The Endangered Species Act (ESA) as Implementing Legislation for International Treaties

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1 The Endangered Species Act (ESA) as Implementing Legislation for International Treaties Kristina Alexander Legislative Attorney March 28, 2012 CRS Report for Congress Prepared for Members and Committees of Congress Congressional Research Service R42447

2 Summary The United States commitment to plant and wildlife conservation extends beyond its borders. In September 2011, claims were made that oil development in the tar sands of Alberta, Canada, triggers the United States international obligations to protect wildlife. Additionally, Congress is considering the United States role in international conservation as it evaluates, for example, reauthorization of species protection laws (see H.R. 50 the Multinational Species Conservation Funds Reauthorization Act of 2011), or modification of the Lacey Act (see H.R. 3210; or S. 2062). Accordingly, the international roots of species conservation merit consideration. The Endangered Species Act (ESA) is the nation s pre-eminent wildlife conservation statute. It does more than protect species within the United States. Its international reach includes protecting species outside the United States by prohibiting trade and possession of endangered species by those under the jurisdiction of the United States. In addition to species protection, the ESA serves as implementing legislation for two international treaties: the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere (the Western Hemisphere Convention) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The ESA provisions regarding the Western Hemisphere Convention are directed at assisting other countries to conserve wildlife and plants. This is largely because the Western Hemisphere Convention commits member countries to conservation practices including international assistance but lacks penalties or monitoring of compliance. In contrast, CITES contains both enforcement and monitoring measures. The ESA establishes the procedural and enforcement practices of the United States compliance with this trade treaty. This report will examine how the ESA serves as the implementing legislation for both conventions. Additionally, this report will analyze the September 2011 petition brought under the Pelly Amendment, 22 U.S.C. Section 1978, arguing that oil extraction involving Canada s tar sands (which would be the source of oil for the proposed Keystone XL pipeline) is harming species at risk of extinction in violation of the Western Hemisphere Convention and the migratory bird treaty between the United States and Canada. If the Secretary of the Interior finds that oil production is diminishing the effectiveness of its international agreements to protect wildlife, he must certify that fact to the President. Upon certification, the President is authorized direct the Secretary of the Treasury to prohibit any imports from Canada. Congressional Research Service

3 Contents Introduction... 1 The Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere... 1 Western Hemisphere Convention Background... 1 Preservation of Flora and Fauna... 2 International Cooperation... 3 Endangered Species Act: the Western Hemisphere Convention Implementing Legislation... 4 The Pelly Amendment... 5 Status of the September 2011 Pelly Petition... 6 Analysis of the September 2011 Pelly Petition... 6 The Convention on International Trade in Endangered Species of Wild Fauna and Flora... 7 CITES Background... 7 Listing Species... 8 The Endangered Species Act: CITES Implementing Legislation... 9 CITES Permitting Authority Under the ESA Listing Species Under the ESA CITES Violations Under the ESA Figures Figure 1. Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere (Western Hemisphere Convention)... 3 Figure 2. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES): Western Hemisphere Parties... 9 Contacts Author Contact Information Congressional Research Service

