17 ELR 10222 | Environmental Law Reporter | copyright © 1987 | All rights reserved

The Convention on International Trade in Endangered Species: No Carrot, But Where's the Stick?

Editors' Summary: Perhaps the most sinister environmental threats include those that are least perceptible. One such threat is the large scale extinction of biological species, with ominous implications for a shrinking gene pool and multiplier effects throughout the food web whenever key species are lost. This Comment analyzes one of the principal international responses to this threat, the Convention on International Trade in Endangered Species. Although the Convention is widely hailed as a success, the Comment points out that it imperfectly addresses the root causes of species extinction, and the evidence of effective implementation of even the limited mission of the Convention is spotty. The Comment reviews the United States' implementation of the Convention, principally through the Endangered Species Act, and concludes that much more analytical work and enforcement effort is needed both in the United States and abroad.

Laura H. Kosloff is an attorney and an Associate Editor on the Environmental Law Reporter. Mark C. Trexler is a doctoral candidate at the Graduate School of Public Policy at the University of California at Berkeley and has served as a consultant to several international organizations on genetic resources conservation and the implementation of wildlife conservation treaties.

[17 ELR 10222]

Environmental issues have been the topic of many international agreements, including polar bear conservation,¹ migratory bird conservation,² and whaling.³ More recently, attention has begun to focus on even broader issues such as acid rain,⁴ ozone depletion,⁵ and genetic resources.⁶ Yet one agreement, argued to be one of the most successful environmental conventions, remains relatively unknown even to many environmental attorneys. [17 ELR 10223] That agreement, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),⁷ sets as its goal the prevention of the endangerment or extinction of species that could result from international trade in those species and their products.

For some species and products such as sea turtles, rhinoceros horn, and Asian elephant ivory, the trade is overwhelmingly illegal. For many other species and products, there are large components of both legal and illegal trade; examples here include African elephant ivory, parrots, and orchids. For items such as artificially propagated plants, ranched furs, and water buffalo horn jewelry, most shipments are legal, although there are exceptions. With thousands of plant and animal species in trade, a worldwide declared value of at least $5 billion is involved;⁸ the U.S. market accounts for up to one-third of that value.⁹

Besides its diversity, the sheer volume of this trade is astounding. A minimum of 500,000 live parrots and 10 million raw reptile skins, and 10 million cacti enter into international trade each year, along with over 500 tons of ivory, 50 million furs, and 350 million ornamental fish.¹⁰ Moreover, there is evidence that trade volume is growing in response to soaring demand.¹¹ Given the volume of the trade, and its tendency to involve exotic and uncommon species, the biological threat to species posed by this trade cannot be discounted. When combined with the even more devastating impacts of worldwide habitat loss, it appears that millions of species will become extinct in coming decades.¹²

This Comment analyzes the international response to the problem of species extinctions, as embodied in CITES, and then examines particular elements of the United States' implementation of the treaty's requirements. Although the United States cannot implement CITES alone, it is considered to have the best implementing infrastructure. Problems facing this country's implementation efforts, therefore, are likely to be magnified in most other nations.

The International Response: CITES

CITES Regulatory Framework: How It Functions

CITES is in many respects a standard instrument of social regulation intended to bring about "responsible" behavior in situations where it might not otherwise have occurred.¹³ Although in effect a statute applied to the international arena, CITES does not create a category of "international crimes" or prescribe specific sanctions for violations of CITES; this is left to national laws and regulations. What CITES does establish is a system of permit requirements, implemented by each wildlife-exporting and wildlife-importing Party. The permits are designed to prevent international trade in species for which such trade presents a significant threat, and to prevent such trade from becoming a significant threat in the future to species currently able to sustain such exploitation. Bowing to international legal norms concerning national sovereignty, the Convention addresses only the aspects of wildlife trade that transcend national boundaries; what occurs completely within the borders of a Party is not subject to international debate.¹⁴

The Appendices

CITES categorizes into three Appendices those species for which trade creates real or potential biological concern. Each Appendix is subject to particular permitting requirements. Appendix I lists species threatened with extinction that are or may be affected by international [17 ELR 10224] trade.¹⁵ Commercial international trade in Appendix I species is prohibited.¹⁶ For noncommercial trade, any shipment involving a plant or animal from Appendix I requires an export permit from the country of origin and an import permit from the country of destination certifying that the specimen has been taken in accordance with the treaty's requirements.¹⁷

Appendix II lists species that may become threatened with extinction, even if they are not threatened currently, if trade in the species is not held to levels consistent with the species' biological carrying capacity.¹⁸ Commercial trade in Appendix II species is allowed, but conditions are imposed. Any shipment involving an Appendix II species requires an export permit from the country of origin certifying that the transaction will not have adverse impacts on the biological status of the species.¹⁹ In theory, the wild populations of Appendix II species are to be carefully monitored for potential adverse impacts resulting from their exploitation for international trade.

Appendix III includes species that an individual Party to the Convention has identified as being subject to regulation within its borders for the purpose of controlling exploitation of the species, and for which the Party has determined that international cooperation is important to its achievement of such controls.²⁰ Trade in Appendix III species requires an export permit certifying that the country's authorities have determined that the specimen was taken in accordance with the country's wildlife laws.²¹

Additions to either Appendix I or II require, in theory, reliable biological evidence that the species is or may be threatened (for Appendix I species) or is likely to become threatened (for Appendix II species) by trade; deletions from the lists require evidence that trade in the species no longer presents the threat of extinction.²² Additions and deletions are accomplished by a two-thirds vote of the state Parties at the biennial Conferences of the Parties.²³

Exemptions

Although on their face the three CITES Appendices establish a cohesive regulatory framework, in practice a series of exceptions to the treaty's general provisions make interpretation and enforcement much more complex. For example, through Article VII, trade restrictions do not apply to shipments in transit through the territory of a Party.²⁴ Specimens are not covered by the import and export permit requirements if they (1) were acquired prior to the species' listing on the CITES appendices or a government's becoming a Party;²⁵ (2) are personal or household effects;²⁶ (3) are animal specimens bred in captivity or plant specimens that are artificially propagated;²⁷ or (4) are noncommercial loans or exchanges between scientific institutions.²⁸

In addition, the treaty also allows a Party to enter a reservation at the time a species is listed on an appendix.²⁹ The entering of a reservation in effect makes a Party a non-Party for the purposes of that species.³⁰

[17 ELR 10225]

The pattern of exceptions and reservations established under CITES has caused the Parties considerable conflict, as the Convention does not provide precise definitions of any of the exemptions, or of how the implementation of these exemptions can be reconciled with the achievement of the primary goals of the treaty.³¹ Pressures to allow the exploitation through international trade of national wildlife resources have forced heated debate on the interpretation and implementation of the Convention's sometimes vague provisions.

Individual Party Implementation

CITES does not aspire to be a supranational agreement under which member nations have yielded aspects of their individual sovereignty.³² Although the treaty establishes a permanent full-time Secretariat for information gathering, coordination, and general administration, it creates no treaty-wide enforcement structure.³³ The treaty requires Parties to designate at least one "Management Authority" to grant import and export permits,³⁴ and at least one "Scientific Authority" to determine whether trade in a particular species is detrimental to its survival.³⁵

Many observers consider CITES' requirement that every Party designate some entity as a Management Authority to implement the Convention as a success in itself. By specifically allocating such a responsibility, governmental attention is, presumably, more likely to remain focused on implementing the policy.³⁶ Some developing countries never had any government body responsible for wildlife management prior to CITES. Even if implementation of CITES itself in these countries is abysmal,³⁷ the very fact that some agency has been designated as having that responsibility might, it is argued, be valuable in furthering the long-term goals of conservation.

Beyond the requirements CITES imposes on Parties to establish an administrative infrastructure and adhere to specific permitting procedures, the treaty requires that Parties enforce its provisions and penalize violations,³⁸ maintain complete records of their trade in CITES species, and report annually to the Secretariat on their implementation of the Convention.³⁹

Participation of Nongovernmental Organizations

One CITES provision that was extremely unusual when drafted was the degree to which nongovernmental organizations (NGOs) are permitted to participate in CITES' ongoing administration and enforcement. NGOs, particularly the International Union for the Conservation of Nature (IUCN), were in fact pivotal in the drafting of CITES. The Convention not only explicitly permits NGOs to participate as nonvoting observers at the biennial Conferences of the Parties (COPs), but they also receive, as registered observers, all documentation pertaining to the COPs.⁴⁰ NGOs may attend plenary sessions and most committee meetings and may lobby for their favored positions on various issues.⁴¹ Even beyond formal participation at the Conferences, NGOs have contributed vast amounts of time, effort, and financial resources to CITES for its enforcement and implementation.⁴² Beyond serving as information [17 ELR 10226] sources for the Secretariat with regard to national policies and infractions of CITES, conservation groups have paid for certain Secretariat activities and studies, have contributed to implementation seminars for enforcement officials, and have paid the expenses of delegates participating at COPs.⁴³ Most fundamentally, though, NGO oversight of Parties' implementing actions under CITES has been a key variable in achieving whatever success CITES has achieved. In the absence of NGO participation, CITES would very likely have followed the route of many other international wildlife measures into obscurity.

The Wisdom of Trade Controls as an International Response

To understand the potential impacts of the infrastructure established by CITES on species extinctions, it is important to remember the context of the extinction problem. At its best, CITES only regulates international trade. Domestic trade, even if its effects are felt internationally, is not addressed. Moreover, domestic activities that indirectly jeopardize endangered species, through habitat destruction, exotic species introduction, pesticide application, waste disposal, or otherwise, are also not covered by CITES.

Thus, the approach taken by trade controls as means of species conservation can be conceptually questioned on at least two levels. First, is focusing on the international wildlife trade an appropriate way to address species extinctions? Second, can the administrative infrastructure embodied in CITES achieve its goal of negating even just the impacts of international trade on a species' biological status?

Unfortunately, habitat loss is the primary threat facing species today, including many of the species for whom international trade is also seen as a significant threat.⁴⁴ Much of this habitat loss is occurring, at devastating rates, in tropical forest regions. This habitat loss creates still other problems in a ripple effect, as cleared areas make the remaining forests and other sensitive areas much more accessible to resource exploiters. The net result is that many species are being lost or threatened, some before they are even discovered.

CITES, however, deals exclusively with wildlife and products that cross national borders. Not even a hortatory reference is made to the need to protect the species' habitats. This emphasis can be attributed to several factors. First, international agreements have historically focused on species that cross national boundaries, or species that are permanently outside of a particular nation's control.⁴⁵ CITES' drafters no doubt saw the link between wildlife exploitation and the crossing of national boundaries in the form of wildlife trade as something susceptible to a tradition of international cooperation.

Second, regulation of the international wildlife trade impinges far less on the economic and political interests of sovereign nations than would international programs to regulate national land use practices, and hence generally receive more support (or less opposition) from national governments. Import and export permit requirements do not directly interfere with a nation's internal affairs, nominally affect all signatories equally, and tend to affect relatively small political interest groups, such as wildlife traders.⁴⁶ Habitat conservation, on the other hand, requires the setting aside of land inside the boundaries of a state that could be used for other purposes, involves the displacement or exclusion of politically volatile interest groups, such as landless peasants, and requires disproportionately costly action on the part of biologically rich nations than biologically poor nations.⁴⁷ Adherence to a habitat conservation treaty would also implicitly involve the cession of a significant amount of national sovereignty to foreign nations.⁴⁸

These factors no doubt contributed to CITES' exclusive focus on international trade. Bolstering this approach was a string of wildlife and nature conservation failures in the form of earlier and generally broader treaties,⁴⁹ and the perceived need to obtain as many nations as Parties to the Convention as possible.⁵⁰ The net result, however, is an approach to the species extinction problem that in the vast majority of cases can only partially alleviate the threat facing a species, rather than solving the problem and restoring the species.

How much of even just a moderating influence CITES can achieve is the second of the conceptual questions one can ask of CITES.⁵¹ Several variables common in efforts [17 ELR 10227] to predict the success of regulatory instruments can be applied to a simple conceptual review of CITES. These variables include those of issue area complexity; the number of actors whose behavior must be changed for success to ensue; the degree of behavioral change required; the complexity of the measures required to bring about, monitor, and effect such behavioral changes; and the efficacy of sanctions against actors resistant to the change.⁵²

When evaluated in light of these variables, the wildlife trade appears very difficult to regulate for conservation purposes. It is an extremely complex issue area, involving literally thousands of species and dozens of major importing and exporting nations. Trade chains vary from a subsistence peasant collecting a few birds to sophisticated hunting, trapping, and poaching operations. Species have different common names in each language, and for some species disagreement exists even among taxonomists. In some cases it is virtually impossible to identify the species from which a product was made. National legislation governing species exploitation varies widely.

