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<br />Forfeiture acti07lS
<br />play an extremely
<br />important role of
<br />depriving a violator
<br />of the monetary
<br />awards of the illegal
<br />enterprise.
<br />
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<br />
<br />002H5
<br />
<br />criminal case, which requires that the govern-
<br />ment prove its case beyond a reasonable doubt,
<br />a civil penalty imposed by the agency will be
<br />upheld by the court if it is supponed by sub.
<br />stantial evidence in the record as a whole.
<br />Two-tier enforcement campaigns are not
<br />uncommon. An example is the coordinated use
<br />of civil and ctiminal penalties in tunle excluder
<br />devices (TEDs) cases by NMFS. In most times
<br />and areas, U.S. shrimp fishermen in the Gulf of
<br />Mexico and off the south Atlantic coast are re-
<br />quired to install and use TEDs in their nets. A
<br />TED is designed to diven sea tunles out of
<br />shrimp nets so that they do not drown during
<br />the long periods that the submetged nets are
<br />towed through the water. All five species of sea
<br />tunles that occur in U.S. waters are listed as
<br />threatened or endangered, and significant sea
<br />turtle monality is attributed to interaction with
<br />shrimp fishermen. As an example of the extent
<br />of coordinated civil and criminal enforcement
<br />effons and the importance of consideting civil
<br />options, in fiscal year 1991, ninety cases in.
<br />volving TED violations were referred for crim-
<br />inal action. In addition, NOAA documented
<br />eighty-nine cases for administrative civil action.
<br />Only a handful of TED cases resulted in a sen-
<br />tence of jail time (incarceration was part of the
<br />sentences in only six TED cases from 1990 to
<br />1992), and criminal fines ranged from $25 to
<br />$5,000. In administrative civil penalty cases,
<br />however, fines assessed for serious violations
<br />were in the range of S8,OOO to Sl2,000. Sec-
<br />tion I I (e) (4)(A) of the ESA provides that all
<br />fish, wildlife, or plants taken, possessed, sold,
<br />purchased, offered for sale or purchase, trans-
<br />poned, delivered, received, catried, shipped,
<br />expo ned, or imponed contrary to the ESA
<br />shall be subject to forfeiture. 16 U.S.c.
<br />S; 1540(e)(4)(A). This provision applies, and
<br />an in rem action for forfeiture may be brought
<br />by the government, regardless of whether a
<br />criminal conviction or civil penalty has been
<br />obtained. In cases involving significant com-
<br />mercial transactions, forfeiture actions play an
<br />extremely imponant role of depriving a violator
<br />of the monetary rewards of the illegal enter-
<br />prise.
<br />In some cases forfeiture may be the only
<br />remedy available. For instance, an imponer may
<br />arrange for an illegal shipment of hides of en-
<br />dangered reptiles from South America, but may
<br />fail to claim the shipment if he becomes aware
<br />that the carrier or law enforcement agents have
<br />discovered the illegal goods. While prosecutors
<br />may be unable to trace the shipment to either
<br />the shipper or the intended recipient, obtain
<br />jurisdiction to bring a case, or obtain sufficient
<br />evidence of a violation in such cases, they can
<br />still seek forfeiture of the wildlife products in-
<br />
<br />NRlkE/SUMMER 1993
<br />
<br />volved. Furthermore, the government's stan-
<br />dard of proof in forfeiture cases is extremely
<br />favorable: It need only make a prima facie
<br />showing that a violation has occurred, at which
<br />pOint the burden shifts to the claimant to rebut
<br />the government's case. See, e.g., United States
<br />v. 2.507 Live Canary Winged Parakeets, 689
<br />F. Supp. 1107 (S.D. Fla. 1988).
<br />In addition, guns, nets, traps, equipment,
<br />vessels, vehicles, or aircraft used in violating
<br />the ESA are subject to forfeiture to the United
<br />States upon conviction of a criminal violation
<br />of the Act. 16 U.S.c. S; 1540(e)(4)(B). Use of
<br />this provision can substantially increase the sting
<br />of a criminal conviction, especially if the fine
<br />or sentence is not great in and of itself.
<br />
<br />Injunctive Relief Obtained by
<br />the Government
<br />
<br />In 1982, section II ofthe ESA was amended
<br />to include a provision authorizing the Attorney
<br />General to enjoin any "person" who is alleged
<br />to be in violation of the Act or its implementing
<br />regulations. 16 U.S.c. S; 1540(e)(6). (The term
<br />"person" is defined broadly under the Act to
<br />include among others, individuals; corpora-
<br />tions and officers; and employees and instru-
<br />mentalities of federal, state, and local
<br />governments. See 16 U.S.c. S; 1532(12).) The
<br />purpose of the amendment is obvious: to allow
<br />federal authorities to curtail imminent or on-
<br />going violations of the statute rather than merely
<br />seek to punish violations which have already
<br />occurred. This provision has, however, been
<br />employed sparingly. The more traditional en-
<br />forcement methods described above still pre-
<br />dominate.
<br />When an injunction has been sought and
<br />obtained, however, its effects have been pow-
<br />erful. In 1991, the United States was successful
<br />in obtaining an injunction against an irrigation
<br />district in California's Central Valley. United
<br />States v. Glenn. Colusa Irrigation Dis!., 788 F.
<br />Supp. 1126 (E.D. Cal. 1991). The pumping
<br />practices of the district, which diverts large
<br />amounts of water from the Sacramento River to
<br />be used for irrigation, were resulting in losses
<br />of large numbers of threatened winter run chi-
<br />nook salmon. NMFS had attempted over a num-
<br />ber of years to convince the district to install
<br />an effective fish screen to halt the takings of
<br />juvenile fish, but its efforts proved fruitless. The
<br />injunction ordered by the coun was subse-
<br />quently modified to allow the district to con-
<br />duct limited pumping while a long.term
<br />solution for protection of the salmon is devel-
<br />oped and implemented.
<br />Continued on page 72
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