Obama
Administration Treats Antique Collectors And Dealers As Criminals: New Ivory
Rules Put Elephants At Increased Risk
The Obama administration is preparing to treat virtually every antique
collector, dealer, and auctioneer in America—and anyone else who happens to own a piece of ivory—as a
criminal. In the name of saving elephants, the administration is effectively
banning the sale of any object containing any ivory, even if legally acquired
decades ago. Doing so will weaken conservation efforts by expanding the ivory
black market, diverting enforcement resources away from true contraband ivory,
and enriching those engaged in the illegal ivory trade.
In
Africa poachers are killing elephants for their tusks. Ill-equipped and
under-financed African governments are unable to stop the slaughter. Western
industrialized states have responded by pushing sales restrictions. Under the
Convention on the International Trade in Endangered Species of Wild Fauna and
Flora (CITES) only ivory from before 1989 can be sold. Official certification
is required for international shipment. Special CITES approval is necessary for
even governments to market post-1989 ivory.
Unfortunately,
ivory prohibition has not protected the animals. By far the greatest demand for
new ivory comes from Asia, though some smuggling occurs elsewhere, including
the West. However, most ivory in America arrived legally many years ago. A
beautiful material easily worked by skilled craftsmen, ivory has provided
jewelry, pool cues, piano keys, canes, clocks, toys, musical instruments, card
cases, beer steins, balls, seals, fans, gun stocks, chess sets, crosses,
netsukes, sculptures, poker chips, figurines, die, handles, and a myriad of
other decorative objects. These items have made their way into public museums,
private collections, dealer inventories, and auction showrooms across America.
The
elephants which provided the ivory for these items are long
dead. The owners
have acted responsibly and legally, following the rules as they invested
hundreds, thousands, or tens of thousands of dollars in objects d’art. Most
collectors and dealers don’t traffic in poached ivory.
Until
now the rules were simple and sensible. Ivory imported legally, that is, prior
to 1989 or after 1989 with CITES certification that international standards
were met, could be sold. Older ivory usually can be identified by coloring,
stains, style, wear, quality, subject, and more. Some features can be faked,
but most of the older work simply isn’t replicated today.
Moreover,
the burden of proof fell on the government, which had to prove that you
violated the law. That standard is inconvenient for zealous prosecutors. But
that’s the way America normally handles both criminal and civil offenses.
However,
last year the administration formed an interagency task force and an Advisory
Council on Wildlife Trafficking. The latter lacked any representative of the
thousands of responsible Americans who own legal ivory. Collectors and dealers
are numerous, but not well-organized. Existing associations have limited
memberships and narrowly focused activities.
The Advisory Council recommended prohibition. In mid-February the
administration issued its new plan, which was as close as possible to a total
ban without being a total ban. (The new administration policy also applies to
rhinoceros.) In practice, virtually every collector, dealer, auctioneer, and
other person—who may simply
have picked up or inherited some ivory—in America is banned from selling ivory
items, even if acquired legally, owned for decades, and worth hundreds or
thousands of dollars. Indeed, the collective value of that property runs into
the tens or even hundreds of millions of dollars. Every flea market, junk shop,
estate sale, antique store, auction showroom, and antique show is at risk of
raids, confiscations, and prosecutions. And not one additional elephant is
likely to survive as a result.
As an
administrative pronouncement, rather than legislative enactment, the rules
could change. However, the guidance from the U.S. Fish and Wildlife Service
indicates that the federal government will target almost anyone attempting to
buy or sell ivory of any sort.
First,
no imports are allowed, not even antiques. Until now the latter could be
brought to America with a CITES certificate. After all, no one is likely to
mistake an early 18th century ivory chess set or beer stein as made of modern
ivory. Nor does it matter in which country, say Britain or America, an old
piece of ivory resides. Now U.S. collectors are cut off from the rest of the
world, for no purpose.
Second,
all exports are banned, except antiques (defined as over a century old) in what
the Fish and Wildlife Service says are “exceptional circumstances, as permitted
under” the Endangered Species Act. Exactly what that means is unclear. At best
the administration appears to be raising the administrative and cost burdens of
exporting to countries which already limit ivory imports to items with
appropriate CITES documentation. Nothing will be gained by raising the cost and
inconvenience to Americans.
Or the
new rule may restrict the sale of items currently allowed, thereby hindering
people in disposing of their legal collections. Yet creating a new Ivory
Curtain that prevents someone from selling his or her ivory canes to someone
in, say, Germany will save no elephants.
Third,
interstate transactions are prohibited, except for antiques. And, explained
Fish and Wildlife: “Sellers of antiques in interstate commerce must prove
through documented evidence that items qualify as bona fide antiques.”
