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Treasured to Death: Elephants, Ivory, and the Resurgence of a Crisis
Peter LaFontaine, Beth Allgood, and Marina Ratchford
Vol. 29 No. 1, American Bar Association
Summer 2014
Mr. LaFontaine is a campaigns officer with the International Fund for Animal Welfare (IFAW). Ms. Allgood is the US Campaigns Director with IFAW. Ms. Ratchford is an international wildlife consultant and former Branch Chief for Latin America and the Caribbean at the US Fish & Wildlife Service.
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By the time you finish reading this article, it is likely that several elephants will be killed for their ivory. On average, one elephant is killed every fifteen minutes in Africa by poachers, but even Americans who have heard about the elephant poaching crisis often believe that it has nothing to do with the United States—that it is a problem of feeding insatiable demand for ivory in Asia serviced by desperate poachers in Africa. In fact, the reality of the illegal trade is much more complicated. This article sets out to reveal the crisis faced by the world community because of the vanishing elephant population, to examine the role of the United States in this unfolding tragedy, and to explain crucial policy changes proposed by the Obama administration in 2014 that may help bring the planet’s biggest land animal back from the brink of extinction. If admitting we have a problem is the first step, it still leaves an arduous pathway ahead that must be navigated carefully and quickly. Otherwise, we may soon awake to find that the race is over, and we have lost.
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Fewer than half a million elephants remain in the savannahs and jungles of Africa, a 95 percent plunge in the last century. See Africa’s Elephant Population Plummeting, Conservation Groups Warn, Al Jazeera America, Dec. 2, 2013. Habitat loss, subsistence hunting, and other dynamics have played a role, but the undisputed driver of this trend is poaching, specifically, poaching for ivory tusks that are then used as carved trinkets, jewelry, taxidermy trophies, and other decorative objects. Experts believe that approximately 35,000 elephants, and perhaps as many as 50,000, are being slaughtered each year to satisfy surging demand from Asia, the United States (the world’s second-biggest ivory market, according to the most recent global survey), and other consumer regions. See Max Fisher, An Alarming Map of the Global Ivory Trade That Killed 17,000 Elephants in One Year, The Washington Post, Mar. 15, 2013. Although prices for uncarved ivory surpass $1,500 per pound on the black market, elephants are far from the only animal in dire straits. The illegal wildlife trade (everything from rhino horn “cancer cures” to tiger bone wine to pet macaws and boas) is worth billions of dollars annually, ranking alongside drugs, counterfeiting, human trafficking, and the arms trade as a top five illegal industry. See Jeremy Haken, Transnational Crime in the Developing World, Global Financial Security (2011). But elephant population trends reflect the runaway carnage in a way that would have seemed almost unimaginable a decade ago.
We have faced this problem before. In the 1970s and 80s, poachers sent elephant populations into a tailspin before the international community severely restricted the ivory trade in 1989. The response was effective: consumer demand fell, prices for ivory dropped, and elephant populations rallied. It appeared to many that elephants were once more in the clear, if tenuously. However, these measures were incomplete. They left domestic ivory markets intact, and, although cross-border commerce was slowed, broad loopholes remained. Meanwhile, China’s economic boom created millions of newly wealthy citizens—in a country where owning and displaying expensive goods like carved ivory is a mark of status. The last gash was self-inflicted and utterly preventable: in 1997 and 2004 the member states of the Convention on International Trade in Endangered Species (CITES) capitulated to intense lobbying from pro-trade governments and allowed two separate sales of enormous amounts of stockpiled ivory (erroneously termed “one-off sales”). See US Fish and Wildlife Service (FWS), CITES & Elephants: What Is the “Global Ban” on Ivory Trade? (Nov. 2013). Once the message was diluted (Was ivory legal or not? Were elephants still in danger?), consumer demand rebounded. Smugglers found that porous borders and insignificant penalties were weak deterrents when weighed against skyrocketing prices and growing markets. These factors fed the emergence of a new breed of trafficker, one with direct links to terrorist groups and organized crime, military/industrial supply chains, and sophisticated weaponry and transportation networks. A new tidal wave of poaching has mounted for the last decade, threatening to sweep away the gains made after the 1989 accord.
