THE CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF FLORA AND FAUNA: ADDRESSING PROBLEMS IN GLOBAL WILDLIFE TRADE ENFORCEMENT

[B]y tomorrow morning we shall almost certainly have one less species on Planet Earth than we had this morning. It will not be a charismatic creature like the tiger. It could well be an obscure insect in the depths of some remote rainforest. It may even be a creature that nobody has ever heard of. But it will be gone. A unique form of life will have been driven from the face of the earth forever. ⁽²⁾

I. Introduction

The problem of wildlife endangerment and extinction is a concern of global proportion. Every country in the world must now face the fact that there are species being depleted forever and the ramifications of extinction have an everlasting effect. The rate of species endangerment and/or extinction is staggering. The United States Department of Interior estimated that 300 species face extinction each decade. Other estimates place the figure as high as several species disappearing every day.⁽³⁾

Legal and illegal trade in wildlife are both to blame, and the reasons for culpability are diverse. This Article will discuss the Convention on International Trade in Endangered Species of Flora and Fauna (CITES)⁽⁴⁾ and its attempt to address the dire problems of legal and illegal trade, as well as regulating and monitoring the wildlife trade. First, this Article will address the importance of wildlife preservation and illegal wildlife trade. Second, it will discuss the general provisions, as well as major loopholes, in the CITES treaty, and describe the problems of enforcing its provisions. Serious obstacles facing effective wildlife regulation and preservation include the differing social, economic, and religious beliefs of the various member countries, which have a direct impact on each country's willingness to preserve and protect species.

Further, this Article will examine the enforcement of wildlife laws in the United States through the provisions of the Endangered Species Act (ESA), the Lacey Act, and the CITES treaty. Each of these laws addresses species endangerment in the international arena as it affects importation into the United States. Lastly, this Article will discuss areas in which enforcement and regulation can be improved to ensure that wildlife is given the full protection it well deserves on this planet.

II. The Importance of Species Preservation

There are several reasons why wildlife protection is such an important issue, and why it is imperative upon every country to ensure that trade is enforced and regulated. Species diminution has several adverse consequences. Utilitarian benefits that can be derived from flora and fauna species, both currently known and potentially discoverable, are lost irretrievably when a specie is rendered extinct by over-exploitation.⁽⁵⁾ If preserved, rare species of animals and plants may help to address the world's food crisis.⁽⁶⁾ For example, scientists have discovered that Zea diploperennis, a rare Mexican tall grass, may be crossed with corn through genetic engineering to create a perennial, virus-resistant hybrid which could substantially increase the world's food supply in the future.⁽⁷⁾ In addition, genetic experiments with plant species may contribute significantly toward helping countries increase their food supply. One experiment genetically crossing commercial tomatoes with a rare wild tomato from the Galapagos Islands has yielded a hybrid that can be irrigated with seventy percent sea water, helping to alleviate pressures on irrigation systems in developing countries.⁽⁸⁾ This tomato may be seen as an agricultural miracle in countries where water shortages have been a major obstacle to increasing food productivity.

Another benefit of species preservation involves the creation of vital medicines from plant and marine species.⁽⁹⁾ Important medical advances have been made by using extracts from marine species in pharmaceuticals to combat cancer,⁽¹⁰⁾ and by using marine sponges in developing antibiotics.⁽¹¹⁾ Flora and fauna species have also been used in heart drugs, analgesics, anticoagulants, and hormones.⁽¹²⁾

These are only a few examples of the benefits that may be derived from flora and fauna species. There are innumerable other drugs and cures that could be discovered, although with the rate of extinction progressing at an accelerated rate, many of these benefits to humankind may never be realized. Moreover, despite these enormous benefits, less than one percent of the earth's plant species have been thoroughly studied for their possible usefulness to humans.⁽¹³⁾

CITES attempts to address this situation. At the November 1994 meeting of CITES in Fort Lauderdale, Florida, member nations agreed to monitor and regulate the trade of the Himalayan Yew tree, a natural source of taxol medicine used to combat ovarian and breast cancer.⁽¹⁴⁾ Through its conferences, CITES seeks to initiate recognition of the importance of various types of species with the potential to cure disastrous diseases.

The seriousness of species extinction may be summed up in an observation by several members of the National Academy of Sciences, who view the ramifications of a loss of biodiversity "as second only in severity to the consequences of large scale nuclear warfare."⁽¹⁵⁾

III. Illegal Wildlife Trade and Dwindling Animal Populations Individual Countries

The declared annual legal wildlife trade at the importing stage is at least five billion dollars.⁽¹⁶⁾ Legal trade into and out of the United States alone is valued at approximately one billion dollars,⁽¹⁷⁾ however an illegal trade estimate is an incalculable figure. International illegal wildlife trade is a crucial concern worldwide. It is one of the primary contributing factors to the decline of wildlife species in recent years.⁽¹⁸⁾ The Interpol list of illegal trade activities reports that the monetary value generated from the illegal trade of endangered species is second only to drug smuggling.⁽¹⁹⁾ The real predator of endangered species is organized crime, which has added illegal wildlife trade to its resume of illicit activities.⁽²⁰⁾

Illegal trade has initiated an expanding black market for tiger bones and skins, bear gall bladders from Russia, rhino horns, elephant meat and ivory from Africa, and whale meat from Japan.⁽²¹⁾ The skins, hides and various organs or articles manufactured from these species command high prices in many parts of the world.⁽²²⁾ As a result, the numbers for these animal populations are dwindling severely. In India, where 60% of the world's remaining tiger population resides, numbers have decreased from 4,334 to 3,750 in four years.⁽²³⁾ A tiger is considered a very valuable asset in certain regions, such as Asia. Village poachers can expect to make ten years worth of income from a single tiger.⁽²⁴⁾ One reason for their value is the extensive use of tiger parts in many Asian medicines.⁽²⁵⁾ At the CITES Conference in November 1994, China, India, and other countries with a tiger population have signed an agreement to ban the trade of tiger parts and to preserve the tigers' habitat.⁽²⁶⁾ Other animal parts can generate substantial profit. A rhino horn, for example, can be worth up to a half a million dollars.⁽²⁷⁾ It is no surprise that 90% of the world's rhino population has disappeared.⁽²⁸⁾

