Conservation Force, et al v. Ken Salazar, et al

Filing

FILED OPINION (PROCTER R. HUG, BARRY G. SILVERMAN and SUSAN P. GRABER) AFFIRMED. Judge: PRH Authoring, FILED AND ENTERED JUDGMENT. [7829417]

Case: 10-15306 07/22/2011 Page: 1 of 6

ID: 7829417 DktEntry: 37-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSERVATION FORCE, a non-profit
corporation; MIGUEL MADERO
BLASQUEZ and COLIN G. CROOK,
hunters,
Plaintiffs-Appellants,
v.
KEN SALAZAR, United States
Secretary of Interior; ROWAN
GOULD, United States Fish &
Wildlife Service Acting Director;
DANIEL G. SHILLITO, Pacific
Southwest Region Solicitor;
CAROLYN LOWN, Pacific Southwest
Region Assistant Solicitor; U.S.
FISH & WILDLIFE SERVICE,
Defendants-Appellees.





No. 10-15306
D.C. No.
3:09-cv-01170VRW
OPINION



Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Argued and Submitted
July 11, 2011—San Francisco, California
Filed July 22, 2011
Before: Procter Hug, Jr., Barry G. Silverman, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Hug

9787

Case: 10-15306 07/22/2011 Page: 2 of 6

ID: 7829417 DktEntry: 37-1

CONSERVATION FORCE v. SALAZAR

9789

COUNSEL
John J. Jackson, III, Conservation Force, Metairie, Louisiana,
for the plaintiffs-appellants.
Kurt G. Kastorf, Charles R. Scott, Attorneys, United States
Department of Justice, Washington, D.C., for the defendantsappellees.

OPINION
HUG, Senior Circuit Judge:
This case involves the seizure and administrative forfeiture
of two leopard trophies by the United States Fish and Wildlife
Service (“FWS”) from two hunters, Patricio Miguel Madero
Blasquez and Colin Crook (“plaintiffs”), who attempted to
import the leopard trophies from African countries without

Case: 10-15306 07/22/2011 Page: 3 of 6

9790

ID: 7829417 DktEntry: 37-1

CONSERVATION FORCE v. SALAZAR

proper export permits. Plaintiffs and Conservation Force, a
nonprofit entity, filed suit against federal defendants Ken
Salazar (Secretary of the Department of the Interior), Rowan
Gould (Director of FWS), Daniel Shillito (Regional Solicitor
for the Department of the Interior), Carolyn Lown (Regional
Assistant Solicitor for the Department of the Interior), and the
FWS asserting that the administrative forfeiture of their leopard trophies violated the Civil Asset Forfeiture Reform Act of
2000 (“CAFRA”), the Eighth Amendment Excessive Fines
Clause, and the Due Process Clause. We affirm the district
court’s dismissal of plaintiffs’ CAFRA and constitutional
claims.
I.

Background

In this case, plaintiffs separately hunted leopards in two different African countries and then attempted to import the
leopard trophies with deficient export permits. In July 2007,
Blasquez hunted his leopard in Zambia with a hunting excursion company. On February 6, 2008, Blasquez attempted to
import the leopard trophy (one skull and skin) into the United
States through San Francisco without an export permit from
the Zambian authorities. Blasquez told authorities that the airline had lost the Zambian export permit. A month later, FWS
received a photocopy of a Zambian export permit that lacked
the legally required signature, and there was no reason provided for supplying a copy instead of the original. On March
12, 2008, the FWS seized the trophy.
In June 2007, Crook hunted his leopard in Namibia. On
March 3, 2008, Crook attempted to import his leopard trophy
(one skull and skin) into the United States through San Francisco with an expired export permit from Namibia. The FWS
later received an email from Namibian authorities stating that
it considered the trophy legally exported under a newly issued
permit, even though Crook had used an expired permit. On
March 18, 2008, the FWS seized the leopard trophy.

Case: 10-15306 07/22/2011 Page: 4 of 6

ID: 7829417 DktEntry: 37-1

CONSERVATION FORCE v. SALAZAR

9791

On April 2, 2008, FWS sent each plaintiff a Notice of Seizure and Proposed Forfeiture regarding their leopard trophies.
This notice provided that the plaintiffs should, by May 24,
2008, file either a petition for remission with the Office of the
Solicitor or file a claim to initiate a judicial forfeiture proceeding. Both plaintiffs chose to pursue the administrative
route and filed a petition for remission with the Office of the
Solicitor. On May 13, 2008, Crook filed his petition for
remission, arguing that his deficient export permit merely
resulted from a clerical error. On May 20, 2008, Blasquez
filed a petition for remission, arguing that the airline lost the
export permit. Both petitions were denied by the Solicitor.
Plaintiffs filed supplemental petitions for remission. These
petitions were also both denied.
On March 17, 2009, plaintiffs and Conservation Force filed
suit in federal court asserting that the defendants had violated
their rights under CAFRA, the Eighth Amendment, and Due
Process Clause. On July 23, 2009, the defendants filed a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(1) and 12(b)(6). On September 4, 2009, plaintiffs filed
an opposition to the motion. On December 30, 2009, the district court granted the defendants’ motion and dismissed
plaintiffs’ CAFRA claim for lack of jurisdiction under Federal
Rule of Civil Procedure 12(b)(1) and the remaining claims for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6).
II.

