Trade: Related Cases

Case namesort descending Citation Summary
Australian Wool Innovation Ltd v Newkirk (No 2) [2005] FCA 1307

The respondents, including PETA, engaged in a campaign to boycott the Australian wool industry on the bases of the cruelty incurred by the practice of mulesing and because of its link to the live export industry. The applicants, including Australian Wool Innovation who represented the Australian wool industry, sought to bring an action against the respondents for hindering trade under the Trade Practices Act (Cth) s 45DB and conspiring to injure the applicants by unlawful means. The respondents were successful in having these claims struck out.

Born Free USA v. Norton 278 F. Supp 2d 5 (D.D.C. 2003)

The zoo sought to import wild elephants from a foreign country, but advocates contended that the officials did not follow CITES properly for the import. The court held that the advocates failed to show a likelihood of success to warrant preliminary injunctive relief, since no overall detriment to the species was shown.

Chalmers v. Diwell 74 LGR 173

Defendant was an exporter of pet birds. He kept birds at a premises in the course of his business. Usually the birds remained on the premises for less than 48 hours before continuing their journey to their purchasers but on occasion birds had remained on the premises for up to 12 days. A magistrates' court acquitted him of keeping a pet shop without a licence (contrary to Pet Animals Act 1951, s.1). Prosecutor appealed. Result: appeal allowed. Held: even though the premises was being used as no more than a holding center, the defendant was carrying on from that premises a business of selling pets and the premises therefore required a pet shop license.

Defenders of Wildlife v. Hogarth 177 F. Supp. 2d 1336 (2001)

Environmental groups challenge implementations of the International Dolphin Conservation Program Act ("IDCPA") which amended the MMPA and revised the criteria for banning tuna imports.

Department of Local Government and Regional Development v Emanuel Exports Pty Ltd Western Australia Magistrates Court, 8 February 2008, Magistrate C.P. Crawford

The central allegation was that the defendants transported the sheep in a way likely to cause unnecessary harm. Magistrate Crawford found that the sheep, some of which died from inanition, suffered distress and harm and that this harm was unnecessary. Proof of actual harm, however, was unnecessary as it only had to be shown that it was likely that the sheep would suffer harm. This required evidence pointing only to the conditions onboard the ship, and voyage plan, as at the first day. The defences of necessity and honest and reasonable belief were both dismissed.

Diamond v. Chakrabarty 447 U.S. 303 (1980)

In this case, the Supreme Court of the United States asserts that patent protection may exist for "anything under the sun," so long as it is created by man.  This has permitted genetically engineered animals to be patentable subject matter in the United States.  For more information on patent protection in the United States, see the Patent Act. 

Maine v. Taylor 106 S.Ct. 2440 (1986)

Appellee bait dealer (appellee) arranged to have live baitfish imported into Maine, despite a Maine statute prohibiting such importation. He was indicted under a federal statute making it a federal crime to transport fish in interstate commerce in violation of state law. He moved to dismiss the indictment on the ground that the Maine statute unconstitutionally burdened interstate commerce.  The Court held that the ban did not violate the commerce clause in that it served legitimate local purpose, i.e., protecting native fisheries from parasitic infection and adulteration by non-native species, that could not adequately be served by available nondiscriminatory alternatives.

Newell v. Baldridge 548 F.Supp. 39 (D.C. Wash. 1982)

Newell was a tropical fish importer who became involved in a mislabeling scheme to import endangered sea turtles.  On appeal, Newell claimed he lacked the requisite knowledge or intent because he did not directly handle the imported sea turtles, he could not have known that they were mislabeled.  The court held that substantial evidence in the record supports the findings below that Newell knew or should have known of the mislabeling of the shipments of sea turtles.  Further, the court upheld the imposition of $1,000 penalty for each violation of the Lacey Act because of the mulit-violation, mislabeling scheme and the vital public interest in deterring illegal wildlife trade.

Pedersen v. Benson 255 F.2d 524 (C.A.D.C. 1958)

In the matter of Pedersen v. Benson , an importer had a permit to import five giraffes from Kenya, three of which were sold and released to public zoos after the requisite quarantine period.  The other two were bought by ‘Africa USA,’ but not released.  One of them had a heart attack and died.  Plaintiff’s filed suit to have the other one they purchased released.  The permits, issued by APHIS, were issued under the further understanding that all the giraffes would be consigned to an approved zoological park (Africa USA is a privately-owned zoo).  The Court found no basis to uphold the government’s claim that a government officer may impose an ad hoc system of licensure upon any citizen, or upon any one group, i.e. private zoos, as opposed to another.  Here, the importation was specifically permitted for all five animals, and any one animal was just as much a potential carrier of hoof and mouth disease as this particular giraffe.  Therefore, this matter was dismissed for failure to state a cognizable claim. 

