Conspiring to violate the Lacey Act.

• Author: Fisher, Christine
• Position: Wildlife protection statute; illegal wildlife trafficking

1. INTRODUCTION

   Despite being this nation's oldest wildlife protection statute, (1) the Lacey Act (2) exists in relative anonymity to the general public. Yet this Act is a valuable federal weapon against illegal wildlife trafficking. (3) Over twelve hundred Lacey Act cases were investigated in fiscal year 2000, more than most other wildlife laws. (4) The Lacey Act prohibits the importing, exporting, transporting, selling, receiving, acquiring, or purchasing of "any fish or wildlife or plant taken, possessed, transported, or sold in violation" of a tribal, state, federal, or international law. (5) However, despite the broad scope of the Lacey Act, poaching and illegal wildlife trafficking are still prevalent. (6)

   A significant means to combat this problem is found in the federal Conspiracy Act. (7) The federal charge of conspiracy broadens the reach of the Lacey Act by allowing a federal conviction for behavior short of an actual completed Lacey Act offense. The crime of conspiracy occurs when "two or more persons conspire" (8) to violate the Lacey Act. The conspiracy offense can act as further arsenal against wildlife violators. In fact, charging an individual with conspiracy may be considered a graver offense than the contemplated crime (9) and can lead to harsher penalties. (10)

   Because illegal wildlife traffickers are often caught before violating the Lacey Act, conspiracy is a way to charge the wrongdoers for committing a crime. Likewise, if a Lacey Act offense is committed, the offenders can be charged with conspiracy to violate the Lacey Act in addition to a charge for actually violating the Act. Considering that over $3 billion in profits is made annually by the illegal sector of the international wildlife trade in the United States, (11) conspiracy is a significant tool to aid the Lacey Act in controlling this expansive trade.

   A significant problem associated with uncovering and prosecuting a conspiracy, however, is that a conspiracy's essential features are secrecy and concealment. (12) Further, conspiracy is a complex area of the law, and it can be extremely difficult to understand the necessary requirements to convict under the charge.

   This Comment seeks to show that adding a conspiracy count to a Lacey Act prosecution will help combat the illegal wildlife trafficking problem. In addition, this Comment provides an explanation of how to convict under the federal Conspiracy Act, as well as under the Lacey Act, and how the statutes work in conjunction.

   Part II of this Comment describes the prevalence of illegal wildlife trafficking. Part III addresses the inherent problems with enforcement of the Lacey Act. Part IV explains the elements of a conviction, first under the Lacey Act, then under a federal conspiracy charge, and finally when the two charges are joined. Part V discusses the advantages and disadvantages of using the federal charge of conspiracy with the Lacey Act, and Part VI concludes that conspiracy is an effective charge to combat illegal wildlife trafficking.

2. THE OVERWHELMING PROBLEM OF WILDLIFE TRAFFICKING

   Society's awareness of the problem of illegal wildlife trafficking is minimal in comparison to other problems, such as the trafficking of drugs. The United States devotes millions of dollars to the war on drugs, but little mention (or money) is given to the war on illegal wildlife trafficking. (13) Yet, illegally taken wildlife is the second largest trade on the black market, second only to the drug trade. (14) In fact, the prohibited international wildlife market provides more profit than the sale of illegal weapons. (15) The United States is a major competitor in this trade, especially because it imports and exports more wildlife than any other country. (16) The General Accounting Office (GAO) estimates that anywhere from $100 million to $250 million in illegal wildlife shipments cross the borders of the United States each year. (17) Wildlife poaching in the United States is more dangerous, more profitable, and harder to control than anywhere else in the world. (18) Many involved with combating illegal wildlife trafficking--such as Fish and Wildlife law enforcement officers and Department of Justice attorneys--say that the United States is facing the worst poaching problem in history. (19) The Department of Fish and Wildlife has conservatively estimated that Americans pay $200 million annually for illegally caught domestic animals and $1 billion for illegal animals from abroad. (20)

   Profit is the main motivation behind the trafficking problem. (21) Smugglers and poachers make big money in the trade, and trophy hunters are willing to pay large amounts of cash for prized animals. (22) For example, the price for a Dall sheep is $100,000. (23) The high price makes it lucrative for hunting guides to break state and federal wildlife laws. (24) Since record-sized trophy animals are often found in state and national parks, wildlife laws are necessarily broken to catch the animals. (25)

