The Commercial Sale of Endangered Species

1
The Commercial Sale of Endangered Species

• Stephanie Boone
• April 27, 2004

2
Endangered Species Act

• Passed in 1973
• Response to concern in the U.S. about decline of
  species around the world
• Considered one of the most comprehensive wildlife
  conservation laws in the world

3
Purpose

• To conserve the ecosystems upon which threatened
  or endangered species depend
• To conserve and recover listed species

4

• Endangered species
• A species that is in danger of becoming extinct
  throughout all or a significant portion of its
  range
• Threatened species
• A species that is likely to become extinct
  throughout all or a significant portion of its
  range
• All species of plants and animals with the
  exception of pest insects are eligible for listing

5
Administration

• Department of the Interiors US Fish and Wildlife
  Service (FWS)
• Protects terrestrial, fresh water species and
  migratory birds
• Commerce Departments National Marine Fisheries
  Service (NMFS)
• Protects marine species

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ESA Prohibits

• Import or export of protected species
• To take within U.S. or territorial sea of U.S. or
  upon the high seas
• To possess, sell, deliver, carry, transport or
  ship
• To deliver, receive, carry, transport or ship in
  interstate or foreign commerce by any means
  whatsoever and in the course of a commercial
  activity
• To sell or offer for sale in interstate or
  foreign commerce

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• What if you were in possession of the species
  before the act took effect or before the species
  was listed?

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Beluga Sturgeon

• The female is considered to be the worlds most
  valuable commercially harvested fish
• Produces Beluga caviar
• April 21, 2004 listed as a threatened species in
  the Federal Register
• Can an individual buy up beluga caviar and sell
  it after the regulations take effect?

9
U.S. v Kepler 531 F.2d 796

• 1974 Ray Kepler attempted to transport a cougar
  and leopard from Ft. Lauderdale, FL to the
  Dogpatch Zoo in Flatlick, KY
• Convicted of transporting in interstate commerce
  a leopard in violation of Endangered Species Act
  of 1973

10

• Kepler challenged the conviction
• ESA is unconstitutional
• Effected a taking without just compensation and
  due process
• He was exempted from the terms of ESA
• On the Acts effective date, the animals were
  held in captivity for a proper purpose under ESA

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The Courts Response

• ESA does not prevent all sales
• Allows intrastate commerce
• Allows transportation or sale of endangered
  wildlife if Secretary of Interior approves it for
  scientific purposes or to enhance the propagation
  or survival of effected species
• The exemption does not apply to fish and wildlife
  held in the course of a commercial activity

12
Andrus v Allard et al 444 U.S. 51

• Douglas Allard and Pierre Bovis were convicted of
  the Eagle Protection and Migratory Bird Treaty
  Acts in connection with sales of artifacts which
  existed before statutory protection of the Acts
  came into force and were partly composed of the
  feathers of birds protected by those acts

13
Allard, et al argued

• Acts did not apply since bird parts were obtained
  prior to the effective date of statutes
• If Acts do apply, they are unconstitutional
• Violates Fifth Amendments prohibition of taking
  private property for public uses without just
  compensation

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Courts response

• Secretary of the Interior was authorized to
  prohibit commercial transactions even though the
  birds were legally killed
• Does not constitute a taking
• Owners still retained the right to possess and
  transport, and to donate or devise it

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Conclusion

• Any questions?