Avian Advocacy Groups Tell 11th Cir. Birds Species Can Be Imported Based on COO

The Organization of Professional Aviculturists and the Lineolated Parakeet Society told the U.S. Court of Appeals for the 11th Circuit that the Fish and Wildlife Service illegally rejected their petitions to add two avian species to the list of birds that can be imported to the U.S. The avian advocacy groups argued that the U.S. District Court for the Southern District of Florida erroneously dismissed their case by ruling that the plain language of the Wild Exotic Bird Conservation Act does not require species to be listed by the specific countries of origin from which they can be imported (Organization of Professional Aviculturists v. U.S. Fish and Wildlife Service, 11th Cir. # 23-11984).

The advocacy groups filed two petitions with the FWS, asking for Cactus conure and a green form of the Lineolated parakeet to be allowed to be imported if captive-bred in certain European countries. The agency denied the petitions, saying it did not interpret the Wild Exotic Bird Conservation Act (WBCA) as permitting a listing of the birds that could be imported in a country-by-country manner. The FWS noted the petitions could be refiled, requesting that the species be allowed to be imported globally.

The groups sued, claiming that the court should find that the FWS's ruling contrary to the plain language of the statute. The district court dismissed the case, finding the advocacy groups failed to state a claim that the agency acted in an arbitrary or capricious way. The court agreed that the law's plain language does not require a species to be listed as to the countries of origin from which it can be imported.

The "plain, unambiguous language of the statute requires that the FWS accept and adjudicate country-specific petitions," the advocacy groups argued. This position is supported by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) regulatory framework, regulatory definition of country of origin, and canon against surplusages, the brief said. Since the WBCA does not have a definition of "countries of origin," the petitioners said it only seems "natural" to look to the CITES for a definition.

That definition says country of origin means "the country where the wildlife ... was taken from the wild or was born or propagated in a controlled environment." This wording "only further strengthens the OPA's and LPS's position" because it does not mean the place where all specimens of the species originally came from, but the country were they were born in a controlled environment as in the case of captive-bred birds, the brief said.

The advocacy groups also argued that their reading of the law is not "radical" nor "counterintuitive" because the country of origin from which a bird species can be imported is a "key piece of information."