Federal Wildlife Trafficking: Lacey Act Violations.

A: Generally speaking, a trafficking prosecution under the Lacey Act requires two key elements. Specifically, it requires: (i) an underlying violation of a federal or state wildlife-related law; and (ii) a subsequent transaction involving the wildlife-related product that is prohibited by Section 3372(a).

Section 3372(a) is the Lacey Act’s primary trafficking provision. It states, in pertinent part:

“Whoever does any of the following acts or attempts to do any of the following acts, in connection with any fish, wildlife, plants, or plants or plant products taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States, or of any State, Indian tribe, or foreign nation …

(1) With intent to commit, or under circumstances that clearly indicate an intent to commit, a violation of 16 U.S.C. § 3372(a)(1) through (3) and subsection (e), (1) imports, exports, transports, sells, receives, acquires, or purchases, or attempts to import, export, transport, sell, receive, acquire, or purchase, or knowingly accepts a transported, imported, or exported fish, wildlife, plants, or plant product, or any part or product thereof, with a reasonable probability that, in the commission of such act, the defendant will violate, or may facilitate a violation of such section 407; or

(2) sells, receives, acquires, or purchases, or attempts to sell, receive, acquire, or purchase, any fish, wildlife, plants, or plant products (or any part or product thereof), in violation of any law, treaty, or rule of the United States, or any state, Indian tribe, or foreign nation;

(3) … [additional provisions]”

The “listed transactions” that “trigger” liability under the Lacey Act include:

• Importing
• Exporting
• Transporting
• Selling
• Receiving
• Acquiring
• Purchasing
• Purchasing the means of transport of wildlife to facilitate transport

Section 3372(a)(4) makes it unlawful to attempt to commit any act described in paragraphs (1) through (3) or subsection (e).

Q: When does a wildlife transaction become a felony rather than a misdemeanor?

A: While federal authorities can (and frequently do) bring civil enforcement actions for Lacey Act violations, they can also bring criminal charges in appropriate circumstances. However, not all criminal violations under the Lacey Act are created equal. Some are misdemeanors; others are felonies.

Import-Export Violations

For import and export violations, the Lacey Act defines a felony crime as the “knowingly[ ]” “import, export, transport, sell, receive, acquire, or purchase[ ]” of wildlife or plant material “taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law;... any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law” Because these import-export crimes present unique risks to the health and integrity of our nation’s wildlife and plant populations, the only specific requirements to trigger criminal prosecution are (i) knowledge of the illegal underlying act, and (ii) taking part in the listed transaction. Unlike other forms of trafficking under the Lacey Act, import-export violations do not require commercial conduct or transactions involving wildlife with a market value exceeding $350.

Domestic Trafficking Violations

For “domestic” cases, those not involving importation or exportation, federal prosecutors must establish two additional elements to pursue felony charges. First, the transaction in question must involve unlawful “commercial conduct.” In other words, the defendant must buy or sell unlawful wildlife for more than just personal purposes. And second, the wildlife (or plant) involved must have a market value exceeding $350.

Under section 3373(d)(1) of the Lacey Act, felony trafficking offenses carry a statutory maximum sentence of five years’ imprisonment (and no additional-years enhancement is specified in section 3373(d)(1) for controlled species or for a particular threat to endangered wildlife or other species

Q: Which wildlife and plant predicates count, and what must the government prove you knew?

A: The Lacey Act applies to all federal or state wildlife or plant-related laws, treatises, and rules, as well as laws from Indian tribes and foreign nations. However, plant trafficking under section 3372(a)(2) differs in that it can rely on a qualifying foreign-law predicate.

The Lacey Act broadly defines the types of “wildlife” that can trigger liability under the statute. Wildlife includes all wild animals, whether alive or dead, including their parts, products, eggs, and offspring. Specifically, the Act covers:

• Mammals;
• Birds;
• Reptiles;
• Amphibians;
• Fish;
• Mollusks; and
• Crustaceans.

The federal government enforces the Lacey Act against traffickers in all forms of wildlife from illegally obtained animal-based products to illegally hunted animals.

