CONSERVATION FORCE v. Salazar

• Decision Date: 30 December 2009
• Docket Number: No. C 09-1170 VRW.,C 09-1170 VRW.
• Citation: 677 F. Supp.2d 1203
• Parties: CONSERVATION FORCE, a non-profit Corporation, Miguel Madero Blasquez, a hunter; and Colin G. Crook, a hunter, Plaintiffs, v. Ken SALAZAR, United States Secretary of Interior; Rowan Gould, United States Fish and Wildlife Service Acting Director; Daniel G. Shillito, Pacific Southwest Region Solicitor; and Carolyn Lown, Pacific Southwest Region Assistant Solicitor, Defendants.
• Court: U.S. District Court — Northern District of California

677 F.Supp.2d 1203

CONSERVATION FORCE, a non-profit Corporation, Miguel Madero Blasquez, a hunter; and Colin G. Crook, a hunter, Plaintiffs, v. Ken SALAZAR, United States Secretary of Interior; Rowan Gould, United States Fish and Wildlife Service Acting Director; Daniel G. Shillito, Pacific Southwest Region Solicitor; and Carolyn Lown, Pacific Southwest Region Assistant Solicitor, Defendants.

No. C 09-1170 VRW.

United States District Court, N.D. California.

December 30, 2009.

Stanford H. Atwood, Jr., Atwood & Associates, Los Gatos, CA, John Joseph Jackson, III, Conservation Force, Metairie, LA, for Plaintiffs.

Ethan Carson Eddy, U.S. Department of Justice, Washington, D.C., for Defendants.

Daniel G. Shillito, pro se.

ORDER

VAUGHN R. WALKER, Chief Judge.

This case involves plaintiffs' challenges to defendants' seizure, petition for remission and forfeiture practices in regard to sport-hunted trophies ("trophies") imported into the United States. Doc. # 14. On October 1, 2009, the court heard argument on defendants' motion to dismiss plaintiffs' first amended complaint ("FAC"). For the foregoing reasons, defendants' motion (Doc. # 27) is GRANTED.

I

On March 17, 2009, plaintiffs Conservation Force, Miguel Madero Blasquez and Colin G. Crook initiated this action by filing a complaint against defendants Ken Salazar, Rowan Gould, Daniel G. Shillito, Carolyn Lown and the United States Fish and Wildlife Service ("FWS") alleging violations of the Civil Asset Forfeiture Reform Act ("CAFRA"), the Administrative Procedure Act ("APA"), the Endangered Species Act ("ESA"), the Eighth Amendment and substantive and procedural due process. Doc. # 1.

The individual plaintiffs, Blasquez and Crook, describe themselves as "hunters." Doc. # 14 at 4-5. Each alleges that he took wildlife from Zambia or Nambia and attempted to import the resulting trophies into the United States only to have them seized and forfeited due to defendants' allegedly unlawful practices. Id. In both situations, the assistant field solicitor would not accept the permits as valid. Id. Because the permits were deemed invalid, the FWS seized and instituted administrative proceedings against individual plaintiffs' trophies under the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES"). Id.

The corporate plaintiff, Conservation Force, claims to be a non-profit organization whose "mission is to better use hunting as an ever greater force to conserve wildlife and wild places." Id. at 3. Plaintiffs amended their complaint on May 21, 2009 to add plaintiff Matt Ward, who was subsequently dismissed from this matter. Doc. # 14. On July 29, 2009, defendants moved to dismiss plaintiffs' FAC under FRCP 12(b)(6) (Doc. # 27); plaintiffs oppose (Doc. # 28). Each of plaintiffs' claims are analyzed in turn.

II

A motion to dismiss under FRCP 12(b)(6) for failure to state a claim upon which relief can be granted "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988). In determining whether a claim is sufficient, all material allegations in the pleadings are taken as true and construed in the light most favorable to the non-moving party. See In re Silicon Graphics Inc. Sec. Lit., 183 F.3d 970, 980 n. 10 (9th Cir.1999). But "the court is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001) (citing Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994)).

A

As a threshold matter, the court addresses whether plaintiffs' trophies are considered "contraband." There are two types of contraband: per se and derivative. United States v. One (1) Harley-Davidson Motorcycle Serial No. 4A25791H1 508 F.2d 351, 352 (9th Cir. 1974). Per se contraband, by its nature, is illegal to possess. One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 699, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). Derivative contraband, on the other hand, is not inherently illegal, but becomes illegal through the manner or the intent with which it is used, possessed or acquired. United States v. Farrell, 606 F.2d 1341, 1344 (D.C.Cir. 1979).