Wildlife trade violations in individual countries are rampant. For example, scientific research has revealed that Japan, a CITES member, has engaged in egregious violations of international wildlife laws regarding whale meat.⁽²⁹⁾ Certain species of whale meat, such as the relatively abundant southern minke whale, are permitted to be sold in markets.⁽³⁰⁾ Scientists, using a portable DNA sampling device and a laboratory set up in a hotel room in Japan, discovered that several samples of whale meat bought at several Japanese fish markets and grocery stores were in fact from endangered species of whales.⁽³¹⁾ Scientists sampled sixteen pieces of whale meat and found that only seven were from minke whales, while the remainder were pieces of humpback whales, fin whales, dolphins, and a type of a beaked whale about the size of a killer whale.⁽³²⁾ None of the packages of meat revealed the exact nature of their content, beyond calling it whale meat.⁽³³⁾ It was, therefore, impossible to know if any of the salespeople at the markets where the samples were bought were aware that they were trading in illegal goods. The whale meat may have been imported illegally from other countries that continue to hunt whales, like Norway (a CITES member), or it may have been illegally caught by coastal fishermen.⁽³⁴⁾ "It's like the drug-smuggling trade or anything else illicit," said Don White, a founder of Earthtrust, an organization that documents the practice of illegal driftnet fishing.⁽³⁵⁾ "There's a lot of money to be had here."⁽³⁶⁾ Indeed, in Japan, whale meat is like caviar, selling for about $300 per pound.⁽³⁷⁾ Therefore, there is a profitable incentive to obtain whale meat from anywhere possible.⁽³⁸⁾

IV. Cites: Attempts to Address Regulation and Preservation at the International Level

A. Background and General Provisions of CITES

The Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) was signed by the United States on March 3, 1973⁽³⁹⁾ in an effort to address the ever increasing problem of species endangerment at the international level. In 1975, when the Convention came into force,⁽⁴⁰⁾ ten countries were member states.⁽⁴¹⁾ There are now 118 members to this international treaty.⁽⁴²⁾

CITES has been characterized as perhaps the most successful of all international treaties concerned with the conservation of wildlife.⁽⁴³⁾ The concept of CITES is simple but the complexities of human nature and the laws of economics make implementation more difficult.⁽⁴⁴⁾ The goal of the treaty is to control, reduce and/or eliminate the international trade in those species whose numbers or conditions suggest that further removal of individuals from their natural habitat would be detrimental to the specie's survival.⁽⁴⁵⁾

The Preamble to CITES recognizes that "wild flora and fauna in their many beautiful forms are an irreplaceable part of the natural systems of the earth which must be protected for this and the generations to come . . . ."⁽⁴⁶⁾ The Preamble also states that wildlife is valuable "from aesthetic, scientific, cultural, recreational, and economic points of view."⁽⁴⁷⁾ CITES provides for detailed regulations concerning international legal trade among member countries. The extent of the intricate requirements are beyond the scope of this Article, as the treaty is a lengthy and complex document, demonstrating the fact that however simple the concept may be, monitoring and preserving wildlife is a difficult undertaking.

The CITES treaty covers approximately 3,000 animal and 35,000 plant species⁽⁴⁸⁾ and divides them into three appendices based on their vulnerability to extinction.⁽⁴⁹⁾ Appendix I species are the most vulnerable and include all species threatened with extinction which are or which may be affected by trade.⁽⁵⁰⁾ Because Appendix I species are under the threat of extinction, they receive the highest degree of protection.⁽⁵¹⁾ As an added measure of protection, trade is defined very broadly in CITES⁽⁵²⁾ to mean export, re-export, import and introduction from the sea.⁽⁵³⁾ Thus, any time that a specimen of a protected species crosses national borders, the action is considered trade and will have to satisfy the provisions of the treaty.⁽⁵⁴⁾

For most Appendix I species, the treaty requires two documents for trade: an export and an import permit, each to be obtained from a different country.⁽⁵⁵⁾ The requirement of an export and import document for Appendix I species is of primary importance in trade under CITES. In order for both documents to be issued, the Scientific Authority of the exporting country must determine that the export will "not (be) detrimental to the survival of the species,"⁽⁵⁶⁾ and that the living specimen will be shipped to "minimize the risk of injury, damage to health or cruel treatment."⁽⁵⁷⁾ In addition, the exporting country must determine that the trade is not illegal.⁽⁵⁸⁾

CITES' requirement of two permits is also an important factor that hampers corruption attempts by traders, as corrupting two governments is more difficult and expensive for the illegal wildlife trader than corrupting one government.⁽⁵⁹⁾ Endangered species trade can be financially rewarding not only for the traders, but also the producers of forged documents, and for government officials who are susceptible to bribes.⁽⁶⁰⁾ Requiring two permits, therefore, will make corrupting governments for the purpose of illegal wildlife trade a more arduous endeavor. For an import permit to be issued, the Scientific Authority of the importing state must determine that the "import will be for purposes which are not detrimental to the survival of the species,"⁽⁶¹⁾ that "the proposed recipient of a living specimen is suitably equipped to house and care for it,"⁽⁶²⁾ and a Management Authority of the importing state "is satisfied that the specimen is not to be used for primarily commercial purposes."⁽⁶³⁾

"Commercial purpose" is the critical difference between an Appendix I and Appendix II or III species.⁽⁶⁴⁾ CITES allows commercial trade of Appendix II and III species in certain circumstances. Because Appendix I species are vulnerable to extinction, trade in Appendix I species between CITES signatories for commercial purposes is strictly prohibited.⁽⁶⁵⁾ Commercial trade is not defined in the treaty, although it may be reasonably defined as the "acts of purchase and resale for profit."⁽⁶⁶⁾ Import for retail or wholesale transactions is prohibited, however the transfer of money is not the distinguishing factor. At the 1985 Conference in Buenos Aires, the delegates adopted Conference 5.10, in an attempt to more clearly define "commercial purpose."⁽⁶⁷⁾ First, trade in Appendix I species should be authorized only in exceptional circumstances, and second, if the species are traded, a commercial purpose should be defined as broadly as possible.⁽⁶⁸⁾ The burden of proof is on the importer to prove the non-commercial aspects of the import, and those aspects should clearly eclipse any other purpose for the trade.⁽⁶⁹⁾ The focus of the import should be on the use of the species in the importing country.⁽⁷⁰⁾ Finally, the term "commercial" is defined as obtaining an economic benefit by sale, exchange, or use.⁽⁷¹⁾

Species listed in Appendix II may be traded for commercial purposes, but an export permit must be obtained.⁽⁷²⁾ An export permit may only be issued if the Scientific Authority of the exporting state finds that the trade will not be detrimental to the survival of the species, that the trade is not illegal, and that the species is transported to minimize risk of injury, health or cruel treatment.⁽⁷³⁾

Appendix III requires an export permit if the organisms are being exported from the country responsible for listing the particular species in Appendix III.⁽⁷⁴⁾ An export permit is to be granted only if the Management Authority of the exporting state finds that the specimen was not obtained illegally and is shipped so as to avoid injury and cruel treatment.⁽⁷⁵⁾ The listing of species in Appendix III can be done unilaterally by one party at any time it may wish. As a result, the export permit requirement applies only to the country which has requested the Appendix III listing.⁽⁷⁶⁾

B. Loopholes in CITES and the Problem of Enforcement

In complex international agreements, such as CITES, there will inevitably be provisions that are ambiguous or that may be construed differently by various countries. Interpretation of the treaty's provisions by CITES members can be as diverse as the member nations themselves. The problem of interpretation is one which is not easily resolved. Moreover, member states may encourage provisions to be drafted ambiguously, which allows the individual country to evade certain provisions of the treaty.

