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Volume 33
Number 3
2015
Contents
Symposium
International Wildlife Trafficking: Law and Policy
Letter from the Editors
Nikki S. Bossert 455
Frank W. Eucalitto
Kimberly Osborne
Introduction
W. John Thomas
457
Jeffrey Hostetler
461
Marta Daniels
467
Joyce Tischler
485
Michael R. Harris
515
Connecticut’s Role in the Ivory Trade: Part I
Connecticut’s Role in the Ivory Trade: Part II
Changing the Dialogue About Elephants
The Wild American Dream: A Discussion of the
Origins and Evolution of the Endangered
Species Act and Its Connections to
International Trade and Human Well-Being
537
Adam M. Roberts
567
Andrew Revkin
581
Detailed Look at the Ivory Trade and the
Poaching of Elephants
The Role of Communication Innovations in
Stemming—and Worsening—Wildlife
Trafficking
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Joe Roman
The Role of Law, Society, and Ethics Within
Wildlife Importing Countries
36475-qlr_33-3 Sheet No. 1 Side B
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Volume 33
Number 3
2015
2014–2015
BOARD OF EDITORS
NIKKI ST.AMAND BOSSERT
Editor-in-Chief
CAROLYN A. TROTTA
Executive Managing Editor
FRANK W. EUCALITTO
Research & Symposium Editor
STEPHANIE M. GOMES
KERIANNE E. KANE
DENISE A. KRALL
MIKAELA A. KURZAWA
Publication Editors
BRYANA N. BOUDREAU
NICOLE A. CARNEMOLLA
OLIVIA M. HEBENSTREIT
Note & Casenote Editors
WILLIAM S. BENNETT
ARIELLE R. D’AUGUSTE
Lead Articles Editors
ELIZABETH K. MORAN
Business Managing Editor
STAFF MEMBERS
ZACHARY DUNN
TATIANA M. FONSECA
PAUL R. GRABOWSKI
MARY-CAITLIN HARDING
EMILY C. KAAS
JENNIFER LEPORE
NICHOLAS LOMBARD
MICHAEL MARAFITO
KARA MOREAU
FACULTY ADVISORS
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W. JOHN THOMAS
JENNIFER GERARDA BROWN
JOCELYN RUSSO
CHRISTOPHER C. SATTI
MICHAEL J. TONE, JR.
ALYSSA VESCO
ALEXANDER W. AHRENS
OWEN FIRESTONE
KIMBERLY OSBORNE
ALEXA L. PARR
LAURA D. THURSTON
Associate Editors
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QUINNIPIAC UNIVERSITY SCHOOL OF LAW
FACULTY AND OFFICERS OF ADMINISTRATION
FOR THE ACADEMIC YEAR 2014–2015
OFFICERS OF ADMINISTRATION
John L. Lahey, B.A., M.A., University of Dayton; M.A., Columbia University; Ph.D.,
University of Miami; President, Quinnipiac University
Mark A. Thompson, B.S., Bentley College; M.B.A., Western New England College; Ph.D.,
Georgia State University; Executive Vice President and Provost, Quinnipiac University
Jennifer Gerarda Brown, A.B., Bryn Mawr College; J.D., University of Illinois; Dean, School
of Law; Professor of Law
Paul Tiyambe Zeleza, B.A., University of Malawi; M.A., University of London; Ph.D.,
Dalhousie University; Vice President for Academic Affairs
William V. Dunlap, B.A., The New School for Social Research; M. Phil., University of
Cambridge; J.D., Yale University; Professor of Law and Associate Dean for Academic
Affairs
Kathy A. Kuhar, B.S., Eastern Connecticut State University; J.D., Quinnipiac University
School of Law; Associate Dean of Students
Shelley R. Sadin, B.A. Yale University; J.D., Georgetown University; Associate Dean of
Professional and Career Development
FACULTY EMERITI
Melanie B. Abbott, B.A., Bates College; M.S., Syracuse University; J.D., University of
Bridgeport; Professor Emeritus of Law
Tse-shyang Chen, J.D., University of Chicago; LL.B., Soochow University; LL.M., Yale
University; Professor of Law Emeritus
Susan R. Dailey, B.A., M.A., Ph.D., Catholic University of America; Professor of Legal Writing
Emeritus
Mary Ferrari, B.A., University of Notre Dame; J.D., Cornell University; LL.M., New York
University; Professor of Law Emeritus
Joseph Hogan, A.B., St. Joseph’s University; J.D., Widener University School of Law;
Associate Professor of Legal Skills Emeritus
Martin B. Margulies, B.A., Columbia University; LL.B., Harvard University; LL.M., New
York University; Professor of Law Emeritus
Toni Robinson, B.A., Sarah Lawrence College; J.D., Columbia University; LL.M., New York
University; Professor Emeritus of Law and Co-Director of the Tax Concentration
Gail S. Stern, B.A., Boston University; M.A.L.S., Wesleyan University; J.D., University of
Bridgeport; Associate Professor of Legal Skills Emeritus
Jamison Wilcox, A.B., Amherst College; J.D., Columbia University; Professor of Law Emeritus
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FACULTY OF LAW
Kevin M. Barry, B.A., J.D., Boston College; LL.M., Georgetown University; Professor of Law
Dale L. Carlson, B.S., M.B.A., State University of New York at Buffalo; J.D., Syracuse
University; LL.M., New York University; Distinguished Practitioner in Residence,
Intellectual Property Law and Director, Intellectual Property Law Concentration
Jeffrey A. Cooper, A.B., Harvard University; J.D., Yale University; LL.M., New York
University; Professor of Law and Co-Director of the Tax Concentration
Leonard A. Dwarica, B.A., St. Peters College; M.S., New York University; J.D., Pace
University School of Law; Distinguished Practitioner in Residence, Health Law; Director,
Center for Health Law and Policy; and Director, Health Law Concentration
Robert C. Farrell, B.A., Trinity College; J.D., Harvard University; Professor of Law and
Director of the Trinity Summer Program
Neal R. Feigenson, B.A., University of Maryland; J.D., Harvard University; Professor of Law
Marilyn J. Ford, B.A., Southern Illinois University; J.D., Rutgers University; Professor of Law
Stephen G. Gilles, B.A., St. John’s College; J.D., University of Chicago; Professor of Law
Jennifer L. Herbst, A.B., Dartmouth College; M. Bioethics, J.D., University of Pennsylvania;
LL.M., Temple University; Associate Professor of Law and Medical Sciences
Carolyn Wilkes Kaas, B.A., Cornell University; J.D., University of Connecticut; Associate
Professor of Law and Director of Clinical Programs and Co-Director, Center on Dispute
Resolution
David S. King, A.B., Dartmouth College; J.D., Cleveland State University; LL.M., Harvard
University; Associate Professor of Law
Stanton D. Krauss, B.A., Yale University; J.D., University of Michigan; Professor of Law
Sandra Lax, B.A., Brooklyn College; M.L.S., Queens College; J.D., University of Bridgeport;
Distinguished Practitioner in Residence, Family Law
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Richard E. Litvin, B.A., Dickinson College; J.D., Temple University; LL.M., Yale University;
Professor of Law Emeritus and Director of Bar Preparation Program
Leonard J. Long, B.S., Illinois Institute of Technology; M.A., Ph.D., University of Illinois; J.D.,
University of Chicago; Professor of Law
Elizabeth P. Marsh, A.B., Harvard University; J.D., New York University; Professor of Law
and Co-Director of the Criminal Law and Advocacy Concentration
Alexander M. Meiklejohn, A.B., Amherst College; J.D., University of Chicago; Professor of
Law
Linda R. Meyer, B.A., University of Kansas; J.D., Ph.D., University of California, Berkeley;
Professor of Law
John T. Morgan, B.A., Southwest Missouri State University; J.D., Washington University;
LL.M., Harvard University; Professor of Law
Suzanne H. Nathanson, A.B., Harvard University; J.D., Case Western Reserve University;
Assistant Professor of Legal Skills
Charles A. Pillsbury, B.A., Yale University; M.A.R., Yale Divinity School; J.D., Boston
University; Distinguished Practitioner in Residence and Co-Director, Center on Dispute
Resolution
Emanuel Psarakis, A.B., University of Connecticut; J.D., Boston University; LL.M., Columbia
University; Distinguished Practitioner in Residence, Employment Law
Sarah French Russell, B.A., J.D., Yale University; Assistant Professor of Law and Co-Director,
Criminal Law and Advocacy Concentration
Brad Saxton, B.A., College of William & Mary; J.D., University of Virginia; Professor of Law
and Dean Emeritus
Mark Schroeder, B.A., Williams College; J.D., University of Connecticut, Assistant Professor
of Legal Skills
Sara V. Spodick, B.A., Southern Connecticut State University; J.D., Quinnipiac University
School of Law; Director of Tax Clinic
W. John Thomas, B.A., J.D., University of Arizona; LL.M., M.P.H., Yale University; Professor
of Law
LYNNE L. PANTALENA LAW LIBRARY
Ann M. DeVeaux, B.A., J.D., University of Bridgeport; M.L.S., Southern Connecticut State
University; Director of the Law Library
John Michael Hughes, B.A., Sacred Heart University; M.L.S., Southern Connecticut State
University; M.A., University of New Haven; Associate Director of the Law Library
Christina DeLucia, B.A., Pennsylvania State University; M.S.L.I.S., Pratt Institute; Reader
Services Librarian
Mary K. Tartaglia, B.S., M.L.S., Southern Connecticut State University; Reader/Technical
Services Librarian
Mary Ellen Lomax-Bellare, A.A., B.A., M.A.T., University of Bridgeport; Serials Manager
Erica M. Papa, B.S., M.A., Southern Connecticut State University; Administrative Services
Coordinator
Margaret Y. Thomas, B.S., Duquesne University; Circulation/Reserve Manager
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Quinnipiac Law Review is published annually in four issues by the Law
Review Association of the Quinnipiac University School of Law. The current
subscription price is $10.00 per issue. Absent timely notice of termination,
subscriptions are automatically renewed upon expiration. All communication
should be addressed to the Law Review Association, Quinnipiac University School
of Law, 275 Mount Carmel Avenue, Hamden, Connecticut 06518-1952.
Telephone: (203) 582-3221. The Quinnipiac Law Review Homepage is located at
http://www.quinnipiac.edu/qlr. E-mail can be sent to [email protected].
All articles published by the Quinnipiac Law Review, beginning with Volume 1,
are available for free in PDF format on our archives page, located at http://
www.quinnipiac.edu/quinnipiac-law-review/.
The opinions presented in the Review’s articles do not necessarily represent
the opinions of the Review or the School of Law.
Copyright © 2015 by the Law Review Association of the
Quinnipiac University School of Law
Member, National Conference of Law Reviews
Publication number ISSN 1073-8606
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EDITORS LETTER FINAL (DO NOT DELETE)
4/27/2015 5:58 PM
Symposium
INTERNATIONAL WILDLIFE TRAFFICKING:
LAW AND POLICY
LETTER FROM THE EDITORS
Nikki S. Bossert
Frank W. Eucalitto
Kimberly Osborne
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455
On November 8, 2014, Quinnipiac Law Review hosted its annual
symposium. This year’s topic, International Wildlife Trafficking: Law
and Policy, focused on the current plight of elephants due to the demand
for ivory. Our symposium would not have been possible without the
creativity, hard work, and enthusiasm of many people, all of whom we
would like to thank.
First and foremost, we would like to thank Professor John Thomas
for his time and effort in planning the symposium. He approached us
with this topic before the ink was dry on the Volume 33 masthead. We
were immediately sold on the idea. As anyone who has ever had to pick
a symposium topic knows, finding a topic that is legally relevant is
difficult—finding one that is legally relevant and compelling is near
impossible. This topic was both and, for that, we thank you Professor
Thomas.
Next, we would like to thank all of our speakers. Jeff Hostetler
began the day by introducing us to Connecticut’s history with the ivory
trade, followed by Marta Daniels with detailed information about the
people involved in the ivory trade and how that trade impacted
elephants. Joyce Tischler moved the audience by teaching us that
elephants aren’t that different from people. Michael Harris opened our
eyes to the problems right here in the United States, from hunting
ranches to exotic animal roadside shows. Joe Roman, our keynote
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EDITORS LETTER FINAL (DO NOT DELETE)
456
QUINNIPIAC LAW REVIEW
4/27/2015 5:58 PM
[Vol. 33:455
speaker, guided us through the timeline of the Endangered Species Act,
highlighting the pivotal moments of the Act’s history. Adam Roberts
detailed the logistics of the international trafficking of ivory and the role
that the Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES) plays in preventing this trade. Wrapping
up the day, we heard from Andy Revkin, who explained how we as
individuals can make a difference by getting our voices, and viewpoints,
heard via social media. All of our speakers did a phenomenal job and we
cannot thank them enough for being part our symposium.
Last, we would like to thank everyone who attended our
symposium. We had a great audience this year that asked many thoughtprovoking questions. Each speaker’s presentation, including their Q&A
session, has been transcribed and reproduced in this issue; each
presentation is also available on YouTube.1 We hope that you enjoy this
issue as much as we enjoyed hosting this event.
2015).
Quinnipiac Law Review, YOUTUBE, http://tinyurl.com/lzlg5do (last visited Apr. 19,
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1
John Thomas, Nikki Bossert, Frank Eucalitto, and Kimberly Osborne
Photo by Carolyn Trotta, November 8, 2014, Quinnipiac University School of Law
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THOMAS FINAL (Do Not Delete)
4/27/2015 5:43 PM
INTRODUCTION
W. John Thomas*
In Ivory’s Ghosts: The White Gold of History and the Fate of
Elephants,1 author John Frederick Walker notes that by the 19th century
ivory had become “the plastic of its time, used for everything from
buttons to scientific instruments to billiard balls to geegaws.”2 Those
geegaws included “ivory combs and letter openers, drawer pulls and
pistol grips.”3 In addition, as we shall see,4 an industry centered in
Connecticut supplied ivory keys to U.S. piano manufacturers whose
annual production reached 350,000 pianos in 1910.5
Although mass production techniques allowed a few of those
trinkets to reach the homes of the middle class,6 most came to rest in
display cases of the more privileged in society.7 Some 1200 of the more
impressive of those baubles ascended to the top rung of the social ladder
that is Buckingham Palace.8 Although the Royal Collection Trust
contains a number of pieces carved in medieval times from walrus and
whale ivory, catalyzed by increased trade with Africa in the 18th and
19th centuries, the bulk of the collection consists of works wrought from
African elephant and rhino ivory.9 Recently, Prince William told Jane
Goodall that “he would ‘like to see all the ivory owned by Buckingham
457
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Professor of Law, Quinnipiac University School of Law. J.D., 1982, University of
Arizona, LL.M., 1988, M.P.H., 1996, Yale University.
1
JOHN FREDERICK WALKER, IVORY’S GHOSTS: THE WHITE GOLD OF HISTORY AND
THE FATE OF ELEPHANTS (2010).
2
Id. at 5.
3
Id.
4
See Jeffrey Hostetler, Connecticut’s Role in the Ivory Trade: Part I, 33 QUINNIPIAC L.
REV. 461 (2015); Marta Daniels, Connecticut’s Role in the Ivory Trade: Part II, 33
QUINNIPIAC L. REV. 467 (2015).
5
WALKER, supra note 1, at 5.
6
See The History of the Ivory Trade, NAT’L GEOGRAPHIC, http://tinyurl.com/pwdvssh
(last visited Apr. 5, 2015).
7
Id.
8
See Prince William ‘Calls for Buckingham Palace Ivory to be Destroyed,’ GUARDIAN
(Feb. 17, 2014, 5:19 AM), http://tinyurl.com/psdctbm.
9
Rebecca Onion, Should We Destroy Our Ivory Art Out Of Guilt? Prince William
Seems to Think So, SLATE (Feb. 19, 2014, 8:50 AM), http://tinyurl.com/kzaz38y.
*
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[Vol. 33:457
Palace destroyed.’”10
Those curios of the rich and famous established an artistic and
decorative aesthetic that not only survives, but continues to drive ivory
trade.11 In essence, folks who see the beautiful, old ivory works in
museums and private collections, develop a yearning for something
similar, and search for a vendor who in turn searches for a dead
elephant.12 Sure, it’s possible to tranquilize an elephant and to leave the
beast breathing after it yields its tusks.13 But dead animals are more
predictably compliant, and it is typically easier to kill, rather than to
sedate a large animal.14 Moreover, about one third of the tusk lies
embedded in the animal’s skull,15 making execution the poacher’s
method of harvest.
In its 2013 film, The Economics of the Illicit Ivory Trade,16
National Geographic illuminated the economic, cultural, and geographic
variables at work in the ivory trade. In China, a 2000 year-old tradition
has combined with the buying power of an emerging middle class to
produce an all-time high in demand for ivory.17 That demand in China,
and other Asian countries like Vietnam, has driven the price of ivory to
$1300 for a raw pound and larger trinkets can fetch over $200,000 in the
Chinese market.18 The illegal slaughter of elephants now averages
around 20,000 per year,19 a killing rate that National Geographic
estimates will eliminate the African elephant from the planet in the next
decade.20
Elephants are not the only species threatened by wildlife trade. As
of January 2015, the National Wildlife Property Repository contained
05/08/2015 09:54:41
Prince William ‘Calls for Buckingham Palace Ivory to be Destroyed,’ supra note 8.
The Economics of the Illicit Ivory Trade, NAT’L GEOGRAPHIC,
http://tinyurl.com/qy8ngnd (last visited Apr. 5, 2015).
12
See id.
13
See An Elephant’s Tears, AFR. WILDLIFE FOUND. (Feb. 2, 2010),
http://tinyurl.com/kctsc9x.
14
See id.
15
Why It Matters, ESCAPE FOUND., http://tinyurl.com/p2gba95 (last visited Apr. 5,
2015).
16
The Economics of the Illicit Ivory Trade, supra note 11.
17
Id.; see also Dan Levin, From Elephants’ Mouths, an Illicit Trail to China, N.Y.
TIMES (Mar. 1. 2013), http://tinyurl.com/mj3mnto (“Though the clandestine nature of ivory
smuggling makes it difficult to fully map out, experts say Africa’s elephants are being
slaughtered at the highest rate in two decades, largely to satisfy soaring demand among
China’s growing middle class.”).
18
Levin, supra note 17.
19
The Economics of the Illicit Ivory Trade, supra note 11.
20
Id.
