https://www.animallaw.info/article/lacey-act-americas-premier-weapon-fight-against-unlawful-wildlife-trafficking 2. The Lacey Act
The Lacey Act occupies a central position within this legal framework for three reasons. First, it applies to a wider array of wildlife, fish, and plants than does any other single wildlife protection law. Second, it provides for a longer potential term of incarceration than do most other wildlife laws containing felony provisions. Third, the scope of the acts it prohibits is broader than most other wildlife laws.
As a result, the Lacey Act is frequently used: More than 700 Lacey Act criminal counts were filed in U.S. federal courts during fiscal years 1993 and 1994. [FN53] These charges resulted in approximately 315 months of incarceration and the imposition of criminal fines and costs amounting to more than $1 million, along with many civil fines and forfeitures of property and wildlife. [FN54]
II. HISTORY AND DEVELOPMENT OF THE LACEY ACT
A. Original Passage in 1900
Iowa Congressman John Lacey first introduced the Lacey Act to the House of Representatives in the spring of 1900. [FN55] He intended the law to "enlarge the powers of the Department of Agriculture," [FN56] and gave it three primary purposes:
(1) to authorize the introduction and preservation of game, song, and insectivorous wild birds, (2) to prevent the "unwise" introduction of foreign birds and animals, and (3) to supplement state laws for the protection of game and birds. [FN57] Although its coverage extended to animals, the Lacey Act was essentially a bird preservation and restoration measure designed to enhance and protect agriculture. Its language reflected Rep. Lacey's personal passion for the preservation of agriculturally beneficial birds and the eradication of harmful exotic species.
In comments on the House floor, Congressman Lacey told his colleagues about the agricultural damage that had accompanied the decline in bird populations. [FN58] He cited numerous examples of wildlife problems of the time:
the extinction of the carrier pigeon, the serious depletion of grouse, prairie chicken, and buffalo populations, and the problems created by foreign species such as the English sparrow and the French pink flower. [FN59] Lacey listed the primary threats to bird populations as excessive hunting of game birds by market hunters, the introduction of harmful exotic species that displaced native populations,
and the millinery industry, which at that time consumed millions of birds each year for the production of ladies' hats. [FN60]
Lacey's law authorized the Department of Agriculture to assist with the reintroduction of game birds and other wild birds where they had become locally scarce or extinct. [FN61] It prohibited the importation of the mongoose, fruit bat (then also known as "flying foxes"), English sparrow, starling, and any other animal designated "injurious" by the Department of Agriculture, [FN62] and required permits for most other wildlife imports. [FN63]
The original Lacey Act also addressed game poaching and wildlife "laundering," which had been fostered by limitations on state control over merchandise traveling in interstate commerce. Lacey illustrated these problems by describing two common scenarios to his colleagues in Congress. [FN64]
First, it was common at that time for large numbers of game to be killed by poachers (known as market hunters or "pothunters" [FN65]) in one state, fraudulently mismarked to avoid detection, and shipped to another state for sale to the public. Once the pothunter had removed the game from its state of origin, that state lacked the jurisdiction necessary to prosecute him. When the unlawfully killed game entered a second state, the laws of that state were often unable to prohibit its sale, as all power to regulate interstate commerce was vested in the federal government. [FN66]
A second common problem involved local game killed during a state's closed season and sold under the guise of having been brought into the state from elsewhere. Lacey spoke of game sellers in New York who would hang a few verifiably imported Scottish grouse in their store windows and use them as a "fence" for the sale of illegally taken local grouse, which were apparently indistinguishable from the Scottish specimens. [FN67] Restrictions on state control over items traveling in interstate commerce frequently prevented a state from simply prohibiting the sale of all game during its closed season. [FN68]
The inability of state laws to address these scenarios stemmed from two legal doctrines considered valid at the time. Under the state ownership doctrine, states were considered to own the wildlife found within their borders and had the exclusive power to restrict the export of such wildlife. This doctrine, which began to percolate through Supreme Court case law in 1842, [FN69] was enunciated in the 1896 holding of Geer v. Connecticut. [FN70] The Geer Court was asked to determine the extent of a state's ability to control the transport of game killed lawfully within its borders. In its holding, the Court proclaimed that each state owns the wildlife within its borders in trust for the state's citizens, and has the right to control the taking and disposition of game in order to ensure conservation of a valuable food supply so long as such control has only an incidental effect on interstate commerce. [FN71]