For instance, Article I of the treaty defines a "specimen" as "any animal or plant . . . [or] any recognizable part or derivative thereof. . . ."⁽⁷⁷⁾ Thus, only if a plant or animal specimen is readily recognizable is it within the control of CITES.⁽⁷⁸⁾ The term "readily recognizable" is not defined elsewhere in CITES, and thus creates a potential loophole.⁽⁷⁹⁾ According to one author, there are two policy reasons why "readily recognizable" is not defined. First, member states may not have wanted to assume a much more detailed documentation and inspection process that would otherwise be required.⁽⁸⁰⁾ Second, some member states did not want to interfere unnecessarily with their international trade of retail goods and thus maintained the loophole.⁽⁸¹⁾ An identification manual has been developed by members of CITES in an attempt to identify every species listed, but keeping it current is another problem.⁽⁸²⁾ Another large loophole is found in Article VII, "Exemptions and Other Special Provisions Relating to Trade." Specimens may be imported or exported if they are "personal or household effects"⁽⁸³⁾ which is not defined anywhere in the treaty. This provision may be interpreted, for example, as allowing individual purchases for "personal need" items, or private persons' "clothing or jewelry."⁽⁸⁴⁾ The buyer only need claim that the item was purchased in his home state,⁽⁸⁵⁾ or that it was bought before CITES came into effect.⁽⁸⁶⁾ As long as individuals such as tourists continue to purchase such items made from illegally-killed animals, the poaching of protected species will continue.⁽⁸⁷⁾

One major way to evade the CITES treaty regulations is found in Article X, "Trade With States Not Party to This Convention." The language in this provision is vague: trade between members and non-members is allowed only if there is comparable documentation issued by competent authorities which substantially conforms with the requirement of CITES.⁽⁸⁸⁾ Approximately 30% of wildlife trade occurs with non-parties.⁽⁸⁹⁾ As a result, many countries may become "laundering" ports for illegal wildlife trade.⁽⁹⁰⁾ If CITES was truly interested in enforcement of illegal trade violations, it would curtail trading with non-member states. Trade with non-members could be regulated more strictly by defining how member countries trading with non-members must adhere to the requirements of CITES, and exactly what those requirements are. This section is so vague it is easy to see how countries may circumscribe the treaty altogether by trading with non-members. Even if the member country is caught violating this provision, it is very difficult to see how this ambiguous section will be enforced against the violating country.

Article VII constitutes another loophole in that when a party becomes a member of CITES, or when a new species is listed, there is a "grace period" which allows countries to import or export species without regulation.⁽⁹¹⁾ In effect, this allows the country to stockpile specimens in anticipation of the new regulations.⁽⁹²⁾ When the United Kingdom was not a party to CITES, it imported approximately 27,000 ocelot skins per year.⁽⁹³⁾ The year the United Kingdom announced its intention to ratify CITES, it imported 50,000 ocelot skins.⁽⁹⁴⁾ The practice of stockpiling can have extremely adverse effects, and in some cases may have more of an adverse effect than a steady killing of a species, as a sudden increase in the killing can swiftly exterminate the whole species.⁽⁹⁵⁾ CITES is aware of this issue, and at the Convention in November 1994, the parties attempted to regulate the issue of stockpiling.⁽⁹⁶⁾

CITES' major defect is that there is no treaty-wide, nor worldwide enforcement.⁽⁹⁷⁾ Article VIII, "Measures to be Taken by the Parties" contains a general enforcement provision, however, it is relatively innocuous. Any means of enforcement is left up to the discretion of the member states.⁽⁹⁸⁾ As a result, there is little deterrence for wildlife poachers and smugglers. The effectiveness of CITES' enforcement was evaluated in one experiment conducted in 1979 by TRAFFIC, an organization funded by the World Wildlife Fund that monitors trade in endangered species and other flora and fauna.⁽⁹⁹⁾ The group transported a cactus, which is listed in at least one of the appendices of CITES, and openly declared it at customs of ten countries.⁽¹⁰⁰⁾ The TRAFFIC member carrying the cactus was never questioned; the United States and the Russian Federation confiscated it, but only for health reasons.⁽¹⁰¹⁾ In another blatant enforcement oversight, an importing country was presented with a shipment of penguins, which are listed in Appendix I and II, and the export document listed the country of origin as Paraguay.⁽¹⁰²⁾ Although common knowledge dictates that penguins do not inhabit Paraguay, the country allowed the shipment without question.⁽¹⁰³⁾ These are a few of the conspicuous violations that better enforcement mechanisms would cure.

Article XXIII is yet another provision that may be considered an escape clause. This Article allows a state in effect, to evade the treaty by entering a "reservation," concerning certain species.⁽¹⁰⁴⁾ A reservation is a mechanism exercised unilaterally by a state to opt out of a portion of a treaty.⁽¹⁰⁵⁾ Under CITES, a member can enter specific reservations as to listed species or any parts or derivatives of an Appendix III species.⁽¹⁰⁶⁾ The practical impact of entering a reservation is that it allows the state to trade with non-members without the CITES trade restrictions.⁽¹⁰⁷⁾ Moreover, importing and exporting is governed by Article X,⁽¹⁰⁸⁾ in which trade requirements are ambiguous and open to interpretation. Currently the United States has no reservations under CITES, and the European Community's coordinating regulation does not allow for reservations. Other countries, such as Japan, maintain significant reservations⁽¹⁰⁹⁾ for six whales and seven reptiles,⁽¹¹⁰⁾ and African nations retain a reservation to limit compliance with the ban on the elephant trade⁽¹¹¹⁾ despite the fact that elephant numbers are rapidly declining. One frightening estimate suggests that while as many as 1.3 million elephants might have existed in 1979, fewer than 750,000 were counted in 1987.⁽¹¹²⁾ CITES is the key international focal point for the regulation of the ivory trade.⁽¹¹³⁾ Unfortunately, if countries are allowed to enter reservations for certain species, CITES' effectiveness regulating trade with that species is drastically attenuated.

