Robert S. Anderson [FN1]

Copyright (c) 1995 Public Land Law Review; Robert S. Anderson.  (Reprinted with Permission).

A. The Illegal Wildlife Trade

1. International Trade
2. Wildlife Trade in the United States

B. Investigation and Enforcement of Federal Wildlife Laws

1. Federal Wildlife Statutes
2. The Lacey Act

A. Original Passage in 1900
B. Early Litigation
C. The Black Bass Act of 1926
D. Amendments to the Lacey and Black Bass Acts: 1930-1952
E. 1969 Amendments to the Lacey and Black Bass Acts
F. 1981 Combination of the Lacey and Black Bass Acts
G. 1988 Amendments to the Lacey Act

A. General Features

1. Conduct Prohibited by the Act and Its Overall Structure
2. Coverage of Fish, Wildlife, and Plants 

B. Lacey Act Prohibitions 

1. Marking Offenses 

a. Failure to Plainly Mark or Label Containers of Fish or Wildlife
b. Preparing False Documents for Shipments of Wildlife, Fish, or Plants

2. Trafficking Offenses 

a. In General 
b. The Two-Step Violation Scheme
c. The Defendant's Connection to the 'Taint' 

C. Other Notable Features of the Lacey Act 

1. Disclaimer Provision 
2. Transshipment Exception 
3. Significant Terms and Definitions

a. Taken
b. Transport
c. Sale 
d. Attempt
e. Import

D. Elements of Felony and Misdemeanor Violations

1. Elements of Import/Export Felony Trafficking Violations 
2. Elements of Other Felony Trafficking Violations
3. Elements of Misdemeanor Trafficking Violations

E. Penalties Provided By The Lacey Act

1. Civil Fines 
2. Criminal Sanctions
3. Permit Revocation
4. Forfeiture

a. Of Wildlife Involved in a Violation
b. Of Vessels, Vehicles, Aircraft, and Equipment Involved in a Violation 
c. Procedural Issues

A. Predicate Law Requirements 

1. Wildlife Relatedness
2. Constitutional Issues

a. Constitutionality of the Predicate Law 
b. Constitutionality of the Lacey Act

3. The Lacey Act and Native American Rights

a. Predicate Violation of Tribal Law
b. Predicate Violation of Federal Law by Indians Claiming a Treaty Right
c. Predicate Violation of State Law by a Tribal Member

4. Other Issues 

a. Predicate Law/Regulation May Be Civil 
b. Foreign Regulations May Be Valid Predicate
c. Predicate Law's Statute Of Limitations Does Not Control 

B. Wildlife Market Value

I. INTRODUCTION

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.

A. The Illegal Wildlife Trade

The Lacey Act's importance is illustrated by the size of the global and domestic trade in illegal wildlife it is used to combat. [FN9] Trafficking in illegal wildlife occurs both internationally and domestically, resulting in the depredation of myriad wildlife species.

1. International Trade

According to the World Wildlife Fund, more than $10 billion in declared wildlife shipments is traded each year on the international wildlife market. [FN10] These shipments include approximately 25,000-30,000 live primates, 2-5 million live birds, 5-6 million live reptiles, 10-15 million reptile skins, 500-600 million live fish; 1,000-2,000 tons of raw coral, and many other types of wildlife and wildlife products. [FN11] The illegal component of this trade, though difficult to quantify because many shipments are successfully concealed from authorities, is estimated to account for $5 billion in annual profits worldwide. [FN12] The global trade in illegal wildlife generates more profits than illegal arms sales, [FN13] and constitutes a worldwide black market second in size only to the drug trade. [FN14]

Illegal international wildlife trafficking takes many forms. Shipments of illegally taken commercial fish are often landed on U.S. shores under a variety of fraudulent schemes. [FN15] Live specimens of protected wildlife, such as exotic birds, primates, mammals, fish, and reptiles, frequently enter the United States in intentionally mismarked or concealed shipments. [FN16] Wildlife parts such as elephant ivory, [FN17] the skins of endangered reptiles, tiger [FN18] and rhinoceros parts, [FN19] and sea turtle eggs, are smuggled both in commercial shipments and by individuals. These wildlife specimens and products feed a voracious market that runs from the traditional pet and hobbyist trade to more commercial outlets such as collectors, wildlife dealers, and manufacturers of clothing, handbags, boots, and medicinal preparations. [FN20] The illegal wildlife trade contributes to the decline of worldwide biodiversity, [FN21] is characterized by high mortality rates for live specimens, [FN22] and may foster the transmission of disease and the introduction of injurious pest species. [FN23]

2. Wildlife Trade in the United States

The United States is the largest player in this global marketplace, annually importing wildlife shipments worth an average of $773 million and exporting wildlife worth an average of $256 million since 1989. [FN24] These figures reflect only declared shipments; the General Accounting Office estimates that between $100 million and $250 million in illegal wildlife crosses U.S. borders each year in smuggled or fraudulently mismarked shipments. [FN25]

