Setting the tone: the Lacey Act's attempt to combat the international trade of illegally obtained plant and wildlife and its effect on musical instrument manufacturing.

• Author: Shelley, Wesley Ryan

1. INTRODUCTION II. HISTORY OF THE LACEY ACT III. WHAT IS ILLEGAL UNDER THE 2008 AMENDMENTS TO THE LACEY ACT? IV. A SCALE OF ENFORCEMENT ACTIONS A. A-440 Pianos, Inc. B. Gibson Guitar Corporation C Long & McQuade D. Non-Musical Instrument Cases V. FLAWS IN THE LACEY ACT A. Problems for Corporations B. Problems for Individuals VI. SOLUTIONS VII. CONCLUSION I. INTRODUCTION

   The Lacey Act of 1900 (1) was passed into law at the turn of the twentieth century with the original intent of enforcing animal poaching laws in the United States. Since then the law has been expanded to include foreign laws, as well as protection of plants, animals, and products. An industry that has been particularly concerned with the Lacey Act because of its restrictions on the use of raw woods and animal products, and which has recently become the target of numerous prosecutions for violating the Act, is that of musical instrument manufacturers and dealers. While the Lacey Act has received a great deal of praise for its impact on curtailing animal poaching and deforestation, it is not without many faults.

   This Comment first discusses the history of the Lacey Act, followed by a more in-depth discussion of the Act's 2008 amendment to extend protection to the harvest of plants and wood products. It then examines several instances where musical instrument manufacturers and dealers have been accused of and sometimes prosecuted for violating the Lacey Act and inspects a few nonmusical cases involving the Lacey Act and similar legislation. The Comment next addresses the issues and problems facing the Lacey Act in relation to the musical instrument trade. Finally, the Comment gives a set of recommendations for fixing the Lacey Act to remedy its shortcomings without sacrificing the environmental aims and effectiveness of the law.

2. HISTORY OF THE LACEY ACT

   The Lacey Act was passed into law in 1900 with the primary goal of preserving endangered animals and wild birds by making it a federal crime to illegally hunt game in one state and profit from its sale in another state. (2) Further concerns regarded the introduction of normative species into new ecosystems. (3) In 1935, the statute's provisions were expanded to cover international trade. (4)

   In 1969, the Lacey Act was amended to include protection to amphibians, reptiles, mollusks, and crustaceans. (5) The mens rea requirement was changed to "knowingly and willfully" for criminal violations and civil remedies for negligent conduct were provided. (6) The 1969 amendment also increased the maximum penalty to $10,000 and a one-year imprisonment. (7)

   In 1981, the "willful" element of the Lacey Act was removed so that only knowing conduct was necessary to be found in violation of the law. (8) The law also expanded the species it protected to include indigenous plants. (9) A cap was put on civil penalties at $10,000, and a system to separate felony and misdemeanor offenses was put in place based on the conduct of the offender and market value of the species This made the penalty for misdemeanor offenses $10,000 and up to a one-year imprisonment, but increased the penalty for felony offenses to $20,000 and up to a five-year imprisonment. (10) Wildlife agents were given a greater role in the prosecution of felony offenses in 1981, including the ability to arrest without a warrant." In 1988, the law changed to bring culpability to those who served as guides or assisted in providing illegal hunts for protected species. (12) The law was also amended to implicate anyone who falsified documents for the import, export, or transport, of protected species, as well as making those found to have knowledge of the import or export of species valued over $350 guilty of a felony. (13)

   In 2008, the Farm Bill (14) amended the Lacey Act and extended its definition of "plants" to include trees, and added protection to products made from any illegally harvested plants and trees and the products made from them, including timber, furniture, paper, and musical instruments. (15) The 2008 amendment further created an import declaration requirement that importers must state specific sourcing information of all plants and wood, including the genus and species, the country from which it was taken, and the quantity and value of the plant or wood. (16) If the information is unknown, the importer is required to declare what the species of plant likely is, as well as all possible countries of origin. (17) For recycled materials, the importer must list the percent of protected material in the recycled content, as well as the species and origin information for each of the nonrecycled plant materials contained in the product. (18)