11
10
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THOMAS FINAL (DO NOT DELETE)
2015]
4/27/2015 5:43 PM
INTRODUCTION
459
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21
Jackie Northam, Tiger Skins and Rhino Horns: Can a Trade Deal Halt the
Trafficking?, NPR (Jan. 28, 2015, 3:23 AM), http://tinyurl.com/kn3z7wv.
22
Id.
23
The Illegal Trade in Wild-Animal Products: Bitter Pills, ECONOMIST (July 19, 2014),
http://tinyurl.com/nzwsgk5.
24
Id.
25
JOE ROMAN, WHALE (2006).
26
JOE ROMAN, LISTED: DISPATCHES FROM AMERICA’S ENDANGERED SPECIES ACT
(2011).
“the remains of 1.5 million animals, whole and in parts.”21 Bits of ivory
share the warehouse space with “[r]ow after row, shelf after shelf” of the
“heads and the skins of cheetahs, leopards, jaguars, lions and tigers.”22
Trade in animal parts is, quite simply, too lucrative for many to resist.
Rhino horn, for example, brings $60,000 per kilo on the international
illegal wildlife trade market, “more than the price of gold.”23 Market
values for tiger bones and bear gall bladders also exceed that of precious
metals.24
On November 8, 2014, the Quinnipiac Law Review assembled an
interdisciplinary group of experts to address the causes of the crisis,
discuss the legal and ethical frameworks helpful to producing a useful
debate on the topic, and to explore novel mechanisms for disseminating
information and catalyzing action. A transcript of the resulting
Symposium on International Wildlife Trafficking Law and Policy, held
before an engaged, lively audience and webcast across cyberspace, lies
in these pages.
Marta Daniels and Jeff Hostetler commence the proceedings by
providing the historical backdrop in the form of a sketch of
Connecticut’s one-hundred year history as the center of the North
American use of ivory in the construction of piano keys and other
utilitarian objects. Joyce Tischler, co-founder of the Animal Legal
Defense Fund and its current general counsel, provides an impassioned
plea for re-conceptualizing our notions of non-human animals. Adam
Roberts, CEO of Born Free USA and acting CEO of the Born Free
Foundation, outlines creative strategies for combatting illegal wildlife
trafficking. Michael Harris, wildlife law program director for the animal
rights advocacy organization Friends of Animals, sketches and
elucidates the applicable international and domestic legal principles.
Keynote speaker Joe Roman, author of Whale25 and Listed: Dispatches
from America’s Endangered Species Act,26 winner of the Rachel Carson
Environment Book Award in 2012, presents an engrossing and
informative discussion of threats facing the animal kingdom. Finally,
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[Vol. 33:457
Andrew Revkin, New York Times journalist and Senior Fellow for
Environmental Understanding at Pace University, discusses various tools
of environmental communication, including the use of social media and
blogging, which can effectively be employed in catalyzing engagement
in one of the most important legal, political, and policy battles of our
time.
Five decades ago, Rachel Carson prophetically articulated our
current circumstances:
We stand now where two roads diverge. But unlike the roads in Robert Frost’s
familiar poem, they are not equally fair. The road we have long been traveling
is deceptively easy, a smooth superhighway on which we progress with great
speed, but at its end lies disaster. The other fork of the road—the one “less
traveled by”—offers our last, our only chance to reach a destination that
27
assures the preservation of our earth.
May this Symposium aid you in choosing your path.
RACHEL CARSON, SILENT SPRING 277 (First Mariner Books 2002).
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27
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HOSTETLER FINAL (Do Not Delete)
4/25/2015 1:56 PM
CONNECTICUT’S ROLE IN THE IVORY TRADE: PART I
Jeffrey Hostetler*
I am flattered to be here doing God’s work. I am honored to be a
part of that. My goal here today is to explain how two little towns in
Connecticut became the primary destination for tons and tons of
elephant ivory.
Deep River is located on the west bank of the Connecticut River,
about ten miles north of the river’s mouth at Old Saybrook.1 The river is
about a mile wide at that point and a barge channel is maintained about
as far north as Hartford. The flood plain of the river now, as always, is a
large expanse of fresh water tidal marshes. There is about a three-foot
tide every day. This land floods; it floods in storms, and the spring
weather brings the water up five to ten feet above normal for several
weeks.2 It is a very great wildlife habitat and very ill-suited for human
activities, so it is has been well-preserved.3
European settlement of the Connecticut Valley began in 1636 with
a royal patent from the King, for the lands between New Haven and New
London.4 Settlement progressed pretty slowly. By 1800 a scattered
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461
* Jeffrey Hostetler is a Midwesterner by birth, an engineer by temperament and training,
and a local history hobbyist. He graduated from Purdue University. He is retired from a career
as a research metallurgist at Pratt & Whitney Aircraft Division of United Technologies and
has been an engaged resident of Deep River, Connecticut for more than forty years.
Hostetler’s presentation was given on November 8, 2014 at Quinnipiac University
School of Law and can be viewed at Quinnipiac Law Review—2014 Symposium—Marta
Daniels and Jeffrey Hostetler, YOUTUBE (Nov. 21, 2014), http://tinyurl.com/oslmw8f.
1
Caryn B. Davis, Focus on: Deep River, Connecticut, N. ENG. BOATING (Jan. 17,
2013), http://tinyurl.com/oh4a8ov.
2
See ELLSWORTH S. GRANT, “THAR SHE GOES!”: SHIPBUILDING ON THE
CONNECTICUT RIVER 8 (2000) (stating that the annual flooding of the Connecticut River
Valley contributes to its fertility).
3
Id. (describing the Connecticut River as “relatively unspoiled by development”).
4
See 2 HARPER’S ENCYCLOPAEDIA OF UNITED STATES HISTORY 27 (1905) (discussing
how the Dutch laid claim to the territory adjoining the Connecticut River, “while the English
made a counter-claim soon afterwards, based upon a patent issued by the King to English
subjects”); DEP’T ECON. & CMTY. DEV., STATE OF CONN., HISTORIC AND ARCHITECTURAL
RESOURCES INVENTORY FOR THE TOWN OF DEEP RIVER, CONNECTICUT 10 (2011–2012),
available at http://tinyurl.com/nugkfwe [hereinafter DEEP RIVER HISTORIC AND
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462
4/25/2015 1:56 PM
[Vol. 33:461
05/08/2015 09:54:41
ARCHITECTURAL RESOURCES INVENTORY].
5
See J. Ritchie Garrison, Farm Dynamics and Regional Exchange: The Connecticut
Valley Beef Trade, 1670–1850, 61 AGRIC. HIST., Summer 1987, at 1, 3.
6
Id.
7
DEEP RIVER HISTORIC AND ARCHITECTURAL RESOURCES INVENTORY, supra note 4,
at 14, 18.
8
Id. at 18.
9
Donald L. Malcarne & Brenda Milkofsky, Ivory Cutting: The Rise and Decline of a
Connecticut Industry, CONNECTICUTHISTORY.ORG, http://tinyurl.com/lltmuyq (last visited
Mar. 6, 2015).
10
Richard Conniff, When the Music in Our Parlors Brought Death to Darkest Africa,
AUDUBON, July 1987, at 78.
11
Id. at 77–78.
population of mostly farmers existed. The land away from the flood
plain is steep and rocky, and the soil is thin; it is not very good farm
country.5 The serious farmers in the area headed for Ohio as soon as they
heard this, while the rest of them were able to eke out a living raising
livestock; it was about the only cash crop that you could put together.6
Shipbuilding developed along the shore of the Connecticut River
because out of these hills we have a lot of permanent streams, which the
locals harnessed for the power sawmills,7 and a lot of the timber was
used to build ships. The shipbuilding created some non-farm
employment, and that generated villages on high ground near the river
shore. It also produced a provisioning industry that grew modestly
throughout the eighteenth century.8
A side effect of the provisioning industries, that is butchering
livestock and provisioning ships, is that you got a lot of byproduct,
specifically, bone, horn, hoof. A cottage industry developed in the area,
with small articles being made out of these products. They were
typically buttons and, most significantly, combs. Combs could be made
out of a variety of things including hoof, horn, and elephant ivory.9 Ivory
is particularly well suited to a comb because the material is naturally
white, so you can keep it clean and see what you caught. Combs were an
important part of daily grooming because, in the days before daily
shampoo and showers, all kind of critters lived in people’s scalps, and
people did not like them.10 So it was an important part of daily grooming
and the ivory comb was a market preference.
Around 1800, a fellow in Essex, Phineas Pratt, invented a machine
to automate the cutting of the fine teeth for the production of fine-tooth
combs.11 The automation not only produced a better product, a more
uniform product, but also reduced cost by being powered with
waterpower. That is every businessman’s dream: to make a better
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12
13
Id. at 78.
See generally JAMES PARAKILAS, PIANO ROLES: A NEW HISTORY OF THE PIANO 7–25
(2001).
14
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Id. at 11.
See id. at 13.
16
See The Classical Piano Information Page, CLASSICAL CAT, http://tinyurl.com/lhtjvs5
(last visited Mar. 6, 2015).
17
See Conniff, supra note 10, at 83–85.
18
See ANNE FARROW ET AL., COMPLICITY: HOW THE NORTH PROMOTED, PROLONGED,
AND PROFITED FROM SLAVERY 203 (2005).
19
See Anne Farrow, Chapter Seven: The Last Slaves, HARTFORD COURANT (Sept. 29,
15
product cheaper and to bring it to market. So once Phineas had this
machine, many of his sons and sons-in-law opted to go into the comb
business and small comb shops showed up along mill sites up and down
the area.12
During the eighteenth century, there was a lot of development in the
piano industry, especially in Europe.13 The harpsichord, the predecessor
of the piano, is a wonderful chamber instrument, but you can’t project
with it or control volume.14 You wouldn’t think of the piano as a product
of the industrial revolution, but it is. You need a reliable source of metal
wire because the piano depends on metal strings struck by a felt
hammer15—when you put a lot of tension on a metal string, you need a
cast iron frame to support all that force. The developing of casting
technology and wire technology, mostly in Italy, produced what is now
the modern piano.16
By 1800, during the time when Phineas was automating the comb
business, composers were writing for the piano, Protestant congregations
were starting to incorporate congregational singing into their practices,
and public sheet music was becoming more available; the piano started
to grow.17 Pianos are big and bulky, which makes them hard to ship.
Therefore, to keep control of shipping and handling, American piano
makers tended to locate in cities.
American piano makers also chose to buy ivory veneers for the
keys. The keyboard from the harpsichord came intact over to the piano.
It is a wonderfully intuitive design, as the note and the intervals between
them are laid out in an intuitive manner making it a great composing
instrument. There is a good reason why you didn’t want to mess with the
keyboard. Long practice had established ivory as the preferred veneer
for organ and harpsichord keys and that came over to the piano.18
American manufacturers wanted to buy their ivory key veneers
from the people who were already processing ivory, that is, the comb
makers.19 To a comb maker, a piano key is just a comb without all those
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2002), http://tinyurl.com/n39sfcs.
20
See How a Piano Works, PIANO TECHNICIANS GUILD, http://tinyurl.com/nl9pfyg (last
visited Apr. 12, 2015).
21
See CRAIG A. ORR, ARCHIVES CTR., THE NAT’L MUSEUM OF AM. HISTORY,
REGISTER OF THE PRATT, READ CORPORATION RECORDS, 1838–1990, 1 (1993), available at
http://tinyurl.com/k3c28lc.
22
Deep River and the African Elephant, DEEP RIVER HIST. SOC’Y,
http://tinyurl.com/nbrtcuz (last visited Mar. 6, 2015).
23
Bill Ryan, Two Towns, Sad Legacy from the Old Ivory Trade, N.Y. TIMES (Sept. 20,
1998), http://tinyurl.com/nqsc3l5.
24
See Conniff, supra note 10, at 83.
25
See Malcarne & Milkofsky, supra note 9.
26
Id.
annoying teeth. Certain enterprising comb makers chose to embrace their
new customers and make more and more of the insides of the piano. So
piano keys and actions20 became the local core business.21 That is the
transition—that is how the ivory demand came to Connecticut. The
piano became more and more popular and by about 1860 a couple of
local major commitments into the piano business existed. First, George
Read formed Pratt, Read and Company, based in Deep River, by
consolidating a bunch of his friends and relations who were in the comb
business and the wood turning business. Its main business was piano
keys and actions.22 Second, another independent company was
Comstock, Cheney and Company, in the adjoining town of Ivoryton. It
followed the Victorian paternalistic model of building a company town
by building in Ivoryton: the housing, a library, a theater, institutions,23
and its factory, for the sole purpose of competing with Pratt Read in
making piano keys and actions.24
By nature, the piano is a cyclical business. When times were good,
a lot of competition existed for workers. The influx of workers generated
housing. A lot of the workers were immigrants and they brought along
their ethnic institutions and their own church preferences. Each town
grew up around its own labor force.25 Bad times were characterized by a
scramble to try to find some other product to make, to take advantage of
one’s plant and talent, to ride through and be there when the next wave
occurred.
The two companies competed through good times and bad, until
business declined. About 1900 was the high water mark for the piano.
Revolutionary changes in communication, radio, and transportation kind
of let the air out of the piano balloon.26 The piano in the parlor ceased to
be the focal point of American society. The two companies competed,
rode the tide down, and merged in 1936. The merged company moved
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27
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See id.
Id.
29
ORR, supra note 21, at 6.
30
See id.
31
Rob Varnon, Workers Hope for Aid in Closing, STAMFORD ADVOC. (June 25, 2010,
11:19 PM), http://tinyurl.com/pxx3jng.
32
Id.
33
See Christopher Joyce, Elephant Slaughter, African Slavery and America’s Pianos,
NPR (Aug. 18, 2014, 1:11 PM), http://tinyurl.com/nyy5r4p; see also Ryan, supra note 23.
28
operations down to Ivoryton, which was the newer plant, but kept the
name Pratt Read because it seemed to have the better image in the
marketplace.27 In one of the more brilliant strategic moves, the company
built military gliders during World War II,28 as a conversion from a
civilian to a military product. That let the company hire their customers
as subcontractors to make glider parts, and then, once World War II
ended, everyone went back to the music business as fast as they could
go.
Eventually, a hundred-year rainstorm occurred for us in 1982. It
blew out a series of dams on the Falls River in Ivoryton where
Comstock, Cheney and Company was located.29 It flooded out the
company’s plant and offices and, most significantly, blew away an
irreplaceable lumber supply.30 That was the end of the local piano
business. The company survived until 2010, making screwdrivers in
Bridgeport.31 The company logo included an elephant like it always had,
only with a screwdriver in its trunk.32
The towns survive today. Neither town grew enough that you had to
demolish a lot to accommodate progress, so pretty much everything that
ever was built is still there. We have a great stock of housing, most of it
built in spurts during the piano balloons. Architectural phases are
missing because it did not happen to be a propitious time for us. The
major factory buildings still exist. The largest primary manufacturing
building is now a residential condominium complex.33 The other satellite
plants in Deep River continue to produce industrial products and provide
local jobs, although most people now use our recently provided modern
highways to commute to jobs in surrounding areas. I kind of hate to pull
the lid off it. It is a really nice place to live. It is very, very pretty. Come
and visit, but don’t stay. So, anyhow, that is how ivory ended up coming
through Deep River and went from there to piano manufacturers all over
the country. It ended up in every church, every living room, every dance
hall, and every concert hall. It built the town we have today. Thank you.
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DANIELS FINAL (Do Not Delete)
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CONNECTICUT’S ROLE IN THE IVORY TRADE: PART II
Marta Daniels*
Let me just say thank you very much to Quinnipiac University Law
School and to Professor John Thomas and his wonderful students. It is
an honor to be here with you and with our Historical Society President,
Jeffrey Hostetler, and his wife. He is one of my local heroes back in the
Connecticut River Valley.
We are going to move from factories in Deep River to elephants in
Deep River. Almost twenty years ago, a New York Times reporter, Bill
Ryan, wrote about two towns near the mouth of the Connecticut River
whose prosperity had been built on the ivory industry.1
Today that industry would provoke screams of rage from human rights and
animal rights activists for the dead bodies, thousands upon thousands of them,
human and animal, that the industry left in its wake. The towns are Deep River
and Essex and the industry was ivory, the importing of elephant tusks from
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* Marta Daniels is a writer, activist, and historian whose thirty-five-year professional
career focused on expanding and improving civic engagement in public policy issues on
peace, justice, and the environment. She was the executive director and project co-director for
half a dozen national organizations including OPTIONS: A University Outreach Program on
International Security based at Brown University, the National Endowment for the
Humanities’ Choices Library Project in thirty-seven states, and the Connecticut Humanities
Council’s Seminars in the Professions. She is the author of several books, dozens of research
papers, and hundreds of articles. In retirement, Daniels’ interest in northern slavery and early
American history led to her co-discovery in 2009 of a missing tract of farm land in
Stonington, CT purchased in 1770 by famous freed black slave Venture Smith. Lost for over
200 years, the site will be added to the Connecticut Freedom Trail. In 2011, that same interest
in slavery led to Daniels’ research on Connecticut’s 100-year role in the world’s ivory trade.
Her involvement with other Connecticut River Valley citizens opposed to wildlife trafficking
led to a National Public Radio story about the state’s past ivory history, and the plight of
elephants today. “Elephant Slaughter, African Slavery And America’s Pianos,” aired on
Morning Edition (Aug. 19, 2014), and is available at http://tinyurl.com/k6fy4x8.
Daniels’ presentation was given on November 8, 2014 and can be viewed at
Quinnipiac Law Review—2014 Symposium—Marta Daniels and Jeffrey Hostetler, YOUTUBE
(Nov. 21, 2014), http://tinyurl.com/oslmw8f. Daniels wrote a companion essay to accompany
this transcript, which is available at www.quinnipiac.edu/qlr/daniels. All images courtesy of
The Deep River Historical Society.
1
Bill Ryan, Two Towns, Sad Legacy from the Old Ivory Trade, N.Y. TIMES (Sept. 20,
1998), http://tinyurl.com/nqsc3l5.
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Africa and the cutting of them into combs and knife handles and . . . piano
keys at a time in America when every family had a piano, or wanted
one. . . . [T]he sight of elephant tusks being hauled off the decks of steamships
at river landings, or being transported to factories in horse-drawn wagons, was
once so commonplace that no one turned a head. The two companies that
shaped the[se] towns for generation after generation . . . are [only] memories
[now], but their buildings remain—Pratt, Read’s now a condominium complex
known . . . as The Piano Works and Comstock, Cheney’s now mostly occupied
2
by other businesses.