At the International Fund for Animal Welfare (IFAW), we realized that developing solutions to elephant poaching and the rise in trafficking required an understanding of the driving forces behind this crisis. In 2012, IFAW produced a report compiling evidence linking poaching to extremism, radicalism, and other destabilizing influences. See IFAW, Criminal Nature: The Global Security Implications of the Illegal Wildlife Trade (2012) [hereinafter Criminal Nature]. Next, we wanted to find out how much of this crisis was American-made and, if our nation did play a substantial role, what we could do about it. With this goal in mind, we analyzed detailed import and export data from the FWS obtained in response to two Freedom of Information Act requests. We also combed through FWS investigations and special operations records related to ivory since 2008 and studied online auction sales of ivory in the United States.
We then scrutinized the international and federal rules governing ivory import, export, and domestic sales and conducted extensive interviews with federal officials. We found a tangled web of state, federal, and international laws and regulations with loopholes that make enforcement virtually impossible and thus allow for easy laundering of illegal ivory from newly poached elephants in the US marketplace. Based on this research (examined in greater depth below), IFAW concluded that poaching and trafficking constitute a threat to international security, that American ivory consumers are likely contributing to the extinction of elephants, and that existing regulations on domestic ivory trade do not sufficiently deter illegal ivory trade.
The government agreed. In February 2014, FWS proposed four crucial changes to federal regulations governing ivory trade. See Press Release, The White House Office of the Press Secretary, Fact Sheet: National Strategy for Combating Wildlife Trafficking & Commercial Ban on Trade in Elephant Ivory (2014) [hereinafter National Strategy Factsheet]. First, the proposed rules ban all commercial imports. Second, the proposed rules restrict exports to bona fide antiques. Third, each sport hunter may import only two trophies (maximum four tusks) per year, halting the unlimited hauls of years past. Fourth, and most controversially, the proposed rules shift the burden of proof for domestic sales from the government to the dealers. If finalized and implemented as proposed, these regulations will virtually eliminate illegal ivory sales in the United States and ensure that American consumers no longer drive poaching.
Under the proposed regulations, some people will need to sacrifice certain rights of ivory ownership. Anyone who currently owns an ivory item, and wants to keep it or gift it, is not impacted at all by these proposed regulations. However, owners of ivory without proper documentation (showing it is either antique or acquired legally before the 1989 ban) will not be able to sell it. IFAW believes that the continued existence of wild elephants must take priority—for the sake of people and elephants—and that some sacrifices are justified. Americans overwhelmingly agree: In a recent survey of US voters, conducted by an independent pollster, 80 percent supported a prohibition on domestic sales of ivory if it would help save elephants—a statement of values that cut across party and state lines. See Beekeeper Group poll, Nationwide Polling Results on Prohibition of Ivory Sales (Aug. 6–12, 2013) (on file with the authors).
Tightening restrictions on the US ivory market will almost certainly contribute to saving elephants from extinction. But policy is not based on facts alone—it relies on implicit judgments about priorities and trade-offs—and this is true with these proposed changes. We are all more secure by reducing poaching and trafficking, which exacerbates corruption in the developing world, leads to global insecurity, and threatens the stability and development of local African communities. Our children and grandchildren will inherit a world where elephants still roam wild. And of course, these fascinating creatures with amazing compassion and intelligence (that we are only beginning to understand) are the biggest winners of all.
