January 01, 2015

The Lacey Act: A Vintage Conservation Tool Still Vital in Today’s Global Economy

C. Parks Gilbert, III

Imagine you work at a railroad depot in a Midwestern town in 1870. It is a spring afternoon and the next train is due in an hour. When the low roar begins, you hurry outside and look eastward, squinting at the horizon point where the twin rails converge. No train. A long westward look, still no train. Back at the desk, you check the train schedule and your watch but discover no reason to expect a train. The roar builds, cresting as the northern sky fills with black specks. The specks blanket the sky, blackening out the sun. Rushing to the telegraph, you signal, “passenger pigeons coming,” and send it to towns southward. After three hours, the birds are gone, but the telegraph buzzes, relaying news of other towns’ passenger pigeon harvest. Townspeople use nets, shotguns, even poles, to take an abundance; the low-flying pigeons are the easiest of game. On this day of jubilation, the hunters’ kills are mere grains of sand taken from a broad beach. Inconceivably, in a few short decades, the last wild flock will vanish.

Now imagine it is the year 2020, and you are visiting your local zoo. You head to the big cats section. After admiring the tiger stalking around its enclosure, you read the exhibit placard, which says “Conservation Status: Extinct in Wild.” After leaving the zoo, you decide to stop by your local waterside restaurant for some oysters. When you pull into the oddly deserted parking lot, you see a sign on the door from the health department about seafood contamination.

What these vignettes have in common, besides involving fish and wildlife, is that a federal statute engages the problems they highlight: the Lacey Act of 1900. The Lacey Act touches on such divergent issues as conservation, fighting crime, and public health. It also protects legitimate markets in fish and wildlife and helps prevent the spread of invasive and harmful species, two benefits largely beyond the scope of this article.

Although it preceded the Endangered Species Act (ESA) by some seventy years, the Lacey Act gets much less attention. It combats illegal trafficking in fish, wildlife, and plants. Specifically, the Act, 16 U.S.C. § 3371 (2012), et seq., protects fish and wildlife by making it a violation of federal law to break state, tribal, or international fish and wildlife-related laws. The Act also requires proper labeling of and documentation for fish, wildlife, and plant shipments and bars trafficking in some species altogether. Id.

Senator John Lacey of Iowa sponsored the act that now bears his name. In their day, Lacey and his contemporaries witnessed the decimation of many populations of formerly abundant species. Barry Yeoman, Why the Passenger Pigeon Went Extinct, Audubon Mag., May–June 2014; Natalie D. Halbert, et al., Where the Buffalo Roam: The Role of History and Genetics in the Conservation of Bison on U.S. Federal Lands, Park Science 24(2): 22–29 at 22, Winter 2006–07.

Early explorers such as Champlain observed “infinite numbers” of pigeons, Voyages of Samuel de Champlain, tran. Charles P. Otis, 1878, Vol. II, Chapter VII, while Lewis and Clark encountered “immence [sic]” buffalo herds, one of which appeared to fill a twelve-mile-long valley. Meriwether Lewis and William Clark, July 18, 1806 entry in The Journals of the Lewis and Clark Expedition, University of Nebraska Press / University of Nebraska-Lincoln Libraries-Electronic Text Center (Gary Moulton, ed. 2005). Pigeons and bison both fell prey in part to unregulated, unsustainable harvest. Yeoman, supra; Halbert, supra.

Lacey characterized such overconsumption this way: “[f]or more than three hundred years destruction was called ‘improvement’ and it has only in recent years come to the attention of the people generally that the American people were like spendthrift heirs wasting their inheritance.” 33 Cong. Rec. 4871 (1900).