Steady erosion of the state ownership doctrine finally resulted in the Supreme Court's complete rejection of the concept eighty-one years after Geer in Hughes v. Oklahoma. [FN72] Hughes was factually similar to Geer in that the Court was asked to consider whether Oklahoma's prohibitions on the export of native wild-caught minnows was permissible. Characterizing the idea of absolute state control over wildlife within its borders as a "19th century legal fiction," [FN73] the Court declared that constitutional challenges to state wildlife control laws henceforth would be analyzed according to the same general rules that applied to state regulation of other resources. [FN74]
The second doctrine that prevented direct state regulation of imported wildlife prior to the Lacey Act arose from a series of judicial decisions strictly construing the Commerce Clause to preclude state control over virtually any item that traveled in interstate commerce. [FN75] In 1897, for example, the Supreme Court declared that because liquor was a lawful item of interstate commerce, states could not control its importation or sale within their borders. [FN76] In another case of that period, the Court ruled that, despite a state's undisputed power to protect the health of its citizens, a state law placing restrictions on imported oleomargarine was invalid because it restricted interstate commerce. [FN77]
In 1900, with the state ownership doctrine still firmly in place, Lacey could not have proposed legislation placing the country's wildlife directly under the control of a federal agency. As Lacey explained to opponents on the House floor,
his bill was not intended to be a "national game law, which, I think, would be unconstitutional," [FN78] but was
intended only to augment state laws. He noted that "the authority of the National Government begins where the State authority ends." [FN79]
Lacey's law addressed the problems of market hunting, concealed interstate shipments, and game laundering in three ways.
First, the Act criminalized both the delivery for shipment and the shipment of parts or bodies of "wild animals or birds" killed in violation of state law. [FN80] Second, relying on the Commerce Clause power,
the Act required all interstate shipments of wildlife to be clearly marked and labeled. [FN81] Violation of these sections was a strict liability offense for the shipper of the game, while the "consignee" and "carrier" had to know the shipment was mismarked for criminal penalties against them to ensue. [FN82] If convicted, the maximum penalty for the shipper, the consignee, and the carrier was a $200 fine. [FN83] Third, rather than attempting to place "state-owned" wildife under direct federal control,
the Act removed federal restrictions on the states' ability to regulate the sale of wildlife within their borders by subjecting all game animals and birds entering a state to the state's laws. [FN84] The language of this section was borrowed from an earlier federal statute that allowed "dry" states to regulate the possession and sale of liquor entering or passing through their jurisdictions. [FN85]
B. Early Litigation
The initial impact of the Lacey Act on state regulation of imported wildlife was somewhat mixed. In some early cases, prior interpretations of state law were held to withstand the apparently broadening power of the Lacey Act. In People v. Bootman , [FN86] for example, the state of New York had initially sought penalties exceeding $1 million against a defendant who possessed more than 47,000 imported game birds during New York's closed season. [FN87] At that time, a state law prohibited possession of game birds during the closed season regardless of their origin. [FN88] The defendant claimed that the relevant provisions of the state law, enacted prior to the Lacey Act , did not apply to wildlife killed in another state and transported into New York. [FN89] The New York court reluctantly agreed, stating that the recently enacted Lacey Act could have no effect on the interpretation of a pre-existing state law. [FN90] It added, however, that subsequent enlargement of the state law's provisions to explicitly prohibit possession of imported game during the closed season would likely require a different result in future cases. [FN91]
In other cases the Lacey Act was acknowledged, but was not relied upon. For example, in State v. Shattuck, [FN92] diners at a Minneapolis restaurant in December 1904 ordered and were served ruffed grouse. [FN93] The grouse had been killed in Wisconsin and imported to Minnesota, which prohibited the sale of ruffed grouse regardless of its origin. [FN94] The defendant restaurateur argued against application of the law to his grouse, claiming both a due process violation (the taking of his personal property) and an unconstitutional infringement on interstate commerce. [FN95] Reasoning that the exclusion of non-native game would be necessary to prevent fraudulent evasion of the state law (echoing Lacey's arguments on the floor of the House), and concluding that all wildlife within a state is property of the state, the Shattuck court held that the police power of the state allows regulation of wildlife without running afoul of constitutional issues. [FN96] Almost as an aside, the court noted that the newly enacted Lacey Act "eliminates all questions" regarding improper infringements on interstate commerce. [FN97]
