Petition — International Ass'n of Fish & Wildlife Agencies v. Defenders of Wildlife, Inc.

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80-1997 MAY 27 1981

ALEXANDER t. STEVAS

CLERK

IN THE

Supreme Court of the United States

OcToOBER TERM, 1980

No.

INTERNATIONAL ASSOCIATION OF

FisH & WILDLIFE AGENCIES,

Petitioner,

Vv.

DEFENDERS OF WILDLIFE, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

PauL A. LENZINI

CHAPMAN, Durr & PAUL

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

Of Counsel:

WILLIAM A. HUTCHINS

CHAPMAN, Durr & PAUL

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

QUESTIONS PRESENTED

1. Does judicial supervision of the manner in which the

executive branch carries out responsibilities assigned to it by the

Convention on International Trade in Endangered Species of

Wild Fauna and Flora (hereinafter “CITES”’) infringe the area

of foreign policy judgment constitutionally committed to the

executive?

2. Do the substantive standards of an international

convention which is not self-executing take on the force of

domestic law so as to enable a private suitor to found a cause of

action thereon where Congress has merely empowered the

executive to do the things assigned under the convention?

3. Does the decision below to displace the Scientific

Authority’s guidelines for determining whether export will be

detrimental to the survival of the bobcat as a species in favor of

the court’s views on that question exceed the proper scope of

judicial review or invade the domain Congress has set aside

exclusively for the administrative agency where that decision

fails to reflect either (a) consideration of the record supporting

those guidelines or (b) observance of the arbitrary and cap-

ricious standard?

PARTIES TO PROCEEDING BELOW

The following are the parties to the proceeding in the

United States Court of Appeals for the District of Columbia

Circuit:

Defenders of Wildlife, Inc., appellant, cross-appellee;

the Endangered Species Scientific Authority and its mem-

bers Harold O’Connor, Dr. Robert L. Williamson, Dr.

R.V. Miller, Dr. Joe Held, Dr. James Callahan, Mrs. Jane

Yarn, Dr. David Chaliinor, Dr. William Y. Brown, ap-

pellees; the Department of the Interior and the Secretary

of the Interior, Cecil D. Andrus, appellees; the U.S. Fish

and Wildlife Service and its Director, Lynn A. Greenwalt,

appellees; the International Association of Fish and Wild-

life Agencies, appellee, cross-appellant; the Fur Con-

servation Institute of America, appellee, cross-appellant;

Raymond U. Driscoll, appellee, cross-appellant, Hartman

Hide and Fur Company, appellee, cross-appellant;

Charles Mock, appellee, cross-appellant; Robert Mis-

kowitz, appellee, cross-appellant; Lester L. Newton, ap-

pellee, cross-appellant; Plott Hide & Fur Company, Inc.,

appellee, cross-appellant; Dr. Edward Sceery, appellee,

cross-appellant; Gary J. Schroeder, appellee, cross-

appellant; James W. White, appellee, cross-appellant;

Phillip Worm, appellee, cross-appellant; Pacific Hide &

Fur Depo, appellee, cross-appellant. Since the appeal was

taken, the Endangered Species Scientific Authority has

been abolished and its functions transferred to the Sec-

retary of the Interior, to be carried out through the Fish

and Wildlife Service; James G. Watt has become Secre-

tary of the Interior; and F. Eugene Hester is Acting

Director, Fish and Wildlife Service.

eee

TABLE OF CONTENTS

I. This Case Raises Important Issues Regarding

the Proper Role of the Federal Courts In

Implementing Treaties Which Call for Action

by the Executive Branch

II. The Decision Below Propels the Federal Courts

Into the Domain Set Aside Exclusively for

Agencies of the Executive Branch.....................

III. The Decision Below Will Seriously Impede the

Efforts of State and Federal cials to Ad-

minister Effective Wildlife Management Pro-

MII icisdictanentovchcorseeuscnsesinaibenacinnae daaiiniaaaiii

Ce ee UTS socscessinsestcenisnnctomncsetsicccingeanmenesninestniiinanienns

TABLE OF AUTHORITIES

Page

CASES:

Citizens to Preserve Overton Park v. Volpe, 401

Ses SNE 0 OO hdc nihaslnischtgtnindndeaianinchatabenainiionses 14,15

Diggs v. Richardson, 555 F.2d 848 (D.C. Cir.

Par IUND ccksansarsachssonchapisarneanabeunaaeeentbacmncomumaseninn 9

Federal Communications Commission v. Nation-

al Citizens Committee for Broadcasting, 436

Bk Fae OTE Wcsdccctpctceenralecenebtiataneisinsaoncovonieee 14,15,16

Federal Power Commission v. Transcontinental

Gas Pipeline Corp., 423 U.S. 326 (1976).......... 13,14,15,

Foster v. Nielsen, 27 U.S. (2 Pet.) 253 ( 1829)..... 9

Goldwater v. Carter, 444 U.S. 996 (1979)............ 8,10,11

The Head Money Cases [Edye v. Robertson],

pelt fk | Gah al ee cue Senne r)

Hopson v. Kreps, 622 F.2d 1375 ( 9th Cir. 1980).. 10,11

Mannington Mills, Inc. v. Congoleum Corp., 595

oe EET Ce Geils FTO Pacinsicessressconeseconsncnveosnen 9

Panama Canal Co. v. Grace Lines, Inc., 356 U.S.

I TEED cakamceesaasabdecnsciecaibiesisuteeisiindapemandieceione 12

Pennhurst State School v. Halderman, —___. U.S.

—_—, 49 U.S.L.W. 4363 ( April 20, 1981)........ 17

Securities and Exchange Commission v. Chenery

I Pe SN. BOE OUT B cen cccntsctsiniscstecstanscones 14

United States v. Curtiss-Wright Export Corp.,

ae Se PD iscininenisetiesiteavcdatiinisniceasdensianns 10,11,12

United States v. Postal, 589 F.2d 862 (5th Cir.

TUN TTTE TD sscadicacscmentbsnechiacchinacbbebadicabdiaaidiemsasiiunestieeces 9

Z&F Assets Realization Corp. v. Hull, 311 US.

TE A IED Gotnecstsapsabadensaoadiataciaeih nbideedsthsceunnpacebeieen 12

Page

STATUTES AND TREATIES:

Convention on International Trade in Endan-

gered Species of Wild Fauna and Flora ........... Retetets

9,10,12,

13,15,18

Endangered Species Act of 1973, 16 U.S.C.

SEE Gr A 0 BOT FIN D ccchaccdesisnscssccesansnnsesonsssccesore 2,3,7

10,12,18

Migratory Bird Treaty Act, 16 U.S.C. 704

Rls casceciiemnhanenninesntnciebiaseian 18

Rese Oe Ge BCR PD censccsscsoscssseseassseccesovese 2

RNs 0 MONEE A HUMID cchsnscccnsnsonssncsscesctscccosssosece 2

iad te PNTTAL SOPIIET DP scnctssctccssnenccnnentncescscaseqnees 2

REGULATIONS AND EXECUTIVE ORDERS:

Executive Order 11911 (April 13, 1976).............. 3

44 Fed. Reg. 55542 (September 26, 1979).......... 3

LEGISLATIVE HISTORY:

119 Cong. Rec. 25,670 ( 1973 ).........ssccscssscsssereees 12

119 Cong. Rec. 25, 676 (1973) .....cccscccscessesseeseeees 3,12

PRRPGE, FUNG. ZOOES ( UDTS) .cccccccceccocescccevssesssses 2

S. Rep. No. 93-307, 93rd Cong., Ist Sess, (1973) 12

MISCELLANEOUS:

Alexander, The Place of Aging in Wildlife Man-

agement, 46 American Scientist 123 (1958) .... 17

Gilbert, Aging White-Tailed Deer By Annuli in

the Cementum of the First Incisor, 30(1) J.

Wildlife Management 200 (1966) ..............0000 17

L. Henkin, Foreign Affairs and the Constitution

RARER er ll

Leslie, On the Use of Matrices in Certain Popu-

lation Mathematics, 33 Biometrika 183

Ta eamceeanan 17

Restatement (2nd) of Foreign Relations Law

SIT T ccstcicscibinieneniinditsansicatislalicietiiianiaininnniinnaies 9

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

No.

INTERNATIONAL ASSOCIATION OF

FisH & WILDLIFE AGENCIES,

Petitioner,

Vv.

DEFENDERS OF WILDLIFE, INC.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

The petitioner International Association of Fish and Wild-

life Agencies (hereinafter the “Association” ) respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the District of

Columbia Circuit entered in this proceeding on February 3,

1981. The Fur Conservation Institute of America and Ray-

mond J. Driscoll, et al., appellees, cross-appellants in the court

below, join in this petition.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto, at p. la, infra. The opinion of

the District Court for the District of Columbia, not reported,

appears in the Appendix hereto, at p. 30a, infra.

JURISDICTION

The judgment of the Court of Appeals was entered on

February 3, 1981. A timely petition for rehearing was denied

on February 26, 198i, and this petition for certiorari was filed

within ninety days of that date. This Court’s jurisdiction is

invoked under 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

Material portions of pertinent treaty and statutory provi-

sions are included in the Appendix hereto. The Convention on

International Trade in Endangered Species of Wild Fana and

Flora, 27 U.S.T. 1087, T.LA.S. No. 8249, ratified by ‘'.S.

Senate, 119 Cong. Rec. 28012 (Aug. 3, 1973), appears at p.

42a, infra. Section 8(e) of the Endangered Species Act of

1973, (P.L. 93-205, 87 Stat. 884), 16 U.S.C. §1573(e) (1976) )

appears at p. 67a, infra.

STATEMENT OF THE CASE

In this civil action, Plaintiff Defenders of Wildlife, Inc.

(hereinafter ““Defenders”) asserts that the guidelines under

which the Endangered Species Scientific Authority determines

whether export will be detrimental to the survival of the bobcat

as a species do not comply with Article IV of the Convention on

International Trade in Endangered Species of Wild Fauna and

Flora (hereinafter “CITES”). Defenders invoked the jurisdic-

tion of the district court under 28 U.S.C. §§ 1331 (general

federal question jurisdiction) and 1337 (regulation of com-

merce ).

CITES is a treaty in which the United States undertakes to

regulate export of (1) endangered species listed by the signa-

tory parties on Appendix I thereof, and (2) other species listed

on Appendix II which are not endangered but which could

become so if trade is not monitored and regulated. CITES, Art.

II (infra, p. 43a). In 1977 the signatory nations voted to list the

entire cat family (Felidae) on Appendix II, thereby adding the

bobcat to that Appendix even though that species is not listed

as endangered or threatened under the endangered species

legislation of the United States. 16 U.S.C. §§ 1531-1543.

Article IV of CITES directs each signatory to establish a system

of regulating trade in species listed on Appendix II. The

“Management Authority” of each nation is to grant permits

allowing export of such a species only if the “Scientific Author-

ity of the State [i.e., nation] of export has advised that such

export will not be detrimental to the survival of that species.”

Art. IV(2)(a) and Art. IX(1)(a) (infra, p. 46a, 54a).

Congress provided the executive branch “the means to

carry out” this regulatory scheme (119 Cong. Rec. 25,676

(1973)) by authorizing the President to designate a Manage-

ment and a Scientific Authority and declaring that the

“agencies so designated shall thereafter be authorized to do all

things assigned to them under the Convention.” Section 8(e)

of the Endangered Species Act of 1973; 16 U.S.C. § 1537(e)

(1976) (infra, p. 67a). Congress left further implementation in

the hands of the Executive Branch.’ The President established

the Endangered Species Scientific Authority by Executive Order

11911 (April 13, 1976).

That Authority has moved aggressively to implement the

treaty. It has determined to make individual no-detriment

findings for each of the states of the United States and to

remake those findings each year on the basis of current

information, even though nothing in CITES suggests that no-

detriment findings need be made on the basis of geographic

units smaller than the nation or that such findings should be

made or re-examined at regular intervals. See, e.g., 44 Fed.

Reg. 55542 (September 26, 1979). On the basis of notice and

comment procedures and a public hearing, the Scientific Au-

1 Subsequent to issuance of the guidelines at issue in this case and to the

District Court's decision, Congress amended this provision to designate the

Secretary of the Interior as both the Management and Scientific Authorities

but again left further implementation in the executive's hands by providing

that “[t}he Secretary shall do all things necessary and appropriate to carry

out the function[s] of the Management Authority ... [and] of the Scientific

Authority under the Convention.” 16 U.S.C. §1573a (b)-(c) (Supp. Ill

1979).

thority promulgated guidelines describing the minimum

biological information necessary to support no-detriment find-

ings for each state:

Minimum Requirements for

Biological Information

1. Population trend information *** the method of

determination to be a matter of State choice.

2. Information on total harvest of the species.

3. Information on distribution of harvest.

4. Habitat evaluation.

(J.A. 175-218).2 Under these guidelines, no-detriment findings

can be made on the basis of “population trend information”

together with the other specified items and without estimates or

counts of the actual number of bobcats in each state. The

Scientific Authority’s decision that valid findings of no detri-

ment may be made in this fashion is supported by an adminis-

trative record which included comments submitted in response

to the Federal Register notices, testimony at the public hearing,

and the “Report of the Working Group on Bobcat, Lynx, and

River Otter.”

The Working Group was composed of “twelve scientists

expert in the biology and management of these or similar

species [whose] selection was primarily based on the advice of

the American Society of Mammalogists, the Wildlife Society,

and members of the ESSA” (J.A. 848). Seven of the members

thus selected were from the academic world, four worked with

state conservation agencies, and one was an employee of the

U.S. Fish and Wildlife Service. As explained by the Group’s

Chairman:

[T]he charge of the Working Group was to determine

as specifically as possible what biological information and

2 References in the form “J.A.” are to the pages of the joint appendix

filed in the court below.

management programs ensure that harvest of bobcat

(Lynx rufus), lynx (Lynx canadensis), and river otter

(Lutra canadensis) would not be detrimental to their

survival or to the species maintaining their normal roles in

their ecosystems.

(J.A. 848). The Group met to deliberate on these issues and

prepared a draft report embodying iis conclusions:

That draft was presented publicly on January 25,

1978, to an assembly of representatives of State and

private organizations concerned about wildlife [including

Defenders of Wildlife]. Each representative was allowed

to seek clarification of the report and to criticize it and

comment on it. In addition, each organization was given

three weeks in which to submit written comments to be

considered by the Working Group in preparation of a final

report.

(J.A. 848-49). In that final report the Working Group

observed that the Bobcat had been added to Appendix II as

part of a wholesale inclusion of the entire cat family ( Felidae)

and “without adequate consideration of the available biological

information”; pointed out that even those species that are

properly listed on that Appendix “by definition are not in

danger of extinction”; and recommended basing no-detriment

findings on “population trend information” and the other

requirements for biological information which the Scientific

Authority ultimately promulgated as guidelines (J.A. 852, 855,

857). Nothing in the Working Group’s report suggests that

estimates or counts of total population numbers are necessary.

In this civil action Defenders asserts that such estimates are

required by Article IV of CITES as a prerequisite to no-

detriment findings and that the guidelines are accordingly

invalid. Named as defendants were the Scientific Authority

and a number of other federal agencies and officials. The

3 The challenge to the guidelines was contained in count II of Defenders

Complaint. The remaining five counts of the Complaint asserted other

challenges to actions taken with regard to bobcat by the Scientific Authority

and the Fish and Wildlife Service, but those issues are not before this Court.

Association intervened as a defendant to represent the interests

of its members, which include the fish and wildlife agencies of

each of the fifty states. Those state agencies provide the

primary source of protection and management for wiidlife in

this country, including the bobcat, through restricted hunting

and trapping seasc .. and other limitations on taking, and

protection of hab’... The Fur Conservation Institute and a

number of individual trappers and fur dealers also intervened

as defendants.

A considerable portion of the testimony at trial focused on

Defenders’ attempt to prove that the Scientific Authority acted

arbitrarily and capriciously in determining that the minimum

biological information recommended by the Working Group

forms an adequate basis for no-detriment findings. Three

witnesses with Ph.D’s in biology or related fields and extensive,

practical experience in wildlife management—Drs. Jahn,

Crowe, and Evans—testified in support of the guidelines. Dr.