Recently, organized crime has made an aggressive entry into the illegal wildlife marketplace by using wildlife shipments to smuggle drugs. [FN26] Perhaps realizing that only seventy-four federal wildlife inspectors at eleven designated ports are specifically assigned to examine wildlife shipments, and that only about twenty-three percent of approximately 77,000 yearly wildlife shipments are actually inspected, [FN27] drug smugglers have increasingly used wildlife shipments bound for the U.S. to conceal their cargo. [FN28] For example, the Fish and Wildlife Service reports that more than one-third of all cocaine seized in the United States in 1993 was connected with wildlife importations. [FN29]

Cross-border trafficking, together with poaching, places wildlife indigenous to the United States at great risk. The gall bladders of American black bears, which are used in Asian medicine, [FN30] and reptiles prized by foreign collectors [FN31] are often shipped unlawfully from state to state, or exported to foreign markets. [FN32] The poaching and interstate sale of our nation's wildlife has reached epidemic proportions within many areas of the United States. [FN33] More than one hundred native species, including twelve listed as endangered or threatened, are routinely killed illegally within our national parks. [FN34] Professional guides sometimes assist in big-game poaching. [FN35] Wildlife in the United States is also commonly poached for commercial resale. [FN36]

B. Investigation and Enforcement of Federal Wildlife Laws

Various U.S. agencies investigate violations of federal wildlife laws, including the Fish and Wildlife Service, the Park Service, the National Marine Fisheries Service, the Bureau of Land Management, the Forest Service, and the Animal and Plant Health Inspection Service. [FN37] State wildlife officers also investigate violations of state wildlife laws, which sometimes develop into federal cases. [FN38] Alleged criminal violations of federal wildlife laws are referred by investigators to United States attorneys' offices for prosecution in federal courts. Partly because of the increasing number and complexity of such cases, the Wildlife and Marine Resources Section was created within the Department of Justice's Environment and Natural Resources Division in 1979. Prosecutors from the section consult with federal investigators and assistant U.S. attorneys who are involved in criminal wildlife investigations or litigation, and sometimes take the lead prosecutorial role in complex or unusual cases.

1. Federal Wildlife Statutes

In addition to the Lacey Act, several federal statutes prohibit trade in protected wildlife and wildlife parts. The Endangered Species Act (ESA), for example, provides misdemeanor penalties for unlawfully taking or trading in species listed as endangered or threatened under federal law. [FN39] The ESA also implements the Convention on International Trade in Endangered Species of Fauna and Flora (CITES), [FN40] the principal international treaty pertaining to wildlife trade, by prohibiting improper trade in species protected under that treaty. [FN41] The Migratory Bird Treaty Act (MBTA) [FN42] imposes a felony penalty on persons who buy, sell, or barter any specimen on the list of migratory bird species, [FN43] as well as a misdemeanor penalty for unlawfully killing any of those birds. [FN44] The Marine Mammal Protection Act prohibits the sale or purchase of marine mammals or their unworked parts. [FN45] The African Elephant Conservation Act prohibits the export of raw ivory from the United States and the import of raw or worked ivory in most circumstances. [FN46] The Bald and Golden Eagle Protection Act prohibits the killing, sale, or purchase of those raptors, providing a misdemeanor penalty for a first violation and felony penalty for subsequent violations. [FN47]

The most recently enacted wildlife trade statute is the Wild Bird Conservation Act. [FN48] This law acknowledges the habitat loss and high mortality rates associated with the capture and transport of wild exotic birds for the U.S. pet trade. [FN49] It establishes a temporary moratorium on the import of nearly all exotic birds and a scheme for certification of facilities through which captive-reared exotic birds may be imported. [FN50] Importing exotic birds in violation of the Wild Bird Conservation Act may result in misdemeanor or felony penalties. [FN51]

In addition to charges arising from violations of these wildlife laws, prosecutors may also file smuggling, conspiracy, tax, and even money laundering charges against those who traffic illegally in wildlife. [FN52]

2. The Lacey Act

The Lacey Act occupies a central position within this legal framework for three reasons. First, it applies to a wider array of wildlife, fish, and plants than does any other single wildlife protection law. Second, it provides for a longer potential term of incarceration than do most other wildlife laws containing felony provisions. Third, the scope of the acts it prohibits is broader than most other wildlife laws.

As a result, the Lacey Act is frequently used: More than 700 Lacey Act criminal counts were filed in U.S. federal courts during fiscal years 1993 and 1994. [FN53] These charges resulted in approximately 315 months of incarceration and the imposition of criminal fines and costs amounting to more than $1 million, along with many civil fines and forfeitures of property and wildlife. [FN54]

II. HISTORY AND DEVELOPMENT OF THE LACEY ACT

A. Original Passage in 1900

Iowa Congressman John Lacey first introduced the Lacey Act to the House of Representatives in the spring of 1900. [FN55] He intended the law to "enlarge the powers of the Department of Agriculture," [FN56] and gave it three primary purposes: (1) to authorize the introduction and preservation of game, song, and insectivorous wild birds, (2) to prevent the "unwise" introduction of foreign birds and animals, and (3) to supplement state laws for the protection of game and birds. [FN57] Although its coverage extended to animals, the Lacey Act was essentially a bird preservation and restoration measure designed to enhance and protect agriculture. Its language reflected Rep. Lacey's personal passion for the preservation of agriculturally beneficial birds and the eradication of harmful exotic species.

