Legislation. Legislation 1

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1 Legislation The Endangered Species Act Legislation mandating a list of rare and endangered species was first enacted by Congress in The Endangered Species Act (ESA) was amended in 1969 when foreign species were added to the list. In 1973, a comprehensive model Act replaced the latter act, providing the most extensive safeguards of any legislation in the world to protect declining species. The ESA prohibits harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing and collecting listed species, unless specifically permitted, or attempting to engage in such activities within the United States or its territorial seas. Taking on the high seas is also prohibited, as are possessing, selling, delivering, carrying, transporting or shipping any species unlawfully taken within the United States, its territorial seas or on the high seas. It is also unlawful to deliver, receive, carry, transport or ship in interstate or foreign commerce in the course of commercial activity listed species, or to sell or offer listed species for sale in interstate or foreign commerce. The prohibitions apply to listed species, live and dead, their parts, and products made from their parts. Species are listed in two categories: Endangered and Threatened. Endangered is defined as any species which is in danger of extinction throughout all--or a significant portion--of its range. Prohibitions on activities that affect species may be less strict for animals listed in the Threatened category, but these are regulated by the U.S. Fish and Wildlife Service (USFWS) on a species-by-species basis. The ESA also allows listing species similar in appearance to those that are Endangered or Threatened, when doing so would provide additional protection for the listed species. Stiff penalties may be imposed for violations of the Endangered Species Act. Felonies may be punished with fines up to $50,000 and/or one year imprisonment for crimes involving endangered species, and $25,000 and/or six months imprisonment for crimes involving threatened species. Misdemeanors or civil penalties are punishable by fines up to $25,000 for crimes involving endangered species and $12,000 for crimes involving threatened species. A maximum of $1,000 can be assessed for unintentional violations. Rewards of up to $2,500 are paid for information leading to convictions. The ESA has been extremely effective in saving wildlife and plant species in danger of extinction. Contrary to some who have claimed that the Endangered Species Act has interfered with government and private projects, there have been very few conflicts, and on the whole, these have been resolved to the satisfaction of both parties. The Northern Spotted Owl controversy was resolved by government retraining of loggers and an increase in high technology jobs that more than compensated for jobs lost. Other arrangements have been made with paper companies to protect the endangered Red-cockaded Woodpecker and, in southern California, with developers to protect the Coachella Fringe-toed Lizard. As of August 2001, the USFWS had issued 500 permits for 360 "Habitat Conservation Plans. Many involve financial benefit to landowners. If landowners donate land where endangered species are found to a nonprofit organization or the federal government, the transaction is tax-deductible. In spite of economic interests who wish to weaken the ESA, the majority of Americans support the law and protection of endangered species (see Vanishing Species chapter). As of July 31, 2001, the Act listed 1,802 species of animals and plants as Endangered or Threatened. Of these, a total of 507 animal and plant species were native to the United States. The Act has been instrumental in saving native species, including endangered species such as the California condor, the Black-footed Ferret and the Bald Eagle, and Threatened species such as the Northern Spotted Owl. Programs of habitat protection, captive breeding, and other means of aiding in the recovery of listed species have prevented the extinction of hundreds of plant and animal species, many little known to the American public. The Hawaiian Islands have the largest number of listed species as a result of the destruction of native ecosystems and species by introduced animals and diseases, and clearing of forests Legislation 1

2 for agriculture and ranching. The Endangered Species Act has also been important in regulating the importation and exportation of exotic species listed. Foreign species listed totaled 555 animal and three plant species on July 31, These species include Leopards; Tigers; all species of rhinoceros; the great whales; the Andean Condor; Harpy Eagle; Imperial Parrot, among many other parrot species; Resplendent Quetzal; all sea turtles; numerous endangered tortoises; endangered caiman and crocodiles; iguanas; and fish, as well as seven endangered foreign invertebrates. Mammals comprise the majority of foreign species--251 Endangered and 17 Threatened (compared with only 63 Endangered and 9 Threatened U.S. species). These listings have prevented importation of many endangered species and their products. Prior to importation of any listed species, or part thereof, a permit must be obtained from the USFWS. Permits are not granted for commercial exploitation of non-captive-bred endangered species. Commercial importation of Leopard, Tiger or Ocelot skins, for example, is not allowed under the ESA. In spite of the severe penalties that can be exacted under the law, including jail sentences, illegal imports continue, and thousands are confiscated by USFWS agents each year. Many are tourist purchases, such as stuffed sea turtles, fur coats, and taxidermy specimens. Others are commercial items, such as reptile skins and, recently, products for the Asian medicine trade--tiger bones and powdered rhinoceros horn. For zoos, importation of live wild-caught specimens of endangered species requires ESA permits. If the species is listed on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which lists many of the same species on Appendix I (the category for species threatened with extinction), both import permits from the U.S. CITES authorities and export permits from foreign CITES authorities are required. The USFWS has required rigid proof that