Wildlife Crime and Global Security
You may be dubious about the connections between international organized crime and the carvings in your local antiques shop. Don’t just take our word for it. In just the last two years, the United Nations, the Group of Eight (G8), the CITES Secretariat, and the European Parliament, as well as dozens of individual countries, have officially placed wildlife crime (which includes ivory trafficking) near the top of their lists for action. The illegal ivory market is currently the domain of some of the world’s most vicious and heavily armed militant and criminal groups, and the reason is simple: money. As examined in IFAW’s Criminal Nature report, ivory is linked to funding rebel groups and militias, including the Lord’s Resistance Army, Darfur’s Janjaweed militias, and al-Shabaab (the al Qaeda-linked Somali terrorist group behind 2013’s Westgate Mall massacre in Nairobi). Armed with the latest technology, and leveraging sophisticated transport and distribution networks, these groups have become ever bolder in venturing across national borders in search of ivory.
It’s easy to understand why ivory is an attractive option for criminals. It’s valuable, difficult to trace, and, most importantly, available. Although many nations have established wildlife reserves, park rangers have an enormous amount of ground to patrol and few resources at their disposal. Poachers can make quick strikes, and even relatively well-protected parks are now targets for mass elephant slaughters. For example, some 450 elephants were killed in 2012 in a matter of weeks in Cameroon’s Bouba Ndjida National Park, and in 2013, twenty-six elephant carcasses were found with all of their tusks hacked off in Dzanga-Sanga National Park in the Central African Republic (a World Heritage site). See Criminal Nature at 20. The latter event spurred the UN Security Council to adopt a Resolution condemning the devastation, with the Council further noting that poaching and trafficking of wildlife are among the factors fueling crises in African countries. See UNSC Resolution 2121 (2013). Communities across Africa, outgunned by poachers and traffickers, face threats to their safety and economic future, along with their cultural and ecological heritage.
UN Secretary General Ban Ki-moon has also highlighted the security threat posed by large-scale wildlife crime in Africa, saying that “Poaching and its potential linkages to other criminal, even terrorist, activities constitute a grave menace to sustainable peace and security in central Africa.” See Edith M. Lederer, UN: Poaching Threatens Central Africa Peace, Associated Press, May 21, 2013. Despite this threat, many nations punish poachers and traffickers with mere slaps on the wrist. Widespread corruption greases the skids for ivory poachers in many countries. Jail time is rare and prosecutors often fail to secure punishment beyond forfeiture of illegal property. Perhaps the best (or worst) example of this judicial collapse was a Ugandan judge’s decision earlier this year to return 2.9 tons of seized ivory to a smuggler. See Uganda Defies CITES and Returns Ivory to Smuggler, Wildlifeextra.com (Feb. 2014).
The sheer scale of the crisis is daunting. Illegal ivory trade activity worldwide is at its highest level in two decades, having more than doubled since 2007 and more than tripled since 1998. Global shipments of contraband have soared. Three of the top four years on record for seized elephant ivory occurred between 2009 and 2011, a sign of the illegal trade’s relentless path. See Christian Nellemann et al., Elephants in the Dust—The African Elephant Crisis: A Rapid Response Assessment 6 (2013). In 2011 alone, officials seized almost 40 tons of smuggled ivory (equaling the tusks from more than 4,000 dead elephants), making that year the worst ever for ivory seizures. See T. Milliken et. al., The Elephant Trade Information System (ETIS) and the Illicit Trade in Ivory: A Report to the 16th Meeting of the Conference of the Parties to CITES 4 (Mar. 14, 2013). The frequency of large-scale ivory seizures also indicates a highly organized illegal ivory supply chain. Recent reports of massive enforcement actions include a six-ton seizure in Malaysia in late 2012; two separate operations less than a week apart in July 2013 in Kenya, taking 4 1/2 tons of ivory each; and similar giant hauls seized in October 2013, when Kenyan customs officers discovered 4 1/3 tons of elephant ivory in two separate shipments.
The US Ivory Trade
Through our analysis of legal trade and seizure data, we showed that the United States still imports a great deal of ivory, both legally and illegally. See Allgood et al., US Ivory Trade: Can a Crackdown on Trafficking Save the Last Titan? 20 Animal Law 27 (2013) [hereinafter US Ivory Trade]. From 2009 to 2012, FWS officials seized close to 1,000 products upon entry and about 250 ivory items upon exportation from the United States. Out of context this might seem marginal, but INTERPOL (the international police agency) estimates that interdictions globally only represent about 10 percent of the actual traffic in illegal goods. See Bryan Christy, Blood Ivory, National Geographic, Oct. 2012. This estimate puts smuggled imports closer to 2,500 specimens per year, plus an additional 625 smuggled exports, bringing the rough number of combined illegal ivory imports and exports in the United States to 3,125 per year.