To effectively control this trade, one would have to change the behavior of the hundreds of thousands of individuals involved in the harvesting, trading, processing, and marketing of relevant species. For many, the change would threaten their economic livelihood and is likely to be resisted. To actually monitor the trade controls would require tracking what leaves a particular country, what intermediate steps are made for processing, what products are manufactured from raw skins and other precursors to finished products, and where all these products ultimately go. Given the hundreds of thousands of shipments involved in the trade, and the many avenues by which they can move between a particular point of origin and their final point of consumption, this tracking presents an arguably insurmountable challenge.⁵³

Overall, the problems facing trade controls as a conservation measure are mammoth. As in the drug trade, the illegal wildlife trade can be so lucrative that people will always be willing to take the risk for some products literally worth their weight in gold, as is rhino horn. Also as with the drug trade, the primary countries of origin may be in no position to adequately track or control the trade and may be faced with many problems they perceive as more pressing than wildlife species.

CITES in Practice

Nevertheless, CITES was the instrument chosen for the goal of neutralizing the detrimental impacts of international trade on species survival. At a time when these threats were still small by comparison, the IUCN recommended development of an international treaty to regulate the trade in endangered species.⁵⁴ Ten years and seven drafts later, representatives of some 80 nations gathered in Washington, D.C., in 1973 to finalize and sign CITES. Although by far not the first international attempt to protect wildlife endangered by human activity, and not even the first to encompass controls on international trade in protected species,⁵⁵ CITES has become unique among the list in several respects.

Today, 12 years after it came into force,⁵⁶ the momentum behind CITES remains strong. It now has 95 Parties,⁵⁷ more than any other conservation convention, and consists of most of the world's significant wildlife-importing and wildlife-exporting nations. The effort dedicated to its administration and enforcement throughout the world goes far beyond that which has been dedicated to other international conservation instruments.⁵⁸ It is one of the few conservation treaties that provides for a sophisticated, permanent, administrative infrastructure;⁵⁹ these provisions have since been copied in other environmental treaties and are now generally accepted as prerequisites for a successful conservation instrument.⁶⁰ The amount of money allotted to its implementation on a worldwide level far exceeds that [17 ELR 10228] of any other conservation convention.⁶¹ Costs imposed on wildlife traders, such as the costs of procuring permits, preparing the paperwork involved for CITES shipments, and absorbing the delays caused by CITES procedures, probably multiply governmentally incurred costs and certainly constitute a significant portion of the budget of many of the environmental NGOs concerned with wildlife conservation.⁶² Perhaps most significantly, it is considered by many to be a success in a field characterized predominantly by failures. World Wildlife Fund, for example, has concluded that CITES "is perhaps the most effective conservation treaty in existence."⁶³

At the same time, proponents of CITES are unable to name even a single species that has clearly been helped by trade controls imposed under the treaty. Illegal trade is rampant. Implementation is becoming ever more complex in the form of additional species being covered and additional interpretations of exemptions provisions becoming more complex. Enforcement both here and abroad appears woefully inadequate. The numbers of threatened and endangered species continue to grow, and high-ranking officials have considered whether the United States should withdraw from CITES altogether.⁶⁴

Defining Success in CITES Implementation

These apparently contradictory measures of CITES' influence raise questions about how success in its implementation should be defined. Defining CITES' success, however, is not simple. Although the treaty sets out many specific measures to be taken by member states, compliance with these measures may or may not achieve the underlying goal of CITES: neutralizing the detrimental impacts of the wildlife trade on the biological status of endangered or vulnerable species.⁶⁵ Effective sanctions for trade control violations, for example, may or may not actually contribute to the conservation of species in the wild, for many intervening variables are involved. Many of the individuals involved in harvesting wildlife have probably never even heard of CITES. It is probably safe to conclude, however, that in the absence of effective sanctions, the potential for achievement of the treaty's conservation goals diminishes drastically.⁶⁶ It is therefore legitimate to focus in this first look at CITES on this key building block of CITES' success.

Enforcing CITES

After 12 years in force, the administrative structure of CITES is relatively well established. Many observers conclude the Convention has matured and that the parties have worked through many of the initial difficulties that plague any new and complex program.⁶⁷ Most of the major importing countries have now been Parties to CITES for some time, and their Management Authorities⁶⁸ have had time to integrate CITES and its accompanying regulation framework into their own domestic framework.⁶⁹

Administrative provisions are, however, only superficial indicators of success. Whether the establishment of Management and Scientific Authorities and the existence of a permanent Secretariat actually contribute to the accomplishment of the drafters' goals, whether the establishment of Management Authorities has contributed to the creation of a wildlife conservation ethic in developing countries, whether the Secretariat fulfills the goals it was designed to accomplish, and finally, whether the status of any species CITES proclaims to protect has ceased to decline or actually improved because of CITES — none of these questions has been adequately answered by research into CITES' implementation. An understanding of the legal functioning of CITES in the major wildlife trading nations [17 ELR 10229] is a necessary first step in knowing whether the treaty has succeeded.

The United States' Role

The United States has one of the more sophisticated CITES implementation programs. It was the first country to ratify CITES with the enactment of the Endangered Species Act of 1973. The Management and Scientific Authorities were designated in 1976,⁷⁰ and final regulations were promulgated in 1977.⁷¹ Although the program thus did not begin until four years after ratification, the United States can legitimately claim to have implemented CITES among the longest of any of the 95 Parties.⁷² Consequently, analysis of CITES enforcement in this country is likely to be a good indicator of the effectiveness of administratively sophisticated CITES enforcement in general.

U.S. Enforcement of CITES: A Case Study

As indicated above, the declared value of the international trade into and out of the United States is over $1 billion dollars.⁷³ Nonetheless, this fails to illustrate the true magnitude of the enforcement problem. Some 50,000 shipments enter the country annually,⁷⁴ some huge,some consisting only of an individual live specimen or product. With only 55 wildlife inspectors spread among the nine ports of entry designated for wildlife, only a fraction of the shipments can be inspected. Very few inspections are done on the vast number of undeclared shipments that could harbor illegal wildlife. Moreover, this does not even begin to address the potential for illegal imports, innocent or otherwise, brought in by tourists under CITES' personal effects exemption, much less outright smuggling. In fact, inspections tend to focus on those shipments specifically declared as wildlife products, whereas one could argue that sophisticated smugglers would carry out their activities more surreptitiously.

Although any specific number is speculation, at best, illegal trade into and out of this country certainly exceeds the $100 million worth of seizures made by the Fish and Wildlife Service every year. Measuring illegal export is even more difficult, for there is virtually no way to check what goes out of the country. There is no way to estimate whether the shipments being seized represent the bulk of the illegal trade or whether they are only a small fraction of it. But some idea can be formulated. In 1983, for example, FWS inspected 50 containerized imported shipments, at random, for the first time. Illegal wildlife was discovered in 30 of them; one shipment alone was worth $700,000.⁷⁵ Some 800,000 containers come into the United States every year, generally uninspected.⁷⁶

Legislative Basis for U.S. Implementation: The Big Stick?

This extremely complex and overwhelming enforcement environment is responded to in the United States by a series of laws that regulate the import and export of wildlife and other products.

Endangered Species Act

Implementation of CITES in the United States is officially accomplished by the Endangered Species Act (ESA),⁷⁷ which was enacted shortly after the plenipotentiary conference on CITES was held in Washington. The scope of CITES itself is limited by the Convention's terms to international trade,⁷⁸ as compared to the more broadly defined ESA,⁷⁹ and the legislation implementing CITES consists of only a small portion of the ESA.⁸⁰

The ESA's listing of endangered and threatened species is distinct from the CITES appendix listings.⁸¹ Although the lists overlap, they are not identical.⁸² Moreover, the [17 ELR 10230] criteria for listing species under the ESA are different from those adopted by the Parties for listing on the CITES appendices.⁸³

Convention Responsibilities: The ESA designates the Secretary of the Interior as both the Management Authority and Scientific Authority.⁸⁴ These functions are performed by the Wildlife Permit Office of the United States Fish and Wildlife Service (FWS).⁸⁵ The Animal and Plant Health Inspection Service (APHIS) in the Department of Agriculture is responsible for overseeing import and export activities with respect to plants.⁸⁶

Import/Export Prohibitions: The Act prohibits import, export, sale, or shipment in the course of a commercial activity, and possession of any species taken in violation of the Act.⁸⁷ It explicitly prohibits the trade of any wildlife in contravention of CITES or the possession of CITES specimens unlawfully traded.⁸⁸ The Act requires wildlife and plant importers and exporters to obtain licenses to conduct their operations.⁸⁹

Penalties: The ESA provides civil and criminal penalties. For most violators, knowing unlawful conduct is required. Strict liability is imposed on importers and exporters.⁹⁰ No penalty will be imposed if the defendant shows by a preponderance of the evidence that he or she acted in a good faith belief that the action was necessary to protect a person from harm from the species.⁹¹

The ESA's criminal violations are misdemeanors, and the maximum criminal penalty that can be imposed under the Act itself: $20,000 or up to one year in prison, or both.⁹² However, in 1984 Congress increased the possible fines for all crimes, both misdemeanors and felonies, in the Omnibus Crime Control Act.⁹³ This Act, applying to offenses described in almost all federal statutes, raises the possible maximum fine for all persons to $100,000 until November 1987 for misdemeanors punishable by imprisonment for more than six months.⁹⁴ After that date, an organization could still be fined $100,000 but an individual committing such a misdemeanor will face a potential maximum fine of $25,000.⁹⁵ If a violator derives pecuniary gain from the offense, or causes pecuniary loss to another, the fine may be up to twice the gross gain or loss.⁹⁶

The Secretary of the Interior may directly impose civil penalties of up to $10,000 for each violation for persons who knowingly violate certain provisions and for importers and exporters who violate them whether knowingly or not.⁹⁷ The maximum civil penalty that can be imposed against other violators on a strict liability basis is $500.⁹⁸ The same good faith defense is available as for criminal prosecutions.⁹⁹ Notice and opportunity for a hearing must be provided.¹⁰⁰ A violator subject to a civil penalty may be given the opportunity to settle the civil penalty claim by transferring to the United States all interests held in the illegal wildlife.¹⁰¹

The Secretary has the discretion to impose additional administrative sanctions, such as the revocation of a federal import, export, or quarantine station license.¹⁰² The ESA also allows the government to confiscate the animal or [17 ELR 10231] plant specimens for any violation and to confiscate personal property involved where a criminal conviction has been obtained.¹⁰³ The Department of the Interior or Agriculture may institute administrative forfeiture proceedings whenever the wildlife is determined to have a value no greater than $100,000.¹⁰⁴ A claimant to the property must file a bond of $5,000 or 10 percent of the property's value, whichever is less.¹⁰⁵ In proceedings involving animals, a motion for a stay of an administrative forfeiture will only be granted — and even then subject to the Department of the Interior's discretion — where the claimant can show fee simple title to the property and offers to pay in advance all reasonable storage costs, and a stay would not injure the rights of third parties.¹⁰⁶

Lacey Act

One other federal statute, the Lacey Act,¹⁰⁷ plays an important role in the implementation of CITES, since it allows for civil and criminal sanctions for violations of foreign law. It is the Lacey Act that enables, or could enable, U.S. authorities to essentially apply the laws of other countries in wildlife trade enforcement in the United States.¹⁰⁸

The Lacey Act was originally enacted in 1900 to aid states in controlling interstate commerce in certain wildlife species.¹⁰⁹ The Act in its current form¹¹⁰ makes it a violation of federal law for any person to import¹¹¹ or export animals taken, possessed, transported, or sold in violation of the laws of a state, Indian tribe, foreign country, or in violation of a treaty.¹¹² The same provisions apply to plants, with the exception of the foreign law provisions.¹¹³

