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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 2004 Decided April 30, 2004
No. 03-5161
CASTLEWOOD PRODUCTS, L.L.C., ET AL.,
APPELLEES
INTERFOREST CORP., ET AL.,
APPELLANTS
v.
GALE A. NORTON,
IN HER OFFICIAL CAPACITY AS
SECRETARY OF U.S. DEPARTMENT OF INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 02cv01457)
Patrick D. Traylor argued the cause for appellants. With
him on the briefs was James T. Banks.
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.
2
Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the cause for federal appellees. With him on
the brief were Peter D. Keisler, Assistant Attorney General,
Roscoe C. Howard, Jr., U.S. Attorney, and Mark B. Stern,
Attorney.
William J. Snape III and William Carroll Muffett were on
the brief for amici curiae Defenders of Wildlife, et al. in
support of appellees.
Before: EDWARDS and HENDERSON, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: This case concerns the United
States’ detention of several shipments of bigleaf mahogany
from Brazil. The United States and Brazil are both signato-
ries to the Convention on International Trade in Endangered
Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087
(‘‘CITES’’ or ‘‘Convention’’). The Convention governs trade in
endangered species that are listed in its appendices. Article
V provides that an export permit for species included in
Appendix III can be granted by the exporting country only
when, inter alia, the designated Management Authority of
the exporting country is satisfied that the specimen was not
obtained in contravention of its laws. CITES, art. V(2)(a), 27
U.S.T. at 1097. Brazil has included bigleaf mahogany in
Appendix III. In the United States, the Endangered Species
Act, 16 U.S.C. §§ 1531-44 (2000) (‘‘ESA’’), prohibits trade in
violation of the Convention and authorizes the Secretary of
the Interior and the Secretary of Agriculture to enforce the
ESA.
This case arose when the Animal and Plant Health Inspec-
tion Service (‘‘APHIS’’) of the United States Department of
Agriculture (‘‘USDA’’) refused entry at U.S. ports to certain
shipments of bigleaf mahogany after Brazil’s Management
Authority gave information to the United States Department
of the Interior’s Fish and Wildlife Service (‘‘FWS’’) suggest-
ing that the specimens in the shipments were not legally
obtained. On July 23, 2002, Castlewood Products, L.L.C.,
3
Interforest Corp., M. Bohlke Veneer Corp., Marwood, Inc.,
United Veneer, L.L.C., Veneer Technologies, Inc., and Aljo-
ma Lumber, Inc., the U.S. corporate consignees of the disput-
ed shipments, brought this action in the United States Dis-
trict Court for the District of Columbia to compel delivery of
the shipments. The plaintiffs claimed that, because the ex-
port permits accompanying the shipments were signed and
issued by Brazil’s Management Authority, APHIS’s detention
of the shipments was arbitrary and capricious. The District
Court denied the plaintiffs’ motion for summary judgment
and granted summary judgment to the Government, holding
that the decision to detain the shipments was authorized by
treaty, statute, and regulation. Castlewood Prods. v. Norton,
264 F. Supp. 2d 9, 14 (D.D.C. 2003). Interforest, Marwood,
Veneer Technologies, and Aljoma Lumber appealed and we
now affirm the judgment of the District Court.
I. BACKGROUND
A. Regulatory Background
The Convention governs the import and export of certain
species of endangered fauna and flora that are listed in its
appendices. This case concerns bigleaf mahogany, which
Brazil has included in Appendix III. Article V of CITES
provides that the export of any species listed in Appendix III
requires ‘‘the prior grant and presentation of an export
permit.’’ CITES, art. V(2), 27 U.S.T. at 1097. That article
provides:
An export permit shall only be granted when the
following conditions have been met:
(a) a Management Authority of the State of export
is satisfied that the specimen was not obtained in
contravention of the laws of that State for the pro-
tection of fauna and flora;
(b) a Management Authority of the State of export
is satisfied that any living specimen will be so pre-
4
pared and shipped as to minimize the risk of injury,
damage to health or cruel treatment.
Id.
A Management Authority is designated by each state to
‘‘grant permits or certificates on behalf of that Party.’’ Id.,
art. IX(1)(a), 27 U.S.T. at 1103. The United States has
designated the Secretary of the Interior as the CITES Man-
agement Authority, and the Secretary’s functions in this
capacity are carried out through FWS. See 16 U.S.C.