4 Introduction Congress s early steps toward protecting wildlife had international roots: regulating wildlife trade in the Lacey Act of and protecting migratory birds through several bilateral treaties and domestic legislation begun in the 1910s. 2 In 1942, the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere (the Western Hemisphere Convention), 3 a multilateral treaty to which the United States is a party, entered into force. It addressed trade and migratory bird protection, but also included protection of at-risk species and preservation of unspoiled landscape. In 1975, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which protects species vulnerable to extinction due to trade, entered into force. 4 The United States pre-eminent wildlife protection statute, the Endangered Species Act (ESA), continues these conservation goals by serving as the implementing legislation for the Western Hemisphere Convention and CITES. In fact, Congress gave the United States international commitments to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction as a basis for the ESA. 5 This report will examine the ESA provisions for those two conventions. Additionally, the United States commitment to the Western Hemisphere Convention may provide a basis for imposing a trade restriction under 22 U.S.C. Section Under this provision, the United States may restrict trade with nations whose activities place wildlife conservation at risk in violation of international agreements. This report will analyze the September 2011 petition seeking such enforcement against Canada for its tar sands oil development, which environmental groups claim harms dozens of protected birds and at least one protected mammal. The Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere Western Hemisphere Convention Background The Western Hemisphere Convention is a broad, aspirational treaty, directing its members to preserve species and land. The treaty was signed by the United States in 1940 and came into force in While much of its focus is on preserving land by creating parks, refuges, and wilderness 1 Act of May 25, 1900, 3, 31 Stat. 188; 16 U.S.C et seq. Although the initial Lacey Act did not restrict trade based on foreign laws, it did address importing foreign species. For an examination of the Lacey Act, see CRS Report R42067, The Lacey Act: Protecting the Environment by Restricting Trade, by Kristina Alexander. An 1899 law restricted wildlife trade, but applied only to the District of Columbia. See 30 Stat See the 1913 Weeks-McLean Act, 37 Stat. 847 (asserting federal control over migratory birds); the 1916 Treaty with Canada: Convention Between the United States and Great Britain (for Canada) for the Protection of Migratory Birds; 39 Stat. 1702; TS 628. The Migratory Bird Treaty Act of 1918 was the enabling legislation for this treaty and for three subsequent treaties: Mexico (1936); Japan (1972); and the Soviet Union (1978). 3 Its full name is the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere, available online at 4 CITES is pronounced sigh-tees U.S.C. 1531(a)(4). Congressional Research Service 1

5 areas, it also addresses the conservation of wildlife (both plants and animals), including species at risk of extinction. Twenty-two countries in the Western Hemisphere are signatories to the convention (see Figure 1), with the notable exceptions (in terms of land mass and/or biodiversity) of Belize, Canada, French Guyana, and Honduras. However, the treaty lacks monitoring requirements or meetings to address compliance with or revision of the treaty s terms. Accordingly, it can be categorized as a sleeping treaty, meaning it requires no action by its members and thus has little force of law. It has been described as a treaty that does nothing more than capture the philosophical goals of the member states. 6 Some have argued it has been replaced by the Convention on Biological Diversity, to which the United States is not a party. 7 Preservation of Flora and Fauna Several Articles of the convention address protecting plants and wildlife. For example, in Article VII the member countries agreed to protect migratory birds: The Contracting Governments shall adopt appropriate measures for the protection of migratory birds of economic or aesthetic value or to prevent the threatened extinction of any given species. Article V of the Western Hemisphere Convention commits the members to adopt laws to protect those plants and animals within its boundaries that are not already protected within national parks, refuges, or wilderness areas. The strictest protection is provided for Annex species listed under Article VIII. Under this article, each member country submits lists of species the protection of which it considers to be of special urgency and importance. 8 Species within the Annex are to be protected as completely as possible, while still allowing permitted hunting and scientific research. 9 The United States submitted 10 species: Woodland caribou Sea otter Manatee Trumpeter swan California condor Eskimo Curlew Hudsonian godwit Puerto Rican parrot Ivory-billed woodpecker 10 6 Michael Bowman, Normalizing the International Convention for the Regulation of Whaling, 29 Mich. J. Int l L. 293, 458 (Spring 2008). 7 Dagmar Lohan, A Framework for Assessing the Input of Scientific Information into Global Decisionmaking, 17 Colo. J. Int'l Envtl. L. & Pol'y 1, fn 15 (Winter 2006). More Western Hemisphere countries (34) are parties to the Convention on Biological Diversity, which entered into force in 1992, than are parties to the Western Hemisphere Convention. 8 Art. VIII. 9 Art. VIII. 10 Annex. Of these 10 species, the following are listed as endangered under the ESA: manatee (West Indian or (continued...) Congressional Research Service 2