For ten years on my way to work I drove past the Victorian era
Pratt, Read piano factory in Deep River, now the Piano Works Condo,
not knowing its dark secret. I always thought it was cool that we had a
big handsome red brick factory that once made pianos, and is even on
the National Register of Historic Places.3
Id.
DEP’T OF THE INTERIOR, NAT’L REGISTER OF HISTORIC PLACES, INVENTORY—
NOMINATION FORM 10-900 (July 5, 1984) (on file with Quinnipiac Law Review).
3
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2
Pratt, Read & Company Piano Keyboard Factory,
Deep River, Connecticut. Front entrance, circa 1985.
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Ariel view of the Pratt Read Piano Keyboard Factory, Deep River,
Connecticut, circa 1910.
But my ignorance was challenged in 2002 by a Hartford Courant
Northeast Magazine article, and now book, Complicity: How the North
Promoted, Prolonged, and Profited from Slavery, by Anne Farrow, Joel
Lang, and Jennifer Frank.4 One chapter of the book, “Plunder for
Pianos,” was devoted to my red brick factory and another factory in
Essex. It documented how, in the nineteenth century, millions of
Africans were enslaved for the transport of hundreds of thousands of
elephant tusks from the interior of Africa to the coast of Zanzibar.5 That
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4
ANNE FARROW ET AL., COMPLICITY: HOW THE NORTH PROMOTED, PROLONGED, AND
PROFITED FROM SLAVERY 191–213 (2005); see also Rinker Buck, The Roots of ‘Complicity,’
HARTFORD COURANT (Sept. 25, 2005), http://tinyurl.com/lmdujqj; Complicity: How
Connecticut Chained Itself to Slavery, HARTFORD COURANT (June 3, 2014, 10:09 AM),
http://tinyurl.com/p7vojnl.
5
FARROW ET AL., supra note 4, at 198–200, 207 (“The first big hurdle in the ivory
supply system was transporting the tusks—many were as heavy as 80 pounds—from the
killing grounds to coastal trading centers at Mombasa, Mozambique, and Zanzibar. . . . [T]he
burden of moving ivory tusks to trading centers on the east coast of Africa fell squarely on
ivory’s human porters. . . . For them, it was brutal and often lethal . . . . Their villages in
flames behind them, these captured people, shackled together and carrying the heavy tusks,
walked as far as 1,000 miles to the coast. Many died en route, and the longer the journey, the
worse the casualties. Nothing could have prepared English missionary Alfred J. Swann for the
horrors of the ivory caravans he saw in Africa in the 1880s. The feet and shoulders of ivory’s
black porters were a mass of open sores, made more painful by the swarms of flies that
followed the march and lived on the flowing blood. Swann said the porters were ‘a picture of
utter misery’ and were covered with scars left by the chikote, a leather whip made of twisted
rhinoceros hide. . . . As elephant populations in East Africa dwindled and ivory had to be
harvested from elephants in Central and West Central Africa, the journey to the coast got
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is now Tanzania, twenty miles off the coast of Mozambique. These tusks
were then shipped by boat to that lovely red brick factory in Connecticut
to provide the material that made the ivory veneer for piano keys and
their wooden actions.6
Comstock, Cheney & Company Piano Keyboard Factory, Ivoryton (Essex),
Connecticut, circa 1890.
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longer and harder for ivory’s human porters. . . . . Ujiji, the ivory and slave-trading center on
the eastern shore of Lake Tanganyika . . . was 700 miles from the coast, but the trek was often
even longer.”).
6
See id. at 205. Tusks were hauled up from landings by wagon cart along the local
streets—Kirtland Street in Deep River, and West Main in Essex—to the big red factories
where the ivory keys and their wooden actions were made. See JOHN FREDERICK WALKER,
IVORY’S GHOSTS: THE WHITE GOLD OF HISTORY AND THE FATE OF ELEPHANTS 132 (2009).
7
See Donald L. Malcarne & Brenda Milkofsky, Ivory Cutting: The Rise and Decline of
a Connecticut Industry, CONNECTICUTHISTORY.ORG, http://tinyurl.com/lltmuyq (last visited
Mar. 6, 2015); see also FARROW ET AL., supra note 4, at 206 (“Of the thousands of tons of
ivory that passed through Zanzibar during the nineteenth and early twentieth centuries, 75
percent of the total came to Connecticut.”).
8
FARROW ET AL., supra note 4, at 200, 203–04, 207 (internal quotation marks omitted);
see also Malcarne & Milkofsky, supra note 7 (“[A]n adult African elephant tusk of 75
For sixty years, between 1860 and 1920, up to ninety percent of the
world’s unworked ivory came by river to Deep River in Essex and onto
the docks in the form of whole elephant tusks to make piano keys. 7
Seventy-five percent of what arrived was called “Zanzibar Prime” ivory,
the highest quality and the heaviest weight ivory; the tusks, which
averaged about eighty-pounds, could make the white keys for forty-five
pianos.8 By the first decade of the twentieth century, the prodigious
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output of the two Connecticut factories resulted in annual piano sales of
350,000 a year at its height, making the United States the largest piano
manufacturer in the world, far outranking its closest competitor,
Germany.9 So expansive and profitable was Deep River’s part of it—the
keyboards—that the trade earned our little river town its title, “Queen of
the Valley.”10
Thirty-two tusks of ivory worth $9,000 hauled by wagon up Kirtland Street from
the Connecticut River to the Pratt Read Factory, Deep River, post card, 1906.
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pounds, properly milled, could yield the wafer-thin ivory veneers to cover the keys of 45
pianos.”).
9
See Malcarne & Milkofsky, supra note 7 (“During the initial decade of the 20th
century, the annual figure for number of pianos sold exceeded 350,000. Pratt, Read &
Company, along with Comstock, Cheney & Company, supplied the majority of keyboards and
actions to the various piano manufacturers, including Baldwin, Chickering, Wurlitzer, Everett,
and Sohmer.”); see also WALKER, supra note 6, at 126 (“Although there were more
Europeans than Americans in Zanzibar in the 1880s, Americans held on to their commanding
lead in the ivory business; their firms had orders for twelve thousand pounds of ivory a month
and no problem filling them.”); E.D. MOORE, IVORY: SCOURGE OF AFRICA 235 (1931) (“The
Yankee ivory-cutters of Deep River and Ivoryton, Connecticut, and a third . . . in
Buffalo . . . manufacture the keyboards for practically all of the pianos made in this country,
Canada, and Australia, and are the largest individual users of ivory in the world.”).
10
See Christopher Joyce, Elephant Slaughter, African Slavery and America’s Pianos,
NPR (Aug. 18, 2014, 1:11 PM), http://tinyurl.com/nyy5r4p.
To learn more about this extraordinary business, I began to read
other sources. One of the most revealing was a 1987 Audubon essay,
When the Music in Our Parlors Brought Death to Darkest Africa, by the
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11
See Richard Conniff, When the Music in Our Parlors Brought Death to Darkest
Africa, AUDUBON, July 1987, at 77.
12
Id.
13
FARROW ET AL., supra note 4 at 206 (“For more than a century, Connecticut was a
center of ivory knowledge, the center of ivory manufacturing in America, and a world leader
in the business. Of the thousands of tons of ivory that passed through Zanzibar during the
nineteenth and early twentieth centuries, 75 percent of the total came to Connecticut.”); see
also Joyce, supra note 10.
14
See Conniff, supra note 11, at 85 (“In the post-Civil War prosperity of 1867, the
Atlantic Monthly noted that for a couple setting up house, the piano was ‘only less
indispensable than a kitchen range.’ The piano in the parlor did not merely embody the ideal
of the family at home; it helped create it.”).
15
MOORE, supra note 9.
16
Id. at xvi (“During all the turbulent period of which I write my people lived and traded
there for the ivory spoil the Arabs brought out from the depths of the mysterious interior.
Old Lyme conservation wildlife writer Richard Conniff.11 In 1987, he
lived down by the Deep River landing where the tusks were once
offloaded from Africa. I learned from Conniff that during this sixty-year
(1860–1920) peak period, 25,000 to 100,000 elephants died each year,
“the vast majority of them to supply the raw material for the piano keys
that brightened every Victorian parlor.”12 I wondered, “How many
elephants exactly, in total, were sacrificed for this 100-year Connecticut
manufacturing achievement?”
It was a manufacturing achievement. Our local industry in ivory
spanned a hundred years, from 1840 to 1940,13 with a giant increase
between 1860 and 1920 due to the industrial revolution that produced
sheet music in mass quantity and encouraged people to play the piano.14
People had no other form of entertainment beyond going to concerts.
I was keenly interested in the number of tusks imported into
Connecticut during this period. I wanted to know for a long time, but,
after consulting all the local historians in our area, it quickly became
clear that the question could not be answered definitively. The company
records for tusks and pounds imported were scattered or lost. Some of
them were at the Smithsonian, some in the possession of descendants,
some in local libraries, and some destroyed by fire. We would have to
settle for estimates and general figures based on the known numbers of
recorded tusks and elephant kills. This is when I learned about Ernst
Moore’s 1931 book, Ivory: Scourge of Africa.15
Moore was a Comstock, Cheney & Company employee, and later
Pratt, Read & Company employee. He was the on-site ivory buyer for
Connecticut’s two businesses between 1907 and 1911. He lived in
Zanzibar, went on ivory expeditions with natives, and chose the tusks for
export to his Connecticut companies.16 His job required him to pay for
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the tusks and to catalog each one for quality, size, and weight.17 His
knowledge in the industry spanned the old and the new century and
positioned him at the heart of darkness, at the height of elephant taking.
Ernst Moore, (center top, no hat) ivory buyer for Pratt, Read Co., buying 355
tusks in Zanzibar weighing 22,000 pounds, circa 1910.
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I . . . in my turn went to Africa to trade for the precious stuff; and I dare say I held in my own
hands as many large ivory tusks as any man in the world in my time, as my predecessors had
in theirs.”); see also Conniff, supra note 11, at 91; Ernst D. Moore Papers, 1888–1932,
SMITHSONIAN INSTITUTION, http://tinyurl.com/opxmoa5 (last visited Apr. 14, 2015) (listing
the current physical location of Ernst Moore’s papers, photographs, etc.); WALKER, supra
note 6, at 109, 112, 116 (“While stationed at Mombasa Moore also ventured into the interior
after ivory, meeting hunters, poachers and traders. ‘I had at and under my table some of the
most rascally ivory thieves . . . or most eminent sporting adventurers . . . who graced the
eastern half of Africa,’ he recalled.”).
17
Conniff, supra note 11, at 91; see generally MOORE, supra note 9.
Moore’s book, published well after he retired in 1931, is a stunning
and haunting condemnation of the brutal ivory trade. But at the time he
was participating in it, he was a shrewd buyer and showed no
squeamishness. He said, “Our lives were so crammed with our business
and adventure that we were perfectly content to take what we had and
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make the best of it.”18 No one else questioned the supply of elephants or
how they were acquired either.
After he retired, Moore’s true feelings about the nature of his work
and the ivory trade came to full view in his memoir. I am going to read
to you just a few short passages to give you a sense of this classic
twentieth-century style of writing.
I cut my teeth on ivory in more ways than one, and in my turn went to Africa
to trade for the precious stuff; and I dare say I held in my own hands as many
large ivory tusks as any man in the world in my time, as my predecessors had
in theirs.19
Ivory-hunting was not a sport, then, but a cruel, bloody business, as terrible a
vocation as the world has ever seen. . . . The bloodshed and cruelty, the
inhumanity and suffering the precious ivory caused, never can be fully
known. . . . The quest for ivory turned thousands of square miles of fertile
country into a wilderness of rapine, plunder, and fire-blackened ruin. Hundreds
of thousands of mighty elephants were slain; but for every elephant that
perished for its ivory a dozen human lives were wrecked or snuffed out in the
search, the seizure, and the transport of it. The fate of the unhappy land in
those years of ivory-raiding makes an almost incredible story. Yet true it is.20
I gathered the story of the Scourge of Africa, of the ivory treasure that was
garnered in the blood of beast and man in a welter of cruelty and carnage that
21
the world never will see again.
18
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Conniff, supra note 11, at 91 (internal quotation marks omitted).
MOORE, supra note 9, at xvi.
20
Id. at xv–xvi.
21
Id. at xvi.
22
Id. at 215. Moore notes that “the number of elephants killed each year for their
ivory . . . has been estimated by various authorities as from 40,000 to 100,000 prior to 1900;
but an accurate calculation of this kind was quite impossible then, for reliable export figures
were kept at only a few of the many ports . . . .” MOORE, supra note 9, at 213. His figures, he
said, were what he himself could document. See id. at 214. He then provides a way to imagine
what just one year of dead elephants would look like: “Thirty thousand dead elephants! If they
could have been collected in one spot, and piled on top of one another, they would have made
19
Moore’s book was the only source that provided us with hard
elephant figures for the years that Moore bought tusks or the years he
could verify. The direct knowledge of Ernst Moore in Africa at the
height of the elephant slaughter can give us a reasonable and reliable,
although conservative, estimate of total numbers. He wrote that between
1905 and 1912 alone, seven years, the world’s ivory trade took 30,000
elephants each year.22
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a pyramid measuring well over 300 feet along the base on each of its four sides, and about 300
feet high!” MOORE, supra note 9, at 215.
23
Esmond Martin, The Great White Gold Rush, BBC HIST., Aug. 2001, at 32 (on file
with Quinnipiac Law Review); WALKER, supra note 6, at 134.
24
See Joyce, supra note 10.
25
Press Release, The Deep River Historical Soc’y, National Public Radio Feature Story
on Connecticut’s Ivory Trade Airs on Morning Edition (Aug. 19, 2014) [hereinafter Deep
River Press Release], available at http://tinyurl.com/k6fy4x8. The town of Deep River
adopted the elephant as its town icon and placed a statue of the elephant outside Town Hall.
The plaque will be affixed to the statue. According to Dr. Paula Kahumbu, a distinguished
National Geographic Explorer and CEO of WildlifeDirect, an anti-poaching organization in
Kenya, “[The town’s] decision to adopt the African elephant as the town icon is an important
source of hope, and it has unlocked a compassion for elephants that would not have been
Extrapolating and using only Moore’s annual lower figure of
30,000 and applying it first to his own seven years, we get 210,000
elephants on his watch. For ten years, just three more years added, we
get 300,000. Calculated over the two highest decades of ivory
consumption, 1890 to 1910, 600,000 elephants were sacrificed.
Connecticut’s ivory trade spanned a hundred years, from 1840 to 1940;
allowing for off-years, a very conservative total number for elephants
killed could easily have reached 1,000,000.
Esmond Bradley Martin, a conservation expert living in Kenya and
the World Wildlife Fund’s ivory trade investigator and United Nations
special envoy, put forth a much higher estimate in 2001. Writing for
BBC History magazine, his essay, The Great White Gold Rush,
estimated that there were nearly 44,000 elephants killed each year from
1850–1914, equal to 700 tons of ivory every year, or 2,800,000
elephants killed.23 If Connecticut consumed even seventy-five percent of
that, our Connecticut elephant count comes to well over 2,000,000.
This is a staggering number to ponder; and the people of presentday Deep River and Essex have been pondering it. Many recognize that
we had a unique relationship with the elephant and now a special
responsibility to help prevent the elephant’s certain extinction if
poaching continues. We knew we couldn’t change the past, but we might
help influence the future. So, two years ago the Deep River Elephant
Tusk Force was formed as a local citizens group to raise public
awareness and gather support for anti-poaching efforts.24
Today the group has the cooperation of the whole town, from the
Historical Society, where the Tusk Force is housed, to the Rotary Club,
to the Selectman’s office, along with schools where elementary and high
school students participate. The town, via the Rotary Club, has placed an
elephant statue and a plaque at town hall to “Honor the Elephant.” 25 The
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plaque is about honoring the elephant and remembering our unique and
very special debt to this animal.
“We Honor the Elephant,” Town Hall, Deep River, Connecticut, 2013.
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possible in this community without its shameful history.” Paula Kahumbu, Deep River and the
African Elephant, NAT’L GEOGRAPHIC (Nov. 12, 2013), http://tinyurl.com/nbymxh4. Dr.
Kahumbu was a keynote speaker in 2013 at one of Deep River’s elephant education programs,
“where local funds were raised to support her group, as well as another international antipoaching organization, Save the Elephant.” Deep River Press Release, supra.
26
Kahumbu, supra note 25.
27
See
John
Heminway:
Filmmaker
and
Writer,
HEMINWAY.NET,
http://www.heminway.net/filmography.htm (last visited Mar. 8, 2015).
28
About Us, SHELDRICK WILDLIFE TR., http://tinyurl.com/c4xcrs (last visited Mar. 8,
2015).
The educational efforts of the Tusk Force have included a major
conference to educate our own citizens about our history, role, and
responsibility in the ivory trade. The conference last year brought
together representatives of several anti-poaching organizations,
including the director of WildlifeDirect, who traveled from Kenya, along
with representatives from the U.S. Fish and Wildlife Service antipoaching division.26 The filmmakers of the National Geographic
Society’s new film on elephants were also present to debut their
documentary, Battle for the Elephant.27 Moreover, money was raised for
all the anti-poaching organizations in attendance, including the David
Sheldrick Wildlife Trust in Kenya, which rescues orphaned elephants
and helps people adopt them.28
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477
Hundreds of orphaned elephants are now sponsored by the people
of Deep River. In addition, we are working with state legislators to enact
a Connecticut anti-trafficking bill that would join the New York and
New Jersey bills to prohibit the “import, sale, purchase, barter, or
possession of ivory or rhinoceros horn and items containing ivory or
rhinoceros horn . . . .”29 These bills are aimed at identifying and cutting
off all illicit ivory trafficking in the tri-state area. As some of you know,
this past summer our citizens’ efforts attracted the attention of National
Public Radio and led to the feature story about the historic role the towns
of Deep River and Essex played in the ivory trade and the plight of
elephants today.30
We know that our efforts are pitiful in comparison to the problem.
We have absolutely no illusions that the current massive poaching and
illicit ivory trafficking will be easily ended. The total number of African
elephants is now at 400,000, down from several million in 1890 when
Deep River was making so many piano keyboards.31 A new study
published by the National Academy of Sciences documents that 100,000
elephants were poached between 2010 and 2012.32 If present killing rates
continue—approximately a hundred elephants a day—to satisfy the
$18,000,000,000 a year ivory market centered in China,33 scientists say
elephant birth rates will be unable to keep pace.34 Extinction is predicted
29
05/08/2015 09:54:41
A.B. 3128, 216th Leg., 1st Annual Sess. (N.J. 2014); see also A.B. 8824, 237th Leg.