In addition to the seizures of illegal shipments carried out by FWS wildlife inspectors, we looked at the long-term operations highlighted in FWS Office of Law Enforcement (OLE) annual reports. See FWS, Law Enforcement Annual Reports. OLE efforts have yielded successful results in disrupting and preventing the illegal trade of ivory, and the amount and value of confiscated ivory intercepted through these operations often exceeds seizures at the United States border. In one case in 2011, FWS investigators seized one ton of elephant ivory from a Philadelphia dealer, while another case in Manhattan resulted in the confiscation of $2 million worth of ivory objects. See FWS-OLE, Annual Report FY 2011; Lorenzo Franceschi-Bicchierai, Illegal Ivory Bust Shows Growing U.S. Appetite for Elephant Tusks, Wired, July 12, 2012. FWS investigations and special operations records indicate that the ivory market in the United States, as elsewhere, involves sophisticated international syndicates. Sadly, funding for the OLE has always been scarce, and the recent budget “sequester” forced the bureau to leave vacancies open and forego additional hires; there are the same number of OLE agents now (218) as there were in 1978.
Our analysis of the legal trade revealed that during the period 2009–2012, the United States allowed the import of 13,221 ivory objects from countries of origin such as South Africa, Zimbabwe, Botswana, Tanzania, and Namibia, and also exported a significant amount (6,753 objects). In these four years, hunting trophies and other elephant tusks were a popular import, totaling 4,392 tusks plus an additional 930 pounds of tusks that were only measured by weight. Individuals and taxidermy companies imported these tusks from Botswana, Namibia, South Africa, Tanzania, and Zimbabwe. Auction houses and art galleries, including several prestigious companies, were the main importers for ivory carvings. IFAW’s March 2013 online auction survey found over 1,600 ivory lots from fifty US-based auction houses with suggested bids totaling over $1.2 million. From 1999 to 2013, US-based auction houses sold over 82,000 ivory lots (each lot may include multiple ivory items). IFAW released a more comprehensive investigation of the ivory sold at United States auctions in the summer of 2014.
The National and International Regulatory Landscape
The web of state, federal, and international laws and regulations that currently exists to protect elephants and control the ivory trade is highly complex and could be the subject of an article unto itself. However, several of the major elements of this regulatory scheme involve CITES, the Endangered Species Act (ESA), the Lacey Act, and the African Elephant Conservation Act (AfECA). In addition, the FWS, which is charged with enforcing these laws domestically in cooperation with several other agencies, has its own rules and regulations that complicate the picture even further.
CITES governs international commerce in wildlife products. See Convention on International Trade in Endangered Species, Mar. 3, 1973, 27 U.S.T. 1087. Its most visible work is the listing of species in three appendixes. Appendix I species, such as Asian Elephants, are judged to be in the greatest danger of extinction and are therefore subject to the most stringent trade restrictions. Appendix II listings allow for limited trade, whereas Appendix III listings are essentially advisories. African Elephants have a “split listing,” with some country populations under Appendix I and others under Appendix II. The United States implements CITES rules through the ESA. See 16 U.S.C. §§ 1531–1544. Comparable to the CITES Appendix system, the ESA lists species as either “endangered” or “threatened” and, depending on the listing designation, triggers various protection measures, including interstate and international trade restrictions (African elephants are currently listed as threatened). The Lacey Act is a second key domestic law. Primarily, it sets labeling requirements for wildlife shipments and allows officials to leverage other state and international wildlife laws during prosecutions. See 16 U.S.C. §§ 3371–3378. A third law, AfECA, spurred, at least in part, the 1989 CITES international “ban.” See 16 U.S.C. §§ 4201–4245. Congress enacted AfECA in late 1988 as a direct response to the first poaching crisis of the 1970s and 80s. Among other provisions, AfECA set limits on what kinds of ivory can be imported and exported. See id. at § 4223.
