Trade

Summary: This case dealt with an action brought by an organization of safari hunters and firearm advocacy association under the Administrative Procedures Act (APA) and the Endangered Species Act (ESA) against the U.S. Fish and Wildlife Services (FWS), challenging the decision to suspend imports of sport-hunted African elephant trophies from Zimbabwe. The U.S. District Court for the District of Columbia entered summary judgment in FWS's favor, and the organization and association appealed. Under the ESA, sport-hunted African elephant trophies may only be imported into the United States if, among other things, the FWS makes “[a] determination ... that the killing of the trophy animal will enhance the survival of the species”. The Court of Appeals held that 1) FWS's interpretation of Special Rule forbidding import of sport-hunted elephant trophies was permissible; 2) FWS could base finding that killing of African elephants did not enhance species' survival on absence of evidence that sport hunting enhanced survival of species; 3) FWS's conclusion that it lacked evidence to make finding that killing African elephants in Zimbabwe would enhance survival of species rebutted any presumption that importation did not violate any provision of ESA or regulation issued pursuant to ESA; 4) removal of enhancement requirement from Convention on International Trade in Endangered Species of Wild Fauna and Flora did not require FWS to reconsider Special Rule; 5) finding constituted rule rather than adjudication; and 6) FWS's failure to engage in notice-and-comment prior to finding was not harmless error. Affirmed in part and reversed in part, and remanded so the FWS can initiate rule making to address enhancement findings for the time periods at issue in this case.

Summary: In Zuchtvieh-Export GmbH v. Stadt Kempten, the European Court of Justice ruled that a European Council regulation that protects animal welfare during transport applies to the stages of a journey outside of the European Union (EU), if that journey commenced within the EU. This ruling by the European Court of Justice has been praised as it improves animal transport conditions outside of the EU. However, transport companies and governments outside of the EU are less welcoming of the ruling. The ruling highlights the difficulty in determining when and how such a regulation should be applied abroad. It also raises the broader question of striking a balance between efficient and uniform regulation across borders and maintaining territorial sovereignty. As a solution to the issues raised in Zuchtvieh-Export, this Comment suggests the use of bilateral international agreements, which would reduce conflict between nations by protecting territorial sovereignty.

Summary: These federal statutes describe the Whaling Convention Act which granted authority to the Secretary of State and the Secretary of Commerce for regulation. The Act makes it unlawful for any person in the United States to engage in whaling, transporting, or selling any whale or whale products, that are taken or processed in violation of the Act. The Act also prohibits other unlawful conduct such as whaling without a license and failing to keep required returns, records, and reports. Finally, the Act provide penalties for violations including a fine of not more than $10,000, imprisonment of not more than one year, or both. In addition the court may prohibit such person from whaling for a period of time.

Summary: Rampant poaching has put African elephants on the verge of extinction in the wild, and the United States (U.S.) is complicit in this crisis. Despite the best efforts of federal agencies, porous national borders, legal loopholes, and deep-seated difficulties in law enforcement make the U.S. a major market for illicit ivory. While the White House, the United Nations, and the European Union, along with other voices, are sounding alarms, bold and concrete actions have been slow in coming. The U.S., in particular, is only beginning to acknowledge its own role in the slaughter, and still relies on a patchwork of inadequate laws and regulations to control its domestic ivory trade. The U.S. must quickly put a halt to its domestic ivory trade by adequately funding customs and wildlife inspectors and addressing the problem at every step along the chain of destruction—from the poachers and militants on the ground in Africa, to the international criminal syndicates underwriting the logistics of trafficking, to the consumers whose demand drives the crisis to ever-greater depths. This Article, analyzing never-before released data from the U.S. Fish and Wildlife Service, shines a light on the scope and scale of the underground trade in the U.S., unpacks the problems facing regulators and enforcement officials, and builds the case for a total ban on the commercial ivory trade, which threatens the existence of one of the planet’s greatest icons.

Summary: Controversy surrounding application of the Shark & Fishery Conservation Act of 2010 (Shark Conservation Act) reflects a culmination of competing interests between environmental conservation and international free trade. Non-governmental organizations are pressuring the United States (U.S.) government to use the Shark Conservation Act to impose trade sanctions against countries that do not have specific regulations on shark finning. The implementation of such import bans, however, could negatively impact the nation’s relationships with some of its principal trade partners and violate international obligations under multilateral trade treaties. This Note proposes that the U.S. cannot impose such an embargo on shark products without first laying a foundation for its actions in international custom or treaty.