Penalties: The Lacey Act provides for criminal and civil sanctions and strict liability forfeiture of the specimens involved. The Act itself makes it a felony, subject to a maximum criminal penalty of $20,000 or imprisonment of up to five years, or both, if an importer or exporter knowingly takes or possesses a specimen in violation of an underlying foreign law or treaty.¹¹⁴ This potential maximum has effectively been raised by the Omnibus Crime Control Act to $250,000 for individuals and $500,000 for persons other than individuals.¹¹⁵ For persons other than importers, these serious penalties can only be applied if the market value of the wildlife is more than $350.¹¹⁶ It is not necessary that the person knew of the existence of the Lacey Act itself.¹¹⁷

A violation is a misdemeanor, subject to a fine of $100,000 and up to one year in prison, where a person knowingly engaged in conduct that is prohibited and should have known that the particular wildlife in question was taken illegally.¹¹⁸ Although Congress did not want to go so far as to require specific intent to violate the law, it was concerned that the absence of a culpability standard would encourage enforcement abuses.¹¹⁹

A due care standard applies to the Secretary of the Interior's authority to assess up to $10,000 in civil penalties for violations of the Act.¹²⁰ When the market value of the [17 ELR 10232] wildlife is less than $350 and the violation consists only of the unlawful transportation, receipt, or acquisition of the wildlife, the civil penalty can be no more than the maximum provided for in the underlying law or $10,000, whichever is less.¹²¹ Notice and opportunity for a hearing are required.¹²² The Secretary is required to take into account the nature, circumstances, extent, and gravity of the violation in assessing the civil penalty, as well as the degree of culpability and the violator's ability to pay.¹²³

The Act provides for strict liability forfeiture of the wildlife involved in the transaction.¹²⁴ As with the ESA, under the Lacey Act the Department of the Interior may institute administrative forfeiture proceedings whenever the wildlife is determined to have a value no greater than $100,000; other forfeiture procedures are also the same.¹²⁵ Forfeiture of equipment and vehicles is limited to situations in which the owner is convicted of a felony, and the owner of the item must have been a consenting party to the unlawful act or should have known, in the exercise of due care, that his or her equipment would be put to illegal use.¹²⁶ Moreover, as with the ESA, additional sanctions in the form of permit revocations are available to the government for persons convicted of criminal violations of the Act.¹²⁷

It is commonly perceived that the 1981 amendments gave some teeth to the Lacey Act's prohibitions.¹²⁸ Clearly, Congress intended to make substantial changes in the existing provisions. The 1981 amendments increased the potential fines for a felony by twice the previous maximum fine and five times the previous possible prison term.¹²⁹ Moreover, until the Act was overhauled, criminal violations were misdemeanors only.¹³⁰ The 1981 Lacey Act amendments also doubled the maximum civil penalties that could be assessed.¹³¹ The evidence indicated that previously U.S. Attorneys' offices were reluctant to spend significant amounts of time on Lacey Act violations as a result of the low level of penalties available, and that the judicial branch was reluctant to impose heavy penalties for misdemeanor violations.¹³² The fine increase allowed by the Omnibus Crime Control Act strengthens this perception, even though it only applies to criminal penalties; its enactment indicates a congressional belief that criminal penalties in many federal statutes were insufficient to act as an effective deterrent to unlawful activity.

Nevertheless, there is as yet little empirical evidence in the effectiveness of the tougher Lacey Act sanctions. There have been few cases interpreting the Lacey Act's international provisions, and even fewer involving the 1981 amendments. Those that do exist do not provide sufficient information to make an informed judgment concerning the deterrent value of the seemingly stringent provisions.¹³³

Other Statutes

The primary "non-environmental" statutes that are utilized in wildlife trade enforcement efforts include customs,¹³⁴ smuggling,¹³⁵ and conspiracy laws.¹³⁶ Mail fraud is occasionally used.¹³⁷ The government often has more success pursuing civil and criminal remedies under these statutes than under the statutes dedicated to wildlife law enforcement.¹³⁸ In addition, health laws such as quarantine laws can be used for certain species, mostly birds.¹³⁹

U.S. Enforcement of CITES: A Stick or a Twig?

Through the ESA and related statutes such as the Lacey Act, the United States appears to have all the necessary [17 ELR 10233] implementing legislation in place for effective CITES enforcement. However, the degree to which these tools are utilized will determine the role sanctions actually play in bringing about the socially responsible behavior desired by the Convention. Since the number of reported cases in this country directly addressing CITES are still relatively few,¹⁴⁰ definitive conclusions concerning their impact on the behavior of target groups cannot fairly be made. Yet certain trends are discernible, and cautious, tentative assessments can be made.

Judicial Reluctance

Despite the ESA's provision for strict liability for commercial importers and exporters and the Lacey Act's recently strengthened criminal and forfeiture provisions, the courts have been reluctant to impose penalties for "innocent" conduct.¹⁴¹ This is consistent with common judicial attitudes towards malum prohibitum conduct, traditionally lawful, but statutorily made unlawful for reasons of social policy.¹⁴² This judicial reluctance provided some of the impetus for Congress to "correct the … insufficiencies" of the pre-1981 Lacey Act, to demonstrate to the judicial branch congressional intent regarding the seriousness of wildlife trade violations.¹⁴³

The FWS also has perceived that courts are unwilling to impose penalties under the Lacey Act without substantial proof of foreign law. According to the Service, this can require that an official from the country of origin actually be brought into the courtroom to testify that the piece of paper entered into evidence represents an accurate statement of that country's law.¹⁴⁴ This perception is not entirely shared by persons at all enforcement levels. Attorneys in the Wildlife and Marine Resources Section of the Department of Justice, responsible for litigating wildlife suits on behalf of the FWS, do not think the courts are a serious impediment in this area, pointing to the federal rules. They believe a more serious problem is simply getting a response, of any sort, from the country in question, regardless of what the "proof" is that is required: statement of the actual law, validity of a particular export permit, or accuracy of a signature on that permit.¹⁴⁵

It is possible that, if true, this situation may be undergoing some change. In United States v. 3,210 Crusted Sides of Caiman Crocodilus Yacare, a recent decision involving the forfeiture provisions of the ESA and Lacey Act, the court accepted certified translations of Bolivian decrees as proof that crocodile specimens had been exported illegally.¹⁴⁶ The court also indicated that it did not feel bound by any reluctance to penalize "innocent" conduct,¹⁴⁷ although it did not find the claimants of the forfeited wildlife to be particularly innocent. Moreover, the court stated that to accomplish the goals of CITES to prevent overexploitation of certain species through trade, "the penalties for violations … must be stringent."¹⁴⁸ There is no doubt, however, that judicial attitudes toward wildlife violations vary widely across the country. Unfortunately, no cross-sectional data exist on how these attitude variations translate into variations in sanctions, and how wildlife inspectors and agents may change their behavior in light of judicial attitudes in their areas.

[17 ELR 10234]

Administrative Reluctance

There is some evidence that individuals on the front lines of CITES enforcement will often choose the path of least resistance. As a result, shipments that perhaps should have been held for further inspection will be allowed through. For example, the inspector or agent may know from past experience that waiting to hear from Washington or a foreign country concerning the validity of a particular permit could take weeks, or even months, and thus may delay a shipment indefinitely. Holding a shipment can result in political pressure from the importer's congressional representative. Moreover, unless evidence of a violation is clear, the regional Department of the Interior Solicitor may order the shipment released. Even if followed up, there is a perception that the violation is unlikely to result in a significant penalty. As in many enforcement contexts, the view from the different spokes of the enforcement wheel varies. While regional supervisors may state categorically that inspectors and agents are to hold questionable shipments pending further investigation, the inspectors and agents themselves may not feel they are really able to do so.¹⁴⁹

Forfeiture

Forfeiture actions appear to have been the primary action of choice for administrative proceedings within the FWS,¹⁵⁰ and comprise 10 to 15 percent of the civil actions instituted by the Department of Justice's Wildlife and Marine Resources Section.¹⁵¹ A focus on forfeitures at the administrative level is logical, particularly when one considers together the FWS' perception of judicial reluctance to impose penalties and fines for wildlife trade violations and possible difficulties in obtaining proof of existing foreign law or in determining the validity of a particular permit. Moreover, no element of intent need be proven for forfeiture of the unlawfully imported or exported wildlife itself,¹⁵² and no resort to the courts need be taken at all for wildlife valued at $100,000 or less.¹⁵³

The forfeiture provisions of both the ESA and the Lacey Act have generally fared better in the courts than civil or criminal penalties.¹⁵⁴ This may be because agencies and the courts have generally had more experience with the concept of forfeiture in the context of violations of customs and drug-related laws,¹⁵⁵ and the wildlife forfeiture provisions incorporate by reference the customs procedures.¹⁵⁶

Forfeitures by themselves, however, may or may not have the desired deterrent effect with regard to import/export violations. There is generally a large markup between the cost of merchandise to an importer and the retail value of the goods. If the profit margin is high enough, forfeiture can be simply be thought of as a price of doing business, as opposed to an effective deterrent. Exactly what impact forfeiture has on subsequent behavior on the part of the violator is not known. FWS officials argue that repeat offenders are not common, and that this indicates that getting caught once really does have an impact on importer behavior.¹⁵⁷ Yet the potential for evading detection of illegal shipments is so pervasive, e.g., through mislabeling shipments or by including shipments in uninspected cargos such as sea-going containers, that this behavior change cannot be safely assumed.

Although the case law is still sparse, certain trends are clear. The courts will look to established forfeiture case law for determination of most basic issues.¹⁵⁸ The Caiman Crocodilus Yacare court, for example, rejected an argument by the claimants that it should make a distinction between forfeiture proceedings brought for illegally imported wildlife and proceedings brought for items connected to illegal drug trade.¹⁵⁹

The burden of proof is on the government to establish probable cause, but once that is shown, the burden shifts to the defendant to show by a preponderance of the evidence that the property is not in fact subject to forfeiture.¹⁶⁰ Courts have also relied on established forfeiture law in rejecting claimants' defense of innocence, noting that innocence is not, standing alone, a sufficient defense to forfeiture.¹⁶¹ Moreover, the entire res is subject to forfeiture, not just the portion unlawfully imported.¹⁶²

[17 ELR 10235]

Deciphering Congressional Commitment

Some indication of perceived legislative commitment to the goals of CITES can be derived from the actions taken in the rare instances in which legislative involvement has occurred in the CITES process.

United States' Reservations: Indeed, Congress has shown some ambivalence about its commitment to the CITES process. In one instance, Congress threatened to emasculate the very concept of international cooperation embedded in the treaty by requiring the United States to enter a reservation whenever it disagreed with an action taken by the majority of CITES Parties. In 1981, at the third biennial Conference of the Parties, the Parties made a controversial decision to list all parrots on Appendix II.¹⁶³ The rationale for the inclusion of some 300 species, many of which were not in trade, was that it was necessary as a protective measure since depletion of the populations of trade species would result in a shift to currently untraded, unprotected species.¹⁶⁴ Concern was expressed by some Parties, including the United States, that such a mass listing was in contravention of the criteria established by the Parties for listing on the appendices and that a mass listing on Appendix II, under the argument that it was necessary to control species similar to those already in trade, was inappropriate.¹⁶⁵

Although the United States opposed the proposal, and contemplated the possibility of entering a reservation against the listing, it did not in fact do so within the 90-day period and has abided by the requirements imposed by the listing.¹⁶⁶

Congress reacted to this incident in the 1982 ESA Amendments. Citing its "alarm] [ over past practices in which it appeared that the decision on whether or not to enter a reservation was based on political, and not biological, factors,"¹⁶⁷ it added a paragraph requiring a report to Congress whenever the United States delegation to the Conference of the Parties votes against the inclusion of any species on the CITES appendices but a reservation is not subsequently entered.¹⁶⁸

Regulation of Trade in Appendix II Species: In 1981, the District of Columbia Circuit Court of Appeals ruled in Defenders of Wildlife v. Endangered Species Scientific Authority¹⁶⁹ (Defenders I) that the government had incorrectly applied the requirement of Article IV of CITES that trade in Appendix II species may only be allowed upon a finding that such trade will not be detrimental to the survival of the species.¹⁷⁰ The court held that the use of population trend data to determine appropriate bobcat harvest levels in the states violated this requirement of a "no detriment" finding since the data did not provide the total bobcat population in each state or the number to be killed in a particular season in each state.¹⁷¹

Congress reacted swiftly. The 1982 ESA Amendments added a new paragraph to § 8A, the CITES implementation section, specifically stating that the Secretary need not make estimates of population size in making the "no detriment" finding.¹⁷² The District of Columbia Circuit subsequently held that Congress had overruled its earlier decision.¹⁷³ It should be noted that a continuing concern of the Parties has been the inability of many wildlife-exporting countries to properly implement the "no detriment" provisions of the Convention.¹⁷⁴ The argument used by these countries is that they simply do not have the biological data necessary to fully evaluate the "no detriment" issue with regard to a particular species export. Although there is some debate as to how much population data is necessary to arrive at a defensible "no detriment" finding, Congress' action could be interpreted as condoning decisionmaking under CITES in the absence of adequate biological data.