Unfortunately, such evidence rarely exists: the Victorians, among many others,
did not routinely fill out notarized statements attesting to the age of their
ivory possessions. The cost of procuring a CITES certificate is likely to be
prohibitive for items of modest value. Thus, the sale of almost all ivory
across state lines is effectively banned. Unclear is whether one can even move
one’s ivory collectibles to another state and later sell them. Could a moving
company be penalized for its participation?
Fourth, intrastate commerce, said the agency, is “prohibited unless
seller can demonstrate item was lawfully imported prior to” 1990, when the
international ban took effect. But how does someone “demonstrate” when, say, a
gift from his or her parents was imported? If the new burden of proof is not
satisfied, then the item is not marketable even though acquired and owned
legally—and until now
saleable legally. (Proposals for state bans also are circulating, including in
New York.) In short, the administration has enacted practical national
prohibition.
The
interstate restriction is uniquely perverse. Antique shows and the internet
have created a vibrant national market. Forcing dealers to divide their stock
and segment items which cannot be sold over state lines will be chaotic and
expensive. Moreover, not all states are created equal. Collectors and dealers
tend to be concentrated in major states. The administration rule prevents
people in low-population states, say Wyoming, from retiring as collectors.
Instead, they will be forced to die with their old ivory-keyed pianos and
ivory-handled knives.
Even
more problematic is the attempt by executive fiat to shift the burden of proof
for violating the law. I have a simple and cheap ivory chess set which I
purchased in England while my family lived there more than 40 years ago. Alas,
I have no proof of its age. How can I “demonstrate” its provenance in order to
avoid confiscation and prosecution? Shouldn’t I enjoy due process before the
government destroys the value of property I legally acquired?
The administration approach unfairly penalizes thousands of
collectors, dealers, and other Americans. They followed the law. They spent
money in reliance on the rules. And now the government has declared their
collections and inventories to be essentially worthless. Only those with money—and the most valuable ivory pieces—will
be able to legally comply. If you possess a $20,000 carving, you have an
incentive to jump through the administrative and financial hoops to get a CITES
certificate. If you possess $20,000 worth of average ivory
netsukes, most worth
perhaps $100 or $200, then your holdings are effectively valueless.
Why is
the administration treating so many Americans as criminals? Fish and Wildlife
claimed: “we believe that a nearly complete ban on commercial elephant ivory
and rhino horn trade is the best way to ensure that U.S. markets do not
contribute to the decline of these species in the wild.” But America’s many
legal items legally imported decades or centuries ago and legally owned for
years are not fueling poaching today.
The
administration complained of the difficulty in distinguishing ivory imported
legally and illegally. No doubt, banning everything offers seeming ease of
enforcement, but such a policy fails to distinguish between guilt and
innocence.
Moreover,
most old ivory, given its manifold unique characteristics, is easily
distinguishable from new work. Modern illegal ivory is mostly for items
destined for the dominant Asian market; European carving disappeared decades
ago. Some objects end up in America, but far fewer than in Asia. Indeed, the
black market price of illegal raw ivory in the U.S. is one-fourth that in
China.
The
illegal ivory supply also is small compared to that of legal ivory. Rather than
ban the latter in an attempt to limit the former, the government should
concentrate on aiding African countries in protecting their elephants, better
interdicting illegal imports, and identifying sellers who specialize in new
ivory.
In
fact, targeting owners of legal ivory will perversely undermine such
enforcement efforts. Criminalizing most ivory sales in America will vastly
expand the ivory black market and significantly dilute enforcement resources.
First, as formerly legal items, which pose no threat to elephants,
fill the pool of illegal ivory sales, the government will find it harder to
locate new contraband ivory—which
actually encourages poaching. Collectors and dealers are not likely to supinely
accept an arbitrary federal diktat destroying the value of their holdings.
Instead, faced with legalized theft of their property, many will understandably
go over to the dark side. And there they will find ample opportunities to buy
and sell ivory goods.
Ivory
commerce will continue, only disguised above ground and more often shifted
underground. There will be increased sales of “faux ivory,” “grained,” “bone,”
“Chinese bone,” and “plastic” items of surprising artistic appeal. Ebay will
become a prime sales forum, with accurate descriptions, detailed photos, and
frank conversations shifted off-line. Collector organizations will become more
important as private sales networks. More objects will privately pass among
dealers and collectors, never reaching public view.
The
interstate ban, too, will be flouted. Absent roadblocks at state boundaries,
ivory collectibles will continue to transit the nation for sale. Brokers will
be hired to buy and sell, to ensure items appear not to cross state lines.
Owners also may risk taking items to other nations without similar
restrictions.
Moreover, invoices will be created, if necessary, to demonstrate that
transactions remain intrastate. Faux age will be documented. Even CITES
certificates affirming an item’s antique status—which until now have been irrelevant for collectors and
dealers not shipping internationally—may be faked.
