Below is from Publication Land Law review 1995 by Robert S. Anderson, as seen on animal law info site 16 Pub. L.L.R 27 (1995) animallaw.info/articles/art_details
Note: Due to the date this article was written, no attempt has been made to verify the current law on this article, including case law and application. As with all laws, always check for current updates and changes before using any cases as precedent.
In Montana, a professional hunting guide instructs his non-resident client to kill a deer for which the client has no hunting license; in Ohio, a reptile dealer unpacks a bag containing smuggled pythons illegally removed from the New Guinea rainforest; in Los Angeles, a commercial bird importer prepares to sell hundreds of grey parrots into the pet trade, which were imported under documents concealing their true country of origin; in the Pacific Northwest, a commercial fishing vessel attempts to import a shipment of salmon harvested in violation of a Taiwanese fishing regulation; in Seattle, a seafood company buys caviar that it should know has been taken contrary to state law; in the Sonoran desert of Arizona, a man illegally removes a saguaro cactus from the desert under cover of darkness for sale to a commercial landscaping company.
In each of these cases, a federal statute, the Lacey Act, [FN2] has been violated. [FN3] Although not widely known even ninety-five years after its enactment, the Lacey Act is this country's oldest national wildlife protection statute, [FN4] and remains today a potent weapon in the fight against widespread and highly profitable illegal wildlife trafficking.
In its original form, the Lacey Act addressed problems such as the introduction of harmful exotic avian species, the growing scarcity of many domestic birds, international trade in bird feathers, and interstate commerce in illegally killed and transported wildlife. [FN5] Its original language authorized limits on avian importation, initiated programs aimed at protecting native bird species, and targeted illegal wildlife trade by strengthening state laws and requiring accurate labeling of wildlife shipments.
Nearly 100 years and many revisions later, the Lacey Act's focus is the prohibition of interstate and international trafficking in protected wildlife. [ FN6] Used frequently by federal prosecutors, the Lacey Act reinforces federal, state, tribal, and foreign wildlife protection laws by requiring accurate labeling of wildlife shipments and criminalizing most types of trafficking in fish, wildlife, and plants that have been taken, possessed, transported, or sold in violation of a state, federal, tribal, or (except in the case of plants) foreign law. [FN7] The Lacey Act violator can face civil fines, forfeiture of wildlife and equipment, and criminal penalties, including fines and incarceration. [FN8]
Part I of this article discusses the scope of the illegal wildlife trade and the various federal statutes addressing that problem. It concludes that the Lacey Act provides the most comprehensive coverage of all federal statutes related to wildlife trafficking, as well as the greatest potential for substantial penalties. Part II discusses the legislative history of the Lacey Act and its companion statute, the Black Bass Act, including their ultimate combination into one law in 1981 and the Lacey Act's latest amendments in 1988. Part III discusses the elements necessary to prove a Lacey Act trafficking violation, analyzes judicial interpretations of the Act's statutory language, and considers available sanctions. Part IV discusses issues that may arise in Lacey Act litigation, including specific requirements of the underlying "predicate" law.
The Lacey Act's most commonly used provisions are those outlining trafficking offenses, set forth in sections 3372(a)(1) and (a)(2). [FN210] These sections are most easily understood if one thinks of them as prohibiting trade in "tainted wildlife." [FN211] In other words, these sections generally prohibit certain acts involving wildlife, fish, or plants that have been taken, possessed, transported, or sold in violation of a federal, state, tribal, or foreign law or regulation. [FN212] When read together with the "attempt" provision of section 3372(a)(4), sections 3372(a)(1) and (a)(2) generally make it unlawful to:
- import, export, transport, sell, receive, acquire, or purchase
- wildlife, fish, or plants that have been
- taken, possessed, transported, or sold in violation of a
- state, federal, foreign, or tribal law or regulation.
Thus, a Lacey Act trafficking charge requires proof of both an underlying or "predicate" violation of some law, as well as proof of an "overlying" violation of the Lacey Act's list of prohibited acts. The underlying violation occurs when someone illegally takes, possesses, transports, or sells the wildlife, fish, or plant. The Lacey Act violation does not occur until the defendant commits or attempts to commit an import, export, transport, sale, receipt, acquisition, or purchase of the tainted animal or plant.
