STATEMENTS OF ADMINISTRATION PANEL CONSISTING OF WILLIAM GORDON, DIRECTOR, OFFICE OF RESOURCE CONSERVATION AND MANAGEMENT, U.S. DEPARTMENT OF COMMERCE, NATIONAL MARINE FISHERIES SERVICE, ACCOMPANIED BY STEVE POWELL, ASSISTANT GENERAL COUNSEL, NOAA, U.S. DEPARTMENT OF COMMERCE, AND LYNN GREENWALT, DIRECTOR, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY KENNETH BERLIN, SECTION CHIEF, WILDLIFE SECTION, LAND AND NATURAL RESOURCES DIVISION, U.S. DEPARTMENT OF JUSTICE, AND CLARK R. BAVIN, CHIEF, DIVISION OF LAW ENFORCEMENT, U.S. FISH AND WILDLIFE SERVICE

Mr. GREENWALT. I would like to introduce Mr. Kenneth Berlin from the Department of Justice. Mr. Gordon can introduce his associate.

Let me say that I am pleased once again to appear here and be a part of this panel.

This legislative proposal is a very germane one and one that contains a good deal of detail. With the approval of the chairman and the committee, I would like to read my testimony because it is important to a full understanding of what the administration proposes.

So, if I may, I will proceed to do so.

I might say initially this legislation has the full support of the administration and was referred to by the President in his recent environmental message.

Mr. Chairman, and members of the committee, in 1857 a select committee of the Ohio State Senate made these comments on a bill to protect the passenger pigeon.

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)

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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.

By the 1890's it was clear to the State resource management agencies that commercial hunting, especially interstate trade in wild meats and wildlife products, had to be brought under control. The problem was that individual States could not protect their wild species. If a State set hunting seasons or bag limits, the hunters could simply poach the animals and transport them into a neighboring State for sale. One State's laws did not cover the wildlife killed in another State, nor could they, because the Commerce Clause of the Constitution prevents any one State from restricting interstate commerce and therefore from protecting its own wildlife. To correct this impasse and enable States to conserve their wildlife species, the Lacey Act was passed in 1900 to outlaw interstate traffic in birds and other animals illegally killed in their State of origin. Congressman John F. Lacey of Iowa, author of the law, made it clear he considered the commercial hunter the cause of many wildlife problems. He said:

This bill is directed against the pothunter. When you take away his market you destroy his occupation.

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Take away his market * and the pothunter must cease to carry on his nefarious traffic.

Although this statute has been amended several times, most recently in 1969, there are a number of problems with the present law which we have addressed in the present legislation.

The Black Bass Act of 1926 was based on the same philosophy as the Lacey Act. It provides Federal sanctions against interstate transportation of black bass taken, purchased, sold, or possessed in violation of State laws. The Black Bass Act was subsequently expanded to cover all fishes and in 1969 was expanded to also encompass foreign commerce and fish taken, bought, sold, or possessed in violation of foreign law.

Like the Lacey Act, a number of problems in implementing the Black Bass Act have arisen through the years.

Before I discuss our recommended changes in the Lacey and Black Bass Acts, I would like to give the committee some idea of the extent of the problems we face and which our legislation is designed to address.

The marketing and trading in wildlife is as old as man himself. Prehistoric man often used furs, skins, ivory, shells, and bone in various forms and shapes as media of exchange. As civilization developed, trade in all forms of commodities expanded beyond local, regional and even national boundaries. Today's wildlife trade involves vast quantities of wildlife and wildlife products that move for the most part in interstate and international commerce.

Nations can be classified as producer or consumer countries depending on which way particular species move in international commerce. Most nations are producers of some species and consumers of others. In general, however, the great volume of international trade in wild species moves from the less developed nations of Latin America, Africa, and Asia, which are primarily producers of wildlife, to the affluent nations of North America, Europe, and Japan, which are major consumers. I have attached maps to my statement which denote nations which are net consumers and net producers, and also maps which show the major trade routes for such things as reptiles, crocodilians, parrots, primates, and ivory. Let no one think that the Lacey Act, the Black Bass Act, the Marine Mammal Protection Act, and the endangered species legislation have brought about a blighted wildlife industry. Indeed, the reverse is true. We have also attached charts which show burgeoning imports of wildlife in every category. The fishery products business, the tropical fish business, the pet trade, the fur business, the leather business, and every other category of legitimate wildlife trade are alive and well.