Despite many weaknesses, the CITES treaty should not be criticized too extensively when considering the magnitude of the task of regulating international wildlife trade. CITES is represented by 118 Party States across the world,⁽¹¹⁴⁾ each of which has its own legal, political, economic and bureaucratic issues with which to contend.⁽¹¹⁵⁾ Many of the countries have extensive economic problems, where the majority population is impoverished. If the hide of an endangered species can feed a poor family for a year, it is difficult to imagine how a treaty would deter a family from hunting the animal and using the hide for survival. One solution may be to educate indigenous peoples on the importance of biodiversity and on various methods of improving species populations. In addition, poorer countries might benefit by encouraging tourists to view endangered species in their natural habitats, which would generate income without killing the animals indigenous to the area.⁽¹¹⁶⁾

Since CITES includes no specific provisions for enforcing its requirements against individual violators or signatory nations,⁽¹¹⁷⁾ enforcement primarily lies with its members.⁽¹¹⁸⁾ Each member administers the requirements of CITES through its own legal system, which is necessary from a standpoint of state sovereignty.⁽¹¹⁹⁾ In reality, each state may administer CITES and enforce violations in its discretion. As a result, the goals of wildlife regulation and preservation may be compromised as a result of a lack of uniform enforcement. Individual defiance may have disastrous results. This year, three countries, Zimbabwe, Botswana, and Malawi threatened to disregard CITES regulations altogether.⁽¹²⁰⁾ In addition, one of the greatest obstacles to CITES is greed and corruption within the Party State, as government officials are themselves involved in the poaching of animals, illegal issuance of permits, and forged documents, to name a few illicit activities.⁽¹²¹⁾ If the CITES resolutions are to have any force whatsoever, enforcement measures will have to be leveled at village hunters and organized crime that establish the markets for these species.⁽¹²²⁾ Effective enforcement of international wildlife laws require resources to combat organized crime at all levels.⁽¹²³⁾

V. Enforcement of Wildlife Violations in the United States

There are several United States legislative enactments which may fortify the CITES treaty and provide enforcement and cooperation mechanisms. These acts also provide for the prosecution of wildlife violators in areas where the CITES treaty standing alone may be lacking. The Endangered Species Act of 1973⁽¹²⁴⁾ (ESA) prohibits trade in violation of CITES, and empowers the United States Fish and Wildlife Service (FWS) with enforcement of CITES' requirements.⁽¹²⁵⁾ In addition, section 8 of the ESA gives the President of the United States the power to provide financial assistance to foreign nations for species conservation programs, to direct the Secretary of the Interior to encourage foreign governments to protect rare species, and to foster agreements between the United States and other countries on species preservation.⁽¹²⁶⁾ Further, section 8 allows the Secretary of the Interior, after consulting with the Secretary of State, to offer the services of federal personnel to foreign nations or to international organizations attempting to conserve fish, wildlife, or plants.⁽¹²⁷⁾ The United States may also provide or finance training of foreign wildlife experts.⁽¹²⁸⁾ Additionally, law enforcement investigations and research may be conducted at the request of the Secretary of the Interior.⁽¹²⁹⁾

The Lacey Act⁽¹³⁰⁾ prohibits wildlife trade in violation of any state, federal, or foreign law⁽¹³¹⁾ or any treaty signed by the United States.⁽¹³²⁾ United States courts are increasingly using the Lacey Act as a means of finding liability for wildlife violations. Federal customs laws have also been used to prosecute illegal wildlife traders.⁽¹³³⁾

A. Penalties under the ESA and the Lacey Act: Vehicles for Enforcement of Wildlife Laws

1. Civil Penalties

The civil penalty of forfeiture⁽¹³⁴⁾ under both the ESA and the Lacey Act is used extensively, partly because the government does not bear a burden of proof at trial.⁽¹³⁵⁾ The penalty will be imposed on the defendant if the government demonstrates probable cause that the wildlife is illegal, or contraband.⁽¹³⁶⁾ The burden then shifts to the claimant to prove that the wildlife is legal.⁽¹³⁷⁾ Under the Lacey Act a defendant may pay a civil penalty of $10,000 for a negligent violation of wildlife trade.⁽¹³⁸⁾

2. Criminal Penalties

The Lacey Act classifies criminal violations into felonies and misdemeanors. A felony may include a $20,000 fine and imprisonment for up to five years, however proof of a higher standard of scienter by the defendant is required.⁽¹³⁹⁾ These penalties are reserved for persons who violate the Act knowingly.⁽¹⁴⁰⁾ For misdemeanor violations, a "due care" requirement is imposed.⁽¹⁴¹⁾ If the individual should have known, in the exercise of due care, that the specimen was taken, possessed, transported, or sold in violation of another law, they may be fined $10,000, and/or imprisoned for one year.⁽¹⁴²⁾ Under the ESA, a strict liability civil fine may be imposed of up to $10,000 per violation for a wildlife dealer and $500 for other persons.⁽¹⁴³⁾

B. Judicial Enforcement of the Endangered Species Act, CITES, and the Lacey Act

Several United States cases demonstrate how courts interpret wildlife acts. In two landmark cases, the United States District Court for the Southern District of Florida found liability under the ESA, CITES, and the Lacey Act.⁽¹⁴⁴⁾ U.S. v. 3,210 Crusted Sides of Caiman Crocodilus,⁽¹⁴⁵⁾ and U.S. v. 2,507 Live Canary Winged Parakeets⁽¹⁴⁶⁾ led the way to a nationwide increase in the use of the Lacey Act by the courts, and to a lesser degree the ESA, in wildlife trade violations cases.⁽¹⁴⁷⁾ These two cases have been cited in almost every later case involving forfeiture under the Lacey Act or the ESA.⁽¹⁴⁸⁾ Both cases interpreted South American law and forfeiture procedures.⁽¹⁴⁹⁾

In Crocodilus,⁽¹⁵⁰⁾ a flight from Bolivia to Paris carrying crocodile hides made an unscheduled stop in Miami, Florida.⁽¹⁵¹⁾ A Fish and Wildlife Service officer in Miami inspected the hides and found the country of origin listed on the export license to be suspicious, since the species listed were not native to Bolivia.⁽¹⁵²⁾ At trial, the court found that the hides were actually from an endangered species, and not from the species that were noted in the documentation.⁽¹⁵³⁾ In addition, the court found that the stop in Miami constituted importation under United States customs law.⁽¹⁵⁴⁾ The court therefore found probable cause to believe that CITES, the ESA and the Lacey Act had all been violated.⁽¹⁵⁵⁾ The court found that the hides were subject to forfeiture under the ESA,⁽¹⁵⁶⁾ and that the hides had been imported in violation of CITES, because the permit was not an original,⁽¹⁵⁷⁾ as mandated, and the permit stated that the number of hides was 3,210, when the actual number was 10,875.⁽¹⁵⁸⁾ Under the Lacey Act the court found probable cause to believe that a Bolivian law prohibiting the hunting of the undersized crocodile had been violated.⁽¹⁵⁹⁾ The court rejected the defendant's contention that he was an "innocent owner,"⁽¹⁶⁰⁾ and the entire shipment of hides was forfeited.⁽¹⁶¹⁾ The court stated that the entire res of the hides was subject to forfeiture, and not just the number of hides which exceeded the amount declared in the CITES permit.⁽¹⁶²⁾ The court explained that

the purpose of CITES (and the ESA) is to prevent extinction of certain species by 'over-exploitation through international trade'. . . . To accomplish this aim, the penalties for CITES must be stringent. Merely forfeiting the offending portion of the res would only serve to thwart the intent and undermine the effectiveness of both CITES and the (ESA). . . . The plain intent of Congress in enacting [the ESA] wasto halt and reverse the trend toward species extinction, whatever the cost.⁽¹⁶³⁾This case is remarkable for having explored foreign law and an international convention, and as a result paved the way for future courts to implement these provisions of wildlife enforcement.⁽¹⁶⁴⁾ In addition, the court applied the provisions of the ESA and CITES strictly, which demonstrates that United States courts are serious about wildlife trade violations.