Conclusions

The full picture of United States CITES implementation cannot be evaluated through this initial look at the enforcement infrastructure and its limited use of legal sanctions. Although there are instances of enforcement enthusiasm with respect to CITES violations in the United States, it [17 ELR 10236] is unclear what impact the sanctions as written and as actually imposed are actually having on behavior of wildlife traders and purchasers, and ultimately on the neutralization of trade impacts on the biological status of species. Measures to decrease demand for wildlife and its products have been slow to develop,¹⁷⁵ and as is evident in other areas such as the drug trade, demand will generally be met by supply. The illegal wildlife trade into and out of the United States has certainly continued to flourish in the face of enforcement actions thus far undertaken. Other evidence would be required to show that behavioral changes are actually taking place.

There can be no doubt that implementation of CITES is very difficult to achieve. There are too many shipments to sufficiently inspect for evidence of illegal trade. Documentation difficulties abound, making enforcement certainty impossible. Wildlife inspectors and agents face political pressures to allow questionable shipments through. These pressures may result in a legalistic enforcement strategy that does not relate to the biological priorities.¹⁷⁶ Finally, there may not be much inclination in the various branches of government to focus on effectively penalizing violations.

CITES is a legal measure where, due to the many conceptual and actual implementation difficulties involved, success needs to be proven rather than assumed. With other laws, a case study showing failure might be a surprise; with CITES, a case study showing success would be the surprise. The difficulties encountered in implementing CITES in the United States can only be magnified in other countries with fewer resources and less sophisticated infrastructure to dedicate to the issue.

1. Agreement on the Conservation of Polar Bears, Nov. 1, 1976, T.I.A.S. No. 8409, ELR STAT. 40317 [hereinafter Polar Bear Convention].

2. See, e.g., Convention for the Protection of Migratory Birds, Aug. 16, 1916, United States-Great Britain, 39 Stat. 1702, T.S. No. 628; Convention for the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, United States-Mexico, 50 Stat. 1311, T.S. No. 912; Convention for the Protection of Migratory Birds in Danger of Extinction and their Environment, Mar. 4, 1972, United States-Japan, 88 Stat. 190, 25 U.S.T. 3329, T.I.A.S. No. 7990, ELR STAT. 40344. See also Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Feb. 2, 1971, 11 I.L.M. 963.

3. International Convention for the Regulation of Whaling, Dec. 2, 1946, 62 Stat. 1716, T.I.A.S. No. 1849, 161 U.N.T.S. 72.

4. Acid rain has been a subject of dispute between the United States and Canada for quite some time. In early April 1987 Canadian Prime Minister Brian Mulroney proposed that an accord between the two countries be negotiated on the subject. 17 CURRENT DEV. (BNA) 2078 (Apr. 10, 1987). Acid rain has, of course, been a topic of concern in Europe for years. See generally G. WETSTONE & A. ROSENCRANZ, ACID RAIN IN EUROPE AND NORTH AMERICA: NATIONAL RESPONSES TO AN INTERNATIONAL PROBLEM (1983); Wetstone, Acid Rain in Europe and North America: U.S. Lags in Commitment to Control, 13 ELR 10096 (Apr. 1983). Members of Congress have also attempted to pass unilateral measures to decrease United States' emissions that contribute to the international acid rain problem. See, e.g., S. 321, 100th Cong., 1st Sess., 133 CONG. REC. S865, 17 ELR 10086 (daily ed. Jan. 16, 1987); S. 316, 100th Cong., 1st Sess., 133 CONG. REC. S849, 17 ELR 10086 (daily ed. Jan. 16, 1987); S. 300, 100th Cong., 1st Sess., 133 CONG. REC. S650, 17 ELR 10085-86 (daily ed. Jan. 6, 1987); S. 95, 100th Cong., 1st Sess., 133 CONG. REC. S359, 17 ELR 10085 (daily ed. Jan. 6, 1987). Several of these bills are quite similar to bills introduced in the 99th Congress.

5. Recent studies have indicated that the breakdown of atmospheric ozone as a result of human activities may cause irreversible climate changes in the not too distant future, perhaps as soon as the end of the century. WORLD RESOURCES INST., WORLD RESOURCES 1986 at 171 (1986); WORLDWATCH INST., STATE OF THE WORLD 1987 at 161 (1987). As a result of the growing concern, attempts have been made to reach an international accord to protect the atmosphere as a resource and to limit the production of chemical chlorofluorocarbons (CFCs), commonly recognized as a cause of the reduction in stratospheric ozone. The Vienna Convention for the Protection of the Ozone Layer, the first international instrument to protect ozone, was signed in 1985, but failed to set such limits in the text of the Convention itself. Subsequent working groups have been attempting to work out protocols. See, e.g., CFCs: Preparation of Protocol, 17 ENVTL. POL'Y & L., Jan./Feb. 1987, at 11. Several bills aimed at taking unilateral measures to protect the ozone layer have recently been introduced in Congress. S. 571, 100th Cong., 1st Sess., 133 CONG. REC. S2288, 17 ELR 10131 (daily ed. Feb. 19, 1987) (bill to phase out within six years the production of 95 percent of certain CFCs and ban the importation of suspect CFCs within 12 months); S. 570, 100th Cong., 1st Sess., 133 CONG. REC. S2282, 17 ELR 10131 (daily ed. Feb. 19, 1987) (bill to reduce CFC production levels and develop alternative technologies).

6. Genetic variability within species is as valuable to species' survival as variability among species. The loss of genetic resources of both kinds has been a source of increasing concern. Although much of the focus has been on the genetic base of world food crops, the genes of wild plant and animal species can also be of significant value. The commercialization of the genetic engineering industry may, if environmental concerns can be adequately addressed, increase the potential value of certain species by enabling researchers to enhance genetic traits that are useful in medicine and agriculture. For a discussion of the economic value of particular genetic attributes, see N. Myers, The Sinking Ark 57 (1979), and P. EHRLICH & A. EHRLICH, EXTINCTION: THE CAUSES AND CONSEQUENCES OF THE DISAPPEARANCE OF SPECIES 53 (1981). For a general introduction to the science and politics of genetic resources conservation, see 16 IUCN BULL., Nos. 1-3, Jan./Mar. 1985 (special issue, M. Trexler ed.).

7. Mar. 3, 1973, 27 U.S.T. 1987, T.I.A.S. No. 8249, 993 U.N.T.S. 243, ELR STAT. 40336.

8. Calculating the value of the wildlife trade is difficult for several reasons. First, one must consider whether products such as ranched furs and artificially propagated plants should be included. Second, the dollar value of wildlife at the time of import often bears little relationship to the retail value. The World Wildlife Fund has estimated the declared value of the international wildlife trade to be at least $5 billion. World Wildlife Fund, Factsheet: World Trade in Wildlife (Dec. 1986). If this is in fact the case, the actual retail value would be considerably higher.

9. Interview with Ginette Hemley, Director, Trade Records Analysis of Fauna and Flora in Commerce (TRAFFIC) — U.S.A., in Washington, D.C. (June 8, 1987).

10. World Wildlife Fund, Factsheet: World Trade in Wildlife (Dec. 1986).

11. In recent decades, advances in the global transportation infrastructure, general affluence, and the technologies used to exploit wildlife have set the stage for major increases in the trade of many species, particularly live animals such as tropical fish and reptiles.

12. The combined impacts of habitat destruction and wildlife trade are particularly serious. Through the loss of habitat, species become much more vulnerable to exploitative pressures. The clearing of tropical rain forests for agriculture also makes it much easier to reach and exploit many wildlife species. See generally N. MYERS, supra note 6; P. EHRLICH & A. EHRLICH, supra note 6; H. KOOPOWITZ & H. KAYE, PLANT EXTINCTIONS: A GLOBAL CRISIS (1983). Of the estimated 10 million species of plant and animal wildlife in the world today, 5 to 20 percent may become extinct over the next 20 to 50 years. U.S. AGENCY FOR INTERNATIONAL DEVELOPMENT, A REPORT ON PROGRESS IN CONSERVING BIOLOGICAL DIVERSITY IN DEVELOPING COUNTRIES, FY 1986 (Feb. 1987) (report to Congress in fulfillment of § 119 of the Foreign Assistance Act).

13. Social regulation efforts usually include three elements: (1) a body of governmentally adopted rules, or standards prescribing "responsible" behavior; (2) a cadre of enforcement agents and auditors to monitor, and thereby to deter, deviations from these rules or standards; and (3) a schedule of sanctions to be applied to persons or organizations who deviate from the rules and standards to an unacceptable degree. Bardach, Social Regulation as a Generic Policy Implement, in THE TOOLS OF POLICY (L. Salomon & M. Lund eds., forthcoming Urban Inst. Press).

14. The preamble to CITES specifically states that "peoples and States are and should be the best protectors of their own wild fauna and flora." CITES, supra note 7, Preamble, ELR STAT. 40336. In line with this approach, attempts to "interfere" with the internal wildlife management practices of Parties have been firmly resisted. See, e.g., CITES Secretariat, Summary Report of the Plenary Session,Statement by Canadian Delegation, Plen. 5.8, in PROCEEDINGS OF THE FIFTH MEETING OF THE CONFERENCE OF THE PARTIES at 117, 122 (1986) [hereinafter PROCEEDINGS OF THE FIFTH MEETING]. A rare exception can be seen in a resolution passed by the Parties relating to the destruction of plant habitat and recommending that the in situ protection of Appendix I plants be considered a national and international obligation. Improving the Regulation of the Trade in Plants, Conf. 5.14, in PROCEEDINGS OF THE FIFTH MEETING, supra, at 59. Adoption of this Resolution can probably be explained by the fact that plants are of so little interest to the majority of the Parties to CITES that its language and adoption may have gone unnoticed.

15. CITES, supra note 7, art. II, para. 1, ELR STAT. 40336. Currently, some 700 animal species and several thousand plant species are listed on Appendix I. Not all of these plant species are actually endangered; due to the difficulty of differentiating between closely related species, entire genera, such as the cactus genus Turbinicarpus, have been placed on Appendix I.

16. But see infra discussion of exemptions at text accompanying notes 24-31.

17. CITES, supra note 7, art. III, para. 2, 3, ELR STAT. 40336. A specimen is defined as any animal or plant, whether alive or dead, or any readily recognizable part or derivative of such animal or plant. Id. art. I, para. (b), ELR STAT. 40336.

18. Id. art. II, para. 2(a), ELR STAT. 40336. Some 40,000 species are listed on Appendix II, but this number is somewhat deceiving; most of these are entire genera of plants, such as cacti and orchids. Many individual listed species may not be threatened by trade at all, but are listed because of the difficulty of distinguishing them from species that are in fact threatened.

19. Id. art. IV, para. 2, ELR STAT. 40336. Specifically, the relevant governmental agencies in the country of origin are supposed to determine that:

(a) export will not be detrimental to the survival of the species;

(b) the particular specimen was not obtained in contravention of the country of origin's wildlife protection laws; and

(c) live animals will be shipped so as to minimize the risk of injury, damage to health, or cruel treatment.

Id.

20. Id. art. II, para. 3, ELR STAT. 40336. Appendix III has been described as "an internationalized Lacey Act." M. BEAN, EVOLUTION OF NATIONAL WILDLIFE LAW 328, n. 45 (1983).

