Fading Elephant in the Room: Extinguishing the Market for “White Gold”

September 9, 2019

By Lukiana Pilyugin.

The earth’s largest land mammals are irreplaceable, and so are their ivory tusks. The demand for ivory in international markets serves as the driving force behind poaching in African nations. Up to 33,000 elephants are killed for their tusks every year and certain subspecies are at the brink of extinction.^[1]

In the art world there remains a strong interest in preserving antique ivory due to the objects’ historical, social and educational value, however when the source species is also threatened, the appetite to trade and exhibit these antiques tends to decline. A federal rule which came into force on July 6, 2016,^[2] as well as heightened public criticism of ivory, has drawn attention to the increased number of forgeries, alteration of genuine antiques and led to the limited availability of antiques in physical storefronts. Additionally, the interplay of US and state regulations, discussed below, has created an atmosphere of ongoing commercial uncertainty in those states.

International Efforts

Pursuant to global efforts, international commercial trading of ivory has been illegal since 1989—except for “antique,” pre-ban ivory.^[3] The Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) was drafted to ensure that the international trade of wild animals and plants would not threaten their survival.^[4] While legally binding on the 183 Parties,^[5] the international treaty also provides a framework for the Parties to incorporate into their own domestic legislation. CITES is organized into three Appendices which reflect the different levels of protection that each species requires. Most African Elephant populations and all of Asian Elephants are listed under Appendix I as the most threatened of species.^[6]

In an experimental attempt to curb black market demand for ivory, CITES suspended its ban on the international trade in 2008 and sanctioned a one-time legal sale of 108 metric tons of stockpiled ivory to Japan and China from four African nations. The effects of legalization backfired and incentivized poaching which led to the slaughter of an estimated 100,000 elephants from 2011 to 2014.^[7]

United States Legislation

Although China remains the main end-use destination for ivory from Africa,^[8] the United States continues to function as a terminus and transit country for illegally traded ivory.^[9] United States regulations do not restrict personal possession of ivory, but do require that any commercial sale meet the parameters outlined in relevant international, federal and state laws. The most pertinent wildlife laws include the Endangered Species Act (“ESA”) of 1973, the African Elephant Conservation Act (“AECA”) of 1989, and the Lacey Act of 1900.

The ESA is a federal statute implemented to “protect and recover imperiled species and the ecosystems upon which they depend.”^[10] It is administered by the U.S. Fish and Wildlife Service (“USFWS”) and the Commerce Department’s National Marine Fisheries Service. The statute lists species as “endangered” or “threatened,” and ascribes the necessary levels of protection to each.^[11]

In an effort to ensure the US market was not increasing the demand for poaching, the Obama Administration issued Executive Order 1364819 in July 2013.^[12] As of July 6, 2016, the most recent provisions of the ESA impose a near-total ban on commercial trade in African elephant ivory. Limited exceptions include certain antiques, de minimis objects, imports and exports, and intrastate commerce within the United States.^[13] The onus is on the seller in proving that the ivory item qualifies for a given exemption.^[14]

Working in concert with the ESA, the AECA grants the USFWS authority to establish and enforce controls on ivory imports in order to “perpetuate healthy populations of African elephants.”^[15] Additionally, the Lacey Act makes it unlawful to “import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law.”^[16]

Although the federal government has banned interstate sale of ivory, it does not restrict the sale within states themselves. States such as New York, California, New Jersey and Washington have imposed legislation themselves, banning or heavily restricting the sale of ivory, and there has been a struggle to achieve consistency between federal and state legislation.

New York Market

New York City is the nation’s largest port of entry for illegal wildlife goods.^[17] Section 11-0535-a of the New York Environmental Conservation Law was enacted in 2014 (“State Ivory Law”) as an effort to end the trade while simultaneously leaving narrow exceptions for older ivory having “no discernible consequences for modern conservation efforts.”^[18] The state statute enacts a stricter ban on trading of any ivory or rhinoceros horns than provided under federal law.