In Parakeets,⁽¹⁶⁵⁾ a bird importer had a CITES permit signed by the Peruvian Director of the Department of Forest and Fauna.⁽¹⁶⁶⁾ Because Peruvian law prohibited the exportation of native live wild animals, and the species imported fell into that category, the court found that the Director had no authority to sign the permit.⁽¹⁶⁷⁾ The permit was therefore held invalid because it was obtained in violation of Peruvian law, and the importer was found to have violated the ESA, CITES, and the Lacey Act.⁽¹⁶⁸⁾ The court also rejected the innocent owner defense, holding that even if the importer genuinely believed that the permit was valid, he nevertheless had an affirmative duty to inquire into the legality of the shipment.⁽¹⁶⁹⁾ The court also imposed forfeiture as a penalty.⁽¹⁷⁰⁾ The court in Parakeets established more than precedent. Like the Crocodilus case, it set out a tough standard for wildlife traders and sent a message that violations will not be treated lightly. Both the Parakeets and Crocodilus cases provide a framework for the application of the principles set out in the ESA, CITES, and the Lacey Act in the enforcement of wildlife protection and trade violations in future cases.

Constitutional challenges to the incorporation of foreign law argued by defendants in ESA and Lacey Act cases have been rejected by the courts. Defendants have argued either that their due process rights have been violated due to the incorporation of foreign law, thereby allowing government officials unlimited discretion,⁽¹⁷¹⁾ or that the law has been unconstitutionally vague.⁽¹⁷²⁾ In U.S. v. 594,464 Pounds of Salmon,⁽¹⁷³⁾ United States officials alleged that the defendant had exported fish from Taiwan without a permit in violation of a Taiwanese regulation, and that the importation of the salmon into the United States was part of a complex international fish smuggling scheme.⁽¹⁷⁴⁾ The Lacey Act provided for forfeiture of certain fish imported into the United States in violation of "any foreign law."⁽¹⁷⁵⁾ The court found that the Taiwanese regulation requiring the permit was a "foreign law."⁽¹⁷⁶⁾ The defendant argued that the incorporation of foreign law violated his due process rights. The Ninth Circuit rejected the defendant's argument, reasoning that the Lacey Act only looks to foreign law to determine if the Act has been triggered. The Act, therefore does not incorporate foreign law nor does it allow unlimited discretion to government officials.⁽¹⁷⁷⁾

In addressing the defendant's argument that the Lacey Act was unconstitutionally vague, the court explained that the vagueness issue focused on the inquiry of whether the statute's terms are insufficiently clear. Specifically, the court had to decide whether the term "any foreign law" was sufficiently clear in providing the defendant with fair warning.⁽¹⁷⁸⁾ The court found that the Act was not unconstitutionally vague, explaining that a statute providing for civil sanctions is reviewed for vagueness with greater tolerance than one involving criminal penalties.⁽¹⁷⁹⁾ Further, the defendant, who was frequently involved in large international commercial transactions, should have been aware of a strong possibility that violation of a foreign regulation would trigger the forfeiture provision of the Act.⁽¹⁸⁰⁾

Determining whether a violation of CITES and the ESA has occurred is generally a straightforward procedure for courts.⁽¹⁸¹⁾ In U.S. v. 1,000 Raw Skins of Caiman Crocodilus Yacare,⁽¹⁸²⁾ crocodile yacare skins were incorrectly listed on CITES documentation as crocodilus crocodilus, and the country of origin was erroneously labeled as Colombia.⁽¹⁸³⁾ A CITES permit must state the correct scientific name of the species or specimen, and the correct country of origin, therefore any factual error is a violation of CITES and of the ESA.⁽¹⁸⁴⁾

Courts not only uphold the law against big game hunters, commercial fisherman, and commercial wildlife traders,⁽¹⁸⁵⁾ but also against seemingly innocuous wildlife dealers such as zoos. In World Wildlife Fund v. Hodel,⁽¹⁸⁶⁾ the non-profit Toledo Zoo had been granted a permit from the Fish and Wildlife Service (FWS) to import two giant pandas from China for a temporary exhibition.⁽¹⁸⁷⁾ The Zoo was expected to profit from the exhibition through increased attendance and souvenir sales.⁽¹⁸⁸⁾ Pandas are listed in Appendix I of CITES, in which trade is strictly regulated.⁽¹⁸⁹⁾

The World Wildlife Fund (WWF), an organization dedicated to preserving wildlife, sought a preliminary injunction to prevent the zoo from continuing the panda display because pandas are an endangered species.⁽¹⁹⁰⁾ The court enjoined the zoo only from charging an extra fee to view the pandas based on a public policy consideration, because irreparable harm had not been proved by the plaintiffs.⁽¹⁹¹⁾ The case should be considered a victory for wildlife despite the court refusing to enjoin the zoo, since the court ultimately enforced the CITES provisions against a non-profit zoo that had taken measures to comply with the law in importing the pandas.⁽¹⁹²⁾ One important result of this case is that the FWS revised its permit policy regarding pandas to incorporate the WWF's concerns, and China announced it would no longer loan giant pandas nor endangered golden monkeys to the United States.⁽¹⁹³⁾ This case was another milestone for wildlife enforcement as the court administered the law very stringently, despite the importer's efforts to comply with CITES.⁽¹⁹⁴⁾

In U.S. v. Asper,⁽¹⁹⁵⁾ the court considered specific aspects of the ESA, CITES, and the Lacey Act in the commercial context. The defendant argued that the species he imported for his for-profit museum did not constitute use for a commercial purpose⁽¹⁹⁶⁾ because the venture operated at a loss.⁽¹⁹⁷⁾ The court, however, found that a commercial purpose was involved, therefore the defendant was subject to a more severe penalty.⁽¹⁹⁸⁾ The court alternatively held that the defendant deserved a harsher sentence because he had killed a large male Jentink's duiker,⁽¹⁹⁹⁾ of which only one to two hundred which existed at the time.⁽²⁰⁰⁾ Asper is another example of a court strictly enforcing wildlife laws and imposing strict sentences. These cases should serve as a deterrent to illegal traders, and a reminder to legal traders that their actions will be scrutinized by the court as well.

