U.S. v. 594,464 Pounds of Salmon, 87-4142

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation871 F.2d 824
Docket NumberNo. 87-4142,87-4142
Parties, 19 Envtl. L. Rep. 20,648 UNITED STATES of America, Plaintiff-Appellee, v. 594,464 POUNDS OF SALMON, more or less, Defendant. Appeal of UNION, INC., Claimant.
Decision Date28 March 1989

Hall Baetz, Davis, Wright & Jones, Seattle, Wash., for claimant-appellant.

Sarah P. Robinson, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

James P. Leape, Washington, D.C., for amicus curiae World Wildlife Fund.

Appeal from the United States District Court for the Western District of Washington.

Before TANG, THOMPSON and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We are asked to decide whether a determination by the Board of Foreign Trade of the Republic of China (Taiwan) prohibiting export of salmon without a permit constitutes "foreign law" within the meaning of the Lacey Act, 16 U.S.C. Sec. 3371 et seq. ("Act").

The United States initiated this in rem forfeiture action after seizing 594,464 pounds of salmon in July 1986 at Tacoma, Washington, its point of importation into the United States. Union, Inc. ("Union"), a California corporation, claims to own the salmon.

The government charges that the salmon's importation triggered operation of 16 U.S.C. Sec. 3374 (1982), 1 which provides for the forfeiture of certain fish imported into the United States in violation of "any foreign law." See also 16 U.S.C. Sec. 3372 (1982). United States officials allege that the fish were exported from Taiwan in violation of a Taiwanese regulation, 2 and that the importation of the salmon into the United States was part of a complex international fish smuggling scheme.

Union moved to dismiss the government's forfeiture action, asserting that the Taiwanese regulation at issue is not encompassed by the term "any foreign law" as it used in section 3372(a)(2)(A). Later, Union filed another motion to dismiss in which it asserted that application of the forfeiture provision violates the constitutional safeguard against vagueness. The district court denied both motions to dismiss. United States v. 594,464 Pounds of Salmon, 687 F.Supp. 525 (W.D.Wash.1987). The case comes before this court on interlocutory appeal to determine certain unsettled, yet controlling, questions of law. See 28 U.S.C. Sec. 1292(b) (Supp. IV 1986).


In construing a statute, this court first looks to the plain meaning of the language in question. United States v. Hurt, 795 F.2d 765, 770 (9th Cir.1986),amended, 808 F.2d 707 (9th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 69, 98 L.Ed.2d 33 (1987) (citing North Dakota v. United States, 460 U.S. 300, 312, 103 S.Ct. 1095, 1102, 75 L.Ed.2d 77 (1983)). If the language is unambiguous, its plain meaning controls unless Congress has "clearly expressed" a contrary legislative intention. Id.

The relevant statutory language is as follows:

It is unlawful for any person ... to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law....

16 U.S.C. Sec. 3372(a)(2)(A) (1982) (emphasis supplied).

If one focuses on the three-word phrase "any foreign law," as the district court did and as the government urges us to do, then an ambiguity likely does not arise. The "plain meaning" of the word "law," as commonly used and generally understood, is fairly broad in scope. Black's Law Dictionary, which the district court cited in support of its position, defines law, in its "generic sense," as "a body of rules of action or conduct prescribed by controlling authority, and having binding legal force.... That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law." Black's Law Dictionary (5th ed. 1979). If one were to employ this definition of the word "law," the phrase "any foreign law" would certainly incorporate the Taiwanese regulation. 3 Because the legislative history does not expressly preclude such an interpretation, see infra at 828-29, if we choose to make such a reading, the judicial inquiry is complete. See Burlington Northern Railroad Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 107 S.Ct. 1855, 1860, 95 L.Ed.2d 404 (1987); Hurt, 795 F.2d at 770.

Whether a regulation constitutes "law," however, depends on the structure of the particular statute. Singer v. United States, 323 U.S. 338, 345, 65 S.Ct. 282, 286, 89 L.Ed. 285 (1945). Thus, we step back to view the relevant language in the context of the statutory framework.