importation of listed species would not result in declines in wild populations of that species, except for emergency situations where wild populations are under extreme threats such as uncontrolled poaching or habitat destruction. The combined burden of proof needed for ESA and CITES has been essential in preventing needless removal from the wild of endangered species. With the proliferation of wild animal parks, small zoos, and animals used in entertainment, the pressure to weaken the ESA to allow importation of endangered species has increased. One wildlife dealer wrote an editorial in a trade journal, Pet Business (March 1995), that encouraged weakening the ESA: "There is no logical reason for our government to pay hundreds of thousands of dollars, if not millions, a year to control non-indigenous endangered species." Without strict regulations under the ESA, however, the Act will lose its value in preventing commercialism of endangered species around the world. Convention on International Trade in Endangered Species of Wild Fauna and Flora The Endangered Species Act of 1973 also implements the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, known as CITES. The purpose of CITES is to prevent international trade from contributing to the endangerment of any species. To achieve this, CITES establishes a system of trade controls that vary in their restrictiveness, depending upon the degree of jeopardy each species faces. The trade controls imposed by CITES apply only to the species listed on three Appendices to the Treaty. The species listed on Appendix I of the Treaty receive the most protection; they cannot be imported or exported for primarily commercial purposes. To be traded for other purposes, such as zoological or scientific imports, a specimen of any species listed in Appendix I must be accompanied by an export permit from the exporting country and an import permit from the importing country. Species on Appendix II of CITES, which are the vast majority of all species protected by the Treaty, can be traded for both commercial and noncommercial purposes. However, they must be accompanied by an export permit, which may be issued only upon the finding that the export of the specimens concerned will not be detrimental to the survival of the species. This requirement allows countries to control trade in those species listed on Appendix II. Legislation 2

3 Member countries may unilaterally list species on Appendix III that are protected within the countries' borders. The purpose of Appendix III is to obtain international cooperation in the enforcement of national conservation laws. Countries importing specimens of a species listed on Appendix III--from the country responsible for including the species on the Appendix--must insist upon presentation of a permit showing that the specimens were lawfully acquired and exported from that country. Marine Mammal Protection Act Prior to passage of the Marine Mammal Protection Act (MMPA), millions of dolphins were drowned in purse seine nets set for tuna. The MMPA, enacted in 1972, established a moratorium on the taking and importation of marine mammals except under permit. The authority for protecting these animals is divided between two departments. The U.S. Department of the Interiors Fish and Wildlife Service (USFWS) is responsible for management authority for the Sea Otter, Walrus, Polar Bear and Dugong, among others; while the U.S. Department of Commerces National Marine Fisheries Service (NMFS) has authority over cetaceans and seals. Under the MMPA, it is unlawful to harass, hunt, capture or kill any marine mammal on the high seas, in water or on lands under the jurisdiction of the United States except under permit. The MMPA requires a permit prior to capturing marine mammals in all waters worldwide for public display or scientific research. These permits are issued by the USFWS or the NMFS under strict regulations. Once in captivity, the animals are under the jurisdiction of the Animal Welfare Act, which is enforced by the U.S. Department of Agriculture (USDA). Fishing vessels must apply for permits if their operations result in incidental kills; permits can be issued only if the killing, such as drowning in fishing nets, would not cause declines in wild populations below potential biological removal levels, defined as the largest number that can be killed in optimum sustainable populations. This means that populations of a particular area, such as the California Sea Lions, are used as a basis for permits, not the species overall population. The funding for Observers on fishing boats to verify the reports of numbers of seals, sea lions and cetaceans drowned in nets is not great enough to require Observers on all fishing boats. In general, NMFS has stated that reports of mortalities on boats without Observers total in the hundreds, but when Observers are present, thousands of marine mammals are documented as drowned. The influence of the fishing industry on issuance of these permits and formulation of regulations by the U.S. Congress has been significant. Between 1988 and 1994, all regulations on incidental kills were suspended prior to the development of present regulations under Sections 117 and 118, allowing the deaths of untold numbers of marine mammals. The present rules are far less stringent and allow higher mortality of whales, such as Humpback Whales, in ground fisheries. Regional Advisory Commissions assess each fishery to determine methods of reducing mortality. Fishing lines, nets and other apparatus have been responsible for the deaths of many endangered Northern Right Whales along Atlantic coasts in recent years, and far more regulations are needed under both the MMPA and the ESA to prevent these deaths. Importation and exportation of marine mammals is regulated by permit as well, and very few wild marine mammals have been allowed to be imported or exported under the MMPA. In addition, the MMPA prohibits the use of any port or harbor under U.S. jurisdiction for any purpose connected with the unlawful taking or importation of any marine mammal. It is prohibited to possess any unlawfully taken marine mammal, including parts or products, and it is prohibited to transport, purchase, sell, or offer to purchase or sell any marine mammal, including parts and products. Unfortunately, the importation of Polar Bear trophies from Canada has become easier through weakening of the MMPA. The Safari Club International, a powerful trophy hunting lobby, was successful in obtaining the latter weakening of the MMPA. Legislation 3

