CIT Lacks Jurisdiction in Endangered Species Issue for Bigleaf Mahogany
The Court of International Trade has ruled that it had no jurisdiction over claims brought by the plaintiffs Native Federation of the Madre de Dios River and Tributaries and the Natural Resources Defense Council, Inc., et. al. related to bigleaf mahogany timber imports from Peru.
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The Convention on International Trade in Endangered Species of Wild Fauna and Flora, to which the U.S. and Peru are parties, contains provisions designed to protect "certain species of wild fauna and flora against over-exploitation through international trade". CITES regulates trade in certain wild fauna or flora by means of a framework requiring the issuance of import and/or export permits for specified items.
Congress incorporated CITES into U.S. Law by stating in Section 9(c) of the Endangered Species Act (ESA) that "It is unlawful for any person to engage in any trade in any specimens contrary to the provisions of the Convention"
Plaintiffs asserted that the CIT had jurisdiction over their claims based on 28 USC 1581 (i)(3), which states in part "the Court of International Trade shall have exclusive jurisdiction of any civil action that arises out of any law of the U.S. providing for (3) embargoes or other quantitative restrictions on the importation " Plaintiffs argued that Section 9(c) actually requires a prohibition of all imports in contravention of CITES; therefore, it provides the embargo necessary for the CIT to have jurisdiction.
However, the CIT stated that the word "embargo" in Section 1581 (i)(3) should be given its ordinary meaning that zero imports are permitted; therefore, the relevant jurisdiction under Section 1581(i)(3) is limited to those cases in which zero imports are permitted.
When the U.S. entered the Convention and enacted Section 9(c), it did not agree to restrict imports to zero or to embargo CITES-listed species. Rather, it agreed only to mandate compliance with the Convention's requirements. The bigleaf mahogany, which is listed in Appendix II, is not limited to zero imports if it is accompanied by an export permit issued by the exporting country. The CIT therefore ruled that the Plaintiff's claim that the bigleaf mahogany was subject to an embargo under Section 9(c) is without merit, and their motion for a preliminary injunction was denied.
CIT Slip Op. 07-57 (dated 04/16/07) available at:http://www.cit.uscourts.gov/slip_op/Slip_op07/07-57.pdf