§ 1537a(a). In Brazil, the Instituto Brasileiro do Meio Am-
biente e dos Recursos Naturais Renovaveis or the Brazilian
Institute of the Environment and Renewable Natural Re-
sources (also known as ‘‘IBAMA’’) is the Management Au-
thority under CITES.
Article VIII of the Convention provides:
(1) The Parties shall take appropriate measures to
enforce the provisions of the present Convention and
to prohibit trade in specimens in violation thereof.
These shall include measures:
(a) to penalize trade in, or possession of, such
specimens, or both; and
(b) to provide for the confiscation or return to
the State of export of such specimens.
CITES, art. VIII(1)(a), 27 U.S.T. at 1101. Article XIV makes
it clear that the Convention does not purport to limit the
right of the Parties to adopt ‘‘stricter domestic measures
regarding the conditions for trade, taking possession or trans-
port of specimens of species included in Appendices I, II, and
III, or complete prohibition thereofTTTT’’ Id., art. XIV(1)(a),
27 U.S.T. at 1108.
Article XI provides for regular meetings of the Parties to
the Convention, at which they may, inter alia, ‘‘make recom-
mendations for improving the effectiveness of the present
Convention.’’ Id., art. XI(3)(e), 27 U.S.T. at 1105. These
recommendations, adopted through resolutions, are intended
to give guidance to the Parties in implementing the Conven-
tion. Since ratification, the Parties have adopted two resolu-
5
tions recommending specific measures to strengthen enforce-
ment of the Convention. One, Resolution 11.3, recommends
that,
(c) if an importing country has reason to believe
that an Appendix-II or -III species is traded in
contravention of the laws of any country involved in
the transaction, it:
(i) immediately inform the country whose laws
were thought to have been violated and, to the
extent possible, provide that country with copies
of all documentation relating to the transaction;
and
(ii) where possible, apply stricter domestic mea-
sures to that transaction as provided for in
Article XIV of the Convention.
CITES, Resolution 11.3 (2000). The other, Resolution 12.3,
recommends that ‘‘the Parties refuse to accept any permit or
certificate that is invalid, including authentic documents that
do not contain all the required information TTT or that contain
information that brings into question the validity of the
permit or certificate.’’ CITES Resolution 12.3 § XIV(d)
(2002) (recalling and incorporating CITES Resolution 10.2
§ II(h) (1997)).
Congress implemented the Convention into U.S. law in the
Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat.
884 (codified as amended at 16 U.S.C. §§ 1531-44 (2000)).
The ESA makes it unlawful to ‘‘engage in any trade in any
specimens contrary to the provisions of the Convention.’’ 16
U.S.C. § 1538(c)(1). It provides that any fish, wildlife or
plants possessed or transferred in violation of the ESA or its
regulations ‘‘shall be subject to forfeiture to the United
States.’’ 16 U.S.C. § 1540(e)(4)(A). The Secretary of the
Interior is authorized to promulgate regulations as may be
appropriate to enforce the ESA. 16 U.S.C. § 1540(f). The
statute also provides for the coordination of the administra-
tion of the ESA between the Secretary of Agriculture and the
Secretary of the Interior. 16 U.S.C. § 1540(h). FWS and
APHIS work together to enforce the provisions of CITES.
6
The Department of the Interior has promulgated regula-
tions to implement the ESA. See 50 C.F.R. pt. 23 (2003).
One regulation provides: ‘‘In order to import into the United
States any wildlife or plant listed in appendix III from a
foreign country that has listed such animal or plant in appen-
dix III, a valid foreign export permit or re-export certificate
issued by such country must be obtained prior to such
importation.’’ 50 C.F.R. § 23.12(a)(3)(i). Another regulation
states: ‘‘Only export permits, re-export certificates, certifi-
cates of origin, or other certificates issued and signed by a
management authority will be accepted as a valid foreign
document from a country that is a party to the Convention.’’
