Public Interest

Lawyers for Elephants

The struggle to save elephants from poachers sparks a California lawsuit.

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elephantsI haven’t seen any polling data, but I think it’s safe to assume that most people don’t want elephants to go extinct. That said, as far as I know there’s no powerful elephant lobby out there trying to enact policies to protect these most charismatic megafauna. Instead, the job of promoting elephants’ protection typically falls to — that’s right — the public interest lawyer.

So it was that last year, the Natural Resources Defense Council commissioned a study showing that most ivory for sale in California was probably illegal under existing law. How can this be? Well, as anyone who’s dabbled in anti-smuggling laws knows well, these laws can be quite complicated. Don’t believe me? Go to page two of that study and take a look at its plain-language summary of just the federal laws governing ivory sales.

The easiest way to help a piece of ivory appear to be legal is to make it look old. So ivory vendors often falsely age ivory before selling it. To an untrained eye, the ivory looks old and therefore probably legal. To a trained eye, however, fakery is generally not too difficult to spot. NRDC engaged an inspector with a trained eye, who found that illegal sales appeared to be rampant in California:

In Los Angeles, between 77% and 90% of the ivory seen was likely illegal under California law and between 47% and 60% could have been illegal under federal law. And in San Francisco, approximately 80% of the ivory was likely illegal under California law and 52% could have been illegal under federal law.

And where did this illegal ivory come from? The study concludes that ivory from poached elephants is typically processed in China before being smuggled into the United States:

The fact that the majority of illegal ivory in the United States is coming from China makes sense, as a great deal of raw ivory is transported from Africa to China where it is carved mainly in factories in the Guangdong and Fujian provinces and then smuggled to the United States.

California doesn’t like elephant poaching any more than the next state. So not too long after NRDC released its study, California responded by enacting AB96, which amended the state Fish and Game Code to further restrict ivory sales. Here’s a summary from an NRDC blog post:

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Current California law allows the purchase and sale of ivory imported prior to 1977, which has created a parallel illegal market and made the law nearly impossible to enforce. AB 96 fixes this by eliminating the pre-1977 loophole in California’s ivory law and banning the sale, offer for sale, possession with intent to sell, and importation with intent to sell of elephant, mammoth, narwhal, whale, walrus and hippo ivory, along with rhinoceros horn. It also increases penalties for traffickers to up to roughly $50,000 and/or one year in prison.

As is so often the case, the natural and probable consequence of this new law was a new lawsuit.

The Ivory Education Institute, a “nonprofit, unincorporated, association” swiftly filed suit in California Superior Court claiming that the bill is preempted by federal law, violates the dormant commerce clause, and also constitutes a taking by effectively destroying the market for ivory in California. The complaint mostly comes across as a screed against AB96, though. Take paragraph seven, for example:

Based on the legislature’s findings, the committee hearings, and other commentary, the Law was passed as an effort to protect endangered species, particularly African elephants and rhinoceroses from being killed to support an illegal, international, commercial ivory trade. The preamble to the Law overstates the problem and is based on a fallacy. It states that “an average of 96 elephants per day are killed in Africa.” That would mean 35,000 elephants per year die at the hands of poachers and therefore an absolute minimum of 700,000 pounds of ivory would become part of the annual commercial trade in this commodity. That would be enough ivory for more than 46 million individual objects of jewelry, an amount far beyond anything ever seen in the California marketplace. The number of killings as stated, is a hoax, and fails to take into account elephant deaths due to age, disease, primacy battles, environmental issues, overcrowding, accidents, and elephants as a food source. The number of 96 per day has been used and bandied about, and because it has been repeated so often, it has become accepted as fact by the legislature, but it is a number without evidentiary support. The number is bogus, and intended to overstate the problem in order to promote and encourage passage of the Law.

I was curious, so I googled the 96-elephants-per-day statistic. First I found this Time article, which led me to this U.S. News & World Report article, which led me to this scientific paper published in the Proceedings of the National Academy of Sciences. That paper estimates approximately 40,000 elephant deaths by poaching in 2011, or almost 110 per day. And that’s right there in the paper’s abstract! Overstated, fallacious, bogus, unsupported hoax this is not.

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Given this, it’s difficult to take too seriously the assertion of the complaint’s next paragraph that, “while the commercial ivory trade in poached tusks is a scourge and a root cause of the reprehensible killing of elephants in Central Africa, the Law, as written will have absolutely no impact or effect on preventing future such trade in Africa or Asia” — especially given the NRDC-commissioned study discussed above.

So now comes NRDC, seeking to intervene and defend California’s ivory restrictions along with partner organizations the Center for Biological Diversity, the Humane Society, the International Fund for Animal Welfare, and the Wildlife Conservation Society. Keep up the good work, fellow public interest lawyers — I look forward to keeping an eye on this one.

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

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