Sess. (N.Y. 2013). Connecticut’s bill, H.B. No. 6955, “An Act Prohibiting the Sale and Trade
of Ivory and Rhinoceros Horn,” was introduced in January 2015. See Raised Bill No. 6955,
CONN. GEN. ASSEMBLY, http://tinyurl.com/q37p7fr (last visited Apr. 20, 2015).
30
Joyce, supra note 10.
31
Tara D. Sonenshine, The War on Tusks, NAT’L GEOGRAPHIC (July 10, 2013),
http://tinyurl.com/o7vorwt (“According to experts at Columbia University, we have only
400,000 elephants left in the wild. 30,000 elephants are killed each year. A public education
awareness campaign must be waged worldwide to target the demand side of the elephant
equation.”). Tara D. Sonenshine is the “former Under Secretary of State for Public Diplomacy
and helped lead the anti-poaching efforts at the State Department.” Id.
32
George Wittemyer et al., Illegal Killing for Ivory Drives Global Decline in African
Elephants, 111 PROC. NAT’L ACAD. SCI. U.S. 13,117, at 13,118 (2014), available at
http://tinyurl.com/q3xk8yk (“Illegal killing rates were estimated to average ‫׽‬6.8% between
2010 and 2012, equating to an average of ‫׽‬33,630 elephants killed per y[ear] based on current
estimates of the species total.”).
33
The slaughter is being driven, in part, by transnational organized crime, including
those with terrorist connections. The ivory trade, part of an $18 billion illegal wildlife market,
is centered in China and the U.S., with the New York tri-state area the nation’s largest. See
TAMMIE MATSON, PLANET ELEPHANT 192 (2013) (“Today the wildlife trade is the fourth
largest illegal trade in the world after narcotics, counterfeiting of products and currency, and
human trafficking, and is worth an estimated US$18 billion, according to WWF.”).
34
Renee Lewis, Ivory Poachers Killing Elephants Faster Than They are Being Born, AL
JAZEERA AM. (Aug. 19, 2014, 8:38 AM), http://tinyurl.com/ltoelef (“Poaching has killed
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by 2024 for the forest elephant and by 2030 for the savanna elephant.35
Shockingly, the United States ranks as the second largest ivory market in
the world behind China.36
We are still culpable. People in nineteenth century Connecticut did
not understand what their use of ivory meant for the elephant or slaves,
just as the Chinese today turn a blind eye to poaching to satisfy their
desire for ivory trinkets. But people of the twenty-first century know
about the elephant’s plight and we are determined that on our watch we
will not allow this majestic animal to go extinct. So all hands on deck!
I want to leave you with a quote by anthropologist Margaret
Meade: “Never doubt that a small group of thoughtful, committed
citizens can change the world. Indeed, it is the only thing that ever
has.”37 I would amend her statement like this: Never doubt that a small
group of committed citizens—along with a large group of smart lawyers
backed by every world government—can strengthen and enforce antipoaching and illicit ivory trafficking laws, and change the world for
elephants. Indeed, it is the only thing that will. Thank you.
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7 percent of the continent’s elephant population annually from 2010-2013, but their birth rate
is just 5 percent, according to the report.”).
35
Extinction Looms for Forest Elephants, WILDLIFE CONSERVATION SOC’Y (Mar. 7,
2013), http://tinyurl.com/ltkvbka (“Following the largest study ever conducted on the forest
elephant in Central Africa, conservationists say the species could vanish within the next
decade. The study comes as 178 countries gather in Bangkok to discuss wildlife trade issues,
including poaching and ivory smuggling. A new study confirms what conservationists have
long feared—forest elephants are heading for extinction. The research, conducted by more
than 60 scientists working in five Central African countries, reveals dire numbers: A
staggering 62 percent of forest elephants have been killed for their ivory throughout the past
decade. And few safe havens remain: Almost a third of the land where these animals were
able to live 10 years ago has become too dangerous for them. Increased poaching tracks rising
consumer demand for ivory in the Far East.”); see also Agence France-Presse, African
Elephants Could be Extinct in Wild Within Decades, Experts Say, GUARDIAN (Mar. 23, 2015,
11:42 PM), http://tinyurl.com/nmfshfu (“African elephants could be extinct in the wild within
a few decades, experts have warned at a major conservation summit in Botswana that has
highlighted an alarming decline in numbers due to poaching for ivory. The Africa Elephant
Summit, held at a tourist resort in Kasane, gathered delegates from about 20 countries across
Europe, Africa and Asia, including China—which is accused of fuelling [sic] the illegal
poaching trade. . . . The conference heard the latest figures from the International Union for
the Conservation of Nature, which reported that the African elephant population had dropped
from 550,000 in 2006 to 470,000 in 2013. East Africa has seen the worst decline, from
150,000 to about 100,000.”).
36
Kelly Hearn, U.S. One of Largest Ivory Markets, New Study Says, NAT’L
GEOGRAPHIC (May 5, 2008), http://tinyurl.com/6ydu4q; see also ESMOND MARTIN & DANIEL
STILES, SAVE THE ELEPHANTS, IVORY MARKETS IN THE USA 5 (2008), available at
http://tinyurl.com/ns35d5y.
37
Philanthropy Quotes, NAT’L PHILANTHROPIC TR., http://tinyurl.com/kpq558t (last
visited Mar. 8, 2015).
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QUESTIONS & ANSWERS
05/08/2015 09:54:41
38
See Rep. Miller Joins Sen. Blumenthal Urging Federal Action on “Right to Know”
GMO Legislation, CONN. HOUSE DEMOCRATS (June 7, 2013), http://tinyurl.com/k8ndb65.
39
See Raised Bill No. 6955, supra note 29.
PRISCILLA FERAL: I am with Friends of Animals. I was wondering
whether in Deep River antique dealers and retail operators shun the sale
of ivory, whether it is antique or not? Do you have to accomplish that by
force or with a legal mandate, or do you have that kind of spirit among
people who can profit from the sale?
MARTA DANIELS: I can answer that, because I am a part-time
antique dealer and I have had the same question. I can only say this
anecdotally. I know most of the dealers in the Deep River, Chester, and
Essex areas; and the dealers with whom I have talked about this matter
say, “We don’t touch it. We don’t sell it, we don’t try to sell it. We don’t
want to sell it.” So anecdotally, on a personal level, I can say from what
I have heard that they don’t do it. That is not to say that somebody isn’t
doing it. Who knows? But from what I have understood, it is at a
minimal level.
SUZAN PORTO: I am with the Connecticut Bar Association’s
Animal Law Section. I commend your work and I am wondering how
we can help you with your work to bring justice for animals?
MARTA DANIELS: Think globally, act locally. Everyone must do his
or her part. The people of Deep River stepped up when they saw the
connection in their present life to the past. The question is do people in
the present have responsibility for what generations did before? But even
if you leave that question alone, the answer is you have to do what you
are called to do. We don’t pretend to know the best answer. I asked
Professor Thomas, “Is there anyone here today who is going to talk
about the definitive answer about how to stop this?” He said, “We hope
we will have a number of people talking about that.”
One thing we saw clearly that Connecticut could do, and I urge you
to join us, is to support the state legislators, like State Representative
Philip Miller, who sponsored a bill in 2013 calling for a state law
mandating the labeling of foods that contain genetically modified
organisms (GMOs), which was approved in June 2013.38 He is going to
introduce a piece of legislation, we hope—he said he wanted to, but he
had to get through the election first, and he did. He is going to take what
they did in New Jersey and New York and try to build a consensus bill
around it in Connecticut.39 You could certainly support that.
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EDITA BIRNKRANT: I am also from Friends of Animals, and relating
to the question that Priscilla asked, because it is something I was just
dealing with in the last few days, there is the Antique Dealers’
Association of America (ADA).40 We had one of our members contact
us, who is a member of the ADA, stating that the president of the ADA
had sent out a letter. Essentially, what the ADA is trying to do is support
federal legislation that would weaken the new ivory policy for the U.S.
Fish and Wildlife Services.41
I spoke to the woman who is the head of the ADA about this, and,
essentially, the ADA’s position is that it does not want to support
anything that is going to prohibit it from selling old ivory. That was
troublesome to me. There is a lobby effort to pass this federal legislation
with the intent of invalidating all the state legislation and I think the
National Rifle Association (NRA) is behind it.42 I think that is something
to focus on and that this effort should be stopped.
MARTA DANIELS: I hear you and I agree. I talked to Professor
Thomas when he originally asked us to come and speak about our
thoughts on the topic. I was concerned about it for guitars; the bone in
the saddle is a problem. And for the first time that I am aware of, one of
the biggest antique guitar dealers in America, George Gruhn in
Tennessee, is joining with the NRA to support this.43
So it is an uphill battle, but it is their livelihoods, and like
livelihoods that we saw a hundred years ago, it takes all forms. It
requires a lot of different approaches. I hear what you are saying, but I
don’t have the answer.
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40
See About Our History, ANTIQUE DEALERS’ ASS’N AM., http://tinyurl.com/pg3olq3
41
See Matt Shuckerow, Reps. Young and Peterson Introduce Legislation to Protect
Lawful Ivory Possession, NATIVE NEWS (Feb. 4, 2015), http://tinyurl.com/p3x3dnj (“The
legislation, the African Elephant Conservation and Legal Ivory Possession Act of 2015, would
effectively end the U.S. Fish and Wildlife Service’s unilateral moratorium on the importation,
exportation, and sale of lawfully possessed ivory, while also making significant efforts to
assist anti-poaching efforts in countries with elephant populations.”); H.R. 697, 114th Cong.
(2015).
42
See Update on the Obama Administration’s Proposed Ban on the Domestic Sale of
Ivory and Importation of Elephant Trophies, NRA-ILA (May 23, 2014),
http://tinyurl.com/ofsolw6 (“The NRA supports efforts to stop poaching and the illegal trade
of ivory, but this proposed ban on legally owned ivory sold domestically will have no impact
on poaching of elephants and the illegal ivory trade. On the contrary, this ban will only affect
honest law-abiding Americans by making their possessions valueless.”).
43
See Nate Rau, Federal Ivory Ban Hampers Music Industry, TENNESSEAN (Apr. 20,
2014, 2:40 AM), http://tinyurl.com/lybmycz. see also Tom Mashberg, Limits on Ivory Sales,
Meant to Protect Elephants, Set Off Wide Concerns, N.Y. TIMES (Mar. 20, 2014),
http://tinyurl.com/p988qd3.
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LAURA SAUCIER: You mentioned that the United States is the
number two consumer of ivory.44 Is it still the same product? Ivory keys?
MARTA DANIELS: Perhaps Professor Thomas knows?
JOHN THOMAS: A great deal of the trade in ivory is in antique
trinkets.45 Some have been reshaped to play different roles in different
products, like musical instruments. On the question of the movement for
a change of federal law, in respect to ivory, in simple fashion, it is still
saleable in the United States if it’s over a 100 years old, came into the
country before it was listed on the applicable treaties and hasn’t been
changed since that time.46 The burden is on the owner to prove the item
is over 100 years old, to legalize the sale.47 The driving force behind
changing the law, by what is now known as the most effective lobby
association in the country, the NRA, is to erase the requirement that the
ivory has not been changed and, in addition, to put the burden of proof
on the government to prove that it is not legal.48 That would change
things dramatically. The laws currently in place in New York49 and New
Jersey,50 ban any kind of sale of the substance, no matter how old it is.
And California is also considering a similar proposition.51 I do have a
couple of questions. First for Marta, can you tell us the number of people
who died carrying the tusks?
MARTA DANIELS: These are figures we used from Dr. David
Livingstone, the great explorer, who in the 1850s, ’60s and ’70s, lived
and traveled in Africa exploring and looking for the source of a lot of
rivers.52 The human trafficking that supplied the workforce for the
transport of the tusks horrified him.53 In his last journal, Dr. Livingstone
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See Hearn, supra note 36; MARTIN & STILES, supra note 36, at 5.
See, e.g., Elephant Slaughter Escalates as Illegal Ivory Market Thrives, ANIMAL
WELFARE INST., http://tinyurl.com/osk8kzx (last visited Mar. 8, 2015).
46
See 16 U.S.C. § 1539(h) (2012).
47
Id. § 1539(g).
48
See Support the Lawful Ivory Protection Act, NRA-ILA (July 18, 2014),
http://tinyurl.com/m69uhs6.
49
See N.Y. ENVTL. CONSERV. LAW § 11-0535-a (West, Westlaw through L. 2014,
chapters 1–552).
50
See N.J. STAT. ANN. § 23:2A-13.3 (West, Westlaw through L. 2015, c.3).
51
A.B. 96, 2015–16 Reg. Sess. (Cal. 2014).
52
See History: David Livingstone (1813–1873), BBC, http://tinyurl.com/n7fmxhg (last
53
David Livingston, 1871 Field Diary 67–68 (unpublished manuscript) (on file with the
Livingston Library at UCLA), available at http://tinyurl.com/nhq5g8n; see also FARROW ET
AL., supra note 4, at 199 and 202–03. David Livingstone stated: “[I]t was almost impossible
to write about the slave trade in East Africa without being accused of exaggeration, because
the truth was so horrific.” Id. at 202.
45
44
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documented, according to his own years of experience, that for every
tusk that was carried out of Africa to the coast, there were at least five
Africans enslaved to carry each tusk.54 Some people say the number was
much higher. The reason the number was at least five was that half the
people did not make it to the coast, so one needed the remainder to get
the material there; once they got to the coast they were sold as slaves,
and usually went to Brazil, the West Indies islands, or some other
country.55 In Connecticut, Dr. Malcarne, who was the town historian for
Essex, the counterpart to Jeffrey Hostetler, worked with Brenda
Milkofsky, the chief archivist of this material and the most
knowledgeable about Deep River’s and Essex’s ivory trade. They, along
with Anne Farrow, put together what Comstock, Cheney and Company
54
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FARROW ET AL., supra note 4, at 209 (“The equation first formulated by Livingstone is
one modern historians use as well: Five black people were killed or forced into slavery for
each elephant tusk that reached the coast. Henry Stanley’s number is higher. He says that for
every pound of ivory, someone died.”); see also Malcarne & Milkofsky, supra note 7.
55
FARROW ET AL., supra note 4, at 199–204; see also id. at 204 (“Many of the enslaved
Africans who managed to survive the trek with ivory to the eastern coast wound up in the
slave market in Zanzibar. From there, they were sold into forced labor on clove plantations on
Pemba and Zanzibar and other Indian Ocean islands, or on huge sugar plantations in
Brazil . . . .”); MOORE, supra note 9, at 14 (“The slaves are needed to buy ivory with; then
more slaves have to be stolen to carry it.”); id. at 15 (“[T]he slave-march, worse than death,
begins. Like a river, a slave caravan has to be fed by innumerable tributaries all along its
course—at first in order to gather a sufficient volume of human bodies for the start, and
afterwards to replace the frightful loss by desertion, disablement, and death.” (internal
quotation marks omitted)); id. at 53 (“The horror, the misery, the cruelty of the slave coffle
never has been nor can be adequately pictured. Probably not more than one in five of the
captive marchers, as authorities of the day have estimated, ever reached the ocean. Bowed
down by the weight of fetters and the heavy ivory, starved so that the spark of life barely was
kept aglow within them, ravaged by weakness and disease and the strain of marching, and
overborne by the hopelessness and misery of their position, they died by the thousands.”); id.
at 59 (“At the height of the Zanzibari slave-and-ivory raiders’ rise to power, about 30,000
slaves were exported annually from the interior through Zanzibar and the near-by coast ports.
Probably 120,000 more started, and died on the way, according to Berlioux.”); MOORE, supra
note 9, at 66 (“Every tusk, piece, and scrap in the possession of an Arab trader,” raged
Stanley, “has been steeped and dyed in blood. Every pound weight has cost the life of a man,
woman, or child, for every five pounds a hut has been burned, for every two tusks a whole
village has been destroyed, every twenty tusks have been obtained at the price of a district
with all its people, villages, and plantations.” (internal citation marks omitted) ); id. at 114–15
(“As they filed past we noticed many chained together by the neck. Others had their necks
fastened into the forks of poles about six feet long, the ends of which were supported by the
men who preceded them. The neck is often broken if the slave falls in walking. The women,
who were as numerous as the men, carried babies on their backs in addition to a tusk of ivory
on their heads. . . . They presented a moving picture of utter misery, and one could not help
wondering how many of them had survived the long tramp from the Upper Congo, at least
1,000 miles distant.” (internal quotation marks omitted)).
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knew about the ivory trade. Malcarne and Farrow came up with a figure
of two million African people enslaved for Connecticut’s ivory.56
Captive Africans in a slave coffle transporting elephant tusks from the
interior of Africa to the coast, date unknown.
05/08/2015 09:54:41
56
FARROW ET AL., supra note 4, at 193; see also id. at 209 (“Working from company
records, scholar Donald Malcarne has estimated that between 1870 and 1900, at least 200,000
tusks were used by Comstock, Cheney. If every tusk represents the death or enslavement of
five people, then the Ivoryton company affected 1 million Africans. Bring Pratt, Read into the
equation—during the last decade of the nineteenth century the Deep River company actually
handled more ivory than Comstock, Cheney—and the estimate becomes 2 million lives
affected. That number fails to reflect the earlier decades of Connecticut’s ivory processing—
by 1839 keyboards were being veneered with ivory—nor does it take into consideration the
early years of the twentieth century, when Ernst Moore wrote his blood-drenched story of the
ivory trade. Two million lives is an inconceivable number, and yet the real figure is probably
higher.”).
JOHN THOMAS: I really want to thank you for presenting the
history, the commercial basis for, and background of the trade. I am
becoming more and more fascinated with the history of Deep River and I
was wondering if you could tell us what is kept at the Historical Society
museum? I really want to go see the exhibits now. Could you tell us a
little about what is there, so that everyone may appreciate it?
JEFFREY HOSTETLER: Thank you. It’s my chance for a commercial.
The Deep River Historical Society is an all-local volunteer organization.
It was founded in the 1930s. We live in an 1840s-era stone house that
was bequeathed to us in 1946 by the granddaughter of the man who built
it. In addition to our outreach programs, which include school programs
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and our “big hitter” last year with the elephant program, our permanent
exhibits combine period rooms with museum-like case displays.