In comments on the House floor, Congressman Lacey told his colleagues about the agricultural damage that had accompanied the decline in bird populations. [FN58] He cited numerous examples of wildlife problems of the time: the extinction of the carrier pigeon, the serious depletion of grouse, prairie chicken, and buffalo populations, and the problems created by foreign species such as the English sparrow and the French pink flower. [FN59] Lacey listed the primary threats to bird populations as excessive hunting of game birds by market hunters, the introduction of harmful exotic species that displaced native populations, and the millinery industry, which at that time consumed millions of birds each year for the production of ladies' hats. [FN60]

Lacey's law authorized the Department of Agriculture to assist with the reintroduction of game birds and other wild birds where they had become locally scarce or extinct. [FN61] It prohibited the importation of the mongoose, fruit bat (then also known as "flying foxes"), English sparrow, starling, and any other animal designated "injurious" by the Department of Agriculture, [FN62] and required permits for most other wildlife imports. [FN63]

The original Lacey Act also addressed game poaching and wildlife "laundering," which had been fostered by limitations on state control over merchandise traveling in interstate commerce. Lacey illustrated these problems by describing two common scenarios to his colleagues in Congress. [FN64] First, it was common at that time for large numbers of game to be killed by poachers (known as market hunters or "pothunters" [FN65]) in one state, fraudulently mismarked to avoid detection, and shipped to another state for sale to the public. Once the pothunter had removed the game from its state of origin, that state lacked the jurisdiction necessary to prosecute him. When the unlawfully killed game entered a second state, the laws of that state were often unable to prohibit its sale, as all power to regulate interstate commerce was vested in the federal government. [FN66]

A second common problem involved local game killed during a state's closed season and sold under the guise of having been brought into the state from elsewhere. Lacey spoke of game sellers in New York who would hang a few verifiably imported Scottish grouse in their store windows and use them as a "fence" for the sale of illegally taken local grouse, which were apparently indistinguishable from the Scottish specimens. [FN67] Restrictions on state control over items traveling in interstate commerce frequently prevented a state from simply prohibiting the sale of all game during its closed season. [FN68]

The inability of state laws to address these scenarios stemmed from two legal doctrines considered valid at the time. Under the state ownership doctrine, states were considered to own the wildlife found within their borders and had the exclusive power to restrict the export of such wildlife. This doctrine, which began to percolate through Supreme Court case law in 1842, [FN69] was enunciated in the 1896 holding of Geer v. Connecticut. [FN70] The Geer Court was asked to determine the extent of a state's ability to control the transport of game killed lawfully within its borders. In its holding, the Court proclaimed that each state owns the wildlife within its borders in trust for the state's citizens, and has the right to control the taking and disposition of game in order to ensure conservation of a valuable food supply so long as such control has only an incidental effect on interstate commerce. [FN71]

Steady erosion of the state ownership doctrine finally resulted in the Supreme Court's complete rejection of the concept eighty-one years after Geer in Hughes v. Oklahoma. [FN72] Hughes was factually similar to Geer in that the Court was asked to consider whether Oklahoma's prohibitions on the export of native wild-caught minnows was permissible. Characterizing the idea of absolute state control over wildlife within its borders as a "19th century legal fiction," [FN73] the Court declared that constitutional challenges to state wildlife control laws henceforth would be analyzed according to the same general rules that applied to state regulation of other resources. [FN74]

The second doctrine that prevented direct state regulation of imported wildlife prior to the Lacey Act arose from a series of judicial decisions strictly construing the Commerce Clause to preclude state control over virtually any item that traveled in interstate commerce. [FN75] In 1897, for example, the Supreme Court declared that because liquor was a lawful item of interstate commerce, states could not control its importation or sale within their borders. [FN76] In another case of that period, the Court ruled that, despite a state's undisputed power to protect the health of its citizens, a state law placing restrictions on imported oleomargarine was invalid because it restricted interstate commerce. [FN77]

In 1900, with the state ownership doctrine still firmly in place, Lacey could not have proposed legislation placing the country's wildlife directly under the control of a federal agency. As Lacey explained to opponents on the House floor, his bill was not intended to be a "national game law, which, I think, would be unconstitutional," [FN78] but was intended only to augment state laws. He noted that "the authority of the National Government begins where the State authority ends." [FN79]

Lacey's law addressed the problems of market hunting, concealed interstate shipments, and game laundering in three ways. First, the Act criminalized both the delivery for shipment and the shipment of parts or bodies of "wild animals or birds" killed in violation of state law. [FN80] Second, relying on the Commerce Clause power, the Act required all interstate shipments of wildlife to be clearly marked and labeled. [FN81] Violation of these sections was a strict liability offense for the shipper of the game, while the "consignee" and "carrier" had to know the shipment was mismarked for criminal penalties against them to ensue. [FN82] If convicted, the maximum penalty for the shipper, the consignee, and the carrier was a $200 fine. [FN83] Third, rather than attempting to place "state-owned" wildife under direct federal control, the Act removed federal restrictions on the states' ability to regulate the sale of wildlife within their borders by subjecting all game animals and birds entering a state to the state's laws. [FN84] The language of this section was borrowed from an earlier federal statute that allowed "dry" states to regulate the possession and sale of liquor entering or passing through their jurisdictions. [FN85]