Jahn, who at the time of trial was employed by the Wildlife

Management Institute and was President of The Wildlife

Society, an organization of some 10,000 individual members in

approximately 70 countries who are professionally employed in

the biological or related fields of wildlife conservation, testified

that population trend information derived from harvest data

affords an adequate basis for making no-detriment findings and

that “this is the normal process that is used in wildlife ecology

and management” of many species, including predators like the

bobcat (J.A. 533, 536).

Dr. Crowe was a member of the Working Group and did

his doctoral dissertation on bobcat population dynamics in

Wyoming (J.A. 399-402). He concurred that it is not necessary

to have a population estimate in order to make no-detriment

findings for bobcat and went on to explain in detail how he

draws an accurate, reliable picture of the status and trend of the

bobcat population in Wyoming without making population

estimates. (J.A. 411-444).

Finally, Dr. Evans, a professional wildlife manager employed

by the New Mexico Game & Fish Department, and holder of a

Ph.D in Wildlife Ecology, testified similarly for New Mexico

(Tr. 635-680 ).4 These scientists demonstrated that, like scien-

tists in many other fields, they can draw reliable, accurate

inferences and conclusions from data which may appear to the

uninitiated lawyer, judge or other layman to convey little

information.

Defenders supported its claim principally through the

testimony of two biologists, Drs. Fitch and Grandy (J.A. 253-

397). Although neither witness has practical wildlife manage-

ment experience, each testified that no-detriment findings for

bobcat cannot be made without having independent, reliable

estimates or counts, not based on harvest data, of the total

number of bobcats in each state (J.A. 270, 315-16). Neither

witness, however, offered any suggestion as to how such a

census could be made for a species like the bobcat which is

furtive, nocturnal and very difficult to spot in the wild.

In deciding this case, the District Court held that CITES is

a judicially enforceable part of domestic law on which Defend-

ers could base its challenge to the guidelines but rejected that

challenge and accepted the testimony of the expert witnesses

supporting the guidelines. For example, of Dr. Crowe, the

District Court found the following:

Dr. Crowe displayed an impressive knowledge of the

Bobcat and its habitat in Wyoming. His detailed analysis

of harvest data bespeaks sound management policy and

adequately supports ESSA’s no-detriment finding.

Infra, p. 34a.

On appeal, the court below found as a threshhold matter

that Congress incorporated all provisions of CITES into domes-

tic law when, “in Section 8(e) of the Endangered Species Act,

Congress implemented the Convention” (infra, p. 12a) and

that Article IV may therefore be judicially enforced against the

executive branch. The court then held that the guidelines are

invalid because, in the court’s view, Article IV of CITES

requires that no-detriment findings be based on estimates of

total bobcat population numbers. In explaining its reasons for

“ References in the form “Tr.” are to the pages of the transcript of the

trial in the district court.

rejecting the conclusion reached by the Working Group, the

Scientific Authority, the expert wildlife managers who testified

at trial, and the District Court which presided over that trial,

the court made no reference to any portions of the record which

supported or challenged the guidelines and, instead, announced

its own view:

We do not see how, without adequate information on

total bobcat population and the number to be killed in a

particular season, the Scientific Authority can make a valid

determination of “no detriment.”

Infra, p. 17a.

REASONS FOR GRANTING THE WRIT

This case presents important issues concerning the proper

role of the federal judiciary in two areas critical to the doctrine

of separation of powers: (1) interpretation, enforcement and

compliance with the international obligations which the United

States has assumed through treaties; and (2) review of the

decisions made by agencies of the executive branch. The

decision below espouses an expansive view of the role the

courts are to play in both of these areas, a view which conflicts

in principle with prior decisions of this Court and the courts of

appeals for other circuits.

I. This Case Raises Important Issues Regarding the

Proper Role of the Federal Courts In Implementing

Treaties Which Call for Action by the Executive

Branch.

Adherence to the propositions established by the Court

below will thrust the federal judiciary squarely into the role of

supervising implementation of treaties by the executive branch.

Because such a decision holds considerable potential for inter-

ference in the executive’s conduct of foreign policy and detri-

ment to the principle of separation of powers, review by this

Court is justified. See, e.g., Goldwater v. Carter, 444 U.S. 9%6

(1979).

In considering the proper role for the judiciary in inter-

preting and implementing treaties, a distinction must be made

between those treaty provisions which are directed to, and

contemplate action by, the legislative or executive branches of

our government and those treaties which, of their own force,

declare or establish rights and responsibilities of individuals

without the need for action by the legislature or the executive.

The latter provisions are “self-executing” and become part of

domestic law cognizable by our courts immediately upon

entering into force. Foster v. Nielsen, 27 U.S. (2 Pet.) 253, 314

(1829); The Head Money Cases [|Edye v. Robertson], 112 U.S.

580, 599 (1884); Diggs v. Richardson, 555 F.2d 848, 851 (D.C.

Cir. 1976). A provision which is directed to and contemplates

action by the legislature or the executive is not self-executing;

does not, of its own force, become part of our domestic law; and

is not subject to judicial interpretation or enforcement. Jd.

Article IV of CITES, on which the court below rested its

decision to invalidate the Scientific Authority’s guidelines, is not

self-executing because it contemplates an implementing scheme

to be elaborated by agencies of the executive branch.§

The wisdom of holding that treaty provisions con-

templating action by the executive are not, of their own force,

part of domestic law is apparent. To hold otherwise would

render every decision made by the executive in implementing

5 The court below assumed, without deciding, that CITES is not self-

executing (p. 10a, infra). There can, however, be little doubt that this

assumption is correct, at least as-to Article IV. That Article meets each of the

three tests customarily used to determine that a treaty provision is not self-

executing. The language of Article IV does not, of its own force, create rights

or obligations in individuals, but rather calls upon the signatory parties to take

appropriate measures to regulate trade in certain species. Mannington Mills,

Inc. v. Congoleum Corp., 595 F.2d 1287, 1298-99 (3rd Cir. 1979); Restate-

ment (2nd) of Foreign Relations Law §141 (1965). The critical language of

Article 1V—"not detrimental to the survival of that species” — is the type of

nonspecific treaty provision which is held to be executory because its terms do

not provide sufficient detail to be judicially enforceable against the executive.

Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976). Finally, CITES is

an international convention signed by a number of countries which do not

recognize any treaties as being self-executing, thus creating a lack of mutuality

if CITES were held to be self-executing in this country. United States v.

Postal, $89 F.2d 862, 878 ( Sth Cir. 1979),

such provisions subject to judicial review at the suit of anyone

with standing, including citizens of the other nations which are

signatories to the treaty. Since a treaty is first and foremost an

international obligation of the United States and implementa-

tion of such an obligation necessarily entails matters of foreign

policy, a reviewing court would find itself supervising the

conduct of foreign policy, a subject confided to the executive

branch under the separation of powers doctrine. Goldwater v.

Carter, supra, 444 U.S. 996 (1979) (Rehnquist, J., concurring).

A conflict between the executive and the courts as to how the

former should implement treaty provisions would be particu-

larly embarrassing because in discussions “ith other nations

regarding treaties and their implementation “the President

alone has the power to speak or listen as a representative of the

nation.” United Siates v. Curtiss-Wright Export Corp., 299

U.S. 304, 319 (1936).

Despite these considerations and the fact that Article IV of

CITES is not self-executing, the court below interpreted that

Article as requiring reliable population estimates as a pre-

requisite to making no-detriment findings and relied on that

interpretation as the basis for holding the Scientific Authority’s

guidelines invalid. The court thus rejected the executive’s

interpretation of Article IV in favor of its own. It declared that

it has authority to do so on the theory that Congress has

incorporated the entire text of CITES into domestic law by

providing in section 8(e) of the Endangered Species Act that

the Scientific and Management Authorities are “authorized to

do all things assigned to them under the Convention” (p. 67a,

infra). This decision has the effect of incorporating all

executory treaty provisions into domestic law and making

executive implementation of such provisions subject to judicial

supervision whenever Congress provides the means or authority

to carry out the functions such provisions delegate to the

executive.

This principle conflicts squarely with the rule stated by the

Ninth Circuit in Hopsor: v. Kreps, 622 F.2d 1375, 1380 ( 9th Cir.

1980). When Congress implements an executory treaty it is the

implementing legislation and not the treaty itself that becomes

domestic law:

[1] f a treaty is not self-executing it is not the treaty but the

implementing legislation that is effectively “law of the

land”.

622 F.2d at 1380, quoting with approval L. Henkin, Foreign

Affairs and the Constitution 157 (1972). Under this principle,

the international obligations contained in a treaty are not

automatically incorporated into domestic law whenever Con-

gress merely provides the executive the tools necessary to carry

out its responsibilities under the Treaty.

Because of the difficulties inherent in judicial supervision of

treaty implementation, such direction should not be found

absent a clear expression of congressional intention to inject the

courts into the treaty implementation process. As this Court has

stressed, in matters relating to foreign affairs and treaties only

the President can speak for the nation and he must be accorded

a high degree of “discretion and freedom from statutory

restriction” if “embarrassment—perhaps serious embarrass-

ment—is to be avoided.” United States v. Curtiss-Wright

Export Corp., supra, 299 U.S. at 319-20 (1936). In light of

these principles, Congressional legislation touching foreign af-

fairs and treaty matters has long accorded the executive branch

“vide discretion that otherwise might run afoul of the nondele-

gation doctrine.” Goldwater v. Carter, 444 U.S. 996 (1979)

( Powell, J., concurring, n.|.); Curtiss-Wright, supra, 299 U.S. at

322-24. Abandonment of this policy and its replacement with

one favoring judicial supervision of treaty implementation

should not be found unless Congress has clearly expressed that

intention.

A contrary intention is apparent in section 8(e) of the

Endangered Species Act, the legislation on which the court

below relied for its authority to enforce Article IV against the

executive. In that section, Congress was careful merely to

“authorize” the Management and Scientific Authorities to carry

out their responsibilities under the treaty.® As the legislative

history makes clear, Congress intended thereby only to provide

the executive the “mechanisms for implementation” of CITES.

119 Cong. Rec. 25,670 (1973) (remarks of Senator Tunney).

Accord, S. Rep. No. 93-307, 93d Cong., Ist Sess. 5, reprinted in

[1973] U.S. Code Cong. & Ad. News 2989, 2994; 119 Cong.

Rec. 25,676 (1973). Conspicuous is the absence of any

suggestion in section 8(e) or the legislative history that Con-

gress intended the federal courts to impose their interpretations

of the international obligations the United States undertook in

CITES on the executive branch.

Congress thus left it to the executive to elaborate the

meaning of Article IV and that Article remains “executory,” in

the sense of treaty law, pending that elaboration, thereby

preserving the “discretion and freedom from statutory restric-

tion” the executive branch needs in treaty matters and foreign

affairs. United States v. Curtiss-Wright Export Corp., supra,

299 U.S. at 320. Cf, Z&F Assets Realization Corp. v. Hull, 3\1

U.S. 470, 489 (1940). The judicial role in implementing

substantive standards under CITES is limited to ensuring that

the executive abides by its own elaboration of the treaty and

does not extend to imposing the court’s interpretation of

international obligations on the executive. See, e.g., Panama

Canal Co. v. Grace Line, Inc., 356 U.S. 309, 311, 317 (1958)

® That Congress in Section 8(¢) intentionally limited itself to “author-

izing” the Scientific Authority to implement CITES and knowingly refrained

from using mandatory language is established by comparing the first and

second sentences of that section. In the first sentence Congress “authorized

and directed" the President to establish Management and Scientific Author-

ities, whereas in the second sentence Congress merely “authorized” those

Authorities to do those things assigned them under CITES, thus evidencing an

intention to refrain from embodying in domestic law a requirement that they

carry out the provisions of an international obligation.

(holding unreviewable an agency decision setting canal tolls

under treaty which required the tolls to be “just and equi-

table”).

Should the contrary principle stand that all of CITES has

been incorporated into domestic law, it will place the executive

in a difficult position at the Conference of the Parties held every

two years under Article XI of CITES and in other discussions

and negotiations among the signatories. At the Conference of

the Parties, for example, the parties are required to “review the

implementation” of the Convention. CITES, Art. XI(3). In

such a review, is the United States delegation obliged to insist

that other nations have reliable population estimates before

making no-detriment findings under Article IV even though our

Scientific Authority does not believe such estimates are neces-

sary? Or, are there, in effect, two sets of books, viz., Article IV

as applicable in the United States and Article IV as applicable

in all other signatory nations? As other questions arise under

CITES and our courts render additional interpretations, is the

executive also obliged to advance and advocate those inter-

pretations in discussions and conferences of the parties, even

when the executive disagrees with the judicial interpretation?

If the decision below is not reviewed, the same kinds of

questions will, of course, arise under other treaties which

require executive action and are implemented by Congress in

the same way CITES has been. The decision below thus

threatens an intolerable degree of judicial entanglement in this

nation’s dealings with other nations.

Il. The Decision Below Propels the Federal Courts Into

the Domain Set Aside Exclusively for Agencies of the

Execu‘ive Branch.

Even if the decisions taken by the Scientific Authority

under CITES are assumed for purposes of discussion to be

subject to review in the same fashion as are the decisions of

other federal agencies acting pursuant to statute, granting the

writ is warranted because the decision below conflicts with this

Court’s repeated warnings against “propelling the Court into

the domain which Congress has set aside exclusively for the

administrative agency.” Federal Power Commission v. Trans-

continental Gas Pipeline Corp., 423 U.S. 326, 333 (1976),

quoting with approval Securities and Exchange Commission v.

Chenery Corp., 332 U.S. 194 (1947). To prevent the lower

courts from invading that domain, this Court has set specific

limits on judicial review of informal agency action. Review

must be confined to, and based upon, the record. Federal

Power Commission v. Transcontinental Gas Pipeline Corp.,

supra, 423 U.S. at 331. The scope of review is governed by the

“arbitrary or capricious standard” under which the agency’s

decision must be upheld so long as it is “rational and based on

consideration of the relevant factors.” Federal Communications

Commission v. National Citizens Committee for Broadcasting,

436 U.S. 775, 803 (1978). Of course, “[t]he court is not

empowered to substitute its judgment for that of the agency” to

which the matter has been confided in the first instance.

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416

(1971).

The decision below conflicts with the principles stated in

each of this Court’s decisions cited in the preceding paragraph.

After notice and comment procedures, the Scientific Authority

promulgated guidelines specifying, inter alia, that no-detriment

findings for the bobcat can be made on the basis of population

trend information, without using estimates of total population

numbers. The record supporting this decision assembled

during the administrative proceedings and at trial includes the

report of the Working Group of twelve expert biologists and

wildlife managers and detailed testimony from Drs. Crowe,

Jahn and Evans. Also in that record is the testimony of two

biologists who, although they lack significant wildlife manage-

ment experience, were permitted to testify that reliable popu-

lation estimates are necessary in making no-detriment findings.

In holding the guidelines invalid, the court below ignored

this record entirely, made its own, de novo, analysis of the

information it believed necessary to make no-detriment find-

ings, and substituted its opinion on that subject for the re’ -oned

conclusion of the Scientific Authonty. Instead of attemp .ig to

evaluate the factual and scientific support for the guidelines

found in the record and to determine whether that record

provides a rational basis upon which to conclude that popu-

lation trend information is adequate, the court below simply

conducted its own analysis on the basis of what it apparently

believed to be first principles of biology or wildlife manage-

ment. That analysis begins with an assertion of the court’s own

opinion about the proper way to make no-detriment findings:

We do not see how, without adequate information on

total bobcat population and the number to be killed in a

particular season, the Scientific Authority can make a valid

determination of “no detriment.”

(p. 17a, infra). The court then explains this opinion exclusively

with hypothetical examples of its own creation (p. 17a, infra),

and fails to discuss not only the evidence and expert opinions

supporting the guidelines but also the testimony of the only two

witnesses who argued against the guidelines (p. 18a, infra).

Finally, the court announces it conclusion that the guidelines

are invalid without paying even “lip service” to the arbitrary

and capricious standard or the requirement to test the agency’s

action against the record.? No decision could more clearly

conflict with the principles established by this Court in Federal

Power Commission v. Transcontinental Gas Pipeline Corp.,

supra, 423 U.S. at 331; Federal Communications Commission v.

National Citizens Committee for Broadcasting, supra, 436 U.S.

at 803; and Citizens to Preserve Overton Park v. Volpe, supra,

401 U.S. at 416, than does the decision of the court below to

substitute its own unsupported opinions on matters of wildlife

management for the reasoned decision of the Scientific Author-

ity to which CITES confides those matters in the first instance.

