Normally, when we think of smuggling, we think of drugs or guns or maybe precious stones, gold, or silver. There is a federal statute that is frequently used to target the smuggling of endangered species of plants and animals, and that statute is named the Lacey Act, 16 U.S.C. 3372. The Lacey Act is more than a mere smuggling statute, however. Passed in 1900, it is the oldest statute designed to protect wildlife. Basically, it makes trafficking in fauna (fish or wildlife) or flora (plants) or any parts thereof a violation of state fish or game laws, other federal statutes, Indian tribal law, foreign statutes and treaties, and a federal felony punishable by up to five years in prison per count.
The statute has been used to prosecute everyone from individuals who violated state game laws to major corporations that imported timber from overseas. The case of United States v. Li provides some insight into the jurisdictional reach of the statute. The defendant in that case, Zhifei Li, owned a company that smuggled rhinoceros’ horns from Africa to Shandong, People’s Republic of China. There, the horns were carved into fake antiques and sent to the United States for sale. Undercover U.S. Fish and Wildlife agents lured Li to the United States where he was arrested for violating the Lacey Act. After pleading guilty, in May of 2014, Li was sentenced to 70 months in prison and forfeited $3.5 million in proceeds from the sale of the horn.
Commercial Fishing & The Lacey Act
Commercial fishermen are also frequently the subject of Lacey Act investigations and prosecutions. Under the Magnuson-Sevens Fishery Conservations and Management Act, 16 U.S.C. 1801 et. seq., The National Oceanographic and Atmospheric Administration (NOAA) is tasked with developing management plans for U.S. fisheries, including the establishment of quotas for each species of fish. These quotas are then used by federal, state, and tribal authorities to set limitations on fish commercial fishermen may keep. Violations of these rules constitute violations of the Lacey Act.
Endangered Species & The Lacey Act
The Lacey Act frequently arises in prosecutions involving endangered species. There are two primary laws involving the endangered species: the Endangered Species Act (ESA), 16 U.S.C. 1531 et. seq. and the Convention on Trade in Endangered Species (CITES). The ESA is a complicated statute with multiple regulations and court decisions. Battles over whether a particular species should be listed or de-listed as endangered are common. CITES, if anything, is more complicated. There are other statutes that protect certain animals, whether they are endangered or not. The Marine Mammals Protections Act (MMPA), 16 U.S.C. 1361, as its name implies, generally protects whales, walruses, seals, and a variety of other animals, including polar bears, which may or may not be endangered. There is an exception in the MMPA for certain indigenous groups who are allowed to hunt and kill some marine mammals.
The purpose of this article, however, is to explain all of the laws and regulations that determine the protected or unprotected status of animals. To do so would require a book. Further, there are state laws and international treaties that provide protection to a host of animals. The important thing to remember, however, is that a violation of any of these statutes can constitute a violation of the Lacey Act.
Plants, Wood & The Lacey Act
When we think of the ESA, we tend to think of cute animals, but the Act also applies to vegetation and other living organisms like coral. Two of the more interesting Lacey Act prosecutions involving plants involved the importation of lumber from overseas. Those involved in the importation of lumber must understand the ESA and CITES as they apply to a particular species of wood that is being imported.
In United States v. Gibson Guitar in the early 2010s, Gibson was investigated for the importation of ebony lumber from Madagascar and rosewood lumber from India. It is not clear that either of these species were endangered; however, laws in Madagascar prevented the harvesting of ebony in order to limit the effects of deforestation. Eventually, Gibson entered into an agreement with the Department of Justice wherein it agreed to implement a compliance program to ensure Lacey Act compliance and paid a civil penalty of approximately $300,000.
Another Lacey Act case involving the importation of lumber was United States v. Lumber Liquidators, a case that resulted in the company being convicted and sentenced to pay over $13 million in fines, community services payments and forfeited assets. Lumber Liquidators, it appears, had sourced lumber products from a Russian lumber broker. The lumber itself apparently came from the Russian Far East in forests needed by the Siberian tiger to survive. The harvesting of this timber degraded the habitat and imperiled the tiger thereby violating the Lacey Act. It is noteworthy that the lumber imported was not itself endangered, but rather, was part of the ecosystem whether the tigers lived.