50 C.F.R. § 23.14(a).
B. Factual Background
The facts are largely undisputed. In the fall of 2001, FWS
and APHIS learned that the Brazilian government had im-
posed a moratorium on the logging, transport, and export of
bigleaf mahogany timber. In February 2002, APHIS placed
holds on shipments of bigleaf mahogany from Brazil. FWS
sent a letter to IBAMA, noting that ‘‘none of the permits
accompanying the shipments were endorsed TTT by the ex-
port inspection authorities in Brazil,’’ and stating that USDA
was detaining the shipments until officials in the United
States could gain ‘‘verification of the validity of accompanying
CITES permits.’’ See Letter from Mark Albert, Branch of
CITES Operations, FWS, to IBAMA of 2/15/02, Joint Appen-
dix (‘‘J.A.’’) 203-04. IBAMA informed FWS that recent ship-
ments of bigleaf mahogany arriving in the United States from
Brazil were accompanied by export permits that IBAMA had
issued pursuant to preliminary judicial injunctions. IBAMA
stated that its issuance of these permits did not reflect its
independent judgment that the mahogany had been obtained
lawfully. See Letter from Antonio Carlos R. Lins, Head of
International Cooperation, IBAMA, to Dr. Peter O. Thomas,
Chief, Division of Management Authority, FWS of 2/21/02,
Supplemental Appendix 1-2.
IBAMA informed FWS that it had appealed these deci-
sions, the merits of which were pending. IBAMA pointed out
7
that one injunction had been reversed, and that it was confi-
dent that ‘‘in the appeals, the second instance judges will
probably follow the same guide, since the injunctions were
being provided ‘in audita altera parte’ (latin term to express
‘without hearing the other part’)TTTT’’ Id. at 2. The letter
noted that bigleaf mahogany trade had ceased by law in
Brazil, with an exception for certified timber. It also ac-
knowledged that bigleaf mahogany continued to be logged
illegally. See id. FWS and IBAMA had a similar exchange
about two other shipments of mahogany in March 2002. See
Letter from Andrea Gaski, Chief, Branch of CITES Opera-
tions, FWS, to IBAMA of 3/12/02, J.A. 212-13; Letter from
Aleksandro Cavalcanti Sitonio, Attorney General (Substitute),
IBAMA, to Gaski of 3/12/02, J.A. 216-18. FWS then received
letters from Randolf Zachow, an IBAMA official, confirming
the validity of some of the permits in question, and question-
ing the validity of the ban on the harvesting of mahogany.
Letter from Randolf Zachow, IBAMA, to Gaski of 3/26/02,
J.A. 219; Letter from Zachow to Gaski of 4/4/02, J.A. 220;
Letter from Zachow to Thomas of 4/25/02, J.A. 222-25.
On May 2, 2002, the President of IBAMA, Rˆmulo Jos´
o e
Fernandes Barreto Mello, sent a letter to FWS invalidating
Zachow’s statements. Mello informed FWS that Zachow’s
letters did not express the point of view of the Brazilian
government or IBAMA, and that Zachow had since been
dismissed from his post. Letter from Mello to Thomas of
5/2/02, J.A. 227-29. Mello’s letter also stated that IBAMA’s
law enforcement officials and technicians would determine the
entire wood chain of custody for bigleaf mahogany from the
forests and the trading companies in 2000 and 2001. The
study would take into account the diminished volume of
mahogany resulting from exports prior to the October 2001
ban. This was intended to determine the balance of sawn
wood that could have been commercialized after the ban, and
would therefore determine how much bigleaf mahogany came
from a legal and known origin. See id. at 228-29.
In a letter dated May 22, 2002, Mello clarified IBAMA’s
position regarding the permits issued pursuant to judicial
command. He wrote that IBAMA ‘‘must not say that a
8
judicial decision is not legal or not valid.’’ Letter from Mello
to Thomas of 5/22/02, J.A. 234. Mello stated further that ‘‘it
has never been mentioned that CITES permits were not legal
or not valid.’’ Id. However, Mello also noted that ‘‘the
controls available nowadays at IBAMA do not allow us to
state exactly the legality of each particular shipment.’’ Id. at
235. The letter provided survey data indicating that ship-
ments of mahogany up to a certain volume had legal origin,
but that ‘‘the legal origin of such exceeding volume is not
confirmed by IBAMA, as required in Article V, paragraph
2(a) of the Convention.’’ Id., J.A. 236.