6 International Cooperation In addition to member countries commitment to pass laws protecting at-risk species, the Western Hemisphere Convention also imposes obligations on international cooperation. Article VI, for example, binds the members to assist other countries in research and field study. Figure 1. Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere (Western Hemisphere Convention) (Entered into Force: 1942) Source: Congressional Research Service based on data from the Organization of American States at Note: 22 parties world-wide. Of the Caribbean nations, Cuba, Haiti, the Dominican Republic, and Trinidad and Tobago are parties. (...continued) Amazonian); Puerto Rican parrot; California condor; woodland caribou (inside the United States); Eskimo curlew; and ivory-billed woodpecker (believed extinct). The sea otter (northern) is listed as threatened. Neither the trumpeter swan nor the Hudsonian godwit is listed. Other countries submitted dozens of species. Congressional Research Service 3

7 Endangered Species Act: the Western Hemisphere Convention Implementing Legislation As mentioned above, with no enforcement provisions or methods to update the treaty, the Western Hemisphere Convention is more hortatory than prescriptive. However, the ESA contains language requiring compliance to the extent feasible and appropriate with the treaty. 11 Additionally, the international grants program administered by the Wildlife Without Borders office of the Fish and Wildlife Service (FWS) is based in part on the Western Hemisphere Convention. 12 The ESA section on international cooperation authorizes the Secretary of the Interior to provide to any foreign country (with its consent) assistance in the development and management of programs... that the Secretary determines to be necessary or useful for the conservation of any endangered species or threatened species listed [under the act]. 13 Beyond ESA-listed species, the act allows the Secretary to assign personnel for the purpose of cooperating with foreign countries and international organizations in developing personnel resources and programs which promote the conservation of fish or wildlife or plants. 14 Interior is also authorized to train foreign personnel in fish, wildlife, or plant management, research and law enforcement. 15 The ESA permit provisions echo the Western Hemisphere Convention. 16 The ESA allows taking a listed species if the act is for scientific purposes, 17 which mirrors Article VIII s provision allowing takes for scientific research. The ESA also allows taking listed species to enhance the propagation or survival of the affected species, 18 which is similar to the Western Hemisphere Convention s exception allowing takes that are essential for the administration of the area in which the animal or plant is found. 19 One court found the Western Hemisphere Convention was the basis for the constitutionality of ESA enforcement. In that case, the Department of the Interior required the state of Hawaii to take management actions regarding the critical habitat of the palila, an endangered bird found only in Hawaii. 20 The state challenged the constitutional authority of the federal government to compel a state to act on state lands. Hawaii argued that the enforcement was contrary to the Tenth Amendment of the Constitution, which reserves to the states rights not delegated to the federal government. The court held that the Supremacy Clause of the Constitution controlled. 21 The Supremacy Clause binds states to the laws and treaties of the United States, 22 which in this case, U.S.C. 1537a(c)(2). 12 Art. VI: The Contracting Governments agree to cooperate among themselves in promoting the objectives of the present Convention. To this end they will lend proper assistance, consistent with national laws, to scientists of the American Republics engaged in research and field study... See also, FWS, International Affairs website, U.S.C U.S.C. 1537(c)(1) U.S.C. 1537(c)(2). 16 However, both could be traced to the 1900 Lacey Act. The original Lacey Act permitted import with a special permit for scientific collection. 31 Stat U.S.C. 1539(a)(1)(A) U.S.C. 1539(a)(1)(A). 19 Art. VIII. 20 Palila v. Hawaii Department of Land and Natural Resources, 471 F. Supp. 985 (D. Haw. 1979). 21 Palila v. Hawaii Department of Land and Natural Resources, 471 F. Supp. 985, (D. Haw. 1979). 22 Art. VI, cl. 2: the Laws of the United States... and all treaties made, or which shall be made, under the authority of (continued...) Congressional Research Service 4