V. Conclusion

Although hailed as "the most successful of all international wildlife treaties,"⁽²⁰¹⁾ CITES contains significant loopholes, and through its ambiguous provisions, allows many wildlife importers to escape liability or detection. CITES does not provide for an effective enforcement procedure against individual violators nor member countries who choose to look the other way when violations occur. Perhaps such is the nature of an international multi-member treaty, whose Party States encompass the four corners of the world. Politics, notions of state sovereignty, vast differences in economic development, individual ideas of what constitutes wildlife endangerment and social and religious beliefs in general are all considerations, and ultimately, obstacles to successful administration and enforcement of wildlife laws.

International pressure encourages adherence and continued participation, yet a lack of funds and insufficient infrastructure to manage or verify compliance are two major enforcement problems.⁽²⁰²⁾ Nevertheless, there is still hope when one considers that some communities are initiating their own wildlife regulations by banning hunting and trafficking, and conserving species populations.

Courts in the United States have taken the problem of species importation seriously by interpreting the Lacey Act, the ESA, and the CITES treaty to maximize the number of violators prosecuted. This manifests a willingness on behalf of the United States courts to use these laws whenever the FWS discovers a violation of CITES, the wildlife laws of the United States or of any foreign country. The broad interpretation of wildlife preservation laws can only help to ensure that wildlife remains protected. While United States courts may only prosecute wildlife offenders and importers with contraband within their jurisdiction, the United States' efforts at law enforcement and prosecution represent a significant enough portion of the world wildlife trade that may have a notable effect on the entire illegal species industry.⁽²⁰³⁾ Continued enforcement by the United States of these wildlife laws can at least serve as a deterrent to poachers and illicit traders from finding a market in the United States in which to peddle endangered and threatened wildlife. One can only anticipate that other countries will follow suit before many other endangered species disappear forever.

1. The author is a labor relations attorney for the Massachusetts Organization of State Engineers and Scientists. J.D. 1996, New England School of Law. She dedicates this Article to her husband Daniel Rosemark for his support and encouragement throughout.

2. Norman Myers, The Sinking Ark: A New Look at the Problem of Disappearing Species 3 (1979).

3. John B. Heppes and Eric J. McFadden, The Convention on International Trade in Endangered Species of Wild Fauna and Flora: Improving the Prospects for Preserving Our Biological Heritage, 5 B.U. Int'l L.J. 229 (1987).

4. Convention on International Trade of Endangered Species of Wild Flora and Fauna, March 3, 1973, 27 U.S.T. 1087 [hereinafter CITES].

5. Heppes and McFadden, supra note 3, at 229.

6. Id.

7. Id.

8. Id. at 230-231.

9. Medical uses of plants also provide a strong argument for species preservation. The value of plant-derived drugs and pharmaceuticals sold in the United States tops tens of billions of dollars annually. Daniel J. Rohlf, The Endangered Species Act: A Guide to Its Protections and Implementations 13 (Stanford Envtl. Law Society 1989).

10. Two compounds derived from alkaloids of the Rosy Periwinkle-- a flower found in the tropical regions-- are vital constituents of a chemotherapy treatment that has increased the remission rate of lymph system cancer in Hodgkin's Disease patients from 19 percent to 80 percent. The same drugs have also increased the remission rates of several other forms of cancer. Id. at 14.

11. Heppes and McFadden, supra note 3, at 231.

12. Id.

13. Rohlf, supra note 9, at 14. In addition, species perform vital ecological functions. Certain species of flora regulate rainfall, recycle matter, resist soil erosion, and protect watersheds and coastal areas from both floods and droughts by acting as a buffer. Heppes and McFadden, supra note 3, at 231.

14. Jennifer M. Wesley, CITES Seeks to Remedy Atrocities Against Endangered Species, 10 Int'l Enfrcmt. L. Rep. 483, 485 (1994).

15. Id.

16. Jennifer Zoe Brooks, A Survey of the Court Enforcement of International Wildlife Trade Regulations Under United States Law, 17 Wm. & Mary J. Envtl. L. 145 (1993).

17. David S. Favre, International Trade in Endangered Species: A Guide to CITES, at xvii (Martinus Nijhoff 1989).

18. Heppes and McFadden, supra note 3, at 229.

19. Wesley, supra note 14, at 484.

20. Id.

21. ⁰Id.

22. Rohlf, supra note 9, at 33.

23. Wesley, supra note 14, at 484.

24. Id.

25. Id.

26. Preserving a specie's habitat is also a significant concern since the destruction of a habitat may have the same drastic effect on a population as hunting and poaching. Id.

27. Id.

28. Id.

29. Natalie Angier, DNA Tests Find Meat of Endangered Whales for Sale in Japan, N.Y. Times, Sept. 13, 1994, at C4.

30. Id.

31. Id.

32. Id. Of the whales, the humpback and the fin whales are endangered species, protected since 1966 and 1989, respectively. Id.

33. Id.

34. Angier, supra note 29.

35. Id.

36. Id.

37. Id.

38. Id.

39. Gary D. Meyers and Kyla Seligsohn Bennett, Answering "The Call of the Wild": An Examination of U.S. Participation in International Wildlife Law, 7 Pace Envtl. L. Rev. 75, (1989). Section 8 of the Endangered Species Act implements CITES. 16 U.S.C. § 1537(a).

40. M. Cherif Bassiouni, International Crimes: Digest and Index of International Instruments 1815-1985, 259 (Oceana Pubs. 1986).

41. Wesley, supra note 14, at 484.

42. Id. at 483.

43. Heppes and McFadden, supra note 3, at 229.

44. Favre, supra note 17, at xvii.

45. Id.

46. CITES, supra note 4, Preamble.

47. Id.

48. Mary Jane Bingham, Elephants, Rhinos, Tuna, and Bears, Oh My!...Heated Debates at Recent CITES Convention, 8 Int'l Enfrcmt. L. Rep. 155 (1992).

49. Brooks, supra note 16, at 145. Summarized, the three levels of endangered species covered by the CITES treaty are:

Appendix I: Species are strictly regulated. Participating countries agree to ban all commercial trade. This category consists of: (1) live animals or plants; (2) parts of animals or plants.

Appendix II: Trade is less restricted, but trade of goods is regulated.

Appendix III: Regulations in this category do not require joint approval by CITES members. Regulations may be enacted by an individual country by refusing to issue or accept import or export permits for a certain species. Wesley, supra note 14, at 484.

50. Rolhf, supra note 9, at 33. The listing of a species in Appendix I or II requires a two-thirds majority at a Conference of the Parties. Favre, supra note 17, at 140.