We do not wish to hinder legitimate trade in wildlife or wildlife products. It is the destructive poaching of fish and wildlife that must be stopped, and we reaffirm our conviction that Congressman Lacey was right in his belief that a proper role of the Federal Government was to work to dry up the market for the poacher who then ceases to carry on his nefarious traffic.

For most of us the wildlife poacher is a shadowy figure. He may be a worker in northern Michigan casting the rays of a spotlight

across an alfalfa field with a rifle at the ready, or he may be a Bedouin setting a bird net on a sandy shore of the Mediterranean in north Africa awaiting the flocks which, exhausted from their migratory crossing, pitch heedlessly to Earth. He may be a Cajun poling a pirogue down a bayou, or an Indian paddling a dugout canoe on a tropical river in the jungles of South America. He may be a professional who makes his living, often a good one, from the illegal wildlife trade, or a normally upstanding fellow with just an occasional lapse into poaching. He tends to ply his trade in remote areas, and like his prey, he is often alert, wily, and cunning, and he is sometimes treacherous when cornered.

Wildlife authorities are all in agreement about one thing. Poachers are difficult to control. Even here in the United States, where we have modern, well equipped, State game departments, poaching can flourish, undetected, for years. Well organized poaching rings, with their middlemen and outlets, flourish in our cities. The poacher is no stranger to our land. The problem is worse in the Third World producer countries. Those countries simply do not have the resources to curb the problem at its source. In the heyday of the spotted cat trade there was virtual warfare between poachers and wardens in East Africa. There are documented accounts of armed gangs using surplus military equipment and automatic weapons hunting leopards, and of fire fights between these gangs and government troops. This sort of merchandise quite often enters international trade.

To illustrate the problems on controlling illegal international trade, it will be helpful if we focus on particular areas and species. Brazil is a vast nation, larger than the United States, with remote borders and huge areas of undeveloped lands. About 10 years ago Brazil outlawed commercial hunting and prohibited the export of wildlife. For some time wildlife products continued to flow from Brazil. It seemed Brazilian dealers had endless stocks of merchandise allegedly acquired prior to the ban. Finally, in exasperation, Brazil set a date on which dealers had to clear their warehouses or forfeit the right to export. Some clandestine merchandise continued to flow, sometimes on forged documents. But gradually the flow of wildlife merchandise from Brazilian ports came to a halt, and a new trade replaced it. Our agents began to see increased exports of the same wildlife merchandise from some of Brazil's neighbors. Some of these countries issue so-called transit permits which permit its merchants to pick up merchandise at unspecified points on the borders for transit through the country. These transit permits are virtually a license to smuggle.

Among many other problems, we are now trying to investigate imports of the rare hyacinthe macaw, the Rolls Royce of parrots. Although known presently to exist only in Brazil, it is still being imported with alleged origin in countries neighboring Brazil. It is possible that these species are captured outside of Brazil. It is certainly not probable, however, and is worthy of investigation. The Lacey Act amendments we are proposing would give us the clear authority to demand documents from the country of origin before allowing import. It would also provide for penalties commensurate with the serious nature of commercial violations.

In recent years special agents of the U.S. Fish and Wildlife Service have had reason to investigate illegal commerce in American alligators. They have found alligator hides shipped by nonexistent companies from nonexistent addresses to nonexistent persons at nonexistent addresses abroad, labeled as "machine parts," "electric motors," "pipe fittings," et cetera. Investigation reveals that once the shipment is safely out of the United States the shipper contacts the shipping company and amends the shipping documents en route. An average illegal shipment may contain over 300 hides. The illegal dealer usually doubles his money. Thus, if the hides sell for $16 a foot, the illegal dealer is making $8 a foot. Since such operations are clandestine in nature they go unreported, and the money often flows to unreported accounts in foreign banks. The potential tax advantages of such operations are obvious.

