Court Supports Government Forfeiture of African Elephant Tusk

by Mike Mintz on June 26, 2012 · 0 comments

in martindale.com

In a case which sounds like something from the film Out of Africa, the United States brought an in rem action against an African elephant tusk, seeking its forfeiture and condemnation in a case entitled USA v. One Etched Elephant Tusk of African Elephant and Graham Kent Fuller 10 CV 308 (E.D.N.Y. 5/17/12).  Claimant Graham Fuller put forth a claim for the tusk claiming that he is its rightful owner.  Fuller moved to dismiss the Government’s complaint for failing to state a cause of action and for summary judgment. The U.S. Government cross-moved for summary judgment. The court granted the Government’s cross-motion and denied Fuller’s motion in its entirety.

Facts

Fuller killed an African elephant while on a safari in Zimbabwe pursuant to a license issued by Zimbabwe’s Parks and Wildlife Management Authority. Fuller submitted the tusks to a taxidermist and asked the taxidermist to etch a specific scene onto the tusk that is the subject of the instant litigation.  Fuller subsequently obtained permits from Zimbabwe’s Parks Authority which allowed him to export the tusk and other parts of the elephant to the U.S.  Upon the tusk’s arrival to the U.S., it was inspected by the Fish and Wildlife Service (the “Service”).  The Service inspector concluded that because of the etching on the tusk, it did not qualify as a sport-hunted trophy within the meaning of 50 C.F.R.  § 23.74 (b) and therefore could not be lawfully imported into the U.S. The Service thereupon seized the tusk and issued a Notice of Seizure and Proposed Forfeiture to Fuller.  The Notice of Seizure stated that the tusk was subject to forfeiture under the Endangered Species Act (the “Act”).  The Notice further stated that Fuller had the right to petition the Service for remission of the forfeiture or, in the alternative, to file a claim with the Service. Fuller responded by submitting a request for judicial forfeiture proceedings and this litigation ensued.

The Government’s complaint asserted violations of the Act, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) and the African Elephant Conservation Act, among other statutes and regulations.  According to the complaint, Fuller imported the tusk into the U.S. without obtaining a proper permit for the export or the import of one of the species listed in the Act. Therefore, the tusk was subject to forfeiture.  According to the Government, the tusk did not fall under the statutory exception for sports-hunted trophies.

Legislative Background

The Service implemented regulations to actuate the international convention known as CITESin domestic law.  For example, 50 C.F.R. § 23.74 governs the international trade in sport-hunted trophies. It provides that “the import, export, or re-export of sport-hunted trophies of species under CITES must meet the requirements of this section.”  50 C.F.R. § 23.74(a). The section defines a sport-hunted trophy as:

raw or tanned parts of a specimen that was taken by a hunter, who is also the

importer, exporter, or re-exporter, during a sport hunt for personal use. It may

include the bones, claws, hair, head, hide, hooves, horns, meat, skull, teeth, tusks,

or any taxidermied part, including, but not limited to, a rug or taxidermied head,

shoulder, or full mount. It does not include articles made from a trophy, such as

worked, manufactured, or handicraft items for use as clothing, curios,

ornamentation, jewelry, or other utilitarian items.

 

The Act gives the Secretary of the Interior the duty of determining whether a species is endangered or threatened with extinction. A species can be classified as endangered under the Act  even if it is not listed as such in CITES. The Act prohibits any person from importing any endangered species into the United States without a permit. The Act classifies the African elephant as threatened. Other regulations allow for the importation of elephant tusks as sport-hunted trophies from countries that have supplied the Service with information on its yearly ivory quota as long as all the permit requirements have been complied with and a determination has been made that the killing of the animal whose trophy is intended for import would enhance survival of the species, and the trophy is marked in certain specified ways.  The Act calls for the forfeiture of wildlife imported contrary to the Act or to the regulations promulgated under it.

 

Legal Analysis

At issue was whether the Service had the discretion to define what is a sports-hunted trophy pursuant to CITES, the Act and various other statutes.  If the answer was in the affirmative, the next question was whether the subject elephant tusk fits into the definition promulgated by the Service for sports-hunted trophies.

 

The afore-quoted definition of sports-hunted trophy includes taxidermied and tanned specimens, thus allowing for mounted animal heads and rugs fashioned from their skins.  These are the two types of items that Congress intended to be “sports-hunted trophies”. The definition excludes items that have been altered in ways other than those processes.  There is a good reason for this exclusion.  It discourages the illegal trade in ivory jewelry or curios, thereby reducing pressure on threatened species.  The second reason is that the
definition creates a bright-line rule that is easily enforceable by customs agents so that items that harm conservation efforts can be detected and excluded.  Since Fuller had the ivory tusk etched, it fell outside the law’s exception for sports-related trophies and was prohibited from being imported into the United States under prevailing law.

 

Conclusion

 

The court supported the Service’s reading of the regulation prohibiting the importation of specimens that have been altered or enhanced by human labor.  Hence, it found that the Service acted properly by instituting the forfeiture proceedings against the subject African elephant tusk.

 

The court granted the United States’ motion for judgment as a matter of law, finding all of Fuller’s other arguments unavailing.

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