Union bases its statutory language arguments on the fact that the specific subsection at issue makes an explicit reference to "any law or regulation" when referring to state law, but fails to mention "regulation" when referring to "any foreign law." 16 U.S.C. Sec. 3372(a)(2)(A) (1982) (making it unlawful to import, export or acquire "[a]ny fish or wildlife taken, possessed, transported or sold in violation of any law or regulation of any State or in violation of any foreign law"). Union thus argues that to read "any foreign law" broadly to include a foreign regulation renders the word "regulation" superfluous in the phrase "in the violation of any law or regulation of any State." Union contends, therefore, that a narrower "statutory" reading of "any foreign law" is required.

Union further claims that the government's interpretation impermissibly assigns a different meaning to two references to the word "law" in the same sentence, in violation of both the well-established principle and a clear manifestation of congressional intent. 4 Finally, Union claims that because Congress employed the word "regulation" when defining the scope of the statute in regard to state law violations this court should grant a certain amount of significance to the fact that Congress chose not to employ it in regard to foreign law violations. 5

While they do not compel a ruling in Union's favor, 6 these arguments nonetheless lead to a separate plausible interpretation for the term "any foreign law" that does not encompass the Taiwanese regulation. Thus, when this alternative interpretation is measured against the more focused "three-word" analysis, an ambiguity results, making a foray into the realm of legislative history necessary.

Legislative History

Where, as here, each of several different interpretations can be reconciled with the statutory language, our duty is " 'to find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested.' " Commissioner v. Engle, 464 U.S. 206, 217, 104 S.Ct. 597, 603, 78 L.Ed.2d 420 (1984) (quoting NLRB v. Lion Oil Co., 352 U.S. 282, 297, 77 S.Ct. 330, 338, 1 L.Ed.2d 331 (1957) (Frankfurter, J., concurring in part and dissenting in part)). Even if we were convinced that a careful statutory analysis of section 3372 unambiguously led to the conclusions that Union suggests we draw, such conclusions cannot stand if they are in opposition to clearly expressed legislative intent. California v. Kleppe, 604 F.2d 1187, 1194 (9th Cir.1979).

Congress's passage of the 1981 Amendments to the Lacey Act represented the latest in a series of modifications to the original Act and the Black Bass Act, all of which expanded the scope of the statutes. The 1981 Amendments in particular were passed in response to Congress's frustration at the inadequacy of the Lacey and Black Bass Acts, as then written, to control effectively the burgeoning and highly profitable trade in illegal fish and wildlife. 7

Thus, it cannot be said that Congress omitted "regulation" in the definition of "any foreign law" because it wanted to limit the Act's applicability. For example, because of the wide range the forms of law may take given the world's many diverse legal and governmental systems, Congress would be hard-pressed to set forth a definition that would adequately encompass all of them. Moreover, if Congress were to have included explicitly "foreign regulation," then the door would have been opened for alleged violators to argue that the Act's forfeiture provision is not triggered by violation of a "law" (in the broad sense) that does not fall easily into either "law" (in the more narrow "statutory sense") or "regulation" categories. Thus, if Congress had sought to define "any foreign law" with any kind of specificity whatsoever, it might have effectively immunized wildlife smugglers from enforcement under the Act despite violation of conservation laws of a large portion of the world's regimes that possess systems of law and government that defy easy definition or categorization.

In addition, such a reading works to immunize even a large portion of those smugglers in violation of laws of foreign countries that do have a system that fits within the "laws/regulations" rubric. That is, because much of the enforcement of wildlife conservation laws is performed by "agencies," or their equivalent, as in this case, the rules such bodies generate would also be beyond the scope of the Act. In sum, if, as Union argues, Congress had not wanted to include at least foreign regulations within the scope of the Act, it would have in large measure gutted the statute.

Further, Congress's desire to expand the scope of the Act serves to explain why it retained the term "regulation" when referring to state and federal law, while at the same time not rendering the term "mere surplusage." Congress's primary goal was to assist states and foreign governments in the enforcement of their wildlife conservation laws. If Congress had not included regulation when referring to state and federal laws, when agencies play such a large role in these systems of government, then alleged violators could have argued with some force that Congress did not mean to...

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