8 according to the court, included the Western Hemisphere Convention. Hawaii was directed to act to protect the birds. The Pelly Amendment In September 2011, environmental groups petitioned the Secretary of the Interior to investigate whether oil extraction from tar sands in Alberta, Canada (the source of oil for the proposed Keystone XL pipeline), was limiting the effectiveness of the Western Hemisphere Convention and the U.S. migratory bird treaty with Canada. 23 The petition was made under 22 U.S.C. Section 1978, known as the Pelly Amendment (to the Fisherman s Protective Act of 1967), authorizing the Secretary of the Interior to certify to the President that actions of foreign persons are impeding the effectiveness of the United States international conservation agreements and to seek sanctions. 24 Sanctions can include a ban on imports from the offending country. The Pelly Amendment requires that if the Secretary of the Interior or the Secretary of Commerce finds that nationals of a foreign country, directly or indirectly, are engaging in trade or taking which diminishes the effectiveness of any international program for endangered or threatened species, the Secretary... shall certify such fact to the President (emphasis added). 25 The Secretary must act promptly to investigate and reach a conclusion. 26 However, the Supreme Court has held that the Secretary has a range of discretion as to what constitutes an action that diminishes conservation required by treaty. 27 In that case, Japan Whaling Association v. American Cetacean Society, the Court held that although Japan was exceeding its whaling quota set by international convention, the Secretary of Commerce reasonably relied on a Japan s commitment to reduce whaling in the future when deciding not to certify. While the Secretary may determine what must be certified, the decision must be based on conservation. 28 The President does not have a mandatory obligation to bring sanctions under the law. Upon receipt of a certification, the President may direct the Secretary of the Treasury to prohibit the bringing or the importation into the United States of any products from the offending country for any duration as the President determines appropriate and to the extent that such prohibition is sanctioned by the World Trade Organization... [or] multilateral trade agreements (emphasis added). 29 The President has sixty days to inform Congress whether sanctions will be imposed, and (...continued) the United States, shall be the supreme law of the land Petition to Secretary Salazar from Earthjustice and Ecojustice Canada (on behalf of other organizations), Petition for Certification of Canada (September 22, 2011) (hereinafter Petition), available online at media-centre/media-release-files/tar-sands-pelly-petition U.S.C. 1978(a). Japan and Iceland are currently under Pelly Certifications for their whaling activities. See CRS Report R40571, The International Whaling Convention and Legal Issues Related to Aboriginal Rights, by Kristina Alexander U.S.C. 1978(a)(2) U.S.C. 1978(a)(3)(B)-(C). 27 Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 236 (1986). 28 Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 233 (1986) (stating that the Secretary cannot refuse to certify for any reason not connected with the aims and conservation goals of the Convention ); Greenpeace, U.S.A. v. Mosbacher, 719 F. Supp. 21, 24 (D.D.C. 1989) U.S.C. 1978(a)(4). Congressional Research Service 5