51. Id. at 57.

52. Id.

53. CITES, supra note 4, art. 1(c).

54. Favre, supra note 17, at 25.

55. Id. at 57.

56. CITES, supra note 4, art. III(2)(a).

57. Id. art. III(2)(c).

58. Id. art. III(2)(b).

59. Id.

60. Favre, supra note 17, at 58.

61. CITES, supra note 4, art. III(3)(a).

62. Id. art. III(3)(b).

63. Id. art. III(c).

64. Favre, supra note 17, at 82.

65. Id.

66. Id.

67. Id. at 83.

68. Id.

69. Favre, supra note 17.

70. Id.

71. Id.

72. Rohlf, supra note 9, at 34.

73. CITES, supra note 4, art. IV(2)(a),(b), and (c).

74. Rohlf, supra note 9, at 34.

75. CITES, supra note 4, art. IV(2)(c).

76. Favre, supra note 17, at 140.

77. CITES, supra note 4, art. 1(b)(I) and (ii).

78. Favre, supra note 17, at 19.

79. Meyers and Bennett, supra note 39, at 101.

80. Favre, supra note 17, at 20.

81. Id.

82. Id.

83. CITES, supra note 4, art. VII(3).

84. Favre, supra note 17, at 181.

85. CITES, supra note 4, art. VII(3)(a).

86. Id. art. VII(2). This exemption can obviously be interpreted broadly, and one can infer that the excuse is a popular one with wildlife traders.

87. Meyers and Bennett, supra note 39, at 102.

88. CITES, supra note 4, art. X.

89. Meyers and Bennett, supra note 39, at 102.

90. Id. at 102-103. For instance, Singapore was a large laundering port for the illegal wildlife trade before it became a member of CITES in 1986. Id. at 103.

91. Id. at 103-104.

92. Id.

93. Id. An ocelot is an American wildcat with a yellow or gray coat dotted and striped with black. Webster's New Collegiate Dictionary (1981).

94. Meyers and Bennett, supra note 39, at 104.

95. Id.

96. Wesley, supra note 14, at 484.

97. Meyers and Bennett, supra note 39, at 103.

98. See CITES, supra note 4, art. VIII. Art. VIII(1) states that "[t]he parties shall take appropriate measures to enforce the provisions of the present Convention and to prohibit trade in specimens in violation thereof. These shall include measures:

(a) to penalize trade in, or possession of, such specimens, or both; and

(b) to provide for the confiscation or return to the State of export of such specimens." Id.

99. Meyers and Bennett, supra note 39, at 103.

100. Id.

101. Id.

102. Id.

103. Id.

104. Meyers and Bennett, supra note 39, at 104.

105. Favre, supra note 17, at 322.

106. Id.

107. Id. at 323.

108. See discussion supra part III. B., concerning trade with non-members to the CITES treaty contained in Article X. Art. X states, "[u]ntil a Party withdraws its reservation . . . it shall be treated as a State not a party to the present Convention with respect to trade in the particular species or parts or derivatives specified in such reservation."

109. Favre, supra note 17, at 324.

110. Meyers and Bennett, supra note 39, at 104.

111. Bingham, supra note 48, at 158.

112. Favre, supra note 17, at 120.

113. Id. at 121.

114. Members to the CITES treaty are: Algeria, Argentina, the Bahamas, Bangladesh, Belgium, Belize, Benin, Bolivia, Botswana, Brazil, Cameroon, Canada, Central African Republic, Chile, China, Colombia, Congo, Costa Rica, Cyprus, Denmark (extended to Greenland and the Faroe Islands), Ecuador, Egypt, Finland, France, the Gambia, Germany, Ghana, Guatemala, Guinea, Guyana, India, Iran, Israel, Italy, Japan, Kiribati, Liberia, Liechtenstein, Luxembourg, Madagascar, Malawi, Malaysia, Mauritius, Monaco, Morocco, Mozambique, Nepal, Nicaragua, Niger, Nigeria, Norway, Pakistan, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Rwanda, St. Lucia, Senegal, Seychelles, South Africa, Sri Lanka, Sudan, Suriname, Sweden, Switzerland, Tanzania, Thailand, Trinidad & Tobago, Tunisia, Tuvalu, Union of Soviet Socialist Republics*, United Arab Emirates, United Kingdom (applicable to Hong Kong, the Bailiwick of Guernsey, the Bailiwick of Jersey, the Isle of Man, Bermuda, British Indian Ocean Territories, British Virgin Islands, Falkland Islands, Gibraltar, Monserrat, Pitcairn, St. Helena and Dependencies, and the Cayman Islands), United States of America, Uruguay, Venezuela, Zaire, Zambia, Zimbabwe. Bassiouni, supra note 40, at 259. *This list was compiled in the Index before the U.S.S.R. became the Russian Federation.

115. Wesley, supra note 14, at 484.

116. Meyers and Bennett, supra note 39, at 106.

117. Brooks, supra note 16, at 145.

118. In Northern Areas, Pakistan, villagers wanted to stop the illegal hunting of game, including snow leopards and Himalayan black bears. While the Pakistani government has many regulations to protect wild species, enforcement is virtually impossible. The villages requested assistance in developing programs to manage their wildlife, and several actually took the initiative to stop all hunting in their areas, including hunting by hunters in their villages. In one case, a village sent a delegation to the local radio station, several kilometers away, to announce their hunting ban and the penalties if hunters were caught, including a fine of 5,000 rupees ($200)- an astronomical sum for the economy of such a village- and confiscation of the rifle. They have since apprehended two hunters and collected the fines. When asked what they did with the income, the author was told that the villagers bought medicine for the village, books for the school, and planted 34,000 trees. Richard Littell, Endangered and Other Protected Species: Federal Law and Regulation at x-xi (The Bureau of International Affairs, Inc. 1992).

In addition, there are examples of villages that have initiated their own conservation programs. In Cocle, Panama, one author described the village as an "oasis" surrounded by very poor towns. Its success was due to conservation programs started by the villagers, with help from programs like CARE and the Smithsonian Institute (SI). They began by raising pigs and growing Caribbean pine (for lumber) and added a project on agroforestry where vegetable crops are grown in combination with trees. Iguana management began when a woman from SI told the villagers that it was important to save the species and that they could possibly sell the animal. The people also started an aquaculture project to raise talapia (a fish). The village was virtually centered around the projects, with income going to village activities and families. The author noted that he "had witnesse[d] a rural community in the midst of abject poverty as reflected in the surrounding villages that was motivated to conserve . . . species because it thought it was the right thing to do." Id. at x.

119. Brooks, supra note 16, at 145.

120. Wesley, supra note 14, at 485.

121. Id. See also Favre, supra note 17, at 81.

122. Wesley, supra note 14, at 485.

123. Id.

124. 16 U.S.C. § 1537 (1973)[hereinafter ESA].

125. Brooks, supra note 16, at 146-47.

126. Endangered Species Act of 1973, 16 U.S.C. § 1537(a)-(b).

127. Id. § 1537(c)(1).

128. Id. § 1537(c)(2).

129. Id. § 1537(d).

130. 16 U.S.C. §§ 3371-78 (1988).

