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Illegal Taking of Plants and Wildlife

Posted by Dmitry Gorin | Mar 28, 2024

In the United States, the conservation of wildlife, fish, and plants is governed by a comprehensive legal framework designed to protect these natural resources from illegal exploitation. 

These rules are embodied in Title 16, Chapter 53 of the U.S. Code, Sections 3371-3378, collectively called the Lacey Act. This legislation establishes strict guidelines against illegal taking, possessing, selling, and transporting wildlife, fish, and plants

Lacey Act
Federal laws on the illegal taking of plants and wildlife are codified in the Lacey Act.

Under a provision of the Lacey Act, any importation of injurious wildlife into the United States or its territories must be authorized under a permit issued by the U.S. Fish and Wildlife Service. 

In addition, the Service must authorize the transport of any injurious specimens listed in the Code of Federal Regulations (50 CFR 16) between the United States, the Commonwealth of Puerto Rico, or any territory or possession of the United States by any means whatsoever. It aims to preserve biodiversity and ensure the sustainable use of natural resources. 

18 U.S.C. 3372 prohibited acts say, “It is unlawful for any person—

(1) to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or violation of any Indian tribal law.

(2) to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce—

(A) any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or violation of any foreign law or

(B) any plant—

(i) taken, possessed, transported, or sold in violation of any law or regulation of any State, or any foreign law, that protects plants or that regulates—
(I) the theft of plants; (II) the taking of plants from a park, forest reserve, or other officially protected area; (III) the taking of plants from an officially designated area; or (IV) the taking of plants without contrary to required authorization.

This article provides an overview of the prohibited acts under 16 U.S.C. 3372 and the civil and criminal penalties outlined in 16 U.S.C. 3373 for individuals who violate these laws.

What Is the Lacey Act?

Enacted in 1900, the Lacey Act is one of the earliest and most significant pieces of conservation legislation in the United States. Originally designed to combat the rampant poaching of game and wild birds transported across state lines, its scope has significantly broadened. 

This legislation was named after Congressman John F. Lacey, a notable conservationist who recognized the urgent need for a federal law to preserve wildlife and their habitats. Over time, amendments have expanded the act's reach to include many plants and other wildlife.

What Does the Law Prohibit?

The Lacey Act (specifically, Title 16 U.S.C. 3372) makes it unlawful for any person or entity to engage in activities that contravene the conservation and protection measures for wildlife, fish, and plants. Specifically, the act prohibits:

  • Illegal Transportation: The law makes it unlawful to import, export, transport, sell, receive, acquire, or purchase any fish, wildlife, or plants that were taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the U.S., a state, or any foreign law.
  • Falsification of Documents: It is illegal to falsely label any plant or wildlife product regarding its value, species, origin, or quantity. This provision prevents the circumvention of laws designed to protect endangered species and regulated plants.
  • Prohibited Wildlife Shipments: The statute also restricts the transportation of wildlife taken in violation of any U.S. law, treaty, or regulation across state or national boundaries.
  • Transportation of Protected Plants: Specifically for plants, the act bars the importation or transportation of any plant that was taken, possessed, transported, or sold in violation of any law or regulation of any state or violation of any foreign law. The focus is preventing the illegal harvesting and trade of protected plant species.

For purposes of this law, "taken" refers to the collection, harvesting, killing, or capturing of protected plants or animals.

What Are Related Federal Laws?

16 U.S. Code Chapter 53 Control of Illegally Taken Fish and Wildlife has several related federal laws, such as the following:

  • 18 U.S.C. 3371 – Definitions,
  • 18 U.S.C. 3372 – Prohibited acts,
  • 18 U.S.C. 3373 – Penalties and sanctions.
  • 18 U.S.C. 3374 – Forfeiture,
  • 18 U.S.C. 3375 – Enforcement,
  • 18 U.S.C. 3376 – Administration,
  • 18 U.S.C. 3377 – Exceptions,
  • 18 U.S.C. 3378 – Miscellaneous provisions

What are the Civil and Criminal Penalties?

Violations of these laws carry significant consequences, with both civil and criminal penalties applicable depending on the severity and nature of the offense. 

Civil Penalties

Civil penalties may include fines and forfeiture of the items involved in the violation. The fines are determined based on factors that include the market value of the plant/animal in question, the gravity of the offense, the violator's culpability, and any history of prior violations. Generally speaking, civil penalties can go as high as $10,000 per violation.

Criminal Penalties

Criminal penalties, including imprisonment and substantial fines, may be imposed for more serious violations. The Lacey Act distinguishes between misdemeanor and felony offenses, with the latter reserved for more egregious violations, such as knowing engagement in illegal activities or the trafficking of endangered species. Felony convictions under the Lacey Act can result in imprisonment for up to five years and significant fines.

What are the Common Defenses?

Suppose you have been charged with violating federal plant and wildlife protection laws described above. In that case, an experienced federal criminal defense attorney can utilize several defenses to help you combat the charges. Common defense strategies include: 

  • Lack of Knowledge: You were unaware that your actions violated the Lacey Act or that you unknowingly received or transported illegal wildlife, fish, or plants.
  • Due Diligence: Showing evidence of all reasonable due diligence conducted on your part to ascertain the legality of actions regarding the acquisition, transportation, or sale of wildlife, fish, or plants.
  • Mistake of Fact: Establishing that you operated under a factual mistake negating the necessary intent to commit the crime, such as misidentifying a species not covered by the Lacey Act.
  • Entrapment: The charges may be dismissed if law enforcement agents induced you into committing the violation, which you would not have engaged in under normal circumstances.
  • Legal Acquisition: Providing proof that the wildlife, fish, or plants in question were legally acquired in accordance with all relevant federal, state, tribal, and international laws.

For more information, contact Eisner Gorin LLP, a federal criminal defense law firm based in Los Angeles, California.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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