Section 3372(a)(2) applies two caveats to this general framework. First, if the underlying violation is of a state or foreign law, the Lacey Act violation must involve interstate or foreign commerce. [FN213] Second, a Lacey Act trafficking offense involving plants may not be predicated on an underlying violation of a foreign law. [FN214]
The penalty provision of section 3373 imposes a second set of elements that must be analyzed in determining whether a felony or misdemeanor violation can be proved. For instance, to establish a felony Lacey Act trafficking violation the government must prove the defendant knew that the wildlife was tainted. [FN215] In some cases, the government must also prove market value and commercial activity. [FN216] For misdemeanor trafficking violations, the government must prove that the defendant, in the exercise of due care, should have known of the wildlife's underlying taint. [FN217]
This combined statutory scheme requires any potential Lacey Act trafficking violation to be analyzed using these preliminary questions:
1. Is the wildlife, fish, or plant at issue covered by the Lacey Act? [FN218]
2. If so, can the government prove that the wildlife, fish, or plant was taken, possessed, transported, or sold in violation of a wildlife-related [FN219] state, federal, tribal, or foreign law or regulation? [FN220]
3. If so, can the government prove that the defendant imported, exported, transported, received, acquired, or purchased the illegal wildlife, fish, or plant, or attempted to do so? [FN221]
3a. If the underlying law was a state or foreign law, did the accused import, export, transport, receive, acquire, or purchase the wildlife, fish, or plant in interstate or foreign commerce? [FN222]
4. If so, are the additional elements necessary for proof of a misdemeanor or felony violation present, such as commercial conduct, market value, and knowledge of the wildlife's illegality?
b. The Two-Step Violation Scheme
A primary feature of any Lacey Act criminal trafficking violation is that two separate steps must be proved with regard to the wildlife at issue. First, it must have been taken, possessed, transported, or sold in violation of an underlying law. Second, it must have been imported, exported, transported, received, acquired, or purchased in a manner prohibited by the Lacey Act. [FN223]
This two-step requirement was discussed recently by the Ninth Circuit in United States v. Carpenter, [FN224] a case involving a farmer charged under section 3372(a)(1) with killing migratory birds and burying their carcasses on his property. The Lacey Act charge alleged, in essence, that the farmer had taken the birds in violation of the Migratory Bird Treaty Act, and that in doing so he also acquired the birds in violation of the Lacey Act. [FN225] Thus, the charge divided a single act (killing the birds) into an underlying violation of the MBTA and a Lacey Act acquisition of the tainted birds. The Ninth Circuit rejected this approach, saying:
The government's position collapses the two steps required by the statute into a single step--the very act of knowingly taking the bird in violation of laws is, in the government's view, the act of acquiring the bird. That is not the meaning of the statute. The bird must be taken before acquiring it violates the Lacey Act. [FN226]
Thus, the holding in Carpenter illustrates that a single act may not constitute both the underlying violation and the Lacey Act violation.
Although most cases involve wildlife that was taken, possessed, transported, or sold in violation of an underlying law prior to being imported, exported, etc., there is no requirement that the "taint" attach prior to the commission of the prohibited act. In United States v. Sylvester, [FN227] for example, the defendant was convicted of a Lacey Actfelony [FN228] after arranging to transport the hides and skulls of three Alaskan brown bears to New Mexico. [FN229] The sale agreement and partial payment were made in Alaska, and final payment was made in New Mexico. [FN230] The Lacey Act charge alleged, in essence, that the defendant had transported in interstate commerce bears that had been sold in violation of Alaskan state law. [FN231] On appeal, the defendant argued that he did not complete the sale of the wildlife until after it had been transported.