131. Id. § 3372(a). This section reads: "[i]t is unlawful for any person . . . to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce [any fish or wildlife (but not plants)] taken, possessed, transported, or sold . . . in violation of any foreign law." Id.

132. Brooks, supra note 16, at 147.

133. Id.

134. A forfeiture action is an in rem proceeding in which property is considered to be the offender. The claimant must establish an interest in the item subject to forfeiture. Once the claimant has established standing, the government must establish probable cause for the forfeiture. The burden then shifts to the defendant to prove that the property is not subject to forfeiture by a preponderance of the evidence. U.S. v. 3,210 Crusted Sides of Caiman Crocodilus, 636 F.Supp. 1281, 1283-84 (S.D. Fla. 1986).

135. See United States v. 2,507 Live Canary Winged Parakeets, 689 F.Supp. 1106, 1113 (S.D. Fla. 1988).

136. Id.

137. Id.

138. Lacey Act, 16 U.S.C. § 3373(a) (1988). The civil penalty may apply where the violator should know, in the exercise of due care, that the articles were taken, possessed, transported, or sold contrary to an underlying law, treaty, or regulation. Moreover, the $10,000 penalty may be imposed if a person knowingly violates the prohibitions against false labeling or documentation. Littell, supra note 118, at 119.

139. 16 U.S.C. § 3373(d).

140. Littell, supra note 118, at 121.

141. Id. at 122.

142. Id.

143. 16 U.S.C. § 1540(a).

144. U.S. v. 3,210 Crusted Sides of Caiman Crocodilus, 636 F.Supp. 1281 (S.D. Fla. 1986) and U.S. v. 2,507 Live Canary Winged Parakeets, 689 F.Supp. 1106 (S.D. Fla. 1988).

145. 636 F.Supp. 1281 (S.D. Fla. 1986)[hereinafter Crocodilus]. "Crusted sides" refers to a tanning process for hides. Id. at 1282.

146. 689 F.Supp. 1106 (S.D. Fla. 1988)[hereinafter Parakeets].

147. Brooks, supra note 16, at 148.

148. Id. at 149.

149. Id.

150. Crocodilus, 636 F.Supp. at 1281.

151. Id. at 1282.

152. Id.

153. Id.

154. Id. at 1284.

155. Crocodilus, 636 F.Supp. 1106 at 1286.

156. Id. at 1284.

157. Id. at 1285.

158. Id. at 1283.

159. Id. at 1285-86.

160. Crocodilus, 636 F.Supp. at 1286. The court stated that an "innocence is not, standing alone, a sufficient defense to forfeiture. . . . In order to prevail under a defense of innocence, a claimant must demonstrate a lack of involvement in the underlying wrongful activity, lack of knowledge of the wrongful activity, and that the claimant has done all that was reasonably possible to prevent the illegal use of his property. The claimants have failed to sustain their burden . . . ." Id. at 1286-87.

161. Id.

162. Id. at 1287.

163. Id.

164. Brooks, supra note 16, at 150.

165. Crocodilus, 689 F.Supp. at 1106.

166. Id. at 1109-10.

167. Id. at 1110.

168. Id. at 1113-15. The court found that there was probable cause to believe that the ESA and CITES were violated because the permit issued in Peru was not valid. Id. at 1114. Under the Lacey Act, the government had to establish that the parakeets were imported into the United States in violation of the laws of Peru. The testimony at trial established that Peruvian Supreme Decree No. 934-73-AG prohibits the exportation of wild live animals originating from the forest or jungle region, from anywhere in the national territory. The court stated that the decree was sufficient in and of itself to establish probable cause to believe that the birds had been imported in violation of Peruvian law. Id. at 1113.

169. Id. at 1119. The court held that the defense of "innocent owner" was not available in actions under the Lacey Act. The court stated that although there was no published opinion regarding the issue, the legislative history of the amendments to the Lacey Act

unequivocally establishes that the defense of 'innocent owner' is not available in forfeiture actions of wildlife brought pursuant to this Act . . . a violator does not have to forfeit his illegal shipment unless the Government can prove that he knowingly violated the Act or failed to exercise due care. The strict liability forfeiture section of these amendments would allow the protection of various species from harmful illegal trade by withdrawing illegal shipments from the marketplace even when the violation itself is inadvertent. Id. at 1117.

Although the court held that the defense was not available in this case, it found that the defendant nevertheless failed to establish by a preponderance of the evidence that he was an "innocent owner." Id. at 1119.

170. Crocodilus, 636 F.Supp. at 1120.

171. See, e.g., United States v. 594,464 Pounds of Salmon, 871 F.2d 824, 829-30 (9th Cir. 1989).

172. Id.

173. 871 F.2d 824 (9th Cir. 1989)[hereinafter Pounds of Salmon].

174. Id. at 825.

175. 16 U.S.C. § 3374 (1982).

176. Pounds of Salmon, 871 F.2d at 828.

177. Id. at 830.

178. Id. at 829.

179. Id. Although the Act also provided for criminal penalties, a showing of scienter was necessary to invoke criminal liability. The scienter requirement mitigated the law's potential vagueness. Id.

180. Id.

181. Brooks, supra note 16, at 154.

182. No. CV-88-3476, 1991 WL 41774 (E.D.N.Y. Mar. 14, 1991).

183. Id. at 10.

184. Id. at 9-10.

185. Brooks, supra note 16, at 155.

186. No. 88-1276, 1988 WL 66193 (D.D.C. 1988)[hereinafter Hodel].

187. Id. at 1.

188. Brooks, supra note 16, at 155.

189. Hodel, 1988 WL 66193, at 2.

190. Id. at 3. Specifically, the WWF challenged the Fish and Wildlife Service's findings that the import would not be detrimental to the survival of the species and that the pandas would not be used primarily for commercial purposes. Id. See supra discussion part IV, pp. 10-12, concerning permit requirements for Appendix I species under CITES.

191. Hodel, 1988 WL 66193, at 4-5. The court stated that the plaintiffs demonstrated that the public interest supported the grant of a preliminary injunction, and that the public interest was defined by Congress in CITES. "If the treaty has been violated, then the public interest will suffer." Id. at 4.

192. Brooks, supra note 16, at 157.

193. Id.

194. Id.

195. 753 F.Supp. 1260 (M.D. Pa. 1990), aff'd, 941 F.2d 1203 (3d. Cir. 1991).

196. See discussion of commercial purpose, supra at pp. 11-12.

197. 753 F.Supp. at 1280.

198. Id.

199. A Jentink's duiker (C. jentiki) is a small African antelope. It was listed under Appendix I on July 29, 1983.

200. 753 F.Supp. at 1282.

201. Meyers and Bennett, supra note 39, at 79.

202. Bingham, supra note 48, at 158.

203. Brooks, supra note 16, at 162. All contents copyright © 1997, New England School of Law, Boston, Massachusetts.
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