B. Early Litigation

The initial impact of the Lacey Act on state regulation of imported wildlife was somewhat mixed. In some early cases, prior interpretations of state law were held to withstand the apparently broadening power of the Lacey Act. In People v. Bootman, [FN86] for example, the state of New York had initially sought penalties exceeding $1 million against a defendant who possessed more than 47,000 imported game birds during New York's closed season. [FN87] At that time, a state law prohibited possession of game birds during the closed season regardless of their origin. [FN88] The defendant claimed that the relevant provisions of the state law, enacted prior to the Lacey Act, did not apply to wildlife killed in another state and transported into New York. [FN89] The New York court reluctantly agreed, stating that the recently enacted Lacey Act could have no effect on the interpretation of a pre-existing state law. [FN90] It added, however, that subsequent enlargement of the state law's provisions to explicitly prohibit possession of imported game during the closed season would likely require a different result in future cases. [FN91]

In other cases the Lacey Act was acknowledged, but was not relied upon. For example, in State v. Shattuck, [FN92] diners at a Minneapolis restaurant in December 1904 ordered and were served ruffed grouse. [FN93] The grouse had been killed in Wisconsin and imported to Minnesota, which prohibited the sale of ruffed grouse regardless of its origin. [FN94] The defendant restaurateur argued against application of the law to his grouse, claiming both a due process violation (the taking of his personal property) and an unconstitutional infringement on interstate commerce. [FN95] Reasoning that the exclusion of non-native game would be necessary to prevent fraudulent evasion of the state law (echoing Lacey's arguments on the floor of the House), and concluding that all wildlife within a state is property of the state, the Shattuck court held that the police power of the state allows regulation of wildlife without running afoul of constitutional issues. [FN96] Almost as an aside, the court noted that the newly enacted Lacey Act "eliminates all questions" regarding improper infringements on interstate commerce. [FN97]

In similar fashion, the Supreme Court addressed the authority of state laws over imported wildlife in a 1908 case that merely referred to the Lacey Act. [FN98] In New York ex rel. Silz v. Hesterberg, amendments to New York's game law, prohibiting the possession of imported game during the state's closed season, were challenged as unconstitutional takings of private property without due process and improper infringements of federal control over interstate commerce. [FN99] The Supreme Court rejected these arguments, approving the state law as a valid exercise of police power over state property with only an incidental effect on interstate commerce, and as necessary for the preservation of the game supply which, "in spite of laws passed for its protection, is rapidly disappearing from many portions of the country." [FN100] Having decided the issues on these grounds, the Court deemed it unnecessary to examine the Lacey Act's provisions. [FN101]

Other early courts relied directly on the Lacey Act in situations involving interstate shipments of wildlife. For example, in Cohen v. Gould, [FN102] 680 muskrat skins were shipped to Minnesota from Wisconsin, in violation of a Minnesota law prohibiting the possession of wildlife killed in violation of another state's laws. [FN103] The defendant argued that the Minnesota law interfered with interstate commerce. The state supreme court considered this issue only briefly, stating only that "it seems to be disposed of by an act of Congress the purpose of which is to prevent interstate commerce in furs which will aid the violation of state law for the conservation of wild life." [FN104] In People v. Fargo, [FN105] the question was whether the Lacey Act authorized state regulation of wildlife entering a state in the possession of a common carrier prior to its receipt by a consignee. [FN106] In Fargo, the president of the American Express Company was charged with violating a New York law prohibiting the transport of deer carcasses within the state during certain times of the year. [FN107] The carrier argued that the state law should not apply until the deer were delivered to a consignee. [FN108] The court agreed, noting that the Lacey Act gave effect to state laws "upon arrival" of the wildlife within the state, and that this language had been construed in analogous Wilson Act cases to restrict state regulation of liquor shipments that had not yet been transferred from a common carrier to a consignee within the state. [FN109]

The first direct interpretation of the Lacey Act came in 1910, when the Eighth Circuit was asked to consider procedural and constitutional challenges to four Lacey Act convictions of Paris Rupert, who attempted to ship dead quail in interstate commerce. [FN110] The Oklahoma territorial law at issue allowed the killing of quail between certain dates, but prohibited the export of quail from the territory at any time. [FN111] Although Rupert's quail were apparently killed during the open season, [FN112] Rupert was charged and convicted on two Lacey Act counts alleging the quail [FN113] had been killed illegally because they were killed "with the intent and for the purpose of being shipped and transported out of the territory" in violation of the territorial law. [FN114] Rupert was also convicted of two additional Lacey Act charges alleging his failure to clearly mark the boxes containing the quail. [FN115]

