U.S. v. Fifty-Three (53) Eclectus Parrots, FIFTY-THREE

• Decision Date: 31 August 1982
• Docket Number: No. 80-4604,FIFTY-THREE,80-4604
• Citation: 685 F.2d 1131
• Parties: UNITED STATES of America, Plaintiff-Appellee, v.(53) ECLECTUS PARROTS, Defendants and George E. Allen, Claimant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1131

685 F.2d 1131

4 ITRD 1346

UNITED STATES of America, Plaintiff-Appellee, v. FIFTY-THREE (53) ECLECTUS PARROTS, Defendants and George E. Allen, Claimant-Appellant.

No. 80-4604.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 1982.

Decided Aug. 31, 1982.

Robert Glenn White, Glad, White & Ferguson, San Francisco, Cal., for claimant-appellant.

Wells D. Burgess, Maryann Walsh, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before DUNIWAY, KENNEDY and CANBY, Circuit Judges.

CANBY, Circuit Judge.

Allen appeals from a summary judgment in favor of the government, ordering the forfeiture of 56 eclectus parrots. We affirm.

Appellant Allen raises and trades birds as an avocation. On his behalf, an importer bought eclectus parrots from a bird dealer in Singapore and imported them into the United States. The birds originated in Indonesia, which has prohibited the export of eclectus parrots, with special exceptions not applicable here, since 1972. The parrots arrived in the United States without any documentation showing their legal acquisition or export from Indonesia. Importation of protected wild birds without such accompanying documentation is proscribed by 19 U.S.C. § 1527 (1976). ¹ The government therefore instituted this in rem forfeiture action under 19 U.S.C. § 1527(b).

The facts surrounding the importation of the birds are essentially undisputed. Appellant's importer knew that the eclectus parrots originated in Indonesia, not Singapore. He did not know, however, that Indonesia restricted their export, or that these particular parrots had been exported illegally. Before bringing the parrots into this country the importer had asked United States Customs agents whether importing Indonesian eclectus parrots was against United States law, but had received no definitive answer.

Appellant raises two issues:

(1) Whether forfeiture of wild birds under § 1527(b) is proper in the absence of culpable disregard of foreign wildlife laws by the owner; and

(2) Whether eclectus parrots are "wild" within the meaning of 19 U.S.C. § 1527.

I.

Section 1527(b) provides: "Any mammal or bird ... imported into the United States in violation of the provisions of the preceding subdivision (§ 1527(a)) shall be subject to seizure and forfeiture under the customs laws." (emphasis added). Appellant argues that this subsection authorizes forfeiture only where the government shows the owner's culpable disregard of foreign wildlife laws. Although this contention has apparently never before been raised in the context of § 1527, the defense of non-culpability has frequently been rejected in forfeiture proceedings under other statutes. ² We conclude that nothing in the legislative history of § 1527 supports appellant's argument and that the plain words and purpose of the statute militate against such an interpretation. ³

Section 1527(b), as quoted above, is unequivocal and mandatory on its face; it prescribes forfeiture without regard to the presence or absence of culpability on the part of the owner of birds illegally imported. This fact alone is probably sufficient answer to Appellant's primary argument. See Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 n.29, 98 S.Ct. 2279, 2296 n.29, 57 L.Ed.2d 117 (1978). In any event, the purpose of the statute supports a literal interpretation of its language. Section 1527 is manifestly aimed at protecting endangered species of wild animals and birds, and at cooperating with other nations that pursue that goal. ⁴ The primary means chosen by Congress to achieve these aims was a limitation of importation, since a thriving import market in the United States could unquestionably constitute a significant threat to the continued existence and propagation of endangered species in the wild. To permit an importer to retain improperly taken birds on the ground of non-culpability would lend support to the commercial traffic in such birds, as the facts of this case demonstrate. Rather than reading into § 1527(b) a defense that would partially undermine its purpose, we adhere to the literal interpretation of the statute that places upon the owner the affirmative burden of insuring, by the appropriate documentation, that foreign wildlife laws have not been violated.

