In 2012, the US Fish and Wildlife Service introduced a rule to combat the spread of some species of constrictor snakes, which had been introduced into several ecosystems and were wreaking havoc on native animal species.
A lawsuit was filed in 2013 to challenge this new rule. In 2017, the D.C. Circuit Court of Appeals held that the Service does not have the authority to prohibit the transport of injurious wildlife between States within the continental United States. Their power only prohibits import of injurious wildlife from outside the United States.
As a reaction to this court’s opinion, Congress is contemplating an amendment to the Lacey Act which would expand the Service’s ability to regulate transportation of animals between states. That amendment may have devastating consequences for anyone who hunts out of state by allowing a single unelected official, the Secretary of the Interior, to place extreme restrictions on the interstate transportation of game.
This article and the two that will follow are meant to inform hunters about the origin of the Lacey Act, the importance of this legislation to conservation, and its possible future impact on hunters.
History of the Lacey Act
By 1900 the wild bird and game numbers in the US were plummeting. Flocks of passenger pigeons that once blocked the sun were now extinct. Buffalo and grouse numbers were facing the same fate. In response, Iowa House Member John Lacey, an avid hunter and conservationist, stepped in and pushed a bill through Congress that attempted to curb this trend.
The stated purpose of the bill was to authorize the Secretary of Agriculture to restore “game and other wild birds” to areas of the country where they have become “scarce or extinct.” Further, to protect indigenous birds, the Act allowed the federal government to regulate the importation of foreign birds or animals.
To accomplish the second purpose, the Act made it “unlawful for any person to import into the United States any foreign wild animal or bird except under special permit from the United States.” This restriction became the basis for the 2017 case discussed above.
While the Act barred the importation of some specific animals, such as the English Sparrow and Mongoose, it more generally stated any animal or plant designated as “injurious to the interest of agriculture or horticulture.”
Section 3 of the Lacey Act prohibits the shipment and delivery of wild animals, birds, or their parts illegally killed. It also required game being transported from one state to another to be properly tagged and removed some federal restrictions that regulated how animals may or may not be sold. This was followed up by a mandate that all “packages containing such dead animals, birds, or parts thereof” when shipped or delivered across state lines must be properly marked.
Finally, Congressman Lacey, being aware of the constitutional restrictions on federal overreach, withdrew federal restrictions on animals once they arrived in the state. Section 5 of the Lacey Act stated once an animal was transported into a state and remained there for sale or consumption, that animal was subject to the laws of that state.
Amendments to the Lacey Act
The Lacey Act has periodically been amended and modernized. In 1969 Congress fully revised the Lacey Act. In that amendment, penalties were increased to possible imprisonment of 1 year and a fine of $10,000. It is important to call this out because this is often over-hyped in the news outlets. These are the maximum possible sentences. These are rarely, if ever, the actual sentence.
The amendment also made a very important change to the mental state of the defendant the state must show for a criminal violation. It was increased to “knowingly and willfully.” While at the same time the civil penalties were expanded to apply to negligent violations, meaning anyone who should have known they were violating the law can be held civilly liable.
In 1981 the Lacey Act was again amended to lower the standard of proof required by the 1969 amendment back to simply “knowing”, thus lessening the standard of proof.
The 1981 amendment made it clear there were both felony and misdemeanor Lacey violations. The severity of the offense is determined by 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.
Maximum penalties for felony violations of the Act were set at $20,000 and/or five years in prison and the maximum civil fine was raised to $10,000.
In 1988 the Act was again amended, this time to include the role of guides and outfitter services. Prior to this amendment, guides or outfitters who provided illegal hunts were immune to Lacy Act violations based on commercial activity.
The felony provision of the Act was also amended to include any person who knew of the import/export or was involved in the sale or purchase of wildlife, fish, or plants with a market value greater than $350.
Common Violations of the Lacey Act
The Lacey Act requires wildlife shipments traveling interstate or in foreign commerce to be accurately marked. Failure to plainly mark or label containers of fish or wildlife can result in a civil fine up to $250. The marking or label must be “in accordance with the regulations issued” by the Secretaries of the Interior and Commerce. These regulations are often difficult to find. If you are transporting an animal between states, it is a good idea to reach out to the local fish and game to see how the containers or packages should be marked.
False Documentation or Marking
Section 3372(d) addresses the documents that must accompany wildlife shipments also. However, it is different from section 3372(b). First, it does not use the word “container,” instead it penalizes the making or submitting of any false record, account, label, or identification of a wildlife shipment.
Falsely documenting or marking shipments can either be a misdemeanor or felony depending on the underlying facts. It is a felony under two sets of facts.
First, if the defendant knowingly made or submitted false documents and the shipment involved a sale or purchase of wildlife, fish, or plants worth more than $350. Second, 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.
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. However, if a professional guide or outfitter falsely marks the elk, then this is considered commercial commerce, and if the market value exceeds $350 then the shipment from Montana to Wyoming is 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.
The Lacey Act’s most used provisions are those barring the transportation of illegally obtained wildlife which was the original purpose of the Act more than 120 years ago. Sections 3372(a)(1) and (a)(2) make it a federal crime 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.”
These trafficking charges require the prosecutor to prove two main elements: 1) the underlying violation; and 2) that the defendant committed or attempted to import, export, transport, sale, receipt, acquisition, or purchase of the illegally obtained animal or plant.
Section 3373 outlines whether a trafficking violation is a felony or misdemeanor. If the prosecution can prove the defendant knew the animal was illegally obtained, then it is a felony offense.
Misdemeanor trafficking violations carry a much lower standard. The government needs only prove that the defendant, “in the exercise of due care”, should have known of the wildlife was illegally taken.
An example of these provisions would be a Utah hunter who travels to Montana and kills a deer outside the unit he had a tag for. Before leaving Montana, he delivers the buck to a Montana taxidermist. The taxidermist knows deer season is not open but mounts the buck and ships it to Utah. Both the taxidermist and the hunter have violated the Lacey Act.
The Lacey Act has many consequences for hunters who travel between states or out of the country. The next part of this series will discuss some higher-profile cases as well as day-to-day applications of the law. It will also attempt to outline why some violators are sentenced harshly while others may receive a “slap on the wrist.”