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United States v. 2,507 Live Canary Winged Parakeets

Citation: 19 ELR 20101
No. No. 86-0334-CIV, 689 F. Supp. 1106/(S.D. Fla., 05/17/1988)

The court holds that the United States has established probable cause that a wildlife importer violated the Lacey Act and the Endangered Species Act (ESA), and the innocent owner defense is not available in forfeiture actions under the Lacey Act. The United States sought to forfeit a shipment of canary winged parakeets imported from Peru on the grounds that the import was in violation of Peruvian law, and thus a violation of the Lacey Act, and that the permit obtained from Peruvian officials was invalid, and thus a violation of the ESA and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The court first holds that the United States had probable cause to believe that the Lacey Act was violated by the importer, the claimant to the shipment. Peruvian law prohibits the export of live animals from the forest or jungle region, and testimony presented by a Peruvian administrative official and a United States ornithologist established that the parakeets originated from the forest region of Peru. That the director of the Peruvian wildlife agency signed the export permit is irrelevant, since the director did not have authority to abrogate the export ban. The court holds that there was probable cause to believe that the ESA was violated. The federal regulations implementing CITES pursuant to the ESA require a valid export permit from the country of origin, and, as the court has already concluded, this permit was invalid. Not only was the permit signed by an official with no authority to authorize export of this species, but the permit was also not signed by the shipper, in contravention of Peruvian practice, and an alteration on the original was not entered on the copy on file with the Peruvian wildlife agency. Such alterations need not be fraudulent to violate the ESA. Moreover, the claimant failed to object to evidence outside the pleadings establishing that the permit was not valid.

The court holds that the innocent owner defense is not available in forfeiture actions under the Lacey Act, since the Act provides for forfeiture of illegally imported wildlife on a strict liability basis. Even if the defense were available, the claimant in this case failed to establish it, since the company and its president took no affirmative action to ensure that the parakeets could legally be exported. Reliance on the shipper to ensure compliance with the law does not constitute such affirmative action, and claimant's president knew that the species' export had previously been prohibited. The court holds that there is no inconsistency between the Lacey Act and the ESA. Even if the Lacey Act did prohibit conduct apparentlyallowed by the ESA, this is consistent with CITES provision allowing member nations to impose stricter trade control measures. The [19 ELR 20102] court rules that the Lacey Act does not unconstitutionally delegate legislative power, nor is it constitutionally defective for vagueness and lack of notice. The court holds that the government is not estopped from seeking forfeiture even if it could have prevented the shipment from taking place, since there is no evidence of government misconduct. The court holds that the government gave adequate notice under Federal Rule of Civil Procedure 44.1 of its intent to rely on foreign law. Finally, the court holds that the act of state doctrine does not preclude the court from ruling on whether the director of the Peruvian wildlife agency had authority to issue the CITES permit.

Counsel for Plaintiff
Peter Prieto, Robyn J. Hermann, Ass't U.S. Attorneys
155 S. Miami Ave., Rm. 700, Miami FL 33130
(305) 536-4471

S. Jonathan Blackmer
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-3923

Counsel for Defendant
Pamela Hornett Kyle
3845 La Playa Blvd., Miami FL 33133
(305) 444-0326