Ranchers Cattleman Action Legal Fund United Stockgrowers of America v. U.S. Dept. of Agriculture 415 F.3d 1078 (9th Cir. 2005)

The court was presented with the question of whether the district court erred in issuing a preliminary injunction prohibiting the implementation of a regulation of the United States Department of Agriculture ("USDA") permitting the resumption of the importation of Canadian cattle into the United States.  The court concluded that it did and therefore reversed the district court. 

Re Nature Conservation Council of NSW Inc and Minister for Environment and Water Resources (2007) 98 ALD 334

The Commonwealth Minister for the Environment and Water Resources declared an Ocean Trap and Line Fishery to be an approved wildlife trade operation. This permitted the export of sea life from the fishery. The Nature Conservation Council claimed that the fishery was detrimental to the survival of east coast grey nurse sharks. The Tribunal found that the operation would not be detrimental to the survival of the east coast grey nurse population.

Re The International Fund for Animal Welfare (Australia) Pty Ltd and Ors and Minister for Environment and Heritage (2006) 42 AAR 262

Zoos in New South Wales and Victoria sought to import five Asian elephants. After an initial hearing, further evidence was sought in relation to the condition and nature of the facilities at the zoos. The Tribunal decided that the importation of the elephants should be in accordance with a permit issued under s 303CG of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

Re Wildlife Protection Association of Australia Inc. and Minister for the Environment, Heritage and the Arts (2008) 106 ALD 123

The Minister for the Environment declared the New South Wales Commercial Kangaroo Harvest Management Plan 2007-2011 to be an approved wildlife trade management plan within the meaning of the Environment Protection and Biodiversity Act 1999 (Cth). The Tribunal considered aspects of the plan including: ecological sustainability; conservation of biodiversity; humane treatment; response to environmental impact; precautionary principles; ethical research; and state legislation. The plan was ultimately approved by the Tribunal with a caveat that it include a trigger to suspend the 'harvest' if population levels dropped by 30% or over.

Rural Export & Trading (WA) Pty Ltd v Hahnheuser (2008) 249 ALR 445

The trial judge held that the respondent's placing of a ham mixture in the feed of sheep prior to live export was covered by the defence of dominant purpose for environmental protection under the Trade Practices Act 1974 (Cth). On appeal, the court held that the respondent's actions were not an attempt at environmental protection but rather sought to prevent what he believed would be cruelty to those animals on board the ship during live export and upon arrival. The case was referred back to the Federal Court for assessment of damages.

Rural Export & Trading (WA) Pty Ltd v Hahnheuser (2009) 177 FCR 398

The respondent placed ham in food to be fed to sheep prior to live export. This action resulted in delay of live export and constituted a breach of the Trade Practices Act 1974 (Cth) without falling under the defence of 'environmental protection'. The second applicant was entitled to damages from the respondent falling under the following heads: purchasing sheep; transport; killing fees; processing fees; freezer storage fees; cost of resale; and travel expenses. The total loss was calculated at $72,873.73.

Rural Export & Trading (WA) Pty Ltd v Hahnheuser (2007) 243 ALR 356

The applicants held sheep in a pen pending live export. The respondent broke into that pen and put pork products in their feed rendering them unfit for export to countries whose markets had religious proscriptions against eating pork products. The court found that the respondent's conduct did not amount to 'hindering' as defined in the Trade Practices Act 1974 (Cth) and that his action was for the dominant purpose of environmental protection, which included protecting sheep from the conditions suffered during the live export trade.

Song v Coddington (2003) 59 NSWLR 180

The appellant was charged and convicted of being a person in charge and authorising the carriage of a number of goats in cages which did not allow those goats to stand upright. The appellant was a veterinary doctor employed by the Australian Quarantine Inspection Service and authorised under the Export Control (Animals) Orders 1987 to certify animals for export. On appeal, it was determined that for the purposes of the Prevention of Cruelty to Animals (General) Regulation 1996, the appellant was not a person in charge of the goats.

Steiner v. U.S. 229 F.2d 745 (9th Cir. 1956)

Defendants were charged with knowingly and willfully, with intent to defraud the United States, smuggling and clandestinely introducing into the United States merchandise, namely, psittacine birds, which should have been invoiced; by fraudulently and knowingly importing merchandise and by knowingly receiving, concealing and facilitating the transportation and concealment of such merchandise after importation, knowing the same to have been imported into the United States contrary to law.  Appellants contend that the birds mentioned in count 1 were not merchandise, within the meaning of 18 U.S.C.A. § 545. The court found there was no merit in this contention.  Further, this importation subjected defendants to the felony provision of the Lacey Act and defendants were properly sentenced under the felony conspiracy portion of the Act.

The International Fund for Animal Welfare (Australia) Pty Ltd and Minister for Environment and Heritage (2005) 93 ALD 594

Zoos in New South Wales and Victoria sought to import asian elephants for conservation and exhibition. The Tribunal considered whether the elephants were being imported "for the purposes of conservation breeding or propagation", the zoos were "suitably equipped to manage, confine and care for the animals, including meeting the behavioural and biological needs of the animals", the importation of the elephants would "be detrimental to, or contribute to trade which is detrimental to ... the survival .... or ... recovery in nature of" Asian elephants and whether the elephants were "obtained in contravention of, [or] their importation would ... involve the contravention of, any law". The importation was allowed.

