Two problems have now reached crisis levels at US ports of entry. US Fish & Wildlife Service (FWS) inspectors have generally stopped using their discretion when there is any appearance of a paperwork problem with a trophy. More and more frequently, inspectors are seizing shipments for any reason, no matter how minor, and without providing any opportunity to correct the perceived paperwork error. It is motivated by an attitude that trophies are unfavorable and undesirable trade. That incorrect attitude has been reinforced by the new FWS internal CITES regulations under which any and all errors, including innocent typos, invalidate permits. There is seldom any question about the authenticity of the permits or the legal take of the trophy, so the errors are of little or no biological or conservation harm. Enforcement has become stricter and blind.
The second level of the problem makes this far worse. The petition for remission process has evolved into a sham. The petition for remission is the elective step the hunter can take to have the solicitor for the port where his shipment is seized review and mitigate the seizure. The solicitors reviewing the petitions are supposed to exercise discretion and consider the materiality of the error and mitigating circumstances, but instead they are rubber stamping the seizures and inevitably ordering forfeiture. The solicitors are not administrative judges. They are agents of the Director of the FWS that now take the position that any paperwork irregularity renders the trophy “illegal contraband,” making it impossible for them to release it. They are supposed to exercise fair discretion after considering the mitigating circumstances, but they too have adopted an attitude that hunting trophies are unfavored and undesirable trade deserving of zero tolerance.
Congress has provided express protection of property owners. Innocent owners are not supposed to lose their property, and penalties should be less than the total loss when it is disproportionate to the error. But solicitors are disregarding those protections because of their stated belief that the property is contraband and undesirable trade. There is no denying this growing threat to hunting and the conservation programs of foreign nations because it is being repeated across the country in written solicitors’ opinions and subsequent forfeitures of trophies. There is a growing written record of solicitors’ outright refusals to apply the innocent owner defense or to apply the proportionality test and adjustment in lieu of absolute forfeiture.
In the Port of San Francisco, we have four compelling instances where the solicitor in a short span of time ruled that seized trophies can’t be remitted (released to the owner) because, as a matter of law (mistaken), the trophies are “contraband.” In each instance, the solicitor ordered full forfeiture and wrote that “Petitioner’s good faith or innocence is not material to the proposed forfeiture of the wildlife specimen…(because an) ‘innocent owner defense’ may not be asserted in instances where the property …is ‘contraband or other property that is illegal to possess’…. Petitioner may not raise an innocent owner defense… Denial of an innocent owner defense in this matter is further supported by the very nature of the property to be forfeited.”
Those trophy owners had no chance to receive fair consideration of their petitions for remission. Those trophy owners had no chance for return of their trophies from the get-go. Conservation Force sent notice to the Secretary of Interior and Director of USF&WS to no avail. To get meaningful hearings it has become necessary to file a complaint in federal court for declaratory and injunctive relief. In March, we filed the first suit in federal court in San Francisco for judicial relief. It is for two forfeitures that have already been ordered after failed petitions for remission and request for reconsideration. In two other seizures in San Francisco, we converted petitions for remission into claims, the alternative for relief from forfeiture which removes the claim to court and takes it away from the local solicitor. In those two cases the initial petitions for remission were denied, which left no doubt that the remission process was a complete sham. The petition can be viewed on Conservation Force’s web site at www.conservationforce.org under News & Alerts.