Summary:

Shark finning is amongst the most wasteful and cruel exploitation of animals currently practiced in the world today. The decimation of shark populations threatens the fragile balance of the oceans’ ecosystems and ultimately threatens the human population as well. This Article addresses the economic and cultural reasons for the continued practice and demand for shark finning. Many protections for sharks have been attempted, but nearly all fail due to inadequate restrictions and enforcement. Various international treaties and conventions have to some degree addressed the issue, including the Convention on International Trade in Endangered Species and the Convention on Migratory Species, among others. A leader on the issue, the United States has made several statutory and regulatory efforts to prohibit shark finning. Other countries also have enacted protections. However, due to lack of enforcement, lack of resources, and the presence of legal loopholes, shark finning continues on a wide scale. This Article examines weaknesses in the current attempts at protective measures and explores new ideas for the protection of sharks. 

Summary: Safari Club International and the National Rifle Association filed suit challenging the federal government’s suspension of imports of trophies from elephants sport-hunted in Zimbabwe. In April of 2014, the U.S. Fish and Wildlife Service (“the Service”) suspended imports of trophies from elephants on the basis that the Service could no longer make the finding required under its regulations “that the killing of the animal whose trophy is intended for import would enhance survival of the species.” Safari Club asserted four main arguments against the Service’s suspension of imports: (1) the agency violated APA rulemaking requirements by not providing for notice and comment; (2) the agency applied prohibited guidelines and the wrong standard in making its findings; (3) the agency failed to overcome a statutory presumption in Section 9(c)(a) of the Endangered Species Act; and (4) the agency violated the APA by failing to explain why it maintained the enhancement finding requirement in the Special Rule after the requirement was eliminated from the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The court reviewed Safari International’s arguments and granted summary judgment only with respect to the argument that the Service had failed to publish notice of the changed Zimbabwe enhancement finding in the Federal Register until May 12, 2014. The court dismissed the remaining arguments put forth by Safari International and granted summary judgment in favor of the Service. The court found that the Service had violated its commitment to publish any notice of a change in the Federal Register before the change can take effect. The Service violated this commitment by publishing notice of the suspension of imports of trophies in the Federal Register on May 12, 2014 but making the effective date of the suspension April 4, 2014. For this reason, the court found that the effective date of the suspension must be changed to May 12, 2014. With respect to Safari International’s other arguments, the court found that Safari International was unable to meet its burden and held in favor of the Service.

Summary: Official Summary: Existing Oregon law does not prohibit sale of wildlife parts/products for non native species, except shark fins. Existing federal law does not prohibit intrastate sales of wildlife parts, with exceptions. Measure amends ORS 498.022 to prohibit purchase, sale, or possession with intent to sell of parts/products from elephant, rhinoceros, whale, tiger, lion, leopard, cheetah, jaguar, pangolin, sea turtle, shark, ray. Imposes civil penalties. Creates exceptions: law enforcement activities; activities authorized by federal law; fish managed under federal plan; certain antiques (over l00 years old) and musical instruments with less than 200 grams of parts; noncommercial transfers through estates, trusts, gifts; possession by tribal members. Other exceptions. Fish and Wildlife Commission may adopt rules, including prohibiting purchase/sale of parts "closely" resembling listed species parts. A "Yes" vote prohibits purchase/sale of parts/products from certain wildlife species; exceptions for specified activities, gift/inheritances, and certain antiques/musical instruments; civil penalties. A "No" vote maintains current Oregon law which does not prohibit purchase or sale of parts or products from species not native to Oregon, except for shark fins.

Summary: In this case, plaintiff filed suit challenging the California Penal Code, specifically sections 653o and 653r. Plaintiff manufactured boots from the hides of animals, including the hides of the African elephant, the Indonesian python, and the Wallaby kangaroo. Section 653o and 653r of the California Penal Code prevented plaintiff from selling his boots in California because the provisions forbid the sale of products made from dead bodies, or any part of the elephant, python, or kangaroo. Plaintiff challenged these provisions arguing that the provisions were preempted by the Convention on International Trade in Endangered Species of Wild Fauna and Flora and by the Endangered Species Act of 1973, thus making the provisions unconstitutional. The plaintiff also argued that the provisions were unconstitutional because of the burden placed on interstate commerce which violates the Commerce Clause of the U.S. Constitution. Ultimately, the court held that the provisions of the California Penal Code were not unconstitutional and dismissed plaintiff’s claim. The court looked to whether or not the provisions were expressly or impliedly preempted and determined that because the provisions were not expressly preempted the court needed to do an analysis of implied preemption. Looking to legislative history, the court found that Congress did not intend to preempt the provisions of the California Penal Code with the enactment of the Endangered Species Act of 1973. Lastly, the court held that the California statue was not a burden on interstate commerce because Congress was aware of the existence of the California provisions and decided that the Endangered Species Act would not affect the California provisions. As a result, the court dismissed plaintiff’s claim and held for the defendant.