The Eighth Circuit first analyzed the language of the indictments to determine if they properly charged Lacey Act violations. The court reasoned (without resort to authority) that because territorial law prohibited the export of quail at all times, the killing of quail for the purpose of export constituted an unlawful killing, regardless of whether it occurred during the open season. [FN116] Thus, the court said, the Lacey Act's application to the transport of unlawfully killed game was properly triggered. [FN117]

Next, the court addressed the constitutionality of the territorial law's restriction on the export of game. Relying on the state ownership doctrine and the state's police power, the court concluded that game remains state property after it is killed and is subject to some state control even after it enters interstate commerce. [FN118] Finally, analogizing to a decision upholding the Wilson Act's application of state laws to liquor shipments, the court said: "(I)t surely follows that a congressional enactment like the Lacey act, which makes it a crime to carry out of the state that which can be and is lawfully prohibited by local or state laws, must be upheld." [FN119]

Decisions such as Cohen and Rupert illustrate that by the second decade of this century, both state power to regulate wildlife moving in interstate commerce and the Lacey Act's ability to supplement state wildlife laws were becoming well established, setting the stage for enactment of the Lacey Act's sister statute, the Black Bass Act.

C. The Black Bass Act of 1926

The original Lacey Act did not apply to fish. In 1926, Congress turned its attention to the overfishing of smallmouth and largemouth bass then occurring throughout the country. [FN120] Anglers prized these fish for their fighting ability, [FN121] but the cost of artificial propagation was prohibitive. [FN122] Bag limits set by each state had failed to prevent excessive catches, and commercial restrictions proved ineffective in preventing the illegal interstate transport of mismarked or concealed fish. [FN123] Congress was convinced that federal action was necessary to prevent the extinction of these species. [FN124]

The Black Bass Act [FN125] was fashioned after the Lacey Act in that it aimed to augment state laws by regulating and prohibiting certain interstate shipments of bass. It expanded the Lacey Act's provisions by prohibiting the transport of fish that had been sold, purchased, or possessed in violation of state or territorial law, [FN126] as well as those killed illegally. [FN127] Like the Lacey Act, it provided a $200 fine for violators, but added a maximum term of three months incarceration to the penalty scheme. [FN128] The Black Bass Act also applied to the acts of companies, partnerships, corporations, associations, and common carriers, rather than just individuals. [FN129]

D. Amendments to the Lacey and Black Bass Acts: 1930-1952

In 1930, the Black Bass Act was expanded to: 1) prohibit not only the transportation, but also the receipt for transportation of illegal bass; 2) include bass that had been "caught, killed, taken, sold, purchased, possessed, or transported" contrary to state law; 3) require accurate labeling of bass shipments; and 4) make all bass within a state subject to the state's laws, regardless of original packaging. [FN130] The new statute assigned enforcement of the Black Bass Act to designated employees of the Department of the Interior's Bureau of Sport Fisheries, [FN131] who were authorized to make arrests for violations committed in their presence, execute search warrants, and seize illegal bass, which could be forfeited following conviction. [FN132]

Amendments to the Lacey Act in 1935 mimicked many of the Black Bass Act's new provisions. [FN133] For example, the new Lacey Act applied to any "person, firm, corporation or association" that violated its provisions; targeted interstate shipments "by any means whatsoever," rather than only those shipments by common carrier; covered animals or birds "captured, killed, taken, shipped, transported, carried, purchased, sold or possessed" in violation of an underlying law; expanded predicate laws to include federal and foreign laws; penalized fraudulent marking of wildlife shipments, in addition to simple failures to mark; and raised the maximum penalty to $1,000 and imprisonment for six months. [FN134] Marking requirements were maintained in the new Act. [FN135] Enforcement of the Lacey Act was assigned to Department of Agriculture agents who, like agents enforcing the Black Bass Act, could make arrests for violations committed in their presence and could execute warrants for the seizure of illegal wildlife, [FN136] which was subject to forfeiture after conviction. [FN137]

In 1947, the Black Bass Act was expanded to cover all "game fish," as that term was defined in state laws. [FN138] During congressional hearings, an undersecretary of the Department of the Interior suggested that the Act be expanded to cover game fish taken illegally on lands under federal jurisdiction, such as national parks and Indian reservations. [FN139] Based on this request, [FN140] the statute was amended to cover game fish taken, transported, purchased, or sold contrary to state or "other applicable law." [FN141] In 1949, a provision was added to the Lacey Act prohibiting the importation of "wild animals or birds" under "inhumane or unhealthful conditions." [FN142] In 1952, the Black Bass Act was amended again to cover all fish, rather than just game fish. [FN143]