We have a big corner that is devoted to ivory exhibits. There are
various articles of ivory, the primary product being piano keys, but there
are also other objects. Occasionally, there were little pieces left over
after the manufacturing of piano keys, pieces misused along the way,
and not much was wasted. Consequently, small, incidental artifacts were
made of ivory, not all the time, not primary products, but here and there.
We have a large collection of those kinds of artifacts. For example, we
have an ivory toothpick and a little memo pad with little leaves of ivory
rivets to hold it together. One could write on it with a pencil and scrub it
back off, so it became a type of pocket calendar. We also have an
assortment of ivory processing machines, including a version of Pratt’s
comb machine—it is an elegant piece of engineering. It is one of my
favorite pieces, I love that!
Furthermore, we devote a lot of our space to keyboard instruments.
We have a great reverence for pianos. We have a parlor organ and a
square grand piano made by a local cabinet maker from wood of the
Charter Oak. Ours is about five feet long and weighs about 400 pounds.
We also have a collection of art by local artists. Prior to industrialization,
the town was a river port, so we devote a lot of our space to river travel
and river transport. And in marine trades, we had a lot of local folk who
traveled the world and came back to Deep River, as captains and
seamen, so we have a lot of exhibits relating to that.
Lastly, every year on the third Saturday in July, Deep River hosts
the largest gathering of fife and drum music in the known world. If you
would like to acquire a taste for fife and drum music, this event is also a
major fundraiser for the Historical Society. We have eleven acres of
property and we park cars, so we would be happy to see you. Thank you
for the opportunity to be as blatantly commercial as that!
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TISCHLER FINAL (Do Not Delete)
4/27/2015 6:03 PM
CHANGING THE DIALOGUE ABOUT ELEPHANTS
Joyce Tischler*
There is an old joke in this country that “when you’re up to your
neck in alligators, it’s hard to remember that you’re in there to drain the
swamp.”1 You might wonder why in a trafficking conference, when we
are talking about the slaughter of so many elephants, and the distinct
possibility that they may go extinct, I came here to talk about animal
rights? My answer is twofold.
First, the “conservation” and “sustainable use” approach to
managing elephants has serious flaws. We need to reframe our attitude
and radically alter our treatment of elephants in order to realistically
protect them. The fact is, wild elephants have been in this horrible
position before. Not that long ago, in the 1980s, elephant populations
plummeted by fifty percent due to slaughter by humans.2 At that time,
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485
* As one of the co-founders of the Animal Legal Defense Fund in 1979, California
attorney Joyce Tischler has helped shape the emerging field of animal law. Tischler litigated
some of the Animal Legal Defense Fund’s earliest cases, including a 1981 lawsuit that halted
the U.S. Navy’s plan to kill 5000 feral burros, and a 1988 challenge to the U.S. Patent Office’s
rule allowing the patenting of genetically altered animals. Tischler has lectured extensively in
the U.S. and abroad; she teaches animal law, developed the first-ever farmed animal law and
policy class, and is currently co-authoring two books related to animal law issues. Her law
review articles include: A Brief History of Animal Law, Part II (1985–2011), 5 STAN. J.
ANIMAL L. & POL’Y 27 (2012); The History of Animal Law, Part I (1972–1987), 1 STAN. J.
ANIMAL L. & POL’Y 1 (2008); Note, Rights for Nonhuman Animals: A Guardianship Model
for Dogs and Cats, 14 SAN DIEGO L. REV. 484 (1977). She has been quoted in top media
outlets, including The New York Times, The Washington Post, The Christian Science Monitor,
Science Magazine, and People Magazine. Tischler is a recipient of the American Bar
Association TIPS Animal Law Committee’s Excellence in the Advancement of Animal Law
Award. She was the Animal Legal Defense Fund’s Executive Director for twenty-five years
and now serves as the agency’s general counsel.
Tischler’s presentation was given on November 8, 2014 at Quinnipiac University
School of Law and can be viewed at Quinnipiac Law Review—2014 Symposium—Joyce
Tischler, YOUTUBE (Nov. 21, 2014), http://tinyurl.com/k6axwd5.
1
I’ve heard or seen several variations on this quote: up to your waist, your ass, your
eyeballs, etc. With all due respect to alligators, they can be rather distracting. In delivering
this talk, it was not my intent to take the focus away from critically needed wildlife protection
work, but rather, to point out what I see as the root cause of the problem.
2
Joseph Vandegrift, Elephant Poaching: CITES Failure to Combat the Growth in
Chinese Demand for Ivory, 31 VA. ENVTL. L.J. 102, 108 (2013).
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3
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Convention on International Trade in Endangered Species of Wild Fauna and Flora,
Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243 [hereinafter CITES].
4
See Andrew J. Heimert, Note, How the Elephant Lost His Tusks, 104 YALE L.J. 1473,
1473, 1477 (1995).
5
See M.G. Cowling & M.A. Kidd, CITES and the Conservation of the African
Elephant, SAYIL 189, 209–10, 215 (2000).
6
SONIA S. WAISMAN, PAMELA D. FRASCH & BRUCE A. WAGMAN, ANIMAL LAW:
CASES AND MATERIALS 35 (5th ed. 2014); David Favre, Living Property: A New Status for
Animals Within the Legal System, 93 MARQUETTE L. REV. 1021, 1026 (2010) [hereinafter
Favre, Living Property].
there was a response by the Convention on International Trade and
Endangered Species of Wild Fauna and Flora (CITES)3 and domestic
legislation in the U.S. that was effective in bringing elephant populations
back.4 That’s all well. But then the parties to CITES bought into the idea
of one-off ivory sales, which stimulated poaching again.5 And now the
situation is dire. At the root of this seesaw treatment of African
elephants is the fact that humans view elephants as renewable resources.
We believe that they are ours to take, to control, and to use as we please.
We can make them into piano keys, combs, trinkets, or whatever we
want. Driving elephants to the point of extinction every thirty years is
not only devastating to ecology—it is immoral and reprehensible. It says
to me that, as a species, we are nowhere near as enlightened or sage as
we’d like to think we are.
The second reason I want to talk about elephant “rights” is that I’m
speaking here today to law students and lawyers, people who have been
taught about power. We learn how to use it, how to abuse it (or not), and
in a given situation, we make choices based on whether we have power,
or lack it. Animals don’t have power. They are property under the law,6
and when you’re property, you have no power. There have been human
beings in the United States who were also property. Starting in the
1600s, African people were kidnapped from their homelands, brought
here, and classified as property. Women, children, people who are
mentally incompetent, and Native Americans have all been property in
the United States. Over time, these humans have been released from
their property status. One gains power when one is no longer considered
to be property. One gains legal rights when one is no longer the property
of someone else; one becomes a legal “person.”
For the rest of today you are going to hear from speakers who are
viewing the elephant crisis from the ground, so I am going to offer you a
10,000 foot view and suggest one way to reframe our discussion about
elephants. I am an animal rights lawyer; I’m also an animal protection
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7
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Christopher D. Stone, Should Trees Have Standing?—Toward Legal Rights for
Natural Objects, 45 S. CAL. L. REV. 450, 453 (1972).
8
See Steven M. Wise, The Legal Thinghood of Nonhuman Animals, 23 B.C. ENVTL
AFF. L. REV. 471, 498 (1996).
9
Early vivisector, René Descartes stated in his Discourse on the Method that “animals
are like machines.” See Gary Hatfield, René Descartes, STAN. ENCYCLOPEDIA PHIL.,
http://tinyurl.com/ps4h7k9 (last updated Jan. 16, 2014).
10
See Nicholas H. Lee, Note, In Defense of Humanity: Why Animals Cannot Possess
Human Rights, 26 REGENT U. L. REV. 457, 478 (2014) (“God’s entrusting dominion over the
earth to his image bearers gives humans a unique dignity and places us in the exceptional role
over animals.”); see also Steven M. Wise, How Nonhuman Animals Were Trapped in a
Nonexistent Universe, 1 ANIMAL L. 15, 30 (1995).
11
STEVEN M. WISE, RATTLING THE CAGE 4 (2000).
12
Id.
lawyer because, in the U.S., there really are no legal rights for animals—
yet. I co-founded the Animal Legal Defense Fund (ALDF) in 1979 and
have worked in this field for thirty-six years. I want to introduce you to
the kind of discussions that we have about legal rights and how this
could be applied to elephants. The arguments that I make could be
applied to other animals, but today, we will address elephants.
In his groundbreaking legal essay written in 1972, USC law
professor Christopher Stone wrote, “Throughout legal history, each
successive extension of rights to some new entity has been, theretofore,
a bit unthinkable. We are inclined to suppose the rightlessness of
rightless ‘things’ to be a decree of Nature, not a legal convention acting
in support of some status quo.”7 For 2000 years, other animals have been
categorized as “things.”8 It’s not hard to see how this happened 2000
years ago, 1000 years ago, or even 500 years ago. Scientists believed
that animals didn’t think and didn’t feel.9 They were just a step above
plants.
Early religious scholars, particularly in Christian theology, were
attempting to elevate humankind and, therefore, sought to distinguish
human beings from what they called the lower beasts.10 They developed
a border, “a legal wall,”11 between humans and other animals. This legal
wall has persisted, even though the scientific underpinnings have long
since eroded.12 On one side of this wall are human beings and they have
legal rights. They’re called persons. On the other side of the wall is the
rest of creation: chimpanzees, elephants, chickens, turtles, whales,
hawks, cats, dogs, cattle—the list goes on and on. They are all together
in there. And they are things, chattel, property, renewable resources.
They can be used, held captive, tortured, and killed according to even
the slightest perceived need or desire of human beings. The suffering
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13
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Animal Law Fundamentals (449 A), LEWIS & CLARK, http://tinyurl.com/lodhlxe (last
14
The originator of the field trip to the zoo was Pamela Frasch, Assistant Dean of the
Animal Law Program at Lewis & Clark Law School, and Executive Director of the Center for
Animal Law Studies (CALS), and it has proved to be a powerful tool to teach law students
about legal and ethical issues related to captive wildlife.
that animals experience, their needs, their interests, and their familial ties
are ignored.
In 2000 years, political and social movements have created
significant changes in the status of human beings, yet we humans
continue to exploit animals at will. And being the technologically savvy
creatures that we are, we have refined the process. When African
elephants in the wild occupy the same habitat as human beings, it is the
elephants who are considered pests and killed or driven away. In the
U.S. and in other countries, elephants are very popular as “exhibits” in
zoos. People love to go to the zoo and see the elephants. It is a moneymaker for the zoos, yet few people consider the impact this captivity has
on the elephants.
I am teaching animal law at Lewis and Clark Law School this
semester.13 As part of the course work, I conducted a field trip to the
local zoo.14 Each of four groups of students was assigned to research a
species (elephants, bald eagles, chimpanzees, or mountain lions). The
students had to identify what the animals’ lives are like in the wild: their
habitat and territorial range, feeding habits and family or group
structures. The students also researched what laws applied to their
assigned species while in captivity in the U.S. Then, we went to the zoo
and each group of students presented their report in front of the exhibit
where members of their species were housed in captivity. For the
students, it was an eye-opening experience. And, when we got to the
Asian elephant exhibit, the student who had researched elephants in the
wild started to sob, because the elephant there, a lone bull Asian
elephant, was bobbing his head and exhibiting stereotypical captivity
behavior. He was in an enclosure with concrete walls and dirt, nothing
else. He walked slowly around his small enclosure with nothing to do,
nothing to keep him active or his intelligent mind busy. She apologized
for crying, as she thought it was unprofessional, but to me, it was
perfectly reasonable to cry. She was witnessing the striking difference
between what life is like for this captive elephant day-in-and-day-out in
a zoo versus the freedom and range of activities he would have had in
the wild.
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Being in zoos causes a variety of problems for elephants.15 Zoos
cannot possibly provide elephants with the amount of space that they
would have in the wild. They keep elephants in unnaturally small
groups. They routinely shuffle them back and forth to other zoos, with
callous disregard for the emotional bonds that those elephants may have
developed with other elephants they are with. Hours standing on hard
surfaces causes foot infections and arthritis, which is the leading cause
of death for captive elephants.16
People are surprised to learn that zoos are often brutal to elephants.
At the Oregon Zoo, which is known as one of the better zoos in the
United States, it was reported that an elephant named Rose-Tu had 176
gashes and cuts on her skin after she had been repeatedly beaten with a
bullhook.17 According to some witnesses at the Dickerson Park Zoo, an
elephant named Chai was beaten with bullhooks and pieces of wood for
2.5 hours.18
Circuses are even worse than zoos, as you might imagine, because
they are training elephants to do ridiculous, unnatural tricks. They use
physically violent methods, such as the use of bullhooks, ax handles, and
baseball bats to terrify and dominate the elephants and train them to do
tricks such as walking around the ring and sitting upright.19 This is a
picture of a baby elephant being “trained.”20
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See Kathryn M. Campbell, Zoos as Prisons: The Role of Law and the Case for
Abolition, 2 MID-ATLANTIC J. ON L. & PUB. POL’Y 53, 68–69 (2014).
16
Id. at 71.
17
Honoring Animal Victims: Landmarks in Legislation, ANIMAL LEGAL DEF. FUND,
http://tinyurl.com/jvzf4sr (last visited Apr. 22, 2015); Jennifer O’Connor, Update: Oregon
Zoo Director Out of a Job in Wake of Baby-Elephant Barter Scandal, PETA (Oct. 31, 2011),
http://tinyurl.com/no7k2cu.
18
Get Elephants Out of Zoos, PETA, http://tinyurl.com/mwslvj3 (last visited Mar. 21,
2015).
19
Circuses, PETA, http://tinyurl.com/p87v4bw (last visited Mar. 21, 2015); Carson &
Barnes Circus Cruelty, PETA, http://tinyurl.com/kufolam (last visited Apr. 22, 2015)
(showing undercover video of circus training methods) (WARNING: foul language and
graphic images of violence).
20
For an expose on circus methods used to “break” elephants and train them, see Baby
Elephants, Bound and Broken: How Ringling Trains Elephants, PETA,
http://tinyurl.com/qcz8gff (last visited Apr. 22, 2015) (WARNING: graphic images).
15
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Photo courtesy of PETA21
21
Tools of the Trade: Circuses, PETA2, http://tinyurl.com/kv5t7qc (last visited Apr. 22,
2015).
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22
Brad Scriber, 100,000 Elephants Killed by Poachers in Just Three Years, Landmark
Analysis Finds Central Africa has Lost 64 percent of its Elephants in a Decade, NAT’L
GEOGRAPHIC, http://tinyurl.com/pp4lk83; Christine Dell’Amore, Beloved African Elephant
Killed for Ivory—“Monumental” Loss, NAT’L GEOGRAPHIC (June 16, 2014),
http://tinyurl.com/qbetyq7; Matthew Scully, Inside the Global Industry That’s Slaughtering
Africa’s Elephants, ATLANTIC (June 6, 2013), http://tinyurl.com/kod6fms; Jeffrey Gettleman,
Elephants Dying in Epic Frenzy as Ivory Fuels Wars and Profits, N.Y. TIMES (Sept. 3, 2012),
http://tinyurl.com/oe6uvy4; The History of the Ivory Trade, NAT’L GEOGRAPHIC,
http://tinyurl.com/pwdvssh (last visited Apr. 22, 2015).
All of this is for the amusement of the paying customer and the financial
gain of the circus.
Sadly, that’s not the only problem. There is a mass slaughter of
elephants occurring in Africa, and if this killing isn’t stopped, African
elephants will be extinct in one decade.22 Wild elephants are being killed
solely for their tusks, which are made of ivory. Human beings love
ivory. They can carve it into beautiful objects. It is a status symbol. It
costs a lot of money and it makes people feel wealthier. It is coveted as a
possession, but please understand that these extraordinary beings are
dying horribly, in great numbers, so that we can have ivory. Our vanity
is causing this (WARNING: graphic image).
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© Boubandjida Safari Lodge/IFAW23
See Christina M. Russo, What Happened to the Elephants of Bouba Ndjida?,
MONGABAY.COM (Mar. 7, 2013), http://tinyurl.com/kx8gb6h.
24
Amboseli National Park, KWS, http://tinyurl.com/7wgkmhw (last visited Mar. 21,
2015).
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23
There is another way. Concern for the fate of elephants is growing
on an international level. Recently, I went to Kenya to attend a
conference sponsored by Kenyan elephant advocates on how to stop the
slaughter of wild elephants. The conference was held at Amboseli
National Park (Amboseli),24 where we could see from a respectful
distance African elephants in the wild, with their children, with their
families. It was a moving experience for everyone present. The attendees
discussed the importance of keeping elephants alive, both out of national
pride for these wonderful native animals and because they are a tourist
attraction that brings a significant income to Kenya. Kenyan officials
were thinking in new ways about what elephants mean to them and their
country.
Now I’d like to ask you to try to move away from viewing
elephants solely as a species, solely as members of groups and to try
instead to look at them as individuals. In the last ten years, scientists
have documented a great deal about the intellectual and emotional lives
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of elephants.25 We now know that they have complex social interactions,
large brains, and central nervous systems that are basically like our own.
They communicate in sophisticated ways, help and support each other,
suffer emotional trauma, and grieve for those elephants who have died.26
Elephants have rich emotional lives and no reasonable person should
suggest that these magnificent sentient beings are “things.” Our law has
to catch up with what science is telling us. If we can begin to see
elephants as they really are, rather than limiting our view to how we
want to use them, then our treatment of them will change.
I realize that for some people, thinking of elephants as individuals,
as persons, is a very radical notion. So I will take a step back and talk a
bit about legal rights and personhood. What is a legal right? We do not
normally think about why we, as humans, have legal rights. We simply
assume that we have them. Oddly enough, there is no generally accepted
definition of the term “legal right.” Roger Galvin, an early animal rights
attorney, came up with a definition that works for my purposes:
(1) A legal right is recognized as such by the law and thereby protected from
destruction or infringement. (2) The entity holding the right can seek legal
protection on its own behalf. (3) The assertion of the right should protect the
entity from injury. (4) The relief the law provides should directly compensate
or benefit the holder of the right. (5) Incapacity on the part of the holder of the
right does not preclude a representative from protecting the best interest of the
27
holder of the right.
