Published: March 23, 2021
NEW YORK CITY – A federal court in New York on March 12 upheld the state’s ban on sales and in-store displays of elephant and mammoth ivory and rhino horn – rejecting claims that the ban was unconstitutional. The Art and Antique Dealers League of America and the National Antique and Art Dealers Association of America challenged the law in 2018.
The Humane Society of the United States, Center for Biological Diversity, Natural Resources Defense Council and Wildlife Conservation Society intervened in the lawsuit on behalf of the state of New York to help defend the law, which closed the largest ivory market in the United States. Many of these groups supported the adoption of the State Ivory Law (ECL § 11-0535-A) in 2014.
Alan Sash, partner at the New York City-based law firm of McLaughlin & Stern, LLP, represents the plaintiffs in the New York ivory case. “We are disappointed with the decision and plan to appeal,” he said. “Antique ivory is worth fighting for. These antiques have significant social, cultural and historic value. They’re artifacts from a bygone era that can’t be replaced. The legal issues relating to antique ivory are novel and warrant review by the appellate court.”
The two trade groups of New York-based art and antiques dealers brought claims against New York State officials in the federal court for the Southern District of New York, seeking to invalidate a 2014 New York law that opens dealers up to criminal penalties for buying and selling antique ivory. On March 21, 2019, Judge Lorna Schofield of the Southern District of New York permitted the trade groups’ complaint to proceed.
The sale of ivory was largely banned by Congress through 1973 and 1988 amendments to the Endangered Species Act, but the federal law contains exemptions for antiques and non-antique objects made up of less than 50 percent ivory. The challenged New York law, however, had narrower exemption provisions, and the dealers claimed that the law prohibits them from selling and displaying hundreds of thousands of dollars’ worth of antiques.
The “ECL” regulates the intrastate sale of ivory, prohibiting commerce involving antiques made up of 20 percent ivory or more – a lower threshold than even the most restrictive portions of the Endangered Species Act. Persons found in violation of the ECL face fines of up to two times the value of the object or $3,000, whichever is greater, for the first offense, and three times the value of the object or $6,000, whichever is greater, for subsequent offenses.
The dealers argued that the ECL is preempted by the Endangered Species Act, which does not have any percentage limitation for antiques, and contains exemptions for non-antique objects with de minimis amounts of ivory (defined as less than 50 percent ivory). Further, the dealers contended that “one can comply with federal law when it comes to the interstate or international sale of ivory and, at the same time, risk criminal prosecution and civil penalties for selling the very same item in intrastate commerce under state law.” Therefore, “under this scenario, state law must yield to federal law.”
Groups supporting the ban celebrated the court’s decision. “We are thrilled that the court unequivocally upheld the constitutionality of this law and New York’s right to legislate for the elimination of the illegal ivory trade and the preservation of wildlife New Yorkers care very deeply about,” said Rebecca Cary, a senior staff attorney for the Humane Society of the United States.
According to the Humane Society, demand for elephant ivory continues to fuel elephant poaching. The Wildlife Conservation Society estimates that 96 elephants are killed each day in Africa, translating into one elephant death every 15 minutes and a 76 percent population decline since 2002.
The United States contributes to elephant poaching as a significant consumer of ivory. Prior to enacting the State Ivory Law, New York was home to the largest ivory market in the nation, followed by California. In 2012, the New York State Department of Environmental Conservation, in conjunction with the US Fish and Wildlife Service, seized more than $2 million worth of elephant ivory in New York City.
In addition to New York, state ivory bans have been enacted in California, Hawaii, New Jersey, Oregon, Washington and Minnesota.
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