BILL ANALYSIS Ó
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: AB 96 Hearing Date: June 23,
2015
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|Author: |Atkins | | |
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|Version: |June 17, 2015 Amended |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Katharine Moore |
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Subject: Animal parts and products: importation or sale of
ivory and rhinoceros horn.
BACKGROUND AND EXISTING LAW
Existing federal laws governing the wildlife importation include
the Lacey Act, the Endangered Species Act (ESA) and the African
Elephant Conservation Act. The Lacey Act makes it a federal
offense to violate US state, tribal or foreign wildlife trade
statutes, treaties and regulations, and prohibits the import or
sale of wildlife taken in violation of any federal, state,
tribal of foreign wildlife law, among other provisions. The ESA
seeks to conserve endangered and threatened species, and
prohibits a person from importing or obtaining any species that
is listed as threatened or endangered. The ESA implements the
import and export regulations for wildlife noted in the text of
the Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES, described below). The African
Elephant Conservation Act restricts the trade in African
elephants and was motivated, in part, to help reduce poaching of
African elephant populations.
Existing law makes it illegal to import into California for
commercial purposes with intent to sell, or to sell within the
state, the dead body of any elephant or any part of it.
Violations are punishable as a misdemeanor and are subject to a
fine of between $1,000 and $5,000, or imprisonment in county
jail for not more than six months, or both the fine and
imprisonment, for each violation.
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Existing law provides in uncodified language that no provision
of law shall prohibit the possession with intent to sell, or
sale of the dead body of any elephant on or after June 1, 1977,
or any part of or product made from it, or the possession with
intent to sell or sale of any such item on or after such date
which was imported prior to January 1, 1977.
Existing law further provides that the burden of proof to
demonstrate that the items described above were imported prior
to January 1, 1977 shall be placed upon the defendant.
The US is the second largest market for ivory, such as from
elephant tusks, in the world after China. California is the
second largest state market after New York. (Both New York and
New Jersey enacted new laws in 2014 banning the ivory trade.)
According to the US Fish and Wildlife Service (USFWS), a
substantial amount of elephant ivory is illegally imported into
the US domestic market. The USFWS acknowledges it is extremely
difficult to differentiate legally acquired ivory from ivory
derived from elephant poaching. According to the USFWS, criminal
investigations and anti-smuggling efforts have clearly shown
that legal ivory trade can serve as a cover for illegal trade.
As one example, USFWS and state officers seized more than two
million dollars of illegal elephant ivory from two New York City
retail stores in 2012. The USFWS advises that by significantly
restricting ivory trade in the United States, it will be more
difficult to launder illegal ivory into the market and thus
reduce the threat of poaching to threatened elephant
populations.
Previous surveys identified Los Angeles and San Francisco as the
US cities with the highest proportions of potentially illegal
ivory sales, and the largest ivory markets overall, behind New
York City. A 2014 study of the two cities by the Natural
Resources Defense Council found over 1,250 ivory items offered
for sale by 107 vendors, including 77 vendors in Los Angeles and
30 vendors in San Francisco. Between 77% and 90% of the ivory
observed was determined in all likelihood to be illegal in Los
Angeles under California law and a corresponding 47% to 60% was
likely to also be illegal under federal law. In San Francisco,
the results were similar. The study also found that the
incidence of recently manufactured ivory had roughly doubled to
50% from 2006 to 2014.
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Throughout the world, most elephant populations are in serious
decline and are classified as threatened, endangered or
critically endangered. Illegal poaching for ivory is a
significant contributor to the decline. Two species of
elephants - the African and Asian elephants - are generally
recognized, and male African elephants are the largest
terrestrial animal alive today (reaching a height of 13 feet and
a weight of over 15,000 pounds). The current population of
elephants in Africa is uncertain. The USFWS estimates the
population at about 600,000 which is a decline of about 50%
since the 1970s. The population of Asian elephants is thought
to be less than 40,000 which also represents a significant
decline over the last 100 years.
According to a study published in the August issue of the
Proceedings of the National Academy of Sciences - a
highly-regarded, peer-reviewed scientific journal - an estimated
100,000 African elephants were illegally slaughtered from 2010 -
2012. Given these levels of poaching, some scientists believe
the population estimate today is lower than the 600,000 noted
above.
Elephants live in matriarchal family groups, can live up to 70
years in the wild and are known to be intelligent animals -
similar to primates and whales. They use multiple modes of
communication, appear to have self-awareness and exhibit
emotional responses to sick, dying and dead elephants.
The Rhinocerotidae family includes five species of rhinoceros.
Two species - the White and Black Rhinoceros - are native to
Africa and three species - the Indian, Javan and Sumatran - are
native to South Asia. One of the two subspecies of White
Rhinoceros is endangered and Black Rhinoceros populations are
thought to be about 10% of historic levels. The three Asian
species are all endangered. Some Asian subspecies have already
gone extinct and one subspecies of the Javan Rhinoceros is now
only a small population of 35 - 40 animals in West Java.
