United States v. One Etched Ivory Tusk of African Elephant

• Decision Date: 17 May 2012
• Docket Number: No. 10–CV–308 (NGG)(SMG).,10–CV–308 (NGG)(SMG).
• Parties: UNITED STATES of America, Plaintiff, v. ONE ETCHED IVORY TUSK OF AFRICAN ELEPHANT (Loxodonta Africana), Defendant, and Graham Kent Fuller, Claimant.
• Court: U.S. District Court — Eastern District of New York

871 F.Supp.2d 128

UNITED STATES of America, Plaintiff,

v.ONE ETCHED IVORY TUSK OF AFRICAN ELEPHANT (Loxodonta Africana), Defendant,andGraham Kent Fuller, Claimant.

No. 10–CV–308 (NGG)(SMG).

United States District Court,

E.D. New York.

May 17, 2012.

Brian D. Morris, Nancy A. Miller, United States Attorneys Office, Brooklyn, NY, Charles Peter Kelly, United States Attorneys Office, Central Islip, NY, for Plaintiff.

David Amir Kochman, Reed Smith LLP, New York, NY, John B. Jackson, Metairie, LA, for Claimant.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

The United States brings this in rem action against one etched ivory tusk of African elephant (Loxodonta Africana) (“Defendant Tusk” or “the Tusk”), seeking its forfeiture and condemnation (Compl. (Docket Entry # 1) at 11.) Graham Kent Fuller (“Claimant”) has put forward a claim for the Tusk, alleging that he is its owner. (Cl. (Docket Entry # 4) at 1.) Claimant has moved to dismiss the Complaint for failure to state a claim upon which relief can be granted and for summary judgment. (Clt. Mot. to Dismiss & Mot. for Summ. J. (Docket Entry 29).) The United States has cross-moved for summary judgment. (Gov't Mot. for Summ. J. (Docket Entry # 31).) When the two motions were fully briefed, the court heard oral argument from both parties. ( See Apr. 8, 2011 Minute Entry.)

Upon due consideration, the court GRANTS summary judgment to the United States and DENIES Claimant's motion to dismiss and for summary judgment.

I. BACKGROUND

The material facts of this case are undisputed.¹ On April 11, 2007, Claimant killed an African elephant during a sport hunt in Zimbabwe, pursuant to a license issued by Zimbabwe's Parks and Wildlife Management Authority. (Clt. 56.1 Stmt. (Docket Entry # 29–2) ¶¶ 1–2.) Claimant cut the elephant's two tusks and some of its skin from its corpse, and delivered them to a taxidermist, Dudley Rogers, for preparation. ( Id. ¶¶ 3–4; Gov't Mem. Ex. 7 (“Martynenko Decl.”) ¶¶ 5, 8; Gov't Mem. Ex. 3 (“Cl.'s CITES Export Permits”).) As part of this preparation, Claimant directed Rogers to scrimshaw a scene of Africa's “Big Five” game animals ² on one of the tusks; specifically, Defendant Tusk, which is marked with the unique identification code ZW2007–23032. (Clt. 56.1 Stmt. ¶ 5; Fuller Decl. (Docket Entry # 29–3) ¶ 3.) The scrimshaw work was completed in mid-June 2007. (Clt. 56.1 Stmt. ¶ 6.)

In or about June 2009, two years after Defendant Tusk was scrimshawed, Claimant obtained permits from the Zimbabwe Parks and Wildlife Management Authority to export two tusks, including Defendant Tusk, and seven pieces of elephant skin, from Zimbabwe to the United States. ( See Clt.'s CITES Export Permits; Clt. 56.1 Stmt. ¶ 7.) These specimens were imported to the United States on July 30, 2009. (Gov't 56.1 Stmt. (Docket Entry # 30–1) ¶ 22; Kochman Aff. (Docket Entry # 29–8) ¶ 4; Kochman Aff. Ex. B (Docket Entry # 29–10) (“Notice of Seizure”).) Shortly after their arrival in the United States, the tusks were physically inspected by Fish and Wildlife Service (“FWS”) Inspector Michael Martynenko on August 17, 2009. (Martynenko Decl. ¶¶ 3–4, 11.) Inspector Martynenko observed that the tusk was “etched with the design of the ‘Big–Five’ African game animals.” ( Id. ¶ 11.) On August 18, 2009, Inspector Martynenko contacted Claimant, who stated that “he used an artist in Zimbabwe to ‘etch’ Defendant Tusk.” ( Id. ¶ 12.) Inspector Martynenko concluded that Defendant Tusk did not qualify as a sport-hunted trophy within the meaning of 50 C.F.R. § 23.74(b), and therefore could not be lawfully imported into the United States. ( Id. ¶ 13.)