By its terms, section 1527 applies to both direct and indirect importations of wild birds and mammals from countries restricting their taking or export. We interpret the statute to require proper documentation from the animal's country of origin, whether or not the United States importer was involved in the initial export from that country. It is not unreasonable to require those who import wild birds and mammals to ascertain their origin. The conservation purpose of the statute could be undermined significantly by permitting such importers to avoid the application of the statute by trading through intermediary countries. In the present case, although Appellant dealt only with a Singapore exporter, Appellant knew that the birds originated in Indonesia.

The scant legislative history of the statute does not alter our conclusion. Appellant argues that Congress demonstrated an intent to require culpability in the following statement in a House Report: "(W)e should not countenance disregard of the laws of (foreign) countries by permitting importation of birds and mammals taken or exported in violation of (foreign laws for the protection of wild birds and mammals)." H.R.Rep.No.7, 71st Cong., 1st Sess. 182 (1929), reprinted in Tariff Bill of 1929, Comparative Print of the Tariff Act of 1922 with H.R.2667, H.R.Doc.No.15, at 357 (1929). We cannot draw from this general statement the conclusion urged by Appellant; the "disregard" Congress wished to discourage is not stated to be only that of the importing owner. The conclusion that the legislative history does suggest is that neither House expressly considered the narrow question of owner culpability. ⁵

Appellant also argues that the United States Customs Service must publish any foreign wildlife protection laws which serve as the predicate for requiring documentation under § 1527. First he contends that we should interpret the statute itself to require publication because Customs adopted a regulation, contemporaneously with the enactment of § 1527, that required publication. Appellant refers to the last sentence of the first regulation issued under § 1527 which provided:

(a) No wild mammal or bird, or part or product thereof, shall be released from customs custody, under bond or otherwise, if the collector has knowledge of a foreign law or regulation that brings it within the purview of subdivision (2) of section 527 (19 U.S.C. § 1527), unless accompanied by the required consular certificate or entitled to entry under the provisions of subdivision (c) of such section.

(b) When in doubt as to the admissibility under such section of any importation, the collector should refer the case to the bureau for instructions. Information with respect to the laws or regulations of foreign governments restricting the taking, killing, possession, or exportation to the United States of wild mammals or birds or parts or products thereof will be published in the Treasury Decisions.

T.D. 44412, 58 Treas.Dec. 724-25 (1930). (Emphasis added.)

Even if we were to view this regulation as an interpretation of § 1527, requiring publication of foreign wildlife laws, that "interpretation" was abandoned long ago. Since 1939, the regulations have not contained any statement that foreign laws will be published, and since 1952, Customs has published no new § 1527 notices. Moreover, we do not believe that the original regulation or the § 1527 notices published pursuant to it interpreted § 1527 to require publication of foreign wildlife laws. Treasury Decision 44412, supra, recited the full text of § 1527 as a preface to the regulation. Nothing in the statute suggests that publication is required. The regulation which followed focused on the collector's knowledge of foreign laws as it pertained to his enforcement duties. Publication of those laws in the Treasury Decisions was one source of information for him, but it is not at all clear that this was to be his only source. In fact, "when in doubt" the collector was to "refer the case to the bureau for instructions." We therefore cannot read the regulation as a contemporaneous construction of § 1527 requiring publication of foreign laws as a prerequisite to enforcement.

We also reject Appellant's contention that, even if the statute does not require publication of foreign laws, the current rules of Customs have imposed such a duty. We recognize that an agency can create a duty to the public which no statute has expressly created, ⁶ but we cannot agree that Customs has done so here. At the time Appellant imported the parrots, the only applicable regulation in the Code of Federal Regulations was 19 C.F.R. § 12.28, ⁷ which does not require or even mention publication of foreign wildlife laws. Therefore, the only possible source for an existing agency publication requirement is § 12.28 of the U. S. Customs Manual (1976 ed.), which states that information concerning foreign wildlife laws or regulations "will be published" in the Customs Bulletin. But the Manual is an internal agency guide for Customs offices; it was not intended for the use of the general public. It specifically refers the public to the Code of Federal Regulations for guidance concerning proper observance of the customs and navigations laws. ⁸ Recently, this Circuit stated: " '(N)ot all agency policy pronouncements which find their way to the public can be considered regulations enforceable in federal court.' " Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982), quoting Chasse v. Chasen, 595 F.2d 59, 62 (1st Cir. 1979). To have the " 'force and effect of law,' " enforceable against an agency...