9 if the ban does not include some or all of the fish and wildlife imports from that country, he must inform Congress of the reasons why. 30 The United States may act when activities diminish[] the effectiveness of an international program for endangered or threatened species. Under 22 U.S.C. Section 1978(h), international program for endangered or threatened species is defined as any ban, restriction, regulation, or other measure in effect pursuant to a multilateral agreement which is in force with respect to the United States, the purpose of which is to protect endangered or threatened species of animals. Status of the September 2011 Pelly Petition According to the Department of the Interior, the Pelly Petition was referred to the State Department. 31 It is unclear how 22 U.S.C. Section 1978 supports such a referral as Congress delegated to the Department of the Interior and the Department of Commerce all roles in investigation and certification. Analysis of the September 2011 Pelly Petition The Petition alleges that oil extraction from tar sands directly and indirectly kills migratory birds directly, by contaminated tailing ponds; and indirectly, by limiting and polluting habitat. 32 One hundred thirty migratory birds are listed in the Petition as having the tar sands area as habitat, including the trumpeter swan, which was listed by the United States in the Annex to the Western Hemisphere Convention. 33 The Petition also claims that woodland caribou (also listed by the United States in the Annex to the Western Hemisphere Convention) are harmed by tar sands production because of habitat destruction. 34 The treaty imposes on its members, the duty to protect species in the Annex as completely as possible. 35 Additionally, the treaty requires members to adopt appropriate measures for the protection of migratory birds There is some question whether the claims related to the migratory bird treaty with Canada are properly brought under this petition. The Pelly Amendment was further amended in 1990 to expand the application of Section 1978(a)(1) from only multilateral international fishery programs to bilateral programs as well. 37 However, the section pertaining to international conservation programs for threatened or endangered species was not expanded to include bilateral programs. 38 Accordingly, the Pelly sanctions appear to apply only to violations of those U.S.C. 1978(b). The reference to any products in 1978(a)(4) and the reference to only fish and wildlife imports in 1978(b) is the result of a 1990 amendment expanding the definition of embargoed goods in 1978(a)(4), but not in the rest of the Pelly Amendment. P.L , Personal correspondence to the author from Christopher Mansour, Department of the Interior, Director of Congressional and Legislative Affairs, March 16, Petition at Petition at Annex Petition at 2. The ESA lists a different population of western caribou as endangered, but does not list the Alberta population. 35 Art. VIII. 36 Art. VII. 37 P.L , 201; 22 U.S.C. 1978(h)(3) U.S.C. 1978(a)(2). Congressional Research Service 6

10 threatened or endangered species programs where the ban, restriction, regulation, or other measure is pursuant to a multilateral agreement. While the United States has several treaties regarding migratory birds, including the agreement with Canada, they are all bilateral agreements. Therefore, it may be that only those species protected under the multilateral Western Hemisphere Convention would be part of the Secretary s analysis as to whether conservation is diminished. Additionally, while it seems true that the United States is a party to a multilateral agreement to protect at least some of the species named in the Petition, it is unclear whether oil exploration in the tar sands of Alberta is diminishing the effectiveness of that agreement. Even if such a finding is made, it does not mean that sanctions or even certification will follow. Based on history where the Secretary negotiated protective measures with an offending nation to avoid having to certify it, some habitat protections could be put in place by Canada such as limiting birds access to tailing ponds that could satisfy the Secretary that there was no diminished conservation. Also, even if the Secretary certifies Canada, the President is not required to issue sanctions. The Convention on International Trade in Endangered Species of Wild Fauna and Flora CITES Background As suggested by its title, CITES is a treaty designed to protect species vulnerable to extinction due to trade. According to the CITES website, international wildlife trade amounts to billions of dollars annually, and involves hundreds of millions of plant and animal specimens. 39 The treaty entered force in July 1975, less than two years after enactment of ESA. CITES is structured so that the more risk a species has of becoming extinct, the more restrictive trade becomes. It creates three classifications of species, known as Appendices. Appendix I contains the species most at risk of extinction; Appendix II, the next at risk; and Appendix III, species at risk according to one member country. Although Appendix I species are frequently likened to endangered species under the ESA, that is not entirely accurate. A listing on Appendix I requires a determination that the species are those threatened with extinction which are or may be affected by trade. 40 An ESA listing of endangered requires a finding that a species is in danger of extinction throughout all or a significant portion of its range, and a threatened species is one that is likely to become an endangered species within the foreseeable future. 41 Trade is just one of many factors in determining whether to list a species under the ESA. 42 Accordingly, not all ESA-listed species are on Appendix I, 43 nor are all Appendix I species ESA-listed See CITES, What Is CITES?, 40 Art. II U.S.C. 1532(6) and (20), respectively U.S.C See 16 U.S.C. 1533(a)(1)(B) overutilization for commercial... purposes. This is discussed more in Listing Species, below. 43 For example, the pronghorn antelope is an endangered species, but only the Mexican population is listed on CITES Appendix I. 44 For example, the red panda is an Appendix I species but is not listed under the ESA. Congressional Research Service 7