Subsequently, IBAMA presented tables to the CITES Sec-
retariat showing the total volume of legally harvested timber
by exporter. See Letter from Mello to John M. Sellar, Senior
Enforcement Officer, CITES Secretariat of 6/3/02, J.A. 238-
42. On June 20, 2002, APHIS released five shipments of
bigleaf mahogany for which IBAMA had identified the origin
and chain of custody. See APHIS News, USDA Releases
Hold on Selected Bigleaf Mahogany From Brazil (June 20,
2002), J.A. 245. However, APHIS continued to detain other
shipments of bigleaf mahogany.
On July 23, 2002, the plaintiffs commenced this action in
the United States District Court for the District of Columbia
to compel the delivery of the mahogany shipments that were
still being detained. They filed a complaint for injunctive and
declaratory relief against APHIS, FWS, Gale A. Norton, in
her official capacity as the Secretary of the Interior, Steven
A. Williams, in his official capacity as the Director of FWS,
Ann M. Veneman, in her official capacity as the Secretary of
Agriculture, and Craig A. Reed, in his official capacity as
Administrator of APHIS. The plaintiffs argued that, pursu-
ant to the ESA and its implementing regulations, APHIS is
required to validate a shipment for import upon presentment
of all documentation required by the implementing regula-
tions, and that a valid foreign export permit is the only
document from the exporting country that is required under
the Convention. See Compl. for Injunctive and Declaratory
Relief ¶ ¶ 41-42, J.A. 23-24.
9
On January 23, 2003, APHIS entered a Memorandum for
the Record ‘‘to document the decision of the U.S. Department
of Agriculture (USDA) to refuse entry into the United States
of certain shipments of bigleaf mahogany lumber and veneers
that the Convention on International Trade in Endangered
Species (CITES) management authority of Brazil (known as
IBAMA) has been unable to confirm originated from legal
sources.’’ USDA, Memorandum for the Record, January 23,
2003, at 1, J.A. 291. The memorandum stated:
IBAMA confirmed that although it had issued the
CITES export permits for the shipments, it had
done so under court injunctions which it was appeal-
ing. IBAMA indicated it had not determined wheth-
er the mahogany had been legally acquired, which is
a prerequisite to the issuance of a CITES export
permit for this species. For that reason, APHIS
has held those and subsequent mahogany shipments
imported into the United States in order to deter-
mine from IBAMA if the mahogany was legally
acquired.
Id. The memorandum explained APHIS’s position that, since
it had the express authority to seize and forfeit articles
traded in violation of the CITES treaty, it also had the
discretion to choose a less drastic action, such as to refuse
entry to a commodity. It pointed out that its action complied
with CITES Resolution 10.2 § II(h), which recommended that
the signatories ‘‘not authorize the import of any specimen if
they have reason to believe that it was not legally acquired in
the country of origin.’’ See USDA, Memorandum for the
Record, January 23, 2003, at 3, J.A. 293 (quoting CITES
Resolution 10.2 § II(h) (1997) (recalled and incorporated into
CITES Resolution 12.3 (2002)).
The parties then filed cross-motions for summary judgment
in the District Court. The District Court determined that the
decision to seize, detain, and confiscate contraband specimens
under the ESA was within the agency’s clear statutory and
regulatory authority. Castlewood Prods., 264 F. Supp. 2d at
12-13. Based on the record before it, the District Court
10
found that APHIS and Brazilian officials had agreed to adopt
a ‘‘chronological approach,’’ under which the United States
would allow the release of shipments in chronological order of
shipping, until the total amount released equaled the amount
calculated by IBAMA to be of legal origin. It noted that, ‘‘in
every instance in which IBAMA has confirmed the legality of
a shipment, APHIS has released that shipment.’’ Id. at 14.
The District Court concluded that ‘‘the defendants’ actions
were in all respects authorized by treaty, statute, and regula-
tion, and that the government did not act arbitrarily, capri-
ciously, nor did it abuse its discretion in the matter.’’ Id. at
14. It therefore granted the Government’s motion for sum-
mary judgment. Id.
Four of the plaintiffs now appeal the District Court’s
judgment denying their motion for summary judgment and
awarding summary judgment to the Government.