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25
See, e.g., Ferris Jabr, Searching for the Elephant’s Genius Inside the Largest Brain on
Land, SCI. AM. (Feb. 26, 2014), http://tinyurl.com/nw4r8om; Ferris Jabr, The Science Is In:
Elephants Are Even Smarter Than We Realized, SCI. AM. (Feb. 26, 2014)
http://tinyurl.com/p9c2qv3; Caitrin Nicol, Do Elephants Have Souls?, 38 N. ATLANTIS 10
(2013), available at http://tinyurl.com/l3oo2em; Lucy A. Bates, Joyce H. Poole, & Richard
W. Byrne, Elephant Cognition, 18 CURRENT BIOLOGY 544 (2008), available at
http://tinyurl.com/ks6m7rx. The Amboseli Elephant Research Project has studied the
elephants at Amboseli for decades and has published a wide variety of resources about their
lives, cognition, social structure, and habits. See Program, AMBOSELI TR. FOR ELEPHANTS,
http://tinyurl.com/nobsh34 (last visited Apr. 22, 2015).
26
See sources cited, supra note 25.
27
Roger W. Galvin, What Rights for Animals? A Modest Proposal, 2 PACE ENVTL. L.
REV. 245, 248 (1985).
So, why do humans have legal rights? Do they descend from the
heavens? No; legal rights come from us. As I mentioned earlier, human
beings have been property. In the past 150 years in the U.S., the social
contract about who gets rights, and who gets legal “personhood”
protection, has expanded to include: people of color, women, children,
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28
See, e.g., Modern Social Movements, FORDHAM UNIV., http://tinyurl.com/ofttc8p (last
visited Apr. 22, 2015); Social Movements and History, ABOUT.COM, http://tinyurl.com/nfdllkt
29
Jabr, supra note 25.
30
Id.
gays, lesbians, transgender people, immigrants, Native Americans,
people with mental and physical disabilities, and children.28 Legal rights
are established by us to protect our lives, our families, our property, and
our values. And they evolve.
Let’s consider the following example: each of us consciously
values our life. Therefore, we have an implied contract that I won’t kill
you and you won’t kill me because we both value remaining alive. What
if you breach the contract and kill me? You have crossed the line and our
society has set up rules to deal with that. At a minimum, our criminal
law system will intervene to investigate and prosecute you. That social
contract, however, also says that you are presumed innocent until proven
guilty beyond a reasonable doubt (a very high standard), that you have a
right to counsel and to a jury of your peers. We value human life so
highly that we set up social contracts which are then codified into law.
But this social contract concept stops cold when some of us attempt to
apply it to species other than our own. We accept, ipse dixit, various
justifications for why other animals should not have legal rights.
Applying that to elephants, we assume that they should remain
property, that they should be denied legal rights. One argument in favor
of this position is that elephants do not have the same level of
intelligence, or kind of intelligence, as humans do. We have known for
some time that elephants are highly intelligent. In the past decade or so,
scientists have focused more rigorously on studying the cognition of
elephants. Louis Irwin, at the University of Texas, El Paso, reports that
both humans and elephants adapted to life in Africa at about the same
time.29 Both evolved to live long and migratory lives. Both experienced
a dramatic increase in their brain size. Both live in highly complex social
systems and both have developed sophisticated systems of
communication.
Ferris Jabr, in his article, The Science is in: Elephants are Even
Smarter than We Realized,30 presented some recent findings that
elephants cooperate with each other to solve problems, and that they use
tools, such as twigs to shoo away flies. Juvenile elephants learn
everything from their elders. Elder matriarch elephants remember the
locations of water holes, which are essential to keep their families alive.
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31
Id.
Nicol, supra note 25, at 17.
33
See sources cited, supra note 25.
34
GRAEME SHANNON ET AL., FRONTIERS IN ZOOLOGY, EFFECTS OF SOCIAL
DISRUPTION IN ELEPHANTS PERSIST DECADES AFTER CULLING (2013), available at
http://tinyurl.com/ohucbj5.
They show empathy: elephants are often observed refusing to leave sick
or injured members of their family or struggling to hold up a dying
family member.31 I recently read a story about an elephant who
accidentally injured a ranch herder. She refused to leave him, gently
moved him under a tree, kept him out of the sun, and stayed there with
him for a day, even though her own family left, until villagers came to
rescue him.32 In other words, they have a level of empathy that many
researchers believe is a sign of extremely high intelligence and
emotional complexity.
But even if you do not accept that, even if you say, “I doubt you,”
legal rights in this country do not depend on how intelligent you are.
Less intelligent adult humans still have the full protection of
personhood. And while the average intelligence of human beings may be
greater than the average intelligence of elephants, there are individual
humans, such as severely mentally disabled people, who are less
intelligent than the average elephant, and function at lower levels. But
still those human beings are protected as persons under the law.
Another reason given for the dichotomy is that it is assumed that
elephants do not have complex emotional lives. For anyone who has
studied elephants, I don’t have to say another word, but I will. Elephants
assist each other in childbirth. Females spend their entire lives with their
family, which is led by a matriarch, and they learn from their family
members. I heard a story from one of the researchers at Amboseli about
a female elephant who was young; it was her first pregnancy and she
was in labor, when the baby was born, she was afraid and ran away. The
other female elephants brought her back to the baby and showed her
what to do. Wild female elephants spend their lives surrounded by other
females. They work together and care about each other. Their emotional
lives and social interactions are highly complex.33
In 2013, Frontiers of Zoology published a study entitled Effects of
Social Disruption in Elephants Persist Decades After Culling.34 The
researchers conducted this study in two countries in Africa. First they
went to Amboseli in Kenya and studied a group of elephants who had
not been involved in a cull and lived in a traditional matriarchal elephant
society. The other group of elephants they studied had been orphaned as
32
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35
05/08/2015 09:54:41
Id. at 5.
Id. at 4–5.
37
See, e.g., Caroline Howe, Last Chain on Billie: How One Extraordinary Elephant
Escaped the Big Top, DAILY MAIL (July 21, 2014, 5:49 PM), http://tinyurl.com/lf9mrcx
(“Another trainer beat an elephant so badly, she was lying on her side, heaving with sobs and
tears running down her face. The handlers were so moved, they never beat her again and knelt
down beside her to comfort her.”). See generally JEFFREY MOUSSAIEFF MASSON & SUSAN
MCCARTHY, WHEN ELEPHANTS WEEP: THE EMOTIONAL LIVES OF ANIMALS (1995).
38
Sokotei–Elephant Orphan History, DAVID SHELDRICK WILDLIFE TR.,
http://tinyurl.com/lyzmljg (last visited Mar. 21, 2015). One of the Trust’s programs is to
rescue and foster orphaned elephants, until they are old enough to be placed back into a wild
herd.
36
infants in culls that occurred in the 1980s and ’90s. These elephants had
been relocated to South Africa. The study concluded that the relocated
orphaned elephants displayed classic signs of long-term psychological
damage, similar to post-traumatic stress disorder (PTSD).35
The traditional elephant family in Amboseli responded to stimuli in
traditional coordinated ways, while the social skills of the orphaned
elephants were damaged even though the culling had occurred, in some
cases, thirty years earlier. The researchers concluded that “extremely
disruptive events, including culling, poaching, and translocation to new
areas or capture for captivity can ultimately lead to serious disruption of
the intricate social networks that underpin social structure in these
species.”36 Basically, they determined that the elephants relocated to
South Africa were psychologically damaged.
I recently read a story (there are many anecdotal stories about
elephants), about an elephant in the circus who was being taught a new
trick, and she wasn’t getting it. The trainers kept pushing her, and she
wasn’t responding the way they wanted her to. Finally, she ran from
where the trainers were, flopped down, and started to weep
uncontrollably. There are many similar stories of elephants weeping.37 I
suppose if I were a behavioral scientist, I might say, “Well maybe
someone had cut an onion and her eyes were just tearing up.” No; I think
we know better. Elephants weep because they are emotionally complex
beings.
I’d like to offer one final story, which speaks volumes to me about
the emotional lives of elephants: it is about a five-month old elephant
whose mother had died. Staff from the David Sheldrick WildlifeTrust, a
charity based in Nairobi, went out to where the calf was in order to
rescue him and bring him to safety, as he would not survive on his
own.38 The rescue took many hours, however, because the calf was
clinging to his dead mother and wouldn’t leave her, charging at the
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39
See Nicole Le Marie, Elephant Calf’s Vigil for Mother: Five-month-old Orphan Stays
by his Dead Parent, METRO NEWS (May 14, 2014, 11:30 PM), http://tinyurl.com/mq69puw.
40
See Frederick Dove, What’s Happened to Thalidomide Babies?, BBC NEWS (Nov. 2,
2011, 9:18 PM), http://tinyurl.com/n7zmav7 (“Thalidomide has strong sedative properties and
many women in the early weeks of pregnancy had taken it to ease their morning sickness,
utterly unaware its effect on the unborn child can be teratogenic, or ‘monster-forming’. Limbs
can fail to develop properly, in some cases also eyes, ears and internal organs. No one knows
how many miscarriages the drug caused, but it’s estimated that, in Germany alone, 10,000
babies were born affected by Thalidomide. Many were too damaged to survive for long.”).
41
Jabr, supra note 25.
42
Id. (internal quotation marks omitted).
43
Id.
44
Id.
45
Joseph Soltis et al., African Elephant Alarm Calls Distinguish Between Threats from
Humans and Bees, PLOS ONE, Feb. 2014, at 1.
rescuers to keep them away from his mother.39 We know that elephants
mourn the loss of their family members and go through rather intricate
ceremonies to grieve and bury their dead.
Another argument I hear for why elephants should not have rights
is that they do not look like us. I agree. They do not look like us. They
are so much better looking than we are. But let’s not hold that against
them. How close to a human form do you have to be in order to have
rights? What about Thalidomide babies?40 Some of you are old enough
to remember that tragedy. Did they have rights? Of course they did. If
you are missing body parts, an arm or a leg, do you have fewer rights?
Of course not. Physical form does not determine the threshold question
of legal rights.
We have also been told elephants have no ability to communicate.
But we have known for some time that elephants communicate with
each other through a combination of chirps and low frequency
rumbles—many of which we can’t hear—trumpets as well as nudges and
kicks and visual signs, such as flapping their ears.41 Joyce Poole, a
leading elephant expert, tells us that when elephants are getting ready to
do a group charge, they all look at each other as if to say “Are we all
together? Are we ready to do this?”42 And then, when they do the charge
and succeed, they have an enormous celebration.43 They trumpet, they
rumble, they lift their heads high, they clank their tusks together and
they intertwine their tusks.44
Going back to a scientific study, Plos One published an article
entitled African Elephant Alarm Calls Distinguish Between Threats from
Humans and Bees.45 In this study, which was conducted on wild
elephants in Kenya, researchers recorded and analyzed how wild
elephants responded to humans and to bees. They reported that when
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46
Thomas G. Kelch, Cultural Solipsism, Cultural Lenses, Universal Principles, and
Animal Advocacy, 31 PACE ENVTL. L. REV. 403, 408 (2014).
47
Id. at 413.
48
Seventh Circuit Judges, USCOURTS.GOV, http://tinyurl.com/luegqmd (last visited Apr.
22, 2015).
elephants were exposed to the voices of local adult male tribesmen,
which would signal danger, they produced vocalizations that were
acoustically distinct from the vocalizations they produced when they
were hearing the sound of bees. In other words, they were
communicating with each other not only that there was danger, but
identifying the type of danger, bees versus humans.
Another reason we hear for denying rights to elephants is that they
do not possess immortal souls. This is a tough one. The possession of
souls by animals has been the subject of heated debate among the
world’s religions. Mainstream Christianity tells us that animals do not
possess souls.46 Other religions such as Hinduism believe that animals
do have souls.47 I believe that I have a soul. But I can’t prove it to you or
show it to you on an anatomy chart. I don’t know where it is. I believe
all of you have souls, but I can’t prove that either. So why would I
assume that these large-brained, emotionally complex, and intelligent
beings don’t have souls? But, if, for the sake of argument, we assume
they do not possess souls, what does this have to do with the law? With
the foundational approach to separation of church and state in this
country, the question of possession of a soul should be deemed irrelevant
to determining legal rights.
Some who argue against animal rights claim that animals can’t have
rights because they don’t have responsibilities. Yet, in the wild,
elephants are highly responsible. They assume full responsibility for
every aspect of their lives. They protect their families, they travel great
distances, they mate, and they find food. That they are captives in the
U.S., where they are strangers in a strange land, is no fault of their own
and the sooner we end that the better. Besides that, there are certain
humans, including babies, small children, and people with severe
physical or mental disabilities, who cannot take on full responsibility for
themselves, and yet, they have legal rights.
Here is another argument that I find difficult to counter rationally.
Richard Posner, who is a distinguished judge on the Seventh Circuit
Court of Appeals,48 is a firm believer in animal welfare, but he
absolutely opposes extending rights to animals. In a letter to philosopher,
Peter Singer, Posner wrote,
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I contended in my reply to your first statement that it is wrong to give as much
weight to a dog’s pain as to an infant’s pain, and that it is wrong to kill one
person to save 101 chimpanzees even if a human life is only 100 times as
valuable as a chimpanzee’s life. I rested these judgments on intuition. Against
49
this intuition you have no factual reply . . . .
On numerous occasions, Judge Posner has argued that animals
cannot have legal rights, based on his intuition that being human is what
gives us moral rights, and non-humans cannot have that. And I think for
a lot of people, that intuitive sense leads them to conclude: “I am human,
you’re not. I have rights, you don’t.” I don’t find that argument
convincing because my intuition is otherwise. So, if it is my intuition
versus Judge Posner’s intuition, who wins? I do want to mention that
distinguished law professors such as Laurence Tribe, Alan Dershowitz,
and Cass Sunstein share my intuition.50 They support extending legal
rights to animals.
The simple fact is, we don’t need to use elephants. They are not
essential to our survival. They are not essential to our well-being. We
don’t eat them, we don’t wear them, we don’t use them in medical
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49
Letter from Richard A. Posner to Peter Singer, SLATE (June 13, 2001), reprinted in
Animal Rights: Debate Between Peter Singer and Richard Posner, UTILITARIAN.NET,
http://tinyurl.com/l8zgwcb (last visited Mar. 21, 2015).
50
See Laurence H. Tribe, Ten Lessons Our Constitutional Experience Can Teach Us
About the Puzzle of Animal Rights: The Work of Steven M. Wise, 7 ANIMAL L. 1, 3, 7–8
(2001) (“With the aid of statutes like those creating corporate persons, our legal system could
surely recognize the personhood of chimpanzees . . . . When people ask my wife Carolyn and
me whether we own any dogs, we say no. We don’t ‘own’ our dog Annie. I can’t really think
of myself as owning a dog. We and Annie are a kind of family. But how do we persuade
people to view the situation that way? How do we persuade people that these creatures have
rights and must be allowed, through others as their spokespersons, to press moral claims? I
don’t claim to have figured that out. The secret to making that case may well reside at a level
deeper than rational argument and deeper than provable fact, but, paradoxically, in a visceral
appeal to our own common humanity.”); see also ALAN DERSHOWITZ, RIGHTS FROM
WRONGS: A SECULAR THEORY OF THE ORIGINS OF RIGHTS 199 (2005) (“Societies that treat
animal life with greater respect tend also to treat human life with greater respect. It is
preferable to live in a society that seeks to limit the suffering of animals than in one that does
not. This does not necessarily mean that a vegetarian society will always be better than a
carnivorous one. . . . It is merely a claim that the gratuitous infliction of pain on animals is bad
for humans, and its toleration is bad for any human society. This is the soft case for a humancentered approach to animal rights. It requires that when human beings balance their
perceived needs against the interests of animals, we must take into account their suffering and
seek to minimize it . . . .”); Cass R. Sunstein, Standing for Animals (with Notes on Animal
Rights), 47 UCLA L. REV. 1333, 1367 (2000) (“Congress has the authority to grant animals
standing to protect their interests, in the sense that injured animals might be counted as
juridical persons, to be protected by human plaintiffs initiating proceedings on behalf of
animals.”).
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Detroit Zoo to Send Elephants to Refuge, USA TODAY (May 20, 2004, 6:59 PM),
http://tinyurl.com/mqmban4.
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research, which are the three most common reasons that people give me
for the continued exploitation of animals. We don’t need to use
elephants. We prefer to use them. Most zoos continue to exhibit
elephants, despite the growing evidence that the elephants’ needs are
being largely ignored. In 2005, the Detroit Zoo became the first
American zoo to close its elephant exhibit and to transfer the elephants
to a sanctuary, based on ethical grounds.51 They had concluded that the
elephants’ physical and mental health was being compromised.
The debate about keeping elephants in zoos is growing; not fast
enough from my perspective, but the debate is heating up. A growing
number of circuses, such as Cirque du Soleil, are very popular and
financially successful without using animals at all. With the wonderful
technology we have, IMAX, You Tube, Netflix, etc., we can watch
documentaries about elephants in the wild that will educate us, educate
our children, and hopefully embolden conservation efforts. That is what
we should be moving toward.
I want to summarize by saying that if we examine the reasons that
are generally given for why animals can’t have legal rights, they don’t
stand up; they don’t survive rational analysis. Rights holders are really
only flexing their muscles and saying “I want to keep it that way because
it is convenient and I like it.” All of these same reasons have been given
previously for keeping human beings as slaves or keeping human beings
as property. “We need the slaves to grow the cotton.” “We need women
to stay at home and raise the children.” “We need children to work the
farms.” The fallacy of those arguments was eventually brought to light.
And, in time, each of those groups was removed from the property
status. We deny elephants legal rights because we want to continue
exploiting them. “Might makes right” is an ethically and morally
bankrupt stance. As I said at the start, African elephants are heading
toward extinction as a result of this antiquated mind set and attitude. To
change that, we need to focus on a small space—that between our ears.
The establishment of legal rights stems from the necessity to protect
interests and to resolve conflicts of interests. And not all interests carry
equal weight. It is the role of our lawmakers to decide which interests
deserve protection as legal rights and to strike a balance among
competing interests. Based on the current scientific literature, we know
without a shadow of a doubt that elephants possess interests. To quote
legal scholar, Roscoe Pound, “We must begin, then, with the proposition
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05/08/2015 09:54:41
ROSCOE POUND, SOCIAL CONTROL THROUGH LAW 68 (2d prtg. 2002).
Michael Mountain, Lawsuit Filed Today on Behalf of Chimpanzee Seeking Legal
Personhood, NONHUMAN RIGHTS PROJECT (Dec. 2, 2013), http://tinyurl.com/lgbgbho. For
information and updates about the NhRP lawsuits, see NONHUMAN RIGHTS PROJECT,
http://www.nonhumanrights.org/ (last visited Apr. 22, 2015).