Standard of Review

We review de novo a district court’s dismissal for lack of
jurisdiction or failure to state a claim. Serra v. Lappin, 600
F.3d 1191, 1195 (9th Cir. 2010). A motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief can be granted “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th
Cir. 2001). A district court’s dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6) is

Case: 10-15306 07/22/2011 Page: 5 of 6

9792

ID: 7829417 DktEntry: 37-1

CONSERVATION FORCE v. SALAZAR

proper if there is a “lack of a cognizable legal theory or the
absence of sufficient facts alleged under a cognizable legal
theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699
(9th Cir. 1990). To survive a motion to dismiss, a plaintiff ’s
complaint must have sufficient facts “to state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010).
III.

Discussion

A.

Jurisdiction

[1] Plaintiffs contend that the district court erred in dismissing their CAFRA claim for lack of jurisdiction. Under 50
C.F.R. § 12.23(a), the Department of Interior’s Office of the
Solicitor may seek forfeiture of property that is subject to forfeiture under the Endangered Species Act of 1973 (“ESA”),
16 U.S.C. §§ 1531-1544. Under the ESA, it is unlawful to
import into the United States wildlife that is listed as an
endangered species, like the leopard, unless the importer
obtains the permits required under the Convention on International Trade in Endangered Species of Wild Fauna and Flora
(“CITES”), 16 U.S.C. § 1538(a)(1)(A) and (c). CITES provides for the monitoring and restricting of trading certain species to protect them from commercial exploitation, and its
trade restrictions are imposed through a system of permits and
certificates. 50 C.F.R. §§ 23.1, 23.4. The FWS has the responsibility of implementing the ESA, which includes enforcing
the CITES’ permit requirements. 50 C.F.R. § 23.23(a).
[2] If an individual attempts to import property in violation
of the ESA and CITES permit requirements, such property
may be seized by the government. 50 C.F.R. §§ 12.23, 23.13.
If such property is seized by the government, then the agency
must notify the parties who have an interest in the seized
property of its intent to forfeit the property. 18 U.S.C.
§ 983(a). An interested party must receive a notice advising
the party that he or she may seek to reclaim the property

Case: 10-15306 07/22/2011 Page: 6 of 6

ID: 7829417 DktEntry: 37-1

CONSERVATION FORCE v. SALAZAR

9793

administratively or judicially, i.e., one may file a petition for
remission with the Office of the Solicitor or may file a claim
for the forfeiture to be addressed in federal district court. 50
C.F.R. §§ 12.23(b), 12.24. The two remedies are distinct. A
petition for remission “asks the agency for discretionary
return of the property,” while a claim “initiates the judicial
process to decide whether the property should be forfeited.”
Malladi Drugs & Pharm., Ltd. v. Tandy, 552 F.3d 885, 889
(D.C. Cir. 2009) (Malladi Drugs). “A party claiming ownership of the seized property may choose to pursue either the
administrative or the legal remedy, complying with the applicable filing deadline for its choice.” Id. “The forfeiture statutes and regulations provide alternative, not sequential,
administrative and legal remedies for an administrative forfeiture.” Id. at 890. If a party pursues the administrative path,
files a petition for remission, and the petition is denied, the
only avenue to set aside the declaration of forfeiture is if the
notice of forfeiture was not received. 18 U.S.C. § 983(e). This
is the exclusive remedy after pursuing the administrative path
for setting aside a forfeiture decision by the Office of the
Solicitor. Id.
[3] In this case, the district court properly held that plaintiffs’ CAFRA claim is barred from judicial review. Plaintiffs
received proper notice of the proposed forfeitures. Plaintiffs
chose to pursue an administrative path and filed petitions for
remission and petitions for supplemental remission. These
petitions were reviewed by the Office of the Solicitor and
denied. Because plaintiffs chose to pursue administrative remedies, they waived the opportunity for judicial forfeiture proceedings. See 50 C.F.R. § 12.24(a) (expressly providing that
remedies are exclusive); Malladi Drugs, 552 F.3d at 889
(holding that the remedies are exclusive); Cole v. United
States (In re $844,520), 136 F.3d 581, 582 (8th Cir. 1998)
(per curiam) (holding that the remedies are exclusive).
Accordingly, as it properly held, the district court properly
dismissed the action.
AFFIRMED.