Some
collectors and dealers will even turn to sellers of new illegal ivory. Those
already participating in the illegal market are obvious, if distasteful,
commercial conduits for items newly made illegal. The additional business will
expand the networks and increase the profits of those dealing with poachers.
Which will only encourage the killing of more elephants.
Finally, overtaxed federal Fish and Wildlife agents—currently just a couple hundred
nationally—may prefer to go after the easy targets, such as the local antique
flea market, rather than secretive and well-financed smugglers. The White House
said it did not intend to prosecute people selling “trinkets,” but does that
mean $50 or $500? Moreover, the agency does not want the new rules to appear to
be a dead letter.
The
occasional arrest in such cases won’t end the ivory trade, but will generate
sufficient uncertainty to shift even more the value of newly outlawed ivory
from owners to professional traffickers. Further, every dollar spent and person
deployed by Washington to grab a chess set brought back from Japan by an Army
veteran 60 years ago will be taken from investigations of criminals like the
two Manhattan jewelers caught in 2012 with $2 million worth of new ivory
merchandise.
The de
facto ban likely will encourage Fifth Amendment litigation. The government’s
policy, imposed by administrative fiat, could be considered a government
taking. In practice, Washington is banning all sales except for a few
opportunities available to only a few well-heeled individuals. The potentially
huge losses imposed on so many Americans across the nation may force the
Supreme Court to reconsider endangered species rules more often applied to very
limited markets, such as for eagle feathers.
The
administration is engaging in the worst sort of moral vanity, punishing
blameless Americans so prohibitionists can feel better despite their own policy
failures. Those purporting to do good are intent on doing it at someone, anyone
else’s expense.
The
administration should withdraw its rules for at least a substantial rewrite.
Moreover, Congress should overturn this unfair attack on thousands of
law-abiding Americans. Legislators should block the arbitrary rules, defund
unfair enforcement practices, cut agency staff if necessary, and set statutory
standards to protect those who own legal ivory. The rule of law should apply to
all Americans, including collectors, dealers, and auctioneers.
The mass killing of elephants is tragic. But demand for new ivory, not
items legally imported decades or centuries ago, fuels the trade. Governments
should penalize poachers and their seller allies—not responsible collectors and dealers who have followed the
rules.
Indeed,
the administration’s new policy is worse than unfair. They are
counterproductive. They will expand the illegal ivory market, divert
enforcement resources, and push owners of legal ivory into the illegal trade.
Which means more elephants are likely to die. Surely that is not the legacy
desired by President Obama
Obama
Administration Treats Antique Collectors And Dealers As Criminals: New Ivory
Rules Put Elephants At Increased Risk
The Obama administration is preparing to treat virtually every antique
collector, dealer, and auctioneer in America—and anyone else who happens to own a piece of ivory—as a
criminal. In the name of saving elephants, the administration is effectively
banning the sale of any object containing any ivory, even if legally acquired
decades ago. Doing so will weaken conservation efforts by expanding the ivory
black market, diverting enforcement resources away from true contraband ivory,
and enriching those engaged in the illegal ivory trade.
In
Africa poachers are killing elephants for their tusks. Ill-equipped and
under-financed African governments are unable to stop the slaughter. Western
industrialized states have responded by pushing sales restrictions. Under the
Convention on the International Trade in Endangered Species of Wild Fauna and
Flora (CITES) only ivory from before 1989 can be sold. Official certification
is required for international shipment. Special CITES approval is necessary for
even governments to market post-1989 ivory.
Unfortunately,
ivory prohibition has not protected the animals. By far the greatest demand for
new ivory comes from Asia, though some smuggling occurs elsewhere, including
the West. However, most ivory in America arrived legally many years ago. A
beautiful material easily worked by skilled craftsmen, ivory has provided
jewelry, pool cues, piano keys, canes, clocks, toys, musical instruments, card
cases, beer steins, balls, seals, fans, gun stocks, chess sets, crosses,
netsukes, sculptures, poker chips, figurines, die, handles, and a myriad of
other decorative objects. These items have made their way into public museums,
private collections, dealer inventories, and auction showrooms across America.
The
elephants which provided the ivory for these items are long
dead. The owners
have acted responsibly and legally, following the rules as they invested
hundreds, thousands, or tens of thousands of dollars in objects d’art. Most
collectors and dealers don’t traffic in poached ivory.
Until
now the rules were simple and sensible. Ivory imported legally, that is, prior
to 1989 or after 1989 with CITES certification that international standards
were met, could be sold. Older ivory usually can be identified by coloring,
stains, style, wear, quality, subject, and more. Some features can be faked,
but most of the older work simply isn’t replicated today.
