Wednesday, July 10, 2013

Do CPIA Import Restrictions Constitute an Embargo?

Do import restrictions derived from the Convention on Cultural Property Implementation Act (CPIA) constitute an embargo? That is a question that has resurfaced after reading Erik Smithweiss, "A Race To The Courthouse: Jurisdiction Over Customs Admissibility Decisions," 21 Tul. J. Int’l & Comp. L. 291 (2013) and Stephen C. Tosini, "The Embargo Upon Endangered Species: Accidental Jurisdiction In The Court of International Trade," 21 Tul. J. Int’l & Comp. L. 311 (2013).

CPIA import restrictions prohibit designated archaeological and ethnological objects from entering the United States. The prohibitions serve to safeguard endangered cultural heritage. Once the President determines that specific cultural material originating in a foreign nation is in jeopardy of pillage, protective import controls are put in place. U.S. Customs and Border Protection (CBP) agents are given authority to detain, seize, and forfeit the protected cultural objects. Should an importer choose to challenge a CBP decision, there may be a question about which court can hear the case depending on how one understands an "embargo."

U.S. Court of International Trade
The Court of International Trade (CIT), based in New York, possesses national jurisdiction over what its title suggests, namely international trade. The CIT is given exclusive jurisdiction by Congress under 28 U.S.C. § 1581(i)(3) over embargo enforcement actions covering "embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety." What constitutes an embargo is outlined by the U.S. Supreme Court's decision in K Mart Corp. v. Cartier, Inc., 485 U.S. 176, 185, aff’d in relevant part, rev’d in part, 486 U.S. 281 (1988), which explains that “the ordinary meaning of ‘embargo,’ and the meaning that Congress apparently adopted in the statutory language ‘embargoes or other quantitative restrictions,’ is a governmentally imposed quantitative restriction--of zero--on the importation of merchandise.” Congress, meanwhile, has also empowered all 94 federal district courts under 28 U.S.C. § 1356 with jurisdiction to hear import seizure cases. The district courts' decisions have the force of law over their designated geographic areas.

In the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection Agency, Department of Homeland Security et al., the ACCG filed a lawsuit challenging import restrictions on ancient Chinese and Cypriot coins in federal district court in Maryland. But Smithweiss points out, "It is quite possible that a district court could conclude that 19 U.S.C. § 2602 [the CPIA] imposes an embargo, in which case the CIT might properly exercise jurisdiction over an action challenging an admissibility decision [on the importation of cultural property] made pursuant to that statute." In fact, the federal district court itself questioned whether it had authority to hear the ACCG's lawsuit. The court concluded that it did, writing that its subject matter jurisdiction over "any seizure" was rooted in 28 U.S.C. § 1356, despite the tension raised by the CIT's exclusive jurisdiction over embargoes found in 28 U.S.C. § 1581(i). The fact that neither the government nor the ACCG objected to the federal district court's authority to hear the ACCG's legal challenge almost certainly helped the court reach the conclusion that the parties did not need to go to the CIT to resolve their differences. However, it is possible that another court would reach a different result.

Indeed, Tosini educates us about what has happened in the realm of endangered species, and his observations should offer parallels with regard to the protection of archaeological and ethnological objects in jeopardy of pillage. Import restrictions rooted in the Endangered Species Act (ESA) and similar laws that protect threatened wildlife, flora, fauna have been found to amount to embargoes. As a result, the Court of International Trade has been identified as the court possessing jurisdiction to hear several cases in this area. Tosini reflects:
There is currently significant confusion in the environmental arena, and even the splitting of jurisdiction within certain statutory schemes. Accordingly, although the Government may be subject to suit in the Court of International Trade, individual defendants would be sued in the district courts. Furthermore, some actions that involve international trade and commerce are relegated to district courts, whereas identical actions involving ESA-listed species may wind up before the Court of International Trade. Should there ultimately be a larger number of such cases, this confusion will only compound.
Tosini recommends that Congress clarify these jurisdictional issues. He favors outcomes that leave matters of “classification, valuation or rate of duty” to the CIT and that give "district courts ... exclusive jurisdiction with respect to environmental laws relating to the importation of wildlife."

There may not be enough cultural property cases winding their way through the judicial system to spark interest about whether CPIA's import prohibitions amount to an embargo. But the topic deserves consideration. That is because future litigants will undoubtedly confront the issue. For example, what if a CBP seizure of an archaeological artifact in Chicago compels a claimant to file a civil action 800 miles away in the CIT rather than at the local courthouse sitting in the northern district of Illinois? Will that distance deter the legal action? Or what if a federal district court in Wyoming hears a cultural property import case of national significance? Should the federal court's decision simply be cited authoritatively in the "Cowboy State" alone, or should the decision instead be made by the CIT, which has national authority? Alternatively, shouldn't a local CBP decision made at the Natrona County Airport in Casper be reviewed by a federal judge sitting in Cheyenne?

Of equal importance is the framing of cultural heritage policy discussions. The K Mart decision identifies an embargo as a restriction that protects public health, safety, or morality or that advances foreign affairs, law enforcement, or ecology. In contrast, we might call an import restriction that is not "a governmentally imposed quantitative restriction--of zero--on the importation of merchandise" a non-tariff barrier. There are those at one edge of the cultural property spectrum who view import restrictions on archaeological material from the perspective of trade regulations that govern consumer products in the marketplace. This view considers how import prohibitions could adversely affect U.S. art and antiquities sellers by denying dealers and auction houses the opportunity to trade in goods that may be bought and sold by consumers elsewhere. Proponents of this viewpoint might describe CPIA import restrictions as being part of a broader range of trade regulations codified under Title 19 - Customs Duties. Defining CPIA import restrictions as non-tariff barriers may advance this line of reasoning.  At the other end of the spectrum are those who see import prohibitions on archaeological artifacts as protective measures designed to safeguard culture and preserve historical and scientific evidence contained within archaeological sites. This viewpoint focuses on curtailing illegal antiquities trafficking, preserving archaeological evidence, and protecting culture from looting and vandalism. And calling CPIA import protections an embargo may advance this argument in policy discussions.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com