Purpose and Function of the Lacey Act

Lacey’s act sought to serve three primary purposes, which were to address and prevent introduction of invasive species; to preserve domestic species, especially birds; and to assist states in enforcing game laws against market hunters who illegally took their kill across state lines. H.R. Rep. No. 474, 56th Cong., 1st Sess. 1-2 (1900). The enacted law gave the U.S. Department of Agriculture authority to preserve and restore game birds and other birds; barred the import of birds and wildlife without a permit; forbade the introduction of certain “injurious” species; and most importantly, prohibited interstate commerce in game illegally taken and required labeling of game shipments. Lacey Act, ch. 553, 56 Stat. 187 (1900) (codified as amended at 16 U.S.C. §§ 3371–3378); H.R. Rep. No. 56-474, at 2 (1900). By enacting Sen. Lacey’s bill, Congress achieved four important conservation goals:

(1) it began the cooperative effort between the federal and state governments in conservation; (2) it elevated wildlife conservation as a national issue; (3) it inaugurated federal wildlife protection and control programs; and (4) it gave impetus to what would eventually become a strong United States Fish and Wildlife Service.

Leonard H. Wurman, The Lacey Act, Fair Chase Mag., Fall 2006, 16–18, at 18.

The original act primarily focused on birds and only authorized a $200 fine as a penalty. 56 Stat. 187, 188. Since enacting the law, Congress has amended the Lacey Act many times, always in response to an increased need to protect fish and wildlife resources. A good example of this call and response is Congress’s removal of Lacey’s protection for Migratory Bird Treaty Act (MBTA)-listed birds in 1969 to avoid duplication and subsequent reinstitution of protection for MBTA birds about ten years later when it found that these birds needed the additional protection the Act afforded. S. Rep. No. 526 at 21, reprinted in 1969 U.S.C.C.A.N. at 1434; S. Rep. No. 123 at 4, reprinted in 1981 U.S.C.C.A.N. at 1748, 1751.

Periodic amendments to the Act have helped hone and strengthen it into a premier wildlife protection implement in law enforcement’s arsenal. Congress has increased the criminal penalties at intervals. Today, the maximum criminal penalty is a $20,000 fine and five years’ imprisonment. 16 U.S.C. § 3373. No other federal wildlife-related statute carries penalties that high, which makes the Lacey Act a strong backstop for state enforcement. In 1969, Congress extended the Act’s civil penalties to reach negligent violations, and, in 1981 added a forfeiture provision. 16 U.S.C. §§ 3373, 3374 as amended. Besides periodically enhancing penalties, Congress has extended Lacey Act protection to more species and lengthened the list of actions the statute prohibits. Id at §§ 3371, 3372. Today, in addition to traditional fish and game species, the statute also covers reptiles, amphibians, mollusks, crustaceans, and plants. Id. at § 3371. Congress has also expanded the definition of “sale” to include sale or purchase of guide services for illegal take of covered species and expanded the body of predicate law to include federal and foreign laws. 102 Stat. 3825 (1988); 49 Stat. 378, 380 (1935).

The Lacey Act works by targeting illegal trafficking in fish, wildlife, and plants. It does this in two major ways: by prohibiting any traffic that violates federal, state, tribal, and foreign law, and by setting standards for shipping fish, wildlife, and plants. The Act is unusual in that a violator must commit a predicate offense before it applies. For example, the Act does not itself ban duck hunting out-of-season, but backs up state game laws and the MBTA that do.

The potential penalties available under the Act generally increase with the mens rea requirements (e.g., a misdemeanor violation requires that the defendant “should have known,” in the exercise of due care, that s/he violated the predicate law, 16 U.S.C. § 3373(d)(2)), whereas for one of the most serious felony violations, the defendant must have “knowingly” imported or exported fish, wildlife, or plants knowing that they were taken, possessed, sold, or transported in violation of predicate law. 16 U.S.C. § 3373(d)(1)(A).

Like an old wine, the Lacey Act has grown richer and more potent with time and its value has increased over the years. The Act’s value lies in three main areas: promoting conservation, combating organized crime, and protecting public health.

Why should Americans value conservation? If the above fictional account about the loss of the passenger pigeon was not convincing enough—perhaps Silent Spring is not your favorite book nor is Teddy Roosevelt your favorite president—consider the ethic in the ESA’s policy statement: “species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people,” 16 U.S.C. § 1533(a)(3) (2014). In truth, Congress still thinks we should care about conservation, just as it did in 1900.