Four limited exceptions are listed under the statute, and in order to obtain a permit from the commissioner, the owner or seller must prove that the article falls under one of the following four categories:^[19] (1) “bona fide antique,” where less than 20% volume of ivory/rhinoceros horn by volume of the antique with documentation that the item is not less than hundred years old; (2) distribution or change of possession of ivory/ rhinoceros horn is for educational or scientific purposes, or ivory is used by museum under specific requirements; (3) distribution of ivory/ rhinoceros horn is to a beneficiary of a trust or to an heir or distributee of an estate; or (4) ivory article or rhinoceros horn is part of a musical instrument with historical documentation demonstrating provenance and showing the item was manufactured no later than 1975.^[20]

Penalties under the New York Statute

As evidenced in the case of Metro. Fine Arts & Antiques, Inc. v. 10 W. 57th St. Realty LLC, 162 A.D.3d 514, 79 N.Y.S.3d 26 (N.Y. App. Div. 2018), violations of the statute may carry a class D felony as well as substantial civil penalties.^[21] On November 30, 2015, undercover officers from the New York State Department of Environmental Conservation (DEC) purchased an elephant ivory carving from a salesman for Metropolitan Fine Arts & Antiques in Midtown Manhattan. The piece was sold as mammoth ivory, but after the sale, the DEC analyzed the item and identified it as a carving made from elephant ivory. Pursuant to a search warrant, 126 elephant ivory articles were seized – one of which was a pair of uncarved elephant tusks belonging to a young elephant. A total of $4.5 million dollars’ worth of illegal ivory articles were seized, marking it the largest seizure in New York history. ^[22]

The corporate plaintiff and its principals pled guilty for their sale of elephant ivory after its licenses had expired in violation of Section 11-0535-a. the conviction, the corporate plaintiff’s landlord was then able to evict it for carrying on illegal trade or business.^[23]

Federal Preemption

In 2018, two groups representing dealers challenged the constitutionality of the State Ivory Law, see Art & Antique Dealers League of Am., Inc. v. Seggos, No. 18 CIV. 2504 (LGS), 2019 WL 416330 (S.D.N.Y. Feb. 1, 2019). The trade organizations representing art and antique dealers brought suit against the Commissioner of the New York State DEC seeking a declaratory judgment and a permanent injunction with respect to Section 11-0535-a. On August 14, 2019,^[24] the court rejected the plaintiff’s argument that the State Ivory Law was preempted by and conflicted with federal law, by limiting and narrowing two federal exemptions: the antique and de minimis exemptions outlined in the ESA. The plaintiffs had argued that in this legal quandary, one can comply with federal law pertaining to interstate or international sale of ivory and, at the same time, risk criminal prosecution and civil penalties for selling the same item in intrastate commerce under New York law. Yet the court found that the ESA does not “occupy an entire field of regulation” and thus the states may supplement federal law. The ESA was found not to expressly preempt the State Ivory Law, which affects only intrastate commerce.

Nevertheless, the plaintiffs’ second argument continues. Plaintiffs had reported sunken costs and loss of profit in their federally-approved antique ivory and de minimis inventory. The plaintiffs further alleged that the DEC impeded on their First Amendment commercial rights by prohibiting the physical display of ivory that could be lawfully sold in interstate commerce under federal law. “It is commercially unreasonable,” the plaintiffs stated in their complaint, “to expect customers visiting New York to purchase ivory … without first being able to physically examine the item while in New York.”^[25] The plaintiffs claimed that since the DEC does not limit advertising of products that conform with Section 11-0535-a, such content based prohibitions on commercial speech are impermissible because the State is using its power to “advance a viewpoint and suppress the viewpoint of others with respect to the sale of certain types of ivory.”^[26] The court considered restriction of commercial speech, based on a recent decision by the U.S. Court of Appeals for the Second Circuit.^[27] It found the plaintiff’s protected commercial speech arguments relating to the display of ivory plausible, and denied the Defendants’ motion to dismiss. The record did not support plaintiff’s motion for summary judgment. At the time of publication of this article, the parties are commencing discovery to develop facts to support a determination by the court.^[28]