11 Unlike the Western Hemisphere Convention, CITES has reporting requirements, monitoring requirements, and regular meetings of the parties. Species are added to or removed from Appendix I or II upon a two-thirds majority vote, while no approval is required for a member state to add a species to Appendix III. A member state may choose to enter a reservation when a species is named to an appendix, 45 meaning that country would not be bound by the subsequent trade restrictions. Because adding species to or removing species from the Appendices does not amend the treaty itself, no ratification is required. Listing Species Any member country may propose adding a species to Appendices. While the treaty does not provide any criteria for the listing decision other than agreement by two-thirds of the parties attending and voting, a 1994 Resolution established criteria that the parties agreed to use. 46 Proposals are to be based on the best information available. 47 There are two steps for considering whether a species is threatened with extinction under CITES. First, the species must fall into one of these three categories: 1. small wild population; 2. wild population with a restricted range; or 3. marked decline in the wild population. 48 Within those three categories, the viability of the species is assessed based on population, environmental stressors, habitat, and exploitation. Approximately 34,000 species appear on the Appendices. 49 For species on Appendix I, international trade requires an export permit, showing the animals, plants (or parts thereof) were legally obtained, and an import permit, which includes a statement that the specimen is not being used primarily for commercial purposes and that import is not detrimental to the species survival. 50 Appendix II species require only an export permit for international trade showing that the specimens were legally obtained. Only states that included a species on Appendix III are required to provide an export permit for such species. 51 Of course, member states may have additional requirements. In the United States, for example, imports of wood or products containing wood would require a Lacey Act permit 52 in addition to the permits required by CITES, and the ESA requires permits for importing listed species Art. XXIII. 46 CITES, Resolution Id. 48 Resolution 9.24, Annex CITES, The CITES Species, According to the website, approximately 5,000 animal species and 29,000 plant species are listed. 50 Art. III. 51 Art. IV and Art. V U.S.C. 3372(f) U.S.C Congressional Research Service 8

12 Figure 2. Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES): Western Hemisphere Parties (Entered into Force: 1975) Source: Congressional Research Service based on information from Note: 175 parties world-wide. For a list of all parties, see Of the Caribbean nations, only Haiti is not a member. The Endangered Species Act: CITES Implementing Legislation The ESA and CITES were linked from the beginning. The ESA is CITES implementing legislation, notwithstanding that the treaty had not been ratified when the ESA was enacted. 54 CITES is referred to as the Convention throughout the ESA The United States signed CITES in March 1973; the ESA was enacted in December 1973; CITES was ratified by the Senate in 1974; and CITES entered into force in U.S.C. 1532(4). Congressional Research Service 9