Just as the federal government has congressionally granted authority over fish and wildlife, states have fish and wildlife conservation duties. The difference is that the state duty arises out of the public trust doctrine, which dates back to Roman law and which we inherited from English law. See, e.g., Martin v. Lessee of Waddell, 41 U.S. 367 (1842). The public trust doctrine holds that states are public trustees of fish and wildlife resources and are to manage and maintain the resources for the state’s citizens. Despite the Court recognizing some limits on state trustee ownership of fish and wildlife in Hughes v. Oklahoma, 441 U.S. 322 (1979), the doctrine is alive, well, and relevant in other bodies of law, from state constitutions to federal statutes reserving authority to the states. Conservation matters in part because states have a public duty to conserve fish and wildlife species for current and future generations of Americans.

States need resources to carry out conservation, and state-led conservation is funded greatly by a user-pay, user-benefit model: hunters and anglers pay to use fish and wildlife. They pay by purchasing hunting and fishing licenses and by paying excise taxes on hunting and fishing equipment under two federal statutes, the Pittman-Robertson Federal Aid in Wildlife Restoration Act, 16 U.S.C. §§ 666–666k, and the Dingell-Johnson Federal Aid in Sport Fish Restoration Act, 16 U.S.C. §§ 777–777n. When illegal harvest reduces fish and wildlife populations, hunting and fishing suffers, impacting funding for conservation. Consequently, states need strong enforcement of their laws to protect their fish and wildlife resources, but their inability to combat interstate trafficking remains. Fortunately, a strong Lacey Act fills this gap.

Finally, authorities can use the Lacey Act to protect public health. For example, states will close contaminated waters to fishing, yet some fishermen still harvest from closed waters. When they sell their potentially contaminated catch, they put the public’s health at risk, especially when they sell the catch across state lines where the harvest state’s law enforcement cannot reach them. The Lacey Act can be dispatched against such threats to public health.

Enforcement Under the Lacey Act

The following are illustrative examples of how the Lacey Act serves the key values of conservation, combatting organized crime, and public health.

In United States v. Gay-Lord, 799 F.2d 124 (4th Cir. 1986), the defendant challenged his Lacey Act conviction for illegally selling rockfish (striped bass). In 1983 and 1984, U.S. Fish & Wildlife Service (FWS) agents conducted an undercover investigation on illegal take of rockfish from waters in North Carolina and Virginia. Id. at 125. Typically, violators shipped rockfish to markets in northeastern cities where it ended up in restaurants. Id. In this particular case, the defendant purchased from agents in North Carolina fish he knew had been illegally caught in Virginia and sold it to a company that then sold the fish north. The court affirmed the defendant’s conviction, finding in part that the defendant’s knowledge both that the fish was caught illegally in Virginia and that it would be sold north, was enough evidence of his knowledge that the fish would be sold in interstate commerce. Gay-Lord’s criminal conduct had two impacts: it harmed fish conservation both in Virginia by violating its game laws and possibly in other states by feeding demand for illegal rockfish, and it could have affected public health. If the end consumer in New York got sick from the rockfish, the local authorities could do little about it. Fortunately, the Lacey Act reached Gay-Lord’s conduct and curtailed the operation.

Likewise, federal and state investigators arrested 81 people and charged 981 Lacey Act violations in connection with a large, illegal black bear hunting operation in North Carolina and Georgia. A U.S. district judge has refused to dismiss the indictments against seven men whose trial as of this writing has been set for September 2014. Clarke Morrison, Asheville Judge Rejects Entrapment in Bear Poaching Case, Asheville Citizen-Times, May 29, 2014.

The Lacey Act also reaches illegal commercial hunting enterprises that impact state and federal conservation efforts. For instance, the misconduct in United States v. Lewis, 240 F.3d 866 (10th Cir. 2001) directly impacted elk conservation efforts, as the defendant ran an illegal elk hunting operation next to a wildlife refuge in Oklahoma. FWS surveillance showed that the defendant would lure elk onto his property from the adjacent Wichita Mountains National Wildlife Refuge, and then pen them for paying hunters to shoot. In fact, the defendant advertised in a Dallas newspaper, demonstrating the interstate nature of his business. The defendant’s illegal operation netted thousands of dollars, but this amount is likely small in comparison to what the government spent to grow and maintain the elk on the Refuge. By providing for higher penalties, forfeiture, and greater jurisdictional reach than the applicable Oklahoma law, Okla. Stat. Ann. § 29-7-503(G) (2014) (providing for a maximum penalty of $1,000 and sixty days’ incarceration), the Lacey Act serves a greater deterrent and reaches more illegal conduct, better protecting wildlife, than the state statute alone. Further, legitimate businesses ranging from hunting guides to commercial fishing companies benefit when those who break the rules and thereby undercut the market are prosecuted, as this helps to ensure a level playing field.