Thus, he argued, there was no sale in Alaska, and no violation of the Alaska regulation. [FN232] In essence, he was arguing that no "taint" had attached to the wildlife prior to his commission of an act (transport) prohibited by the Lacey Act. The Ninth Circuit disagreed, noting that the sale had originated and been partially completed in Alaska, and further holding that it is irrelevant whether completion of the sale precedes or follows the interstate transportation of the animals, so long as the transportation is related to the sale. [FN233]
Similarly, it is not necessary that the Lacey Act violation occur in the same location as the underlying violation. [FN234] For example, in United States v. Gay-Lord, [FN235] rockfish taken in violation of Virginia law were sold by a defendant in North Carolina to a seafood company, which then sold the fish in other states; the Lacey Act charge alleged an underlying violation of the Virginia regulation. [FN236] The defendant argued that because his sale of the fish occurred in North Carolina, his Lacey Act prosecution there could not be grounded on an underlying violation that occurred in another state. The court disagreed, holding that the predicate state law does not have to be violated in the state where the Lacey Act charge is filed. [FN237]
c. The Defendant's Connection to the "Taint"
The Lacey Act violator need not be the same person who took, possessed, transported, or sold the wildlife in violation of the underlying law. [FN238] Culpability attaches to anyone who imports, exports, transports, receives, acquires, or purchases the wildlife, [FN239] and who knows, or in exercise of due care should know, [FN240] that it was illegally taken, possessed, transported, or sold. The degree of the accused's knowledge regarding the status of the tainted wildlife is one of the factors that distinguishes a felony from a misdemeanor violation. [FN241]
In United States v. Mitchell, [FN242] for example, the Fourth Circuit upheld the Lacey Act conviction of a United States citizen who imported wildlife illegally killed in Pakistan on the basis that he knew someone else had taken the wildlife in violation of Pakistani law. [FN243] This issue was also raised in United States v. Lee, [FN244] a Ninth Circuit case involving imported salmon that had been taken in violation of a Taiwanese regulation. [FN245] Five of the six convicted fishermen argued that because they, as non-captains, did not personally violate the Taiwanese regulation prohibiting capture of the salmon, their Lacey Act convictions were invalid. The Ninth Circuit rejected this argument, noting:
(I)t is irrelevant whether the fishermen would be liable at all under the regulation. The Act's criminal penalty provision does not require that the fishermen violated the regulation, but only that they took part in importing the salmon when they knew, or should have known, that the salmon had been taken in violation of the regulation. 16 U.S.C. S 3373(d)(1)-(2). Thus, all six fishermen, whether or not they occupied the position of captain on the ship are equally subject to the Act's criminal penalties. [FN246]
Similarly, the government is not required to prove that the defendant knows which underlying law was violated or the nature of the violation. [FN247] Neither must the government prove that the defendant knew of the Lacey Act or knew that he violated it. [FN248] The government need only prove that the defendant knew the wildlife was, in some fashion, taken, possessed, transported, or sold illegally. [FN249]
C. Other Notable Features of the Lacey Act
1. Disclaimer Provision
The Lacey Act expressly provides that it does not repeal, modify, or supersede Indian treaty rights or federal laws (except certain earlier provisions of the Lacey Act that were specifically repealed by the 1988 amendments), nor change state or tribal power to regulate the activities of persons on Indian reservations. [FN250] Defendants sometimes use this disclaimer section to argue that the Lacey Act, if applied to their situation, would modify or supersede an underlying law or abrogate Indian treaty rights. [FN251] InUnited States v. Cameron, [FN252] for example, an Alaskan commercial fisherman who violated the catch limits set by federal Halibut Act [FN253] regulations argued that theLacey Act criminalized conduct that is civilly regulated by the Halibut Act, thereby superseding or modifying a federal statute. [FN254]
The court disagreed, relying on a prior case for the proposition that two statutes can govern the same conduct without running afoul of the Lacey Act's disclaimer provision, so long as the underlying law does not reserve exclusive control over the conduct at issue, which the Halibut Act does not. [FN255] The court found this interpretation consistent with congressional intent that theLacey Act should strengthen and support existing wildlife laws. [FN256] The court said:
(T)he Act must be applied to conduct that is also regulated by an existing treaty, state or federal law, regulation or tribal law. The grand purpose of fish, wildlife, and plant protection by the federal government would be severely dissipated by an exaggerated reading of the disclaimer provision. [FN257]
2. Transshipment Exception
The Lacey Act does not apply to legally taken wildlife that is shipped through a state that prohibits the possession of the wildlife, as long as the wildlife is destined for a location where its possession is legal. [FN258] This exception is narrow and does not, for example, provide a defense where the wildlife has been unlawfully killed in one state and shipped to a second state that does not prohibit its possession. [FN259]
3. Significant Terms and Definitions
The term "taken" is defined to include capture, killing, or collection, [FN260] a more restrictive definition than that found in most other wildlife laws. For example, the Marine Mammal Protection Act defines "take" to include "harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill." [FN261] The ESA definition of "take" includes "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." [FN262] Theoretically, the Lacey Act's restrictive definition of "taken" might limit the types of underlying violations that could trigger a Lacey Act charge.