21. CITES, supra note 7, art. V, para. 2, ELR STAT. 40337.

22. The development of specific criteria to be used in the listing or delisting of species on the Appendices was one of the first orders of business at the first biennial Conference of the Parties in 1976. See CITES Secretariat, Criteria for the Addition of Species and Other Taxa to Appendices I and II and for the Transfer of Species and Other Taxa From Appendix I, Conf. 1.1, in PROCEEDINGS OF THE FIRST MEETING OF THE CONFERENCE OF THE PARTIES 31 (1977) [hereinafter PROCEEDINGS OF THE FIRST MEETING]; Criteria for the Deletion of Species and Other Taxa From Appendices I and II, Conf. 1.2, in PROCEEDINGS OF THE FIRST MEETING, supra, at 33. Notwithstanding these early actions, the issue has repeatedly caused conflict. A significant reason for this is that a number of species were originally listed on Appendix I at the plenipotentiary conference in 1973 at which the treaty was signed without firm biological data to support the listing. Attempts to have these species removed from the Appendix have been thwarted by the continuing absence of data.

23. CITES, supra note 7, art. XV, ELR STAT. 40339. The original lists were determined by the Plenipotentiary Conference in Washington in 1973. The Convention also allows a postal vote to be taken in between meetings of the Parties. Id. Noncontroversial listings have been added by this method several times. See, e.g., Report of the Secretariat, Doc. 5.8, in PROCEEDINGS OF THE FIFTH MEETING, supra note 14, at 265, 268 (1986) (giant panda).

One leading wildlife legal expert has concluded that the establishment of the appendices was CITES' "most significant innovation," since it created a unique scaling system for degrees of danger to a species and a regulatory system to go along with this. M. BEAN, supra note 20, at 325. Unfortunately, political pressures and an absence of reliable biological data have created a situation in which the scientific legitimacy of the Appendices can be questioned.

24. CITES, supra note 7, art. VII, para. 1, ELR STAT. 40337.

25. Id. para. 2, ELR STAT. 40337.

26. Id. para. 3, ELR STAT. 40337.

27. Id. para. 4, ELR STAT. 40337.

28. Id. para. 6, ELR STAT. 40337.

29. Id. art. XXIII, ELR STAT. 40340. A Party may enter a reservation during the 90 days after the date the species is listed on the appendix. Id. art. XV, para. 3, ELR STAT. 40339 (amendments to Appendices I and II); art. XVI, para. 2, ELR STAT. 40339 (amendments to Appendix III). Reservations have generally been taken on Appendix I species involving valuable resources such as sea turtles and crocodiles.

30. For a discussion of some of the difficulties created by the CITES reservation provision, see Comment, Reservations Regarding the Reservations Clause, 14 CORNELL INT'L L.J. 430 (1981). Reservation provisions are not uncommon in international conservation instruments. They are considered a necessary component in international law to reassure a country that at a fundamental level it cannot be forced to take measures it does not want to take. One commentator concludes that a reservation provision results in a situation where "political bargaining based on larger considerations of policy and power would be all-important in actual decisionmaking." M'Gonigle, The "Economizing" of Ecology: Why Big, Rare Whales Still Die, 9 ECOLOGY L.Q. 119, 135 (1980).

The text of the Convention does not require a country holding a reservation on an Appendix I species to submit trade documentation for the species. However, the Parties have resolved that Parties holding Appendix I reservations should nevertheless prepare and submit trade documentation as if the species were on Appendix II. CITES Secretariat, Effects of Reservations, Conf. 4.25, in PROCEEDINGS OF THE FOURTH MEETING OF THE CONFERENCE OF THE PARTIES 81 (1984) [hereinafter PROCEEDINGS OF THE FOURTH MEETING].

31. See, e.g., Definition of "In Transit," Conf. 4.10, in PROCEEDINGS OF THE FOURTH MEETING, supra note 30, at 53; Definition of "Pre-Convention Acquisition," Conf. 5.11, in PROCEEDINGS OF THE FIFTH MEETING, supra note 14, at 52; Control of Tourist Souvenir Specimens, Conf. 4.12, in PROCEEDINGS OF THE FOURTH MEETING, supra, at 57; CITES Secretariat, Ranching, Conf. 3.15, in PROCEEDINGS OF THE THIRD MEETING OF THE CONFERENCE OF THE PARTIES 65 (1982) [hereinafter PROCEEDINGS OF THE THIRD MEETING].

32. Under the Treaty of Rome, member countries of the European Economic Community are bound to adhere to the rules of the Community in certain areas.

33. The establishment of a professional full-time staff was a fairly unusual provision in an international environmental instrument at the time CITES was drafted. One commentator has concluded that the authority granted to the CITES Secretariat to gather information on the Convention's operation, investigate enforcement problems, and provide scientific data has been instrumental in making the Secretariat an effective organization. M'Gonigle, supra note 30, at 214; see also S. LYSTER, INTERNATIONAL WILDLIFE LAW 277 (1985). Conventions adopted since CITES have followed its lead, citing the example of CITES Secretariat as a reason for that treaty's "success." See, e.g., Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, art. IX, 19 I.L.M. 15, [hereinafter Bonn Convention, after city in West Germany where it was signed].

34. CITES, supra note 7, art. IX, para. 1(a), ELR STAT. 40338.

35. Id. para. 1(b), ELR STAT. 40338.

36. It is common regulatory practice to establish new bureaucratic entities for purposes of implementing major new legislative initiatives. This makes it possible to put into place a cadre of individuals dedicated to the carrying out of the new legislative mandate, something that might not occur if the implementing responsibility were simply added to the priorities and programs of an existing institution. In the case of CITES, the intent is similar. In most cases, however, implementing responsibilities have been assigned to existing organizations, where they must compete with other programs and priorities. In the United States, the Fish and Wildlife Service is charged with CITES implementation; in Switzerland, it is the Federal Veterinary Office.

37. Although a number of Parties have implemented CITES exceedingly poorly, several in particular have been singled out by the CITES Secretariat and the Parties for public castigation. These include Bolivia, Japan, and the United Arab Emirates. Only Bolivia, however, has been censured by the Parties in a formal Resolution. See Implementation of the Convention in Bolivia, Conf. 5.2, in PROCEEDINGS OF THE FIFTH MEETING, supra note 14, at 38; Report of the Secretariat, Doc. 5.8, in PROCEEDINGS OF THE FIFTH MEETING, supra, at 265.

38. CITES, supra note 7, art. VIII, para. 1, ELR STAT. 40339. The language of the treaty does not specify the sanctions to be employed, just that they be "appropriate." Understandably, this has led to wide variations in the sanctions available under the laws of different countries.

39. Id. art. VIII, para. 7, ELR STAT. 40338.

40. Id. art. XI, para. 7, ELR STAT. 40338. Cf. the International Convention for the Regulation of Whaling, supra note 3, which originally allowed only for extremely limited participation by NGOs, and did not encourage their participation in annual meetings of the International Whaling Commission or in meetings of technical and scientific committees. See M'Gonigle, supra note 30, at 195. Compared to the whaling convention, CITES "actively fosters cooperation" for purposes of tracking wildlife trade. Id. at 198.

41. However, there have been recent efforts on that part of some Parties to circumscribe the role played by NGOs at the Conferences of the Parties. See Statement of Canadian Delegation, in PROCEEDINGS OF THE FIFTH MEETING, supra note 14.

42. NGOs, both conservation- and trade-oriented, have contributed, inter alia, to the development of publicity material on CITES; printing export permits for Bolivia and Paraguay on special security paper; population studies on South American spotted cats and otters; and regional training seminars for officials from the Management Authorities of less developed countries. See, e.g., Report from the Secretariat: External Funding, Doc. 4.11, in PROCEEDINGS OF THE FOURTH MEETING, supra note 30, at 343. NGOs also paid the expenses of more than 30 delegates to the Fifth Conference of the Parties. Summary Report of the Plenary Session, Plen. 5.3, in PROCEEDINGS OF THE FIFTH MEETING, supra note 14, at 97. The NGOs contribute much more than funding studies and sending participants to the Conferences of the Parties. Many NGOs actively investigate alleged incidents of illegal wildlife trading on their own. See, e.g., World Wildlife Fund, Raid Nets Parrot Smugglers in Paraguay (Mar. 26, 1987) (press release announcing recovery of two poached Appendix I Spix's macaws).

43. Although the Secretariat and the Parties constantly request the NGOs to contribute funds, in some cases NGO sponsorship has been controversial. Following the Fifth Conference of the Parties in 1985, the U.S. Government Accounting Office (GAO) was asked to investigate charges that NGO payments for travel and expenses of delegates were intended to influence their voting at the Conference. The GAO report found no evidence of such impacts. U.S. GENERAL ACCOUNTING OFFICE, INTERNATIONAL ORGANIZATIONS: PRIVATE FUNDING OF DELEGATE TRAVEL (Oct. 1986).

44. See generally N. MYERS and P. EHRLICH & A. EHRLICH, supra note 6.

45. See, e.g., Polar Bear Convention, supra note 1; Convention on the Conservation of Antarctic Marine Living Resources, May, 1980, T.I.A.S. No. 10240, 19 I.L.M. 841; International Convention for the Regulation of Whaling, supra note 3. See also treaties listed supra note 2.

46. Ongoing trade regulation is also something that politicians can point to at home and abroad as evidence of something being done to address the problem of species extinctions. The establishment of a bureaucracy, the annual expenditure of funds from a state treasury, and the existence of a paper trail that can be followed are all clear indicators that some activity is taking place, as compared to the static existence of a nature preserve.

47. This can be problematic, since the biologically rich nations are the economically poorer nations.

48. Other treaties have called upon nations to take action concerning habitat conservation, with virtually no result. See, e.g., Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, Oct. 12, 1940, 56 Stat. 1354, T.S. No. 982; African Convention on the Conservation of Nature and Natural Resources, Sept. 15, 1968, 1001 U.N.T.S. 3. For a discussion of the problems encountered in implementing these and other conventions, see R. Orenstein, The Role of International Law in the Conservation of Wildlife (1983) (unpublished manuscript, available from authors).

49. See, e.g., Western Hemisphere Convention, African Convention, supra note 48.

50. The push to obtain as universal an application for CITES as possible has been consistently pushed by the Secretariat and the Parties. No attention has been paid to the countervailing difficulties of managing CITES as the number of Parties has grown, and to the problems caused by weak links in worldwide implementation.

51. In rare cases, trade is the key threat facing a species, as it is for several rhinoceros species. In such cases, the impact of trade controls could be more than moderating. The economic value of rhino horn, however, makes it almost impossible for trade controls to stop the trade.

52. Utilizing these variables and others, the field of implementation and public policy analysis has delved into the successes and failures of public policy initiatives. See, e.g., E. BARDACH, THE IMPLEMENTATION GAME (1977); P. SABATIER & D. MAZMANIAN, IMPLEMENTATION (1983); SOCIAL REGULATION: STRATEGIES FOR REFORM (E. Bardach and R. Kagan eds. 1982). Most of the analysis to date, however, has focused on the implementation of domestic programs in the United States and, to some extent, Western Europe.

53. CITES Parties are required to submit annual reports on their trade in CITES species. CITES, supra note 7, art. VIII, para. 7(a), ELR STAT. 40338. Although these reports have become more and more voluminous, attempts to analyze the trade using these statistics have proven difficult. Generally, it is found that the quality of the reporting is so poor that firm conclusions cannot be made regarding the trade in a particular species or group of species. Statistical analysis of the annual reports by the World Trade Monitoring Unit (WTMU) in Cambridge, England, has revealed that at least 60 to 69 percent of transactions involving animals and 73 to 84 percent of transactions involving plants went completely unreported during the period 1981-1983. Report on National Reports Under Article VIII, Paragraph 7 of the Convention, Doc. 5.17, in PROCEEDINGS OF THE FIFTH MEETING, supra note 14, at 375. The percentages were 45 percent and 79 percent respectively for the period 1979-1980. Report on National Reports Under Article VIII, Paragraph 7 of the Convention, Doc. 4.18, in PROCEEDINGS OF THE FOURTH MEETING, supra note 30, at 434. There are virtually no perfect correlations between specimens reported exported from one country and reported imported by another.

54. IUCN's 1963 General Assembly in Nairobi, Kenya, adopted this recommendation, and a resolution was passed calling on IUCN to draft an international treaty on trade in endangered species. See R. BOARDMAN, INTERNATIONAL ORGANIZATION AND THE CONSERVATION OF NATURE 88 (1981).