Reports suggest up to 1000 rhinos are killed per year for their
horns which are used for traditional medicines in some cultures.
PROPOSED LAW
This bill would prohibit the importation or sale of ivory or
rhinoceros horn in California. Specifically, this bill would:
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1) Prohibit a person from purchasing, selling, offering for
sale, possessing with intent to sell, or importing with
intent to sell, ivory or rhinoceros horn, with specified
exceptions. Ivory means a tooth or tusk from a species of
elephant, hippopotamus, mammoth, mastodon, walrus, warthog,
whale, or narwhal, whether raw or worked, as specified.
2) Exempt from the above prohibition are all of the
following:
a) State or federal employees undertaking a law
enforcement activity.
b) Activities authorized by federal law, as
specified.
c) Ivory or rhinoceros horn that is part of a
musical instrument and is less than 20 percent by
volume of the instrument, if the owner or seller
provides historical documentation that the item was
manufactured no later than 1975.
d) Ivory or rhinoceros horn that is part of a
bona fide antique and is less than 5 percent by volume
of the antique, if the owner or seller provides
historical documentation that the antique is not less
than 100 years old.
e) The purchase, sale, offer for sale, possession
with intent to sell or import with intent to sell
ivory or rhinoceros horn for educational or scientific
purposes, as specified, including that the item was
legally acquired before January 1, 1991 and was not
transferred for financial gain or profit after July 1,
2016.
1) Create a presumption that ivory or rhinoceros horn
possessed in a retail or wholesale outlet commonly used for
buying or selling of similar items is evidence of
possession with intent to sell, as specified.
2) Authorize criminal penalties for a violation of this
bill as follows:
a) For a first conviction involving ivory or
rhinoceros horn valued at $250 or less, the offense
shall be a misdemeanor punishable by a fine of between
$1,000 and $10,000, imprisonment in county jail for
not more than 30 days, or both the fine and
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imprisonment;
b) For a first conviction involving ivory or
rhinoceros horn valued at more than $250, the offense
shall be a misdemeanor punishable by a fine of between
$5,000 and $40,000, imprisonment in county jail for
not more than one year, or both the fine and
imprisonment;
c) For a second or subsequent conviction
involving ivory or rhinoceros horn valued at $250 or
less, the offense shall be a misdemeanor punishable by
a fine of between $5,000 and $40,000, imprisonment in
county jail for not more than one year, or both the
fine and imprisonment; and
d) For a second or subsequent conviction
involving ivory or rhinoceros horn valued at more than
$250, the offense shall be a misdemeanor punishable by
a fine of between $10,000 and $50,000 or an amount
equal to two times the total value of the ivory or
rhinoceros horn, whichever is greater, imprisonment in
county jail for not more than one year, or both the
fine and imprisonment.
3) Authorize, in addition to any criminal penalties, an
administrative penalty of up to $10,000. The penalty may be
imposed by the Department of Fish and Wildlife
(department), subject to specified procedures, including
the right to request a hearing, and to petition for court
review of a final administrative order. Administrative
penalties shall be used for law enforcement purposes by the
department.
4) Authorize the payment by the court of a reward of up to
$500 to any person providing information leading to a
conviction or entry of judgment, as specified.
5) Provide that upon conviction or other entry of judgment,
any seized ivory or rhinoceros horn shall be forfeited and
maintained by the department for educational or training
purposes, donated for education or research, or destroyed,
as specified.
6) Repeal existing provisions of law allowing possession of
elephant parts possessed or imported prior to June 1, 1977.
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7) Provide that provisions of this bill are severable.
8) Make legislative findings and declarations regarding
the threats to elephants and rhinoceros of illegal
poaching and wildlife trafficking, and actions being taken
at the international, federal and state levels to protect
these species from extinction.
9) Define various terms for purposes of this bill.
10) Delay the operative date of the bill until July 1,
2016.
ARGUMENTS IN SUPPORT
According to the author, "[o]ne of the most effective ways to
protect elephants and rhinos from extinction is to eliminate the
illegal market for poached ivory and rhino horn by prohibiting
their purchase and sale."
"Growing demand for elephant ivory and rhinoceros horn is
causing prices to soar for these illegal commodities and the
black market for poachers trading in these illegal goods to
thrive."
"On average, 96 elephants per day are brutally killed for their
ivory. [?] This type of species loss is unsustainable and
African elephants are now being slaughtered faster than they are
being born - which will eventually result in their extinction."
"Protecting and preserving the elephant and rhinoceros
populations is a key national and international imperative.
Elephants are known as a "keystone" species because their
presence is critical to habitat management and environmental
balance."