II. ANALYSIS
A. Standard of Review
We review de novo the District Court’s grant of summary
judgment, which means that we review the agency’s decision
on our own. See Lozowski v. Mineta, 292 F.3d 840, 845 (D.C.
Cir. 2002) (‘‘Because the district court entered a summary
judgment, we review its decision de novo and therefore, in
effect, review directly the decision of the Secretary.’’) Under
the applicable provisions of the Administrative Procedure Act,
we must determine whether the agency’s decision is ‘‘arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law.’’ 5 U.S.C. § 706(2)(A) (2000). And, in
the course of our review, ‘‘[w]e must give substantial defer-
ence to an agency’s interpretation of its own regulations.
Our task is not to decide which among several competing
interpretations best serves the regulatory purpose. Rather,
the agency’s interpretation must be given controlling weight
unless it is plainly erroneous or inconsistent with the regula-
tion.’’ Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512
(1994) (inner quotations and citations omitted). Thus, ‘‘[w]e
accord an agency’s interpretation of its own regulations a
11
‘high level of deference,’ accepting it ‘unless it is plainly
wrong.’ ’’ Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C.
Cir. 1995) (quoting Gen. Carbon Co. v. OSHRC, 860 F.2d 479,
483 (D.C. Cir. 1988)).
B. The Requirement of a ‘‘Valid Foreign Export Permit’’
Appellants challenge the decision by FWS and APHIS to
detain the mahogany shipments as arbitrary and capricious,
claiming that it rests on impermissible interpretations of 50
C.F.R. §§ 23.12(a) and 23.14(a). We find no merit in this
challenge.
Section 23.12(a)(3)(i) provides:
In order to import into the United States any wild-
life or plant listed in appendix III from a foreign
country that has listed such animal or plan in appen-
dix III, a valid foreign export permit or re-export
certificate issued by such country must be obtained
prior to such importation.
50 C.F.R. § 23.12(a)(3)(i). APHIS detained the mahogany
shipments at issue here, because, in its representations to
FWS, ‘‘IBAMA indicated it had not determined whether the
mahogany had been legally acquired, which is a prerequisite
to the issuance of a CITES export permit for this species.’’
USDA, Memorandum for the Record, January 23, 2003, at 1,
J.A. 291. This application of the regulation reflects the
Government’s position that a foreign export permit cannot be
‘‘valid’’ under CITES absent an assurance from the exporting
country ‘‘that the specimen was not obtained in contravention
of the laws of that State.’’ See CITES, art. V(2)(a), 27 U.S.T.
at 1097.
Appellants argue that the Government’s interpretation of
§ 23.12(a)(3)(i) is at odds with the plain text of § 23.14(a),
which states:
Only export permits, re-export certificates, certifi-
cates of origin, or other certificates issued and
signed by a management authority will be accepted
12
as a valid foreign document from a country that is a
party to the Convention.
50 C.F.R. § 23.14(a). Appellants contend that, under
§ 23.14(a), once the Management Authority of the exporting
state has issued an export permit, the permit must be accept-
ed as ‘‘valid’’ by authorities in the United States. In other
words, according to appellants, the plain language of
§ 23.14(a) precludes United States agencies from imposing
other conditions precedent to the import of Appendix III
species. See Appellants’ Br. at 16. This ‘‘plain language’’
argument is plainly wrong.
Section 23.12(a)(3)(i) merely requires a valid foreign export
permit, but it does not specify the conditions that a foreign
export permit must meet in order for U.S. officials to regard
the permit as valid, i.e., to conclude that the exporting
Management Authority was ‘‘satisfied that the specimen was
not obtained in contravention of the laws of that State.’’
CITES, art. V(2)(a), 27 U.S.T. at 1097. Section 23.14(a)
requires that an export permit be issued and signed by the
foreign Management Authority in order be accepted, but it
does not say that these requirements are the only conditions
that an agency may lawfully require before accepting a
permit. Therefore, the language of the regulations is ambig-
uous as to whether U.S. officials may ‘‘look behind’’ a lawfully
signed and issued export permit to determine whether the
substantive requirements of CITES (i.e., that the Manage-
ment Authority was satisfied that the specimen was not
obtained unlawfully) had actually been met.
