Excerpts From Final brief – Is California’s Law Banning All Ivory Trade (AB 96) Constitutional?

By: Godfrey Harris. Managing Director, Ivory Education Institute

The statute is actually the product of various Western animal rights organizations who use their financial resources to influence how African nations should treat their wildlife resources.

The legislature in California has no business in abetting this repellant racism and colonialism. It is attempting to do in the 21st century what Rhodes, Leopold, Bismarck, Livington and other 19th century colonialists did when they insisted that white men had a burden to bring commerce, civilization and Christianity to Africa.

The likely result of this ill-informed law will be to accomplish the exact opposite of what it intends. By limiting ivory sales without dealing with demand, ivory prices will increase and act as an even greater incentive for poachers to carry out their criminal activities.

While it may be true that other states have largely copied and enacted the laws based on the California statute (Res. Brf. p. 28), this speaks more to the financial and lobbying powers of the organizations promoting these laws than to the benefits that the laws themselves provide.

The Respondents deride the argument that the statute is vague to the point of denying the Appellant due process. However, if a person cannot be certain of whether he or she is committing an offense in the ordinary course of dealing with his or her property, then the law regulating such conduct is unconstitutionally impaired.

If the ivory in an object is from an elephant, the sale of such an object may be illegal; but if the ivory in the same object originates from a boar’s tusk, there is no violation of the law. A defendant accused of an illegal ivory sale may not be sure if the ivory in question is or is not from a boar and neither can the authorities acting for the State.

Further, the federal rules applicable to elephant ivory sales are convoluted, contradictory and obscure, such that a California citizen simply cannot be certain whether any particular act in California involving an object containing ivory is exempt, authorized or permitted under the various federal statutes and treaties which may apply.

If one is accused in California of the criminal sale of ivory, no ordinary citizen who sells that ivory object can hope to know what is or is not expressly authorized by federal law, or permitted or exempted by federal law. Federal laws with regard to ivory include the African Elephant Conservation Act, the Endangered Species Act, the Marine Mammal Protection Act, the Convention on International Trade in Endangered Species (the CITES Treaty) and various other statutes and regulations.

While the nuance of each law is different, clearly federal law with regard to the various exemptions it permits, including the de minimus, the antique and the musical instrument exceptions, differ from the California law. Further, because federal law does not prohibit mastodon, mammoth, warthog or boar ivory, and treats walrus ivory with various exceptions, California’s law becomes a confusing, convoluted, mysterious mess.

Moreover, California law treats all types of ivory bearing animals as “endangered,” even mastodon and mammoth. It is neither reasonable nor rational for the California legislature to determine that these animals, extinct for tens of thousands of years, are endangered.

Even if [the] structural defects in the statue are disregarded, surely the basis of passing the statute in the first place is suspect. The Respondents [justify] the statute in … Sections 1 and 4 – 6 of Statute 2015c 457 (AB96). Without the slightest evidentiary support, it is said that 96 elephants per day are killed in Africa.

This figure is disputed by Appellant, particularly since authorities in the United Kingdom say that only about half of this number perish a day. But neither figure distinguishes between deaths of elephants from natural causes (old age, illness, accidents, fighting), from authorized culling or from poaching. The number 96, in fact, was speculation at the time the statute was drafted and remains highly suspect today.

This law (Fish & Game Code § 2022) supposedly closes [a] loophole. If the law closes a “loophole,” it does so by making the statute even more vague.

The legislature’s findings cannot save it. The statute ignores the nuances under the CITES Treaty. CITES lists some of Africa’s elephants in Appendix I to the convention, the highest level of protection under the treaty. However, elephants in nearly all of southern Africa — Botswana, Namibia, South Africa, Swaziland, and Zimbabwe — fall under Appendix II Protection. Appendix II calls for special regulation of trade in endangered species to prevent the threat of extinction, but does not ban or prohibit trade in these animals.

The statute is further unsupportable in that it conflates the plight of elephants and rhinoceroses. They are completely different with regard to the body parts that are commercially sought. Elephant ivory comes from the animal’s external tooth. It is a dentine material that does not grow back when removed.

On the other hand, the horn of a rhinoceros is not dentine material, but a cuticula material like fingernails. As a result, the horn of a rhinoceros can be removed above the collar without any harm to the animal’s wellbeing, and will regenerate in two to three years.

In fact, there are rhinoceros ranches in Africa where rhino horns are regularly harvested. The careful husbandry of rhinos has led to their protection and survival as a species against the inroads of poachers.

While “ranching” elephants does not appear to be as viable as ranching rhinoceroses, the fact is that the African countries which have the biggest stake in preserving elephant populations for the benefit of their people — as an important source of protein, as a tourist attraction and for their heritage through conservation — should not be the subject of California laws that interfere with animal conservation policies in African countries.

It is the African countries which have the most immediate need to oversee their wildlife without any undue influence from Western countries whose historical plunder of African resources in the past should not be repeated. Imposing urban Western values on rural African nations is as destructive to these countries as mining their gold, extracting their copper ore, or removing their diamonds were in the past.

But the California statute attempts to do precisely that: to impose economic and criminal sanctions on its citizens to influence treatment of far distant animal populations. If statutes such as California Fish & Game Code § 2022 are abhorrent because of their colonial and racist undertones, how can Californian’s show their concern for endangered elephant populations? By insisting that the animal rights groups use the money they collect from citizens of this state to help African communities to develop the tools that give them an economic stake in the well-being of these animals.

California, a subdivision of the United States of America, has no distinct standing in international law or calling in international intercourse, to impose its particular interpretation of Western values on sovereign nations in other regions of the world facing totally different environmental, demographic, and political issues.

What would the attitude of Californians be if the South African parliament adopted a law to have its government communicate to the President of the United States their insistence that California authorities stop spending an estimated $22 million in public money on building bridges across freeways to accommodate cougar breeding instead of using the same resources to house the state’s homeless or feed its hungry citizens?

Wouldn’t our leaders rise up in righteous indignation that a government 10,000 miles distant should presume to tell California — the fifth largest economy in the world — how to prioritize the public’s business?

How is our interfering in the wildlife of South Africa or the wildlife of any other member of the Southern African Development Community (SADC) any different? Put bluntly, how those nations deal with their assets should be none of our governmental business and we should not embarrass ourselves by exposing our hubris in supposing that it is!

We can and should be aware of the need to discourage poaching and to protect the African elephant where it is endangered. Our purpose is not to open the flood gates to the wholesale death and destruction of African elephants, but rather to allow the affected African nations to manage their own natural resources consistent with their own economic needs and conservation priorities.

The conservation of various populations of elephants in Africa should not be left to California do-gooders who do not live among the elephants, have no direct knowledge of the destruction these animals can cause to the people who live there and to the land that supports both animals and humans. Californians do not have to experience the enormous damage to plant life and to other wild animals when humans presume to alter the natural balance in any definable habitat, but Africans do. Put simply, California has no right to impose its legal authority over the people and governments of far distant nations.

We anticipate oral arguments in this case before the California Appellate Court to be presented sometime in October.

Godfrey Harris
Managing Director, Ivory Education Institute

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