AMENDING THE BLACK BASS AND LACEY ACTS

TUESDAY, NOVEMBER 6, 1979

U.S. SENATE,

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,

SUBCOMMITTEE ON RESOURCE PROTECTION,

Washington, D.C.

The subcommittee met, pursuant to notice, at 9:00 a.m., in room 4200 Dirksen Senate Office Building, Hon. John H. Chaffee presiding. Present. Senator Chaffee.

OPENING STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR FROM THE STATE OF RHODE ISLAND

Senator CHAFEE. Good morning. Over the next 2 days the subcommittee will examine an issue which truly deserves congressional attention: The preservation of wildlife on an international level. It has come to our attention that there are monumental problems of illegal trade, habitat loss, and other barriers to conservation that are the result of a rapidly developing world. Although there are treaties and statutes which deal with these problems, we have far to go in tightening the loopholes which still exist and in finding new ways to help other countries in their wildlife protection efforts.

This morning, the subcommittee will focus on illegal wildlife trade and S. 1882, a bill to amend the Lacey and Black Bass Acts.

Tomorrow, the agenda will be broader and will cover general global wildlife conservation issues.

In 1925, Simon Bolivar issued a decree outlawing the killing of the vicuna in Peru. In more recent times, Brazil outlawed the commercial exploitation of all wildlife in 1976. Venezuela banned the export of crocodile hides in 1970. Colombia prohibited trade in skins or live specimens of the number of animals in 1974. Kenya took similar action in 1978.

These countries are what one could call "wildlife-producing" nations. Their attempts to protect various species can be all but torpedoed by the fact that a wildlife consumer always waits somewhere. While some consumption is justified, other trade violates the efforts both domestically and internationally to preserve species.

This is what the Lacey Act is about. That act, passed in 1900, was our Nation's first law to supplement the wildlife protection attempts of other countries and among our States. The act makes it illegal to trade in wildlife taken, transported or sold in violation of a foreign state, or Federal law. Similarly, the Black Bass Act makes it illegal to trade in fish protected by State or foreign law.

What the Lacey Act says is that we are willing to close an open door here in this country, so that international conservation goals can be met. It says that because you transport an illegally obtained animal from one State across State lines, don't assume that there will be no penalty.

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But such assumptions are made. The record under the Lacey Act is not encouraging. There were 584 convictions for illegal trade during 1977. They were misdemeanor convictions. Fines totaled $31,117an average of $53.28 per defendant. Jail sentences amounted to 2,015 days all but 10 days suspended. This is hardly a deterrent to illegal wildlife smuggling. Poacher profits are high—with low risks. We see species gradually disappearing from the Earth. Look at the black rhino. The price for an ounce of ground rhino horn is as high as $350 or more. The species is in such high demand by poachers that Kenya estimates its black rhino population could be wiped out within 12 months. Ten years ago, there were 6,000 to 9,000 black rhinos in a Kenya national park. Today, only 80 to 200 remain.

S. 1882 has been proposed in the spirit that the current Lacey Act cannot do the job. So let us turn to our witnesses here this morning. We will hear from Government and conservation witnesses on the extent of the illegal wildlife trade problems and the S. 1882 proposals to strengthen enforcement efforts. Also, the International Association of Fish and Wildlife Agencies and the Pet Industry Council will tell us their views on the proposed amendments.

I hope that at the end of 2 days we have the seeds of suggestions for assuring that man doesn't become a species who contemplates himself, by himself.

So, we will move on now to our first witness. Mr. Greenwalt, we welcome you here.

STATEMENT OF HON. LYNN GREENWALT, DIRECTOR,

U.S. FISH AND WILDLIFE SERVICE

Mr. GREENWALT. Thank you very much, Mr. Chairman. I have a prepared statement which I would like, if you will permit it, to be entered into the record in its entirety [see p. 57]. I will touch upon it in its salient points to emphasize the points I wish to make this morning.

The legislation to amend the Lacey and Black Bass Acts, as you know, has the full support of the administration and was referred to by the President in his environmental message on August 2. We feel very strongly about the amendment to these two acts because such amendments will give us additional tools with which to deal with the problem that you have so carefully outlined.

