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Global Tropical Imports and Exports LLC v. Bernhardt

United States District Court, District of Columbia

February 15, 2019

DAVID BERNHARDT, in his official capacity as Acting United States Secretary of the Interior[1] et al., Defendants.


          TREVOR N. MCFADDEN, U.S.D.J.

         In 2015, Global Tropical Imports and Exports (“Global”) imported three-horned chameleons, black-throated monitors, spiny-tailed lizards, and other reptiles from Tanzania. Federal regulations require valid permits to import these reptiles. One of Global's permits was invalid, so the U.S. Department of the Interior (the “Department”) directed the company to pay a $15, 000 penalty. Global now challenges that fine. Because the Court finds that the decision to fine Global complied with applicable laws, it will grant the Defendants summary judgment.



         The Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) is a multilateral treaty that seeks to protect plants and animals at risk of extinction. See 27 U.S.T. 1087 (1973). The United States is a party to the treaty, and Congress has incorporated it into domestic law through the Endangered Species Act (the “ESA”). See 16 U.S.C. § 1538(c)(1). The ESA makes it unlawful for “any person subject to the jurisdiction of the United States to engage in any trade in any specimens contrary to the provisions of the Convention.” 16 U.S.C. § 1538(c).

         The ESA also authorizes the imposition of fines for violating its provisions or related regulations:

Any person who knowingly violates, and any person engaged in business as an importer or exporter of fish, wildlife, or plants who violates, any provision of this chapter, or . . . any regulation issued in order to implement [subsections of the ESA] may be assessed a civil penalty by the Secretary of not more than $25, 000 for each violation.

16 U.S.C. § 1540(a)(1). Based on this provision and 16 U.S.C. § 1538(c), the Department may impose a fine for CITES violations.

         The treaty categorizes species into three appendices. Appendix I covers plants and animals threatened with extinction. CITES Art. II, 27 U.S.T. at 1092. Appendix II includes species that may soon become threatened with extinction absent strict regulations. Id. Appendix III covers species that member nations identify as requiring protection from exploitation. Id. The reptiles Global imported are Appendix II animals. J.A. at 258, ECF No. 24-1.[2]

         The import of any Appendix II species “require[s] the prior presentation of either an export permit or a re-export certificate.” CITES Art. IV, 27 U.S.T. at 1096. See also 50 C.F.R. § 23.20(e) (incorporating the same requirement). An export permit “is valid only when it contains . . . [t]he applicant's signature if the CITES document includes a place for it.” 50 C.F.R. § 23.23(c). See also CITES Art. VI, 27 U.S.T. at 1098 (“An export permit shall contain the information specified in the model set forth in Appendix IV”); CITES App. IV, 27 U.S.T. at 1144 (model export permit requiring the signature of the applicant for the permit).


         In 2015, Global imported nearly 200 reptiles from Majoka Venom Supply (“Majoka”). J.A. at 257-58; 301. The U.S. Fish and Wildlife Service, an agency within the Department, declined to clear the shipment of reptiles when it arrived at the airport because “one of the permits (#28981) was not signed by the exporter, as required by 50 C.F.R. [§] 23.23(c).” J.A. at 258. The agency found that, because of this missing signature, Global had imported the reptiles “with an invalid permit and in violation of CITES.” Id. It noted that the missing signature violated 50 C.F.R. § 23.23(c) (requiring an applicant's signature where a CITES document has a place for it) and 16 U.S.C. § 1538(c)(1) (making it unlawful to violate the treaty). Id.

         Based on this violation, the agency issued a Notice of Assessment, fining Global $15, 000. J.A. at 228. The agency explained that “[c]ommercial respondents, such as [Global], are held to a strict liability standard under the ESA. Therefore, whether [Global] knew of or intended to violate the ESA and CITES are immaterial.” J.A. at 226. It added that Global “has extensive experience in this area, ” and that the firm should therefore “know that it is its responsibility to know the law and properly oversee its import.” J.A. at 229. Global “should also be well-versed in the CITES and the ESA, ” the agency reasoned, “by way of its numerous (49) prior violations.” Id. These prior violations showed “not only culpability but a refusal to abide by serious, longstanding wildlife laws.” Id.

         Global appealed this decision to the Department's Office of Hearings and Appeals. See J.A. at 182. The company noted that it “does not dispute there is a missing ‘applicant' signature on CITES permit 28981.” J.A. at 187. Instead, it argued that Majoka was the “applicant, ” and that the agency had found Global liable for Majoka's mistake by relying impermissibly on a vicarious liability theory. Id.

         An Administrative Law Judge (“ALJ”) rejected this argument. He found that the ESA makes it “quite clear that a commercial violator is held to a strict liability standard for any and all violations, notwithstanding their source (in this case Majoka).” J.A. at 46. He also found that Global's “violation is made clear by another controlling regulation.” Id. This regulation, 50 C.F.R. § 13.50, states that “any person holding a permit under this subchapter B assumes all liability and responsibility for the conduct of any activity conducted under the authority of such permit.” The ALJ noted that “[i]t is Global that ‘holds' the permit. ...

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