Moreover,
the burden of proof fell on the government, which had to prove that you
violated the law. That standard is inconvenient for zealous prosecutors. But
that’s the way America normally handles both criminal and civil offenses.
However,
last year the administration formed an interagency task force and an Advisory
Council on Wildlife Trafficking. The latter lacked any representative of the
thousands of responsible Americans who own legal ivory. Collectors and dealers
are numerous, but not well-organized. Existing associations have limited
memberships and narrowly focused activities.
The Advisory Council recommended prohibition. In mid-February the
administration issued its new plan, which was as close as possible to a total
ban without being a total ban. (The new administration policy also applies to
rhinoceros.) In practice, virtually every collector, dealer, auctioneer, and
other person—who may simply
have picked up or inherited some ivory—in America is banned from selling ivory
items, even if acquired legally, owned for decades, and worth hundreds or
thousands of dollars. Indeed, the collective value of that property runs into
the tens or even hundreds of millions of dollars. Every flea market, junk shop,
estate sale, antique store, auction showroom, and antique show is at risk of
raids, confiscations, and prosecutions. And not one additional elephant is
likely to survive as a result.
As an
administrative pronouncement, rather than legislative enactment, the rules
could change. However, the guidance from the U.S. Fish and Wildlife Service
indicates that the federal government will target almost anyone attempting to
buy or sell ivory of any sort.
First,
no imports are allowed, not even antiques. Until now the latter could be
brought to America with a CITES certificate. After all, no one is likely to
mistake an early 18th century ivory chess set or beer stein as made of modern
ivory. Nor does it matter in which country, say Britain or America, an old
piece of ivory resides. Now U.S. collectors are cut off from the rest of the
world, for no purpose.
Second,
all exports are banned, except antiques (defined as over a century old) in what
the Fish and Wildlife Service says are “exceptional circumstances, as permitted
under” the Endangered Species Act. Exactly what that means is unclear. At best
the administration appears to be raising the administrative and cost burdens of
exporting to countries which already limit ivory imports to items with
appropriate CITES documentation. Nothing will be gained by raising the cost and
inconvenience to Americans.
Or the
new rule may restrict the sale of items currently allowed, thereby hindering
people in disposing of their legal collections. Yet creating a new Ivory
Curtain that prevents someone from selling his or her ivory canes to someone
in, say, Germany will save no elephants.
Third,
interstate transactions are prohibited, except for antiques. And, explained
Fish and Wildlife: “Sellers of antiques in interstate commerce must prove
through documented evidence that items qualify as bona fide antiques.”
Unfortunately, such evidence rarely exists: the Victorians, among many others,
did not routinely fill out notarized statements attesting to the age of their
ivory possessions. The cost of procuring a CITES certificate is likely to be
prohibitive for items of modest value. Thus, the sale of almost all ivory
across state lines is effectively banned. Unclear is whether one can even move
one’s ivory collectibles to another state and later sell them. Could a moving
company be penalized for its participation?
Fourth, intrastate commerce, said the agency, is “prohibited unless
seller can demonstrate item was lawfully imported prior to” 1990, when the
international ban took effect. But how does someone “demonstrate” when, say, a
gift from his or her parents was imported? If the new burden of proof is not
satisfied, then the item is not marketable even though acquired and owned
legally—and until now
saleable legally. (Proposals for state bans also are circulating, including in
New York.) In short, the administration has enacted practical national
prohibition.
The
interstate restriction is uniquely perverse. Antique shows and the internet
have created a vibrant national market. Forcing dealers to divide their stock
and segment items which cannot be sold over state lines will be chaotic and
expensive. Moreover, not all states are created equal. Collectors and dealers
tend to be concentrated in major states. The administration rule prevents
people in low-population states, say Wyoming, from retiring as collectors.
Instead, they will be forced to die with their old ivory-keyed pianos and
ivory-handled knives.
Even
more problematic is the attempt by executive fiat to shift the burden of proof
for violating the law. I have a simple and cheap ivory chess set which I
purchased in England while my family lived there more than 40 years ago. Alas,
I have no proof of its age. How can I “demonstrate” its provenance in order to
avoid confiscation and prosecution? Shouldn’t I enjoy due process before the
government destroys the value of property I legally acquired?
The administration approach unfairly penalizes thousands of
collectors, dealers, and other Americans. They followed the law. They spent
money in reliance on the rules. And now the government has declared their
collections and inventories to be essentially worthless. Only those with money—and the most valuable ivory pieces—will
be able to legally comply. If you possess a $20,000 carving, you have an
incentive to jump through the administrative and financial hoops to get a CITES
certificate. If you possess $20,000 worth of average ivory
netsukes, most worth
perhaps $100 or $200, then your holdings are effectively valueless.
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