7 The portions of the decision below explaining the decision to hold the

guidelines invalid is, as explained in the text, devoid of any mention of the

facts, opinions and evidence in the record and of any language even

suggesting observance of the traditional limits on the scope of review of

informal agency action which this Court has established ( pp. 16a-19a, infra).

A puzzling aspect of that opinion, however, is that, in portions discussing

other issues not presented to this Court for review, the opinion below

evidences adherence to the arbitrary and capricious standard (p. 21a, /nfra)

and knowledge of, and reliance upon, the testimony in the record ( pp. 22a-

23a, infra). This situation leaves the decision of the court below to substitute

its knowledge of wildlife management for the record and its opinions on the

subject for the conclusions of the Scientific Authority without justification.

Even if one were, for purposes of argument, to ignore the

explanation given by the court below and to assume that the

court actually did attempt to review the Scientific Authority’s

guidelines in light of the record, the decision below would still

reflect a serious invasion into the “domain...set aside ex-

clusively for the administrative agency.” Federal Power Com-

mission v. Transcontinental Gas Pipeline Corp., supra, 423 U.S.

at 333. The record reflects unanimous support for the guide-

lines among experts with practical wildlife management ex-

perience. The Working Group and Drs. Jahn, Crowe and

Evans all recommended basing no-detriment findings on popu-

lation trend information without requiring population size

estimates. The Scientific Authority’s decision to adopt this

method was rationally based on the record and should have

been upheld. Federal Communications Commission v. National

Citizens Committee for Broadcasting, supra, 436 U.S. at 803.

Indeed, in light of the lack of wildlife management experience

of the only two witnesses to argue that population estimates are

necessary, a decision by the Scientific Authority to require such

estimates could not have been rationally based on that record.

Id. Thus, no matter how the decision below is viewed, it

represents a serious departure from the proper role of a federal

court reviewing administrative action.

Ill. The Decision Below Will Seriously Impede the

Efforts of State and Federal Officials to Administer

Effective Wildlife Management Programs.

The principle established below that wildlife management

decisions such as a no-detriment finding cannot be made

without having “‘a reliable estimate of the number” of animals

in each state (infra, p. 19a) is wholly contrary to modern

wildlife management as practiced for most species in this

country. As Dr. Jahn testified “the normal process in wildlife

ecology and management” is to make such decisions using

population trend determinations based on harvest data and the

age and sex structure information those data provide (J.A.

536). Drs. Crowe and Evans agreed (J.A. 411; Tr. 642-43).

Indeed, the scientific literature is replete with studies demon-

strating the importance of sex and age classes within wildlife

populations and the projections for the condition of the popu-

lation that can be made therefrom. E£.g., Alexander, The Place

of Aging in Wildlife Management, 46 American Scientist 123

(1958); Gilbert, Aging White-Tailed Deer by Annuli in the

Cementum of the First Incisor, 30(1) J. Wildlife Management

200 (1966); Gran, Sanderson and Rogers, Age Determination

of Raccoons, 34(2) J. Wildlife Management 364 (1970);

Leslie, On the Use of Matrices in Certain Population Mathema-

tics, 33 Biometrika 183 (1945). To reject by judicial fiat this

well established, proven methodology is to make wildlife

management both vastly more expensive and less effective.

First, the decision below will impede the attempts of

federal and state agencies to make rational budgetary decisions

allocating scarce resources among competing programs. Devel-

oping reliable population estimates that are not based on

harvest data will consume a disproportionately large segment of

the resources available for protection and management of all

species. To use one state as an example, in New Mexico

inaking such an estimate would require devoting the full

working time of ten state employees for a full year to trapping,

tagging and releasing all the bobcats on each of ten widely

distributed study areas representing different habitat types so

that the bobcat density in each type can be determined and

extrapolated to the whole state (Tr. 635-680). A similar effort

would have to be made in each state each year by either federal

or state wildlife managers. Since the Scientific Authority has to

date relied heavily on data provided by the states, the burden

most likely will fall on the states. The Court below thus

declares that, if bobcat pelts are to enter into international

trade, a large part of the monies and manpower available for

state wildlife management programs for all of the hundreds of

species present throughout a state must be devoted to one

species—the bobcat. As this Court has recently pointed out, the

courts should be reluctant to impose heavy burdens on the

states without clear congressional direction to do so. Pennhurst

State School v. Halderman, US. , 49 US.L.W. 4363,

4367-4369 (April 20, 1981).

Second, if the decision below were permitted to govern

other species and programs, its requirement of reliable popu-

lation estimates will impede the making of a wide range of

wildlife management decisions. Where those decisions have in

the past been reliably made on the basis of population trend

information, they may now have to be deferred until the

resources needed to establish unnecessary population estimates

are marshalled and such estimates made. Among the first

decisions to be affected may be no-detriment findings for other

species listed in Appendix II of CITES, such as river otter and

lynx. Other programs to which courts may apply the require-

ment that wildlife management decisions be based on estimates

of total population numbers include the Fish and Wildlife

Service’s determination of the proper hunting season under

Section 3 of the Migratory Bird Treaty Act (16 U.S.C. §704);

the decision to add a species to the threatened or endangered

species lists under Section 4 of the Endangered Species Act (16.

U.S.C. $1533); and the requirement of the Endangered Species

Act that all federal agencies “insure that their actions will not

jeopardize the continued existence of any” species (16 U.S.C.

§1536(a)). At atime when the public sector must struggle to

find more efficient ways to carry out its responsibilities with

fewer available tax dollars, the decision below is a serious step

backward.

CONCLUSION

For these reasons, a writ of certiorari should issue to review

the judgment and opinion of the United States Court of

Appeals for the District of Columbia Circuit.

Respectfully submitted,

Pau A. LENZINI

CHAPMAN, Durr & PAUL

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

Of Counsel:

WILLIAM A. HUTCHINS

CHAPMAN, Durr & Pau

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Dated: May 27, 1981

APPENDIX

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made before

the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 79-2512

DEFENDERS OF WILDLIFE, INC., APPELLANT

ENDANGERED SPECIES SCIENTIFIC AUTHORITY, ET AL.

No. 80-1044

DEFENDERS OF WILDLIFE, INC.

Vv.

ENDANGERED SPECIES SCIENTIFIC

AUTHORITY, ET AL.

INTERNATIONAL ASSOCIATION OF FISH AND WILDLIFE

AGENCIES (INTERVENOR-DEFT.), APPELLANT

No. 80-1083

DEFENDERS OF WILDLIFE, INC.

Vv.

ENDANGERED SPECIES SCIENTIFIC

AUTHORITY, ET AL.

RAYMOND J. DRISCOLL, ET AL.

(INTERVENOR-DEFT.), APPELLANT

Bills of costs must be filed within 14 days after entry of judgment. The court

looks with disfavor upon motions to file bills of costs out of time.

No. 80-1084

DEFENDERS OF WILDLIFE, INC.

ENDANGERED SPECIES SCIENTIFIC

AUTHORITY, ET AL.

FUR CONSERVATION INSTITUTE OF AMERICA

(INTERVENOR-DEFT.), APPELLANT

Appeals from the United States District Court

for the District of Columbia

(D.C. Civil Action No. 79-3060)

Argued June 13, 1980

Decided February 3, 1981

Brice M. Clagett with whom Ellen Bass, John B.

Douglas III, Oscar M. Garibaldi, and Lawrence N. Minch

were on the brief, for Defenders of Wildlife, Inc., appel-

lant in No. 79-2512 and cross-appellee in Nos. 80-1044,

80-1083, and 80-1084. Jeffrey H. Howard also entered an

appearance for Defenders of Wildlife, Inc.

William A. Hutchins with whom Paul A. Lenzini was

on the brief for International Association of Fish and

Wildlife Agencies, appellee in Nos. 79-2512, 80-1083, and

80-1084, and cross-appellant in No. 80-1044.

Stephen S. Boynton, for Conservation Institute of

America, et al., appellee in Nos. 79-2512 and 80-1044, and

cross-appellant in Nos. 80-1083 and 80-1084.

Dirk D. Snel, Attorney, Department of Justice, with

whom Angus MacBeth, Deputy Assistant Attorney Gen-

eral, and Edward J. Shawaker, Attorney, Department of

Justice, were on the brief, for the Endangered Species

Scientific Authority, et al., appellee. James W. Moorman,

Assistant Attorney General, Department of Justice, also

entered an appearance for the Endangered Species Scien-

tific Authority, appellee.

Before: MCGOWAN and EDWARDS, Circuit Judges, and

FRIEDMAN,” Chief Judge, United States Court

of Claims.

Opinion for the Court filed by Chief Judge FRIEDMAN,

United States Court of Claims.

FRIEDMAN, Chief Judge: These appeals challenge ac-

tions taken by federal agencies responsible for protecting

bobcats by limiting their export, pursuant to the obliga-

tions of the United States under the Convention on Inter-

national Trade in Endangered Species of Wild Fauna and

Flora, opened for signature March 8, 1973, [1976] 27

U.S.T. 1087, T.I.A.S. No. 8249, __ U.N.T.S. —— (the

Convention). After trial, the district court dismissed the

major portions of the complaint (which sought injunctive

and declaratory relief) but ruled for the plaintiff on some

issues. We hold (1) that parts of the government regula-

tion governing the export of bobcat pelts are invalid, (2)

that the district court’s dismissal of certain portions of the

complaint cannot stand because the court did not make

findings explaining the reasons for its action, (3) that the

court applied the wrong standard of review in its determi-

nations under other portions of the complaint, and (4) that

although the court did not explain or discuss the reasons

for dismissing still other portions of the complaint, that

action was proper since those portions of the complaint do

not state claims upon which relief may be granted. Ac-

cordingly, we affirm in part and reverse in part the judg-

ment of the district court and remand the case to that

court for further proceedings.

“Sitting by designation pursuant to 28 U.S.C. § 293(a).

A. The Convention on International Trade in En-

dangered Species of Wild Fauna and Flora and the Ac-

tions of the United States in Implementing its Obligations

Under the Convention.

1. More than 50 nations (including the United States)

agreed upon a treaty (the Convention) to limit interna-

tional trade in endangered species prior to its becoming

effective on July 1, 1975. The Convention contains three

appendices listing animals and plants to be protected, and

provides for additions and deletions from the appendices.

Appendix I covers “all species threatened with extinc-

tion.” Art. II, para 1. Appendix II, which this case in-

volves, includes “all species which although not necessar-

ily now threatened with extinction may become so unless

trade in specimens of such species is subject to strict reg-

ulation in order to avoid utilization incompatible with their

survival.” Art. II, para. 2. Appendix III covers species

that are subject to regulation by a particular country “for

the purpose of preventing or restricting exploitation.”

Art. II, para. 3. The parties to the treaty agree that they

“shall not allow trade in specimens of species included in

Appendices I, II and III except in accordance with the

provisions of the present Convention.” Art. II, para. 4.

The bobcat was added to appendix II in February 1977.

50 C.F.R. § 23.28 (1979).?

Article IV, para. 1, of the Convention provides that

“(aJll trade in specimens of species included in Appendix II

shall be in accordance with the provisions of this Article.”

Specimens included in appendix II may be exported only

pursuant to an export permit, which may be granted only

if “a Scientific Authority of the State of export has advised

1This was done by listing in appendix II all species of cats

except those in appendix I. One subspecies of bobcat had been

listed in appendix I in July 1975. 50 C.F.R. § 23.23 (1979).

that such export will not be detrimental to the survival of

that species” and a “Management Authority” of the ex-

porting state “is satisfied that the specimen was not ob-

tained in contravention of the laws of that State for the

protection of fauna and flora.” Art. IV, para. 2. The Scien-

tific Authority “shall monitor both the export permits

granted by that State for specimens of species included in

Appendix II and the actual exports of such specimens.”

Art. IV, para. 3. “Whenever a Scientific Authority deter-

mines that the export of specimens of any such species

should be limited in order to maintain that species

throughout its range at a level consistent with its role in

the ecosystems in which it occurs and well above the level

at which that species might become eligible for inclusion in

Appendix I, the Scientific Authority shall advise the ap-

propriate Management Authority of suitable measures to

be taken to limit the grant of export permits for specimens

of that species.” Art. IV, para. 3.

2. In section 8(e) of the Endangered Species Act of

1973, 16 U.S.C. § 1537(e) (1976), Congress directed the

President to designate the Scientific and Management Au-

thorities under the Convention. By Executive Order No.

11,911, dated April 13, 1976, 41 Fed. Reg. 15,683, the

President established the Endangered Species Scientific

Authority (Scientific Authority) as the Scientific Author-

ity under the Convention and designated the Secretary of

the Interior as the Management Authority under the Con-

vention.? The Secretary delegated his authority as Man-

agement Authority to the Fish and Wildlife Service.

In 1977, the Fish and Wildlife Service, as the Manage-

ment Authority, published regulations governing, inter

2In 1979, Congress amended the Endangered Species Act to

designate the Secretary of the Interior as both the Management

and the Scientific Authority under the Convention. It further

provided that the functions of each authority should be carried

out by the United States Fish and Wildlife Service. 16 U.S.C.

§ 1537a (Supp. III 1979). See pp. 11-12 infra.

alia, the issuance of export permits for species listed in

appendix II. These regulations, contained in 50 C.F.R.

parts 13 and 23, describe the agency’s procedures for

dealing with those permits. They state the information re-

quired in applying for permits, the criteria for issuance of

the permits, and the conditions upon which permits will be

issued. 50 C.F.R. subpart 23B.

In 1978. the Scientific Authority published the informa-

tion it would “need in order to support a finding in favor of

export of bobcat ... taken in 1978-1979." 43 Fed. Reg.

15,098, 15,098. It announced “GUIDELINES FOR ESSA

FINDINGS IN FAVOR OF Export.” Jd. The Scientific Au-

thority stated that a Working Group had recommended the

following:

MINIMUM REQUIREMENTS FOR

BIOLOGICAL INFORMATION

1. Population trend information * * * the method of

determination to be a matter of State choice.

2. Information on total harvest® of the species.

3. Information on distribution of harvest.

4. Habitat evaluation.

As an interim alternative to the above, the ESSA

may rely primarily upon past reported harvest. This

approach assures that yield per unit harvest effort

will decrease with population decline. Such an as-

sumption of density dependence is intuitively reason-

able, but has not been proven. Furthermore, this

method by itself does not estimate the level at which

the population is maintained. However, data on total

harvest and yield per unit effort are relevant and can

be very useful in ESSA findings, particularly if har-

vest is reported accurately, and if data indicate har-

3 Although the defendants use the word “harvest” to describe

the taking of bobcat, we use the more candid term “killing.”

vest effort of individual trappers, hunters and collec-

tors, as well as total numbers engaged in harvest.

Id. 15,099. The Authority stated that in other states

where “available population and harvest information is

lacking, is very limited, or indicates that past harvest has

been detrimental . .. management practices must ensure

conservation of these species, consistent with the preced-

ing section.” /d. It noted that the following “management

initiatives” by a state “could weigh heavily in favor of a

finding of no detriment by the ESSA:”

1. There should be a controlled harvest * * *

methods and seasons to be a matter of State choice.

2. All pelts should be registered and marked.

3. Harvest level objectives should be determined

annually.

Id.

From the outset, the Scientific Authority has evaluated

the impact of exports of bobcats (and other species) upon

the survival of the species “on a State-by-State assess-

ment of the status of each species,” because the Scientific

Authority concluded that the “variation among the States

in species status indicated that such an individualized ap-

proach would best give the ESSA the necessary basis for

finding whether export would not be detrimental to the

survival of the species.” 42 Fed. Reg. 43,730, 43,730

(1977).

In a Notice of Preliminary Findings and Request for

Comment, released in 1977, the Scientific Authority stated

that “the development of more adequate management and

regulation of these species in many States would lead the

ESSA to many more findings in favor of international

commercial export than is now possible.” /d. 43,731. The

Authority concluded that it was “unable to find that inter-

national commercial export of bobcat pelts or products of

animals taken from the wild during the 1977-78 season

anywhere in the United States after the date of this notice

will not be detrimental to the survival of the species.” Jd.

43,732. Finally, it set out the information that it had re-

garding the status of the bobcat population (and that of

three other animal species) on a state-by-state basis. /d.

43, 735-64.