55. See, e.g., Western Hemisphere Convention, art. IX; African Convention, art. IX, supra note 48.

56. CITES came into force on July 1, 1975, with its ratification by 10 countries.

57. Although a total of 95 Parties has been reached, the United Arab Emirates (UAE), one of the original 10 ratifying nations, recently notified the CITES Secretariat of its intent to withdraw from the treaty. The UAE had been criticized for failing to implement CITES' provisions. It is the only country so far that has withdrawn from the treaty.

58. One could argue that the attention devoted to the International Convention for the Regulation of Whaling (ICRW), supra note 3, is an exception to this statement. The ICRW, however, was an agreement designed more to be able to continue whale exploitation rather than to conserve whale populations. And even the ICRW received little attention from many countries and organizations for the first 30 years of its existence. See generally M'Gonigle, supra note 30.

59. The Convention provides for a permanent Secretariat, currently located in Lausanne, Switzerland. CITES, supra note 7, art. XII, ELR STAT. 40338. Every two years, the Parties hold a meeting at which they are required by the terms of CITES to evaluate and assess the current status of international trade in the species they have listed as being subject to regulation, to add species to or delete species from these lists, and to discuss means of improving implementation of the measures called for by the treaty. Id. art. XI, ELR STAT. 40338. The actual focus of the meetings has tended to be in the area of amending the Appendices of regulated species, and to further interpret the text of the Convention. There has been little discussion of the actual status of CITES implementation in Party states.

60. See supra note 33.

61. The Secretariat's estimated budget for the period 1986-87 was about $1.5 million. Budget for 1986-87, Doc. 5.10, in PROCEEDINGS OF THE FIFTH MEETING, supra note 14, at 298. Under CITES' terms, each Party is also required to establish administrative organs, both management and scientific, for administering the issuance of CITES permits. In addition, Parties are to monitor exports and imports of wildlife products to assure the presence of valid permits for CITES species. See supra note 19 and accompanying text. In cases where these duties were subsumed by existing organizations, the incremental cost of CITES may not have been dramatic. In other cases where new organizations were established for these purposes, the costs would have been significant.

62. The TRAFFIC network, for example, was established specifically for the purpose of tracking trade in wildlife and wildlife products. Run in association with the World Wildlife Fund, TRAFFIC has offices in 10 countries on 5 continents.

63. World Wildlife Fund, Factsheet: CITES (Dec. 1986). International efforts to deal with the conservation of wildlife resources have generally been more noteworthy for their lack of cohesiveness than for their success and effectiveness. The problems faced by the International Whaling Commission since its inception in 1946, for example, serve as a prime example of what happens when nations come together to discuss renewable resources; they focus almost exclusively on their own self-interest. See generally M'Gonigle, supra note 30; R. Orenstein, supra note 48.

Other less well-known legal instruments that have been adopted to deal with wildlife resource issues have suffered from a lack of political commitment by member nations, from inadequacy in basic provisions, and from complete lack of funding. The Western Hemisphere Convention, supra note 48, for example, was signed by the United States in 1940 and ratified in 1941; yet Congress did not enact any implementing legislation for the convention until it enacted the 1973 Endangered Species Act. See § 8A(e) of the Act, 16 U.S.C. § 1537a, ELR STAT. 41832:1. Even then, no funds were appropriated for implementation until the enactment of the 1982 amendments to the ESA, at which time Congress allotted $150,000 to the Fish and Wildlife Service for implementation of the Convention for each of the fiscal years 1983-1985. UNITED STATES FISH AND WILDLIFE SERVICE, FAUNAL AND FLORAL CONSERVATION IN LATIN AMERICA AND THE CARIBBEAN: A REPORT TO CONGRESS ON IMPLEMENTATION OF THE WESTERN HEMISPHERE CONVENTION 2 (1985).

64. Confidential interview with Fish and Wildlife official in Washington, D.C. (Apr. 1987).

65. And if trade impacts are neutralized through CITES while the species becomes extinct through loss of habitat, the success of CITES would ring hollow.

66. In any attempt to force socially responsible behavior, as opposed to promoting it through subsidies or other positive reinforcements, violations must be penalized in some way if individuals are to be expected to change their behavior. Yet even in cases where strict sanctions often are imposed, e.g., illegal drugs entering the United States the trade continues. Moreover, the link between these sanctions and abandonment of the growing of coca in Bolivian forests is tenuous at best. The same can be said for the link between U.S. sanctions in CITES and the actual taking of wildlife. In the absence of sanctions, however, failure of a restrictive policy is virtually guaranteed.

67. Other observers have concluded that the apex of bureaucratic interest and involvement in CITES has already passed, and that implementation will become more and more bureaucratic (and less effective) as time goes on. Interview with G. Lucas, Royal Botanic Gardens, in Gland, Switzerland (June 7, 1984).

68. See supra text accompanying notes 34-35.

69. A problem that negatively affects the establishment of this infrastructure is the tendency of most government bureaucracies to rotate civil servants from position to position. For some Management Authorities, this results in a different delegation at every biennial Conference of the Parties. Turnover is likely to be even higher in field enforcement positions, e.g., wildlife and customs inspectors. It is therefore extremely difficult to maintain even the minimum of expertise needed to effectively carry out CITES-mandated obligations.

70. The Management and Scientific Authorities were designated by presidential order in April 1976. Exec. Order No. 11911, 41 Fed. Reg. 15683, ELR REG./ADMIN. MATERIALS 45021 (1976).

71. 50 C.F.R. part 23 (1986).

72. Four Parties promulgated domestic regulations prior to the United States: Canada, Switzerland, the United Kingdom, and West Germany. Endangered Species Permits Required May 23: Enforcement Starts, 2 ENDANGERED SPECIES TECHNICAL BULL. 2 (Mar. 1977).

73. See supra note 9 and accompanying text.

74. Interview with J. Smith, Fish and Wildlife Service, Division of Law Enforcement, in Washington, D.C. (Nov. 1984); Wildlife Imports Increase While Law Enforcement Budget Stagnates, 2 TRAFFIC-U.S.A., No. 2, 1981, at 4 ("well over" 40,000).

75. J. Smith, supra note 74.

76. Id. Opening up containerized shipments is a labor-intensive, time-consuming, costly task. A single container can be the size of a large truck; tons of material are enclosed. Consignees and owners of property are not hesitant about complaining to high level agency officials or calling their congressional representative to complain about a shipment being held for investigation. Confidential interview with FWS wildlife inspector (Mar. 1987). Moreover, persons intent on avoiding the system can usually do so by using the mail, since only a small percentage of undeclared shipments are checked and many mail facilities do not have sufficiently advanced equipment to detect hidden wildlife and wildlife products. Confidential interviews with FWS wildlife inspectors (Feb. 1985). See F. Campbell and L. McMahan, Article on Cactus Trade, in CALIFORNIA CACTUS GROWERS ASSOCIATION NEWSLETTER, May 1983, at 3 (discussing problems of CITES enforcement for plants).

77. 16 U.S.C. §§ 1531-1543, ELR STAT. 41825. In practice, wildlife law enforcement officials in this country often resort to other statutes even when CITES-listed species are involved. Some of the more commonly used enforcement statutes include the customs laws and the conspiracy and smuggling statutes. See infra text accompanying notes 134-139.

78. See supra text accompanying notes 45-50.

79. The Endangered Species Act has been referred to as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Authority v. Hill, 437 U.S. 153, 180, 8 ELR 20513, 20519 (1978).

The stated purposes of the ESA are to preserve ecosystems, to conserve endangered and threatened species, and to achieve the purposes of several treaties, CITES included. ESA § 2(b), 16 U.S.C. § 1531(b), ELR STAT. 41825.

80. ESA § 8A, 16 U.S.C. § 1537A, ELR STAT. 41832:1. CITES is also addressed in two other subsections. In ESA § 2(a)(4)(F), Congress finds that the United States has pledged to conserve endangered wildlife pursuant to CITES. 16 U.S.C. § 1531(a)(4)(F), ELR STAT. 41825. Section 9(c)(1) makes it unlawful to engage in trade or possess any specimens traded contrary to CITES' provisions. 16 U.S.C. § 1538(c)(1), ELR STAT. 41832:2. It has been stated that the treaty provided significant "conceptual underpinnings" for the ESA. M. Bean, supra note 20, at 325. A related international provision provides that the United States will enter into conservation agreements with foreign nations, provide assistance in personnel and funding to other nations and international organizations, and conduct enforcement investigations and research. ESA § 8, 16 U.S.C. § 1537, ELR STAT. 41832.

81. Compare species listed at 50 C.F.R. Parts 17 (ESA listings) and 18 (marine mammals listings) with those listed at 50 C.F.R. § 23.23 (CITES listings).

82. The purposes of CITES and of the ESA are very different. Compare ESA § 2(b) ("The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved …") with CITES Preamble ("international cooperation is essential for the protection of certain species of wild fauna and flora against over-exploitation through international trade"). See also supra notes 78-79 and accompanying text. Also, listing a species on the ESA list may bring into play additional protections, such as the designation of critical habitat for species indigenous to the United States. The U.S. government may agree to abide by the Parties' decision to list a species or genera on the CITES' Appendices, while concluding that the listing does not conform to ESA criteria.

83. The Fish and Wildlife Service stated from the very beginning that it did not intend to propose every species listed by the CITES Parties for listing under the ESA. Endangered Species Treaty Permits Required May 23: Enforcement Starts, 2 ENDANGERED SPECIES TECHNICAL BULL. 2 (Mar. 1977). The premise works both ways, since the ESA is in certain respects more stringent than CITES. This is permissible under the treaty's provisions allowing for more stringent domestic measures. CITES, supra note 7, art. XIV, para. 1, ELR STAT. 40338.

84. ESA § 8A(a), 16 U.S.C. § 1537a(a), ELR STAT. 41832. Originally, the Scientific Authority was a separate semiautonomous committee established by presidential order. The Endangered Species Scientific Authority had representatives from six federal agencies, including the Department of the Interior, and the Smithsonian Institution. 2 ENDANGERED SPECIES TECHNICAL BULL. 3 (Oct. 1977). The functions of the Management and Scientific Authority were consolidated in the Fish and Wildlife Service with the 1979 amendments to the ESA.

85. Under the ESA's domestic provisions, the National Oceanic and Atmospheric Administration (NOAA) is responsible for endangered and threatened marine species. 50 C.F.R. parts 216-228 (1986). This may overlap with the United States' CITES responsibilities, under which the FWS is the responsible agency. See, e.g., Newell v. Baldridge, 548 F. Supp. 39, 13 ELR 20476 (digest) (W.D. Wash. 1982) (NOAA investigation resulting in ESA, Lacey Act civil penalties for import of endangered sea turtles).

86. The FWS, however, often still handles interstate undercover investigations relating to illegal plant activity. Interview with D. McMullen, Assistant Regional Director for Law Enforcement, in Portland, Oregon (Mar. 30, 1987). There is currently a proposal to transfer APHIS' responsibilities to the Fish and Wildlife Service. Endangered Species Office Revamped, LAND LETTER, May 1, 1987, at 4.

87. ESA § 9(a)(1), 16 U.S.C. § 1538(a)(1), ELR STAT. 41832:1. Import is defined as

to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of 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.

ESA § 3(10), 16 U.S.C. § 1532(10), ELR STAT. 41826. See United States v. 3,210 Crusted Sides of Caiman Crocodilus Yacare, 636 F. Supp. 1281, 16 ELR 20889 (S.D. Fla. 1986) (unscheduled landing at United States airport within meaning of "import" under ESA and Lacey Act).

88. ESA § 9(c), 16 U.S.C. § 1538(c), ELR STAT. 41832:2.

89. ESA § 9(d), 16 U.S.C. § 1538(d), ELR STAT. 41832:2.

90. ESA § 11(b)(1), 16 U.S.C. § 1540(b)(1), ELR STAT. 41832:5.

91. ESA § 11(b)(3), 16 U.S.C. § 1540(b)(3), ELR STAT. 41832:5.

92. ESA § 11(b)(1), 16 U.S.C. § 1540(b)(1), ELR STAT. 41832:5. Maximum penalties under the ESA are higher for violations involving endangered, rather than threatened, species. Id. Compare §§ 9(a)(1)(A)-(F) (listing unlawful activities involving endangered species) with § 9(a)(1)(G) (making it unlawful to violate regulations promulgated by the Secretary pertaining to threatened species). ESA §§ 9(a)(1)(A)-(G), 16 U.S.C. §§ 1538(a)(1)(A)-(G), ELR STAT. 41832:1.