The Act defines “plants” quite broadly as well, with a few key exceptions. Specifically, it excludes common food crops, cultivars, and similar species. Under the Act, “plants” include any wild member of the plant kingdom, including roots, seeds, parts, or products thereof, and including trees from either natural or planted forest stands. Plants that are “wildlife,” for the purposes of the Act, are those that are:

• any wild member of the plant kingdom
• Indigenous to a United States jurisdiction (or imported as a part of this United States’ commerce); and,
• listed in an appendix to CITES, listed as endangered or threatened under the Endangered Species Act, or listed pursuant to qualifying State conservation law

For other types of plant species (e.g., those that are neither indigenous nor listed as specially protected), only specific types of predicate violations are relevant. Specifically, these non “wildlife” plant transactions constitute violations under the Lacey Act only if the defendant knows that the plants or plant product in question are the result of:

• Illegal harvesting from a foreign nation;
• Unlawful transport within or from a foreign nation, into the United States; or,
• Unlawful transport in connection with importation to the United States.

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Q: What can the government forfeit without a conviction, and how long can it prosecute?

A: As discussed above, the Lacey Act provides for forfeiture of wildlife, plants, and specified property used in certain felony violations. However, the statutory requirements for forfeiture vary between wildlife/plant products and other-property types.

Wildlife and Plants

Unlike other types of property, the Lacey Act expressly allows for the forfeiture of illegally obtained wildlife and plants even if the owner has no culpability under the Act. Specifically, the law states that any fish, wildlife, plants, or plant product obtained, imported, exported, or transported in violation of any law, treaty, or rule applicable to the species involved is “subject to forfeiture” “shall be subject to forfeiture to the United States notwithstanding any culpability requirements for civil penalty assessment or criminal prosecution included in section 3373 of this title.” While the federal government can also seek a monetary penalty under civil seizure and forfeiture provisions (a forfeiture that does require a finding of unlawful conduct), there is no “innocent-owner defense” available against the forfeiture of the wildlife itself.

As a result, the government can forfeit any wildlife involved in an attempted or completed Lacey Act violation, and in cases involving animals, it can seize and euthanize or rehome them.

Other Property (Vehicles, Equipment, etc.)

In cases involving vehicles, equipment, or other property, the federal government must obtain a felony conviction in order to effect Lacey Act forfeiture. If a defendant is convicted of a felony, the Lacey Act provides for forfeiture of:

• All vehicles and other equipment that were “used to facilitate the offense,” so long as the owner was a consenting party or privy to the illegal act or, in the exercise of due care, should have known that the property would be used in a criminal violation;
• Section 3374(a)(2) provides for forfeiture of vessels, vehicles, aircraft, and other equipment used to aid the importing, exporting, transporting, selling, receiving, acquiring, or purchasing of fish, wildlife, or plants in a criminal violation for which a felony conviction is obtained, subject to the statute’s ownership and conduct requirements.

For import and export violations, the Lacey Act incorporates by reference several provisions from federal customs law regarding seizure, forfeiture, remission, and mitigation.

Q: Which predicate-law and interstate-transit defenses can defeat the charge?

A: Although the federal government and state, tribal, and foreign law enforcement agencies typically act in concert, federal prosecutors have several important options for pursuing civil and criminal charges under the Lacey Act. Although several of these options may be subject to challenge, each presents its own unique advantages and requirements.

Predicate-Law Defenses

When facing Lacey Act charges, one potential defense involves challenging the validity of the underlying state, tribal, or foreign law that allegedly triggered the federal case. Although federal prosecutors can pursue criminal charges even if the predicate law imposes only civil sanctions, the government must still be able to establish that the alleged predicate law is the type of law that falls under the Lacey Act’s statutory language. If not, the alleged predicate may not be able to support criminal or civil liability under the Lacey Act.

However, courts have largely rejected challenges to predicate laws based on their function as revenue measures, and predicate-law constitutional challenges have had mixed results in federal court. For example, a recent decision by the United States District Court for the Northern District of California rejected an alleged predicate-law constitutional challenge, while a decision by the United States District Court for the Western District of Texas upheld a similar challenge based on the predicate law’s purported effect on First Amendment expression.

Interstate-Transit Defenses

Another potential defense to a Lacey Act charge involves the act of importing, exporting, or transporting wildlife or plant products in violation of another jurisdiction’s laws. For example, although taking and transporting a particular species of wildlife in violation of another jurisdiction’s laws may trigger Lacey Act liability, taking and transporting wildlife that has been legally obtained under another jurisdiction’s laws and laws of a third jurisdiction might make it permissible to transit through a jurisdiction with tighter restrictive laws, so long as the wildlife is destined for lawful possession in the final jurisdiction.

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