E. 1969 Amendments to the Lacey and Black Bass Acts

In 1969, reflecting America's growing awareness of environmental issues, Congress passed a bill that contained amendments to the Lacey and Black Bass Acts, as well as the nation's second version of an Endangered Species Act. [FN144] The new law worked a wholesale revision of the Lacey Act. [FN145] Coverage was expanded to include amphibians, reptiles, mollusks, and crustaceans; [FN146] the maximum penalty was increased to $10,000 and imprisonment for one year; the mental state required for a criminal violation was increased to "knowingly and willfully;" and civil penalties were expanded to apply to negligent violations, henceforth affecting those who knowingly violated "or in the exercise of due care should" have known they were violating the law. [FN147] Finally, birds covered under the Migratory Bird Treaty Act (MBTA) were removed from the Lacey Act because of concerns about duplication of, and confusion with, the MBTA's prohibitions on the import or export of those species. [FN148] The Black Bass Act was also amended to apply to interstate and foreign commerce and to penalize violators who know or should know of the illegal nature of the fish at issue. [FN149]

F. 1981 Combination of the Lacey and Black Bass Acts

In 1981, Congress again addressed the Lacey and Black Bass Acts, prompted by indications of a "massive illegal trade in fish and wildlife" perpetrated by "well organized large volume" criminal operations which generated substantial profits and "grim environmental consequences." [FN150] Noting that these statutes needed to keep pace with a fast-growing global trade in illegal wildlife, Congress recited the deficiencies in these laws and acted to correct them. [FN151] The Black Bass Act was repealed in its entirety, as were Sections 5, 43, and 44 of the 1969 Lacey Act, and the two laws were combined within Title 16 in a new statute called the Lacey Act Amendments of 1981. [FN152] The word "willful" in the 1969 Lacey Act had hampered enforcement after being interpreted as requiring proof that a defendant knew not only of the illegal nature of the wildlife, but also that his conduct violated the Lacey Act itself. [FN153] The new law discarded this "double intent" requirement, prescribing a criminal penalty for those who knowingly committed an act prohibited by the law and knew, or in the exercise of due care should have known, of the illegal nature of the wildlife at issue. [FN154]

The amendment restored coverage of migratory birds after Congress concluded that their elimination from the Act in 1969 had left many aspects of interstate commerce in these species unaddressed. [FN155] Coverage of indigenous plants was added as a result of concerns that illegal collecting activity was a threat to the survival of certain species. [FN156] The marking requirements of previous enactments were relaxed, in recognition of the hardships they had imposed on fur and fish shippers. [FN157] Strict liability forfeitures of illegal fish, wildlife, and plants were authorized, whereas forfeiture of equipment and vehicles used in the commission of an offense were authorized only after a felony conviction and if the owner was privy to the violation. [FN158] The maximum civil fine was raised to $10,000. [FN159] A bifurcated felony/misdemeanor criminal scheme was created, dividing the classification of offenses based on factors such as import/export activity, the mental state of the violator, commercial conduct, and the market value of the wildlife involved in the violation. [FN160] The maximum felony penalty was set at $20,000 and/or five years, while misdemeanor violations were punishable by $10,000 and/or one year. [FN161] The Lacey Act's enforcement provisions were also expanded, allowing federal wildlife agents to carry firearms, make warrantless arrests for felony violations, and execute search and arrest warrants. [FN162]

These changes were not unopposed. The National Rifle Association and Safari Club International, claiming to represent the interests of ordinary hunters, argued against inclusion of a felony penalty, elimination of the double intent requirement and the increased arrest and investigatory powers granted to Fish and Wildlife Service agents. [FN163] They warned that a stronger, more easily enforced Lacey Act would result in abusive investigations by the Fish and Wildlife Service and unfair convictions of law-abiding sportsmen. [FN164]

Proponents of a stronger Lacey Act included the National Wildlife Federation, International Primate Protection League, TRAFFIC, [FN165] Society for Animal Protective Legislation, International Association of Fish and Wildlife Agencies, and the Wildlife Management Institute. [FN166] In their testimony, these groups described the increasing pressures on global wildlife populations and the increasing volume of the illegal wildlife trade. [FN167] The very nature of these proponents indicated that the Lacey Act had shifted in importance from a domestic antipoaching statute to one that would address the problems of international trade. The TRAFFIC representative, for example, testified that a Uruguayan delegate to a recent CITES [FN168] convention noted the obligation of "rich nations to check the illegal trade at their end because relatively poor countries, like Uruguay, should not be expected to control their long and remote borders." [FN169] Supportive testimony also came from the Fish and Wildlife Service, the National Marine Fisheries Service, and the Department of Justice. [FN170] These agencies favored enhanced penalties because of their perception that prior sentences had not created a sufficient deterrent to wildlife traffickers whose profits and sophistication were continually growing. [FN171]

G. 1988 Amendments to the Lacey Act

Several changes were made to the Act in 1988. First, the language of subsection 3372(a)(1) was brought into conformity with that of subsections (a)(2) and (a)(3). [FN172] Prior to 1988, only the taking or possession of wildlife in violation of federal or tribal law had grounded a violation of subsection (a)(1), whereas (a)(2) and (a)(3) had applied to wildlife "taken, possessed, transported or sold" in violation of state or foreign law. [FN173] Congress amended subsection (a)(1) so that the language pertaining to the types of sufficient underlying violations mirrored that of the companion sections. [FN174]