In an added complication, African Elephants’ “threatened” listing means that FWS can create trade exceptions in an effort to aid conservation efforts. Until this year there were two big loopholes for African Elephant ivory established as administrative trade exceptions: (1) antiques could be imported, exported, and sold, and (2) legally sport hunted trophies—elephant heads or tusks shot on safari or another sanctioned event—could be imported (but not sold). The (hotly disputed) justification for the latter exception is that sport hunting creates incentives for elephant protection because local communities and governments supposedly benefit financially from “sustainable management” of their animal populations. No one has yet, however, explained the conservation benefit of the antique sales exception.
Enforcement Efforts and Their Impact
If trade were actually limited to those two exceptions (antiques and trophies), market control might be possible; but the system has additional serious defects. Most troublesome is the lack of oversight for domestic commerce. The CITES secretariat has urged countries to regulate their internal markets with ample oversight and enforcement, but the United States and China, two of the largest markets, have failed to comply with that recommendation. China actually has an ivory registration system, but independent analysis by IFAW and others prove that this system is wildly ineffective—retailers forge permits and recycle paperwork from one carved trinket to the next, allowing them to sell contraband ivory with an official stamp of approval. See IFAW, Making a Killing: A 2011 Survey of Ivory Markets in China (2011). In the United States, the government has never monitored domestic sales, but will begin monitoring if the 2014 FWS proposed rules take effect.
Import exemptions coupled with uncontrolled domestic trade meant that, in practice, enforcement of the rules started and ended at the US border. If someone were able to smuggle ivory into the country, he had carte blanche to do whatever he wanted with it, no documentation required. This situation led to the creation of “parallel markets,” where illegal trade blended into the large legal ivory market, in effect, money laundering.
The FWS OLE, aided by the US Customs and Border Control, is responsible for monitoring wildlife imports and exports at airports, seaports, and border crossings. Their job is getting busier by the day: legal wildlife shipments reached $4.4 billion in 2013, a 300 percent increase from just a decade ago. See FWS, Law Enforcement at a Glance (2013) (on file with the authors). And, most observers think this trend mirrors illegal shipments. A mere 140 FWS wildlife inspectors are charged with overseeing the 360 commercial seaports in the United States. All wildlife shipments are supposed to be labeled correctly and channeled through eighteen designated ports, but of course smugglers aren’t fond of correct labeling and waiting in line, so FWS also stations agents at about twenty nondesignated ports to assist wayward importers. Not surprisingly, enforcement and interdiction efforts are severely strained. For example, the Port of Los Angeles alone handles eight million shipping containers each year. Add in some 160 international airports in the country and it’s a wonder how these agents catch any but the worst smugglers. INTERPOL’s 10 percent seizure rate suddenly looks wildly optimistic.
Not all shipments of ivory come in via someone’s luggage or a shipping container. One of the great unknowns is the role of the Internet. A 2008 IFAW investigation found that eBay served as a major marketplace for ivory and other wildlife products, and although eBay voluntarily announced that it would no longer allow ivory sales, there’s a high likelihood that dealers still use Internet platforms (and the postal service or private shipping companies) to send large quantities of ivory across international borders. See IFAW, Killing With Keystrokes (2008).