4 Lacey Act - Feather Trade The fashion of wearing bird feathers in womens hats began in the court of Louis XVI of France when Marie Antoinette appeared in a headdress with feather plumes (Doughty 1975). The fashion gradually spread in Europe and later in the colonies of the United States. By 1850, the business of killing birds for the millinery trade was practiced on a large scale, involving the deaths of hundreds of thousands of birds in many parts of the world. Egrets were a prime target, especially birds in breeding plumage when their most elegant plumage was displayed. Hunters killed adult birds, leaving the chicks to die in the scorching sun. Sometimes feathers were pulled from wounded birds, which were left to die of exposure or starvation. Herons and other wading birds along the east coast and in the Everglades were slaughtered in huge numbers. Songbirds were also popular, and entire birds were stuffed and exhibited on the hats of Victorian women. The plumage of terns and gulls was commonly used, and entire breeding colonies numbering more than 10,000 birds were killed. One New York woman negotiated in 1884 with a Parisian millinery to deliver 40,000 or more bird skins; she hired gunners to kill as many terns as possible at ten cents a skin (Doughty 1975). In order to stop this disastrous trade, as well as the trafficking in wild deer and other animals for the meat trade, the Lacey Act was passed in The Lacey Act enhanced existing laws by prohibiting interstate commerce in wildlife protected by state statute. Fines of $500 for "knowingly" transporting wildlife or products protected in another state, and $200 for "knowingly" receiving such articles, were at first assessed. Many states had protected their native birds from the feather slaughters and banned the sale of feathers, but bird hunters would transport the feathers to states where the birds were not native to sell them. The Lacey Act prohibited this interstate commerce in protected species. If, for example, egrets protected from killing by Alabama law were shot and their feathers shipped across state lines to New York, a Lacey Act violation would have been committed. The Act ended most of the commercial plume trade in Native American birds. The failure of some states to enact laws to protect their wildlife kept the Act from being 100 percent effective. The Migratory Bird Treaty Act of 1918 closed these loopholes by protecting all native migratory birds. The Lacey Act prohibits the import, export, transportation, sale, receipt, acquisition or purchase of fish, wildlife or plants that are taken, possessed, transported or sold in violation of any federal, state, tribal or foreign law. By the turn of the century, the feather trade had nearly eliminated egrets in the United States, and populations of numerous other bird species were approaching extinction. The National Audubon Society employed guards to protect the few remaining colonies in remote parts of Florida. Three of the wardens lost their lives protecting the birds, and if the Lacey Act of 1900 and accompanying state laws had not been enacted, many species of birds would almost certainly have become extinct. One of the first violations of the Act involved feather merchants. On Laysan Island in the Pacific, a shocking slaughter occurred. Hundreds of thousands of Laysan and Black-footed Albatross nested on this 2-mile-long island west of Hawaii. In 1909, a feather merchant hired 23 Japanese laborers to kill the nesting birds, which are tame and unwilling to leave their nests, even when attacked. Clumsy on land, the albatross need to run with wings spread, allowing the wind to buoy them before they can take flight. This makes them helpless in the face of men striking them with sticks and bats. During several months, 300,000 sea birds were killed, mainly to obtain their wings. The wings were cut off the living birds, leaving them to bleed to death; others were herded into a dry cistern and kept by the hundreds to starve to death in order to use up the fatty tissue next to the skin so that little or no cleaning was required to prepare the feathered skin (Hornaday 1913). A zoology professor from the College of Honolulu heard of this slaughter and wired federal authorities in Washington, since the island was part of U.S. territory, and the birds were protected. The merchants planned to take the bird feathers and wings to the Orient to sell. The Secretary of the Navy dispatched a cutter to Laysan, finding the carcasses, bones and three carloads of wings, feathers and skins. The Legislation 4

5 poachers were arrested and taken to Honolulu for trial (Hornaday 1913). The same year, President Theodore Roosevelt issued an Executive Order creating the Hawaiian Islands Reservation for Birds, including Laysan Island, which is now a national wildlife refuge. Unfortunately, the same feather merchant who committed the albatross slaughter, introduced rabbits to the island, which stripped the vegetation. The Laysan Rail later became extinct as a result of the rabbits and predation by rats introduced in the 1940s. The albatross have slowly recovered but, being long-lived and slow-reproducing, they are extremely vulnerable to any losses in their populations. The feather merchants fought state laws banning killing of migratory birds after passage of the Lacey Act, especially in East Coast cities, where the millinery trade was headquartered. The Millinery Association lobbied for the repeal of a New York law banning sale of native bird feathers and brought many witnesses to Albany to prove that enforcement of the law would cause thousands of people to lose their jobs (Hornaday 1913). In 1911, the New York State Legislature refused to repeal this law. The millinery workers did not, in fact, lose their jobs; hat decorations were merely changed from feathers to silk, ribbons and lace (Hornaday 1913). The problem remained, however, as exotic birds continued to be slaughtered for the millinery trade. Plume hunters combed the marshes of Central America, killed entire rookeries of egrets and herons, netted thousands of tiny hummingbirds in