Force v. Salazar

• Decision Date: 22 July 2011
• Docket Number: No. 10–15306.,10–15306.
• Citation: 646 F.3d 1240
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: CONSERVATION FORCE, a non-profit corporation; Miguel Madero Blasquez and Colin G. Crook, hunters, Plaintiffs–Appellants,v.Ken SALAZAR, United States Secretary of Interior; Rowan Gould, United States Fish & Wildlife Service Acting Director; Daniel G. Shillito, Pacific Southwest Region Solicitor; Carolyn Lown, Pacific Southwest Region Assistant Solicitor; U.S. Fish & Wildlife Service, Defendants–Appellees.

646 F.3d 1240

11 Cal. Daily Op. Serv. 9247

11 Cal. Daily Op. Serv. 11,093

CONSERVATION FORCE, a non-profit corporation; Miguel Madero Blasquez and Colin G. Crook, hunters, Plaintiffs–Appellants,

v.Ken SALAZAR, United States Secretary of Interior; Rowan Gould, United States Fish & Wildlife Service Acting Director; Daniel G. Shillito, Pacific Southwest Region Solicitor; Carolyn Lown, Pacific Southwest Region Assistant Solicitor; U.S. Fish & Wildlife Service, Defendants–Appellees.

No. 10–15306.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2011.Filed July 22, 2011.

John J. Jackson, III, Conservation Force, Metairie, LA, for the plaintiffs-appellants.Kurt G. Kastorf, Charles R. Scott, Attorneys, United States Department of Justice, Washington, D.C., for the defendants-appellees.Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, District Judge, Presiding. D.C. No. 3:09–cv–01170–VRW.Before: PROCTER HUG, JR., BARRY G. SILVERMAN, and SUSAN P. GRABER, Circuit Judges.

OPINION

HUG, Senior Circuit Judge:

This case involves the seizure and administrative forfeiture of two leopard trophies by the United States Fish and Wildlife Service (“FWS”) from two hunters, Patricio Miguel Madero Blasquez and Colin Crook (“plaintiffs”), who attempted to import the leopard trophies from African countries without proper export permits. Plaintiffs and Conservation Force, a nonprofit entity, filed suit against federal defendants Ken Salazar (Secretary of the Department of the Interior), Rowan Gould (Director of FWS), Daniel Shillito (Regional Solicitor for the Department of the Interior), Carolyn Lown (Regional Assistant Solicitor for the Department of the Interior), and the FWS asserting that the administrative forfeiture of their leopard trophies violated the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), the Eighth Amendment Excessive Fines Clause, and the Due Process Clause. We affirm the district court's dismissal of plaintiffs' CAFRA and constitutional claims.

I. Background

In this case, plaintiffs separately hunted leopards in two different African countries and then attempted to import the leopard trophies with deficient export permits. In July 2007, Blasquez hunted his leopard in Zambia with a hunting excursion company. On February 6, 2008, Blasquez attempted to import the leopard trophy (one skull and skin) into the United States through San Francisco without an export permit from the Zambian authorities. Blasquez told authorities that the airline had lost the Zambian export permit. A month later, FWS received a photocopy of a Zambian export permit that lacked the legally required signature, and there was no reason provided for supplying a copy instead of the original. On March 12, 2008, the FWS seized the trophy.

In June 2007, Crook hunted his leopard in Namibia. On March 3, 2008, Crook attempted to import his leopard trophy (one skull and skin) into the United States through San Francisco with an expired export permit from Namibia. The FWS later received an email from Namibian authorities stating that it considered the trophy legally exported under a newly issued permit, even though Crook had used an expired permit. On March 18, 2008, the FWS seized the leopard trophy.

On April 2, 2008, FWS sent each plaintiff a Notice of Seizure and Proposed Forfeiture regarding their leopard trophies. This notice provided that the plaintiffs 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 plaintiffs chose to pursue the administrative route and filed a petition for remission with the Office of the Solicitor. On May 13, 2008, Crook filed his petition for remission, arguing that his deficient export permit merely resulted from a clerical error. On May 20, 2008, Blasquez filed a petition for remission, arguing that the airline lost the export permit. Both petitions were denied by the Solicitor. Plaintiffs filed supplemental petitions for remission. These petitions were also both denied.

On March 17, 2009, plaintiffs and Conservation Force filed suit in federal court asserting that the defendants had violated their rights under CAFRA, the Eighth Amendment, and Due Process Clause. On July 23, 2009, the defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). On September 4, 2009, plaintiffs filed an opposition to the motion. On December 30, 2009, the district court granted the defendants' motion and dismissed plaintiffs' CAFRA claim for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and the remaining claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

II. Standard of Review

We review de novo a district court's dismissal for lack of jurisdiction or failure to state a claim. Serra v. Lappin, 600 F.3d 1191, 1195 (9th Cir.2010). A motion to dismiss under Federal Rule of Civil Procedure 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). A district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a “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). To survive a motion to dismiss, a plaintiff's complaint must have sufficient facts “to state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.2010).

III. Discussion

A. Jurisdiction

Plaintiffs contend that the district court erred in dismissing their CAFRA claim for lack of jurisdiction. Under 50 C.F.R. § 12.23(a), the Department of Interior's Office of the Solicitor may seek forfeiture of property that is subject to forfeiture under the Endangered Species Act of 1973 (“ESA”), 16 U.S.C. §§ 1531–1544. Under the ESA, 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 (“CITES”), 16 U.S.C. § 1538(a)(1)(A) and (c). CITES provides for the monitoring and restricting of trading certain species to protect them from commercial exploitation, and its trade restrictions are imposed through a system of permits and certificates. 50 C.F.R. §§ 23.1, 23.4. The FWS has the responsibility of implementing the ESA, which includes enforcing the CITES' permit requirements. 50 C.F.R. § 23.23(a).

If an individual attempts to import property in violation of the ESA and CITES permit requirements, such property may be seized by the government. 50 C.F.R. §§ 12.23, 23.13. If such property is...