Following the publication of the preliminary findings,

the states and various groups submitted data and com-

ments. In its final findings concerning the export of bob-

cats (and other species) for the 1977-78 season, the Scien-

tific Authority indicated that “methods must be estab-

lished to provide the ESSA with sufficient evidence to

make determinations as to whether export of specimens

will be detrimental to the survival of that species.” 43

Fed. Reg. 11,082, 11,085 (1978). It noted that because the

bobcat is elusive, information regarding “population size

and trends[,) habitat quality, quantity, and trends, and

the true extent of hunting and trapping pressure on that

population” “is especially scanty.” Jd. 11,086. The Au-

thority stated that “[bJecause of the variability in the in-

formation available as well as in the management schemes

used by different States, the ESSA, for this year, was un-

able to use a single set of criteria in determining whether a

given harvest level would not be ‘detrimental to the sur-

vival of the species.’ /d. On the basis of the information

the states had submitted, the Scientific Authority set ex-

port quotas for most of the states and the Navajo Nation.

Id. 11,086-90. Initially, it approved the export of up to

76,000 bobcat pelts from 29 states and the Navajo Nation;

subsequently it approved the export of an additional 3,350

pelts from two other states. 43 Fed. Reg. 29,470, 29,471

(1978).

The Scientific Authority has stated that recent informal

estimates are that 80-90 percent of the bobcat pelts taken

in this country are exported. 44 Fed. Reg. 40,842, 40,843

(1979).

For the 1978-79 season, the Scientific Authority, with-

out setting numerical quotas, approved for most states and

the Navajo Nation the export of pelts taken in compliance

with state laws and set quotas of 2,000 and 6,000, respec-

tively, for two states. 43 Fed. Reg. 39,306, 39,306-11,

39,316 (1978).

This case involves the export quotas for the 1979-80

season approved by the Scientific Authority. In its ad-

vance notice of proposed rule-making for that season, the

Scientific Authority said that it would “continue to follow”

the guidelines it had published in 1978 for “findings in

favor of export” (44 Fed. Reg. 25,384, 25,385 (1979)),

which we have set forth at pages 6-7 supra. Applying

those standards, the Scientific Authority in its final find-

ings, issued in September 1979, approved the export from

34 states and the Navajo Nation of bobcats taken in ac-

cordance with state law and set a quota for one state of

8,000. 44 Fed. Reg. 55,540, 55,546-47 (1979) (to be

codified in 50 C.F.R. § 23.52).

B. The Present Case.

Two months after the Scientific Authority took its final

action approving the quotas for the 1979-80 season, the

Defenders of Wildlife, Inc. (Defenders) (a nonprofit or-

ganization engaged in protecting, conserving, and en-

hancing wildlife and wild lands) filed a complaint in the

United States District Court for the District of Columbia

against the Scientific Authority and its members, the De-

partment of the Interior and its Secretary, and the Fish

and Wildlife Service and its Director (the federal defend-

ants). The complaint sought a declaratory judgment that

the Scientific Authority’s guidelines and its findings ap-

proving the export of bobcats for 1979-80 and the Fish and

Wildlife Service’s management regulations implementing

the Convention are invalid. The complaint also sought an

injunction against the federal defendants’ approving the

10a

export of bobcats for 1979-80 and granting any permits

therefor. The complaint contained six separate claims for

relief, discussed below, each of which challenged the gov-

ernment’s regulation of bobcat exports on a different

ground.

The district court granted a temporary restraining order

barring the export of bobcats. It consolidated the eviden-

tiary hearing on the request for a preliminary injunction

with a trial on the merits. At the close of the plaintiffs

case, the district court dismissed the complaint with re-

spect to the export of bobcats from 26 states and the

Navajo Nation. After the defendants introduced evidence,

the court set aside the Scientific Authority’s findings that

no detriment would result from the export of bobcats

taken in five states and in portions of two other states, and

granted injunctive relief with respect to those states. It

dismissed the complaint with respect to the two remaining

states, for which it upheld the no-detriment findings.

II.

There are three threshold questions we must consider

before reaching the merits:

A. Intervenor-defendant International Association of

Fish and Wildlife Agencies contends that article IV of the

Convention did not give the Defenders any judicially en-

forceable rights. It argues that the Convention is not a

self-executing treaty but requires implementation by Con-

gress, and that Congress did not implement it. Although

the federal defendants made a similar argument in their

brief, at oral argument they receded from that position

and conceded that Congress had implemented the Conven-

tion.

We find it unnecessary to determine whether the Con-

vention was self-executing, since we conclude that Con-

gress implemented it.

In section 8(e) of the Endangered Species Act of 1973

(16 U.S.C. § 1537(e) (1976)), Congress provided that the

agencies it directed the President to designate as the Sci-

entific and Management Authorities “pursuant to the Con-

vention,” “shall thereafter be authorized to do all things

assigned to them under the Convention, including the is-

suance of permits and certificates.”

The legislative history of that Act confirms that Con-

gress thereby intended to implement the Convention. The

Senate Committee Report on the bill stated:

[O]ne of the purposes of the bill is to take all appro-

priate steps to implement the Nation’s international

commitments. To further this intent, the bill provides

a means for implementation of the regulations of the

Convention on International Trade in Endangered

Species of Wild Fauna and Flora if and when that

Convention is ratified by the Senate. [The Senate did

so in August 1973.) ... The Committee found that

[the regulatory structure agreed to in the Conven-

tion] would further the purposes of the [Endangered

Species] Act regarding international cooperation.

[The bill], therefore, provides the means to establish

the appropriate management and scientific au-

thorities....

S. REP. No. 93-307, 93d Cong., lst Sess. 5, reprinted in

[1973] U.S. CopE Conc. & AD. NEWS 2989, 2994.

During the debate on the bill, Senator Tunney explained

that it provided “mechanisms for implementation” of the

Convention. 119 CONG. REC. 25,670 (1973). Senator Wil-

liams stated that the bill provided “the means with which

to carry out the provisions of the convention.” 119 CONG.

REC. 25,676 (1973). See also 119 CONG. REC. 30,164 (1973)

(remarks of Rep. Goodling); SEN. EXEC. REP. No. 93-14,

93d Cong., Ist Sess. 3 (1973).

Similarly, when Congress amended the Endangered

Species Act in 1979 to designate the Secretary of the

Interior as both the Scientific Authority and the Manage-

12a

ment Authority “for purposes of the Convention” (see note

2, supra), it provided that “[tJhe Secretary shall do all

things necessary and appropriate to carry out the func-

tions of the Management Authority . . . [and] of the Scien-

tific Authority under the Convention.” 16 U.S.C.

§ 1537a(b)-(c) (Supp. III 1979).

Since in section 8(e) of the Endangered Species Act

Congress implemented the Convention, the Convention

“can be a source of rights enforceable by an individual

litigant in a domestic court of law.” People of Saipan vy.

United States Department of Interior, 502 F.2d 90, 97 (9th

Cir. 1974), cert. denied, 420 U.S. 1008 (1975). See Diggs v.

Richardson, 180 U.S. App. D.C. 376, 379, 555 F.2d 848,

851 (1976).

B. The federal defendants argue that because the Con-

vention provides merely generalized standards for the ex-

port of bobcats and Congress has neither implemented the

substance of nor particularized those standards, there is

no meaningful basis for testing either the Scientific Au-

thority’s guidelines for determining permissible export

levels or the agency’s approval of bobcat exports. For

these reasons the federal defendants apparently conclude

that there cannot be judicial evaluation of either the

guidelines or the findings approving bobcat exports and

that therefore the Defenders have not stated any legally

cognizable, claim.

Section 6 of the Administrative Procedure Act, how-

ever, authorizes a court to “hold unlawful and set aside

agency action, findings, and conclusions found to be (A)

arbitrary, capricious, an abuse of discretion or otherwise

not in accordance with law.” 5 U.S.C. § 706(2)(A) (1976).

If any of the guidelines and actions of the Scientific Au-

thority are arbitrary and capricious and not in accordance

with law because not in conformity with the Convention,

section 6 authorizes us to invalidate them and set them

aside. Camp v. Pitts, 411 U.S. 188, 142 (1973); Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416

13a

(1971). We cannot conclude, as the federal defendants

argue, that in the absence of further congressional im-

plementation, compliance with the Convention is left to

the political branch of the government.

C. Although no party argues that the case is moot, we

must consider this issue since “(mJootness is a judicial

question because the Court ‘is not empowered to decide

moot questions or abstract propositions.’” North Carolina

v. Rice, 404 U.S. 244, 246 (1971).

The complaint sought relief against the export of bob-

cats in 1979-80, the Scientific Authority's guidelines and

the Fish and Wildlife Service's regulations implementing

the Convention. The mootness issue arises because the

export of bobcats for the 1979-80 season is over. We con-

strue the complaint, however, as amplified by the argu-

ments in the Defenders’ brief, as not limited to challenging

the 1979-80 export determinations, but more broadly as

attacking the standards federal agencies apply in approv-

ing bobcat exports. As thus interpreted, the case is not

moot.

Moreover, even if the challenge were only to the exports

for the single season, the case would not be moot. Here

the exception to the doctrine of mootness for short-term

orders that are “capable of repetition yet evading review”

(Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515

(1911)) applies because “(1) the challenged action was in

its duration too short to be fully litigated prior to its cessa-

tion or expiration, and (2) there was a reasonable expecta-

tion that the same complaining party would be subjected

to the same action again.” Weinstein v. Bradford, 423

U.S. 147, 149 (1975). Indeed, in its recently published

notice of preliminary findings for the export of bobcats

(and other animals) for the 1980-81 season, the Fish and

Wildlife Service (which has succeeded the Endangered

Species Scientific Authority as the Scientific Authority

under the Convention, see note 2, supra), stated that it

“is applying the same criteria and is seeking essentially

l4a

the sar types of information as requested by the ESSA

in deveivping advice for the 1980-81 season on whether

export will not be detrimental to the survival of the

species.” 45 Fed. Reg. 64,520 (1980). These are the same

criteria that the Defenders challenge in this case.

ITI.

At the close of the plaintiff's case, the district court, in

response to a motion to dismiss, dismissed the complaint

insofar as it related to the export of bobcats from 26 states

and the Navajo Nation. The court made no findings. The

only explanation the court gave with respect to that dis-

missal was the following two sentences from the court's

memorandum opinion dealing with the remaining states

involved:

Upon conclusion of plaintiff's case, the Court dis-

missed the complaint with regard to the Navajo Na-

tion and all states at issue except Wyoming, Oregon,

New Mexico, Massachusetts, Wisconsin, North

Dakota, South Dakota, Texas and Florida. The Court

concluded that plaintiff had failed to show that de-

fendants had acted improperly with regard to the

Navajo Nation and the other states at issue herein.

Rule 41(b) of the Federal Rules of Civil Procedure pro-

vides that upon the completion of the plaintiff's case in a

nonjury trial, in response to a motion te dismiss, the dis-

trict court may “render judgment against the plaintiff”

and, if it does so, “the court shall make findings as pro-

vided in Rule 52(a).” The latter rule provides that in all

actions tried upon the facts without a jury “the court shall

find the facts specially and state separately its conclusions

of law.” Findings and conclusions may be incorporated in

any opinion or memorandum of decision the court may file.

The single sentence quoted above in which the court

gave its reasons for dismissing the complaint with respect

to the 26 states and the Navajo Nation—that the “plaintiff

15a

had failed to show that defendants had acted improperly

with regard to” those entities—does not satisfy the re-

quirements of Rule 41(b). The district court’s conclusory

statement fails to provide us with an adequate basis upon

which we can review its ruling dismissing the major part

of the complaint. We do not know what standards the

court applied in determining whether the “defendants had

acted improperly,” whether the dismissal rested upon a

failure of factual proof or a lack of any showing that the

federal defendants applied the wrong legal standard, or

what the court believed to be the proper standards for the

Scientific Authority to use in making its determination of

no detriment.

Although the complaint challenged both the guidelines

of the Scientific Authority and the latter’s approval of

bobcat exports for the 1979-80 season, even with respect

to the states for which it held for the plaintiff, the district

court’s memorandum discussed only exports, and its order

similarly covered only that subject.

Accordingly, the portion of the district court’s decision

dismissing the complaint insofar as it related to the 26

states and the Navajo Nation must be reversed, and the

case remanded to that court to enter findings of fact and

conclusions of law that adequately explain the grounds of

its decision. It should make these findings and conclusions

in accordance with the standards we set forth in the next

part of this opinion.

IV.

The Defenders’ principal contention, contained in their

second claim for relief, is that the Scientific Authority’s

1978 guidelines for “Findings in Favor of Export” are ar-

bitrary, capricious, and illegal because “they do not re-

quire adequate scientific data to support such findings.” In

their third claim for relief the Defenders challenge the

Scientific Authority’s findings approving bobcat exports

l6a

for the 1979-80 season as “not supported by adequate sci-

entific data.” A common thread links these two claims: the

Defenders contend that the Scientific Authority uses a

standard for approving bobcat export that is impermissi-

ble under the Convention because it does not permit an

informed judgment about the impact of the killings upon

the species. More specifically, the Defenders claim that

unless the total population of bobcats can be estimated

with reasonable accuracy and the total number of killings

ascertained, it is impossible to determine what effect the

killings will have upon the survival of the species.

A. As stated above (pp. 6-7 supra), the Scientific Au-

thority's 1978 guidelines announced the following

minimum kinds of biological information that permit find-

ings in favor of export: (1) population trend information;

(2) information on total number of killings; (3) information

on the distribution of killings; and (4) evaluation of the

habitat of bobcats. The guidelines further stated that in

states where the available data on population and killings

were very limited or indicated that past killings had been

detrimental to the species, “management practices must

ensure continuation of these species” and that state “man-

agement initiatives” that “could weigh heavily in favor of a

finding of no detriment by the ESSA” were (1) that the

killings should be “controlled,” with the methods and

means therefor to be left to the state to choose, (2) that all

pelts should be registered and marked, and (8) that killing

level objectives should be determined annually.

These are not adequate bases upon which the Scientific

Authority can carry out its obligations to implement the

Convention. Under the Convention, export permits for

animals listed in appendix II, such as the bobcat, may be

granted only if the Scientific Authority advises that the

proposed exports “will not be detrimental to the survival

of that species.” Animals listed in appendix II are those

which, although not now threatened with extinction, “may

become so unless trade in specimens of such species is

17a

subject to strict regulation in order to avoid utilization in-

compatible with their survival.”

We do not see how, without adequate information on

total bobcat population and the number to be killed in a

particular season, the Scientific Authority can make a

valid determination of “no detriment.” For example, the

Scientific Authority set a quota for the 1978-79 season of

2,000 bobcats to be killed in Wyoming. If Wyoming had a

total population of only 2,500 bobcats, the killing of 2,000

would have a devastating impact upon the survival of the

species there. Conversely, if the state had a population of

50,000 animals, the killing of 4 percent of the bobcats

probably would not pose a serious threat to survival. Un-

less the total bobcat population is known, however, it is

impossible to predict the effect upon bobcat survival of the

killing of a specified number.

It is similarly impossible to make an informed and

therefore valid finding of “no detriment” without knowing

the total number of animals to be killed. The impact of

killing upon the survival of the species depends upon both

the population and the extent to which the killing will re-

duce that population. The proposed killing of a substantial

number of bobcats may have only a minimal effect upon

the species if the total bobcat population is large. Con-

versely, the killing of only a small number of animals may

have a sevious impact if the total number of bobcats is

small. The two factors—population and number to be

killed—are so interrelated that a valid finding of “no det-

riment” cannot be made without adequate data about both

of them.

The guidelines, however, contemplate and permit no-

detriment findings without that information. The “[p]opu-

lation trend information,” upon which the Scientific Au-

thority relies, ordinarily is based largely upon the number

of past killings and the inference that the total number of

bobcats has not been thereby significantly reduced be-

cause animals of varying ages and sexes continued to be

killed in similar numbers. These are not sufficient grounds

upon which to base a no-detriment finding. Unless the size

of the population is known, the effect of any trend toward

a change in that population is too conjectural and specula-

tive to permit proper evaluation of its effect upon the

species.

In all but two of the states, the Scientific Authority's

no-detriment findings for the 1979-80 killings did not even

specify the maximum number of bobcats that could be

killed. Instead, the Authority merely authorized “pelts le-

gally taken during 1978-79 season.” 43 Fed. Reg. 39,309.

The fact that the animals were killed in compliance with

state laws does not justify the inference that the killing

will have no detriment upon the survival of the species.

The Convention makes it the obligation of the Scientific

Authority, not the states, to make that determination, and

the Scientific Authority cannot avoid that obligation by

deferring to the limits upon killing the states have im-

posed.