Federal preemption has failed to gain traction previously in other state decisions. In a 2017 case, New Jersey conceded that its intrastate ivory law was preempted by the ESA in certain circumstances and agreed not to enforce the law in a manner that conflicted with federal law.^[29] However, it was found this case did not support the plaintiff’s preemption argument.^[30]

California has also issued several decisions on the federal preemption issue. In 1983, the Ninth Circuit ruled that federal law preempted a California statute prohibiting trade in elephant parts within the state.^[31] Subsequently, California passed Fish & Game code Section 2022 in July 1, 2016, which eliminated the loophole of previous legislation allowing the continued sale of ivory imported into the state before 1977.^[32]

The narrow exemptions provided under the current statute allow for musical instruments manufactured before 1975 containing less than 20% ivory as well as bona fide antiques containing less than 5% ivory with accompanying documentation indicating the antique is not less than 100 years old.^[33] Unlike the New York statute, the California statute also carves an exception for conduct authorized by federal law; the ban does not apply to “[a]n activity that is authorized by an exemption or permit under federal law or that is otherwise expressly authorized under federal law.”^[34] In 2018, an interest group challenged Section 2022 claiming that it was vague and preempted under federal law.^[35] The court ruled that on its face, the statute was not vague as it did not apply to conduct approved under federal law. The federal preemption claim was not addressed due to the issue being expressly waived on appeal.

Effect on the Art Market

The art world has seen a gradual decline of ivory demand with collectors, dealers, artists and individual buyers.^[36] Even if antique pieces are of appropriate age and satisfy the legal requirements, they may lack documentation.^[37] With ivory viewed increasingly by the public as a taboo art-form, museums around the world have been subject to criticism. In 2018 the British Museum was compelled to defend its decision regarding the acceptance of 556 ivory items acquired in the early 20^th century by a Shanghai-based businessman and hotelier, Sir Victor Sassoon. The director of the museum said that the figures were “of the greatest significance…of the highest cultural value,” and that accepting the donations did not mean that the museum condoned the ivory trade. ^[38]

Some antique dealers have elected to alter their inventory by replacing ivory with “ivorine” (bone-colored plastic). In doing so, the value of the antiques as well as their artistic, social and historical significance has been diminished. Characterized by some art critics as “pure vandalism under the guise of animal conservation,” ^[39] an 18^th century Chippendale commode was stripped of its ivory and fitted with ivorine in order to comply with the United States ban. Its value was estimated between 3-5 million euros, but after the alteration the piece failed to sell.^[40]

There has been limited availability of ivory in physical storefronts due to the perceived high risk involved with displaying ivory on store and gallery shelves.^[41] In June 2014, the popular PBS program Antiques Roadshow stopped appraising ivory tusks on air.^[42] Adding to the list of grievances, there has been an increase of ivory forgeries in recent years. ^[43] Radiocarbon dating used to date ivory is expensive, invasive and does not provide conclusive evidence as to when the ivory was harvested. ^[44]

The struggle to achieve equilibrium between conservation efforts and the preservation of antique artifacts and valuable objects is not new. Loopholes for genuine antiques displaced from the elephant trade have been written into legislation, but such allowances have been repeatedly exploited for nefarious reasons. A further consistent scheme within state, federal and international law, as well as effective enforcement is required in order to ensure the survival of the elephant species.