The Lacey Act also serves to combat illegal traffic in species protected by foreign laws. In United States v. Manghis, No. 08cr10090–NG, 2011 WL 2110212 (D. Mass. May 26, 2011), the defendant conspired to smuggle elephant ivory and sperm whale teeth into the country. His actions impacted conservation efforts for both species, as perceived demand for protected species fuels the illegal take of these species to supply that demand. Other examples include parrot smuggling in United States v. Santillan, 243 F.3d 1125 (9th Cir. 2001) and in United States v. 2,507 Live Canary Winged Parakeets, 689 F. Supp. 1106 (S.D. Fla. 1988), and killing and selling in interstate commerce endangered leopards and tigers in United States v. Kapp, 419 F.3d 666, 678 (7th Cir. 2005). The public should also harbor concern for the welfare of trafficked fish and wildlife, as smugglers’ apparent creativity in packing wildlife knows little bounds. See, e.g., Sasha Ingber, 6 Bizarre Animal Smuggling Busts, Nat’l Geographic News, Jan. 30, 2013.

International trafficking in fish and wildlife has reached “crisis” levels that may be enhanced by enforcement gaps. The Escalating International Wildlife Trafficking Crisis: Ecological, Economic, and National Security Issues: Hearing Before the S. Foreign Relations Subcomms. on African Affairs and East Asian and Pacific Affairs, 113th Cong. (2014) (statement of M. Brooke Darby, Deputy Assistant Secretary of State for International Narcotics and Law Enforcement Affairs). The fact that the illegal wildlife trade is currently valued at $5 to 10 billion annually underscores the market’s huge size. Liana Sun Wyler & Pervaze A. Sheikh, “International and Illegal Trade in Wildlife: Threats and U.S. Policy,” Cong. Research Serv., RL34395 (July 23, 2013). Demand for iconic megafauna and their parts, such as African elephant and rhino ivory, as well as tigers, drives poaching and illegal trafficking in these species, already at high risk of extinction from the pressure of habitat loss. World Wildlife Fund. Without adequate law enforcement to work alongside other conservation efforts, species such as elephants, rhinos, and tigers could follow the passenger pigeon.

In addition, international crime syndicates that deal in arms and narcotics are often “heavily” involved in wildlife trafficking. Wyler at 4. The illegal wildlife trade may even support terrorist organizations. Fact Sheet, Office of the U.S. Trade Representative, Trade, Illegal Wildlife Trafficking, and National Security (June 2014). The Lacey Act can thus serve as an important tool to fight not only international wildlife trafficking but also the narcotics trade and even terrorism.

Some domestic species are in demand in other countries. This may include an animal part such as a black bear gall bladder, which is in great demand in Asia because of its value in traditional Chinese medicine; a fish product such as paddlefish caviar; or live wildlife such as turtles. Laura E. Tsai, Detailed Discussion of Bears Used in Traditional Chinese Medicine, Mich. St. Univ. Animal Legal & Historical Ctr.; Christine Coester, Paddlefish Pose Management Challenge for Missouri Conservationists, Columbia Missourian, June 3, 2014. Both paddlefish and black bears are at risk from organized poaching rings that collect and sell these species’ products. Indeed, following a recent investigation in Missouri, authorities arrested 8 people and cited 122 others, charging them with trafficking in paddlefish caviar. Id.