The Scientific Authority relies upon a state’s “manage-

ment initiative” to protect the species as a critical

guideline for finding no detriment in situations where

adequate population and killing information is unavailable

or where information about past killings raises a serious

question about the effect of those killings on the survival

of the species. This is not an adequate substitute for the

actual facts concerning population and number of killings,

which are required before an informed judgment concern-

ing the impact of the killings can be made. If the Scientific

Authority does not have that information, it cannot make a

valid no-detriment finding. The Scientific Authority can-

not substitute for the factual basis necessary to support a

no-detriment finding the belief or hope that a state man-

agement program somehow will insure the survival of the

species.

Any doubt whether the killing of a particular number of

bobcats will adversely affect the survival of the species

19a

must be resolved in favor of protecting the animals and not

in favor of approving the export of their pelts. Article II,

paragraph 2(a), of the Convention recognizes that trade in

animals listed in appendix II is to be “subject to strict

regulation in order to avoid utilization incompatible with

their survival.” The various notices and findings of the

Scientific Authority that we have described in part I.A.2.

of this opinion, however, suggest the opposite attitude.

The approach of the Scientific Authority often seemed

primarily concerned with an acceptable basis for au-

thorizing bobcat exports despite the absence of convincing

factual grounds for making no-detriment findings.

We recognize that, because of the secretive nature of

the bobcat’s life and behavior, it is difficult to obtain accu-

rate information about the size of the bobcat population.

There are indications that techniques for making more ac-

curate population estimates can and may be developed.

We do not suggest that the Scientific Authority may base

a no-detriment finding only upon some kind of head count

of the animals or some other method of measurement that,

as a practical matter, would be virtually impossible to

make. All the Scientific Authority is required to do is to

have a reasonably accurate estimate of the bobcat popula-

tion before it makes a no-detriment finding. The Scientific

Authority has considerable discretion to determine the

method by which that estimate may be made and in

evaluating its reliability.

We hold, however, that the Scientific Authority cannot

make a valid no-detriment finding without (1) a reliable

estimate of the number of bobcats and (2) information con-

cerning the number of animals to be killed in the particular

season. If that material is not presently available, the Sci-

entific Authority must await its development before it au-

thorizes the export of bobcats.

B. To the extent that the Scientific Authority's no-

detriment findings for the 1979-80 season do not reflect

20a

both the bobcat population and the number of animals to

be killed, they cannot stand. There is no indication, how-

ever, that the district court reviewed the Scientific Au-

thority’s findings under that standard.

As we have noted, the court gave no adequate explana-

tion of its reasons for dismissing the complaint at the close

of the plaintiffs case with respect to 27 jurisdictions.

After the defendants introduced their evidence covering

the remaining nine states, the district court set aside the

no-detriment findings for five of them and portions of two

others, and upheld the findings for the remaining two

states. The court made brief findings, each comprising a

short paragraph dealing with each of the nine states. None

of the district court's findings applied the principles we

have set forth in part IV.A. of this opinion, and accord-

ingly they cannot be upheld.

Indeed, some of the findings suggest that instead of

evaluating the administrative record to determine

whether the no-detriment findings were arbitrary and

capricious, the district court made is own findings on the

basis of the evidence presented to it. For example, the

court gave the following explanation of its conclusion that

“defendants have acted within their legitimate authority”

in making the no-detriment finding for Wyoming:

The Court does not reach this conclusion easily in

view of the testimony of Mr. Richard Randall, who

provided a valuable firsthand account of the decline of

bobeats in certain areas of the state. However, the

Court concludes that his testimony is outweighed by

that of Dr. Crowe of the Planning Section of the

Wyoming Game and Fish Department. Dr. Crowe

displayed impressive knowledge of the bobcat and its

habitat in Wyoming. His detailed analysis of harvest

data bespeaks sound management policy and

adequately supports ESSA’s no-detriment finding.

The Court anticipates that Wyoming will continue to

gather data regarding the status of the bobcat popula-

tion within its borders.

2la

This analysis suggests that the court reviewed the no-

detriment findings on the basis of its own evaluation of the

conflicting testimony at the trial rather than on the ad-

ministrative record. The district court thus appears to

have followed the procedure that the Supreme Court con-

demned in Camp v. Pitts, supra, as an inappropriate

standard of review in a case such as this: “to hold a de

novo hearing ... and thereafter determine whether the

agency action was ‘unwarranted by the facts.’ ” 411 U.S.

at 141. Cf. Citizens to Preserve Overton Park, Inc. v.

Volpe, supra, 401 U.S. at 415, 420-21. As Camp v. Pitts

explained, if the court concludes that

there was such failure to explain administrative ac-

tion as to frustrate effective judicial review, the rem-

edy was not to hold a de novo hearing but, as con-

templated by Overton Park, to obtain from the

agency, either through affidavits or testimony, such

additional explanation of the reasons for the agency

decision as may prove necessary.

411 U.S. at 142-43.

The administrative record in this case is substantial.

The parties have stipulated that plaintiff's exhibit 9, which

contains the submissions of all of the jurisdictions in sup-

port of their applications for bobcat export permits, con-

stitutes that record. These submissions contain a great

amount of information about bobcats. On the remand, the

district court should review this material, as explained by

the evidence at trial, to determine whether the no-

detriment findings for each of the 36 jurisdictions were

“arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law,’ as specified in 5 U.S.C.

§ 706(2)(A).” Camp v. Pitts, supra, 411 U.S. at 142.

The Defenders challenge the actions of the federal de-

fendants on several other grounds. Since the district court

22a

did not address these contentions, our normal practice

would be to remand for that court to do so. The conten-

tions raise only questions of law, however, the resolution

of which does not depend upon or require analysis of the

lengthy record. Moreover, the answers to the questions

are not difficult. In the circumstances, and to expedite the

ultimate conclusion of this litigation, we decide the issues

ourselves.

A. In their first claim for relief, the Defenders contend

that the Scientific Authority’s no-detriment findings were

invalid because the Convention required the agency to

evaluate the impact of the proposed killings upon sub-

species of bobcats in addition to the species as a whole.

The Defenders also present the related argument that

rnaking the no-detriment findings on a state-by-state basis

resulted in inadequate protection for the subspecies, also

allegedly in violation of the Convention.

1. For their first argument, the Defenders rely primar-

ily upon article I of the Convention, which defines species

as “any species, subspecies, or geographically separate

population thereof.” The substantive provision of the Con-

vention that governs the making of no-detriment findings

by the Scientific Authority, however, is not article I but

article IV, which applies to trade in “any specimen of a

species i: cluded in Appendix II.” Only the bobcat, and not

any of its subspecies, is listed in appendix II. In contrast,

appendix II to the original Convention did list subspecies

for other animals. For example, three subspecies are

listed for alligators, and three subspecies each for two

different species of the cat family. In addition, one sub-

species of bobcat is listed in appendix I.

We interpret these provisions of the Convention to au-

thorize the listing of separate subspecies in appendix II

but not to require the Scientific Authority to treat sepa-

rately each subspecies where only the species is listed.

The number of subspecies in the animal kingdom is sub-

stantial, and the different varieties often are difficult to

23a

identify.* It is unlikely that the parties to the Convention

intended to require their Scientific Authorities to make

findings with respect to every subspecies of every species

that is included in the three appendices to the Convention.

The more likely explanation of the definition of species is

to make it clear that if the parties to the Convention want

to accord the protection of the Convention to a separate

subspecies by listing it an an appendix, they may do so.

The Scientific Authority has interpreted the Convention

as not requiring it to make findings for unlisted sub-

species. This interpretation, by the agency that imple-

ments and applies the Convention, is entitled to substan-

tial weight. Kolovrat v. Oregon, 366 U.S. 187, 194 (1961);

National Indian Youth Council v. Bruce, 485 F.2d 97, 99

(10th Cir. 1973), cert. denied, 417 U.S. 920 (1974); Shafter

v. United States, 273 F. Supp. 152, 157-58 (S.D.N.Y.

1967), aff'd per curiam, 400 F.2d 584 (2d Cir. 1968), cert.

denied, 393 U.S. 1086 (1969).

2. The Defenders further contend that the Scientific

Authority's state-by-state findings do not adequately pro-

tect the subspecies because bobcats do not limit them-

selves to particular states. As stated earlier, from the be-

ginning, the Scientific Authority has made its no-

detriment finding on a state-by-state basis because it con-

cluded that the “variation among the States in species

status indicated that such an individualized approach

would best give the ESSA the necessary basis for finding

whether export would not be detrimental to the survival of

the species.” 42 Fed. Reg. 43,730, 43,730 (1977).

The Defenders’ argument assumes, contrary to our

holding, that the Scientific Authority is required to

‘The defendants’ expert witness, Dr. Peterson, a zoologist

specializing in the ordering of specimens into taxonomic units,

including subspecies, testified that bobcat subspecies could be

identified only on the basis “of a critical analysis of cranial fea-

tures,” and that it was “impossible” to identify “by sight” a bob-

cat as a member of a particular subspecies.

24a

evaluate the impact of the killings upon subspecies of bob-

cats. Moreover, the Defenders have not demonstrated that

such an analysis would provide greater protection to the

bobcat than the state-by-state basis the Scientific Author-

ity uses if the latter basis reflects the standards we have

announced. The states have comprehensive and extensive

wildlife protection and conservation programs. We cannot

say that the Scientific Authority acted arbitrarily or capri-

ciously, or abused its discretion, in making its detriment

determinations state-by-state.

B. The Defenders’ three other contentions all relate to

the alleged failure of the Management Authority (the Fish

and Wildlife Service) properly to perform its duties under

the Convention. The Convention requires that before ex-

port permits may be granted for species included in ap-

pendix II, the Management Authority must be “satisfied

that the specimen was not obtained in contravention of the

laws of [the exporting) State for the protection of fauna

and flora.” Article IV, para. 2. The Scientific Authority is

required to monitor the “export permits granted” for

species included in appendix II “and the actual exports of

such specimens.” Article IV, para. 38. As noted, the Man-

agement Authority has promulgated detailed regulations

governing its responsibilities under the Convention.

The Defenders contend that the Scientific Authority did

not adequately perform its monitoring duties because it

relied upon information supplied by the Management Au-

thority that was inadequate, that the Scientific Author-

ity’s no-detriment findings are arbitrary because based

upon the false assumption that the Management Authority

prevents the export of bobcats killed in violation of state

or federal law, and that the Management Authority’s reg-

ulations are arbitrary and capricious because they do not

adequately protect the bobcat.

The Defenders support these contentions primarily upon

the basis of the deposition of Richard M. Parsons, the

Chief of the Federal Wildlife Permit Office in the Fish and

25a

Wildlife Service, the Management Authority under the

Convention. The deposition, however, was never admitted

into evidence and therefore is not properly before us.

At the trial the Defenders offered the entire deposition

into evidence as plaintiff's exhibit 1. The federal defend-

ants did not object, but suggested that only designated

portions should be introduced. The district court agreed,

indicating that written “page designations and line desig-

nations” should be filed. This was never done, however,

and the Clerk's list of exhibits in the case does not include

exhibit 1. Some of the exhibits to the deposition were ad-

mitted in evidence.

In their opening brief the Defenders admitted that “the

deposition of Mr. Parsons was never formally received into

evidence,” but attempted to excuse this as “a mere techni-

cal oversight” and urged that the deposition “was effec-

tively received into evidence.” It was incumbent upon

plaintiff, however, to insure that the portions of the de-

position upon which it relied were admitted into evidence.

The plaintiff had ample opportunity to do so, and it cannot

now excuse its failure as a “mere technical oversight.” For

purposes of this appeal the Parsons deposition is not a part

of the record before us, and we decline to consider it. Cf.

Drake v. General Finance Corp., 119 F.2d 588, 589 (5th

Cir. 1941); Steger v. Cameron, 71 U.S. App. D.C. 202,

205, 109 F.2d 347, 350 (1939).

Without the Parsons deposition, there is no basis upon

which the Defenders can argue that the Management Au-

thority failed to perform its duties under the Convention.

In any event, many of the Defenders’ objections to the

Management Authority’s activities lose their significance

as a result of our holding that the Scientific Authority may

make valid no-detriment findings only upon the basis of

reliable estimates of bobcat population and data on the

number of animals to be killed.

26a

Accordingly, we affirm the judgment of the district

court insofar as it dismissed the first, fourth, fifth, and

sixth claims for relief of the complaint.

VI.

The Defenders challenge certain procedural rulings of

the district court as requiring reversal and a new trial.

A. The Defenders contend that the court improperly

curtailed their cross-examination of Dr. Brown, the

Executive Secretary of the Scientific Authority, a gov-

ernment witness. The facts about this ruling are as fol-

lows:

The trial originally had been scheduled to last 3 days.

Because plaintiff took nearly 2% days to present its direct

case, the court extended the time limit to mid-afternoon on

the fourth day. This was further extended to permit

cross-examination of Dr. Brown. Late in the afternoon of

the final day, the following colloquy occurred:

THE COURT: You know, I don’t want to cut your

cross examination short one little bit, but this case is

going to finish today and if you want to make any kind

of summations we are not going to sit beyond 6

o'clock.

I think there comes a time when all things must

come to an end and I want you to get the picture. At 6

o'clock we are stopping.

MR. HOWARD [Attorney for plaintiff]: Very well,

Your Honor. One more question on South Dakota.

Tr. 841. As 6 o'clock neared, the deadline was further dis-

cussed:

MR. HOWARD: Your Honor, I just don’t think it’s

possible to ask even two questions about each of the

remaining four states that Dr. Brown has testified to

on direct.

27a

THE COURT: I think he’s—I am not sure you

need it from what he said on direct.

MR. HOWARD: May I have the Court’s indulgence

just one moment.

THE COURT: Yes.

MR. HOWARD: In view of the Court’s 6 o'clock

time limit, we will close our cross-examination at this

time. Thank you.

MR. BERLIN: I have no redirect, Your Honor.

Tr. 851-82.

The government's direct examination of Dr. Brown

filled 64 pages of the transcript (Tr. 739-803), while plain-

tiffs cross-examination filled 49 pages (Tr. 803-52).

Although Rule 46 of the Federal Rules of Civil Proce-

dure makes “formal exception” unnecessary, it does re-

quire “that a party, at the time the ruling or order of the

court is made or sought, [make] known to the court the

action which he desires the court to take or his objection to

the action of the court and his grounds therefor.” Where,

as here, counsel indicates begrudging acceptance of the

court’s ruling, there has not been a proper objection, and

the ruling cannot be assigned as error on appeal. AKrienke

v. Illinois Central Railroad, 249 F.2d 840, 845 (7th Cir.

1957) (“All right.”); Fort Worth & Denver Railway Co. v.

Roach, 219 F.2d 351, 352 (Sth Cir. 1955) (“Very well, Your

Honor.”).

In any event, we cannot say that in all the circum-

stances of this case the district court abused its discretion

in bringing the trial to a close by 6 p.m. of the fourth day.

B. The Defenders next object to the district court’s re-

fusal to permit them to make an opening argument, and

contend that the court’s imposition of the 6 p.m. deadline

on the last’ day of trial prevented them from making a

closing argument. This was a trial to the court, however,

28a

and the plaintiff had submitted a pretrial brief setting

forth its contentions. The district court did not abuse the

broad discretion it has to determine whether to permit

opening and closing statements. Cf. United States v. De-

Loach, 164 U.S. App. D.C. 116, 120, 504 F.2d 185, 189

(1974), cert. denied, 426 U.S. 909 (1976); Clark Advertis-

ing Agency v. Tice, 490 F.2d 834, 836-37 (Sth Cir. 1974);

United States v. Sawyer, 143 U.S. App. D.C. 297, 298,

443 F.2d 712, 713 (1971).

C. Finally, the Defenders object to the district court’s

alleged striking of part of the testimony of Dr. Grandy,

one of their witnesses. Dr. Grandy testified on direct

examination that no-detriment findings on a state-by-state

basis would be inadequate to protect bobcat subspecies.

The defendants objected to this statement to the extent

that it referred to states for which Dr. Grandy had not

studied the data that the states had submitted to the Sci-

entific Authority. The district court apparently sustained

the objection, and the Defenders contend that the court

subsequently struck those portions of Dr. Grandy’s tes-

timony.

It is unclear from the transcript whether the district

court did so. If the district court struck portions of Dr.