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Endnotes:

1. See Kristin Hugo, Antique Dealers Come Face-to-Face With Ivory Ban, National Geographic, July 8, 2016. https://news.nationalgeographic.com/2016/07/elephant-ivory-ban-antiques/; for further reading see NYC DEC, Ivory and Rhinoceros Horn Restrictions Frequently Asked Questions, July 2018. http://www.dec.ny.gov/docs/wildlife_pdf/ivoryfaqs.pdf ↑
2. 50 CFR 17, available here. ↑
3. The ban applies to ivory acquired after elephants were listed under CITES (July 1, 1975 for Asian Elephants and February 2, 1976 for African elephants). With CITES documentation, pre-Convention ivory can be imported and exported, subject to stricter domestic laws; See. U.S. Fish & Wildlife Service, CITES & Elephants; What is the “Global Ban” on Ivory Trade. November 2013. https://www.fws.gov/le/pdf/CITES-and-Elephant-Conservation.pdf; ↑
4. What is CITES? CITES, https://www.cites.org/eng/disc/what.php ↑
5. List of Parties to the Convention, CITES, https://cites.org/eng/disc/parties/index.php ↑
6. How CITES works, CITES, https://cites.org/eng/disc/how.php ↑
7. Moran Kelly, After Legal-Ivory Experiment, Black Markets Thrive from Greater Demand, Less Risk, Princeton University, (June 14, 2016. 10.30am), https://www.princeton.edu/news/2016/06/14/after-legal-ivory-experiment-black-markets-thrive-greater-demand-less-risk ↑
8. Kramer, R., Sawyer, R., Amato, S. and LaFontaine, P., The US Elephant Ivory Market: A New Baseline 1 TRAFFIC, (July 2017). https://c402277.ssl.cf1.rackcdn.com/publications/1081/files/original/TRAFFIC_US_Ivory_Report_2017.pdf?1501007952 ↑
9. Id. ↑
10. U.S. Fish & Wildlife Service, Endangered Species Act, December 11, 2018. https://www.fws.gov/endangered/laws-policies/ ↑
11. Id. ↑
12. Federal Register, Combating Wildlife Trafficking; A Presidential Document by the Executive Office of the President, (July 5, 2013). https://www.federalregister.gov/documents/2013/07/05/2013-16387/combating-wildlife-trafficking ↑
13. U.S. Fish & Wildlife Service, What Can I Do With My Ivory? https://www.fws.gov/international/travel-and-trade/ivory-ban-questions-and-answers.html ↑
14. Id. ↑
15. U.S. Fish & Wildlife Service, African Elephant Conservation Act of 1989. https://www.fws.gov/international/wildlife-without-borders/multinational-speicies-conservation-acts-african-elephant.html ↑
16. U.S. Fish & Wildlife Service, Lacey Act. of 1900 § 3372, 18 U.S.C. 42-43 (2006) https://web.archive.org/web/20150208034049/https://www.fws.gov/international/laws-treaties-agreements/us-conservation-laws/lacey-act.html ↑
17. NYC DEC, Ivory and Rhinoceros Horn Restrictions Frequently Asked Questions, July 2018. http://www.dec.ny.gov/docs/wildlife_pdf/ivoryfaqs.pdf ↑
18. N.Y. Envtl. Conserv. Law § 11-0535-a (McKinney), Supplementary Practice Commentaries. ↑
19. N.Y. Envtl. Conserv. Law § 11-0535-a (McKinney). ↑
20. Id. ↑
21. N.Y. ENVTL. CONSERV. LAW SECTION 71-0924(4); 71-0924(16). ↑
22. Officials Announce Largest Seizure Of Illegal Elephant Ivory In New York State History, Antiques And The Arts Weekly, September 29, 2016. https://www.antiquesandthearts.com/officials-announce-largest-seizure-of-illegal-elephant-ivory-in-new-york-state-history/ ↑
