United States Court of Appeals,

Fifth Circuit.

No. 91–7085

Summary Calendar.

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v.

ONE AFGHAN URIAL OVIS ORIENTALIS BLANFORDI FULLY MOUNTED SHEEP,

Defendant,

Joel Pat Latham, Claimant–Appellant.

June 30, 1992.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, EMILIO M. GARZA, and DEMOSS, Circuit Judges.

PER CURIAM:

Claimant Joel Pat Latham appeals from the district court's order denying his motio n t o

reconsider the grant of summary judgment ordering the respondent sheep f orfeited to the

Government. We affirm.

I. FACTS AND PROCEDURAL HISTORY

The respondent sheep, known as an Afghan Urial ovis orientalis blanfordi, was hunted, killed,

and skinned ("harvested") by Claimant in the province of Baluchistan, Pakistan, in November of 1987.

Claimant removed the respondent sheep's horns and hide from Pakistan to Frankfurt, Germany, with

an export permit issued by the province of Baluchistan. Claimant then took the horns and hide from

Germany to Spain. At Claimant's direction the horns and hide were then shipped to the United States

and delivered to his residence in Arlington, Texas.

Believing that the respondent sheep had been imported illegally into the United States, agents

of the United States Fish and Wildlife Service ("USFWS") seized the respondent sheep from a cabinet

shop in Arlington pursuant to the Lacey Act, 16 U.S.C. § 3374(a)(1). Claimant was notified of the1 Section 3374(a)(1) provides, in relevant part, as follows:

(1) All fish or wildlife or plants imported, exported, transported, sold, received, seizure, and the USFWS initiated administrative forfeiture proceedings against the respondent sheep.

The USFWS and United States Attorney's Office began an investigation into the possibility of

bringing charges against Claimant in connection with the importation of the respondent sheep into

the United States, but ultimately declined to bring any criminal action. The district court then ordered

the respondent sheep arrested, and notice given of the forfeiture proceedings.

Claimant was the only person to file a claim to the respondent sheep. Both Claimant and the

Government filed mot io ns fo r summary judgment, after which the district court entered judgment

granting the Government's motion and orderin g forfeiture of the respondent sheep to the

Government.

Claimant t imely served a motion to reconsider the judgment pursuant to Federal Rule of Civil

Procedure 59(e), which the district court denied. Claimant filed a timely notice of appeal.

II. DISCUSSION

This court reviews the grant of summary judgment de novo, using the same criteria used by

the district court in the first inst ance. Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th

Cir.1991); Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988). The pleadings,

depositions, answers to interrogatories, and admissions on f ile, t ogether with any affidavits, must

demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S.

317, 322–24, 106 S.Ct. 2548, 2552–53, 91 L.Ed.2d 265 (1986).

This court has not yet had o ccasion to interpret or apply the forfeiture provisions of the

Lacey Act, 16 U.S.C. § 3374(a)(1), 1 which provide for the fo rfeit ure of all wildlife imported oracquired, or purchased contrary to the provisions of section 3372 of this title ...

shall be subject to forfeiture to the United States notwithstanding any culpability

requirements for civil penalty assessment or criminal prosecution included in

section 3373 of this title.

2 Section 3372(a) provides as follows:

It is unlawful for any person

(2) to import, export, transport, sell, receive, acquire, or purchase in interstate or

foreign commerce—

(A) any fish or wildlife taken, possessed, transported, or sold in violation of

any law or regulation of any State or in violation of any foreign law[.] acquired contrary to 16 U.S.C. § 3372(a)(2)(A). Section 3372(a)(2)(A) makes it unlawful for any

person to import or acquire any wildlife tr anspo rt ed or sold in violation of any foreign law. 2 S ee

United States v. Lee, 937 F.2d 1388, 1391 (9th Cir.1991) ("foreign law," for purposes of Lacey Act,

includes Taiwanese fishing regulations), cert. denied,

––– U.S.

––––, 112 S.Ct. 977, 117 L.Ed.2d 141

(1992); U

nited States v . 594.464 Pounds of Salmon, 871 F.2d 824, 826 (9th Cir.1989) (same);

United States v. 2,507 Live Canary Winged Parakeets, 689 F.Supp. 1106, 1113 (S.D.Fla.1988)

(violation of Lacey Act whe re birds exported in violation of Peruvian "Supreme Decree"). The

legislative history establishes that the forfeiture statute provides for strict liabilit y, thereby eliminat ing

any "innocent owner" defense to forfeiture of wildlife imported or acquired in violation of any foreign

law. 2 ,507 Live Canary Winged Parakeets, 689 F.Supp. at 1117 (quoting Senate Rep. No. 123, 97th

Cong., 1st Sess. 13 (1981), reprinted in 1981 U.S.C.C.A.N. 1748, 1760).

The Government bears t he initial burden of establishing probable cause for the forfeiture.

16 U.S.C. § 3374(b) (incorporating forfeiture provisions of customs laws into 16 U.S.C. §§

3371–78); 2 ,507 Live Canary Winged Parakeets, 689 F.Supp. at 1113; s ee also 19 U.S.C. § 1615.