For example, if the operator of an aerial sightseeing service guided tourists on trips that "harassed" or "pursued" endangered wildlife, this action would be considered a "taking" under the ESA. [FN263] However, such an ESA violation could not be used to trigger a Lacey Act charge, because the wildlife would not have been taken under theLacey Act's definition. [FN264]
The Lacey Act's restrictive definition of "taken" probably does not reduce the number of potential cases charged, however, because it is difficult to see how wildlife could be imported, exported, bought, sold, etc., as prohibited by the Act, unless it has been actually captured, killed, or collected.
The Lacey Act broadly defines "transport" to mean "move, convey, carry, or ship by any means, or to deliver or receive for the purpose of movement, conveyance, carriage, or shipment." [FN265] Interstate transport of wildlife has been found to include the mere placement of wildlife into the stream of interstate commerce, even if the wildlife never actually crosses a border. In United States v. Gay-Lord, [FN266] for example, a North Carolina defendant purchased from undercover agents fish that had been taken in Virginia in violation of Virginia law. [FN267]
The defendant intended to market the fish to restaurants in New York and Maryland, and he sold the fish to a local seafood company that he knew would transport the fish from his state to those markets. On appeal, the defendant argued that the undercover agents had improperly supplied the interstate commerce element themselves by bringing the fish from Virginia to North Carolina. [FN268]
The Fourth Circuit disagreed, holding that the defendant's own actions satisfied the interstate commerce element because when he sold the fish to the seafood company he "knew that the rockfish would be transported in interstate commerce and took the steps that began their travel to interstate markets." [FN269] Thus the defendant was found to have transported the fish in interstate commerce merely by delivering them to a company that subsequently shipped them to another state. [FN270]
Similarly, the Ninth Circuit held in United States v. Atkinson [FN271] that by arranging to ship deer carcasses to hunters' home states, the defendant "transported" the wildlife in interstate commerce. [FN272] These cases imply that the transport of wildlife in interstate commerce may be accomplished by such preliminary steps as checking wildlife on an airplane or delivering the wildlife to an individual or business for shipment to another state.
The terms "sale" and "purchase" were not defined in the Lacey Act until 1988. As a result, courts disagreed as to whether the purchase or provision of professional guiding services on hunts where hunters violated bag limits or used illegal licenses amounted to a sale of wildlife. The Senate stated in 1981 that the term "sale" should be construed to include the provision of guiding services for an illegal wildlife hunt. [FN273]
The Fifth Circuit adopted this interpretation four years later in United States v. Todd, [FN274] affirming the Lacey Act convictions of two men who had guided illegal airborne hunts and holding that their provision of guiding services constituted a sale of wildlife. [FN275] Two years after Todd, however, in United States v. Stenberg, [FN276] the Ninth Circuit disagreed.