23. Metro. Fine Arts & Antiques, Inc. v. 10 W. 57th St. Realty LLC, 162 A.D.3d 514, 515, 79 N.Y.S.3d 26, 27 (N.Y. App. Div. 2018). The First Department warned of economic risks outside those imposed by Section 11-0535-a, on awarding the dealer’s landlord possession of the shop in a later civil judgment. Apart from the statutory penalties for the unlicensed sale of elephant ivory, the requirements under Real Property Law section 231(1) were met. ↑
24. See infra note 27. ↑
25. Plaintiffs’ Third Amended Complaint, dated March 21, 2019. ↑
26. Id. ↑
27. See also, Vugo, Inc. v. City of New York, 931 F.3d 42, 51-52 (2d Cir. 2019). ↑
28. Art & Antique Dealers League of Am. Inc v Seggos, No. 18-cv-2504 (LGS) 2019 WL 3817305 (S.D.N.Y Aug. 14, 2019). ↑
29. Conservation Force v. Porrino, 16-cv-04124(FLW) (April 25, 2017, Wolfson, USDJ), 2017 U.S. Dist. LEXIS 62380, *2-4. ↑
30. See case cited supra note 23. ↑
31. See also, Mia Tomijina, Towering Ban on Ivory Trade (October 1, 2015), Center for Art Law, https://itsartlaw.org/2015/10/01/towering-ban-on-ivory-trade/. ↑
32. Corey Binns, The California Case of an Antique Ivory Collector v. African Elephants NRDC, July 31, 2017. https://www.nrdc.org/stories/california-case-antique-ivory-collector-v-african-elephants ↑
33. Cal. Fish & Game Code § 2022 (West). ↑
34. Id. ↑
35. Ivory Educ. Inst. v. Dep’t of Fish & Wildlife, 28 Cal. App. 5th 975, 980, 239 Cal. Rptr. 3d 606, 610 (Ct. App. 2018). ↑
36. Dealers are not trying to dispose of their goods immediately. Bob Weisblut, head of the International Ivory Society, a club of ivory collectors, artists, dealers, and others, indicated that- “[w]ith over 200 people in my club, I haven’t heard anyone say they’re trying to liquidate.” See Kristin Hugo, Antique Dealers Come Face-to-Face With Ivory Ban, National Geographic, July 8, 2016, https://news.nationalgeographic.com/2016/07/elephant-ivory-ban-antiques/ ↑
37. Id. ↑
38. Mark Brown, British Museum given more than 500 ‘exquisite’ ivory figures, The Guardian, June 27, 2018. https://www.theguardian.com/culture/2018/jun/27/british-museum-ivory-figures-sir-victor-sassoon ↑
39. See Anita Singh, Chippendale masterpiece stripped of ivory before Christie’s sale, The Telegraph, August 29, 2018. https://www.telegraph.co.uk/news/2018/08/29/chippendale-masterpiece-stripped-ivory-christies-sale/ ↑
40. Id. ↑
41. Supra note 7 at 9. ↑
42. Supra note 30. ↑
43. Art History Professor Looks Into the Big Business of Ivory Carving Forgery, Penn State College of Arts and Architecture, https://artsandarchitecture.psu.edu/news/art-history-professor-looks-big-business-ivory-carving-forgery ↑
44. Ivory Ban Question?, WCS, https://www.wcs.org/get-involved/us-ivory-ban-questions. ↑

Suggested Readings:

• Branden D. Jung, The Tragedy of the Elephants, 2017 Wis. L. Rev. 695, 702 (2017).
• Sofía G. de la Rocha, Tusk Tusk: A Comparative Analysis into the Effects of Ivory Trade Regulation and the International Art Market, 49 Cal. W. Int’l L.J. 425 (2019).
• Emily Schenning, Transboundary Wildlife Laws and Trafficking: The Plight of the African Elephant in Malawi and the Need for International Cooperation, 30 Vill. Envtl. L.J. 39 (2019).

About the Author: Lukiana Pilyugin, Esq., is an alumna of Quinnipiac University School of Law. She is presently working as a Temporary Assistant Clerk at Stamford Superior Court. Lukiana can be reached at lukianapilyugin@gmail.com.