The Lacey Act (“Act”) is federal legislation introduced by Iowa Rep. John F. Lacey in 1900.  The rationale behind the drafting of this legislation is to provide protection to both plants and wildlife by criminalizing the intentional violation of certain federal wildlife laws.  The Act also criminalizes the violation of most independent state, tribal wildlife laws[i].  Nevertheless, the Lacey Act has been amended several times since its inception in 1900.  The most significant ones that occurred are in 1969, 1981, and 1988.  The 1969 amendments  included the following:

• the mental state required for a criminal violation was increased to knowingly and willfully;
• civil penalties were expanded to apply to negligent violations.

 The Act was designed to strengthen and support existing wildlife laws. To fulfill its purpose, the Act must be applied to conduct that is also regulated by an existing treaty, state or federal law, regulation or tribal law.  The Act also serves as a federal tool to aid states in enforcing their own fish and wildlife laws by imposing federal sanctions for interstate or foreign commerce in fish and wildlife that have been taken, possessed, transported, or sold in violation of any state, federal, or foreign law.

In United States v. Cameron, 888 F.2d 1279 (9th Cir. Alaska 1989), the court ruled that the Act makes it unlawful for any person to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken or possessed in violation of any law, treaty, or regulation of the U.S., or in violation of any Indian tribal law.  However, any person who violates any provision of this Act by knowingly engaging in conduct that involves the sale or purchase of fish or wildlife or plants in a manner unlawful under, any underlying law, treaty or regulation, will be fined not more than $ 20,000, or imprisoned for not more than five years, or both[ii].

Pursuant to 16 USCS § 3372, the Act protects plants and regulates the following:

• the theft of plants;
• the taking of plants from a park, forest reserve, or other officially protected area;
• the taking of plants from an officially designated area; or
• the taking of plants without, or contrary to, required authorization.

According to 16 USCS § 3376(a)(2), it is unlawful for any person to import, export, or transport in interstate commerce any container or package containing any fish or wildlife unless the container or package has previously been plainly marked, labeled, or tagged in accordance with the regulations of this Act.  In addition, the Act considers an activity unlawful, if a person makes or submits any false record, account, or label for, or any false identification of any fish, wildlife, or plant which has been, or is intended to be[iii]:

• imported, exported, transported, sold, purchased, or received from any foreign country;
• transported in interstate or foreign commerce.

 The Act does not prevent any person who is willing to import any plant unless the person files upon importation a declaration that contains[iv]:

• the scientific name of any plant (including the genus and species of the plant) contained in the importation;
• the value of the importation;
• the quantity, including the unit of measure, of the plant;
• the name of the country from which the plant was taken.

 A person who engages in conduct prohibited by any provision of this Act may be charged with civil penalties or criminal penalties.  However, a person may not be charged with a civil penalty unless the person accused of the violation is given notice and an opportunity for a hearing with respect to the violation.  Each violation is considered a separate offense and the offense is deemed to have been committed not only in the district where the violation first occurred, but also in any district in which a person may have taken or been in possession of the said fish or wildlife or plants.  In determining the amount of any penalty assessed, the Secretary of Commerce (“Secretary”) takes into account the nature, circumstances, extent, and gravity of the prohibited act committed, and with respect to the violator, the degree of culpability, ability to pay, and such other matters as justice may require[v].  A person will be charged with criminal penalties if the person knowingly imports or exports any fish or wildlife or plants in violation of any provision of this Act, and also violates any provision of this Act by knowingly engaging in conduct that involves the sale or purchase of, the offer of sale or purchase of, or the intent to sell or purchase fish or wildlife or plants with a market value in excess of $ 350[vi].

The Act authorizes the Secretary to suspend, modify, or cancel any federal hunting or fishing license, permit, or stamp, or any license or permit authorizing a person to import or export fish or wildlife or plants.  However, the Secretary will not be liable for the payments of any compensation, reimbursement, or damages in connection with the modification, suspension, or revocation of any licenses, permits, stamps, or other agreements pursuant to this Act[vii].

Generally, all fish or wildlife or plants imported, exported, transported, sold, received, acquired, or purchased contrary to the provisions of this Act will be subject to forfeiture to the U.S.  All vessels, vehicles, aircraft, and other equipment used to aid in the importing, exporting, transporting, selling, or purchasing of fish or wildlife or plants in a criminal violation of this Act for which a felony conviction is obtained will also be subject to forfeiture to the U.S[viii].

Under this Act, any person who furnishes information which leads to an arrest, a criminal conviction, civil penalty assessment, or forfeiture of property for any violation of this Act or any regulation is rewarded.  The amount of the reward, if any, is to be designated by the Secretary.  However, any officer or employee of the U.S. or any state or local government which furnishes information or renders service in the performance of his official duties is ineligible for payment[ix].

In United States v. Big Eagle, 881 F.2d 539 (8th Cir. S.D. 1989), the court held that the Act can also be applied within Native American country, defined as all land within the limits of any Indian reservation under the jurisdiction of the U.S. government notwithstanding the issuance of any patent, and, including rights of way running through the reservation.

Accordingly, to prosecute a case under the Lacey Act, the government has the burden to first prove a violation of a valid state, federal, or foreign law or regulation.  There are two distinct elements to establish a violation under this Act[x]:

• Firstly, the prohibited fish or wildlife must be taken, possessed, transported, or sold in violation of a valid state law or regulation;
• Secondly, the prohibited fish or wildlife must be imported, exported, transported, sold, received, acquired or purchased in interstate or foreign commerce.

In United States v. McDougall, 25 F. Supp. 2d 85 (N.D.N.Y 1998), the court ruled that criminal penalties can be imposed if a defendant knowingly imports or exports the prohibited fish or wildlife, knowing that they were taken, possessed, transported, or sold in violation of state law or regulations.

The Lacey Act now stands as one of the broadest and most comprehensive forces in the federal arsenal to combat wildlife crime.  With increasing activity in international and domestic wildlife trafficking, the Act has evolved to become an important weapon to protect animals domestically and abroad.

[i] 16 U.S.C.S. §§ 3371-3378.

[ii] 16 U.S.C.S. § 3372(a)(1).

[iii] 16 USCS § 3376.

[iv] 16 USCS § 3372.

[v] 16 USCS § 3373.

[vi] Id.

[vii] Id.

[viii] 16 USCS § 3374.

[ix] 16 USCS § 3375.

[x] United States v. McDougall, 25 F. Supp. 2d 85 (N.D.N.Y 1998).