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Delbay Pharmaceuticals, Inc. v. Department of Commerce

ELR Citation: 6 ELR 20211
Nos. No. 76-0056, 409 F. Supp. 637/(D.D.C., 02/10/1976)

The court dismisses a challenge to defendants' seizure of plaintiff's major commercial product, a drug containing spermaceti, a product of the sperm whale, pursuant to the Endangered Species Act of 1973. The sperm whale was classified as an endangered species in 1970. In 1974-1975, plaintiff obtained spermaceti from an importer who held a 1971 hardship exemption permit under the Endangered Species Conservation Act of 1969. In December 1975, the National Marine Fisheries Service confiscated plaintiff's entire stock of spermaceti and its drug. Inasmuch as the 1969 Act purported to regulate only importation of endangered species, the hardship exemption permit could give no more than a right to import sperm whale products, not the right to sell them in commerce as claimed by plaintiff as successor in interest to the permittee. Plaintiff is also in error in asserting that this case involves retroactive application of the 1973 Act, for the authorities are concerned only with plaintiff's actions subsequent to December 28, 1973, the effective date of the 1973 Act. The seizure of plaintiff's product was within the defendants' statutory authority under the Act. Congress intended to impose the broadest possible ban on use of endangered species products, which ban includes sale of spermaceti lawfully imported. The broad ban is rationally related to the congressional goal of maximum protection of threatened species, and therefore does not deprive plaintiff of due process.

Counsel for Plaintiff
Peter J. Nickles
888 16th Street,NW
Washington DC 20006
(202) 452-6412

Counsel for Defendant
Nicholas J. Nadzo, Atty.
Department of Justice
Washington DC 20530
(202) 739-3797