Caviar Wholesalers Lose|Appeal Over Permit Delay

     (CN) – The U.S. Fish and Wildlife Service did not violate the constitutional rights of two wholesalers when it delayed approving five permits for the export and sale of $500,000 worth of caviar, the 6th Circuit ruled.




     Leisure Caviar and Bemka Corp. claimed the agency took too long to act on five permit applications for more than 4,000 pounds of paddlefish roe, jeopardizing their “entire investment” because of the 12- to 15-month shelf-life of the fish eggs.
     But the federal appeals court in Cincinnati upheld a lower court’s ruling for the government, saying the wholesalers failed to introduce any new evidence to support their claims.
     Those claims included the allegation that the permitting process was unconstitutional, because the agency did not create clear guidelines for the approval of permits for the fish eggs.
     “From the beginning, the agency has maintained that the ‘issuance of export permits is not a ministerial duty but is a discretionary decision based on investigations and findings’ by the agency,” Judge Jeffrey Sutton wrote for the three-judge panel. “These regulations put the plaintiffs on notice about the discretionary nature of the government employees’ responsibilities.
     “A claimant who seeks to amend a complaint after losing the case must provide a compelling explanation to the district court for granting the motion,” the judge added (emphasis in original). “The district court did not exceed its discretion in concluding that plaintiffs provided nothing of the sort.”
     The appellate panel also rejected the claim that the delay in processing violated the wholesalers’ property rights.
     “The plaintiffs knew that the agency was having trouble keeping up with the influx of applications when they first filed the lawsuit and that this delay threatened to destroy their investment,” Sutton wrote.
     The wholesalers were likewise unsuccessful with their claim that a Fish and Wildlife Services biologist and his supervisor had threatened to delay future permit applications.
     Sutton said those claims were already mentioned in the wholesalers’ first amended complaint, and they had “no reason … to wait for this deposition testimony to press a claim for retaliation.”
     The court also rejected the claim that the government had offered a criminal defendant leniency in exchange for information “incriminating Leisure Caviar and its controlling member.”
     “Plaintiffs offered no deposition testimony, no affidavit, no identifying details – no evidence at all – to corroborate this new claim,” the court concluded.

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