United States v. One Etched Ivory Tusk of African Elephant
871 F. Supp. 2d 128
E.D.N.Y2012Background
- In rem action, United States seeks forfeiture of Defendant Tusk, an etched ivory African elephant tusk, under ESA, AECA, and CITES.
- Claimant contends he owns the Tusk and moves to dismiss and for summary judgment; government cross-moves for summary judgment.
- Tusk was scrimshawed in Zimbabwe on a tusk marked ZW2007-23032 after Claimant hunted and killed an African elephant in Zimbabwe in 2007.
- Tusk imported to the United States in 2009 after Zimbabwe permits; FWS inspected and determined Tusk did not qualify as a sport-hunted trophy.
- FWS seized the Tusk on August 20, 2009; Notice of Seizure advised of rights to remission or to file for forfeiture; Claimant filed for judicial forfeiture in 2009.
- The court granted the government’s summary judgment on all claims, denied Claimant’s motion to dismiss and for summary judgment, and condemned the Tusk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FWS can define sport-hunted trophy for all statutes | U.S.: agency definition governs; regulation § 23.74(b) reasonable, binding across statutes. | Claimant: definition is ambiguous and not congressionally fixed; CITES resolution not binding federal law. | FWS definition is reasonable and applicable to ESA and AECA as cross-referenced by § 17.8. |
| Whether Defendant Tusk fits the sport-hunted trophy definition | U.S.: need not rely on trophy definition; imports required permits; authority under ESA/AECA. | Claimant: Tusk could be a trophy even if altered in part; broader interpretation. | Tusk is not a trophy under § 23.74(b); classified as an Appendix I specimen, not Appendix II. |
| Innocent owner defense and related presumptions | U.S.: presumptions and exceptions apply; Tusk not eligible for innocent owner defense. | Claimant: innocent owner defense should apply; import presumptions favorable. | Innocent owner defense barred by § 983(d)(4) since Tusk is contraband/illegal to possess. |
| Act of State and notice/due process considerations | U.S.: Act of State doctrine not bar; treaty enforcement supports forfeiture; notice adequate. | Claimant: Act of State may bar; vagueness and retroactivity challenges; notice defects. | Act of State doctrine does not foreclose; regulation and notice considerations do not defeat forfeiture. |
Key Cases Cited
- Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (U.S. 1984) (agency interpretation given deference when reasonable)
- Adickes v. S.H. Kress & Co., 398 U.S. 144 (U.S. 1970) (burden on movant in summary judgment cases)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (material facts and genuine disputes must be examined on summary judgment)
- LabS of Virginia, Inc. v. Labs of Virginia, Inc., 272 F. Supp. 2d 764 (N.D. Ill. 2003) (CITES applicability to domestic enforcement and treaty obligations)
- Medellin v. Texas, 552 U.S. 491 (U.S. 2008) (treaty self-execution and domestic-law incorporation considerations)
- Linares Huarcaya v. Mukasey, 550 F.3d 228 (2d Cir. 2008) (courts defer to agency reasonable interpretations under Chevron step two)
- Auer v. Robbins, 519 U.S. 452 (U.S. 1997) (agency interpretations of its own regulations are controlling unless plainly erroneous)
- Bigio v. Coca-Cola Co., 239 F.3d 440 (2d Cir. 2001) (Act of State doctrine considerations and international comity)