Second, Congress added a subsection explicitly defining a sale of wildlife to include the provision or purchase of guiding or outfitting services for the illegal acquisition of wildlife. [FN175] This amendment followed several court decisions in which the 1981 legislative history was found to be insufficient to support a broad interpretation of the word "sale." [FN176]

The third change involved falsification of documents related to shipments of fish, wildlife, or plants. Prior to 1988, the section outlining this offense had applied only to shipments that were actually imported, exported, or transported; in contrast, the 1988 version applied to documents related to wildlife, fish, or plants intended for import, export or transport. [FN177] Further, the penalty section was revised to require that a felony violation of the false document provision be "knowing" and that it involve either 1) the import or export of fish, wildlife, or plants, or 2) the sale or purchase of fish, wildlife, or plants with a market value greater than $350. [FN178]

Other amendments to the Lacey Act authorized federal wildlife enforcement officers to make warrantless arrests for any federal offense committed in their presence and for any felony based upon reasonable belief that a felony has been or is being committed. [FN179] Prior to 1988, federal wildlife officers could make warrantless arrests only for violations of the Lacey Act. The amendment was sought because, according to testimony before Congress, undercover wildlife agents who encountered criminal activity unrelated to wildlife (such as drug offenses) lacked authority to make arrests, and were thus subject to personal danger and possible civil tort liability if they made unauthorized arrests. [FN180] The 1988 language also authorized wildlife officers to make warrantless searches and seizures. [FN181]

III. THE LACEY ACT IN ITS PRESENT FORM

A. General Features

1. Conduct Prohibited by the Act and Its Overall Structure

The Lacey Act prohibits two general types of activity. First, it prohibits the failure to mark, as well as the falsification of documents for, most wildlife shipments, providing a civil and criminal penalty, respectively, for these violations. [FN182] Second, it prohibits trade in wildlife, fish, or plants that have been illegally taken, possessed, transported, or sold. [FN183] Both types of prohibited conduct are discussed in more detail below.

Certain specific terms used in the Act are defined in section 3371. Language describing the conduct the Act prohibits is found in section 3372. Civil and criminal penalties for marking and trafficking violations are found in section 3373, as are substantive elements needed to prove certain trafficking and marking violations discussed below. Section 3374 outlines the Act's forfeiture scheme. Sections 3375-3378 pertain to enforcement powers, administration, and exceptions to the Act's coverage.

The Lacey Act is administered by the Departments of the Interior, Commerce, and Agriculture through their respective agencies. These include the U.S. Fish and Wildlife Service, National Marine Fisheries Service, and Animal and Plant Health Inspection Service. [FN184]

2. Coverage of Fish, Wildlife, and Plants

The first step in analyzing a potential Lacey Act violation is to determine whether the wildlife, fish, or plant at issue is covered by the Act. The Act defines the terms "fish or wildlife" broadly:

(A)ny wild animal, whether alive or dead, including without limitation any wild mammal, bird, reptile, amphibian, fish, mollusk, crustacean, arthropod, coelenterate, or other invertebrate, whether or not bred, hatched, or born in captivity, and includes any part, product, egg or offspring thereof. [FN185]

This language encompasses virtually any wild animal, fish, or invertebrate, dead or alive, from any part of the world, and any part of, or product made from, such a specimen. Given the breadth of the definition, courts have not frequently been called upon to interpret it. [FN186] However, litigants have not yet argued to what extent the term "wild animal" applies to animals within species normally considered wild but raised on game farms, such as elk, deer, and bison.

The Lacey Act's much more restrictive definition of plants reads as follows:

(A)ny wild member of the plant kingdom, including roots, seeds, and other parts thereof (but excluding common food crops and cultivars) which is indigenous to any State and which is either (A) listed on an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or (B) listed pursuant to any State law that provides for the conservation of species threatened with extinction. [FN187]

Thus, the Act's coverage of plants is severely restrictive compared to its global application to wildlife and fish. Not only must the plant in question be a wild species native to the United States, [FN188] it must also be specifically protected by a state law [FN189] or by a CITES listing. [FN190] For example, Lacey Act prohibitions apply to unlawful trade in saguaro cactus because that species is indigenous to the United States and protected by Arizona plant protection laws. [FN191] However, the Act would not apply to a plant species native only to a foreign country.

The disparity between the Lacey Act's application to wildlife and its application to plants becomes most apparent when considering the types of importation activity the Act addresses. For example, the importation of cockatoo eggs, bear parts, a tiger skeleton, salmon, or live snakes in violation of customs laws is an automatic felony violation of the Lacey Act. [FN192] However, the Act cannot be used to prosecute the importation of an equally endangered orchid or pitcher plant species taken from a foreign rain forest. This is a serious deficiency in the current Lacey Act.