In similar fashion, the Supreme Court addressed the authority of state laws over imported wildlife in a 1908 case that merely referred to the Lacey Act . [FN98] In New York ex rel. Silz v. Hesterberg, amendments to New York's game law, prohibiting the possession of imported game during the state's closed season, were challenged as unconstitutional takings of private property without due process and improper infringements of federal control over interstate commerce. [FN99] The Supreme Court rejected these arguments, approving the state law as a valid exercise of police power over state property with only an incidental effect on interstate commerce, and as necessary for the preservation of the game supply which, "in spite of laws passed for its protection, is rapidly disappearing from many portions of the country." [FN100] Having decided the issues on these grounds, the Court deemed it unnecessary to examine the Lacey Act's provisions. [FN101]
Other early courts relied directly on the Lacey Act in situations involving interstate shipments of wildlife. For example, in Cohen v. Gould, [FN102] 680 muskrat skins were shipped to Minnesota from Wisconsin, in violation of a Minnesota law prohibiting the possession of wildlife killed in violation of another state's laws. [FN103] The defendant argued that the Minnesota law interfered with interstate commerce. The state supreme court considered this issue only briefly, stating only that "it seems to be disposed of by an act of Congress the purpose of which is to prevent interstate commerce in furs which will aid the violation of state law for the conservation of wild life." [FN104] In People v. Fargo, [FN105] the question was whether the Lacey Act authorized state regulation of wildlife entering a state in the possession of a common carrier prior to its receipt by a consignee. [FN106] In Fargo, the president of the American Express Company was charged with violating a New York law prohibiting the transport of deer carcasses within the state during certain times of the year. [FN107] The carrier argued that the state law should not apply until the deer were delivered to a consignee. [FN108] The court agreed, noting that the Lacey Act gave effect to state laws "upon arrival" of the wildlife within the state, and that this language had been construed in analogous Wilson Act cases to restrict state regulation of liquor shipments that had not yet been transferred from a common carrier to a consignee within the state. [FN109]
The first direct interpretation of the Lacey Act came in 1910, when the Eighth Circuit was asked to consider procedural and constitutional challenges to four Lacey Act convictions of Paris Rupert , who attempted to ship dead quail in interstate commerce. [FN110] The Oklahoma territorial law at issue allowed the killing of quail between certain dates, but prohibited the export of quail from the territory at any time. [FN111] Although Rupert's quail were apparently killed during the open season, [FN112] Rupert was charged and convicted on two Lacey Act counts alleging the quail [FN113] had been killed illegally because they were killed "with the intent and for the purpose of being shipped and transported out of the territory" in violation of the territorial law. [FN114] Rupert was also convicted of two additional Lacey Act charges alleging his failure to clearly mark the boxes containing the quail. [FN115]
The Eighth Circuit first analyzed the language of the indictments to determine if they properly charged Lacey Act violations. The court reasoned (without resort to authority) that because territorial law prohibited the export of quail at all times, the killing of quail for the purpose of export constituted an unlawful killing, regardless of whether it occurred during the open season. [FN116] Thus, the court said, the Lacey Act's application to the transport of unlawfully killed game was properly triggered. [FN117]
Next, the court addressed the constitutionality of the territorial law's restriction on the export of game. Relying on the state ownership doctrine and the state's police power, the court concluded that game remains state property after it is killed and is subject to some state control even after it enters interstate commerce. [FN118] Finally, analogizing to a decision upholding the Wilson Act's application of state laws to liquor shipments, the court said: "(I)t surely follows that a congressional enactment like the Lacey act, which makes it a crime to carry out of the state that which can be and is lawfully prohibited by local or state laws, must be upheld." [FN119]
Decisions such as Cohen and Rupert illustrate that by the second decade of this century, both state power to regulate wildlife moving in interstate commerce and the Lacey Act's ability to supplement state wildlife laws were becoming well established, setting the stage for enactment of the Lacey Act's sister statute, the Black Bass Act.
