Native Federation v. Bozovich Timber, Slip Op. 07-57.

• Decision Date: 16 April 2007
• Docket Number: Court No. 06-00181.,Slip Op. 07-57.
• Citation: 491 F.Supp.2d 1174
• Parties: NATIVE FEDERATION OF the MADRE DE DIOS RIVER AND TRIBUTARIES; Racimos De Ungurahui Working Group; and Natural Resources Defense Council, Inc., Plaintiffs, v. BOZOVICH TIMBER PRODUCTS, INC.; TBM Hardwoods, Inc.; T. Baird McIlvain International Co.; United States Department of the Interior; United States Fish and Wildlife Service; United States Department of Agriculture; Animal and Plant Health Inspection Service; United States Department of Homeland Security; United States Customs and Border Protection; Secretary of the Interior; Director of the United States Fish and Wildlife Service; Secretary of Agriculture; Administrator of Animal and Plant Health Inspection Service; Secretary of Homeland Security; and Commissioner of United States Customs and Border Protection, Defendants.
• Court: U.S. Court of International Trade

491 F.Supp.2d 1174

NATIVE FEDERATION OF the MADRE DE DIOS RIVER AND TRIBUTARIES; Racimos De Ungurahui Working Group; and Natural Resources Defense Council, Inc., Plaintiffs, v. BOZOVICH TIMBER PRODUCTS, INC.; TBM Hardwoods, Inc.; T. Baird McIlvain International Co.; United States Department of the Interior; United States Fish and Wildlife Service; United States Department of Agriculture; Animal and Plant Health Inspection Service; United States Department of Homeland Security; United States Customs and Border Protection; Secretary of the Interior; Director of the United States Fish and Wildlife Service; Secretary of Agriculture; Administrator of Animal and Plant Health Inspection Service; Secretary of Homeland Security; and Commissioner of United States Customs and Border Protection, Defendants.

Slip Op. 07-57.

Court No. 06-00181.

United States Court of International Trade.

April 16, 2007.

Simpson Thacher & Bartlett LLP, New York City (Robert A. Bourque, Kyle A. Lonergan and Scott D. Laton); Natural Resources Defense Council, Inc. (Mitchell S. Bernard and Thomas Cmar); Schonbrun DeSimone Seplow Harris & Hoffman LLP (Paul Hoffman), of counsel, for plaintiffs Native Federation of the Madre de Dios River and Tributaries; Racimos de Ungurahui Working Group; and the Natural Resources Defense Council, Inc.

Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Stephen C. Tosini), for defendants U.S. Department of the Interior; U.S. Fish and Wildlife Service; U.S. Department of Agriculture; Animal and Plant Health Inspection Service; U.S. Department of Homeland Security; U.S. Customs and Border Protection; Secretary of the Interior; Director of the U.S. Fish and Wildlife Service; Secretary of Agriculture; Administrator of Animal and Plant Health Inspection Service; Secretary of Homeland Security; and Commissioner of the U.S. Customs and Border Protection.

Hogan & Hartson LLP, Washington, DC (Patrick D. Traylor and Jonathan T. Stoel), for defendants Bozovich Timber Products, Inc.; TBM Hardwoods, Inc.; and T. Baird Mcllvain International Company.

Before: Richard K. Eaton, Judge.

OPINION

EATON, Judge.

Before the court are the amended motion for a preliminary injunction of plaintiffs Native Federation of the Madre de Dios River and Tributaries; Racimos de Ungurahui Working Group; and the Natural Resources Defense Council, Inc. ("plaintiffs") and the motions to dismiss of the U.S. Department of the Interior; the U.S. Fish and Wildlife Service ("FWS"); the U.S. Department of Agriculture; the Animal and Plant Health Inspection Service; the U.S. Department of Homeland Security; the U.S. Customs and Border Protection; the Secretary of the Interior; the Director of the FWS; the Secretary of Agriculture; the Administrator of the Animal and Plant Health Inspection Service; the Secretary of Homeland Security; and the Commissioner of U.S. Customs and Border Protection ("Government Defendants"); and Bozovich Timber Products, Inc.; TBM Hardwoods, Inc.; and T. Baird Mcllvain International Company ("Private Defendants") (collectively, "defendants").

By their complaint and motion for a preliminary injunction, plaintiffs allege that defendants have violated, and continue to violate, Section 9(c) of the Endangered Species Act, 16 U.S.C. §§ 1531-1544 (2000) ("ESA"), which implements the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("Convention" or "CITES"). CITES, Convention done at Washington, D.C., Aug. 3, 1973, T.I.A.S. No. 8249, 27 U.S.T. 1087. Specifically, plaintiffs complain that the Private Defendants trade in, and the Government Defendants authorize trade in, Swietenia macrophylla, a species of mahogany tree ("bigleaf mahogany") from Peru without valid export permits. See Am. Compl. ¶ 3.