B. Lacey Act Prohibitions

1. Marking Offenses

The Lacey Act requires wildlife shipments traveling in interstate or foreign commerce to be accurately marked, but it addresses this issue in two separate subsections, [FN193] whose coverage is inconsistent and whose penalties are substantially different.

a. Failure to Plainly Mark or Label Containers of Fish or Wildlife

Section 3372(b) [FN194] prohibits the import, export, or transport in interstate commerce of any container of wildlife or fish that is not plainly marked, labeled, or tagged as required by the applicable regulations. [FN195] This section is notable for two reasons. First, violators of section 3372(b) are subject only to a civil fine of up to $250; no criminal sanction is prescribed. [FN196] Second, this section applies only to containers of fish and wildlife; neither the statute nor the applicable regulations contain any requirement that containers of plants be plainly marked, tagged, or labeled. [FN197]

b. Preparing False Documents for Shipments of Wildlife, Fish, or Plants

Section 3372(d) also addresses the documents that must accompany wildlife shipments, [FN198] but it differs from section 3372(b) in four ways. First, it does not use the word "container," instead penalizing the making or submitting of any false record, account, label, or identification of a wildlife shipment. [FN199] Second, it applies to shipments of plants as well as to shipments of wildlife and fish. [FN200] Third, it applies to shipments that are intended for travel in foreign or interstate commerce as well as those that are actually shipped. [FN201] This allows agents to intercept fraudulent shipments prior to their departure from a country or particular state, as well as fraudulent shipments traveling through the United States from one foreign country to another. Finally, violation of this section carries either a misdemeanor or felony penalty, depending on certain factors. It is a felony if the document was made or submitted knowingly [FN202] and the shipment involved a sale or purchase of wildlife, fish, or plants worth more than $350. [FN203] A felony sanction also applies if the shipment of fish, wildlife, or plants is imported or exported, regardless of the shipment's value or the occurrence of a sale or purchase. [FN204] For example, a hunter who kills an elk in Montana and ships it to Wyoming using a false label would ordinarily be subject to a misdemeanor penalty. Commercial activity (such as the use of a professional guide during the hunt) and market value exceeding $350 would elevate the marking violation to a felony. However, if the knowingly mismarked elk is exported to Canada, the hunter would be subject to felony prosecution regardless of the elk's value or the hunter's involvement in any purchase or sale of the elk.

Only one appellate decision has addressed this recent addition to the Lacey Act. In United States v. Allemand, [FN205] Canadian hunters killed deer illegally in Wyoming and shipped them to a taxidermist in Minnesota. [FN206] The taxidermist prepared the deer for shipment to Canada and filled out export documents containing false information. These documents and the deer were seized from the taxidermist prior to export and several defendants were convicted of conspiring to violate section 3372(d). [FN207] On appeal, the defendants argued that they should not be found guilty of violating section 3372(d) because they had no duty to file the export documents. [FN208] The Tenth Circuit disagreed, noting that "making or submitting false records is illegal regardless of whether one has a duty to submit those records." [FN209]

2. Trafficking Offenses

a. In General

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 Act felony [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] In United States v. Cameron, [FN252] for example, an Alaskan commercial fisherman who violated the catch limits set by federal Halibut Act [FN253] regulations argued that the Lacey 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 the Lacey 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

a. Taken

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 the Lacey 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.

b. Transport

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.

c. Sale

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]

d. Attempt

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]

e. Import

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 Act violation, 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 a Lacey 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]

4. Forfeiture

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 Act charge.

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 in Lacey 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 Lee appellants 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]

3. The Lacey Act and Native American Rights

Three types of cases involving tribal laws and treaty rights have arisen in which litigants dispute the appropriate reach of the Lacey Act. These are cases in which the offense underlying a Lacey Act charge is: (a) a violation of tribal law; (b) a violation of a federal law by a tribal member claiming treaty abrogation; or (c) a violation of a state law by a tribal member claiming a superseding treaty right. Each is discussed in turn below.

a. Predicate Violation of Tribal Law

The Lacey Act includes Indian tribal laws within the list of predicate violations that may be used to trigger application of the federal penalty. [FN356] It defines "Indian tribal law" to include only those tribal regulations or rules enforceable within "Indian country," as that term is defined in the federal code. [FN357] In using this language, the Senate indicated its purpose was to recognize the "resource management responsibilities of Indian tribes" by including their laws within Lacey Act coverage, except such laws that might "apply to off-reservation areas, or to reservation areas that are not recognized as such." [FN358]

The tension between tribal sovereignty and Lacey Act application to violations of tribal law has been litigated in several cases. In United States v. Sohappy, [FN359] thirteen Native American defendants were convicted of selling fish taken in violation of tribal and state regulations. They argued that application of the Lacey Act to their conduct would abrogate their treaty reserved fishing rights in violation of the Act's disclaimer provision. [FN360] The Ninth Circuit began its analysis by noting that the Lacey Act and other federal laws generally apply to Indian violations of tribal law unless the tribes retain exclusive jurisdiction over the activity. [FN361] Exclusivity, the court reasoned, is found where the crime is committed against another tribal member. [FN362] Here, the tribal violation was not characterized as a "purely intramural" matter because the Indian fishing right was shared with non-Indians and the "victim" of the tribal violation was not another Indian, but the "general public welfare." [FN363] The court also noted repeated expressions of congressional intent to apply the Lacey Act to Indian violations of tribal laws, [FN364] concluding that exempting Indians from Lacey Act