Noting that criminal statutes must be construed strictly, and deciding that an ordinary person would not interpret the word "sale" to include the provision of guiding services, the Ninth Circuit refused to apply that definition to the term, notwithstanding the Senate's 1981 comments. [FN277] Three years after Stenberg, the Tenth Circuit also refused to find that the provision of guiding services was a sale of wildlife. [FN278]
Congress ended the confusion by amending the statute to make the provision or acquisition of guiding services and illegal hunting licenses a sale or purchase of wildlife. [FN279] The Department of Justice and the U.S. Fish and Wildlife Service both supported this amendment, noting in testimony that "guiding, outfitting, and transportation services related to hunting have become a substantial commercial enterprise." [FN280]
Subsection (4) provides that a mere attempt to import, export, transport, sell, receive, acquire, or purchase illegal wildlife is a completed offense. [FN281] "Attempt" is not defined in the Act, but is subject to interpretation by using its usual definition within the context of a criminal charge. [FN282]
The Lacey Act defines the term "import" to include any landing of wildlife in the United States "whether or not such landing, bringing, or introduction constitutes an importation within the meaning of the customs laws of the United States." [FN283] Congress made this distinction to permit the seizure and forfeiture of illegal wildlife being shipped through the United States, as well as to allow for seizures at the time of entry, rather than waiting until wildlife quarantined or held under bond is released and thus "imported" according to customs law. [FN284]
D. Elements of Felony and Misdemeanor Violations
Except in cases where tainted wildlife has been imported or exported, the language of subsections 3373(d)(1) and (d)(2) must be read in conjunction with the language of section 3372 in order to adduce all the elements necessary to prove a Lacey Actviolation, and to determine whether a misdemeanor or felony violation has occurred. [FN285] Subsections 3373(d)(1) and (d)(2) incorporate the prohibited trafficking acts of section 3372, except for the marking and labeling requirements found in subsections 3372(b) and (d).
A violation of the marking and labeling subsections results in penalties discrete from those for trafficking crimes. The elements of two types of felony violations, which can be loosely described as import/export felonies and other trafficking felonies, are described in subsection 3373(d)(1). The elements of misdemeanor trafficking violations are described in subsection 3373(d)(2).
1. Elements of Import/Export Felony Trafficking Violations
Subsection 3373(d)(1)(A) provides that any import or export of wildlife in violation of section 3372 is a felony if the accused knows that the wildlife was taken, possessed, transported, or sold in violation of some underlying law. [FN286] Thus, the government must establish the following elements beyond a reasonable doubt to prove a felony trafficking violation involving the import or export of wildlife: [FN287]
1. The wildlife was taken, possessed, transported, or sold in violation of some valid underlying law or regulation;
2. The defendant knew the wildlife was taken, possessed, transported, or sold in violation of some law or regulation; and
3. The defendant knowingly imported or exported the wildlife, or attempted to do so. [FN288]
Thus, for example, if a person attempts to enter the United States with a specimen of wildlife he knowingly obtained in violation of a foreign law, he would be guilty of aLacey Act felony regardless of the wildlife's market value and without the need to prove any sale or purchase of the wildlife.
2. Elements of Other Felony Trafficking Violations
Cases that do not involve import or export are covered by section 3373(d)(1)(B). This subsection requires the government to prove the following elements beyond a reasonable doubt in order to obtain a conviction:
1. The wildlife was taken, possessed, transported, or sold in violation of a valid underlying law or regulation;
2. The defendant knew the wildlife was taken, possessed, transported, or sold in violation of some law or regulation;
3. The defendant was engaged in conduct involving the sale or purchase, attempt to sell or purchase, offer to sell or purchase, or intent to sell or purchase the wildlife;
4. The defendant knowingly [FN289] committed or attempted to commit [FN290] a transport, sale, receipt, acquisition, or purchase of the wildlife, fish, or plant; and
5. The wildlife had a market value in excess of $350.
Subsection 3373(d)(1)(B) thus adds two elements needed for proof of a felony violation not found in import/export cases. First, the prohibited conduct in subsection 3372(a) must be committed in the context of commercial activity. Second, the market value of the wildlife must exceed $350. If one of these two factors is not present, the violation is a misdemeanor. [FN291] Thus, in the hypothetical case of a person who kills an elk in violation of Montana law without the use of a paid guide and transports the animal to another state, no felony violation has occurred absent proof of some commercial activity and wildlife market value in excess of $350. However, if the same hunter pays $500 for the services of a guide, both the commercial conduct element and wildlife market value element are satisfied, and a felony has been committed.