What happens when a smuggler is caught? Some of the contraband ivory seized at airports is the sort of thing unsuspecting travelers bring back from vacation—bracelets, statuettes—without considering environmental impacts or legal issues. For these folks, the punishment is an awkward moment in the Customs line and the confiscation of their item. For other cases with a traceable chain of custody and proven criminal intent, the penalties can be higher. The Manhattan defendants mentioned earlier wound up paying tens of thousands of dollars in fines and forfeited the illegal goods, but neither faced jail time. The risk-reward equation here skews in favor of traffickers and unscrupulous dealers. Compounding the problem is that the seminal case on this issue, United States v. Grigsby, ended unfavorably for the prosecution. See 111 F.3d 806 (11th Cir. 1997). In Grigsby, the Circuit Court ruled that violations of AfECA require proof of “specific” rather than “general” intent. For a conviction under the more stringent specific intent standard, the prosecution must not only prove the defendant knew he was engaged in the act (aware crossing border with African ivory), but also that the defendant knew the act was illegal (aware illegal to cross border with African ivory). This has made prosecutions few and far between.
From Crisis to Action
For years, enforcement officers dealt with this nearly unmanageable situation with little hope of a solution. Then the public conversation shifted, and by 2012 everyone was talking about elephants, rhinos, and the scourge of wildlife crime. The turning point came when people in the nongovernmental organization (NGO) community, the media, and military circles began to connect the dots between poaching and security. Policymakers became concerned about illegal ivory’s massive impact on livelihoods, development, terrorism, and international commerce.
These concerns spurred an intervention from the White House. In June 2013, during a state visit to Tanzania, President Obama took an unprecedented step by issuing an executive order on Combating Wildlife Trafficking. See Exec. Order No. 13648, 78 Fed. Reg. 40,621 (July 5, 2013). Protecting wildlife, the president said, was “inseparable from Africa’s identity and its prosperity,” and he ordered his administration to construct a comprehensive national strategy to stem the illegal trade. See Press Release, The White House Office of the Press Secretary, Remarks by President Obama and President Kikwete of Tanzania at Joint Press Conference (July 1, 2013). In November 2013, to great fanfare and media attention, FWS crushed its six-ton stockpile of confiscated ivory, with Director Dan Ashe likening the decimation of elephants to our own wholesale slaughter of bison in nineteenth-century America. Then in February 2014, the White House rolled out the first steps of the new national strategy with a heavy emphasis on the ivory trade, including several administrative initiatives around imports, exports, and domestic sale of elephant products. See National Strategy Factsheet. Taken together, the administrative initiatives would amount to a near-total ban on imports, exports, and domestic sales of ivory in the United States. It was an unexpected coup for wildlife advocates, but not without caveats.
If there is one word that both the critics and enforcers of the old system could agree on, it would be “confusing.” Even twenty-year veterans of the FWS had trouble defining what exactly was legal, because different restrictions were in place depending on whether an ivory item was “worked” or “raw,” antique, “pre-ban” or “pre-listing,” part of a household move from one country to another, a sport-hunted trophy, or a “personal effect”—even before the vexing question of whether the ivory in question came from an Asian elephant or an African elephant for which there were drastically dissimilar regimes. Moreover, it’s impossible to assess ivory’s age visually, and legal markets for mammoth and mastodon ivory, walrus tusks, narwhal tusks, and other products complicated things even more.
The administrative initiatives will cut the Gordian knot: dealers will need to prove that their ivory is legal, either with CITES documentation or through yet-to-be-determined methods, such as expert appraisals, old photographs, or a more scientific process such as isotope analysis. We must again emphasize that ownership of ivory will still be legal, as are gifts and bequests.
The administrative initiatives involve a series of regulatory actions and rule changes. FWS took the first step by issuing a director’s order that halted the import of all commercial ivory items, clarified the definition of “antique,” and gave border officials guidance for implementation. US Dep’t of Interior, Director’s Order No. 210 (Feb. 25, 2014). The second step was the finalization of the CITES “use after import” regulations, which raise the bar for domestic sales by making sellers prove their wares were lawfully imported prior to listing in CITES Appendix I (1990 for African elephant and 1975 for Asian elephant) or under a CITES pre-Convention certificate or other exemption document. See Revision of Regulations Implementing CITES, 79 Fed. Reg. 30,399 (finalized May 27, 2014). The third and fourth steps have not been taken as of this writing: the FWS will propose changes to the ESA “special rule” for African elephants in order to further restrict export and interstate sales (by narrowing or eliminating the antiques exemption for interstate sales) and will also publish a proposed rule to limit sport hunted trophy imports to two per hunter annually. See National Strategy Factsheet.