"The sale of elephant ivory is also a known source of financing
for terrorist groups such as Boko Haram, which was responsible
for the kidnapping of 300 Nigerian school girls, among other
heinous acts."
"California and the federal government have existing laws
banning the commercial sale of ivory and these laws have been on
the books since 1977 and 1989."
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"However, both the federal and state laws have grandfathering
provisions that allow for the sale of "antique ivory" acquired
prior to the enactment of the ban. These grandfathering
provisions make current law nearly impossible to enforce as
determining the age of ivory based on observation alone is very
difficult."
ARGUMENTS IN OPPOSITION
The National Rifle Association (NRA) writing in opposition
supports efforts to "stop poaching and the illegal trade" but
argue that "AB 96 would not contribute to that goal." The NRA
argues that collectors "have legally purchased firearms that
incorporate ivory features for decades. These include some of
American's most historically significant and collectible guns."
The NRA continues that exceptions in AB 96 for antiques do not
adequately address their concerns because owners may not have
the documentation to prove that an antique gun is more than 100
years old. In addition, the exception for bona fide antiques
applies only to antiques with less than a 5% ivory content which
would exclude some weapons that were lawfully purchased prior to
the ban. The NRA argues that this constitutes a taking of
property.
Numerous individual scrimshaw artists, collectors, and dealers
wrote in opposition to AB 96. (Scrimshaw is the name given to
scrollwork, engravings, and carvings done in bone or ivory.
Traditionally it refers to the handiwork created by whalers made
from harvested whales, although other sources of ivory or bone
may also be used.) Reasons cited to oppose vary, and include
loss of livelihood, a taking of property, mammoths and mastodons
are already extinct, existing federal and state restrictions on
the ivory trade are sufficient, existing alternative domestic
ivory stockpiles are sufficient and do not present a threat to
any species, scrimshaw is an uniquely American art form, fossil
ivory and new ivory are easily distinguishable, and other
countries are more responsible for the illegal ivory trade,
among others.
COMMENTS
Closing loopholes in existing law . This bill addresses
loopholes in existing law that make enforcing the ban on the
import and sale of ivory difficult. It does this by repealing
the exemption for ivory possessed or imported prior to 1977,
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although limited exceptions for musical instruments and
antiques, as specified, are retained. As noted above, the
currently legal trade in ivory has been shown to be a cover for
the illegal trade. This bill also codifies the provision
placing the burden of proof on the defendant to prove the
limited exception for musical instruments and antiques applies.
Additionally, the bill adds explicit protection for rhinoceros
and increases penalties for violations.
Fossil ivory is not readily-distinguishable from new ivory .
Fossil ivory is visually indistinguishable in many instances
from elephant ivory and therefore creates an avenue for black
market ivory into California. According to the author, articles
made from elephant ivory can be altered to resemble mammoth
ivory. The articles are then labeled as "mammoth ivory" or
similar to escape detection. While a trained person may be able
to distinguish between mammoth ivory and elephant ivory, most
enforcement agents do not have the appropriate skills to do so.
The USFWS' online ivory identification guide cautions that "an
examination of the carved ivory object by a trained scientist is
still necessary to obtain and provide identification of the
species source."
Other states' actions . Both New York and New Jersey enacted new
laws in 2014 banning the ivory trade. Other states currently
considering adoption of new stronger laws prohibiting commercial
trade in ivory include Hawaii, Florida, Connecticut and
Massachusetts.
The illegal ivory trade may be a source of funding for terrorist
activities . Involvement of transnational organized crime
operations in the illicit ivory trade has been documented by
international authorities. In addition, numerous news outlets
have reported on suspicions that ivory poaching is becoming a
growing source of funding for several terrorist organizations,
including the Janjaweed militia in Sudan, the Lord's Resistance
Army in Uganda, and, possibly, terrorist groups in Somalia.
This bill does not appear to constitute a taking . The US
Supreme Court has disagreed that a law similar to this bill
amounts to a taking. The only US Supreme Court case directly
addressing a takings challenge to wildlife protections laws is
Andrus v. Allard, 444 U.S. 51 (1979) which held that a law
prohibiting the commercial sale of legally acquired bird parts
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did not amount to a taking because, while the ban foreclosed the
most profitable use of the bird parts (sales), it still allowed
other economically beneficial uses, such as possession,
transport, donation and exhibition, as does this bill.
Additionally, AB 96 includes a delayed effective date which
would allow, for example, guns with ivory that do not meet the
exceptions to be sold until June 2016. The recent shark fin ban
bill (AB 376, Fong, c. 524, Statutes of 2011) contained a
similar provision to allow restaurants to sell their shark fin
stocks. That said, there will be economic disruption to those
who previously benefited from the ivory and rhinoceros horn
trade in California.