Brazil, and killed rare birds of paradise in New Guinea, and even Andean Condors in South America. In 1911, the feathers of 129,000 egrets; 13,598 herons; 20,698 birds of paradise; 41,090 hummingbirds; 9,464 eagles, condors and other birds of prey; and 9,472 other birds were sold at auction in London for the millinery trade (Hornaday 1913). The scope of the Lacey Act was later enlarged to cover foreign species. The Lacey Act applies to all wildlife, and the once rampant trade in deer, elk and other game species killed for the restaurant trade was also severely curtailed. More recently, the Lacey Act stopped much of the illegal killing of American Alligators for the reptile products trade prior to the passage of the Endangered Species Act. Sale of alligator skins in the Northeast from alligators killed illegally in the Everglades, for example, was a Lacey Act violation if the source of the skins could be proven. Amendments to the Act in 1981, which provided, among other things, the authority for warrantless search and seizure when violations are suspected, were designed to: 1) strengthen federal enforcement of laws to protect wildlife; and 2) improve relevant federal assistance to states and foreign governments. The Act is used to control the smuggling of and trade in illegally taken wildlife. Amendments raised maximum penalties under the Lacey Act to sentences of up to one year in jail and/or fines of up to $100,000 for misdemeanors, and five years imprisonment and/or fines up to $250,000 for felonies. Maximum fines for organizations in violation of the Lacey Act are $200,000 for misdemeanor violations and $500,000 for felonies. In addition, vehicles, aircraft, and equipment used in a violation, as well as illegally obtained fish, wildlife, and plants, may be subject to forfeiture. Persons who provide information on violations of the Lacey Act may be eligible for cash rewards. Humane and Healthful Transport Regulations The Humane and Healthful Transport of Wild Mammals and Birds into the United States are regulations authorized by Congress in 1981 under the Lacey Act. These regulations are extremely important in curtailing the high mortality and inhumane treatment animals receive on importation into the United States. Between 1980 and 1991, 348,318 cage birds arrived dead at U.S. ports of entry, according to USDA records. In some cases, entire shipments of birds had been so poorly crated, fed, and watered, that most of the birds were dead on arrival. CITES, to which the United States is a Party, requires that "any living specimen will be so prepared and shipped as to minimize the risk of injury, damage to health or cruel treatment." Until the United States finalized its humane transport regulations, little could be done to stop these high-mortality Legislation 5

6 shipments, either under the Live Animal Regulations of the International Air Transport Association, which are approved by CITES, or existing regulations of the Lacey Act, which were vaguely written. The first version of the humane transport regulations was finalized in 1987, but the USFWS decided to delay the effective date for six months. The Animal Welfare Institute and 10 other animal protective organizations filed suit in U.S. District Court in March 1988 and succeeded in obtaining an injunction requiring the USFWS to enforce the regulations immediately. Later in 1988, the Service began work to modify the regulations, which were not finalized until June Thus, a delay of 11 years took place between Congress' mandate to formulate these regulations and the finalization. The final regulations require spacious cages, adequate food and water, frequent inspection during airline flights for both birds and mammals, and other safeguards to prevent mortality. In 1993, numerous violations of these regulations resulted in court cases and high fines. Most of the violations involved crowding too many birds in each crate. Present regulations allow 25 psittacine birds per crate and 50 non-psittacine perching birds, and many importers attempt to flout the regulations. African Elephant Conservation Act The purpose of this Act, passed in 1988, is to provide additional protection for the African Elephant. The Act established an assistance program to the countries of Africa where Elephants are indigenous and provided for the establishment of an African Elephant Conservation Fund. In addition, the Act placed a moratorium on the importation of raw or worked ivory from African countries. The ban on U.S. imports was crucial in cutting off a major market in ivory and led the way to the listing of this species on Appendix I of CITES, which ended the legal trade worldwide in Migratory Bird Treaty Act Signed in 1918, the Migratory Bird Treaty Act (MBTA) between Great Britain on behalf of Canada and the United States prohibited the killing of non-game migratory birds. This Treaty represented decades of effort by conservationists attempting to stop the slaughter of native birds for sale in meat markets and the millinery trade. A patchwork of state laws, bolstered by the Lacey Act of 1900, had not been entirely successful in stopping the sale of protected wildlife, especially birds, in the United States. In addition, it was recognized that many of the birds killed in the United States were Canadian in origin. The continent's birds do not recognize national boundaries. Moreover, many species migrate between North America, Russia and Japan. Others winter in, or migrate through, Mexico. In 1936, Mexico became a signatory; in 1976, the Soviet Union; and in 1972, Japan. Sea birds and birds of prey were added to the MBTA in 1972 in a signed agreement with Mexico. All these Treaties are implemented under the Act. Except for those birds hunted during seasons established by the U.S. Secretary of the Interior, all migratory birds are protected by law from killing, capture, possession and sale. The USFWS, through its Law Enforcement Division, has interpreted the MBTA strictly. Some 65 species of birds can be legally hunted in the United States under regulations promulgated annually by the Department of the Interior. These birds include most species of ducks, geese, swans, wild pigeons, doves, Sandhill Cranes, American Woodcock, grouse, crows, Wild Turkey and quail. For the majority of the estimated 800 species of birds breeding in North America, the MBTA has allowed recovery from the disastrous free-for-all market hunting of the 19th and early 20th centuries that caused the extinctions of the Labrador Duck, Great Auk, Passenger Pigeon, Eskimo Curlew and Heath Hen, and the near extinction of many others. The Act also prohibits the capture of live birds for the cage bird trade. It is not legal to trap Cardinals, American Robins, Blue Jays or other songbirds, either for use as personal pets or for sale in pet stores. While most Legislation 6