3. Elements of Misdemeanor Trafficking Violations
Subsection 3373(d)(1)(B) provides a misdemeanor sanction for any negligent violation of the Act. [FN292] Like import/export felony violations, it requires neither sale/purchase activity nor a threshold wildlife market value. The elements of a Lacey Act misdemeanor trafficking violation are:
1. The wildlife was taken, possessed, transported, or sold in violation of a valid underlying law or regulation;
2. In the exercise of due care, [FN293] the defendant should have known the wildlife was taken, possessed, transported, or sold in violation of some law or regulation; and
3. The defendant knowingly committed or attempted to commit [FN294] an import, export, transport, sale, receipt, acquisition, or purchase.
A misdemeanor trafficking violation may be considered a lesser-included offense of a felony violation. In United States v. Hansen-Sturm, [FN295] the defendant was charged with a felony Lacey Act violation but convicted of a misdemeanor after the jury was instructed that the "due care" violation was a lesser-included offense of the felony. The defendant appealed, arguing that a negligent act could not be a lesser-included offense of an intentional act. [FN296] The Ninth Circuit disagreed, stating, "Whatever the merits of the abstract argument, it is established in the criminal law of this country that a negligent state of mind does qualify as a lesser element of an intentional state of mind." [FN297] The court held further that a negligent state of mind is sufficient to uphold a charge of conspiracy to violate the Lacey Act. [FN298]
E. Penalties Provided By The Lacey Act
1. Civil Fines
A civil fine of up to $10,000 may be imposed for a negligent violation of the trafficking prohibitions of 3372(a) or a knowing violation of the fraudulent marking prohibitions of subsection 3372(d). [FN299] However, if the wildlife is worth less than $350 and the offense involves only the transportation, acquisition, or receipt of the tainted fish, wildlife, or plants (i.e., no import/export or commercial activity), the fine may not exceed $10,000 or the maximum fine provided by the underlying law, whichever is less. [FN300] Violation of the marking requirements set forth in subsection 3372(b) can result in a civil fine of up to $250. [FN301]
2. Criminal Sanctions
Congress recently reclassified all federal criminal violations and increased their fines. [FN302] As a result, the maximum prison terms provided for in the Lacey Act are accurate, but the maximum fines have been increased, and are found in a different section of the U.S. Code. Lacey Act violations under subsections invoking the one-year maximum penalty are now classified as Class A misdemeanors, carrying a maximum penalty of one year incarceration and maximum fines of $100,000 for individual violators and $200,000 for organizational violators. [FN303] Lacey Act violations under subsections invoking the five-year maximum penalty are now considered Class E felonies, [FN304] punishable by a maximum penalty of five years incarceration [FN305] and maximum fines of $250,000 for individual violators and $500,000 for organizational violators. [FN306]
3. Permit Revocation
The Departments of the Interior, Commerce, and Agriculture, through their representative agencies, issue permits for hunting, fishing, and the import and export of wildlife, fish, and plants, as well as permits for the operation of wildlife quarantine facilities, rescue centers, and other similar facilities. [FN307] The Lacey Act empowers these departments to revoke any permit, license, or stamp (except a permit issued pursuant to the Magnuson Fishery Conservation and Management Act [FN308]) possessed by anyone who has been convicted of a felony or misdemeanor Lacey Act violation. [FN309]
a. Of Wildlife Involved in a Violation
The Lacey Act authorizes the forfeiture of fish, wildlife, or plants that are imported, exported, transported, sold, received, acquired, or purchased contrary to the trafficking or fraudulent marking provisions of section 3372, or any regulation issued pursuant to those parts of the statute. [FN310] These forfeitures are authorized on a strict liability basis; the additional culpability elements for a civil or criminal violation need not be proved. [FN311] This means that elements such as market value, commercial conduct, or the mental state of an accused do not have to be proved to obtain wildlife forfeiture. No "innocent owner" defense can defeat a wildlife forfeiture, and no other civil or criminal action need be filed in conjunction with the forfeiture action. [FN312]
