Recent Changes to the Endangered Species Act

 

On July 1, 2013 President Obama signed an executive order to better coordinate the United States response to illicit wildlife trafficking. The laudatory goals included a review of long-standing regulations and to establish national priorities for the protection of endangered species. Coinciding with this review of the Endangered Species Act was a review of the ESA by The House Congressional Working Group and announcements of a focus on Endangered Species and in particular the protection of elephants by The Clinton Foundation. As a followup to the executive order, on September 9, 2013 the White House announced the formation of an Advisory Council on Wildlife Trafficking. The Advisory Group included twelve members and alternates mostly representing various environmental interests. Of the members, only one, Tod Cohen, the Deputy General Counsel of Global Government Relations for eBay, had any connection with the arts and antiques community.  On February 11, 2014 the presidential commission reported the findings of the Advisory Council in a document titled “The National Strategy For Combatting Wildlife Trafficking.” This document sets out broad, general goals and was followed on February 25, 2014 by Directors Order No.210 issued by the United States Department of the Interior, Fish and Wildlife Service Director, Daniel M. Ashe.

Of the members, only one, Tod Cohen, the Deputy General Counsel of Global Government Relations for eBay, had any connection with the arts and antiques community.

The Directors Order includes a number of specific changes to long-standing practice to the existing regulations. The effect of these changes will be to eliminate the market for all items composed in part or whole of ivory and other Endangered Species material. The Order does not allow certified antiques (objects over 100 years old) to be traded in interstate commerce unless the owner can prove the object was legally imported into the United States through an “antique port of entry” after 1982. This excludes all objects present in the United States prior to 1982 and all those imported after 1982 for which the owner does not have the import documents. As a consequence of this order, most antique objects in private collections, dealers inventories, and in museum collections that contain any endangered species material will have limited or no market value. The Directors Order was implemented immediately as of February 25, 2014.

As a consequence of this order, most antique objects in private collections, dealers inventories, and in museum collections that contain any endangered species material will have limited or no market value.

The consequences for owners of endangered species material and those who are professionals working with this material is dire. Depending upon the state where the items are located, the objects may be able to be sold locally but only to a local purchaser who may not take the object across state lines. The discrepancy in price from one location to another will result in a black market, likely accompanied by criminal gangs smuggling these items across state lines or out of the country.  Private collectors with long-standing plans to retire based on the sales of their collections will be unable to do so. Appraisers will be in the difficult position of having to determine what exactly is the fair market value or retail replacement value of an item that is worthless in one location and worth significantly more in another. Appraisers who misidentify the specific type of ivory or other materials may be subject to serious liability issues if the items are subsequently found to be a banned material or were not a banned material. Homeowners who sell an object containing an endangered species material in a house sale after transporting that material across state lines may be subject to serious fines or prosecution. Auction houses will be responsible for making sure the consignors and purchasers are in-state residents.  Most people only sell items when they move or have a loss in the family will be unaware of the regulations and will find themselves in violation of the regulations. Fine quality works of art that have a small market in a regional location will be orphaned, unable to be sold to the audiences of museums or collectors where these would be appreciated and at a huge cost to the individual owners.

 The discrepancy in price from one location to another will result in a black market, likely accompanied by criminal gangs smuggling these items across state lines or out of the country.

We believe there is a better way to address the very real need to control illicit trafficking in endangered species materials and in particular with ivory.   As with the IRS Art Panels, we believe that the arts and antiques community should be part of the solution to this problem, allowing members of our respected circle of experts to participate in a program to identify items that are genuine antiques and that these items should be recorded and identified to distinguish them from objects that are recently made forgeries.  Many of the changes advocated by the Presidential Council are good, but the rules surrounding genuine antiques are cramped and a needless diversion of scarce resources away from where these are needed, in stopping  smugglers bringing items into the United States and criminals committing wildlife crimes in Asia and Africa.

 We believe there is a better way to address the very real need to control illicit trafficking in endangered species materials and in particular with ivory.

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