7 Americans are aware of the protection of their native birds, an increasing number of problems have arisen involving immigrants from countries where birds are not protected. While knowledge of the U.S. Constitution and many aspects of U.S. history are required for citizenship exams, little or no knowledge of laws relating to wildlife and natural resources is required, nor is such information given to newly arrived immigrants. The regulations prohibit, except as allowed under specific conditions, the taking, possession, purchase, sale, or bartering of any migratory bird, including the feathers or other parts, nests, eggs or migratory bird products. "Taking" is defined as pursuing, hunting, shooting, shooting at, poisoning, wounding, killing, capturing, trapping, or collecting migratory birds. Migratory bird hunting regulations established by the USFWS allow, during designated seasons, the taking of ducks, geese, doves, rai, woodcock and some other species. In addition, permits may be granted for various noncommercial activities involving birds bred in captivity. Individuals and organizations may be fined up to $5,000 and $10,000 respectively, and those convicted may face up to six months imprisonment for misdemeanor violations of the Act. Felony violations may result in fines of up to $25,000 for individuals and $500,000 for organizations and up to two years imprisonment for those convicted. For the future, binding treaties with Latin American and Caribbean nations would protect North American birds wintering in those countries. This would be especially important in view of the decline in many of the continent's songbirds and shorebirds, partly attributable to deforestation on the birds' wintering grounds. In some Latin American countries, North American shorebirds are hunted for food. Eagle Protection Act Passed in 1940, this Act makes it illegal to import, export, or take Bald or Golden Eagles or to sell, purchase, or barter parts, nests, eggs or products made from the animals. "Taking" encompasses pursuing, shooting, shooting at, poisoning, wounding, killing, capturing, trapping, collecting, molesting, or disturbing. Permits may be granted for scientific, exhibitory, or Indian religious purposes. However, no permits may be issued for the import, export, or commercialization of eagles. Misdemeanor violations may result in fines of up to $100,000 for individuals and $200,000 for organizations, and one year imprisonment. For felony violations, fines of up to $250,000 and $500,000 for individuals and organizations, respectively, and two years imprisonment may result. Persons providing information leading to the conviction of violators of the Eagle Protection Act may be eligible for cash rewards. This legislation provides additional protection for the nation's two native eagle species, beyond the protection offered by the Migratory Bird Treaty Act and, in the case of the Bald Eagle, the Endangered Species Act. Numerous prosecutions have taken place of persons poisoning, shooting and otherwise harming these birds. Many sheep ranchers in the West, wrongly convinced that Golden Eagles are predators of lambs, have poisoned and shot hundreds of these birds. Bald Eagles have been shot for an active trade in Indian artifacts, such as feather headdresses. The Bald Eagle has been proposed for removal from the Endangered Species Act even though its populations remain at a fraction of original numbers and mortality in some areas is high. Should the Bald Eagle be removed from the Endangered Species Act, the Eagle Protection Act will remain a strong protection. Wild Bird Conservation Act The Wild Bird Conservation Act (WBCA) of 1992 is an extremely important law restricting the massive importation of wild birds into the United States for the cage bird trade. This law bans the importation into the United States of the majority of wild-caught birds. All species listed on the various appendices of CITES were banned from commercial importation one year after passage of the law. This effectively banned importation of wild parrots, Legislation 7

8 hummingbirds, birds of prey and many other birds on CITES. Regulations allow importation of birds for captive breeding under permit, and exempt species that are available only as captive-bred birds, such as canaries, cockatiels and budgerigars. Importation of birds bred in foreign countries is regulated. Zoos are exempt from the law's provisions, except that they must obtain permits for imports and provide documentation on species to be imported. The USFWS issues permits for all imported birds not specifically exempted or unlisted by CITES. The net result of the passage of this bill has been a drastic reduction in bird imports. (For more information on this law, see the Trade chapter.) NAFTA and WTO Two major trade treaties have been enacted that affect wildlife and the environment: the North American Free Trade Agreement (NAFTA) and the World Trade Organization, formed from the General Agreement on Tariffs and Trade (GATT). These international treaties establish panels to adjudicate conflicts over trade involving domestic legislation. NAFTA is a trade agreement negotiated with Canada and Mexico that, in principle, is intended to create a free market similar to the European Economic Union. GATT is a worldwide treaty that also encourages free trade, but through its World Trade Organization (WTO), a legal panel, it can require countries whose domestic legislation interferes with free trade to pay high fines, change the law or face retaliatory trade sanctions by other GATT nations. In 1991, for example, the Director-General of GATT appointed a panel to mediate a trade dispute between Mexico and the United States concerning the U.S. embargo on tuna products caught by setting lethal purse seine nets, which catch dolphins and drown