Across the globe, populations of elephants, rhinos, tigers, and other wild animals have been decimated as poachers, organized criminal syndicates, terrorist organizations, and corrupt officials seek to capitalize on the growing demand for their ivory, horns, and carcasses. By recent estimates, there are only 3,200 tigers and less than 30,000 rhinos left in the wild, with many subspecies extinct or at the brink of extinction. Combined with a loss of up to 30,000 elephants a year out of an estimated 500,000 remaining worldwide, we may soon see the loss of these great species within the next decade.
The United States recently announced a series of measures aimed at protecting endangered and vulnerable species from the growing risk of extinction at the hands of poachers, traffickers, and consumers. On February 11, 2014, the White House released its National Strategy for Combating Wildlife Trafficking and announced a ban on the commercial trade of ivory. Once implemented, these measures could amount to the most significant efforts by the U.S. government to combat the illegal wildlife trade within the United States and abroad in over two decades.
While China and other southeast Asian countries represent the primary source of demand, it might be surprising to know the United States is actually considered the second largest market for wildlife products in the world. Although international trade in ivory products is generally outlawed under the Endangered Species Act, 16 U.S.C.A. §§ 1531 to 1543, which implements the 1974 Convention on International Trade in Endangered Species (CITES), these restrictions are often times evaded (legally and illegally) under exceptions for trade in “antiques” (100 years and older) and permissible domestic ivory trade.
For example, as noted by the U.S. Fish and Wildlife Service (FWS), it has been permissible under US law to:
- Import unworked African elephant ivory (i.e., raw tusks) as part of a lawfully taken sport-hunted trophy for which appropriate CITES permits are presented
- Import and export worked African elephant ivory that meets the requirements for an “antique” under the ESA (with CITES documentation)
- Export ivory that qualifies as “pre-Act” under the ESA and “pre-Convention” under CITES
- Sell within the U.S. African elephant ivory lawfully imported into the U.S. as “antique” under the ESA or before the 1989 import moratorium under the African Elephant Conservation Act (AECA).
- Sell legally acquired African elephant ivory within the U.S. unless restricted by “use after import” limitations associated with items imported after the listing of the species under CITES or unless prohibited under state law.
Going forward, however, international and interstate trade in elephant ivory will be severely limited to primarily antiques, while intrastate sale in ivory will be generally limited to ivory imported prior to 1990 for African elephants and 1975 for Asian elephants. In all cases, the burden of proof to demonstrate that the ivory is compliant will now be on the buyer/seller.
Under the US Fish and Wildlife Service’s proposed regulatory changes, the following activities will be prohibited:
- Commercial import of African elephant ivory
- Export of non-antique African and Asian elephant ivory (except in exceptional circumstances as permitted under the ESA)
- Interstate commerce (sale across state lines) of non-antique African and Asian elephant ivory (except in exceptional circumstances as permitted under the ESA)
- Sale, including intrastate sale (sale within a state), of African and Asian elephant ivory unless the seller can demonstrate that the ivory was lawfully imported prior to listing in CITES Appendix I (1990 for African elephant; 1975 for Asian elephant) or under a CITES pre-Convention certificate or other exemption document
Imports of African elephant ivory will be limited to certain items and purposes where the ivory item will not be sold (i.e. law enforcement, scientific purposes). Imports of sport-hunted trophies of African elephants will be limited to two trophies per hunter per year.
The proposed regulatory changes will likely take place over the course of the next year, and include: (1) issuance of Director’s Order that will provide guidance to Service officers on enforcement of the existing 1989 AECA moratorium, and clarify the definition of “antique” (mid-February 2014); (2) a proposed or interim final rule to revise the 1989 AECA moratorium and create regulations under the Act in the general wildlife import/export regulations, including measures to limit sport-hunting of African elephants (June 2014); (3) a proposed or interim final rule to revise endangered species regulations to provide guidance on the statutory exemption for antiques (June 2014); (4) a proposal to revoke the ESA African elephant special rule (April 2014); and (5) finalize revisions U.S. CITES regulations, including the “use-after-import” provisions in (February 2014).
While the proposed changes severely restrict ivory sales, they nonetheless leave some room for trade, particularly in the intrastate market. Accordingly, states are also seeking to impose additional restrictions. In New York State, the largest market for illegal wildlife products in the US, Assemblyman Robert Sweeney is proposing to ban the sale of all ivory products, even those legal under federal law. Other states may be inclined to follow suit.
The National Strategy for Combating Wildlife Trafficking – while too detailed for summary here – seeks to implement three strategic priorities: (1) strengthening domestic and global enforcement; (2) reducing demand for illegally traded wildlife at home and abroad; and (3) strengthening partnerships with international partners, local communities, NGOs, private industry, and others to combat illegal wildlife poaching and trade. Combined with measures to be adopted under the commercial ivory ban, there is increased hope for vulnerable and endangered wildlife.
These issues are front and center this month as world leaders and conservation leaders gather at the London Conference on Illegal Wildlife Trade 2014 on February 13. The conference seeks to help eradicate illegal wildlife trade and better protect the world’s most iconic species from the threat of extinction. DLA Piper attorneys have been working closely on this issue, and recently produced a ten-country report assessing gaps in domestic legislation, judicial capacity, and institutional capacity to combat wildlife trafficking. As the world reacts to this growing threat, there remains much to be done, but also new foundations for hope.
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This blog post is co-authored by Andrew Schatz.