54
See Joyce S. Tischler, Note, Rights for Nonhuman Animals: A Guardianship Model for
Dogs and Cats, 14 SAN DIEGO L. REV. 484, 499–500 (1977). In that early article, I cited to
Peter Singer’s book, Animal Liberation, and suggested that the rights given to a new class of
rights holders should reflect the interests of those rights holders. Now, almost forty years later,
I am again faced with the admonishment that because, for the most part, elephants cannot
communicate their desires and interests to humans, it is presumptuous of me to select rights
for them. In proposing that elephants have certain legal rights, I certainly don’t wish to seem
presumptuous, arrogant, or ridiculous. I am making suggestions based on what I have learned
about elephants’ intellectual and emotional capacities. Intelligent, self-aware, emotionally
complex beings of all species share certain interests: an interest in remaining alive, autonomy,
bodily integrity, freedom of movement; an interest in having the basic necessities of life: food,
shelter, and safety; an interest in protecting their loved ones, their community. Of course, we
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that the law does not create these interests. It finds them pressing for
security. It classifies them and recognizes a larger or smaller number.”52
A fair and just legal system has to take into account the competing
interests of other animals and balance those interests against the interests
of humans. This is not to say that elephants are in every way like human
beings. They are not humans in baggy suits. They don’t have to be: they
are like us in ways that are morally and legally relevant to the issue of
rights. The concept of equality under the law doesn’t mean that we are
all equal. We’re not all equal. We are physically different, emotionally
different, and intellectually different. What we have is the right to equal
consideration of our interests.
What would legal rights for elephants look like if applied in the
U.S.? Earlier this year, some of you may have read about lawsuits that
were filed in New York State, on behalf of certain captive chimpanzees
located in that state, demanding that they be released from their captivity
based on the doctrine of habeas corpus. These lawsuits are being
spearheaded by the Nonhuman Rights Project (NhRP).53 NhRP’s legal
team is arguing that chimpanzees are persons, and that the law must treat
them as such. Within the next few years, NhRP is going to bring
lawsuits aimed at creating personhood status for elephants who are held
captive in the United States. Whether these lawsuits win or lose, they are
breaking new legal ground and new ground socially in our country. They
are altering the discussion about how we view and treat animals.
If NhRP wins these lawsuits, our society will be faced with
profound questions about how we treat these animals. If elephants are
persons, what rights should they have?54 To start with, they should have
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don’t share all of the same interests. For example, I would not suggest that elephants be
granted the right to vote, given that we have no evidence they possess such an interest. But, I
think we have adequate knowledge to make educated guesses about what interests elephants
possess. And by analogy, we do that with certain humans, such as babies, severely disabled
persons, or persons in a coma, who may be unable to communicate their interests and desires
for their own care. Our legal system has established guardianships and conservatorships to
provide legal representation to and protections for such individuals, and I believe that our
legislatures and judiciary could apply these or similar tools to determine appropriate rights for
the new class of persons I propose. Id. at 502–06.
55
CITES, supra note 3.
the right to life, the right not to be killed without due process. And they
should have the right to autonomy. Obviously, elephants don’t belong in
the U.S. They are not native to this country and there is no land ready
made for them to roam freely here. Elephants are wild animals who
belong in their native countries. Unfortunately, elephants who are held
captive in the U.S. can’t be sent back to their native lands because they
lack the skills needed to survive in the wild. They never received the
training and upbringing from their native elephant societies that would
enable them to take their rightful place in those societies.
Elephants should be freed from, and independent of circuses, zoos
and all other institutions and individuals who exploit them. Regarding
bodily integrity, an elephant’s body should belong to him or her, and is
not to be used for the financial or other benefit of others. Elephants have
the right to a habitat and care sufficient to support and nurture them. The
best available solution would be to send elephants to accredited
sanctuaries, where they would be placed into habitats that, as closely as
possible, approximate their natural habitat, where they are in appropriate
social groupings, which allow them to form and maintain the social
bonds that are so important to them, and where they could live out the
remainder of their lives with dignity. To ensure that elephants in the wild
are safe, all capture of live elephants and import into the U.S. should be
banned, along with all sale and possession of ivory and other elephant
parts or products. Finally, elephants should have the right to be
represented in a court of law, both civilly and criminally, in order to
protect against violations of their rights.
What would this look like internationally? On the international
level, the only treaty in existence that protects animals is CITES.55 It is a
conservation treaty, and its provisions do not consider legal rights, or
even standards of welfare. When animal protectionists attend CITES
conferences, out of respect for the institution, we do not bring these
issues up. That needs to change. As presently structured, CITES cannot
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See Vandegrift, supra note 2, at 122 (“While CITES acknowledges the problems
Chinese demand for ivory creates, CITES cannot provide a solution to the problem, as CITES
will not regulate domestic trade . . . .” (footnote omitted)).
57
David Favre, An International Treaty for Animal Welfare, 18 ANIMAL L. 237 (2012).
58
See Geneva Conventions: Overview, LEGAL INFO. INST., http://tinyurl.com/nza95mn
59
GEORGE BERNARD SHAW, BACK TO METHUSELAH 123 (The Floating Press 2010)
(1921) (internal quotation marks omitted).
offer a realistic solution because it is also the cause of the threatened
extinction of elephants.56 If the parties to CITES decide that the elephant
poaching crisis needs to be challenged, great. But, as we’ve seen, when
CITES embraces “sustainable trade in ivory,” elephant populations
plummet. We can no longer afford this seesaw approach.
We need to begin to look at elephants differently and stop asking
the question, “What is the sustainable use of them?” No use ought to be
allowable or appropriate. Twenty years ago, Professor David Favre of
Michigan State University developed a welfare treaty for wildlife and
companion animals in other countries.57 It didn’t gain traction then, but
the concept is now being reintroduced. I would suggest that, as a first
step, a welfare and protection treaty should be thought of as something
that we work on.
The establishment of international law that provides legal rights to
elephants and other animals seems a long way off, even to a dreamer like
me. It would require a great deal of education and debate in the
international sphere. But what would it look like? Perhaps, it could be
drafted along the lines of the Geneva Conventions.58 The Geneva
Conventions deal with protection of human victims in international and
non-international armed conflicts. They provide that people should be
treated humanely, without adverse distinction on the basis of race, color,
religion, faith, sex, birth, wealth, and so forth. They offer a model for a
similar convention for elephants. Additionally, we could develop
something similar to the International Bill of Human Rights, to wit, an
International Bill of Wildlife Rights and an International Bill of Elephant
Rights. Are these unattainable dreams? I am reminded of a quote from
George Bernard Shaw, “You see things; and you say, Why? But I dream
things that never were; and I say Why not?”59
Those of us who argue for legal rights for animals maintain that the
differences between humans and other animals are not legally or morally
relevant. In all legally relevant ways, elephants possess qualities that
compel us to put aside convention and convenience, and to realize that
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for too long we have ignored and violated their rights. Elephants are not
things. Legal systems which treat them as such are inherently flawed.
What are we going to do to fix this flaw? Are we going to wait until
wild elephants are declared “extinct”? Are we going to wait for society
to progress? Or are we going to begin now to change the way we look at
these extraordinary beings? Those of us who are at the heart of the
animal rights movement envision a world in which the lives and interests
of all sentient beings are respected within the legal system. Where
elephants and other wild animals can live out their natural lives
according to their instincts as well as their intelligence, in an
environment that supports their needs. We envision a world in which
animals are not exploited, terrorized, tortured, or controlled to serve our
purposes. I hope that, as you think about the crisis and hear the speakers
today, you will consider sharing the vision I am presenting, and work
with me toward a more just and compassionate world.
QUESTIONS AND ANSWERS
60
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SUE DONALDSON & WILL KYMLICKA, ZOOPOLIS: A POLITICAL THEORY OF ANIMAL
RIGHTS (2011).
61
See G.A. BRADSHAW, ELEPHANTS ON THE EDGE: WHAT ANIMALS TEACH US ABOUT
HUMANITY 150 (2009) (“Many people who live in countries where elephants are not
indigenous see an elephant for the first time in the setting of a zoo or circus. Not only are
these observers often ignorant of elephant ethology and natural history, but because captivity
is culturally sanctioned, the human eye is psychologically conditioned to interpret captive
elephant behavior as normal. Even if a person has seen elephants in their native savannahs on
television or has visited them on ‘safari,’ the power of social conditioning can blind the
viewer to what is going on inside the captive, and to the gradual degradation of an elephant
mind and body. As a consequence, ceaseless swaying and pacing by captive elephants is
labeled ‘boredom,’ but the same behavior observed in human captives is considered a
psychological disorder disturbingly indicative of cruelly imposed stress.”).
62
See supra notes 34–36 and accompanying text.
JESSICA BELL: I am from Michigan State University. I was
wondering if you were familiar with the book, Zoopolis: A Political
Theory of Animal Rights?60 The authors use a theory based in disability
law to argue for animal rights and I was wondering if you think that
might be applied to elephants? Also, I worked with Dr. Bradshaw who
did some work on elephant PTSD,61 and I was wondering if you thought
the evidence that elephants do suffer from PTSD in a captive condition
could be a further argument for elephant personhood?
JOYCE TISCHLER: Yes. Earlier, I mentioned a study that showed
elephants do suffer from something akin to PTSD, even thirty years
later.62 In terms of how we talk about rights, I started thinking about this
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PETER SINGER, ANIMAL LIBERATION (Harper Collins 2002) (1975).
DONALDSON & KYMLICKA, supra note 60, at 103–08.
65
DALE PETERSON & MARC BEKOFF, THE JANE EFFECT: CELEBRATING JANE GOODALL
29–30 (2015) (“[Jane] felt that every individual counts, not only among the animals she
studied but also when working with people who were concerned about saving other species
and their homes. At the time, naming and recognizing individuality were not standard
operating procedure in studies of animal behavior, most of which were conducted in various
sorts of artificial, captive settings.”).
64
subject in 1975, after reading philosopher Peter Singer’s book, Animal
Liberation,63 but I am not a utilitarian. I don’t go as far as Singer does,
for utilitarianism leads him to say people with disabilities are less
important, and I don’t wish to go there. I don’t want to downgrade
human beings at all; I want to upgrade animals.
JESSICA BELL: In Zoopolis, the authors argue that assisted agency
can help people with disabilities communicate their rights and be an
active member of society,64 so I think people who are aware of an
elephant’s intelligence, for example, scientists, could be used to
advocate for their rights, because they can help elephants express their
agency.
JOYCE TISCHLER: Yes; those authors offer a fresh perspective that
is worthy of consideration. And while I like to rely on scientific studies
for support of my positions, I regret that scientists often seem unwilling
to advocate for animals, out of a fear that they will be criticized by their
colleagues. For example, certain scientists have witnessed animals
exhibiting emotions, yet they refuse to compare that behavior to a
human-like response in their published reports, because they don’t want
to be accused of being anthropomorphic. But when you read reports,
such as the one I mentioned earlier, of an elephant flopping-down on the
ground and weeping, what are you going to think? Why is the elephant
doing that? I presume the elephant is doing it for the same reason I
would; well, I don’t flop down and cry too often, but isn’t it rational to
assume that the elephant is acting out frustration, anger, or exasperation?
I can only assume that. Why else would she do that?
When Jane Goodall first starting naming chimpanzees, it caused an
uproar in the scientific world.65 How, they asked, could she name a
chimpanzee? She should have kept her emotions in check and called that
chimpanzee “Z72.” Well, even if she called him Z72, she was still
observing and reporting that Z72 was using tools.
When I first began speaking publicly about animal rights, I tried not
to display emotion, and stuck with the facts as much as I could. As I’ve
aged and become more introspective, I’ve learned to trust, and exhibit
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66
SINGER, supra note 63, at 189–90.
Id. at 191.
68
Id. at 192; see, e.g., Jack Zavada, Do Animals Have Souls?, ABOUT.COM,
http://tinyurl.com/bncgjjs (last visited Apr. 22, 2015).
69
SINGER, supra note 63, at 191; see also GARY KOWALSKI, THE SOULS OF ANIMALS
(1991).
my emotions and intuitions. And that’s a good thing. Some of
humanity’s worst atrocities happen when we objectify others, and are
not in touch with our emotional responses to their suffering.
JENNIFER BROWN: Hi. I’m the Dean of Quinnipiac University
School of Law. Thank you for your talk, and more importantly for your
work, which is really important and inspiring. I just want to start by
locating my own potential bias. I have to out myself as a person who
identifies as a Christian. During your talk you referred to Christianity in
specific ways and I was wondering if you could say more about that? As
distinct from other Abrahamic traditions? Also, we were talking about
China, which has a large role currently in this, so I was wondering if you
could say something more, is there something specific about
Christianity?
JOYCE TISCHLER: During the Roman Empire, the slaughter of both
Christians and animals was carried out as entertainment.66 Early
Christian theologists emphasized the uniqueness of human beings, and
placed great emphasis on humanity possessing immortal souls, as a way
to separate humans from animals, and encourage greater compassion
toward human beings.67 The idea that human life is sacrosanct stems
from this early Christian theology.68 Sadly, greater compassion for
animals was left out of this equation, and that dichotomy persists to the
present day. Other religions have been more open to acknowledging that
beings other than humans can possess souls.69 Some religions claim that
plants and rocks have souls.
The reason I mentioned Christianity is that animal advocates often
have to respond to passages in the Bible, in which we’re told that God
decreed that humans have dominion over other animals. Does that mean
that we are allowed to dominate other species? For me, Biblical
references are frustrating, because as a lawyer, I separate church and
state. I don’t believe that one’s religious beliefs should dictate who gets
legal rights or protections. And sometimes I see religious references in
court decisions. Judges claim that they are not biased; they are merely
67
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See, for example, Lock v. Falkenstine, 380 P.2d 278 (Okla. Crim. App. 1963), where
the decision includes the following:
Before the science of Biology was in existence, a distinction was made between
living creatures in the Holy Scriptures, and often referred to as “beasts of the fields,
fish of the sea, and fowls of the air”. In the beginning, it was said in Genesis 1.26:
“And God said, Let us make man in our image, after our likeness: and let them
have dominion over the fish of the sea, and over the fowl of the air, and over the
cattle, and over all the earth, and over every creeping thing that creepeth upon the
earth.” And, in Genesis 2.19: “And out of the ground the Lord God formed every
beast of the field and every fowl of the air . . . .”
Id. at 280–81 (omission in original).
71
See Marta Daniels, Connecticut’s Role in the Ivory Trade, Part II, 33 QUINNIPIAC L.
REV. 467 (2015).
72
ANNE FARROW, THE LOGBOOKS: CONNECTICUT’S SLAVE SHIPS AND HUMAN
MEMORY 128, 150 (2014).
following the law. And then, they quote the Bible as a rationale for their
legal decision,70 which I find galling.
MARTA DANIELS: You began your talk with the idea of empathy.
The book I quoted in my talk,71 by Anne Farrow, examines slavery.
Farrow has coined a term called “empathic failure.”72 She also examines
some of the reasons for it, a lot of which is based in Christianity, for
example, these were heathens, these were inferior beings. So when you
give us the list of things that you would like us to achieve as a culture to
change the situation, can you help us understand why you think there has
been empathic failure when it comes to these animals. Because if you
want to change something, if you are going to get somewhere, you have
to know what is causing it. I know you gave us the list, and it all makes
sense, but this whole business of empathy, human empathy, where has it
gone? Why don’t we have it?
JOYCE TISCHLER: Before I address your question, I want to bring
up a relevant point. It is always a bit dicey for an animal advocate to talk
about human slavery. I don’t want people to assume that I am comparing
black people to animals, because that is done too often in our still very
racist society. What I am comparing is one social movement to another;
what I am comparing is the lack of empathy that has existed over time
for humans and the lack of empathy that exists today for many classes of
animals.
As to why so many humans fail to empathize with certain classes of
animals, consider how animal exploitation is integrated into our daily
routines: when you get up in the morning, you make your breakfast,
which may be bacon and eggs; then, you brush your teeth with
toothpaste that was probably tested on animals; and when you get
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73
Mark Jones, Animal Testing: The Ugly Secret of the Beauty Industry, HUFFINGTON
POST UK (Apr. 4, 2012, 9:37 PM), http://tinyurl.com/p6bvycx.
74
See Robert Glenn Ayres, May Contain Hooves: Why and How the Government Should
Implement Plain-Language Disclosure of Animal Products in Food Labels, 5 STAN. J.
ANIMAL L. & POL’Y 1, 8 (2012) (“While gelatin can be obtained through vegetarian sources
such as seaweed, virtually all commercial gelatin is obtained through cartilage and hooves
collected from slaughtered animals.” (footnote omitted)).
75
See, e.g., Robert St Amant & Thomas E. Horton, Revisiting the Definition of Animal
Tool Use, 75 ANIMAL BEHAVIOUR 1199 (2008), available at http://tinyurl.com/nh4v7sw.
dressed, you put on your leather belt and leather shoes. We use animals
and animal products each and every hour of every day. Our makeup is
often tested on animals;73 medical research is done on animals. Animals
are in zoos and we bring our children there. When I brought my students
to the zoo and we observed the lone bull elephant engaged in
stereotypical captivity behavior, we could hear a mother just a few feet
away say to her child, “Look, the elephant is dancing.” We use animals
in every part of our existence, in ways we don’t even know or think
about. If you eat Jell-O, you may not realize that gelatin is made from
horse hooves.74
To change our diet, to change the food we eat, to change the clothes
we wear, to change so much about ourselves, feels overwhelming to
most people. They don’t want to make those changes, so they put
blinders on to the underlying suffering. We don’t want to think about
where the bacon comes from. We don’t want to think about the torture
those chickens are going through to accomplish the mass production of
eggs. Our exploitation of animals is endemic to our society, so
empathizing with them in the ways I am suggesting is very dangerous to
the status quo.
LIV BAKER: I am an animal welfare scientist at Wesleyan
University. One thing I want to comment on is that it is very misleading,
and dangerous actually, to define an animal’s worth based on a
definition of consciousness, or cognitive skill, or awareness because
those definitions shift all the time—it leaves out a whole group of
animals. We should still talk about the emotional complexity and lives of
animals. But we shouldn’t stop there and think that is what defines their
worth and their importance, and therefore potentially their right to rights.
Even what defines tool use changes.75 We change that bar all the time to
describe what it means to be closer to humans. And it leaves out more
and more animals as we do that. I think we need to rethink how we
approach what is an animal’s worth, their intrinsic value, and not base it
on something that is hard to define and that is constantly changing.