13 CITES Permitting Authority Under the ESA The Convention requires a Managing Authority and a Scientific Authority to be designated for each member. 56 In 1979, the ESA was amended, designating the Secretary of the Interior as having most of the operational duties under the Convention, and eliminating the authority of the President to make other designations. 57 The ESA establishes the Secretary of the Interior as the Managing Authority and Scientific Authority for CITES. This authority was delegated to the Fish and Wildlife Service (FWS), which manages those duties in the Division of International Conservation. The Managing Authority issues permits under the treaty and makes the determinations whether importing an Appendix I species is not primarily for commercial purposes and whether the species was legally obtained. This authority was addressed in Resolution 12.3 of CITES, which recommends that parties refuse to accept any permit or certificate that is invalid, including authentic documents... that contain information that brings into question the validity of the permit. Congress gave direction for the FWS Managing Authority to do all things necessary and appropriate to carry out [its] functions. 58 Imports of CITES species cannot be made without a FWS Management Authority determination. FWS s failure to make a determination of legality can also be the basis for blocking import. 59 The Scientific Authority makes the determination whether trade will be detrimental to the survival of the species and also whether an applicant seeking a permit to import a live specimen has the facilities to care for it. 60 The Scientific Authority also analyzes whether export of specimens from the United States would be detrimental to the species. The ESA requires that these decisions be based on the best available biological information derived from professionally accepted wildlife management practices. 61 Courts give deference to the FWS on these determinations. For example, in a case where the legality of mahogany from Brazil was in dispute, the court deferred to the FWS Management Authority. 62 Although the mahogany shipments were accompanied by signed, legal export documents, the Management Authority of Brazil told FWS that the documents were signed only because of a Brazilian court order (which was being appealed) and that the legality of the harvest was in question. The court held that FWS had discretion to rely on the statements by the Brazil Management Authority and refused to force FWS to allow import of the wood. 63 In another case, the FWS Scientific Authority was allowed to base its finding that exporting box turtles would be detrimental to the species on the totality of information received, and not just on the data received 56 Art. IX. 57 P.L , 93 Stat. 1228; 16 U.S.C. 1537a U.S.C. 1537a(b). 59 See World Wildlife Fund v. Hodel, No , 1988 WL (D.D.C. June 17, 1988) (issuing preliminary injunction blocking panda import because FWS did not make finding that import was not primarily for commercial purposes). 60 Art. III(2)(a) U.S.C. 1537a. 62 Castlewood Products, LLC v. Norton, 365 F.3d 1076 (D.C. Cir. 2004). 63 Castlewood Products, LLC v. Norton, 365 F.3d 1076, 1084 (D.C. Cir. 2004) ( the Government acted reasonably in requiring more than facial satisfaction [of a permit] when determining whether an export permit is valid ). Congressional Research Service 10

14 from the state with the most exports. 64 In that case, the court pointed to the language in Section 1537a(b), giving the FWS discretion to do all things necessary and appropriate to carry out the functions of the Scientific Authority. 65 Even the timing of issuing permits is considered discretionary. In the case of an American exporter of paddlefish roe, the court refused to direct FWS to issue permits, even when the delay could cause the roe to become worthless. 66 The court said that issuance of a CITES export permit is discretionary, based on investigation and findings. 67 Similarly, claims that FWS was delaying permit approval for importing elephant trophies sport-hunted in Africa became moot when FWS denied the applications. 68 Listing Species Under the ESA The ESA considers listing differently than CITES. Instead of evaluating population size, the ESA considers the factors affecting a species. Additionally, the ESA requires consideration of whether other regulatory efforts are in place to protect the species. A listing decision must be made solely on the basis of the best scientific and commercial data available. 69 An ESA decision must consider the following: threats to the species range; whether humans are taking too many of the species; whether disease or predation puts the species at risk of extinction; whether adequate regulatory mechanisms are in place; and whether other natural or manmade factors are imperiling the species. 70 CITES Violations Under the ESA The ESA prohibits violating CITES, including possessing a species traded contrary to the convention s terms. 71 FWS enforces CITES violations, as does Customs and Border Protection of the Department of Homeland Security, and the Animal and Plant Health Inspection Service of the Department of Agriculture. Penalties for CITES violations include civil penalties of up to $25,000 per violation; 72 criminal fines of up to $50,000 and/or imprisonment of not more than one year; 73 and forfeiture of specimens Prima v. Department of the Interior, No. Civ. A , 1998 WL 87912, *4 (E.D. La. February 19, 1998) ( the determination of what is and what is not professionally accepted wildlife management practices lies precisely within the Agency s discretion ). 65 Id. at *3. 66 Leisure Caviar, LLC v. U.S. Fish and Wildlife Service, 616 F.3d 612 (6 th Cir. 2010). 67 Id. at Marcum v. Salazar, 810 F. Supp. 2d 56 (D.D.C. 2011) (elephants sport-hunted in Zambia); Franks v. Salazar, No , 2011 WL (D.D.C. October 6, 2011) (elephants sport-hunted in Mozambique) U.S.C. 1533(b) U.S.C. 1533(a) U.S.C. 1538(c) U.S.C. 1540(a)(1). Congressional Research Service 11