93. Pub. L. No. 98-473, 98 Stat. 1987, as amended by Pub. L. No. 99-217, 99 Stat. 1728 (codified throughout 18 U.S.C.).

94. 18 U.S.C. § 3623(a)(5), (b)(5) (section to be repealed effective Nov. 1, 1987).

95. 18 U.S.C. § 3571(b)(1)(B), (b)(2)(B) (effective Nov. 1, 1987).

96. 18 U.S.C. § 3623(c)(1) (section to be repealed effective Nov. 1, 1987).

97. ESA § 11(a)(1), 16 U.S.C. § 1540(a)(1), ELR STAT. 41832:5. As with criminal penalties, these maximum civil penalties can only be applied to violations involving endangered species. See supra note 92.

98. ESA § 11(a)(1), 16 U.S.C. § 1540(a)(1), ELR STAT. 41832:5.

99. ESA § 11(a)(3), 16 U.S.C. § 1540(a)(3), ELR STAT. 41832:5. See supra text at note 91.

100. ESA § 11(a)(1), 16 U.S.C. § 1540(a)(1), ELR STAT. 41832:5. Hearings are conducted in accordance with the Administrative Procedure Act; the standard of review in federal district court is substantial evidence. Newell v. Baldridge, 548 F. Supp. 39, 13 ELR 20476 (digest) (W.D. Wash. 1982).

101. 50 C.F.R. § 12.25 (1986).

102. ESA § 11(b)(2), 16 U.S.C. § 1540(b)(2), ELR STAT. 41832:5.

103. ESA §§ 11(e)(4)(A) and (B), 16 U.S.C. §§ 1540(e)(4)(A) and (B), ELR STAT. 41832:5.

104. 50 C.F.R. § 12.23 (1986) (animals); 7 C.F.R. § 356.4 (1986) (plants).

105. Id.

106. 50 C.F.R. § 12.23 (1986).

107. 16 U.S.C. §§ 3371-3378.

108. The Lacey Act has been referred to as the "cornerstone of federal efforts to conserve wildlife through the regulation of commerce." M. BEAN, supra note 20, at 105. Congress did not originally intend, however, for the Lacey Act to be the start of a major federal program. Id.; S. REP. No. 123, 97th Cong., 1st Sess. 2, reprinted in 1981 U.S. CODE CONG. & ADMIN. NEWS 1748, 1749.

109. S. REP. No. 123, supra note 108, at 2, in 1981 U.S. CODE CONG. & ADMIN. NEWS at 1749; M. BEAN, supra note 20, at 105. Subsequent case law indicates that the Lacey Act expanded the states' power to regulate transportation of wildlife rather than constricting it. See Palmer, Endangered Species Protection: A History of Congressional Action, 4 ENVTL. AFF. 255, 258 (1975).

110. The Lacey Act has undergone several metamorphoses over the years. Originally, the Act prohibited any person to deliver to a common carrier, or for any common carrier to transport from one state or territory to another, wild animals or birds killed in violation of state or territorial law. In 1926 Congress passed separate legislation to protect two species of black bass. Black Bass Act, 16 U.S.C. §§ 851-856 (repealed). Both statutes were amended several times. In 1981, amendments to the Lacey Act repealed all of the Black Bass Act and a substantial portion of the existing Lacey Act and consolidated the provisions of both statutes into one new, significantly revised, Lacey Act. 16 U.S.C. §§ 3371-3378. For a more detailed discussion of the various amendments to the Lacey Act over the years, see M. BEAN, supra note 20, at 106-111; and Palmer, supra note 109, at 256.

111. "Import" is specifically defined to have the same meaning under the Lacey Act as it does under the ESA. S. REP. No. 123, supra note 108, at 5, in 1981 U.S. CODE CONG. & ADMIN. NEWS at 1752. Both statutes incorporate a meaning of the word that is broader than the definition given under the customs laws. Lacey Act § 3(a), 16 U.S.C. § 3372(a).

112. Lacey Act § 3(a), 16 U.S.C. § 3372(a). The illegal taking or possession of specimens in violation of a treaty or Indian tribal law is sufficient.

Attempts have been made to challenge the Lacey Act's foreign law provision on the grounds that it is unconstitutionally vague. See Anna Marie's, Inc. v. United States Fish and Wildlife Service, No. 84-6540 CIV-ALH (S.D. Fla. June 1984). Constitutional challenges to state law provisions, upon which Lacey Act convictions may be based, have failed. See United States v. Taylor, 477 U.S. __, 106 S. Ct. 2440 (1986) (state ban on importation into state of live baitfish upon which Lacey Act conviction based does not violate Commerce Clause); United States v. Doyle, 786 F.2d 1440, 16 ELR 20519 (9th Cir. 1986) (underlying Montana law upon which Lacey Act felony conviction based not unconstitutionally vague). But cf. United States v. Wulff, 758 F.2d 1121, 15 ELR 20356 (6th Cir. 1985) (felony provision of Migratory Bird Treaty Act lacking scienter element violates due process).

113. Lacey Act. § 3(a)(1), § 3372(a)(1). The 1981 amendments expanded the scope of the Lacey Act so that it now applies to all wild animals and to many plants. Plants that are covered are those that are indigenous to a state and those that are listed on either the CITES appendices or any state list of threatened or endangered species. Lacey Act § 2(f), 16 U.S.C. § 3371(f). Prior to plants'inclusion for protection, there was considerable concern over the impact of interstate commerce in certain species, particularly cacti. See, e.g., Campbell, Conserving Our Wild Plant Heritage, ENVIRONMENT, Nov. 1980, at 14; Campbell, The Lacey Act and the Cactus Collector, 54 CACTUS & SUCCULENT J. 213 (1982).

114. Lacey Act § 4(d)(1)(A), 16 U.S.C. § 3373(d)(1)(A).

115. 18 U.S.C. § 3623(a)(3), (b)(3) (section to be repealed effective Nov. 1, 1987); 18 U.S.C. § 3571(b)(1)(A), (b)(2)(A) (effective Nov. 1, 1987). See supra notes 93-96.

116. Lacey Act § 4(d)(1)(B), 16 U.S.C. § 3373(d)(1)(B).

117. S. REP. No. 123, supra note 108, at 3, in 1981 U.S. CODE CONG. & ADMIN. NEWS at 1750.

118. Lacey Act § 4(d)(2), 16 U.S.C. 3373(d)(2) (making particular conduct unlawful); 18 U.S.C. §§ 3623, 3571 (establishing penalty ceilings). The Lacey Act itself, prior to the Omnibus Crime Control Act, established a ceiling of $10,000 for misdemeanors.

119. S. REP. No. 123, supra note 108, at 3, in 1981 U.S. CODE CONG. & ADMIN. NEWS at 1750.

120. Lacey Act § 4(a)(1), 16 U.S.C. § 3373(a)(1).

121. Id.

122. Lacey Act § 4(a)(4), 16 U.S.C. § 3373(a)(4). Hearings are conducted in accordance with the Administrative Procedure Act and de novo review is available in federal district court. §§ 4(b) and (c), 16 U.S.C. §§ 3373(b) and (c). See S. REP. No. 123, supra note 108, at 11, in 1981 U.S. CODE CONG. & ADMIN. NEWS at 1758.

123. Lacey Act § 4(a)(6), 16 U.S.C. 3373(a)(6).

124. Lacey Act § 5(a)(1), 16 U.S.C. § 3374(a)(1).

125. 50 C.F.R. § 12.23 (1986). See supra text accompanying notes 104-106.

126. Lacey Act § 5(a)(2), 16 U.S.C. § 3374(a)(2).

127. Lacey Act § 4(e), 16 U.S.C. § 3373(e).

128. See M. BEAN, supra note 20, at 113. The amendments clearly extended the Act's prohibitions concerning plants. See supra note 113.

129. S. REP. No. 123, supra note 108, at 2, in 1981 U.S. CODE CONG. & ADMIN. NEWS at 1749.

130. Congress noted that enacting a felony provision in the Lacey Act only helped make that law consistent with the existing customs laws, which applied to unlawful wildlife importations. Thus, the same transaction that would only be a misdemeanor under the pre-1981 Lacey Act would be a felony under 18 U.S.C. § 545, which prohibits "knowing] [ imports … contrary to law." S. REP. No. 123, supra note 108 at 11, 1981 U.S. CODE CONG. & ADMIN. NEWS at 1758.

131. Lacey Act § 4(a), 16 U.S.C. 3373(a); see also S. REP. No. 123, supra note 108, at 3, 9, in 1981 U.S. CODE CONG. & ADMIN. NEWS at 1750, 1756.

132. Id. at 2, in 1981 U.S. CODE CONG. & ADMIN. NEWS at 1749.

133. In Newell v. Baldridge, the only reported case involving Lacey Act civil penalties, the court upheld a $1,000 civil penalty for each of 11 Lacey Act violations involving the import of endangered sea turtles. The court carefully supports its rationale for concluding that the defendant was a commercial operator subject to the Lacey Act's more stringent penalties for such individuals, yet concludes that $1,000 per violation is a significant amount. 548 F. Supp. at 46, 13 ELR 20476 (digest). Standing alone, this does not allow any conclusions regarding severity of sanctions imposed or judicial attitudes toward wildlife offenses. The authors are attempting in ongoing research to evaluate unreported cases and settlements.

134. See, e.g., 19 U.S.C. § 1527 (Tariff Act of 1930, proscribing the importation of protected wild mammals or birds without the appropriate documentation).

135. 18 U.S.C. § 545. Proof of possession of the goods is sufficient evidence for a conviction. The section makes it a felony, subject to a fine of $10,000 or five years imprisonment, or both, to

… knowingly and willfully, with intent to defraud the United States, smuggle] [, or clandestinely introduce] [ … merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper.

The fine is now increased to $250,000 or $500,000 pursuant to the Omnibus Crime Control Act. See supra notes 93-96.

136. 18 U.S.C. § 371.

137. 18 U.S.C. §§ 1341-42; Interview with J. Kilbourne, U.S. Department of Justice, Wildlife and Marine Resources Section, May 26, 1987. See, e.g., United States v. Knap, No. C-87-64-S (S.D. Tex. indictment filed Mar. 11, 1987).

138. The customs laws, for example have been held to authorize forfeiture even where the government has not demonstrated knowledge that the import was illegal. United States v. 53 Eclectus Parrots, 685 F.2d 1131 (9th Cir. 1982).

Moreover, "non-environmental" criminal statutes enable government enforcement officials to charge defendants with felonies where they otherwise might be limited to misdemeanor counts, as under the ESA. See, e.g., United States v. Minnick (D. Ariz. indictment filed May 29, 1986) (charges brought under conspiracy, smuggling, and ESA for illegally importing rare cacti from Mexico into the United States). See supra text accompanying note 92.

139. United States v. Allen (S.D. Tex. July 15, 1983) (three defendants pled guilty to one felony count each of violating 18 U.S.C. § 545 for buying and selling parrots knowing the birds were imported in violation of customs and quarantine laws; $2,500 fine for each and two or three years probation).

140. Although most of the case law on the ESA has involved non-CITES provisions, a small body of case law has begun to be developed. See Cayman Turtle Farms v. Andrus, 478 F. Supp. 125, 9 ELR 20416 (D.D.C. May 29, 1979), aff'd without opinion (D.C. Cir. Dec. 12, 1980) (regulations banning importation of sea turtle products upheld); Man Hing Ivory & Imports, Inc. v. Deukmejian, 702 F.2d 760, 13 ELR 20477 (9th Cir. 1983) (California statute banning trade in African elephant products not preempted by CITES since treaty allows stricter measures); H. J. Justin & Sons v. Deukmejian, 519 F. Supp. 1383, 12 ELR 20179 (E.D. Cal. 1981), rev'd in part on other grounds, 702 F.2d 758, 13 ELR 20479 (9th Cir. 1983), cert. denied 464 U.S. 823 (California statute banning trade in python and kangaroo products not preempted by CITES since treaty allows stricter measures); Defenders of Wildlife, Inc. v. Endangered Species Scientific Authority, 659 F.2d 168, 11 ELR 20306 (D.C. Cir. 1981), cert. denied, 454 U.S. 963 (reliable population estimates and kill levels required for "no detriment" finding under CITES); Defenders of Wildlife, Inc. v. Endangered Species Scientific Authority, 725 F.2d 726, 14 ELR 20188 (D.C. Cir. 1984) (1982 amendments to Endangered Species Act eliminated population estimate and kill level requirements imposed by earlier court decision for bobcat exports under CITES); United States v. 3,210 Crusted Sides of Caiman Crocodilus Yacare, 636 F. Supp. 1281, 16 ELR 20889 (S.D. Fla. 1986) (shipment subject to forfeiture where permit violates CITES requirements).