untold thousands of these intelligent mammals. The Panel found that the Marine Mammal Protection Act was inconsistent with the treaty because domestic legislation could not interfere with free trade, a major component of this treaty. Since this was prior to the participation of the United States in WTO, U.S. government officials, after heavy lobbying from animal protection and environmental organizations, chose to block adoption of the Panel ruling. Now that the United States is a member of WTO, the Panel's decisions will have to be adhered to. It is conceivable that the Marine Mammal Protection Act, along with the Endangered Species Act, the Lacey Act, and other laws affecting the environment, might be seriously weakened if rulings by the WTO determine aspects of these laws to be anti-free trade. For example, the WTO ruled against the United States in a case involving the importation of shrimp from countries that did not use nets designed to exclude sea turtles to prevent their drowning. U.S. laws allow such an embargo, but WTO decided this regulation was against the principles of free trade and ordered the United States to change its laws to allow shrimp to enter no matter how it was caught. WTO and NAFTA threaten U.S. sovereignty and may negate important legislation protecting wildlife and the environment, opening up trade in endangered, threatened and mistreated animals. References Doughty, R.W Feather, Fashions and Bird Preservation. A Study in Nature Protection. University of California Press, Berkeley, CA. Hornaday, W.T Our Vanishing Wild Life. New York Zoological Society, New York. Legislation 8

9 Legislation The Endangered Species Act Legislation mandating a list of rare and endangered species was first enacted by Congress in The Endangered Species Act (ESA) was amended in 1969 when foreign species were added to the list. In 1973, a comprehensive model Act replaced the latter act, providing the most extensive safeguards of any legislation in the world to protect declining species. The ESA prohibits harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing and collecting listed species, unless specifically permitted, or attempting to engage in such activities within the United States or its territorial seas. Taking on the high seas is also prohibited, as are possessing, selling, delivering, carrying, transporting or shipping any species unlawfully taken within the United States, its territorial seas or on the high seas. It is also unlawful to deliver, receive, carry, transport or ship in interstate or foreign commerce in the course of commercial activity listed species, or to sell or offer listed species for sale in interstate or foreign commerce. The prohibitions apply to listed species, live and dead, their parts, and products made from their parts. Species are listed in two categories: Endangered and Threatened. Endangered is defined as any species which is in danger of extinction throughout all--or a significant portion--of its range. Prohibitions on activities that affect species may be less strict for animals listed in the Threatened category, but these are regulated by the U.S. Fish and Wildlife Service (USFWS) on a species-by-species basis. The ESA also allows listing species similar in appearance to those that are Endangered or Threatened, when doing so would provide additional protection for the listed species. Stiff penalties may be imposed for violations of the Endangered Species Act. Felonies may be punished with fines up to $50,000 and/or one year imprisonment for crimes involving endangered species, and $25,000 and/or six months imprisonment for crimes involving threatened species. Misdemeanors or civil penalties are punishable by fines up to $25,000 for crimes involving endangered species and $12,000 for crimes involving threatened species. A maximum of $1,000 can be assessed for unintentional violations. Rewards of up to $2,500 are paid for information leading to convictions. The ESA has been extremely effective in saving wildlife and plant species in danger of extinction. Contrary to some who have claimed that the Endangered Species Act has interfered with government and private projects, there have been very few conflicts, and on the whole, these have been resolved to the satisfaction of both parties. The Northern Spotted Owl controversy was resolved by government retraining of loggers and an increase in high technology jobs that more than compensated for jobs lost. Other arrangements have been made with paper companies to protect the endangered Red-cockaded Woodpecker and, in southern California, with developers to protect the Coachella Fringe-toed Lizard. As of August 2001, the USFWS had issued 500 permits for 360 "Habitat Conservation Plans. Many involve financial benefit to landowners. If landowners donate land where endangered species are found to a nonprofit organization or the federal government, the transaction is tax-deductible. In spite of economic interests who wish to weaken the ESA, the majority of Americans support the law and protection of endangered species (see Vanishing Species chapter). As of July 31, 2001, the Act listed 1,802 species of animals and plants as Endangered or Threatened. Of these, a total of 507 animal and plant species were native to the United States. The Act has been instrumental in saving native species, including endangered species such as the California condor, the Black-footed Ferret and the Bald Eagle, and Threatened species such as the Northern Spotted Owl. Programs of habitat protection, captive breeding, and other means of aiding in the recovery of listed species have prevented the extinction of hundreds of plant and animal species, many little known to the American public. The Hawaiian Islands have the largest number of listed species as a result of the destruction of native ecosystems and species by introduced animals and diseases, and clearing of forests Legislation 9