Under CAFRA, "contraband and other property that it is illegal to possess" includes property that becomes illegal to possess because of extrinsic circumstances. United States v. 144,774 pounds of Blue King Crab, 410 F.3d 1131, 1135 (9th Cir. 2005). In Blue King Crab, the property at issue was taken, possessed, transported or sold in violation of Russian law and was considered "other property that it is illegal to possess" under CAFRA. Id With respect to endangered species—here, leopards—it is unlawful for any person subject to the jurisdiction of the United States to import such species into the United States or for any person to possess any specimens contrary to CITES. 16 USC § 1538(a) & (c).

The trophies at issue are "derivative contraband" because without the proper permits under CITES, the trophies are illegal to bring into the United States under the ESA. See 15 USC § 1538. Thus, while it is not per se illegal to import a leopard trophy, the manner in which plaintiffs brought their trophies into the United States transformed the trophies into contraband for purposes of this action.

B

Plaintiffs' first claim alleges violations of CAFRA, the APA and the Eighth Amendment. Doc. # 14 at 22. Plaintiffs allege that the forfeitures were procedurally defective because the petition for remission processes did not afford plaintiffs the innocent owner defense, the proportionality test nor notice and hearing. Id. at ¶¶ 128-29. Defendants argue that CAFRA bars judicial review of plaintiffs' claims—except for that under the Eighth Amendment— because CAFRA limits review to actions alleging that claimants received insufficient notice of the proceedings. Doc. # 27 at 21.

Under CAFRA, an agency must notify parties that have an interest in the seized property of the agency's intent to forfeit the goods administratively. 18 USC § 983(a)(1). Once notified, an interested party may choose to allow the forfeiture to proceed administratively or may compel the government to initiate a judicial forfeiture action by filing a claim for the property. Id. at § 983(a)(2). CAFRA thus provides alternative, not sequential, administrative and legal remedies for an administrative forfeiture. Malladi Drugs & Pharmaceuticals, Ltd. v. Tandy, 552 F.3d 885, 890 (D.C.Cir.2009).

A person entitled to receive notice in any nonjudicial civil forfeiture proceeding and who does not receive such notice may file a motion to set aside a declaration of forfeiture. 18 USC § 983(e)(1). In such circumstances, a motion to set aside a declaration of forfeiture is the exclusive remedy. Id. at § 983(e)(5). Because CAFRA does not provide for judicial review of administrative forfeiture decisions, the merits of those decisions fall within the agency's sphere of unreviewable discretion. Gete v. INS, 121 F.3d 1285, 1291 (9th Cir.1997). A challenge to the merits of an agency decision cannot be heard, but a challenge to the procedures on constitutional grounds may be brought in federal court. Id.

While generally any material beyond the pleadings may not be considered on a motion to dismiss, under FRE 201 a court may take judicial notice of matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001). Judicial notice is taken of the disputed forfeiture proceedings, which indicate that each individual plaintiff was provided notice and an opportunity to appear at his forfeiture proceeding. Doc. ## 27-3, 27-4, 27-12, 27-13, 27-14. These materials make clear that plaintiffs received the proper notice of the proceedings and chose to continue with the administrative remedy. Plaintiffs' non-constitutional claims based on the merits of the forfeiture proceedings therefore are barred from judicial review. See 18 USC § 983(e).

Moreover, plaintiffs' innocent owner defense was properly excluded because, under CAFRA, the defense cannot be asserted when the property to be forfeited is "contraband or other property that it is illegal to possess." Blue King Crab, 410 F.3d at 1132; see also 18 USC § 983(d)(4). As used in CAFRA, contraband includes both goods that are inherently illegal to possess and otherwise legal goods that have been imported illegally. Id. at 1133. As discussed above, plaintiffs' trophies are "contraband" under CAFRA; the innocent owner defense is not available for imports that are illegal to possess. See id. at 1135. Accordingly, plaintiffs' CARA claim is DISMISSED.

Plaintiffs' first claim also alleges a violation of the APA. Doc. # 14 at 22. Under the APA, judicial review of agency action is prohibited if the action was committed to agency discretion by law. 5 USC § 701(a)(2). The agency's decision not to remit administratively forfeited property is an exercise of the Secretary's discretion and therefore, not reviewable by the courts. Ivers v. United States, 581 F.2d 1362; 1370 (9th Cir.1978).

Additionally, the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute is pursuant to CAFRA section 983(e). Browne v. Gossett, 259 Fed.Appx. 928 (9th Cir. 2007). Because petitions for remission are determined by the Solicitor in his or her discretion, 50 CFR section 12.24, plaintiffs' APA claim cannot properly be reviewed by this court.

Plaintiffs further allege that the forfeitures at issue violate the excessive fines clause of the Eighth Amendment. Doc. # 14 at 23. Plaintiffs contend that the forfeitures were excessive because the value of the trophies exceeds any fines that could have been...