Summary of a Recent
Judicial
Development in
International Trade
Jurisdiction of the U. S. Court of International
Trade Over ESA Violation Claim
Emilie H. LeibovitchNational AgLaw Center Graduate Assistant
In Salmon Spawning and Recovery Alliance v. Spero, No. C05-1878Z, 2006 U.S. Dist. LEXIS 28432 (Wash. Dist. Ct., May 3, 2006), the United States District Court for the Western District of Washington transferred the case to the United States Court of International Trade (CIT) on the ground that the restrictions on importation of ESA-listed salmon from Canada might qualify as an embargo.
Salmon Spawning & Recovery Alliance and other plaintiffs filed an action against various U.S. agencies claiming that defendants had violated sections 7 and 9 of the Endangered Species Act (ESA) by reaching arbitrary and capricious decisions regarding the import of threatened and endangered salmon from Canada. Salmon Spawning and Recovery Alliance, 2006 U.S. Dist. LEXIS 28432 at *2-3. Defendants moved to dismiss the complaint for lack of subject matter jurisdiction, arguing that the CIT had exclusive jurisdiction over "claims arising under laws providing for embargoes or other quantitative restrictions on the importation of merchandise, namely plaintiffs' Section 9 claim," and that the CIT had supplemental jurisdiction over plaintiffs' section 7 claim. Id. at *7.
The court first noted the CIT has exclusive jurisdiction over, among other things, "embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of public health or safety." Id. at *17 (citation omitted). The court held that "embargo" meant "a governmentally imposed quantitative restriction of zero on the importation of merchandise." Id at *18 (citation omitted). Following that definition, the court looked at whether the salmon was merchandise. See id. at *20. The court determined that because the ESA-listed salmon could be bought and sold by merchants as objects of trade and commerce, the salmon could qualify as merchandise even if its sale was prohibited by law; the court, however, decided that the CIT would have to make that ultimate determination. See id. at *25-26.The court then determined that ESA section 9's prohibition on the import of ESA-listed salmon may constitute a quantitative restriction of zero on the importation of salmon because the salmon could not be imported at all. See id. at *27-28. But again, the court said the CIT would have to reach that decision by itself. See id. at *28. Finally, because the court determined that the CIT might have jurisdiction, the district court decided to transfer the case to CIT rather than dismiss it, thus providing CIT the ability to decide whether it had jurisdiction. See id. at *29-30.
The case was decided on May 3, 2006; this summary was posted Feb. 7, 2006.