   Dall sheep are not the only wildlife that claim high prices. Rocky Mountain bighorn sheep, an endangered species, (26) go for $10,000, (27) and large, white-tailed deer antler racks may get $1000 to $3000. (28) In Alaska, hunters will pay up to $10,000 for an "illegally guaranteed brown bear, often illegally baited with dead caribou." (29) A single U.S. Fish and Wildlife sting operation discovered 17,500 illegal furs worth $1.2 million. (30) Another wildlife investigator found 2000 bear gallbladders in New York's Chinatown for sale at $800 per gram. (31)

   The monetary incentive exists not only in poaching, but in smuggling as well. Live Australian cockatoos fetch $15,000 apiece, (32) tempting individuals to smuggle the birds illegally into the United States. High numbers of reptiles are also being stolen from the wild and smuggled to countries like Japan, Belgium, Britain, and the Czech Republic. (33) Even though it is illegal to ship snakes through the mail, 100,000 are mailed each year, and around sixty percent of them die. (34)

   Wildlife that claim these high market prices are dwindling in number. (35) For example, in southern Appalachia, the average age of legally killed bears has dropped by half. (36) Fish and Wildlife agents say that it is hard to find a bighorn sheep over the age of eight, and so few are left that in certain habitats the sheep must be transported to avoid inbreeding. (37) Furthermore, wildlife officials report that overall the unlawful killing of wildlife equals or exceeds legal hunting. (38) Trophy hunting not only harms the animal poached, but affects future generations as well, because the hunters kill off the biggest and best of the species' gene pool. (39) The detrimental consequences of illegal wildlife trade, along with the growing loss of wildlife habitat, has led to the depletion of numerous species. (40) As the General Accounting Office noted:

   The growing demand throughout the world for wildlife and wildlife parts and products has created a market in which commercial exploitation has threatened certain wildlife populations. The oriental medicine trade, for example, has created an illicit market in bear gall bladders, rhinoceros horns, and parts of other threatened and endangered species. (41) A former illegal fish broker turned informant says that Washington state's steelhead spawning runs have gone down seventy-five percent due to consumer demand. (42) He estimates that "the illegal take is responsible for a third to a half of that." (43)

   Another excellent example of the growing problem is the Caspian sea sturgeon, whose eggs are used for caviar. The sturgeon's numbers are dwindling, and individuals are now looking towards paddlefish for replacement eggs. (44) States already have limitations on the number of paddlefish that may be caught, resulting in individuals illegally poaching the fish for their high-money-fetching eggs. (45) Once one species runs out, consumers turn towards another as a replacement, and the problem continues, wiping out species after species.

   The poaching and smuggling of animals also presents health hazards to both humans and wildlife. (46) In areas of the United States, the inlets are so polluted that commercial shell fishing has been prohibited, (47) yet this does not stop people from digging clams in these areas. (48) The infected clams, which may cause hepatitis A or gastroenteritis, are then placed on the market, origins unknown. (49) A poaching investigation in the Great Lakes discovered dealers selling illegal trout and salmon falsely marked as whitefish. (50) Some of the illicit fish were contaminated with PCBs. (51) U.S. Fish and Wildlife Service Director Jamie Rappaport Clark reports that the smuggling of birds into the United States threatens the health of native species as well as people. (52) Parrots may carry diseases such as psittacosis, which can infect humans, and Newcastle disease, which can kill poultry. (53) In the 1970s, eradication of the latter disease cost taxpayers in New York, Texas, Virginia, California, and Florida $600 million. (54)

3. DOES THE SOLUTION LIE WITH THE LACEY ACT.?

   1. The Answer May Be in the Lacey Act

      The Lacey Act helps to combat the poaching and smuggling problem. Director Clark heralds the Lacey Act as "one of our most important conservation statutes" and notes that the Act "remains a cornerstone for wildlife conservation by giving us the ability to combat interstate and global wildlife trafficking." (55) The Act is touted as the premier weapon in the fight against wildlife trafficking (56) and the "government's key mechanism for deterring crimes against wildlife." (57)

      The Lacey Act applies to a larger number of wildlife and fish than any other wildlife protection law. (58) Not only does the Act have a broader scope than other acts, it also has the potential for longer prison sentences than most other wildlife laws with felony provisions. (59) Because the Act allows for longer sentences and...