Plaintiffs seek declaratory relief and an injunction directing the Government Defendants to "refrain from permitting the importation into the United States of bigleaf mahogany from Peru;" and directing the Private Defendants to "refrain from the importation into the United States of ... bigleaf mahogany ... from Peru." Pls.' Proposed Prelim. Inj. 1-2; see also Am. Compl. 29 (seeking, inter alia, to [e]njoin[] Government Defendants from permitting import, trade, and possession of Peruvian bigleaf mahogany unless and until bigleaf mahogany specimens from Peru comply with CITES"). In their respective motions to dismiss, defendants assert a number of defenses, among them that the court lacks subject matter jurisdiction to entertain plaintiffs' claims.

For the following reasons, the court finds that it does not have jurisdiction over plaintiffs' claims under 28 U.S.C. § 1581(i)(3) or (4) (2000). The court therefore denies plaintiffs' motion for a preliminary injunction and grants defendants' motions to dismiss.

BACKGROUND

I. Factual Summary

Plaintiffs bring this action on behalf of native communities and inhabitants of the Madre de Dios region of the Peruvian Amazon, where bigleaf mahogany is found. Am. Compl. ¶¶ 8-16; see also 16 U.S.C. § 1540(g)(1) (providing for citizen suits). International demand for bigleaf mahogany timber is high, due to the dense, hard, high-value quality of the wood.¹ Am. Compl. ¶ 1. Plaintiffs allege that to meet demand, illegal logging of bigleaf mahogany trees takes place in Peru, which threatens the species with extinction and in turn results in injury to plaintiffs. Am. Compl. ¶ 16. It is further alleged that Peru's Scientific Authority, the National Agrarian University of La Molina ("La Molina"), and Peru's Management Authority, the National Institute of Natural Resources ("INRENA"), are aware of this illegal activity, and have nonetheless granted permits to export bigleaf mahogany without determining, as CITES requires, whether the wood to be exported was obtained in contravention of Peruvian law and whether the exports would be detrimental to the survival of bigleaf mahogany. Am. Compl. ¶ 3.

Private Defendants are importers of Peruvian bigleaf mahogany into the United States. There is no dispute that their shipments were accompanied by facially valid export permits. Even so, plaintiffs allege that the Private Defendants and the Government Defendants have violated the Convention and Section 9 of the ESA by, respectively, trading in and allowing trade in, bigleaf mahogany, because La Molina and INRENA have not made "legitimate non-detriment and lawful acquisition determinations" in connection with exports of bigleaf mahogany. Am. Compl. ¶ 3.

II. Legal Framework

A. The Convention on International Trade in Endangered Species of Wild Fauna and Flora

The Convention is an international agreement to which the United States and Peru are parties. It has as its purpose the "protection of certain species of wild fauna and flora against over-exploitation through international trade." CITES Proclamation of the Contracting States, 27 U.S.T. at 1090 (recognizing that "international cooperation is essential" to achieving this goal).

The species covered by the Convention are listed in three appendices. Species listed in Appendix I are those "threatened with extinction which are or may be affected by trade." CITES, art. II ¶ 1, 27 U.S.T. at 1092. Trade in Appendix I species "must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances." Id., 27 U.S.T. at 1092.

Appendix II species include

all species which although not necessarily now threatened with extinction may become so unless trade in specimens of such species is subject to strict regulation in order to avoid utilization incompatible with their survival....

CITES, art. II ¶ 2(a), 27 U.S.T. at 1092.

Appendix III species include

all species which any Party identifies as being subject to regulation within its jurisdiction for the purpose of preventing or restricting exploitation, and as needing the co-operation of other parties in the control of trade.

CITES, art. II ¶ 3, 27 U.S.T. at 1092.²

The Convention sets forth a detailed framework for regulating trade through permitting processes that are carried out by government agencies in the exporting and importing countries. The permit requirements for trade in Appendix I species and Appendix II species are different. Trade in Appendix I species requires both an export permit, issued by the exporting country, and an import permit, issued by the importing country. See CITES, art. III ¶ 3, 27 U.S.T. 1093-94. Trade in Appendix II species, on the other hand, does not require that an import permit be obtained, but only that the exporting country issue a permit for the outgoing shipments. Compare CITES, art. III, 27 U.S.T. 1093-94, with art. IV, 27 U.S.T. at 1095-96.³

Bigleaf mahogany from Peru is a species of plant listed in Appendix II. By the Convention's terms, "[a]ll trade in specimens of species included in Appendix II shall be in accordance with the provisions of [Article IV of the Convention]." CITES, art. IV ¶ 1, 27 U.S.T. at 1095. In pertinent part, Article IV⁴ provides:

The export of any specimen of a species included in Appendix II shall require the prior grant and presentation of an export permit. An export permit shall only be granted when the following conditions have been met:

(a) a Scientific Authority of the State of export has advised that such export will not be detrimental to the survival of that species; [and]

(b) 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....

The import of any specimen of a species included in Appendix II shall require the prior presentation of ... an export permit. ...

CITES, art. IV ¶¶ 2, 4, 27 U.S.T. at 1095-96. Thus, in order for Peru to export bigleaf mahogany its Scientific Authority (La Molina) and Management...