10 for agriculture and ranching. The Endangered Species Act has also been important in regulating the importation and exportation of exotic species listed. Foreign species listed totaled 555 animal and three plant species on July 31, These species include Leopards; Tigers; all species of rhinoceros; the great whales; the Andean Condor; Harpy Eagle; Imperial Parrot, among many other parrot species; Resplendent Quetzal; all sea turtles; numerous endangered tortoises; endangered caiman and crocodiles; iguanas; and fish, as well as seven endangered foreign invertebrates. Mammals comprise the majority of foreign species--251 Endangered and 17 Threatened (compared with only 63 Endangered and 9 Threatened U.S. species). These listings have prevented importation of many endangered species and their products. Prior to importation of any listed species, or part thereof, a permit must be obtained from the USFWS. Permits are not granted for commercial exploitation of non-captive-bred endangered species. Commercial importation of Leopard, Tiger or Ocelot skins, for example, is not allowed under the ESA. In spite of the severe penalties that can be exacted under the law, including jail sentences, illegal imports continue, and thousands are confiscated by USFWS agents each year. Many are tourist purchases, such as stuffed sea turtles, fur coats, and taxidermy specimens. Others are commercial items, such as reptile skins and, recently, products for the Asian medicine trade--tiger bones and powdered rhinoceros horn. For zoos, importation of live wild-caught specimens of endangered species requires ESA permits. If the species is listed on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which lists many of the same species on Appendix I (the category for species threatened with extinction), both import permits from the U.S. CITES authorities and export permits from foreign CITES authorities are required. The USFWS has required rigid proof that importation of listed species would not result in declines in wild populations of that species, except for emergency situations where wild populations are under extreme threats such as uncontrolled poaching or habitat destruction. The combined burden of proof needed for ESA and CITES has been essential in preventing needless removal from the wild of endangered species. With the proliferation of wild animal parks, small zoos, and animals used in entertainment, the pressure to weaken the ESA to allow importation of endangered species has increased. One wildlife dealer wrote an editorial in a trade journal, Pet Business (March 1995), that encouraged weakening the ESA: "There is no logical reason for our government to pay hundreds of thousands of dollars, if not millions, a year to control non-indigenous endangered species." Without strict regulations under the ESA, however, the Act will lose its value in preventing commercialism of endangered species around the world. Convention on International Trade in Endangered Species of Wild Fauna and Flora The Endangered Species Act of 1973 also implements the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, known as CITES. The purpose of CITES is to prevent international trade from contributing to the endangerment of any species. To achieve this, CITES establishes a system of trade controls that vary in their restrictiveness, depending upon the degree of jeopardy each species faces. The trade controls imposed by CITES apply only to the species listed on three Appendices to the Treaty. The species listed on Appendix I of the Treaty receive the most protection; they cannot be imported or exported for primarily commercial purposes. To be traded for other purposes, such as zoological or scientific imports, a specimen of any species listed in Appendix I must be accompanied by an export permit from the exporting country and an import permit from the importing country. Species on Appendix II of CITES, which are the vast majority of all species protected by the Treaty, can be traded for both commercial and noncommercial purposes. However, they must be accompanied by an export permit, which may be issued only upon the finding that the export of the specimens concerned will not be detrimental to the survival of the species. This requirement allows countries to control trade in those species listed on Appendix II. Legislation 10

11 Member countries may unilaterally list species on Appendix III that are protected within the countries' borders. The purpose of Appendix III is to obtain international cooperation in the enforcement of national conservation laws. Countries importing specimens of a species listed on Appendix III--from the country responsible for including the species on the Appendix--must insist upon presentation of a permit showing that the specimens were lawfully acquired and exported from that country. Marine Mammal Protection Act Prior to passage of the Marine Mammal Protection Act (MMPA), millions of dolphins were drowned in purse seine nets set for tuna. The MMPA, enacted in 1972, established a moratorium on the taking and importation of marine mammals except under permit. The authority for protecting these animals is divided between two departments. The U.S. Department of the Interiors Fish and Wildlife Service (USFWS) is responsible for management authority for the Sea Otter, Walrus, Polar Bear and Dugong, among others; while the U.S. Department of Commerces National Marine Fisheries Service (NMFS) has authority over cetaceans and seals. Under the MMPA, it is unlawful to harass, hunt, capture or kill any marine mammal on the high seas, in water or on lands under the jurisdiction of the United States except under permit. The MMPA requires a permit prior to capturing marine mammals in all waters worldwide for public display or scientific research. These permits are issued by the USFWS or the NMFS under strict regulations. Once in captivity, the animals are under the jurisdiction of the Animal Welfare Act, which is enforced by the U.S. Department of Agriculture (USDA). Fishing vessels must apply for permits if their operations result in incidental kills; permits can be issued only if the killing, such as drowning in fishing nets, would not cause declines in wild populations below potential biological removal levels, defined as the largest number that can be killed in optimum sustainable populations. This means that populations of a particular area, such as the California Sea Lions, are used as a basis for permits, not the species overall population. The funding for Observers on fishing boats to verify the reports of numbers of seals, sea lions and cetaceans drowned in nets is not great enough to require Observers on all fishing boats. In general, NMFS has stated that reports of