U.S. v. 2,507 Live Canary Winged Parakeets 689 F.Supp. 1106 (S.D.Fla., 1988)

Plaintiff U.S. sought to forfeit the Defendant parakeets on the ground that they were imported in violation of Peruvian law and consequently, in violation of the Lacey Act.  The court held that, if even the "innocent owner" defense was available under the Lacey Act (which the court held it is not under the forfeiture provision of the statute), the claimant importer never attempted to independently confirm or verify that the parakeet species in question (brotogeris versicolorus) could be lawfully imported from Peru.  Thus, the court held the forfeiture valid where the U.S. established by probable cause to believe the Lacey Act was violated where the testimony at trial established that Peruvian Supreme Decree No. 934-73-AG prohibits from anywhere in the national territory the exportation of wild live animals coming from the forest or jungle region. 

U.S. v. Bengis 631 F.3d 33 (2nd Cir. 2011)

After two applications to seek compensation for South Africa were denied, the United States appealed the two orders and the 2nd Circuit held that South Africa (1) had a property interest in rock lobsters unlawfully harvested from its waters and (2) was a victim under the MVRA and VWPA. The 2nd Circuit therefore held that restitution was owed to South Africa and the case was remanded for the district court to calculate restitution.

U.S. v. Lewis 349 F.3d 1116 (9th Cir. 2003)

Defendant was convicted of a number of offenses related to his role in a wildlife smuggling operation. If trial did not begin within the requisite time period and defendant moved for dismissal prior to trial, the court had to dismiss the indictment, either with or without prejudice. The court held that the circumstances in the case, where it was clear that the delay in the trial caused the delay in the hearing, rather than the other way around, and where defendant repeatedly asked the court to set the case for trial and was otherwise ready to proceed to trial, plaintiff United States' pending pretrial motion could not serve as a basis for exclusion for a 117 day period. Because the delay violated the Speedy Trial Act, defendant's convictions had to be reversed, his sentences vacated, and his indictments dismissed.

U.S. v. Molt 615 F.2d 141 (3rd Cir. 1980) Defendant was convicted in the United States District Court for the Eastern District of Pennsylvania of knowingly importing Fijian reptiles contrary to the Tariff Act and of conspiring to commit such offense. On appeal, the Court of Appeals held that the evidence was sufficient to sustain finding of knowing importation and of receiving and concealing illegally imported reptiles.
U.S. v. Paluch (unpublished) 84 Fed. Appx. 740 (9th Cir. 2003)

The court first concluded that venue was proper for the smuggling charges and the conspiracy charge. Turning to the convictions, the court found that his convictions of felony conspiracy and smuggling were supported by sufficient evidence. The court rejected his argument that the general smuggling law was inapplicable to the acts for which he was convicted because Congress had separately criminalized this conduct as a misdemeanor under the Endangered Species Act.

United States of America v. James and Thomas Allemand 34 F.3d 923 (10th Cir. 1994)

The jury convicted the Allemands of conspiring to export illegally taken wildlife and to file false records concerning wildlife intended for export.  The court held that any error in the trial court's failure to instruct the jury that it could convict for conspriacy to make and submit false records concerning wildlife export only if conspirators intended to violate the law it was amended in 1988 was harmless where almost all the evidence adduced at trial related to acts from a time after the amendment was effective.

United States v. Kum 309 F.Supp.2d 1084 (E.D. Wis. 2004)

Defendant convicted for conspiracy to smuggle endangered wildlife into the United States.  Government moved for upward departure from sentencing range.  Held:  Court would not depart upward to reflect cruel treatment of animals (other holdings generally unrelated).

Vickers v. Egbert 359 F. Supp. 2d 1358 (Fla. 2005)

A commercial fisherman brought a claim against the Florida Fish and Wildlife Conservation Commission alleging substantive due process violations.  The Florida Fish and Wildlife Conservation Commission instituted licensing requirements and restrictions on lobster trapping certificates in order to alleviate an overpopulation of lobster traps.  The court held in favor of the Florida Fish and Wildlife Conservation Commission, reasoning fishing was not a fundamental right.

Wildlife Protection Association of Australia Inc and Minister for Environment and Heritage and Australian Wildlife Protection Council Inc and Animals Australia and Flinders Council [2006] AATA 953

The respondent Minister made declarations under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) that particular plans relating to Bennett's wallabies and Tasmanian pademelons were approved wildlife trade management plans. The applicant questioned whether the plans permitted the inhumane hunting of wallabies and treatment of joeys as well as the basis upon which the quotas were derived. The tribunal found both matters satisfactorily addressed though further monitoring measures were deemed to be prudent.