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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 963

## Text

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

iv

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,
16
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.

2
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

3

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).

4

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.

5

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.

6

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

7

(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.

8

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).

9

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),

10

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.

12

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.

13

(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),

14

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

15

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.

16

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

17

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-

18

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.

19
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

la
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
Ve
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.

2a
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

3a

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).

4a
I,

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).

Sa

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.

6a

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.”

7a

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).

9a

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.

V.

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;

(c) “Trade” means export, re-export, import and in-
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;

(c) a Management Authority of the State of 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

(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

(c) a Management Authority of the State of import is
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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2176%3A1. Public record. Not legal advice.