I would like to point out some historical background, Mr. Chairman, that will, I think, give us an insight into the nature of the problem we face today. There have been whole species of wild animals exterminated by commercial exploitation.

Few people today have heard of the steller sea cow, or West Indian monk seal, or the great auk, or the sea mink, but many people I think may remember the passenger pigeon which is a good example of what can happen to a species when its exploitation is unconstrained.

The passenger pigeon was a bird common to this country, to North America, in the last century. It was so abundant as to be almost without limit, it was believed. I quote from a publication:

The passenger pigeon needs no protection. Wonderfully prolific. having the vast forests of the North as its breeding grounds, traveling hundreds of miles in search of food, it is here today and elsewhere tomorrow, and no ordinary destruction can lessen them *** (Palmer 1912).

In one 40-day period in 1869, nearly 12 million pigeons were sent to market from Hartford, Mich. The last wild pigeon was shot near Detroit on September 14, 1908, and the last passenger pigeon in captivity died in the Cincinnati Zoological Garden on September 1, 1914. Mr. Chairman, I think your point is well taken. It is possible for man to wind up contemplating himself, if man is not in fact very careful.

By the late 1890's it was clear that market hunting was having a profound effect on fish and wildlife in this country. Although many States did not have laws governing the taking of fish and wildlife, Congressman John F. Lacey of Iowa authored the Lacey Act of 1900 to stop illegal market hunting and he said this and I quote: "This bill is directed against the pothunter. When you take away his market, you destroy his occupation. Take away his market and the pothunter must cease to carry on his nefarious traffic."

That was the basic philosophy, the basic concept of the Lacey Act. And it has been an effective tool since 1900. It has been hailed by all the States in our country and most of the nations of the world, including both wildlife producing and consuming countries. It was amended over the years to keep pace with changing illegal commercial practices and for that reason, it has been valuable.

It was amended 10 years ago to expand its scope and increase its penalties. Since then times have changed and it must be amended again to cope with the expanding commercial inroads into the diminishing wildlife resources of the world.

Let me cite for you, Mr. Chairman, that world commerce in wildlife is an enormous business and I cannot overstress that idea. In 1978, importations into the United States alone amounted to over 13.1 million animal hides and skins, 368,000 live birds, 2.5 million live reptiles and amphibians, 152,000 game trophies, 260 million tropical fish, and 187 million individual products manufactured from wildlife. These figures are particularly staggering when one realizes that they include only declared and documented shipments which are ostensibly legal. The sheer volume of these shipments makes adequate inspection by our limited number of enforcement officers working closely with U.S. Customs almost impossible.

Smuggled wildlife, of course, is not declared, and therefore not included in these figures, the exact extent of illegal traffic is unknown. But based on actual seizures and intelligence, we believe it may run as high as 10 to 25 percent of the total wildlife shipments depending on the species involved.

Not only do we have a large volume of illegal wildlife imports, but there is an even larger percentage of illegal exports in the United States, because there is no effective export control system; moreover, our laws have driven some U.S. firms to clandestine commerce without importing wildlife in the United States and thus running afoul of U.S. law.

As you can see from the appended graphs declared wildlife in ports are on the increase. I have also included some maps which show basic routes of foreign commerce for some of the most heavily traded categories of wildlife. These maps dramatically illustrate the worldwide nature of the wildlife business.

While the current Lacey Act has been an effective tool, it no longer provides the deterrent needed to prevent interstate and foreign commerce in wildlife where a State or foreign law has been violated. The reason is simple. The penalty is too low and the profits too high. The maximum penalty for a criminal conviction is now only a misdemeanor with a possible sentence of $10,000 and 1 year in jail.

Judges rarely, if ever, hand down the maximum, and U.S. attorneys naturally give priority that Congress has placed on the offense. Profits generally run more than 100 percent; that is, each person in the marketing chain from the poacher through the various middlemen, brokers, dealers, and retailers at least double their investment. Often the profit margin is much higher-up to 3,000 percent. We know that many wildlife criminals are highly organized and often deal also in narcotics, stolen property, weapons, and other illegal activities with profits.

