Federal enforcement against those who violate wildlife protection laws dates back to 1900, when Congress passed the Lacey Act. In the face of illegal hunting, particularly illegal commercial hunting, many game species in the United States were threatened with extinction. Although states had regulations designed to protect wildlife from overhunting, those laws could not contend with the interstate commerce in wildlife that drove the trade in illegal wildlife. The Lacey Act and subsequent federal wildlife statutes addressed that problem. In particular, the Lacey Act makes it a federal crime to break the wildlife laws of any state, tribe, or foreign country, and then move or trade the wildlife across U.S. borders.
In the years since passage of the Lacey Act, the nation’s wildlife protection statutes have taken on additional force and have been used to curb international trafficking in endangered and threatened species including: black coral, tigers, ginseng, tortoises, striped bass, and leopards. Most recently, the Lacey Act has been expanded to address plant life, especially timber.
In contrast to pollution crimes, which are similar to white collar fraud cases in many ways, wildlife crimes are often similar to drug trafficking and other smuggling schemes. Thus, wildlife investigators, particularly the special agents of the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration, use techniques similar to those used in narcotics enforcement. In particular, controlled deliveries of contraband wildlife, followed by anticipatory warrants, often result in overwhelming evidence against consumers of illegal wildlife. With the evidence piled up against them, these defendants sometimes are willing to cooperate against their suppliers. When suppliers are convicted, the government sees the greatest deterrent effect. One of the great challenges for wildlife prosecutors is to work in the United States, where demand for illegal wildlife is highest, to shut down international suppliers. Through training and law enforcement cooperation, ECS has been able to make inroads into source and transit countries.
Thus, federal criminal enforcement of laws protecting wildlife presents a serious deterrent to illegal conduct that augments state, tribal, and foreign wildlife management efforts. A wildlife case can include prosecution of both individual and organizational perpetrators; disgorgement of proceeds from illegal conduct such as smuggling; punishment that includes community service to help mitigate harm caused by the offense; forfeiture of wildlife and instrumentalities used to commit the offense; and sharing of forfeited property with local and international partners in enforcement.
In addition to its work curtailing pollution and illegal industrial practices, the Section has a wide and varied wildlife prosecution caseload, as illustrated below:
In 2009, Wayne D. Breitag of Aberdeen, South Dakota, was convicted of illegally smuggling the hide of a leopard into the United States. A jury found that Breitag traveled to South Africa to hunt leopards on a “Trophy Hunting Safari.” While in South Africa, he killed a leopard and then smuggled it to Zimbabwe to obtain a false permit for shipment back to the United States. This violated the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Under CITES, before a leopard hide, or any part of any listed species, may be transported from one country to another, an export permit from the country of origin and an import permit from the destination country must be obtained. These permits must then accompany the shipment. Breitag submitted applications to the U.S. Fish and Wildlife Service falsely claiming that he hunted and killed the leopard in Zimbabwe, in order to get around a South African quota on export permits. The illicit activities were uncovered when U.S. Fish and Wildlife Service inspectors seized a shipment of five leopard hides and three leopard skulls at the Denver International Airport. Breitag was sentenced to pay a $20,000 fine and to serve six months of home confinement.
In another CITES case, David Place was convicted in November 2010 by a federal court in Boston for illegally importing and trafficking in sperm whale teeth and narwhal tusks. Place was convicted of conspiring with people in the Ukraine to illegally import protected sperm whale teeth for resale in the United States. Sperm whale teeth often can be sold for substantial sums to collectors and tourists and for use in scrimshaw. However, the whales are classified as endangered under the Endangered Species Act and international trafficking of sperm whale parts is regulated under CITES. Thus, it is a felony to import any part of a sperm whale into the U.S. without requisite permits and without declaring the animal parts to U.S. Customs and the U.S. Fish and Wildlife Service. On seven smuggling counts, Place was sentenced to 33 months in jail.
