Important New Development in Trophy Seizure Crisis

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    Important New Development in Trophy Seizure Crisis

    In October, leopard trophies began being seized for a new reason. Leopard tags and export permits that recite the quota for the year of the trade or export rather than the year of the hunt are being treated as invalid by USF&WS inspectors.

    The year the trophies are taken hunting is different than the year they are exported when trophies are taken late in the year and when trophy export is delayed for any reason.

    The CITES Convention itself does not have such specificity but the Parties have adopted contradictory Resolutions that recommend the use of the quota for the year taken and also the “current” year of export.

    The instructions on the back of the export permit form specify that the current calendar year and the current annual quota be used. These instructions for the export permit form were adopted in Resolution 12.3 (Rev. 15), and that Resolution was reconfirmed as recently as March 2010 at the 15th Conference of the Parties. Independently of the instructions on the back of the export permit form, Resolution 12.3-8(b) states: (b) When a Party has export quotas allocated by the Conference of the Parties for specimens of species included in Appendices I and II, it states on each export permit the total number of specimens already exported in the current year (including those covered by the permit in question) and the quota of the species concerned.

    Contradictorily, Resolution 10.14 “recommends” that leopard export permits allow the import of leopard trophy imports “only if each skin has a self-locking tag attached which indicates the…number of the specimen in relation to the annual quota and the calendar year in which the animal was taken in the wild – for example ZW 6/500 1997 indicating that Zimbabwe is the State of export and that the specimen is the sixth specimen taken in the wild in Zimbabwe out of its quota of 500 for 1997 – and is the same information as is on the tag given on the export document….”

    In September 2007, the USF&WS’s International Affairs Program and Law Enforcement Division adopted the latter position in the Code of Federal Regulations, that 100 pages of internal CITES regulations that readers have already heard so much about in this Bulletin.

    As of now, we are encountering trophies being seized from Tanzania, Zambia and Zimbabwe in ports from San Francisco to New York, but this may only be the leading edge.

    To avoid detention of your trophy and possible seizure and forfeiture, you must comply with the USF&WS regulation in the U.S. Code of Federal Regulations that has adopted the year-taken-recommendation and made it a requirement under U.S. law and policy, apparently just for bureaucratic consistency. We don’t know that it makes any difference biologically which year is cited as long as it states either year and gives the number of the quota within that stated year. It is a harmless difference.

    If your leopard arrives in a U.S. port with an export permit that uses the trade quota for the year traded (“current year”) instead of year taken, the USF&WS inspector may seize it for violation of CITES, which is implemented by the ESA, therefore it is a violation of the ESA, which in turn has a provision that any violation what- soever subjects the item to forfeiture at the discretion of the USF&WS.

    This is entirely an inter-governmental problem for which we don’t believe the trophy importing hunters should be punished.

    What is the Cause of the Seizure Crisis? Conservation Force has been inquiring to determine the cause of the punishment of innocent hunters trend. In 2000, Congress passed the Civil Assets Reform Act, CAFRA, expressly to protect innocent owners of property from fundamentally unfair forfeiture. It expressly provides that “no innocent owner shall be deprived of his or her property under ‘any’ forfeiture statute.” Innocent owners are those that did not know of the violation but also those that upon learning of the violation took immediate steps to “attempt” to correct the violation. It provides for a court hearing, dispenses with the requirement of a bond for 2½ times the value of the property before going to court, includes a specific right to challenge the excessiveness of the seizure, provides notice and new cutoff dates against the seizing agency and more. It was Congress’s response to growth in forfeitures and concern for fundamental “due process” fairness. One hitch: Congress added a section that it did not apply to property that is “contraband or illegal to possess.”

    After Freedom of Information Act requests and the review of thousands of pages of records of the Law Enforcement and Division of Management of Authority we have learned that CAFRA had the opposite of its intended effect for wildlife importers. The USF&WS was beside itself with the changes, deadlines imposed upon it, elimination of the cost bond and other protections and was not sure what it all meant or of the Agency’s ability to change practices to comply. They soon focused on the “contraband or illegal to possess” exception and circulated memos that they would pass their own regulations treating violating wildlife items as contraband to place the Agency beyond CAFRA, at least in part. The International Affairs Program and Law Enforcement jointly proposed the regulations that were ultimately adopted in September 2007. Those regulations proposed treating all violating wildlife trophies as “contraband that was illegal to possess.” Conservation Force and many other organizations wrote vehement comments opposing that proposal. We pointed out that it would lead to forfeitures of trophies for government mistakes and even mere clerical errors. It did not dawn on anyone that those proposed provisions were purposefully inserted to end-round the intent of Congress through CAFRA. When the Bush Administration initially took office it put a hold on the proposed internal CITES regulations until 2006 when it was re-proposed with some revisions. Over the vehement objections of the leaders of the hunting community, the regulations were adopted in August 2007 to be effective in September 2007. It was misrepresented to be the adoption of the status quo, but was not.