Grandy’s testimony, however, the Defenders were not

prejudiced by that action in view of our conclusion that the

Scientific Authority is not required to make findings with

respect to bobcat subspecies, and that even with respect

to the bobact itself, state-by-state findings are sufficient.

In any event, we cannot say that there was an abuse of the

trial court’s discretion to limit the expert’s testimony to

those states with respect to which the expert was familiar

with the underlying data. See Salem v. United States

Lines Co., 370 U.S. 31, 35 (1962); Perkins v. Volkswagen

of America, Inc., 596 F.2d 681, 682 (5th Cir. 1979); N. V.

Maatschappij Voor Industriele Waarden v. A. O. Smith

Corp., 590 F.2d 415, 418-19 (2nd Cir. 1978).

29a

CONCLUSION

The guidelines of the Endangered Species Scientific Au-

thority are invalid and are set aside to the extent they

authorize findings that the export of bobcats would not be

detrimental to the survival of the species that are not

based upon reliable estimates of the bobcat population and

data showing the total number of bobcats to be killed, in

each of the states involved. The judgment of the district

court is affirmed insofar as it dismissed the first, fourth,

fifth, and sixth claims for relief of the complaint. The

judgment of the district court with respect to the second

and third claims for relief of the complaint is vacated, and

the case is remanded to that court for further proceedings

on those claims in accordance with the principles an-

nounced in this opinion.

So ordered.

30a

APPENDIX A

United States District Court

For THE District OF COLUMBIA

Civil Action No. 79-3060

DEFENDERS OF WILDLIFE, INC.

Plaintiff

Vv.

ENDANGERED SPECIES SCIENTIFIC AUTHORITY, ef a/

Defendants

RAYMOND J. DriSCOLt, et al

Defendant-Intervenors

MEMORANDUM OPINION

Introduction

This matter came before the Court for hearing on plain-

tiffs motion for preliminary injunction on December 3, 4, 5 and

6, 1979. Prior to the hearing, upon due notice to the parties, the

Court consolidated the hearing for trial on the merits. Upon

consideration of the oral presentations of counsel, the testimony

at trial, the evidence submitted and the voluminous record

herein, and after balancing the competing interests of the

parties, the Court concludes that judgment must be entered in

part for plaintiff and in part for defendants.

Plaintiff challenges the action of the Endangered Species

Scientific Authority in finding that the export of ‘he pelts of

bobcats (Lynx Rufus) killed during the 1979-1980 season will

not be detrimental to the survival of that species. Plaintiff also

challenges the action of the U.S. Fish and Wildlife Service in

issuing export permits allegedly in the absence of an adequate

management program ensuring that bobcats would not be

taken in violation of state or federal law.

3la

Plaintiff obtained a temporary restraining order from this

Court on November 9, 1979. That order enjoined defendants

from issuing export permits and from otherwise allowing the

export of bobcat pelts taken during the 1979-1980 season from

the United States. It also directed or requested that notification

of the Court’s order be provided to all interested parties. By

agreement of counsel, the temporary restraining order was to

remain in effect until conclusion of the hearing on the prelimi-

nary injunction.

Findings of Fact and Conclusions of Law

Parties

Plaintiff Defenders of Wildlife, is a non-profit tax-exempt

corporation committed to the goal of preserving and enhancing

the nation’s wildlife and wildlands. It brings this action on

behalf of itself and its members.

Defendant, Endangered Species Scientific Authority

(ESSA), is a federal agency created as the scientific authority of

the United States for the purpose of implementing the Con-

vention on International Trade in Endangered Species of Wild

Fauna and Flora (CITES), a treaty of the United States.

Export licenses for bobcat pelts, the subject of this action, are

issued in accordance with the requirements of CITES.

Defendant, Department of the Interior, is the management

authority for purposes of implementing CITES. This responsi-

bility has been delegated to the defendant, U.S. Fish and

Wildlife Service (FWS). The individual principal defendants

are officers of the above named d*fendant agencies. They have

the authority and responsibility to make certain determinations

under CITES and have promulgated the challenged determina-

tions.

Intervenor defendant, Fur Conservation Institute of Amer-

ica, is a division of Fur Information and Fashion Institute of the

American Fur Industry. Intervenor defendant, International

Association of Fish and Wildlife Agencies, is an unincorporated

32a

association whose members include the fish and wildlife

agencies of the fifty states. Intervenor defendants, Driscoll, et

al, are trappers and purveyors of bobcat pelts which are

exported in large part.

Background

The United States is a signatory nation to CITES 119

Cong. Rec. 28012.

The bobcat is covered by provisions of CITES and is listed

in CITES Appendix II.

The parties to CITES have determined that the bobcat

may become threatened with extinction unless trade in bobcats

is regulated. CITES Article II 2; 44 Fed.Reg. 25385 ( April 30,

1979).

Article [V of CITES provides for the regulation of trade of

bobcat specimens and requires that a permit be issued prior to

any export of bobcat specimens, including pelts.

Article IV 2 provides that export permits for bobcat pelts

may not be issued until ESSA advises FWS that such export

“will not be detrimental to the survival of that species,” and

FWS is satisfied that specimens are lawfully obtained.

CITES defines “species” to mean “any species, subspecies

or geographically separate population thereof.” Article I(a).

Article IV 93 imposes on ESSA an ongoing responsibility

to monitor the export of bobcats for the protection of the

species. 43 Fed.Reg. 15098 (April 10, 1978).

ESSA has construed CITES as creating a presumption

against trade in bobcat pelts. 43 Fed.Reg. 11085 (March 16,

1978).

FWS has promulgated adequate regulations to implement

its responsibilities under CITES as management authority.

These regulations require a permit for the export of bobcat pelts

and place certain conditions on the issuance of permits. 30

CFR Part 23 (Feb. 22, 1977).

ESSA published a final rulemaking approving bobcat pelt

exports from 35 states and the Navajo Nation for the 1979-

1980 season. The minimum biological information necessary

33a

for approval was: (1) population trend information, the meth-

od of determination to be a matter of state choice; (2)

information on total harvest of the species; (3) information on

distribution of harvest; (4) habitat evaluation. The minimum

management requirements for approval were: (1) there should

be a controlled harvest, methods and seasons to be a matter of

state choice; (2) all pelts should be registered and marked; (3)

harvest level objective should be determined annually. ESSA

approved export for some states where not all the guidelines

were met rigorously, if it received other information which it

considered sufficient. ESSA recognized the mandate to protect

subspecies, but determined that its state-by-state approach

provided a more precise and responsive mechanism, in part

because bobcat subspecies are poorly defined. 44 Fed. Reg.

55540 et seq. (Sept. 26, 1979).

The price of bobcat pelts has been rising dramatically in

recent years. Nearly 90% of bobcat pelts are sold for export.

Upon conclusion of plaintiffs case, the Court dismissed the

complaint with regard to the Navajo Nation and all states at

issue except Wyoming, Oregon, New Mexico, Massachusetts,

Wisconsin, North Dakota, South Dakota, Texas and Florida.

The Court concluded that plaintiff had failed to show that

defendants had acted improperly with regard to the Navajo

Nation and the other states at issue herein.

The Court has subject matter jurisdiction over this action.

28 U.S.C. § 1331.

Plaintiff has stated a claim upon which relief can be

granted.

The term “Role in the ecosystems” appearing as it does in

CITES Article IV §3, the provision which directs ESSA to

monitor export permits and actual exports for the protection of

species listed in Appendix II, has been declared to be scien-

tifically undefinable.

Wyoming

The Court is satisfied that defendants have acted within

their legitimate authority. The Court does aot reach this

34a

conclusion easily in view of the testimony of Mr. Richard

Randall, who provided a valuable firsthand account of the

decline of bobcats in certain areas of the state. However, the

Court concludes that his testimony is outweighed by that of Dr.

Crowe of the Planning Section of the Wyoming Game and Fish

Department. Dr. Crowe displayed impressive knowledge of the

bobcat and its habitat in Wyoming. His detailed analysis of

harvest data bespeaks sound management policy and adequate-

ly supports ESSA’s no-detriment finding. The Court anticipates

that Wyoming will continue to gather data regarding the status

of the bobcat population within its borders.

Wisconsin

The Court finds for plaintiff. Trapping pressure is increas-

ing and the harvest is declining throughout much of the state,

particularly the northern regions where the bobcat was formerly

common. Track count surveys verify the decline. Harvest data

indicate that twice as many females as males are being taken.

South Dakota

The Court finds for defendants. Trapping season is

permitted only west of the Missouri River, and the season is

only one month long. Moreover, the jackrabbit, staple of the

bobcat diet, appears to be flourishing. Harvest data indicate

that abundant young are being introduced, and that bobcats of

up to 9.5 years old remain at large, lending assurance that

excessive “pressure” is not present. The Court anticipates that

South Dakota will continue to gather data regarding the status

of the bobcat »>pulation within its borders.

Florida

The Court finds for the plaintiff with regard to Florida.

Although the Court appluads Florida’s initiation of field re-

search regarding bobcat habitat and population trends, the

Court notes that until now very little management attention has

been paid to the bobcat, and that much of what little harvest

data had been collected has been lost or destroyed. The Court

is not satisfied that an appraisal of the bobcats’ status in Florida

35a

is sufficient to support a finding of no-detriment has been

obtained. There are no bag or possession limits.

New Mexico

The Court finds for plaintff. Presently the state of New

Mexico is without authority to manage the bobcat, since it is

classified as a predator. The ESSA imposed quota of 6,000 is

far in excess of past harvest estimates. The trapping pressure

on bobcat populations is not known. There are no bag or

possession limits. What recent harvest data the state had in its

possession had not been analyzed at the time New Mexico

made its submission to ESSA.

North Dakota

The Court finds for plaintiff. Knowledge of the bobcat in

North Dakota is minimal. Population densitites are not

available, and statewide distribution is imprecisely known. Past

harvests are unknown; consequently there are no derivative

harvest data. There are no bag or possession limits.

Massachusetts

The Court concludes that ESSA’s finding of no-detriment is

inadequate notwithstanding the state’s harvest quota. Popu-

lation estimates are tenuous and outdated and based on

troublesome assumptions. The most recent age structure

analysis of that population is unsatisfactory.

Texas

The Court finds for plaintiff with regard to the high plains

ecological area of Texas, and finds for defendant with regard to

the remainder of the state. The Court is mindful that the high

plains area roughly corresponds to the range of the rare lynx

rufus baileyi subspecies in Texas. The baileyi subspecies

produces a very valuable pelt and harvest data indicate that it is

being taken with decreasing frequency despite dramatically

increasing trapping pressure. There are no bag or possession

limits. The situation apears differently throughout the rest of

the state where harvest data indicate that bobcat were present

36a

in sufficient amounts to justify trapping in the 1979-1980

season. The Court anticipates that Texas will continue to

gather data regarding the status of the bobcat population

within its borders.

Oregon

The Court finds for plaintiff with regard to the eastern

region of Oregon and for the defendant with regard to the

western region. The Court notes that the eastern region is

inhabited by subspecies pallescens and the western region by

subspecies fasciatus. The market value of the rarer pallescens is

approximately twice that of the fasciatus, and historically, the

trapping pressure has reflected that price differential. At trial,

Dr. Brown, Executive Secretary of ESSA, testified that Oregon’s

population estimate was extremely subjective, and in this

matter, the Court finds him credible in light of Oregon’s similar

admission. The Court therefore concludes that defendants

acted improperly with regard to the fragile pallescens. The

Court applauds Oregon’s present research efforts and antici-

pates that Oregon will continue to gether data regarding the

status of the bobcat within its borders.

JUNE L. GREEN

US. District Judge

Dated: December 12, 1979

37a

United States District Court

For THE DistricT OF COLUMBIA

Civil Action No, 79-3060

DEFENDERS OF WILDLIFE, INc.

Plaintiff

Vv.

ENDANGERED SPECIES SCIENTIFIC AUTHORITY, ef a/

Defendants

RAYMOND J. DriscoLt, et a/

Defendant-Intervenors

ORDER

This matter came before the Court for hearing on plain-

tiffs motion for preliminary injunction which had been consoli-

dated for trial on the merits on December 3, 4, 5 and 6, 1979.

Upon consideration of the oral arguments of counsel, the

testimony adduced at trial, the evidence submitted and the

entire record herein, for the reasons set forth in the accom-

panying memorandum opinion, it is by the Court this 12th day

of December 1979,

ORDERED that judgment be entered for plaintiff with regard

to Wisconsin, Florida, New Mexico, North Dakota, Massachu-

setts, eastern Oregon and the high plains ecological area of

Texas; it is further

OrbDERED that defendants are enjoined from issuing export

permits and from otherwise allowing the export of bobcat pelts

taken during the 1979-1980 season from the above named

areas; it is further

OrDERED that defendants notify all state Fish and Game

Agencies of the above named states to notify all trappers within

their borders wherever reasonable, of this order; it is further

38a

ORDERED that judgment be entered for defendants with

regard to the Navajo Nation and the balance of the states at

issue herein; and it is further

ORDERED that this action be and hereby is dismissed.

JUNE L. GREEN

U.S. District Judge

39a

United States Court of Appeals

For THE District OF COLUMBIA CIRCUIT

No. 79-2512 September Term, 1980

Civil Action No. 79-3060

DEFENDERS OF WILDLIFE, INC.,

Appellant

Vv.

ENDANGERED SPECIES SCIENTIFIC AUTHORITY, ef ai.

80-1044

DEFENDERS OF WILDLIFE, INC.

Vv.

ENDANGERED SPECIES SCIENTIFIC AUTHORITY, ef ail.

INTERNATIONAL ASSOCIATION OF FISH

AND WILDLIFE AGENCIES ( Intervenor-Deft )

Appellant

80-1083

Civil Action No. 79-3060

DEFENDERS OF WILDLIFE, INC.

Vv.

ENDANGERED SPECIES SCIENTIFIC AUTHORITY, ef al.,

RAYMOND J. DriscoLt, et a/., (Intervenor-Deft. ),

Appellant

80-1084

Civil Action No. 79-3060

DEFENDERS OF WILDLIFE, INC.

Vv.

ENDANGERED SPECIES SCIENTIFIC AUTHORITY, ef ai.,

Fur CONSERVATION INSTITUTE OF AMERICA (Intervenor-Deft. ),

Appellant

APPEALS FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

40a

United States Court of Appeals

For THE District oF COLUMBIA CIRCUIT

No. 79-2512, et al. September Term, 1980

Before: MCGowan and Epwarpbs, Circuit Judges, and Friep-

MAN*, Chief Judge, United States Court of Claims

JUDGMENT

These cases came on to be heard on the records on appeal

from the United States District Court for the District of

Columbia and were argued by counsel. On consideration of the

foregoing, it is

ORDERED AND ADJUDGED by this Court that the judgment

of the District Court appealed from herein is hereby affirmed in

part, vacated in part, and the cases are remanded to the District

Court for further proceedings not inconsistent with the Opinion

for the Court filed herein this date.

Per Curiam

For the Court

George A. Fisher

Clerk

Date: February 3, 1981

Opinion for the Court filed by Chief Judge Friedman

* Sitting by designation pursuant to 28 U.S.C.§ 293(a).

4la

United States Court of Appeals

For THE District OF COLUMBIA CIRCUIT

No. 79-2512 September Term, 1980

Civil Action No. 79-3060

DEFENDERS OF WILDLIFE, INC.,

Appellant

Vv.

ENDANGERED SPECIES SCIENTIFIC AUTHORITY, ef al.

and consolidated cases

Before: McGowan; Chief Judge, Edwards; Circuit Judge,

’ Friedman*; Chief Judge, United States Court of

Claims

ORDER

On consideration of the petition of the International Asso-

ciation of Fish and Wildlife Agencies for rehearing, it is

ORDERED by the Court that the aforesaid petition is denied.

For the Court:

GeorGE A. FisHer, Clerk

By:

RosBert A. BONNER

Chief Deputy Clerk

Filed: February 26, 1981.

* Sitting by designation pursuant to Title 28 U.S.C. § 293(a).