In order to protect endangered species, criminal prosecution is sometimes necessary where people or organizations flaunt protective regulatory requirements over a long period of time:
In September 2010, the County of Kauai pleaded guilty to killing or wounding more than 18 migratory birds, specifically Newell’s shearwaters, which are threatened species protected under the Endangered Species Act. The Newell’s shearwater is a seabird native to the Hawaiian Islands, and the majority of the world’s population nests on the island of Kauai. Newell’s shearwaters are attracted to bright lights. This attraction causes the birds to exhaust themselves circling such lights. Then, they fall to the ground, where cars, predators, or starvation may claim their lives. In the fall of 2005, the U.S. Fish and Wildlife Service notified the County of Kauai that its facilities—particularly its outdoor lighting—were harming protected seabirds, including the shearwater, in violation of the Endangered Species Act. As of August 2010, Kauai had neither shielded its lights, nor prepared a plan to conserve the birds’ habitat, nor applied for a permit authorizing the incidental harming and killing of protected seabirds. The government took legal action against Kauai, and the County entered into a plea agreement. Under the agreement’s terms, the county must limit the use of bright lights, including stadium lights. In addition, the county was required to pay $180,000 to partially repair the harm done to the seabird population, as well as $30,000 to reduce the harm anticipated from future takings of seabirds.
As the following two cases illustrate, criminal trafficking in wildlife is big business, where hundreds of thousands of dollars of illegal profit may cause great damage to the viability of a species:
In October 2011, GEM Manufacturing LLC, a company incorporated in the U.S. Virgin Islands, was sentenced for importing falsely-labeled, protected black coral into the United States. Black coral colonies serve as habitat for numerous aquatic species. The coral itself is slow growing, taking hundreds or thousands of years to develop. Black coral is especially prized by some for use in jewelry and art. It can be polished to a high sheen, worked into artistic sculptures, and inlaid. Because of its scarcity, black coral is subject to strict trade regulations under CITES. GEM frequently purchased black coral for use in its high-end jewelry and sculpture from a Taiwanese company, Peng Chia Enterprise Co., Ltd. None of the shipments of black coral from Peng Chia to GEM complied with CITES trade regulations. With respect to the United States, the shipments violated the Lacey Act because the boxes of wildlife were falsely labeled in international commerce. In January 2009, 10 boxes of black coral labeled as “plastic of [sic] craft work” were shipped by Peng Chia to GEM. For this illegal importation and for many other illegal shipments, GEM was sentenced to pay a criminal fine of $1.8 million, which will be apportioned between the Lacey Act Reward Fund and the National Oceanic and Atmospheric Administration Asset Forfeiture Fund. GEM was also required to pay $500,000 in community service payments for projects to study and protect black coral and to implement an auditing, tracking and inventory control program during its three years of probation.
Finally, in May 2009, commercial fisherman Keith Collins was sentenced for creating false rockfish (or striped bass) catch records. Collins had pleaded guilty to falsely reporting the amount of rockfish he harvested from 2003 to 2007. Each year, Collins, with the aid of two state-designated fish check-in stations in Maryland, reported the weight of his rockfish catch at a lower level than what he had actually harvested. He would also inflate the number of fish he had caught. By underreporting the weight of fish caught while over-reporting the number of fish taken, Collins could credibly claim that although he had not reached his quota for the year, he had used up the state-issued tags needed to trade in rockfish. As a result, the state would issue additional tags that could be used by Collins to catch more rockfish, and to illegally exceed his quota. The fair market value of the rockfish involved in the illegal transactions was between $600,000 and $750,000. Collins was sentenced to 13 months in prison plus two years of supervised release. He was also fined $4,500 and ordered to pay restitution of $70,569 to the National Fish and Wildlife Foundation. As a result of the investigation and prosecution of Collins, an additional 15 individuals and 2 fish wholesalers were charged for illegally harvesting and underreporting their catch of rockfish.