The Supreme Court has held that, ‘‘[i]n situations in which
‘the meaning of [regulatory] language is not free from doubt,’
the reviewing court should give effect to the agency’s inter-
pretation so long as it is ‘reasonable.’ ’’ Martin v. OSHRC,
499 U.S. 144, 150-51 (1991) (quoting Ehlert v. United States,
402 U.S. 99, 105 (1971)). Here, FWS and APHIS read
§ 23.12(a)(3)(i) as allowing U.S. officials to require more than
facial satisfaction of § 23.14(a), at least in cases where the
United States has reason to doubt whether the export per-
mits in question were issued in compliance with CITES. The
13
regulations were promulgated pursuant to the Secretary of
the Interior’s clear statutory authority under the ESA to
‘‘promulgate such regulations as may be appropriate to en-
force’’ the ESA. See 16 U.S.C. § 1540(f). The ESA makes it
‘‘unlawful for any person subject to the jurisdiction of the
United States to engage in any trade in any specimens
contrary to the provisions of the Convention, or to possess
any specimens traded contrary to the provisions of the Con-
vention.’’ 16 U.S.C. § 1538(c)(1). And, the stated purpose of
the regulations at 50 C.F.R. pt. 23 is to ‘‘implement the
Convention on International Trade in Endangered Species of
Wild Fauna and Flora.’’ 50 C.F.R. § 23.1(a).
In light of these statutory and regulatory provisions, the
Government acted reasonably in requiring more than facial
satisfaction of § 23.14(a) when determining whether an ex-
port permit is ‘‘valid’’ (i.e., issued in compliance with CITES)
under § 23.12(a)(3)(i). The regulations were promulgated to
implement the ESA, which was itself passed, in part, to
implement the Convention. The ESA specifically prohibits
trade contrary to the provisions of the Convention, 16 U.S.C.
§ 1538(c), and provides that any specimens that are imported
in violation of the ESA are subject to forfeiture to the United
States, 16 U.S.C. § 1540(e)(4)(A). The Convention requires
that an export permit for an Appendix III species shall only
be granted when ‘‘a Management Authority of the State of
export is satisfied that the specimen was not obtained in
contravention of the laws of that State for the protection of
fauna and flora.’’ CITES, art. V(2)(a), 27 U.S.T. at 1097.
Furthermore, Article XI provides for regular meetings of
the Parties to the Convention, at which they may, inter alia,
‘‘make recommendations for improving the effectiveness of
the present Convention.’’ Id., art. XI(3)(e), 27 U.S.T. at 1105.
These recommendations, adopted through resolutions, are
intended to give guidance to the Parties in implementing the
Convention. Resolution 11.3 recommends that, ‘‘if an import-
ing country has reason to believe that an Appendix TTT III
species is traded in contravention of the laws of any country
involved in the transaction, it TTT immediately inform the
country whose laws were thought to have been violated.’’
14
CITES Resolution 11.3 (2000). And Resolution 12.3 recom-
mends that ‘‘the Parties refuse to accept any permit or
certificate that is invalid, including authentic documents that
do not contain all the required information TTT or that contain
information that brings into question the validity of the
permit or certificate.’’ CITES Resolution 12.3 § XIV(d)
(2002) (repealing and incorporating CITES Resolution 10.2
§ II(h) (1997)).
These provisions, taken together, make it clear that the
agencies’ interpretation of the applicable regulations is per-
fectly reasonable. It is also clear here that, to date, there are
no ‘‘valid’’ export permits for the disputed shipments. There
is no dispute that Brazil’s Management Authority questioned
whether the goods in the disputed shipments were obtained
legally. The United States thus had a reasonable basis for
inquiring further and detaining the shipments until a finding
of legal acquisition could be made.
Appellants argue, and the Government does not dispute,
that the CITES resolutions are merely recommendations to
the Parties and, therefore, they are not binding on the United
States. See Appellants’ Br. at 22. This does not render the
resolutions meaningless, however. There would be no point
in the contracting states agreeing on resolutions only to then
completely ignore them. Therefore, while not binding, it was
surely reasonable for FWS and APHIS to look to the CITES
resolutions for guidance in interpreting the regulations imple-
menting CITES.