These cases demonstrate that the importation of plants or lumber can be extremely dangerous. Organizations wishing to involve themselves in this trade must be cautious about how they proceed, and should they find themselves the subject of an investigation, retain experienced counsel as quickly as possible.
Lacey Act regulations also require the proper labelling of animals or animal parts when imported to or sold in the United States. Often times, an individual or a company may “mis-label” a product to avoid CITES, Magnuson-Stevens, or some other limitations. People involved in these schemes often do not understand the seriousness of a “paperwork” violation arguing that it was simply a paperwork mistake. It would be a mistake to believe that the government does not take its “paperwork” seriously.
The case of United States v. George Norris is frequently cited as an example of overcriminalization. Norris was an elderly retiree who had a significant interest in orchids. Eventually, he opened a part-time business importing and selling orchids. As his business grew, Norris began to visit various locations throughout the world collecting and selling orchids. Orchids, however, are sometimes protected under the CITES Treaty which provides for different classifications of endangered or threatened species, with different import requirements, based upon a particular species status in a particular country. Thus, a particular type of orchid may be protected in one country but not in another. However, even endangered species that are “artificially propagated” may be imported into the United States. When an orchid is imported into the United States, it must have a CITES certificate indicating its proper CITES classification.
Shortly after arriving home from an orchid collecting trip to Peru, at least six heavily armed special agents of the U.S. Fish and Wildlife Service entered Norris’ home and forced him and his wife to sit at their kitchen table as they ransacked the home looking for evidence of a crime.
The crime in question? The Lacey Act.
This began a long and painful prosecution of Norris that ultimately resulted in a 17-month prison sentence. It turns out that he had the wrong import/export certifications.
While one could say that the government’s treatment of an elderly orchid collector was completely unreasonable, the lesson to be learned is that even a minor misunderstanding of the type of paperwork required can have serious ramifications.
There are other times when import/export documentation is altered for more nefarious purposes. In a case from the U.S. District Court for the Southern District of Florida, UpRiver Aquaculture, Inc. d/b/a “MKG Provisions, Inc.” (MKG) imported farm-raised salmon from Chile and then re-labelled it as wild caught salmon from Scotland. The obvious purpose for this re-labeling was to sell cheaper farm raised fish as more expensive wild caught fish. The Lacey Act prohibits this type of conduct (frequently referred to as “Seafood Fraud”). MKG was sentenced to a period of probation and a substantial fine.
In recent years, some political commentators have tended to minimize some criminal offenses as “process offenses” (False Statements, Perjury, Etc.) and other crimes as “paperwork offenses” (inaccurate corporate or tax filings). These crimes are serious, life altering offenses that destroy reputations, ruin businesses, and carry prison sentences and large fines. They must be taken seriously.
CONSPIRACY & THE LACEY ACT
As with most federal statutes, conspiracy to violate the Lacey Act is a separate criminal violations. What is a conspiracy? In the case of the Lacey Act, conspiracy is an agreement to violate the statute. To understand conspiracy in the context of a Lacey Act violation, it is useful to know a something about alligator snapping turtles, the subject of a recent Lacey Act conspiracy prosecution.
The alligator snapping turtle is a large, freshwater turtle weighing more than 100 pounds. They are native to the Southeast United States. For much of the last century, they have been heavily hunted for their meat; apparently, they make excellent turtle soup. As a result of the demand for their meat, alligator snapping turtle populations have declined throughout their range. They are not endangered, but they are protected throughout much of their range, including in Texas and Louisiana.
In 2017, three individuals, Travis Leger, Ricky Simon, and Jason Leckelt pled guilty to Conspiracy to violate the Lacey Act. Leger, Simon, and Leckelt travelled to Texas to capture alligator snapping turtles for transport and sale in Louisiana. During the course of the conspiracy, they captured 60 alligator snapping turtles and kept them in a pond in Louisiana. They had sold some of the turtles for up to $1,000 each. The agreement between the three men to violate the Lacey Act served as the basis for their guilty plea.
The Lacey Act is a very serious statute, with a substantial risk of government reach. It can be used to transform a minor state law violation into a federal felony. If you or your company are under investigation or charged with a violation of the Lacey Act, call us. We can help.