Conservation Force v. Salazar

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. No. 10-15306

KEN SALAZAR, United States D.C. No.

Secretary of Interior; ROWAN  3:09-cv-01170-

GOULD, United States Fish & VRW

Wildlife Service Acting Director;

OPINION

DANIEL G. SHILLITO, Pacific

Southwest Region Solicitor;

CAROLYN LOWN, Pacific Southwest

Region Assistant Solicitor; U.S.

FISH & WILDLIFE SERVICE,

Defendants-Appellees.



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

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 defendants-

appellees.

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

9790 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 leop-

ard 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 dif-

ferent 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 excur-

sion 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 air-

line 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 pro-

vided 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 Fran-

cisco 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.

CONSERVATION FORCE v. SALAZAR 9791

On April 2, 2008, FWS sent each plaintiff a Notice of Sei-

zure 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 pro-

ceeding. 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 dis-

trict 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 suffi-

ciency 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

9792 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 plausi-

ble 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 dis-

missing 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 for-

feiture 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 Interna-

tional Trade in Endangered Species of Wild Fauna and Flora

(“CITES”), 16 U.S.C. § 1538(a)(1)(A) and (c). CITES pro-

vides for the monitoring and restricting of trading certain spe-

cies 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 respon-

sibility 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

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 owner-

ship of the seized property may choose to pursue either the

administrative or the legal remedy, complying with the appli-

cable filing deadline for its choice.” Id. “The forfeiture stat-

utes and regulations provide alternative, not sequential,

administrative and legal remedies for an administrative forfei-

ture.” 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 plain-

tiffs’ 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 rem-

edies, they waived the opportunity for judicial forfeiture pro-

ceedings. 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.