C. Howard, Jr., U.S. Attorney, and Mark B. Stern, Attorney.

William J. Snape III and William Carroll Muffett were on the brief for amici curiae Defenders of Wildlife, et al. in support of appellees.

Before: EDWARDS and HENDERSON, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

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 recommending specific measures to strengthen enforcement of the Convention. One, Resolution 11.3, recommends that,

(c) if an importing country has reason to believe that an Appendix-II or -III species is traded in contravention of the laws of any country involved in the transaction, it:

(i) immediately inform the country whose laws were thought to have been violated and, to the extent possible, provide that country with copies of all documentation relating to the transaction; and

(ii) where possible, apply stricter domestic measures to that transaction as provided for in Article XIV of the Convention.

CITES, Resolution 11.3 (2000). The other, Resolution 12.3, recommends that "the Parties refuse to accept any permit or certificate that is invalid, including authentic documents that do not contain all the required information ... or that contain information that brings into question the validity of the permit or certificate." CITES Resolution 12.3 § XIV(d) (2002) (recalling and incorporating CITES Resolution 10.2 § II(h) (1997)).

Congress implemented the Convention into U.S. law in the Endangered Species Act of 1973, Pub.L. No. 93-205, 87 Stat. 884 (codified as amended at 16 U.S.C. §§ 1531-44 (2000)). The ESA makes it unlawful to "engage in any trade in any specimens contrary to the provisions of the Convention." 16 U.S.C. § 1538(c)(1). It provides that any fish, wildlife or plants possessed or transferred in violation of the ESA or its regulations "shall be subject to forfeiture to the United States." 16 U.S.C. § 1540(e)(4)(A). The Secretary of the Interior is authorized to promulgate regulations as may be appropriate to enforce the ESA. 16 U.S.C. § 1540(f). The statute also provides for the coordination of the administration of the ESA between the Secretary of Agriculture and the Secretary of the Interior. 16 U.S.C. § 1540(h). FWS and APHIS work together to enforce the provisions of CITES.

The Department of the Interior has promulgated regulations to implement the ESA. See 50 C.F.R. pt. 23 (2003). One regulation provides: "In order to import into the United States any wildlife or plant listed in appendix III from a foreign country that has listed such animal or plant in appendix III, a valid foreign export permit or re-export certificate issued by such country must be obtained prior to such importation." 50 C.F.R. § 23.12(a)(3)(i). Another regulation states: "Only export permits, re-export certificates, certificates of origin, or other certificates issued and signed by a management authority will be accepted as a valid foreign document from a country that is a party to the Convention." 50 C.F.R. § 23.14(a).

B. Factual Background

The facts are largely undisputed. In the fall of 2001, FWS and APHIS learned that the Brazilian government had imposed a moratorium on the logging, transport, and export of bigleaf mahogany timber. In February 2002, APHIS placed holds on shipments of bigleaf mahogany from Brazil. FWS sent a letter to IBAMA, noting that "none of the permits accompanying the shipments were endorsed ... by the export inspection authorities in Brazil," and stating that USDA was detaining the shipments until officials in the United States could gain "verification of the validity of accompanying CITES permits." See Letter from Mark Albert, Branch of CITES Operations, FWS, to IBAMA of 2/15/02, Joint Appendix ("J.A.") 203-04. IBAMA informed FWS that recent shipments of bigleaf mahogany arriving in the United States from Brazil were accompanied by export permits that IBAMA had issued pursuant to preliminary judicial injunctions. IBAMA stated that its issuance of these permits did not reflect its independent judgment that the mahogany had been obtained lawfully. See Letter from Antonio Carlos R. Lins, Head of International Cooperation, IBAMA, to Dr. Peter O. Thomas,...