Our problems are by no means all in wildlife or all in international trade. Hundreds and perhaps thousands of tons of illegal salmon move from our western rivers to cities of the West and in exports to Japan. In addition, hundreds of tons of illegal fish flow from the Great Lakes and the Midwest to markets in our midwestern and eastern cities. Some investigations by our agents indicate that a single man using a pickup truck can make $100,000 a year in the illegal salmon business.

Recently, Federal agents apprehended a cache of furs smuggled across the Rio Grande out of Mexico estimated to be worth $1 million.

The smuggling of parrots is particularly acute on the Mexican border. It is said that the profits to be realized from smuggling parrots are comparable to those from smuggling narcotics, and the penalties, if caught, are far less. We detect definite ties to organized crime in much smuggling activity. As one of our veteran special agents puts it, "A smuggler is a smuggler. He will smuggle anything that has money in it.'

There is no significant difference between the problems being encountered in the control of illegal interstate and foreign commerce in fish and similar illegal commerce in birds, mammals, and other wildlife and their parts and products. We are therefore proposing one comprehensive statute which solves both problems simultaneously. We also believe that having only one statute will simplify administration and enforcement and promote public understanding.

As I stated before, we believe that Congressman Lacey had the right idea almost 80 years ago about the role of the Federal Government in halting this traffic. What we have done in the proposed legislation is to try to correct the insufficiencies of the Lacey and Black Bass Acts and make them the effective enforcement tools that we need to combat illegal trade in wildlife products.

To correct these insufficiencies, we are making the following substantive changes in the law. First, we are raising both the civil and criminal penalties. A $200 fine, such as is now found in the Black Bass Act, is no deterrent to someone who can make $100,000 per year trafficking in illegally caught salmon.

We are proposing a two-step penalty sanction for violations. A modest maximum civil penalty of $500 is provided as a strict liability penalty. However, for violations committed by a person who

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fails to exercise due care in carrying out his activities, we are proposing that the maximum civil penalty be raised to $10,000 to enable the Government to cope with violations in which the profits are so great that insufficient deterrence exists at this time. We are recommending maximum criminal penalties of $20,000 or 5 years imprisonment or both.

Second, section 43 of the present Lacey Act and, for certain violations, the Black Bass Act, contain criminal culpability standards which render their criminal penalties virtually useless. To obtain a conviction, it appears that the Government must prove that the defendant knew his activities were illegal. Proving such knowledge is almost impossible, and is not required under most statutes, since "ignorance of the law is no excuse." We are therefore proposing a "knowing standard for these amendments that would require proof only of knowledge of the essential facts of each violation. This is completely consistent with other statutes containing criminal sanctions.

Third, the current Black Bass Act applies only to fish that are involved in violations of the law of the State of origin. Presently, California and other States strongly object to shipments of live white amur carp into California from Arkansas. California has no remedy against the shipper in Arkansas, and the Federal Government cannot intervene on California's behalf under present law. This problem is solved by the proposed legislation.

Fourth, we believe it is desirable to extend protection to species of wildlife not now covered by the Lacey Act. We are encouraging States and foreign governments to protect a broad variety of species. Our legal mechanisms should be supportive of those governments. For example, current Federal law may not cover interstate and foreign commerce in coral, although coral is protected by some States and foreign governments. Nor does the current law cover fish roe, to the dismay of several States. In addition, in 1969 coverage of migratory birds was removed from the Lacey Act, and we believe such protection should be restored to provide a more adequate remedy for some violations involving massive numbers of birds or unlawful commercial activity.

Finally, because of the resource management responsibilities of Indian tribes, we propose that the amendments expand upon the application of the current Black Bass Act and apply to wildlife as well as fish that are taken in violation of Indian tribal law or regulations.

We should point out that these changes would not constitute a broadening of our authority under the act, but merely would allow us to provide support for the full range of State, foreign and Federal laws that protect wildlife. With the exception of the marking provisions none of the substantive provisions of the act stand on their own. In order to prosecute a case under both the current Lacey and Black Bass Acts and this revision, it is first necessary to prove that there has been a State, a foreign or another Federal violation.

We are also making a number of other changes, which, while important to the enforcement and administration of the law, could best be described as technical.