Burgeoning overseas market demand for turtles means large profits and incentive for illegal harvest and trafficking. Recently, Florida and federal authorities broke up a turtle poaching ring that shipped approximately 600,000 pounds of turtles, worth $10.8 million, to China. Maj. Curtis Brown, Fla. Fish & Wildlife Comm’n, Briefing at U.S. House of Rep.: The Lacey Act (Apr. 2, 2014). And in United States v. Macinnes, a federal court convicted two defendants of Lacey Act violations stemming from their illegal harvest and sale of rattlesnakes and other reptiles; the defendants even shipped some overseas. Crim. Action No. 12–623, 2014 WL 2439336 at *1 (E.D. Pa. May 30, 2014). In addition to negatively impacting conservation efforts for these species and feeding demand for them, shipping venomous snakes presents a serious public health risk.

Shipping venomous snakes may be a relatively rare type of violation and thus an unlikely threat to public health. However, other Lacey Act cases have addressed more evident threats to public health. Gay-Lord presents an obvious example, although it contains no mention of the quality of the fish seized. In United States v. McDougall. 25 F. Supp. 2d. 85 (N.D.N.Y. 1998), however, the health threat was clear. In McDougall, defendants caught walleye and eel in New York and sold the fish into interstate and foreign commerce. Id. at 88. The state required catch and release for these fish out of concern about PCB contamination that could sicken consumers. Id. at 89. So likewise could illegal oysters and game. See Brown, supra; see also Press Release, Fla. Fish & Wildlife Comm’n, FWC Investigation Uncovers Illegal Wildlife Ring (Nov. 14, 2012).

Pressures to Weaken the Lacey Act

Despite its successes, the Lacey Act has its critics and has drawn some congressional ire. The Act has received negative press in recent years stemming almost entirely from two instances: the United States v. McNab case, 331 F.3d 1228 (11th Cir. 2003) in which several individuals were convicted under the Lacey Act for illegally importing $17 million worth of lobsters, and FWS’s raid on Gibson Guitar Corp. in 2011 after investigation revealed that Gibson was illegally importing and using tropical woods. See Press Release, NOAA, McNab to Continue Serving Federal Prison Sentence for Lobster Smuggling (Mar. 22, 2004); U.S. Dept. of Justice, Criminal Enforcement Agreement between Department of Justice and Gibson Guitar Corp. (July 27, 2012).

McNab catalyzed efforts to defang the Lacey Act, which inspired the proposed Freedom from Over-Criminalization and Unjust Seizures Act of 2012. This bill sought to remove the felony and forfeiture provisions and decriminalize violations of foreign law. H.R. 4171, 112th Cong. (2012). Following the Gibson Guitar case, Congress also considered bills to change the 2008 amendments to the law, which regulate wood and plant products, including protecting foreign forests and the domestic forestry products industries. Legislators’ overreaction to a correct decision in a case in which the defendants illegally imported millions of dollars’ worth of lobsters and to Gibson Guitar’s violation demonstrate the need to educate the public about the Lacey Act and its successes as well as the dangers of weakening it.

As Eileen Sobeck, Deputy Assistant Secretary for Fish, Wildlife, and Parks, Dep’t of the Interior, put it, weakening the Lacey Act will “have a far-reaching negative impact . . . on efforts to stop illegal trafficking in wildlife and plants; on U.S. conservation partnerships with states, tribes, and other countries; on our collective stewardship of fish, of wildlife and plant resources; on businesses here and abroad engaged in the legitimate harvest of, and trade in natural resources; and on the conservation of species here and around the world.” Hearing on H.R. 3210 and H.R. 4171, Before the H. Comm. on Nat. Res. Subcomm. on Fisheries, Wildlife, Oceans, and Insular Affairs, 112th Cong. (2012).

Whatever the ultimate fate of the Lacey Act, if it is repealed and not replaced, conservation will suffer, wildlife trafficking will probably increase unchecked, public health could be in danger, and legitimate businesses will struggle to survive, just like the wildlife populations the Act helps protect. For now, the Act will continue to protect these myriad public interests, and hopefully, another day of jubilation will arrive—a day when healthy fish and wildlife populations no longer need the Act.

C. Parks Gilbert, III

Mr. Gilbert is an attorney with the Association of Fish and Wildlife Agencies in Washington, D.C.