    Those regulations have caused the seizure crisis for three reasons. First, it created more regulations to be violated. Second, many of the new regulations were contrary to tradition and practices such as the change in the definition of “trophy.” Third, multiple times in the

    Federal Register Notice it was represented that any irregularity of any type or kind was a violation of CITES and hence the ESA that implements CITES; therefore, the trophy was contraband illegal to possess so the hunter had no constitutionally protected property interest or rights. That was the goal in response to CAFRA that Law Enforcement had long been awaiting. Since then, there have even been Law Enforcement Summits spreading the new enforcement policy that is opposite past practices.

    The result is CAFRA protects criminals and tax evaders but not conservation hunters. The crisis is very real, and the result of a well-intended act of Congress that should have had the opposite effect.

    Conservation Force is in Federal District Courts and Federal Appellate Courts across the land fighting for hunters’ lost property rights and finding little sympathy. Believe me, it is not fun. The real remedy lies with Congress to effect its original intent through additional remedial legislation.

    Trophies have always been “subject to seizure” for ESA violations, but that authority was only rarely invoked. Now the norm is seizure and forfeiture regardless of fault or harmlessness of the violation. Either CAFRA or the ESA forfeiture section needs to be amended.

    Amendment of the Trophy Problem Checklist: From the ongoing trophy detentions, seizures and forfeitures, and the Federal Court proceedings and sworn official affidavits of USF&WS authorities across the nation over the past year, our knowledge of the enforcement of the September 2007 regulations and interpretation is maturing. Conservation Force, with the help of import and export brokers around the world, has revised the checklist guidance to avoid seizure. That checklist is the last page of this issue of Conservation Force Bulletin. It will also replace the old checklist on Conservation Force’s website at Conservation Force.

    View attachment TROPHY PROBLEM CHECKLIST.pdf

    The revisions are highlighted. Note that the foreign authorities need to confer with USF&WS Law Enforcement Headquarters in D.C., not the port inspector. All communications with a foreign government must go through Headquarters. That contact person is Sheila Einsweiler, Senior Wildlife Inspector, US Fish & Wildlife Service, Office of Law Enforcement, 4501 N. Fairfax Drive, Arlington, VA 22203. Tel. 703-358-1949, Fax 703-358-2271, E-mail: Sheila_Einsweiler@fws.gov. Note that worked elephant ivory can’t be imported at all and that paint or skin pasted on the ivory base is treated as worked.

    On Wednesday morning, October 20, 2010, 35 attorneys gathered in Courtroom 20, the largest courtroom in the Federal District of Columbia. More than 15 of us had been selected to argue components of the polar bear listing case for four hours each with their respective part from eight to 20 minutes in length.

    Instead, the Court redirected the course of the case and deferred oral arguments. The Court remanded the cases to the USF&WS to explain its use of the term endangered species as one “imminently” at risk of extinction. The USF&WS had defined “endangered” to be a species in imminent risk of extinction upon the incorrect representation that Congress provided that definition, but the Judge pointed out that the term “imminent” is not in the statute. The Court was perplexed that the USF&WS had made this unchallenged statement without any process. An agency is allowed to prove its interpretation of a statute that it is charged with implementing, but in this instance that had not occurred because the USF&WS had represented it to be in the statute when it was not. If the definition of “endangered” was in question so was that of “threatened” because a threatened species is one likely to become “endangered” in the foreseeable future.

    It was such a significant issue to the Court that it remanded the listing rule to the USF&WS to explain and justify its interpretive word choice.

    The cross briefing of the new issue has been ordered and the consolidated cases are expected to get back on track by late January. Some view this as a scary indicator that the Judge is sympathetic to the argument of the Center for Biological Diversity that the polar bear should have been listed as endangered because it will eventually be at or near extinction in 200 years, even if not “imminent.” In fact, the Court has given the Government a chance to save itself. There is a difference between threatened and endangered, and that difference may be the first of many issues resolved in this important litigation. Believe me; we have many other issues to raise during this precedent-setting case. – John J. Jackson, III.


    Conservation Force Sponsor Grand Slam Club/Ovis generously pays all of the costs associated with the publishing of this bulletin. Founded in 1956, Grand Slam Club/Ovis is an organization of hunter/conservationists dedicated to improving wild sheep and goat populations worldwide by contributing to game and wildlife agencies or other non-profit wildlife conservation organizations. GSCO has agreed to sponsor Conservation Force Bulletin in order to help international hunters keep abreast of hunting-related wildlife news. For more information, please visit Grand Slam Club / Ovis.
     

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