Status of Federal efforts . In addition to animal listings under
the federal ESA, including action as recent as the 2014
threatened listing of the southern population of the White
Rhinoceros, President Obama issued an Executive Order committing
the U.S. to step up efforts to combat wildlife trafficking,
including illegal commercial trade in elephant ivory in July
2013. The USFWS is promulgating new regulations to implement a
more complete ban on commercial trade in elephant ivory. The
regulations, which are a work in progress, generally ban all
commercial imports of African elephant ivory, with certain
specified exceptions; permit Asian elephant ivory to be imported
under limited circumstances with proper documentation; prohibit
the export of elephant ivory from the U.S. with certain
specified exceptions; and make it illegal to engage in
interstate or intrastate sales of ivory unless certain specified
exceptions apply.
International Efforts: The Convention on International Trade in
Endangered Species of Wild Fauna and Flora, known as CITES, is
an international voluntary agreement between governments, the
aim of which is to ensure that international trade in specimens
of wild animals and plants does not threaten their survival. The
United States is a signatory to the agreement, which today has
180 participating parties. Importation of ivory for commercial
purposes has been banned under CITES since 1990. Wildlife
species of concern are listed under CITES in either Appendix I,
II, or III. Species listed in Appendix I are those species that
are the most endangered and threatened with extinction.
Commercial trade in these species is generally prohibited, with
certain exceptions. Appendix II lists species that may become
threatened with extinction unless trade is closely controlled.
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Trade in Appendix II species may be authorized pursuant to an
export permit. Asian elephants have been listed in Appendix I
since 1975; African elephants were listed under Appendix II in
1977, moved to Appendix I in 1990, and today are listed under
either Appendix I or Appendix II, depending on the country and
subpopulation. Rhinoceros are generally listed under Appendix I,
although some Southern White Rhinoceros subpopulations are
listed under Appendix II.
According to a recent report of CITES, over 20,000 elephants
were poached in Africa alone in 2013. Poaching remains
alarmingly high and continues to far exceed the natural elephant
population growth rates. The number of elephants poached
exceeded 20,000 for each year from 2011 to 2013. A 2013 CITES
report on rhinoceros similarly found that illegal trade in
rhinoceros horn continues to be one of the most structured
criminal activities that CITES must address currently. CITES
also reports that there was a clear increase in large seizures
of ivory in Africa, indicative of transnational organized crime
involvement in the illicit ivory trade, and clear indications
that organized criminal groups are also involved in the poaching
and illegal trade of rhinoceros horn. Since 2010, losses of
rhinoceros in South Africa from poaching have been increasing.
While overall population numbers there had not declined as of
2013, the report warned some populations could go into decline
if the illegal killing escalates. The report concludes that
rhinoceros are facing a crisis that threatens to reverse the
conservation achievements of the last two decades if not
addressed.
SUPPORT
Humane Society of the United States (sponsor)
Natural Resources Defense Council (sponsor)
East Bay Zoological Society (sponsor)
American Federation of State, County and Municipal Employees
American Society for the Prevention of Cruelty to Animals
Animal Legal Defense Fund
Aquarium of the Bay
Asian Pacific Alliance for Wildlife & Sustainability
Animals Asia
Big Life Foundation
Bornean Sun Bear Conservation Centre
Budongo Conservation Field Station
California Academy of Sciences
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California Association of Zoos and Aquariums
California Commission on Asian Pacific Islander American Affairs
California District Attorneys Association
California League of Conservation Voters
California Wolf Center
City of Los Angeles
City of Oakland
United States Representatives Davis, Honda, Garamendi, Huffman,
Lowenthal, Lieu, DeSaulnier
Defenders of Wildlife
Enough Project
Earth Island Institute
Humane Society Veterinary Medical Association
International Fund for Animal Welfare
Los Angeles Mayor Eric Garcetti
Lubee Bat Conservancy
March for Elephants
Monterey Bay Aquarium
The Nature Conservancy
New Nature Foundation
Performing Animal Welfare Society
San Francisco Board of Supervisors
San Francisco Commission of Animal Control and Welfare
San Francisco SCPA
Sea World San Diego
Sierra Club California
WildAid
Wildlife Alive
Wildlife Conservation Society
United States Senator Diane Feinstein
Relief International
Resolve LRA Crisis Initiative
Uganda Carnivore Program
Utopia Scientific
Ewaso Lions
Two Individuals
OPPOSITION
California Rifle and Pistol Association
California Sportsman's Lobby Inc.
Crossroads of the West Gun Shows
Ivory Educational Institute
National Rifle Association
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National Shooting Sports Foundation, Inc.
Outdoor Sportsmen's Coalition of California
Robert Cullen, Mayor, King City
Safari Club International
Scrimshaw Gallery
Ten Individuals
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