Probable cause is defined as a "reasonable ground for bel i ef

... supported by less than prima facie

proof but more than mere suspicion." United States v. One 1978 Chevrolet Impala, 614 F.2d 983,

984 (5th Cir.1980).Once the Government establishes probable cause, the burden of proof shifts, and any claimant

to the property must establish either that a defense to the forfeiture applies or that the property is not

subject to forfeiture. United States v. Little Al, 712 F.2d 133, 136 (5th Cir.1983). If unrebutted, a

showing of such probable cause alone is sufficient to support a forfeiture of the respondent sheep.

Id. at 136.

Claimant concedes that he took the respondent sheep out of Pakistan, and that he then

import ed it into the United States. To establish probable cause and therefore be entitled to a

judgment as a matter of law under 16 U.S.C. § 3374(a)(1), the Government need only establish that

importation of the respondent sheep into the United States violated the laws of Pakistan. 16 U.S.C.

§ 3374(a)(1); s ee United States v. 3,210 Crusted Sides of Caiman Crocodilus Yacare, 636 F.Supp.

1281, 1285–86 (S.D.Fla.1986) (violation of Bolivian law prohibiting hunting of caimans below a

specific size).

Federal cou rt s are competent to make determinations of foreign law. Fed.R.Civ.P. 44.1.

Such determinations are considered questions of law on appeal and are subject to de novo review.

Id.; Perez &

Compania (Cataluna), S.A. v. M/V Mexico I, 826 F.2d 1449, 1450 (5th Cir.1987).

Claimant contends that he was entitled to bring the respondent sheep into the United States

because he possessed an export permit issued by the province of Baluchistan. On its face, the export

permit authorized Claimant to take the respondent sheep out of the province of Baluchistan.

Claimant argues that because there is no national Pakistani law enacted for the protecti on of wildlife,

no Pakistani law interferes with his right to remove the respondent sheep from Pakistan based upon

the provincial permit.

We disagree. According to the Pakistan Constitution, the National Parliament may make laws

for the whole country and a province may make laws for the province. Pakistan Const., part V, ch.3 Pakistan has also acceded to the Convention of International Trade in Endangered Species of

Wild Fauna and Flora ("CITES") in 1976 which, in accordance with other Pakistani national laws,

prohibits the hunting, trapping, and export of all wild mammals except for those accompanied by

authentic CITES permits. Claimant did not possess a CITES permit for the respondent sheep. 1, § 141. The National Parliament has the exclusive authority to legislate in certain fields, including

carriage of passengers and goods by sea or by air, and import and export across customs frontiers.

Id. at § 142(a), referencing Fourth Schedule part I, §§ 24, 27, and 43. The Constitution specifically

states that if any provision of any law enacted by a provincial assembly is repugnant to any provision

of an act of the National Parliament, then the provincial law shall be void to the extent of the conflict

with the national law. Id. at § 143.

Pursuant to its powers to regulate imports and exports, the National Assembly of Pakistan

promulgated the Im

ports and Exports Control Act of 1950 (the "Imports and Exports Act"). The

Im ports and Exports Act establishes the authority for the Ministry of Commerce to issue orders

detailing particular goods that may not be exported fro m Pakistan. Accordi ng to Export Trade

Order, 1987, the export of any goods specified in Schedule I (Essential Commodities) is prohibited.

Schedule I specifically prohibits the export of "wild animal skins and garments made from such skins,

products or derivatives of such skins." This prohibition leaves little room for doubt that the national

government of Pakistan did not intend to allow the export of the remains of the respondent sheep. 3

As to Claimant's provincial permit, the Baluchistan export permit authorizes removal of the

respondent sheep from the province; it does not authorize export from the country. Indeed, even

if the Baluchistan export permit authorized removal of the respondent sheep from Pakistan, it would

be void as repugnant to the Imports and Exports Act. See Pakistan Const. part V, ch. 1, § 143.

Moreover, the fact that the Im ports and Exports Act was enacted to regulate trade, and not

specifically to protect wildlife, is of no moment. The legislative history of the Lacey Act reveals that

the foreign law need only "relat[e] or refer[ ] to" wildlife and need not have been enacted for its

protecti on. Senate Rep. No. 123, 97th Cong., 1st Sess. 6 (1981), r eprinted in 1981 U.S.C.C.A.N.4 Claimant also argues that there is a personal baggage exemption from Export Trade Order,

1987. That order provides, however, that the exemption applies only to goods listed in Schedules

II–VI, not goods, such as the respondent sheep, listed in Schedule I. 1748, 1752. Claimant cites us no requirement that the law violated must have been enacted

exclusively for the protection of wildlife.

Next, Claimant argues that despite his lack of a federally issued permit to export the

respondent sheep, Pakistan's national government "ratified" his provincial hunting and export permit

when its customs o fficials allowed him to leave the country with the respondent sheep in his personal

baggage. There is, however, no provision in the Im ports and Exports Act for the "ratification" by

customs agents of an otherwise illegal export, and Claimant has pointed to no authority for such

ratification. 4

Th e Government has established probable cause for the forfeiture, and Claimant has not

demonstrated that any genuine issue of material fact exists wh ich would precl ude the award of

summary judgment and order of forfeiture in the Government's favor.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is, in all respects, AFFIRMED.

. . . . .