As more and more animals become threatened with extinction, the demand for them increases, driving up the price and the illegal profits. Currently a woman's purse made from crocodile leather sells for between $400 and $1,200 in Europe, rhino horn aphrodisiac sells for over $600 an ounce in the Far East and the hyacinthe macaw, beautiful purple parrot, sells for $8,000 in the United States.

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Total illegal profits involving U.S. citizens probably run into tens of millions of dollars a year. These profits are just too great to be deterred by the current penalty structure of the Lacey Act.

Not only does the current penalty structure not match the potential profits, we also have a problem with the criminal culpability standards. During fiscal year 1978, we opened 914 investigations predicated on complaints or other information indicating a possible violation of the Lacey Act and closed 842 cases. Of these closed cases there were 173 criminal convictions, 9 acquittals, 83 declinations by U.S. attorneys, 84 civil penalty assessments, and 493 cases closed administratively. No case is closed administratively until all investigative leads have been followed and it has been established that there is insufficient evidence for a criminal prosecution or a civil penalty assessment. This large number of administrative closures is a direct result of the culpability standards of the current law and we are suggesting appropriate amendments. These amendments, along with the improved penalty structure, will be discussed more fully by the Justice Department witness.

Senator CHAFEE. As I understand it you have only asked for a $10,000 fine in the amendments that you have offered. That is the same as the current maximum.

Mr. GREENWALT. Right; we have asked for substantially greater criminal penalties.

Senator CHAFEE. Go on.

Mr. GREENWALT. I think that is one of the points that is germane in two ways. First of all, the penalties must in some fashion match the crime, else there is no deterrent as it is fairly obvious.

Secondly, I think it is important also to note that there has been concern lest the penalties in the new structure be applied without discretion across the board. Said another way, there are a great many people involved in these transactions many of whom are hapless or unknowing, for example, the transport firm, the truck driver who delivers shipments in interstate commerce or some other such thing.

And in hearings in the recent past on this, there has been some concern raised about the possibility of having these very strong penalties accrue to individuals who may not have been knowingly or intimately involved in the illegal transaction.

I think one of the analogies that perhaps should be brought to the attention of the committee is that there are very great penalties for other things in the United States. For example, the importation_of liquor from a foreign country. One can accrue a tremendous penalty potentially for bringing in more liquor from a foreign country than the law allows. Yet, this high penalty is seldom assessed. The deterrent is there. Its application is judiciously applied. So that the citizen, the individual who may not be at all criminally involved in these activities is not likely to be subject to the penalties even though the potential is here.

I think the important thing, Mr. Chairman, is to point out that the violations of the Lacey Act, the violations of these international agreements are very serious business and they make tremendous inroads on the fish and wildlife resources of all countries.

Senator CHAFEE. I agree with that. What I was saying is that $10,000 doesn't seem to be a very stiff penalty.

Mr. GREENWALT. $10,000 in the face of the kind of things I try is not a serious penalty, a criminal charge that involves time in jail is a different matter altogether.

Senator CHAFEE. Yes, I understand, but I would have increased the fine along with the jail term.

Mr. GREENWALT. The criminal penalty as we propose it is $20,000 and 5 years.

Senator CHAFEE. I would have made it 15. But, never mind. Go ahead.

Mr. GREENWALT. The deterrent effect is one of the things where we are desperatedly seeking for the reasons I think I have perhaps exhaustively described, the potential for making money in this market is extraordinary.

Additionally, as is often the case with these illegal activities, the animals are handled with a cavalier disregard to their own well-being and I am sure the quality of handling will demonstrate the inhuman treatment often imposed on live imports, the mixture of activities is fascinating in some ways.

The mixture of importation of wildlife and other contraband, for example, I am aware of several instances in which drugs were smuggled in the company of poisonous snakes. The object being to deter anyone from examining very carefully the shipment because no one wants to look intimately into the well-being of a bag of poisonous snakes and that makes a good place to hide narcotics, and it has been done.

So the opportunity seized upon by people who make a living smuggling anything to use wildlife to add to their profit is there and it is taken.

I might say again that the element about which we are concerned, that group of people who deal in illicit wildlife are very likely to be hardened cases and very serious criminals who are not contributing very much at all to society.