42a

CONVENTION ON INTERNATIONAL TRADE

IN ENDANGERED SPECIES OF

WILD FAUNA AND FLORA

The Contracting States,

RECOGNIZING that wild fauna and flora in their many

beautiful and varied forms are an irreplaceable part of the

natural systems of the earth which must be protected for this

and the generations to come;

Conscious of the ever-growing value of wild fauna and

flora from aesthetic, scientific, cultural, recreational and eco-

nomic points of view;

RECOGNIZING that peoples and States are and should be

the best protectors of their own wild fauna and flora;

RECOGNIZING, in addition, that international cooperation

is essential for the protection of certain species of wild fauna

and flora against over-exploitation through international trade;

CONVINCED of the urgency of taking appropriate measures

to this end;

HAVE AGREED as follows:

ARTICLE I

DEFINITIONS

For the purpose of the present Convention, unless the context

otherwise requires:

(a) “Species” means any species, subspecies, or geogra-

phically separate population thereof;

(b) “Specimen” means:

(i) any animal or plant, whether alive or dead;

(ii) in the case of an animal: for species included in

Appendices I and II, any readily recognizable part or

derivative thereof; and for species included in Appendix

43a

III’ any readily recognizable part or derivative thereof

specified in Appendix III in relation to the species; and

(iii) in the case of a plant: for species included in

Appendix I, any readily recognizable part or derivative

thereof; and for species included in Appendices II and III,

any readily recognizable part or derivative thereof speci-

fied in Appendices II and III in relation to the species;

troduction from the sea;

(d) “Re-export” means export of any specimen that has

previously been imported;

(¢) “Introduction from the sea” means transportation into

a State of specimens of any species which were taken in the

marine environment not under the jurisdiction of any State;

(f) “Scientific Authority” means a national scientific au-

thority designated in accordance with Article IX;

(g) “Management Authority” means a national manage-

ment authority designated in accordance with Article IX;

(h) “Party” means a State for which the present Con-

vention has entered into force.

ARTICLE II

FUNDAMENTAL PRINCIPLES

1. Appendix I shall include all species threatened with

extinction which are or may be affected by trade. Trade in

specimens of these species must be subject to particularly strict

1 See Articles V and XVI. As Appendix III is to be composed of species

identified by any party to the Convention rather than by agreement of the

parties as is the case for the other Appendices, the Conference which

produced the Convention concluded that Appendix III could only be estab-

lished after the Convention had entered into force and the “parties” were

identified and even then it would be subject to nearly continuous revision. As

of this printing the Secretariat has not promulgated an Appendix III.

[Footnote added by the Department of State. ]

44a

regulation in order not to endanger further their survival and

must only be authorized in exceptional circumstances.

2. Appendix II shall include:

(a) all species which although not necessarily now threat-

ened with extinction may become so unless trade in specimens

of ‘ich species is subject to strict regulation in order to avoid

uti.zation imcompatible with their survival; and

(b) other species which must be subject to regulation in

order that trade in specimens of certain species referred to in

sub-paragraph (a) of this paragraph may be brought under

effective control.

3. Appendix III shall include all species which any Party

identifies as being subject to regulation within its jurisdiction for

the purpose of preventing or restricting exploitation, and as

needing the cooperation of other parties in the control of trade.

4. The Parties shall not allow trade in specimens of species

included in Appendices I, II and III except in accordance with

the provisions of the present Convention.

ARTICLE III

REGULATION OF TRADE IN SPECIMENS

OF SPECIES INCLUDED IN APPENDIX I

1, All trade in specimens of species included in Appendix |

shall be in accordance with the provisions of this Article.

2. The export of any specimen of a species included in

Appendix I shall require the prior grant and presentation of an

export permit. An export permit shall only be granted when the

following conditions have been met:

(a) a Scientific Authority of the State of export has advised

that such export will not be detrimental to the survival of that

species;

45a

(b) a Management Authority of the State of export is

satisifed that the specimen was not obtained in contravention of

the laws of that State for the protection of fauna and flora;

satisfied that any living specimen will be so prepared and

shipped as to minimize the risk of injury, damage to health or

cruel treatment; and

(d) a Management Authority of the State of export is

satisfied that an import permit has been granted for the

specimen.

3. The import of any specimen of a species included in

Appendix I shall require the prior grant and presentation of an

import permit and either an export permit or a re-export

certificate. An import permit shall only be granted when the

following conditions have been met:

(a) a Scientific Authority of the State of import has

advised that the import will be for purposes which are not

detrimental to the survival of the species involved;

(b) a Scientific Authority of the State of import is satisfied

that the proposed recipient of a living specimen is suitably

equipped to house and care for it; and

satisfied that the specimen is not to be used for primarily

commercial purposes.

4. The re-export of any specimen of a species included in

Appendix I shall require the prior grant and presentation of a

re-export certificate. A re-export certificate shall only be

granted when the following conditions have been met:

(a) a Management Authority of the State of re-export is

satisfied that the specimen was imported into that State in

accordance with the provisions of the present Convention;

(b) a Management Authority of the State of re-export is

satisfied that any living specimen will be so prepared and

shipped as to minimize the risk of injury, damage to health or

cruel treatment; and

46a

satisfied that an import permit has been granted for any living

specimen.

5. The introduction from the sea of any specimen of a species

included in Appendix I shall require the prior grant of a

certificate from a Management Authority of the State of

introduction. A certificate shall only be granted when the

following conditions have been met:

(a) a Scientific Authority of the State of introduction

advises that the introduction will not be detrimental to the

survival of the species involved;

(b) a Management Authority of the State of introduction

is satisfied that the proposed recipient of a living specimen is

suitably equipped to house and care for it; and

satisfied that the specimen is not to be used for primarily

commercial purposes.

ARTICLE IV

REGULATION OF TRADE IN SPECIMENS

OF SPECIES INCLUDED IN APPENDIX II

1. All trade in specimens of species included in Appendix II

shall be in accordance with the provisions of this Article.

2. The export of any specimen of a species included in

Appendix II shall require the prior grant and presentation of an

export permit. An export permit shall only be granted when the

following conditions have been met:

(a) a Scientific Authority of the State of export has advised

that such export will not be detrimental to the survival of that

species;

(b) a Management Authority of the State of export is

satisfied that the specimen was not obtained in contravention of

the laws of that State for the protection of fauna and flora; and

47a

satisfied that any living specimen will be so prepared and

shipped as to minimize the risk of injury, damage to health or

cruel treatment.

3. A Scientific Authority in each Party shall monitor both the

export permits granted by that State for specimens of species

included in Appendix II and the actual exports of such speci-

mens. Whenever a Scientific Authority determines that the

export of specimens of any such species should be limited in

order to maintain that species throughout its range at a level

consistent with its role in the ecosystems in which it occurs and

well above the level at which that species might become eligible

for inclusion in Appendix I, the Scientific Authority shall advise

the appropriate Management Authority of suitable measures to

be taken to limit the grant of export permits for specimens of

that species.

4. The import of any specimen of a species included in

Appendix II shall require the prior presentation of either an

export permit or a re-export certificate.

5. The re-export of any specimen of a species included in

Appendix II shall require the prior grant and presentation of a

re-export certificate. A re-export certificate shall only be

granted when the following conditions have been met:

(a) a Management Authority of the State of re-export is

satisfied that the specimen was imported into that State in

accordance with the provisions of the present Convention; and

(b) a Management Authority of the State of re-export is

satisfied that any living specimen will be so prepared and

shipped as to minimize the risk of injury, damage to health or

cruel treatment.

6. The introduction from the sea of any specimen of a species

included in Appendix II shall require the prior grant of a

certificate from a Management Authority of the State of

introduction. A certificate shall only be granted when the

following conditions have been met:

48a

fa) a Scientific Authority of the State of introduction

advises that the introduction will not be detrimental to the

survival of the species involved; and

(b) a Management Authority of the State of introduction

is satisfied that any living specimen will be so handled as to

minimize the risk of injury, damage to health or cruel treat-

ment.

7. Certificates referred to in paragraph 6 of this Article may be

granted on the advice of a Scientific Authority, in consultation

with other national scientific authorities or, when appropriate,

international scientific authorities, in respect of periods not

exceeding one year for total numbers of specimens to be

introduced in such periods.

ARTICLE V

REGULATION OF TRADE IN SPECIMENS

OF SPECIES INCLUDED IN APPENDIX III

1. All trade in specimens of species included in Appendix III

shall be in accordance with the provisions of this Article.

2. The export of any specimen of a species included in

Appendix III from any State which has included that species in

Appendix III shall require the prior grant and presentation of

an export permit. An export permit shall only only be granted

when the following conditions have been met:

(a) a Management Authority of the State of export is

satisfied that the specimen was not obtained in contravention of

the laws of that State for the protection of fauna and flora; and

(b) a Management Authority of the State of export is

satisifed that any living specimen will be so prepared and

shipped as to minimize the risk or injury, damage to health or

cruel treatment.

3. The import of any specimen of a species included in

Appendix III shall require, except in circumstances to which

paragraph 4 of this Article applies, the prior presentation of a

49a

certificate of origin and, where the import is from a State which

has included that species in Appendix III, an export permit.

4. In the case of re-export, a certificate granted by the

Management Authority of the State of re-export that the

specimen was processed in that State or is being re-exported

shall be accepted by the State of import as evidence that the

provisions of the present Convention have been complied with

in respect of the specimen concerned.

ARTICLE VI

PERMITS AND CERTIFICATES

1. Permits and certificates granted under the provisions of

Articles III, IV, and V shall be in accordance with the provi-

sions of this Article.

2. An export permit shall contain the information specified in

the model set forth in Appendix IV, and may only be used for

export within a period of six months from the date on which it

was granted.

3. Each permit or certificate shall contain the title of the present

Convention, the name and any identifying stamp of the Man-

agement Authority granting it and a control number assigned

by the Management Authority.

4. Any copies of a permit or certificate issued by a Manage-

ment Authority shall be clearly marked as copies only and no

such copy may be used in place of the original, except to the

extent endorsed thereon.

5. A separate permit or certificate shall be required for each

consignment of specimens.

6. A Management Authority of the State of import of any

specimen shall cancel and retain the export permit or re-export

certificate and any corresponding import permit presented in

respect of the import of that specimen.

50a

7. Where appropriate and feasible a Management Authority

may affix a mark upon any specimen to assist in identifying the

specimen. For these purposes “mark” means any indelible

imprint, lead seal or other suitable means of identifying a

specimen, designed in such a way as to render its imitation by

unauthorized persons as difficult as possible.

ARTICLE VII

EXEMPTIONS AND OTHER SPECIAL PROVISIONS

RELATING TO TRADE

1. The provisions of Articles III, IV and V shall not apply to the

transit or trans-shipment of specimens through or in the

territory of a Party while the specimens remain in Customs

control.

2. Where a Management Authority of the State of export or re-

export is satisfied that a specimen was acquired before the

provisions of the present Convention applied to that specimen,

the provisions of Articles III, IV and V shall not apply to that

specimen where the Management Authority issues a certificate

to that effect.

3. The provisions of Articles III, IV and V shall not apply to

specimens that are personal or household effects. This ex-

emption shall not apply where:

(a) in the case of specimens of a species included in

Appendix I, they were acquired by the owner outside his State

of usual residence, and are being imported into that State; or

(b) in the case of specimens of species included in

Appendix II:

(i) they were acquired by the owner outside his State

of usual residence and in a State where removal from the

wild occurred;

(ii) they are being imported into the owner’s State of

usual residence; and

5la

(iii) the State where removal from the wild occurred

requires the prior grant of export permits before any export

of such specimens;

unless a Management Authority is satisfied that the specimens

were acquired before the provisions of the present Convention

applied to such specimens.

4. Specimens of an animal species included in Appendix I bred

in captivity for commercial purposes, or of a plant species

included in Appendix I artificially propagated for commercial

purposes, shall be deemed to be specimens of species included

in Appendix II.

5. Where a Management Authority of the State of export is

satisfied that any specimen of an animal species was bred in

captivity or any specimen of a plant species was artificially

propagated, or is a part of such an animal or plant or was

derived therefrom a certificate by that Management Authority

to that effect shall be accepted in lieu of any of the permits or

certificates required under the provisions of Articles III, IV or V.

6. The provisions of Articles III, IV and V shall not apply to the

non-commercial loan, donation or exchange between scientists

or scientific institutions registered by a Management Authority

of their State, of herbarium specimens, other preserved, dried

or embedded museum specimens, and live plant material which

carry a label issued or approved by a Management Authority.

7. A Management Authority of any “tate may waive the

requirements of Articles III, IV and V anu allow the movement

without permits or certificates of specimens which form part of

a travelling zoo, circus, menagerie, plant exhibition or other

travelling exhibition provided that:

(a) the exporter or importer registers full details of such

specimens with that Management Authority;

(b) the specimens are in either of the categories specified

in paragraphs 2 or 5 of this Article; and

52a

specimen will be so transported and cared for as to minimize

the risk of injury, damage to health or cruel treatment.

ARTICLE VIII

MEASURES TO BE TAKEN BY THE PARTIES

1. The Parties shall take appropriate measures to enforce the

provisions of the present Convention and to prohibit trade in

specimens in violation thereof. These shall include measures:

(a) to penalize trade in, or possession of, such specimens,

or both; and

(b) to provide for the confiscation or return to the State of

export of such specimens.

2. In addition to the measures taken under paragraph | of this

Article, a Party may, when it deems it necessary, provide for

any method of internal reimbursement for expenses incurred as

a result of the confiscation of a specimen traded in violation of

the measures taken in the application of the provisions of the

present Convention.

3. As far as possible, the Parties shall ensure that specimens

shall pass through any formalities required for trade with a

minimum of delay. To facilitate such passage, a Party may

designate ports of exit and ports of entry at which specimens

must be presented for clearance. The Parties shall ensure

further that all living specimens, during any period of transit,

holding or shipment, are properly cared for so as to minimize

the risk of injury, damage to health or cruel treatment.

4. Where a living specimen is confiscated as a result of

measures referred to in paragraph | of this Article:

(a) the specimen shall be entrusted to a Management

Authority of the State of confiscation;

(b) the Management Authority shall, after consultation

with the State of export, return the specimen to that State at the

53a

expense of that State, or to a rescue centre or such other place

as the Management Authority deems appropriate and con-

sistent with the purposes of the present Convention; and

Scientific Authority, or may, whenever it considers it desirable,

consult the Secretariat in order to facilitate the decision under

subparagraph (b) of this paragraph, including the choice of a

rescue centre or other place.

5. A rescue centre as referred to in paragraph 4 of this Article

means an institution designated by a Management Authority to

look after the welfare of living specimens, particularly those

that have been confiscated.

6. Each Party shall maintain records of trade in specimens of

species included in Appendices I, II and III which shall cover:

(a) the names and addresses of exporters and importers;

and

(b) the number and type of permits and certificates

granted; the States with which such trade occurred; the num-

bers or quantities and types of specimens, names of species as

included in Appendices I, II and III and, where applicable, the

size and sex of the specimens in question.

7. Each Party shall prepare periodic reports on its implementa-

tion of the present convention and shall transmit to the

Secretariat:

(a) an annual report containing a summary of the infor-

mation specified in sub-paragraph (b) of paragraph 6 of this

Article; and

(b) a biannual report on legislative, regulatory and admin-

istrative measures taken to enforce the provisions of the present

Convention.

8. The information referred to in paragraph 7 of this Article

shall be available to the public where this is not inconsistent

with the law of the Party concerned.

54a

ARTICLE IX

MANAGEMENT AND SCIENTIFIC AUTHORITIES

1. Each Party shall designate for the purposes of the present

Convention:

(a) one or more Management Authorities competent to

grant permits or certificates on behalf of that Party; and

(b) one or more Scientific Authorities.

2. A State depositing an instrument of ratification, acceptance,

approval or accession shall at that time inform the Depositary

Government of the name and address of the Management

Authority authorized to communicate with other Parties and

with the Secretariat.

3. Any changes in the designations or authorizations under the

provisions of this Article shall be communicated by the Party

concerned to the Secretariat for transmission to all other

Parties.

4. Any Management Authority referred to in paragraph 2 of

this Article shall if so requested by the Secretariat or the

Management Authority of another Party, communicate to it

impression of stamps, seals or other devices used to authenti-

cate permits or certificates.

ARTICLE X

TRADE WITH STATES NOT PARTY TO THE CONVENTION

Where export or re-export is to, or import is from, a State

not a party to the present Convention, comparable documenta-

tion issued by the competent authorities in that State which

substantially conforms with the requirements of the present

Convention for permits and certificates may be accepted in lieu

thereof by any Party.

55a

ARTICLE XI

CONFERENCE OF THE PARTIES

1. The Secretariat shall call a meeting of the Conference of the

Parties not later than two years after the entry into force of the

present Convention.