15 Because of the overlapping nature of CITES and the ESA when it comes to trade, offenders frequently are charged with violating both acts. For example, if somebody exported an ESAlisted species from the United States that was also an Appendix I species without an export permit, the exporter could be liable for violating the CITES permit requirements as well as violating the ESA prohibition against transporting or selling such a species. Additionally, as the Lacey Act makes it a crime to violate other U.S. law related to plants and wildlife, Lacey Act charges could also be brought. 75 Prosecution of CITES violations is based on documentation. The permits serve as a record of trade so that the conservation goals of the treaty can be met. In the case of yacare caiman hides brought from South America into the United States, the CITES offense was based on the export permit, which was described as having the following flaws: falsely identifying the hides as being from a non-endangered species; failing to have an endorsement by the exporting country s Management Authority; and incorrectly identifying the number of hides. 76 The court found reasonable cause to forfeit the entire shipment under CITES, pointing to the treaty s goal of protecting species from extinction due to trade: The local authorities, within the various signatory countries to CITES, must know how many animals are being exported, in order to protect the listed species from exploitation. 77 Sometimes the case is described as an ESA offense based on a violation of CITES. When parakeets were imported into the United States without a legal export permit, the permit violation was the basis for the forfeiture, but was reviewed under CITES implementing statute, the ESA. 78 The court found that the export permit s lack of authentication from the Managing Authority was a violation of the ESA: the validity of a CITES permit depends upon its compliance with the wildlife laws of the issuing nation is incorporated by the Endangered Species Act as well. 79 While CITES and ESA may overlap, not all provisions are redundant. For example, the ESA allows importing an Appendix II species that is not an endangered species. 80 For this provision to apply, CITES must not otherwise have been violated. This is an exemption, not of CITES restrictions (since the treaty must be followed), but of the ESA, and applies primarily to importing sport-hunted trophies of threatened species. Under this exception, no ESA permitting is needed, providing the CITES documentation is complete. This substantially reduces the burden on a person seeking to import such a species, as the ESA permitting regulations require publication of a Federal Register notice, and a public comment period. 81 (...continued) U.S.C. 1540(b)(1) U.S.C. 1540(e)(4)(A) U.S.C See CRS Report R42067, The Lacey Act: Protecting the Environment by Restricting Trade, by Kristina Alexander. 76 United States v. 3,210 Crusted Sides of Caiman Crocodilus Yacare 636 F. Supp (S.D. Fla. 1986). Charges were also brought under the ESA and the Lacey Act; violations under either also support forfeiture. 77 Id. at United States v. 2,507 Live Canary Winged Parakeets, 689 F. Supp (S.D. Fla. 1988). The court also found that charges under the Lacey Act supported forfeiture. 79 Id. at U.S.C. 1539(c)(2). 81 See 50 C.F.R and Congressional Research Service 12

16 A similar exception for parallel compliance is provided by regulation pertaining to polar bears. Under the regulation for polar bears, if an action that results in killing or harming a polar bear otherwise complies with CITES or the Marine Mammal Protection Act (MMPA), a permit under the ESA is not required. 82 Author Contact Information Kristina Alexander Legislative Attorney kalexander@crs.loc.gov, C.F.R (q). This exception does not provide for importing sport-hunted trophies for polar bears. They are listed as a threatened species under the ESA, and they are treated as a depleted species under the MMPA, meaning the sport-hunting exception for import does not apply. See In re Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, 794 F. Supp. 2d 65 (D.D.C. 2011). Congressional Research Service 13