Furthermore, appellants’ claim that they did not have
notice of the Government’s interpretation is meritless. It is
clear from the text of the Convention that signatories may
only issue export permits for Appendix III goods upon deter-
mining that they were legally obtained, so appellants can
claim no surprise or confusion over this.
We also reject appellants’ argument that the decision by a
Brazilian federal court in Bianchini E Serafim LTDA v.
IBAMA, Writ of Mandamus No. 2002.001437-0 (10th Fed.
Dist. Ct. of Curitiba, June 28, 2002), J.A. 262-65 (trans.
Berlitz GlobalNet, J.A. 253-61), compels reversal in this case.
15
See Appellants’ Reply Br. at 12. The decision in Bianchini
has no bearing on the shipments at issue in this case.
The Government acknowledges that the United States will
release detained shipments when judicial review in a foreign
state concludes that the goods were legally obtained, regard-
less of whether the foreign Management Authority disagrees
with the judicial decision. There is no serious dispute over
this point. Indeed, the Government followed this precept in
this case in response to the Bianchini decision.
The Brazilian federal district court’s decision in Bianchini
upheld a mandatory injunction directing IBAMA to issue an
export permit for one exporter’s shipment of bigleaf mahoga-
ny. The court explained:
It appears that the exploitation of lumber and all
of the subsequent operations were made in a proper
manner and authorized by the autarchy until the
issuance of the challenged [moratorium], which sur-
prised the petitioner who already had the merchan-
dise in its warehouses and had signed contracts for
export. Now, if from the time of the extraction, to
the transport from Par´ to this state, the merchan-
a
dise had been handled properly and with the author-
ization of IBAMA, there could have been no grounds
for suspicion that the lumber might have been ex-
tracted improperly
TTT
The fact that the extraction was done properly
prior to suspension of the authorization for exploita-
tion of the mahogany should not now complicate
deals already signed.
Bianchini (trans. Berlitz GlobalNet) at 5, J.A. 256. Follow-
ing this decision, IBAMA informed FWS that, pursuant to
that final judicial decision, ‘‘such wood was legally acquired
and must be released.’’ Although IBAMA had appealed the
Bianchini decision, IBAMA declared that ‘‘such appeal must
not uphold (impede) its accomplishment.’’ Letter from Mello
to Thomas of 9/26/02, J.A. 281. APHIS then authorized the
release of the shipment at issue in Bianchini. See Letter
from James (Bud) Petit de Mange, CITES and Plant Inspec-
16
tion Station Coordinator, USDA, APHIS, PPQ, to Indira
Singh/Martin Feinstein, PPQ of 10/10/02, J.A. 282.
However, Bianchini does not detract in any way from the
reasonableness of APHIS’s decision to detain other shipments
for which no court or Management Authority has confirmed
legal acquisition. Bianchini held that ‘‘the petitioner pur-
chased, transported, and marketed the lumber before issu-
ance of the restrictive regulation, in other words, with the
permission previously granted by the environmental autarchy
itself.’’ Bianchini (trans. Berlitz GlobalNet) at 6, J.A. 257.
That holding applied only to the wood in the specific ship-
ment at issue in that case. The United States then released
that particular shipment, even though IBAMA appealed the
decision. And, while the appeal was pending, IBAMA ac-
knowledged that the final judicial determination that the
wood was legally acquired meant the wood had to be released.
Therefore, neither the parties nor IBAMA dispute that a final
judicial determination that the goods in a shipment were
legally obtained, upon review of a Management Authority’s
decision to the contrary, amounts to a finding of legal acquisi-
tion as required by CITES.
It is undisputed that Bianchini involved a different ship-
ment than those at issue here. In contrast to Bianchini,
there was no final judicial disposition as to the legal acquisi-
tion of the wood in the shipments at issue in this case. For
the shipments at issue here, the Brazilian court had issued ex
parte orders requiring IBAMA to issue the export permits.
See Castlewood Prods., 264 F. Supp. 2d at 11. These prelimi-
nary injunctions did not purport to find that the mahogany in
the shipments at issue here was legally obtained. Therefore,
APHIS reasonably detained the shipments for want of assur-
ance, either from IBAMA or pursuant to judicial decree, that
the wood in the disputed shipments was legally obtained. In
the absence of a valid export permit for these shipments, the
Government had the authority to detain them.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
District Court.