   The Lacey Act today makes it "unlawful for any person to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant 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." (19) Penalties are capped at $250,000 for individuals and $500,000 for organizations. (20) Additionally, those convicted under the Lacey Act can be forced to forfeit vehicles, aircraft, or other equipment used in the commission of the crime. (21)

3. WHAT IS ILLEGAL UNDER THE 2008 AMENDMENTS TO THE LACEY ACT?

   A violation of the Lacey Act's 2008 amendment concerning plants requires two components: 1) a plant being taken, harvested, possessed, transported, sold, or exported in violation of United States law or the law of a foreign country, and 2) a person or company importing, exporting, transporting, selling, receiving, acquiring, or purchasing this illegally sourced plant in United States interstate or foreign commerce. (22) Neither element on its own constitutes a violation of the Lacey Act. (23) While the Act applies the federal and state law of the United States, as well as the laws of the nations which the wood or wood product contacts the stream of commerce, the Lacey Act does not impose state or federal laws of the United States laws on foreign nations. (24) The law does, however, apply United States federal law to domestic products in interstate commerce, allowing the federal government to prosecute illegally harvested plants within the United States. (25) If the plant is illegally harvested from federal or tribal lands, the Lacey Act does not require the plant to have entered into interstate commerce for the law to apply. (26) The declaration requirement does not apply to domestic products or plants harvested from federal or tribal lands--it is only necessary for imported goods. (27)

   According to the Lacey Act, a "plant" is any part or derivative of any wild member of the plant kingdom, including products. (28) Plants listed the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), (29) the Endangered Species Act (ESA), (30) or on state endangered species lists are always protected; however, these laws often provide exceptions to their protections for trees and plants used for propagative or scientific purposes. (31) Though endangered species are included under the Lacey Act, "plants" are not limited to endangered species, and the Lacey Act applies to all plants and trees that are illegally harvested. (32)

   United States agencies in charge of monitoring imports for conformation with the Lacey Act include the Animal Plant Health Inspection Service, Fish and Wildlife Service (FWS), and Department of Homeland Security. (33) If items are seized, the case may be forwarded to the Department of Justice (DOJ) for forfeiture proceedings. (34) According to a spokesperson for FWS, once an item is seized it is placed into a large repository of seized items. (35) While some items in the repository are auctioned off, FWS has not had an auction since 1999, and items that could not have been legally imported for commercial purposes are not eligible for auction. (36) In the alternative, FWS has sometimes kept items seized for Lacey Act violations for educational purposes, such as using an instrument containing an illegal tortoise shell to demonstrate to children the activities which have led to the sea tortoise's endangerment. (37)

   The Lacey Act requires a reasonable standard of due care in complying with the law. (38) Because of the flexible, fact-based standard that due care entails, combined with the lack of case law regarding the 2008 amendments thus far, businesses engaging in the trade of wood and wood products are unclear as to what steps must be taken to remain compliant with the law. (39) Musical instrument dealers and manufacturers were particularly concerned with the 2008 amendment because the woods widely thought to have the most desirable sonic characteristics are also typically Lacey Act-protected foreign woods. (40) Though musical instrument makers have great interest in tropical hardwoods, the vast majority of such wood is used in flooring and furniture production; roughly one percent of tropical hardwood is used to manufacture musical instruments. (41) Despite instrument makers' use constituting a small share of wood use in production, a photo of a Brazilian rosewood guitar is prominently displayed on the FWS Timber Import/Export Requirements fact sheet and the first page of the FWS Antiques sheet. (42) The permit form for export of plants also specifically refers to "vintage guitar purchaser and exporter" and "guitar manufacturer/exporter/lumber exporter." (43) Most makers of guitars, however, recognize and respect the need for environmental protection of those desirable wood species used in guitars and support efforts like the Lacey Act that ensure the availability of tone wood species in the future. (44) Though some musical instrument manufacturers and dealers, who account for a negligible share of the wood used in commercial production and of the industries importing exotic woods into the United States, have been supportive of the Lacey Act, (45) musical...