However, wildlife involved in a violation of the marking requirements of subsection 3372(b) is not subject to forfeiture. [FN313] Thus, a wildlife shipment that has not been marked or labeled would not be subject to forfeiture, whereas a wildlife shipment for which false documents have been made or submitted may be forfeited. [FN314]
b. Of Vessels, Vehicles, Aircraft, and Equipment Involved in a Violation
Vessels, vehicles, aircraft, and other equipment used to aid in the unlawful import, export, transport, sale, receipt, acquisition, or purchase of fish, wildlife, or plants may also be forfeited in certain circumstances. [FN315] First, forfeiture may occur only after a felony conviction involving the actual or intended sale or purchase of fish, wildlife, or plants. [FN316] Second, the "innocent owner" defense can be invoked; to accomplish forfeiture, the government must prove the owner of the item knew or should have known it would be used to aid in the violation at the time of its use in the violation. [FN317]
c. Procedural Issues
The Lacey Act incorporates the forfeiture provisions and procedures of the U.S. customs laws. [FN318] Once the government establishes probable cause that wildlife has been involved in a violation of the Lacey Act, the burden of proof shifts to the claimant to prove a defense to the forfeiture. [FN319] Incorporation of these customs provisions, also accomplished in other wildlife statutes, [FN320] limits administrative forfeitures to property valued at $10,000 or less, and allows property owners to employ standard remission and mitigation procedures in response to forfeiture proceedings. [FN321] Investigating agents are empowered to seize and hold forfeitable wildlife or other property pending the institution of a forfeiture action. [FN322] Wildlife or property subject to forfeiture may also be allowed to remain with the owner if an appropriate bond is posted promising it will not be disposed of prior to resolution of the forfeiture action. [FN323]
IV. COMMON ISSUES IN LITIGATION
A. Predicate Law Requirements
As noted above, the Lacey Act prohibits certain actions involving wildlife that has been taken, possessed, transported, or sold in violation of a state, federal, foreign, or Indian tribal law or regulation. Litigants occasionally contest the underlying law or regulation, arguing that it is unconstitutional or insufficiently wildlife-related to support a Lacey Actcharge.
1. Wildlife Relatedness
The Lacey Act defines its predicate laws, i.e., any "law, treaty, regulation and Indian tribal law," as "laws, treaties, regulations or Indian tribal laws which regulate the taking, possession, importation, exportation, transportation or sale of fish or wildlife or plants." [FN324] But how focused on wildlife regulation must the predicate law be to satisfy this definition? The question of whether the underlying law has a sufficient nexus to wildlife protection is one of law, to be decided by the court. [FN325] The government bears the burden of establishing that wildlife protection is one of the purposes of the underlying law. [FN326]
In United States v. Molt, [FN327] the Third Circuit considered a case in which reptiles were smuggled into the United States after having been transported in violation of Fijian customs laws and certain New Guinea regulations. [FN328] The defendant argued that the Fijian and New Guinea statutes were not sufficiently wildlife-related to support a Lacey Act charge. The court found that the Fijian customs statute was "merely a revenue law" and rejected the Lacey Act charges based on its violation. [FN329] But it found that the New Guinea law, which made specific reference to "fauna," contemplated protection "for wildlife other than the conventional products of commercial agriculture and fisheries," and held that the law was sufficiently wildlife-related to ground the Lacey Act counts based on it. [FN330]
In the 1981 amendments to the Lacey Act, the Senate stated that while the term "any law . . . or regulation" is not intended to include laws that have no relation to wildlife, the Molt interpretation was too restrictive. [FN331] Citing hunting laws as an example of statutes that have both revenue and wildlife protection purposes, the Senate stated that a predicate law, treaty, regulation or tribal law that has wildlife protection as one of several purposes is sufficient to ground a Lacey Act charge.
