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United States v. 594,464 Pounds of Salmon, More or Less

Citation: 19 ELR 20648
No. No. 87-4142, 871 F.2d 824/(9th Cir., 03/28/1989)

The court holds that a Taiwanese regulation restricting the export of salmon is "foreign law" under the Lacey Act sufficient to trigger the Act's forfeiture provisions. The government had contended that the import violated Taiwanese law and thus violated the Lacey Act, which provides for forfeiture of fish and wildlife imported into the United States in violation of foreign law. The court rules that the phrase "any foreign law" in § 3(a)(2)(A) of the Act includes foreign regulations. That Congress omitted the word "regulation" in the definition of "any foreign law" in the 1981 amendments to the Lacey Act does not limit the Act's applicability, since laws may take so many forms that it would be virtually impossible for Congress to include a complete listing. If Congress had defined the term as "any foreign law or regulation," alleged violators could argue that the Act's forfeiture provision is not triggered by laws that do not fall into the strict statutory or regulatory categories. Moreover, if regulations are not included within the scope of the Act, the statute would be eviscerated, since the numerous rules promulgated by agencies in aid of enforcement would not trigger the Act's forfeiture provisions. Congress' use of the phrase "any law or regulation" when referring to state law does not compel a conclusion that the term "any foreign law" must exclude regulations. The primary goal of the 1981 amendments was to expand the role of state and foreign governments, and if Congress had not included the word "regulation" when referring to domestic laws, alleged violators could have argued that regulations were not included.

The court holds that the provision for civil sanctions only in the Taiwanese regulation does not negate the Lacey Act's applicability. A case cited by the claimant is inapposite, since it involved a criminal action. Moreover, the legislative history indicates that Congress intended the 1981 amendments to apply to laws that have only civil sanctions. The court holds that the Lacey Act is not unconstitutionally vague. The claimant should at least have been aware of the possibility that violation of a foreign regulation would trigger the Act's forfeiture provision, particularly since the claimant is frequently involved in large international commercial transactions. Finally, the court holds that applying the Lacey Act to the Taiwanese regulation does not unconstitutionally incorporate into federal law a regulation adopted without due process safeguards. The Act merely provides that once a violation of a foreign law has occurred, federal enforcement officials may take notice of it. The government is not applying the foreign law itself, but is looking to the foreign law to determine if the Lacey Act's provisions are triggered.

[Briefs from this litigation are digested at ELR PEND. LIT. 65989.]

Counsel for Claimant-Appellant
Hall Baetz
Davis, Wright & Jones
2600 Century Square, 1501 Fourth Ave., Seattle WA 98101-1688
(206) 622-3150

Counsel for Plaintiff-Appellee
Sarah P. Robinson
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-4358

Before Tang and Thompson, JJ.