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U.S. Fish and Wildlife Service

U.S. Fish and Wildlife Service

Caviar and U.S. Fish and Wildlife Service

posted by Customs & International Trade Law Blog August 27, 2010 0 comments

The U.S. Fish and Wildlife Service is responsible for regulating and managing the export and sale of paddlefish roe (caviar).  To obtain a paddlefish roe export permit, an applicant must establish that it properly harvested the roe, and that its export would not undermine the survival of the species. But what happens when the U.S. Fish and Wildlife Service has had the application for months, and has taken no action on it?

Paddlefish are 1 of 3 types of egg-bearing (roe) species native to the United States that are allowed to be commercially exported for their eggs, which are processed into caviar.  For Leisure Caviar, a wholesale dealer of paddlefish roe, and Bemka Corporation, a buyer of paddlefish roe, they had applied to the Fish and Wildlife Service for export permits for 4,074 pounds of roe worth $500,000.  The Fish and Wildlife Service had taken no action on the applications which had been filed from between 7 to 12 months earlier.  The shelf life of paddlefish roe is only 12 months. 

The applicant companies sued the U.S. Fish and Wildlife Service in Federal Court in Chattanooga, Tennessee, seeking to get the Court to order the U.S. Fish and Wildlife Service to review and grant the applications.  Instead, the Court dismissed the law suit.  The Court’s legal Opinion explained that the companies "had failed exhausted their administrative remedies, a prerequisite for bringing suit against the U.S. Government under the Federal Tort Claims Act…"  Moreover, upon appeal to a higher court, the appellate court stated:

The processing of applications under the Convention in International Trade in Endangered Species of Wild Fauna and Flora (CITES) amounts to a discretionary responsibility, one ineligible for mandamus relief.

In other words, the U.S. Fish and Wildlife Service could take whatever time it wanted in reviewing the export applications of the companies. The appellate court affirmed the lower court’s decision in dismissing the case.

To me, this is another arrogant example of "Government Gone Wild".  Did the U.S. Fish and Wildlife Service forget the meaning of the word "Service"?