Several cases have involved CITES species but the government's action was brought under statutes other than the Endangered Species Act. See, e.g., United States v. 53 Eclectus Parrots, 685 F.2d 1131 (9th Cir. 1982) (Tariff Act); United States v. Molt, 589 F.2d 1247 (3d Cir. 1978) (Tariff Act); United States v. Molt, 599 F.2d 1217 (3d Cir. 1979) (Lacey Act); United States v. Molt, 615 F.2d 141 (3d Cir. 1979) (Tariff Act, smuggling and conspiracy statutes); United States v. Molt, 631 F.2d 258 (3d Cir. 1980) (Lacey Act, smuggling statute). See supra text accompanying notes 134-139.

141. See Newell v. Baldridge, 548 F. Supp. 39, 12 ELR 20476 (digest). At the same time, the court recognized that the ESA imposed a "higher standard" on commercial operators than on ordinary individuals. 548 F. Supp. at 42. The court put the burden on the defendant to show he was in fact innocent, once the government has shown with substantial evidence that the defendant knew or should have known that the sea turtles he imported were endangered species. Id.

142. This can also be seen in related contexts, e.g., in Lacey Act convictions for violations involving nonendangered species. See United States v. Bryant, 716 F.2d 1091 (6th Cir. 1983) (defendant convicted of illegal interstate fur dealing faced maximum potential penalty of 11 years in prison and $50,000 fine; judge sentenced him to two years probation).

143. S. REP. No. 123, supra note 108, at 2, 1981 U.S. CODE CONG. & ADMIN. NEWS at 1749. Truly innocent conduct, of course, is likely to be protected by statute and constitution. Id. at 12, 1981 U.S. CODE CONG. & ADMIN. NEWS at 1759 (statement regarding innocent conduct). See generally Strafer, Civil Forfeitures: Protecting the Innocent Owner, 37 U. FLA. L. REV. 841 (1985).

144. Confidential interviews with FWS wildlife inspectors (Feb. 1985). Current and former FWS Wildlife Permit Office and Division of Law Enforcement officials are not quite willing to make this same statement, but have expressed concern to the authors regarding the serious difficulties in proving foreign law to the satisfaction of the federal courts. Yet live testimony would not appear to be strictly required. See FED. R. CRIM. P. 26.1 and FED. R. CIV. P. (FRCP) 44.1.

145. J. Kilbourne, supra note 137. There is no comprehensive review of CITES implementing legislation around the world. A few partial attempts have been made, however, primarily by NGOs, to address the proof of foreign law problem. See WORLD WILDLIFE FUND, LATIN AMERICAN WILDLIFE TRADE LAWS (1984); INT'L UNION FOR THE CONSERVATION OF NATURE, AFRICAN WILDLIFE LAWS (1986); see also CITES SECRETARIAT, INDEX OF SPECIES MENTIONED IN LEGISLATION (1981). NGOs state that the FWS was initially skeptical of the compilation concept due to the fluidity of foreign legislation. Interview with K. Fuller, World Wildlife Fund-TRAFFIC, in Washington, D.C. (Nov. 16, 1984); interview with Ginette Hemley, Director, TRAFFIC-U.S.A., in Washington, D.C. (June 8, 1987). The Service, however, has now distributed over 200 copies of the Latin American book to the ports of entry.

146. 636 F. Supp. 1281, 1285-86, 16 ELR 20889, 20891 (S.D. Fla. 1986). The court accepted the translations pursuant to FRCP 44.1. See supra note 144.

147. 636 F. Supp. at 1286-87, 16 ELR at 20891.

148. 636 F. Supp. at 1287, 16 ELR at 20892.

149. Confidential interviews with FWS inspectors and agents (Feb. 1985; Mar.-Apr. 1987).

150. A large number of forfeitures are handled at the local or regional level by FWS directly, and are not forwarded to the Department of Justice for further action.

151. James Kilbourne, supra note 137. The remainder of the Section's civil caseload is divided approximately equally among the following: ESA-related cases (most often citizen suits with the government as defendant); civil penalty enforcement actions and civil penalty assessment defenses; and marine species' cases referred from the Department of Commerce. Id. It is unclear, however, whether these statistics are representative of wildlife cases throughout the country, since many cases are referred directly to individual United States Attorneys' offices.

152. ESA § 11(e)(4)(A), 16 U.S.C. § 1540(e)(4)(A), ELR STAT. 41832:5; Lacey Act § 5(a), 16 U.S.C. § 3374(a); Tariff Act of 1930, § 527, 19 U.S.C. § 1527. See United States v. Fifty-three (53) Eclectus Parrots, 685 F.2d 1131 (9th Cir. 1982) (19 U.S.C. § 1527 prescribes forfeiture without regard to culpability).

153. See supra note 104 and accompanying text.

154. See United States v. 3,210 Crusted Sides of Caiman Crocodilus Yacare, 636 F. Supp. 1281, 16 ELR 20889; United States v. 100 Black Palm Cockatoos and Eclectus Parrots (S.D. Fla. Jan. 31, 1984). The importer in 100 Black Palm Cockatoos forfeited a shipment worth between $500,000 and $1 million on the American market despite the importers' good faith belief in the legitimacy of the import and their reliance on a tentative preclearance by the FWS. The importers had already spent more than $125,000 in the purchase, shipment, and quarantine of the birds. But see Carpenter v. Andrus, 485 F. Supp. 320 (D. Del. 1980) (skin and skull of leopard sent to United States through mistake of shipping agent not subject to forfeiture). At least one commentator considers the ESA's forfeiture provisions to be "of potentially even greater magnitude than … criminal and civil penalties." M. BEAN, supra note 20, at 347.

155. See, e.g., 18 U.S.C. § 545 (forfeiture provision for smuggling violations); 18 U.S.C. § 1963 (forfeiture provision of racketeering statute); 19 U.S.C. § 1537(b) (forfeiture prescribed for illegally import of birds); 21 U.S.C. § 853 (forfeiture provision in continuing narcotics enterprise statute).

156. ESA § 11(e)(5), 16 U.S.C. 1540(e)(5), ELR STAT. 41832:5 (incorporating customs laws for forfeiture of a vessel); Lacey Act § 5(b), 16 U.S.C. § 3374(b) (incorporating customs laws for forfeiture of property in general). The wording is very similar to that used to incorporate the customs laws in federal drug statutes. See 21 U.S.C. § 881(d).

157. D. McMullen, supra note 86; confidential interviews with FWS wildlife agents (Feb. 1985).

158. United States v. 3,210 Crusted Sides of Caiman Crocodilus Yacare, 636 F. Supp. at 1283, 16 ELR at 20890 (citing cases interpreting federal narcotics statutes for its determination of standing).

159. 636 F. Supp. at 1286, 16 ELR at 20891.

160. Id. See also United States v. Fifty-three (53) Eclectus Parrots, 685 F.2d 1131, 1134 (9th Cir. 1982).

161. Caiman Crocodilus Yacare, 636 F. Supp. at 1286, 16 ELR at 20891; Fifty-three (53) Eclectus Parrots, 685 F.2d at 1136-1137.

162. Caiman Crocodilus Yacare, 636 F. Supp. at 1287, 16 ELR at 20891. The court's rationale for this appears to be that penalties for violations of CITES must be severe enough to achieve CITES' goals and further the intent and effectiveness of CITES and the ESA. 636 F. Supp. at 1287, 16 ELR at 20892.

Interestingly, several cases, including Caiman Crocodilus Yacare and 100 Black Palm Cockatoos came out of the district courts in Florida. Miami is one of the nine designated ports of entry for wildlife entering the country, and thus is a likely enforcement investigative checkpoint. The favorable tenor of the decisions may indicate judicial familiarity with forfeiture actions, and thus judicial understanding of enforcement issues, since Miami is also a major port of entry for the illegal drug trade. See supra text accompanying notes 154-156.

163. Amendments to Appendices I and II of the Convention, in PROCEEDINGS OF THE THIRD MEETING, supra note 31, at 76.

164. Summary Report of the Plenary Session, Plen. 3.11, in PROCEEDINGS OF THE THIRD MEETING, supra note 31, at 142.

165. Id.

166. See 50 C.F.R. § 23.23 (1986). The 1981 mass listing of parrots was not the first time the Parties made such a listing of numerous species within the same family where each individual species were not themselves likely to be threatened by trade. In 1976, all cat species were also listed on Appendix II. CITES Secretariat, Amendments to Appendices I and II of the Convention, in PROCEEDINGS OF THE FIRST MEETING, supra note 22, at 48 (1977).

167. H.R. REP. NO. 567, 97th Cong., 2d Sess. 30 (1982), reprinted in 1982 UNITED STATES CODE CONG. & ADMIN. NEWS 2807, 2830.

168. § 8A(d), 16 U.S.C. § 1537a(d), ELR STAT. 41832:1. The report is to be submitted to the House Committee on Merchant Marine and Fisheries and the Senate Committee on the Environment and Public Works.

169. 659 F.2d 168, 11 ELR 20306 (D.C. Cir. 1981), cert. denied, 454 U.S. 963.

170. 659 F.2d at 178, 11 ELR at 20312; see CITES, supra note 7, art. IV, para. 2(a), ELR STAT. 40336. See supra text accompanying notes 18-19.

171. 659 F.2d at 178, 11 ELR at 20312.

172. This section provides:

The Secretary shall base the determinations and advice given by him under Article IV of the Convention with respect to wildlife upon the best available biological information derived from professionally accepted wildlife management practices; but is not required to make, or require any State to make, estimates of population size in making such determinations or giving such advice.

ESA § 8A(c)(2), 16 U.S.C. § 1537a(c)(2), ELR STAT. 41832:1.

173. Defenders of Wildlife v. Endangered Species Scientific Authority (Defenders II), 725 F.2d 726, 14 ELR 20188 (D.C. Cir. 1984). The court relied on the legislative history behind the amendment, in which Congress expressed an intent to overrule the Defenders I decision. See H.R. REP. NO. 567, supra note 167, at 29, in 1982 U.S. CODE CONG. & ADMIN. NEWS at 2829; S. REP. NO. 418, 97th Cong., 2d Sess. 22 (1982); H. CONF. REP. NO. 835, 97th Cong., 2d Sess. 28 (1982), reprinted in 1982 U.S. CODE CONG. & ADMIN. NEWS, supra, at 2869.

174. See, e.g., Regulation of Trade in Appendix II Wildlife and Implementation of Article IV, Paragraph 3, of the Convention, Conf. 4.7, in PROCEEDINGS OF THE FOURTH MEETING, supra note 30, at 49.

175. NGOs have been making efforts in this area. See, e.g., Snuggling with Smugglers, 7 TRAFFIC-U.S.A., No. 2/3, 1987, at 20 (discussing World Wildlife Fund's public information campaign); Airlines Warn Tourists, 2 TRAFFIC-U.S.A., No. 2, 1980, at 6 (discussing distribution by airlines of FWS brochures).

176. In one incident witnessed by the authors, there was a small discrepancy between the number of ivory pieces listed on the invoice and the number allowed in the accompanying permit, in a shipment consisting of more than 5,000 pieces. Although the discrepancy was meaningless in terms of its biological implications for the African elephant, the FWS inspector indicated that a detailed counting of the shipment would likely be undertaken. At the same time, live shipments of wildlife were able to avoid inspection entirely by arriving outside of normal business hours. Interviews with FWS wildlife inspectors and agents (Feb. and Apr. 1985). This is no longer the case, at least in certain ports of entry. D. McMullen, supra note 86. For a general discussion of the issues and problems involved in regulatory enforcement, see E. BARDACH & R. KAGAN, GOING BY THE BOOK: THE PROBLEM OF REGULATORY UNREASONABLENESS (1982).

17 ELR 10222 | Environmental Law Reporter | copyright © 1987 | All rights reserved