On August 20, 2009, the FWS seized Defendant Tusk. ( Id. ¶ 14.) On September 8, 2009, William Anderson, Resident Agent in Charge of the FWS Office of Law Enforcement's Valley Stream, New York office, issued a Notice of Seizure and Proposed Forfeiture to Claimant. (Notice of Seizure at 1.) The Notice of Seizure stated that the FWS had determined that Defendant Tusk was subject to forfeiture under provisions of the Endangered Species Act and its implementing regulations. ( Id. at 1–2.) The Notice of Seizure advised Claimant that he had the right to petition the FWS for remission of forfeiture, or to file a claim with the FWS, which would cause the FWS to contact the U.S. Attorney's Office to file a civil complaint for judicial forfeiture. ( Id. at 2–3.) It further stated that, if Claimant took no action, the FWS would initiate administrative forfeiture proceedings. ( Id. at 2.)

On October 26, 2009, the FWS received Plaintiff's claim requesting judicial forfeiture proceedings. (Compl. ¶ 40.) On January 25, 2010, the Government filed this in rem Complaint against Defendant Tusk.

II. CLAIMS FOR RELIEF

The Complaint alleges that Claimant imported Defendant Tusk into the United States in violation of the Endangered Species Act (the “ESA”), 16 U.S.C. § 1531 et seq., and the African Elephant Conservation Act (the “AECA”), 16 U.S.C. § 4201 et seq. (Compl. ¶ 2.) Counts One and Two of the Complaint allege that Claimant imported Defendant Tusk into the United States without a permit for the export (Count One) or the import (Count Two) of a species listed on Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), and the Tusk is thus subject to forfeiture under 16 U.S.C. § 1540(e)(4)(A). (Compl. ¶¶ 42–51.) Count Three alleges that the Defendant Tusk is an African elephant specimen, listed as a threatened species under the ESA, see16 U.S.C. § 1538(a)(1)(G), and was imported into the United States in violation of the Special Rule for African elephants, see50 C.F.R. § 17.40(e)(2), because no exception to the prohibition on the import of African elephants applies, and is thus subject to forfeiture under 16 U.S.C. § 1540(e)(4)(A). (Compl. ¶¶ 52–60.) Count Four alleges that Defendant Tusk was imported in violation of the moratorium on the importation of all ivory issued by the FWS under 16 U.S.C. §§ 4222 and 4223(5), and fails to qualify for the exception for sport-hunted trophies under § 4222(e), and is thus subject to forfeiture under 16 U.S.C. § 1540(e)(4)(A) and § 4224(e). ( Id. ¶¶ 61–65.)

III. DISCUSSIONA. Standard of Review

A motion for summary judgment must be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether a genuine issue of material fact exists, “the court must draw all reasonable inferences in favor of the nonmoving party.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Further, the burden of showing the absence of any genuine dispute as to a material fact rests on the movant. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). A fact is material if its existence or non-existence “might affect the outcome of the suit under the governing law,” and an issue of fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56 “mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In such a situation, “there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Id. at 323, 106 S.Ct. 2548. A grant of summary judgment is proper “[w]hen no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight.” Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1224 (2d Cir.1994).

B. CITES, the ESA, the AECA, and Regulations promulgated thereunder

In 1975 the United States ratified and proclaimed its agreement to CITES. 27 U.S.T. 1087, 1089 (entered into force July 1, 1975), available at www. cites. org/ eng/ disc/ text. php. CITES was intended to provide a means of “international cooperation ... for the protection of certain species of wild fauna and flora against over-exploitation through international trade.” CITES Preamble. CITES pursues this objective by creating different levels of regulation of international trade in plants and animals included on one of three lists: Appendix I lists species that are threatened with extinction, Appendix II lists species that may become threatened with extinction unless trade in specimens is subject to strict regulation, and Appendix III lists species the exploitation of which a party believes should be regulated and the party needs the cooperation of other parties. See CITES Art. II. Regulation of international trade is particularly strict for Appendix I species, moderately strict for Appendix II species, and relatively lax for Appendix III species. See CITES Arts. III–V. CITES requires states to make certain findings before issuing export or import permits for species listed on the Appendices. Id. CITES requires states to designate a national Management Authority and a national Scientific Authority to make the required determinations, CITES Art. IX. The Convention's regulatory scheme is, however, only a floor for conservation efforts; CITES explicitly guarantees the rights of adhering states to enact stricter regulations of trade, or to prohibit outright trade in any species. See CITES Art. XIV.

Species are added and removed from Appendices I and II according to the provisions of CITES, which require the vote of two-thirds of the parties to amend a listing. CITES Art. XV. The categorization of the African elephant under...