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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

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Court of International Trade says no to jurisdiction over salmon dispute, but notes ability to hear future cases

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Salmon Spawning and Recovery Alliance v. U.S., No. 06-00191, Slip Op. 09-40 (C.I.T., May 13, 2009)(Judith M. Barzilay, Judge)

     SUMMARY: The action filed by Plaintiffs Salmon Spawning & Recovery Alliance et. al. against Defendant United States appears anew before the court on remand from the Federal Circuit. Specifically, the mandate directs the court to determine whether (1) a claim made pursuant only to Section 7(a)(2) of the Endangered Species Act (“ESA”) falls within the exclusive jurisdiction of the U.S. Court of International Trade (“CIT”) under 28 U.S.C. 1581(i)(3) or 1581(i)(4); and (2) the CIT’s broad residual jurisdiction encompassed in 1581(i) conflicts with Section 11 of the ESA...  the court finds that (1) a Section 7(a)(2) claim, on its own, fails to invoke this Court’s subject matter jurisdiction under 1581(i) and that (2) the citizen-suit provision of the ESA, Section 11, and 1581(i) are not in conflict.  While there is no doubt that all parties involved wish for the survival of the Puget Sound, Lower Columbia River, and Snake River fall-run Chinook Salmon, this Court is not the appropriate venue to address Plaintiffs’ complaint as it lacks subject matter jurisdiction over a stand-alone Section 7(a)(2) claim under both 1581(i)(3) and 1581(i)(4).

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The United States Court of International Trade is located in the Federal Plaza of downtown Manhattan, near the Brooklyn Bridge-City Hall subway station.

     FACTUAL BACKGROUND: Twenty-six populations of West Coast salmon and steelhead are listed by the National Marine Fisheries Service as threatened or endangered under the ESA. 50 C.F.R. 223.102, 224.101 (listing threatened and endangered salmon species, respectively). Protection is also afforded to certain hatchery-raised salmon. 223.203(a). Customs has authored certain regulations that prohibit the importation of protected salmon. 19 C.F.R. 12.26(g)(1). Despite these vigilant efforts, however, when some of the threatened or endangered salmon species swim north from the United States into Canadian waters, many are killed before they can return to U.S. rivers to spawn. Some of these dead salmon are ultimately imported into the United States by commercial shippers and American sport fishermen, arguably in violation of Section 9 of the ESA.  

     PROCEDURAL HISTORY: In November 2005, Plaintiffs filed this action in the U.S. District Court for the Western District of Washington.  That Court decided to transfer the action to the CIT.  In March 2007, the CIT dismissed Plaintiffs’ claims for lack of subject matter jurisdiction.  The Federal Circuit affirmed the court’s dismissal of Plaintiffs’ Section 9 claim, specifically noting that an agency’s decision to implement or enforce certain provisions of the ESA are not reviewable under either the APA or Section 11 of the ESA. (See prior ESA blawg.)

     OPINION RE: Sec. 1581 JURISDICTION: Importantly, the Court will not have jurisdiction under 1581(i)(3) in the absence of a law providing for an embargo. See Friedman v. Kantor, 21 CIT 901, 904, 977 F. Supp. 1242, 1246 (1997). “Merely because the action involves issues of international trade” does not mean that jurisdiction is available under 1581(i)(3). Friedman, 21 CIT at 904, 977 F. Supp. at 1246. An embargo or other quantitative restrictions falling under 1581(i)(3) is defined as “a governmentally imposed quantitative restriction – of zero – on the importation of merchandise.” K Mart Corp., 485 U.S. at 185. That restriction must be more than a mere “condition of importation.” Id. at 189. Additionally, “an importation prohibition is not an embargo if rather than reflecting a governmental restriction on the quantity of a particular product that will enter, it merely provides a mechanism by which a private party might . . . enlist the Government’s aid in restricting the quantity of imports in order to enforce a private right.” Id. at 185.

     Section 7(a)(2), plainly sets forth the necessary communications that must take place between various executive agencies. 1536(a)(2). “These consultation requirements of Section 7 are designed to make certain that every federal agency takes whatever actions are necessary to ensure the survival of each endangered and threatened species.” Salmon III, 550 F.3d at 1132 (quotations & citations omitted). At most, Section 7(a)(2), in certain settings, may involve issues of international trade. In those circumstances, the interagency consultations are one step removed from any final agency action imposing a condition of importation. That a law in limited circumstances touches upon international trade law issues and concerns conditions of importation is insufficient to invoke the Court’s jurisdiction.

     OPINION RE: ESA Sec. 11 CONFLICTS:  The seeming conflict between the Section 11 and   1581(i) is nothing more than a paper tiger, and the concinnity is apparent when the two are read together. The ESA allows for courts other than the district courts to entertain claims made pursuant to the ESA. Section 11 states that courts enumerated in 28 U.S.C. 460 shall also have jurisdiction over any actions arising under the ESA. 1540(c). Section 460 of Title 28 of the United States Code notes that judicial authority extends to “each court created by Act of Congress in a territory which is invested with any jurisdiction of a district court of the United States, and to the judges thereof.” 28 U.S.C.   460(a). The CIT is such a court, possessing “all the powers in law and equity of . . . a district court of the United States.” 28 U.S.C. 1585. Thus, the CIT, as a court vested with the power of a district court, fits within the definition of courts enumerated by Section 460 as holding jurisdiction over claims made pursuant to the ESA.  Moreover, no conflict arises here because   1581(i) is the more specific and later enacted statute, and as such takes priority over the general grant of jurisdiction to the distriction courts in Section 11. Two important tools of statutory construction are that “the specific governs the general,” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) (citation omitted), and that Congress is presumed to legislate with knowledge of then existing law.