mortalities on boats without Observers total in the hundreds, but when Observers are present, thousands of marine mammals are documented as drowned. The influence of the fishing industry on issuance of these permits and formulation of regulations by the U.S. Congress has been significant. Between 1988 and 1994, all regulations on incidental kills were suspended prior to the development of present regulations under Sections 117 and 118, allowing the deaths of untold numbers of marine mammals. The present rules are far less stringent and allow higher mortality of whales, such as Humpback Whales, in ground fisheries. Regional Advisory Commissions assess each fishery to determine methods of reducing mortality. Fishing lines, nets and other apparatus have been responsible for the deaths of many endangered Northern Right Whales along Atlantic coasts in recent years, and far more regulations are needed under both the MMPA and the ESA to prevent these deaths. Importation and exportation of marine mammals is regulated by permit as well, and very few wild marine mammals have been allowed to be imported or exported under the MMPA. In addition, the MMPA prohibits the use of any port or harbor under U.S. jurisdiction for any purpose connected with the unlawful taking or importation of any marine mammal. It is prohibited to possess any unlawfully taken marine mammal, including parts or products, and it is prohibited to transport, purchase, sell, or offer to purchase or sell any marine mammal, including parts and products. Unfortunately, the importation of Polar Bear trophies from Canada has become easier through weakening of the MMPA. The Safari Club International, a powerful trophy hunting lobby, was successful in obtaining the latter weakening of the MMPA. Legislation 11

12 Lacey Act - Feather Trade The fashion of wearing bird feathers in womens hats began in the court of Louis XVI of France when Marie Antoinette appeared in a headdress with feather plumes (Doughty 1975). The fashion gradually spread in Europe and later in the colonies of the United States. By 1850, the business of killing birds for the millinery trade was practiced on a large scale, involving the deaths of hundreds of thousands of birds in many parts of the world. Egrets were a prime target, especially birds in breeding plumage when their most elegant plumage was displayed. Hunters killed adult birds, leaving the chicks to die in the scorching sun. Sometimes feathers were pulled from wounded birds, which were left to die of exposure or starvation. Herons and other wading birds along the east coast and in the Everglades were slaughtered in huge numbers. Songbirds were also popular, and entire birds were stuffed and exhibited on the hats of Victorian women. The plumage of terns and gulls was commonly used, and entire breeding colonies numbering more than 10,000 birds were killed. One New York woman negotiated in 1884 with a Parisian millinery to deliver 40,000 or more bird skins; she hired gunners to kill as many terns as possible at ten cents a skin (Doughty 1975). In order to stop this disastrous trade, as well as the trafficking in wild deer and other animals for the meat trade, the Lacey Act was passed in The Lacey Act enhanced existing laws by prohibiting interstate commerce in wildlife protected by state statute. Fines of $500 for "knowingly" transporting wildlife or products protected in another state, and $200 for "knowingly" receiving such articles, were at first assessed. Many states had protected their native birds from the feather slaughters and banned the sale of feathers, but bird hunters would transport the feathers to states where the birds were not native to sell them. The Lacey Act prohibited this interstate commerce in protected species. If, for example, egrets protected from killing by Alabama law were shot and their feathers shipped across state lines to New York, a Lacey Act violation would have been committed. The Act ended most of the commercial plume trade in Native American birds. The failure of some states to enact laws to protect their wildlife kept the Act from being 100 percent effective. The Migratory Bird Treaty Act of 1918 closed these loopholes by protecting all native migratory birds. The Lacey Act prohibits the import, export, transportation, sale, receipt, acquisition or purchase of fish, wildlife or plants that are taken, possessed, transported or sold in violation of any federal, state, tribal or foreign law. By the turn of the century, the feather trade had nearly eliminated egrets in the United States, and populations of numerous other bird species were approaching extinction. The National Audubon Society employed guards to protect the few remaining colonies in remote parts of Florida. Three of the wardens lost their lives protecting the birds, and if the Lacey Act of 1900 and accompanying state laws had not been enacted, many species of birds would almost certainly have become extinct. One of the first violations of the Act involved feather merchants. On Laysan Island in the Pacific, a shocking slaughter occurred. Hundreds of thousands of Laysan and Black-footed Albatross nested on this 2-mile-long island west of Hawaii. In 1909, a feather merchant hired 23 Japanese laborers to kill the nesting birds, which are tame and unwilling to leave their nests, even when attacked. Clumsy on land, the albatross need to run with wings spread, allowing the wind to buoy them before they can take flight. This makes them helpless in the face of men striking them with sticks and bats. During several months, 300,000 sea birds were killed, mainly to obtain their wings. The wings were cut off the living birds, leaving them to bleed to death; others were herded into a dry cistern and kept by the hundreds to starve to death in order to use up the fatty tissue next to the skin so that little or no cleaning was required to prepare the feathered skin (Hornaday 1913). A zoology professor from the College of Honolulu heard of this slaughter and wired federal authorities in Washington, since the island was part of U.S. territory, and the birds were protected. The merchants planned to take the bird feathers and wings to the Orient to sell. The Secretary of the Navy dispatched a cutter to Laysan, finding the carcasses, bones and three carloads of wings, feathers and skins. The Legislation 12