A few federal fisheries laws are specifically precluded from use as predicate laws inLacey Act cases [FN333] due to a desire by Congress to avoid duplication of those laws' regulatory schemes. [FN334]
2. Constitutional Issues
Litigants frequently seek dismissal of Lacey Act charges on constitutional grounds. Such arguments generally take one of two forms: challenges to the constitutionality of a predicate law used to ground the Lacey Act charge, or to the constitutionality of the Lacey Act itself.
a. Constitutionality of the Predicate Law
Because the Lacey Act incorporates the substantive elements of the predicate laws used to ground its violations, constitutional attacks on those predicate laws and regulations are occasionally used and occasionally succeed. For example, in Hughes v. Oklahoma, [FN335] a defendant was convicted of Lacey Act charges after exporting minnows in violation of an Oklahoma law. He argued successfully that the predicate Oklahoma statute violated the Commerce Clause of the U.S. Constitution because the state had not attempted to use less discriminatory means to achieve the conservation purposes of the statute. [FN336] But in United States v. Doyle, [FN337] a defendant convicted of Lacey Act charges after acquiring illegally wild-caught falcons unsuccessfully argued that the underlying Montana law prohibiting capture was impermissibly vague. [FN338]
Similarly, in Maine v. Taylor, [FN339] the defendant was convicted of violating the Lacey Act by transporting 158,000 "golden shiners" into Maine in violation of that state's law. [FN340] He argued that the Maine law prohibiting such trade violated the Commerce Clause by impermissibly regulating the flow of interstate commerce in baitfish. [FN341] The state argued that even if the law were unconstitutional, Congress had consented, through the language of the Lacey Act, to the use of flawed predicate laws in Lacey Act prosecutions. [FN342] After examining the statutory language and legislative history of the Lacey Act, the Court found no "unmistakably clear" intent on the part of Congress to remove state wildlife laws and regulations from the reach of the Commerce Clause. [FN343] The Court then analyzed the purpose of the law, its discriminatory effect, and available alternatives, ultimately concluding that the law was constitutionally valid. [FN344]
The decisions in Hughes, Doyle, and Taylor [FN345] illustrate that Lacey Act charges are only as valid as the state laws or regulations that support them. Those laws must stand on their own when attacked on constitutional grounds.
b. Constitutionality of the Lacey Act
Constitutional attacks on the Lacey Act itself have relied primarily on delegation and vagueness arguments. Several litigants have suggested, for example, that by incorporating state, tribal, or foreign laws, the Act unconstitutionally delegates to other legislative bodies Congress's power to enact federal law. [FN346] In United States v. Lee, several defendants were convicted of Lacey Act violations after importing salmon taken in violation of a Taiwanese regulation. [FN347] They argued that by making the provisions of a foreign law an essential element of a federal violation, Congress had delegated its legislative powers to a foreign government in violation of the U.S. Constitution. [FN348]
The Ninth Circuit rejected this argument, as had four other circuits, distinguishing the assimilation of a foreign law from the use of a foreign law as a trigger for the Lacey Act. [FN349] In prosecutions under the Lacey Act, the government does not assimilate foreign law, the court said, but merely looks to see if the foreign law has been violated and, if so, applies the Lacey Act, not the procedures or penalties of the foreign law. Considered in this manner, the Lacey Act does not delegate power to foreign governments, and therefore does not violate Article I of the Constitution. [FN350]
The Lee defendants also argued that the Lacey Act is impermissibly vague because, by failing to list the specific foreign laws that may be used as predicates, it does not provide reasonable notice of what conduct is prohibited. The Ninth Circuit had rejected this argument in a Lacey Act civil forfeiture case three years earlier, [FN351] but the Leeappellants argued that the greater penalties associated with a criminal violation warranted stricter analysis of the vagueness issue. [FN352]
The court responded by pointing out that, in contrast to the Lacey Act's forfeiture provisions, criminal violations required the government to prove intent, i.e., that the defendant knew or should have known that an underlying law had been violated. [FN353] It cited legislative history indicating that these scienter requirements were added by Congress specifically to avoid the possibility that a reasonable person unaware of the predicate law would be convicted of a criminal violation. [FN354] Rejecting the vagueness argument, the Ninth Circuit concluded that the intent element prevents the Act from trapping the unwary innocent. [FN355]
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