Although the new import and export restrictions will make inspectors’ jobs infinitely easier, the real achievement will be the regulation of sales by requiring proof of provenance. The provenance requirement will make it almost impossible to “launder” illegal ivory pieces into the stream of commerce, which should ultimately mean that fewer elephants will be slaughtered for American consumers. However, there are obstacles to overcome. Funding for enforcement remains inadequate. Public education is a time-consuming process. Lastly, there’s a chance these rules will be weakened before they are finalized.
By law, federal agencies must solicit public input on certain decisions, which is the case for FWS’s proposal to revise the “special rule” on commercial ivory exceptions and trophy imports. Concerns have arisen from groups as diverse as the National Rifle Association, arts and antique dealers, and the National Association of Music Makers on the basis that items such as ivory handled firearms, artwork and pianos, and other musical instruments will be adversely affected.
Let’s address the easiest concerns first. Some opponents of the rules claim, erroneously, that the old system was adequate or that China’s market is the only problem worth addressing. But as we’ve shown, the old system was a mess and many—perhaps most—retailers in the United States have no clue whether or not their ivory is legal or even how old it is. Second, while it’s true that China is a hugely important piece of the puzzle, action by the United States can be a bellwether for international change, as it was in 1989 with the first ivory ban. Chinese leaders care deeply about their standing in the international community, which presents an opportunity for diplomatic encouragement on this issue. But we have to be careful in pressuring China to change, especially if the implication is that they are solely to blame.
Some groups have raised more serious constitutional issues. Notably, the Fifth and Fourteenth Amendments prevent the government from taking private property without due process, and arguably the restrictions could be considered an equivalent harm under some interpretations. A fair number of collectors have invested a great deal of money in ivory items, and this policy would hurt that investment. However, trade regulations (and prohibitions) are a commonly exercised responsibility of the federal government, and the mere fact that ivory products have been legal is not a sufficient reason for ivory to remain legal in perpetuity.
On more specific grounds, traveling musicians are concerned that their instruments with ivory parts cannot now be repatriated. The FWS anticipated this problem and carved out a travel exemption as long as these imports are part of a household move, along with an exemption for traveling orchestras. See FWS, USFWS Moves to Ban Commercial Elephant Ivory and Rhino Horn Trade, Questions & Answers (Feb. 2014). In addition, responding to criticism after the initial announcement, the FWS revised the director’s order to further ease restrictions on noncommercial musical instrument imports and exports. See FWS, Service Takes Next Steps in Commercial Elephant Ivory Trade Ban, Eases Restrictions on Musical Instruments and Other Uses (May 15, 2014).
In a February 2014 article, we detailed our US market investigation and the policy structure governing commerce in ivory. See US Ivory Trade at 47. We made recommendations for ways to change this inadequate system and concluded that an outright ban, coupled with higher penalties for violators, a lower standard of intent for prosecution, a broad public awareness campaign, along with better funding for on-the-ground conservation, was the best option. See id. at 67. Now, with the White House taking an approach very much aligned with our proposals (and having seen the burst of opposition from some unforeseen corners), we are both hopeful and concerned—hopeful that the White House’s action could set off another domino effect of international actions and concerned that politics may trump good policy.
The world is watching. The United States has the opportunity to put a stop to its role in driving the elephant poaching crisis and to lead the way for other countries to do the same. The US ivory market contributes to this grim situation, and so we stand at a crossroads. We must find a way to bridge the gap between good people with different priorities, but what gets lost in the opposition arguments is that elephants are, as you read this, being slaughtered by criminal and militant groups for luxury goods no one needs. If we wait for a perfect solution, we’re making the decision to let the crisis spiral further out of control.
Sometimes the right decision can be painful, and change can be difficult, but as a FWS agent told us recently: “No guts, no glory—and no elephants.”