2. Thereafter the Secretariat shall convene regular meetings at

least once every two years, unless the Conference decides

otherwise, and extraordinary meetings at any time on the

written request of at least one-third of the Parties.

3. At meetings, whether regular or extraordinary, the Parties

shall review the implementation of the present Convention and

may:

(a) make such provision as may be necessary to enable the

Secretariat to carry out its duties;

(b) consider and adopt amendments to Appendices I and

II in accordance with Article XV;

conservation of the species included in Appendices I, II and III;

(d) receive and consider any reports presented by the

Secretariat or by any Party; and

(e) where appropriate, make recommendations for

improving the effectiveness of the present Convention.

4. At each regular meeting, the Parties may determine the time

and venue of the next regular meeting to be held in accordance

with the provisions of paragraph 2 of this Article.

5. At any meeting, the Parties may determine and adopt rules

of procedure for the meeting.

6. The United Nations, its Specialized Agencies and the

International Atomic Energy Agency, as well as any State not a

Party to the present Convention, may be represented at meet-

ings of the Conference by observers, who shall have the right to

participate but not to vote.

56a

7. Any body or agency technically qualified in protection,

conservation or management of wild fauna and flora, in the

following categories, which has informed the Secretariat of its

desire to be represented at meetings of the Conference by

observers, shall be admitted unless at least one-third of the

Parties present object:

(a) international agencies or bodies, either governmental

or non-governmental, and national governmental agencies and

bodies; and

(b) national non-governmental agencies or bodies which

have been approved for this purpose by the State in which they

are located. Once admitted, these observers shall have the right

to participate but not to vote.

ARTICLE XII

THE SECRETARIAT

1. Upon entry into force of the present Convention, a

Secretariat shall be provided by the Executive Director of the

United Nations Environment Programme. To the extent and in

the manner he considers appropriate, he may be assisted by

suitable inter-governmental or non-governmental international

or national agencies and bodies technically qualified in protec-

tion, conservation and management of wild fauna and flora.

2. The functions of the Secretariat shall be:

(a) to arrange for and service meetings of the Parties;

(b) to perform the functions entrusted to it under the

provisions of Articles XV and XVI of the present Convention;

ance with programmes authorized by the Conference of the

Parties as will contribute to the implementation of the present

Convention, including studies concerning standards for appro-

priate preparation and shipment of living specimens and the

means of identifying specimens;

57a

(d) to study the reports of Parties and to request from

Parties such further information with respect thereto as it deems

necessary to ensure implementation of the present Convention;

(e) to invite the attention of the Parties to any matter

pertaining to the aims of the present Convention;

(f) to publish periodically and distribute to the Parties

current editions of Appendices I, IJ and III together with any

information which will facilitate identification of specimens of

species included in those Appendices.

(g) to prepare annual reports to the Parties on its work

and on the implementation of the present Convention and such

other reports as meetings of the Parties may request;

(h) to make recommendations for the implementation of

the aims and provisions of the present Convention, including

the exchange of information of a scientific or technical nature;

(i) to perform any other function as may be entrusted to it

by the Parties.

ARTICLE XIII

INTERNATIONAL MEASURES

1. When the Secretariat in the light of information received is

satisfied that any species included in Appendices I or II is being

affected adversely by trade in specimens of that species or that

the provisions of the present Convention are not being effec-

tively implemented, it shall communicate such information to

the authorized Management Authority of the Party or Parties

concerned.

2. When any Party receives a communication as indicated in

paragraph | of this Article, it shall, as soon as possible, inform

the Secretariat of any relevant facts insofar as its laws permit

and, where appropriate, propose remedial action. Where the

Party considers that an inquiry is desirable, such inquiry may be

carried out by one or more persons expressly authorized by the

Party.

58a

3. The information provided by the Party or resulting from any

inquiry as specified in paragraph 2 of this Article shall be

reviewed by the next Conference of the Parties which may

make whatever recommendations it deems appropriate.

ARTICLE XIV

Errect ON DomEsTiIC LEGISLATION AND

INTERNATIONAL CONVENTIONS

1. The provisions of the present Convention shall in no way

affect the right of Parties to adopt:

(a) stricter domestic measures regarding the conditions for

trade, taking possession or transport of specimens of species

included in Appendices I, II and III, or the complete prohibi-

tion thereof; or

(b) domestic measures restricting or prohibiting trade,

taking possession, or transport of species not included in

Appendices I, II or IIL.

2. The provisions of the present Convention shall in no way

affect the provisions of any domestic measures or the obliga-

tions of Parties deriving from any treaty, convention, or inter-

national agreement relating to other aspects of trade, taking,

possession, or transport of specimens which is in force or

subsequently may enter into force for any Party including any

measure pertaining to the Customs, public health, veterinary or

plant quarantine fields.

3. The provisions of the present Convention shall in no way

affect the provisions of, or the obligations deriving from, any

treaty, convention or international agreement concluded or

which may be concluded between States creating a union or

regional trade agreement establishing or maintaining a com-

mon external customs control and removing customs control

between the parties thereto insofar as they relate to trade

among the States members of that union or agreement.

59a

4. A State party to the present Convention, which is also a

party to any other treaty, convention or international agreement

which is in force at the time of the coming into force of the

present Convention and under the provisions of which protec-

tion is afforded to marine species included in Appendix II, shall

be relieved of the obligations imposed on it under the provi-

sions of the present Convention with respect to trade in

specimens of species included in Appendix II that are taken by

ships registered in that State and in accordance with the

provisions of such other treaty, convention or international

agreement.

5. Notwithstanding the provisions of Articles III, IV and V, any

export of a specimen taken in accordance with paragraph 4 of

this Article shail only require a certificate from a Management

Authority of the State of introduction to the effect that the

specimen was taken in accordance with the provisions of the

other treaty, convention or international agreement in question.

6. Nothing in the present Convention shall prejudice the

codification and development of the law of the sea by the

United Nations Conference on the Law of the Sea convened

pursuant to Resolution 2750 c (XXV) of the General Assembly

of the United Nations nor the present or future claims and legal

views of any State concerning the law of the sea and the nature

and extent of coastal and flag State jurisdiction.

ARTICLE XV

AMENDMENTS TO APPENDICES I AND II

1. THE FOLLOWING PROVISIONS SHALL APPLY IN RELATION TO

AMENDMENTS TO APPENDICES | AND II AT MEETINGS OF THE

CONFERENCE OF THE PARTIES:

(a) Any Party may propose an amendment to Appendix |

or II for consideration at the next meeting. The text of the

proposed amendment shall be communicated to the Secretariut

at least 150 days before the meeting. The Secretariat shall

60a

consult the other Parties and interested bodies on the amend-

ment in accordance with the provisions of sub-paragraphs (b)

and (c) of paragraph 2 of this Article and shall communicate

the response to all Parties not later than 30 days before the

meeting.

(b) Amendments shall be adopted by a two-thirds major-

ity of Parties present and voting. For these purposes “Parties

present and voting” means Parties present and casting an

affirmative or negative vote. Parties abstaining from voting

shall not be counted among the two-thirds required for adopt-

ing an amendment.

force 90 days after the meeting for all Parties except those

which make a reservation in accordance with paragraph 3 of

this Article.

2. The following provisions shall apply in relation to amend-

ments to Appendices I and II between meetings of the Confer-

ence of the Parties:

(a) Any Party may propose an amendment to Appendix |

or II for consideration between meetings by the postal proce-

dures set forth in this paragraph.

(b) For marine species, the Secretariat shall, upon receiv-

ing the text of the proposed amendment, immediately commu-

nicate it to the Parties. It shall also consult inter-governmental

bodies having a function is relation to those species especially

with a view to obtaining scientific data these bodies may be

able to provide and to ensuring coordination with any con-

servation measures enforced by such bodies. The Secretariat

shall communicate the views expressed and data provided by

these bodies and its own findings and recommendations to the

Parties as soon as possible.

shall, upon receiving the text of the proposed amendment,

immediately communicate it to the Parties, and, as soon as

possible thereafter, its own recommendations.

6la

(d) Any Party may, within 60 days of the date on which

the Secretariat communicated its recommendations to the

Parties under sub-paragraphs (b) or (c) of this paragraph,

transmit to the Secretariat any comments on the proposed

amendment together with any relevant scientific data and

information.

(e) The Secretariat shall communicate the replies received

together with its own recommendations to the Parties as soon as

possible.

(f) If no objection to the proposed amendment is received

by the Secretariat within 30 days of the date the replies and

recommendations were communicated under the provisions of

sub-paragraph (e) of this paragraph, the amendment shall

enter into force 90 days later for all Parties except those which

make a reservation in accordance with paragraph 3 of this

Article.

(g) If an objection by any Party is received by the

Secretariat, the proposed amendment shall be submitted to a

postal vote in accordance with the provisions of sub-paragraphs

(h), (i) and (j) of this paragraph.

(h) The Secretariat shall notify the Parties that notification

of objection has been received.

(i) Unless the Secretariat receives the votes for, against or

in abstention from at least one-half of the Parties within 60

days of the date of notification under sub-paragraph (h) of this

paragraph, the proposed amendment shall be referred to the

next meeting of the Conference for further consideration.

(j) Provided that votes are received from one-half of the

Parties, the amendment shall be adopted by a two-thirds

majority of Parties casting an affirmative or negative vote.

(k) The Secretariat shall notify all Parties of the result of

the vote.

(1) If the proposed amendment is adopted it shall enter

into force 90 days after the date of the notification by the

Secretariat of its acceptance for all Parties except those which

62a

make a reservation in accordance with paragraph 3 of this

Article.

3. During the period of 90 days provided for by sub-paragraph

Article any Party may by notification in writing to the Depos-

itary Government make a reservation with respect to the

amendment. Until such reservation is withdrawn the Party

shall be treated as a State not a party to the present Convention

with respect to trade in the species concerned.

ARTICLE XVI

APPENDIX II] AND AMENDMENTS THERETO

1. Any party may at any time submit to the Secretariat a list of

species which it identifies as being subject to regulation within

its jurisdiction for the purpose mentioned in paragraph 3 of

Article II]. Appendix III shall include the names of the Parties

submitting the species for inclusion therein, the scientific names

of the species so submitted, and any parts or derivatives of the

animals or plants concerned that are specified in relation to the

species for the purposes of sub-paragraph (b) of Article I.

2. Each list submitted under the provisions of paragraph | of

this Article shall be communicated to the Parties by the

Secretariat as soon as possible after receiving it. The list shall

take effect as part of Appendix III 90 days after the date of such

communication. At any time after the communication of such

list, any Party may by notification in writing to the Depositary

Government enter a reservation with respect to any species or

any parts or derivatives, and until such reservation is with-

drawn, the State shall be treated as a State not a Party to the

present Convention with respect to trade in the species or part

or derivative concerned.

3. A Party which has submitted a species for inclusion in

Appendix III may withdraw it at any time by notification to the

Secretariat which shall communicate the withdrawal to all

Parties. The withdrawal shall take effect 30 days after the date

of such communication.

63a

4. Any Party submitting a list under the provisions of para-

graph | of this Article shall submit to the Secretariat a copy of

all domestic laws and regulations applicable to the protection of

such species, together with any interpretations which the Party

may deem appropriate or the Secretariat may request. The

Party shall, for as long as the species in question is included in

Appendix III, submit any amendments of such laws and

regulations or any new interpretations as they are adopted.

ARTICLE XVII

AMENDMENT OF THE CONVENTION

1. An extraordinary meeting of the Conference of the Parties

shall be convened by the Secretariat on the written request of at

least one-third of the Parties to consider and adopt amend-

ments to the present Convention. Such amendments shall be

adopted by a two-thirds majority of Parties present and voting.

For these purposes “Parties present and voting” means Parties

present and casting an affirmative or negative vote. Parties

abstaining from voting shall not be counted among the two-

thirds required for adopting an amendment.

2. The text of any proposed amendment shall be commu-

nicated by the Secretariat to all Parties at least 90 days before

the meeting.

3. An amendment shall enter into force for the Parties which

have accepted it 60 days after two-thirds of the Parties have

deposited an instrument of acceptance of the amendment with

the Depositary Government. Thereafter, the amendment shall

enter into force for any other Party 60 days after that Party

deposits its instrument of acceptance of the amendment.

64a

ARTICLE XVIII

RESOLUTION OF DISPUTES

1. Any dispute which may arise between two or more Parties

with respect to the interpretation or application of the provi-

sions of the present Convention shall be subject to negotiation

between the Parties involved in the dispute.

2. If the dispute cannot be resolved in accordance with

paragraph | of this Article, the Parties may, by mutual consent,

submit the dispute to arbitration, in particular that of the

Permanent Court of Arbitration at The Hague, and the Parties

submitting the dispute shall be bound by the arbitral decision.

ARTICLE XIX

SIGNATURE

The present Convention shall be open for signature at

Washington until 30th April 1973 and thereafter at Berne until

31st December 1974.

ARTICLE XX

RATIFICATION, ACCEPTANCE, APPROVAL

The present Convention shall be subject to ratification,

acceptance or approval. Instruments of ratification, acceptance

or approval shall be deposited with the Government of the

Swiss Confederation which shall be the Depositary Govern-

ment.

ARTICLE XxXI

ACCESSION

The present Convention shall be open indefinitely for

accession. Instruments of accession shall be deposited with the

Depositary Government.

65a

ARTICLE XxIl

ENTRY INTO FORCE

1. The present Convention shall enter into force 90 days after

the date of deposit of the tenth instrument of ratification,

acceptance, approval or accession, with the Depositary Govern-

ment.'

2. For each State which ratifies, accepts or approves the present

Convention or accedes thereto after the deposit of the tenth

instrument of ratification, acceptance, approval or accession,

the present Convention shall enter into force 90 days after the

deposit by such State of its instrument of ratification, accept-

ance, approval or accession.

ARTICLE XXIII

RESERVATIONS

1. The provisions of the present Convention shall not be

subject to general reservations. Specific reservations may be

entered in accordance with the provisions of this Article and

Articles XV and XVI.

2. Any State may, on depositing its instrument of ratification,

acceptance, approval or accession, enter a specific reservation

with regard to:

(a) any species included in Appendix J, II or III; or

(b) any parts or derivatives specified in relation to a

species included in Appendix III.

3. Until a Party withdraws its reservation entered under the

provisions of this Article, it shall be treated as a State not a

party to the present Convention with respect to trade in the

particular species or parts or derivatives specified in such

reservation.

‘July 1, 1975. [Footnote added by the Department of State. }

66a

ARTICLE XXIV

DENUNCIATION

Any Party may denounce the present Convention by

written notification to the Depositary Government at any time.

The denunciation shall take effect twelve months after the

Depositary Government has received the notification.

ARTICLE XXV

DEPOSITARY

1. The original of the present Convention, in the Chinese,

English, French, Russian and Spanish languages, each version

being equally authentic, shall be deposited with the Depositary

Government, which shall transmit certified copies thereof to all

States that have signed it or deposited instruments of accession

to it.

2. The Depositary Government shall inform all signatory and

acceding States and the Secretariat of signatures, deposit of

instruments of ratification, acceptance, approval or accession,

entry into force of the present Convention, amendments there-

to, entry and withdrawal of reservations and notifications of

denunciation.

3. As soon as the present Convention enters into force, a

certified copy thereof shall be transmitted by the Depositary

Government to the Secretariat of the United Nations for

registration and publication in accordance with Article 102 of

the Charter of the United Nations.’

In Witness WHereor the undersigned Plenipotentiaries,

being duly authorized to that effect, have signed the present

Convention.

Done at Washington this third day of March, One Thou-

sand Nine Hundred and Seventy-three.

1 TS 993; 59 Stat. 1052. [Footnote added by the Department of State. ]

67a

SECTION 8(e) OF THE

ENDANGERED SPECIES ACT OF 1973

(e) Convention Implementation.—The President is au-

thorized and directed to designate appropriate agencies to act

as the Management Authority or Authorities and the Scientific

Authority or Authorities pursuant to the Convention. The

agencies so designated shall thereafter be authorized to do all

things assigned to them under the Convention, including the

issuance of permits and certificates. The agency designated by

the President to communicate with other parties to the Con-

vention and with the Secretariat shall also be empowered,

where appropriate, in consultation with the State Department,

to act on behalf of and represent the United States in all

regards as required by the Convention. The President shall also

designate those agencies which shall act on behalf of and

represent the United States in all regards as required by the

Convention on Nature Protection and Wildlife Preservation in

the Western Hemisphere.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.