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See De-horning, SAVE RHINO, http://tinyurl.com/pkqj2bf (last visited Mar. 22, 2015).
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76
JOYCE TISCHLER: Thank you for bringing that up. That’s a tough
one. If I were a slavery abolitionist speaking to an audience in the year
1750 and I suggested that a black man could be president, that statement
would be deemed preposterous. I might not get as far with that audience
as I would get by suggesting that a black man feels pain and pleasure
and is similar in all relevant respects to a white man. Of course, in 1750,
as a woman, I couldn’t have attended law school, and probably wouldn’t
be giving any public presentations! The reality I am conscious of is that
at this early stage in the animal rights movement, we may only be able to
establish the foundation. The kind of things I am talking about are not
going to happen in my lifetime. I am not going to live long enough to
see these changes happen. It takes a long time for a social movement to
create broad-based change, a painfully long time.
But I know where you are going and I agree with you. You are
concerned that if I am trying to convince an audience that elephants are
like us, what does that do for dogs, pigs, or other animals who may not
have the level of intellectual similarity that elephants do. My response to
that is that we have to start somewhere. And we start with the animals
who seem most like us because we are trying to convince an audience of
people who haven’t thought about this before. We’re trying to convince
them to begin to think about animals in a completely new way.
Eventually, somewhere down the line, if we can get our foot in the door
with elephants and chimpanzees, then maybe we can move on to dogs,
cats, pigs, cows, and others. I agree with what you’re saying and I see
the inherent problem with what I am doing. But I also think it is a
necessary thing to do as a first step.
JOHN THOMAS: First, I want to echo the praise for the thought
provoking and articulate presentation. I have a question about your
thoughts on an initiative that I think is very successful in Africa right
now, which violates a couple of your principles—bodily integrity and
autonomy. This is the initiative to saw off rhino horns as a way to
remove them from a poacher’s vision.76 And it does have social
consequences. I don’t know enough biology to know if it would work
with elephants. But it has social consequences in that it changes the
hierarchal order because the rhinos with the big horns are no longer the
alpha male—they are beta at best. The game reserves that have sawed
off the rhino horns and have stored them somewhere in bulk, they don’t
want to sell it although it’s worth a ton of money, have suffered no
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509
77
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Id. There is a lot of debate about whether it is preferable to remove the rhinos’ horns,
or provide rhinos with round the clock guards, or some other tactic.
78
See Statement on Tusk Removal, AMBOSELI TR. FOR ELEPHANTS (Nov. 23, 2014),
http://tinyurl.com/pow93nq; M. Sanjayan, Mountain Bull, Legendary Kenyan Elephant,
Found Dead, CBS NEWS (May 16, 2014, 4:41 PM), http://tinyurl.com/pfon75v.
79
Constituição Federal [Constitution] art. 225 § 1(VII) (Braz.) (as amended to June 30,
2004).
80
See Circus Acts are Inherently Cruel, BIG CAT RESCUE, http://tinyurl.com/oc7qvlt
(last visited Mar. 22, 2015) (listing the districts in which the use of wild and domestic animals
in circuses is banned: Rio de Janeiro, São Paulo, Pernambuco, Paraíba, Rio Grande do Sul,
Espiritu Santo, Mato Grosso do Sul, Alagoas, and a number of bans in cities within another
four Brazilian states).
81
See Galvin, supra note 27 and accompanying text. At times, a claim is made that
animals have been given legal rights under the law. I would argue that unless the law provides
poaching. None whatsoever. So it is clearly very successful. It clearly is
saving a lot of rhinos, but on the other hand it violates most of your
propositions.
JOYCE TISCHLER: These are horrible choices to have to make. With
rhinos, sawing off their horns creates the possibility of keeping them
alive, but it negatively impacts the quality of their lives.77 With
elephants, most conservationists argue that it is not practical or ethical to
saw off their tusks.78 We have to leave the elephants intact. We make
these kinds of choices all the time. In the United States, we have an over
population of dogs and cats, and we are killing four million of them per
year. The alternative is to spay and neuter them, so that they don’t
reproduce. Yet, if we spay and neuter, aren’t we violating their bodily
integrity? Yes. But the alternative is that we kill large numbers of
healthy animals at pounds and shelters. It’s pathetic that we have to
make these kind of choices, and sometimes difficult to know which
choice is the right one for the animals.
RAFAEL WOLFF: I am a federal judge in Brazil and a doctoral
student at Pace University. In Brazil, our constitution prohibits animal
cruelty.79 In ten states the use of elephants in circuses is prohibited.80
Anyone who can vote is able to have standing to protect an animal
before a judge. Prosecutors and non-governmental organizations (NGOs)
have standing too. So my question is, do you think it is necessary for
animals to have standing or do they just need to have rights? Because in
Brazil the animals have rights and I don’t see why they should have
standing. I think it would be a problem for them because it would restrict
the people who are able to protect them.
JOYCE TISCHLER: Standing. The bane of my existence. I don’t
know Brazilian law, so I am at a disadvantage.81 Under U.S. law, NGOs
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and individuals generally do not have standing to sue to enforce animal
protection laws. In almost every lawsuit we have filed in the last thirtysix years, standing has been a major hurdle for us, and has too often
barred our ability to challenge abuses of animals. We often have to
resort to a round-about approach, such as suing under the National
Environmental Policy Act82 and arguing that if the government seeks to
remove a group of animals from the wild, this constitutes a major federal
action that impacts the environment, and the government has to examine
the adverse environmental impacts of its action. We are not able to
directly represent the interests of the animals, and that is problematic.
If animals were persons under American law, they would have
standing, which would better enable us to represent their interests. What
you are saying is that they can have legal rights without being persons,
and some theorists agree with you. Professor Cass Sunstein has written
that you do not necessarily need to be a person to have legal rights.83 In
the U.S., the standing doctrine is generally viewed as a way to keep
courts from getting flooded with lawsuits; however, standing has
sometimes been used to keep unpopular plaintiffs out of the courtroom. I
would like to see standing law broadened in the U.S. If groups such as
mine, or some of the other groups represented here, had standing to
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for “legal rights” as defined by Roger Galvin, what are offered are protections, which is
something less than an actual legal right.
82
National Environmental Policy Act, 42 U.S.C. § 4321–4370h (2012).
83
See Sunstein, supra note 50, at 1360–61 (“Congress is frequently permitted to create
juridical persons and to allow them to bring suit in their own right. Corporations are the most
obvious example. But plaintiffs need not be or be expressly labeled persons, juridical or
otherwise, and legal rights are also given to trusts, municipalities, partnerships, and even
ships. In an era in which slaves were not considered persons or citizens, it was entirely
acceptable to allow actions to be brought by slaves. The fact that slaves did not count as
persons was no barrier to the suit. In particular, slaves were allowed to bring suit, often
through a white guardian or ‘next friend,’ to challenge unjust servitude. A similar
understanding seems to underlie the many cases in which animals or species are listed as
named plaintiffs. I have suggested that this is a misinterpretation of the relevant statutes, but it
is perfectly acceptable as an understanding of the Constitution. In the same way, Congress
might say that animals at risk of injury or mistreatment have a right to bring suit in their own
name. Indeed, it would be acceptable for Congress to conclude that a work of art, a river, or a
building should be allowed to count as a plaintiff or a defendant, and authorize human beings
to represent them to protect their interests. So long as the named plaintiff would suffer injury
in fact, the action should be constitutionally acceptable.” (footnotes omitted)). Professor
David Favre offered a similar argument in his article. See Favre, Living Property, supra note
6, at 1023.
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511
84
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See Carter Dillard, Standing Up for Animals, ANIMAL LEGAL DEF. FUND (June 27,
2011), http://tinyurl.com/kb39rrd.
85
See Elizabeth Bennett, Animal Agriculture Laws on the Chopping Block: Comparing
United States and Brazil, 31 PACE ENVTL. L. REV. 531, 544 (2014); Farmed Animals and the
Law, ANIMAL LEGAL DEF. FUND, http://tinyurl.com/mrqzzp6 (last visited Apr. 22, 2015).
86
For example, the Israeli Supreme Court banned the force feeding of geese in that
country as violative of Israel’s animal protection law. Israeli animal protections had standing
to bring this case due to Israel’s standing law, which is more lenient than standing law in the
U.S. See Mariann Sullivan & David J. Wolfson, What’s Good for the Goose . . . The Israeli
Supreme Court, Foie Gras and the Future of Farmed Animals in the United States, 70 L. &
CONTEMP. PROBS. 139 (2007), available at http://tinyurl.com/nz2rpno; ‘Noah’, Israeli
Federation of Animal Protection Organizations v. Attorney General, Minister of Agriculture,
Egg and Poultry Board, MICH. ST. UNIV., http://tinyurl.com/nhkud43 (last visited Apr. 22,
2015).
represent the interests of animals, we could go a long way to protecting
animals in ways that we are unable to now.84
The American laws related to farmed animals provide a clear
example of how an industry can control state legislatures and eliminate
all legal protections for an entire class of animals. There are no federal
laws, and only a few state anti-cruelty laws, which offer protections to
farmed animals while they are being raised in industrial agricultural
factories.85 We are talking about ten billion animals per year, who are
generally living in intensive confinement, filth, their basic needs being
completely ignored, and nobody has standing to represent the interests of
those animals or challenge their living conditions. In other countries that
have less onerous standing requirements, it has been interesting to see
how animal protection and environmental groups have been able to do
some good things at times.86 But in the U.S., for better or worse, some of
us are committed to trying to achieve personhood for animals, as the
most effective way to directly protect their lives and interests. As I
mentioned earlier, this work is at a very early stage, and it is hard to
know when, where or if we are going to succeed. I hesitate to use this
analogy, but to some extent, you throw everything up on the wall and
see what sticks. You look brilliant afterward if you hit the right legal
theory, and stupid if you don’t.
KIMBERLY OSBORNE: This is related to standing. I am interning at
the Attorney General’s Office, and when we bring animal neglect cases,
it is an in rem proceeding, a property proceeding, so the whole thing is
framed from the outset. I was wondering whether you had any other
ideas about how these claims could be brought to court in a manner in
which animals were honored in the way you say.
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87
05/08/2015 09:54:41
See N.C. GEN. STAT. § 19A-2 (LEXIS through 2014 Reg. Sess.).
Id. § 19A-4(a).
89
Id. § 19A-4(b).
90
The Horror of Animal Hoarding, ANIMAL LEGAL DEF. FUND (May 4, 2005),
http://tinyurl.com/njl7du5.
91
Animal Hoarding Facts, ANIMAL LEGAL DEF. FUND, http://tinyurl.com/neera22 (last
92
Animal Legal Def. Fund v. Woodley, 640 S.E.2d 777 (N.C. Ct. App. 2007).
93
See Animal Legal Defense Fund Sues to Rescue Starving Horses in Horrific Wake
County Neglect Case, ANIMAL LEGAL DEF. FUND (Jan. 12, 2009), http://tinyurl.com/kbytfx2;
Animal Legal Defense Fund Sues to Rescue 100+ Dogs From Real-Life House of Horrors in
Raleigh, ANIMAL LEGAL DEF. FUND (Oct. 31, 2007), http://tinyurl.com/mmqqgux/; Press
Release, Animal Legal Def. Fund, Judge Grants Ben the Bear Permanent Sanctuary (Aug. 27,
2012), available at http://tinyurl.com/k2oq79m.
88
JOYCE TISCHLER: North Carolina has an interesting law which
enables someone to civilly enjoin cruelty.87 Such a law is unusual in the
U.S. Normally, in the criminal law system, a prosecutor has complete
discretion as to whether or not to prosecute, and that applies, as well, to
the prosecution of animal cruelty cases. But in North Carolina, if a group
such as mine has evidence of cruelty, we can file a civil lawsuit and ask
a judge for an injunction to halt the cruelty.88 Additionally, this law
allows us to gain possession of the animals.89 And standing under this
law is broad. Starting in late 2004, ALDF used that law in an animal
hoarding situation.90 Animal hoarding is where someone has a large
number of animals who are not receiving even the most basic care and
nutrition.91 The animals can suffer for months and even years at the
hands of hoarders. ALDF sued Barbara and Robert Woodley, a couple
who kept five hundred dogs in horrible conditions. We were able to
convince the court that cruelty was occurring; the judge issued a
preliminary and later a permanent injunction, and gave possession of all
of the dogs to ALDF. That was challenging, as we had to open and
maintain a dog shelter, but we were thrilled to be able to rescue those
dogs and give them a far better life.
The Woodleys appealed that decision all the way up to the highest
court in North Carolina and ALDF won.92 ALDF has gone back to North
Carolina several times, as have other groups, and rescued horses and
dogs; we even rescued a bear from a roadside exhibit and sent him to a
sanctuary.93 So, that is a model I would love to see codified as law in
other states. It would enable groups such as ALDF to bring relief
directly to the animal victims, and take them out of harm’s way.
EMILY CHUMAS: I am a first-year law student at Quinnipiac. In the
spirit of changing dialogue, my background is in biomedical and science
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513
Animal Welfare Act, 7 U.S.C. § 2131–2159 (2012).
NAT’L RESEARCH COUNCIL, TOXICITY TESTING IN THE 21ST CENTURY: A VISION
AND A STRATEGY (2007), available at http://tinyurl.com/c7r7z7r.
95
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94
research, and I worked in a department that protected human subjects in
research. One of the first things that physicians and scientists ask is to
see the animal models, for if it is safe for an animal, then it is safe for a
human being. How do you change that dialogue?
JOYCE TISCHLER: In my experience, you don’t. You create
technology to replace the use of animals. At ALDF, we spent many
years trying to get better conditions for animals in research laboratories
by suing the U.S. Department of Agriculture, and we lost repeatedly. We
didn’t lose because we’re bad lawyers. We lost because our society is
still not ready to question the use of animals in research. And while
Congress pays lip-service to using those animals humanely, we lost
every legal battle to achieve more humane care and treatment for the
animals in laboratories, to take laboratory primates out of isolation, to
give laboratory dogs exercise, and to provide any protection for mice
and rats, who constitute 95% of the animals used in research. Indeed,
rats and mice are completely excluded from the protections of the
Animal Welfare Act,94 which is the only federal law that covers the use
of animals in research.
Despite valiant efforts, the animal rights/protection movements
haven’t significantly changed the dialogue about the use of animals in
research and testing, certainly not in the thirty-six years that I’ve been
involved. What has changed is the development of new technologies—
cell cultures, tissue cultures, mathematical models, computer models—
that will ultimately begin to replace the use of animals.
That sea change began in 2008 when the National Research Council
(NRC) issued a report called Toxicity Testing in the 21st Century.95 A
group of toxicologists on an NRC committee realized that using animals
in toxicity testing is no longer working. It is too expensive, takes too
long, and the results are questionable at times. This committee of
scientists, with only one animal welfare activist present, concluded that
we need to develop new technologies that are faster, less expensive, and
more predictive about how human beings will respond to chemicals and
other materials. There is now a world-wide effort to develop those nonanimal (in-vitro) alternatives. My hope is that, once this is achieved in
toxicity testing, the use of these in vitro technologies will bleed over into
other areas of research and replace animal use more broadly.
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To close, I’d like to share with you one of my favorite quotes. It is
from Theodore Parker, a Unitarian minister who was also an abolitionist.
He died in 1860, before slavery ended. In 1858, Rev. Parker gave a
speech at an anti-slavery convention held in the hall of the statehouse in
Massachusetts. You may have heard this quote before, and you probably
attributed it to Abraham Lincoln or Martin Luther King.96 But it was
actually Theodore Parker who said:
I do not pretend to understand the moral universe, the arc is a long one, my eye
reaches but little ways. I cannot calculate the curve and complete the figure by
the experience of sight; I can divine it by conscience. But from what I see I am
97
sure it bends toward justice.
My sincere hope is that the arc of justice bends toward the animals.
Thank you.
Theodore Parker and the ‘Moral Universe,’ NPR (Sept. 2, 2010),
http://tinyurl.com/2voaxkn.
97
THEODORE PARKER, TEN SERMONS OF RELIGION 66 (Boston, Crosby, Nichols & Co.;
N.Y., Charles S. Francis & Co. 1853), available at http://tinyurl.com/m9dfb3d.
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HARRIS FINAL (Do Not Delete)
4/25/2015 9:39 PM
THE ROLE OF LAW, SOCIETY, AND ETHICS WITHIN
WILDLIFE IMPORTING COUNTRIES
Michael R. Harris*
I want to start by giving my thanks to Professor Thomas and all the
students for putting on this symposium. It is obviously extremely
important and surprisingly timely. Although this topic has long been a
problem, it has become timely again. Before I get going, Marta Daniels
asked a question about what is the root of our moral decay.1 The
following are places you might want to look. First, Aldo Leopold said it
is gadgetry, the industrial revolution;2 second, if you want to look at the
archeological record of this moral decay, there is a book by Riane Eisler
called The Chalice and the Blade that I recommend.3 It provides a great
insight into how we might have developed such disrespect for animals
and the ecosystem.
No matter how many times I look at it, this rough listing of how
bad things are, in relation to the ranking of international crimes, blows
my mind: (1) drugs, (2) human trafficking, (3) wildlife trafficking, and
(4) guns.4 This is not an exact ranking, you might see different ones
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515
* Michael Harris is the Wildlife Law Program Director for the animal rights advocacy
organization Friends of Animals. For nearly two decades, he has worked as an environmental
attorney, much of the time working directly on litigation to protect wildlife and natural
ecosystems. Harris received a B.A. in environmental and political studies from Pitzer College
in Claremont, California, an M.S.L. from Vermont Law School, and a J.D. from the
University of California-Berkeley, where he was an Executive Editor for Ecology Law
Quarterly. Before his position at Friends of Animals, Harris was an Associate Professor at the
University of Denver, where he directed the school’s Environmental Law Clinic.
Harris’s presentation was given on November 8, 2014 at Quinnipiac University School
of Law and can be viewed at Quinnipiac Law Review—2014 Symposium—Michael Harris,
YOUTUBE (Nov. 21, 2014), http://tinyurl.com/p3ook9d.
1
See Joyce Tischler, Changing the Dialogue About Elephants, 33 QUINNIPIAC L. REV.
485, 506 (2015).
2
Aldo Leopold, Wildlife in American Culture, 7 J. WILDLIFE MGMT. 1, 1–3 (1943)
(describing the distraction of gadgets and effect on man’s relationship with the outdoors).
3
RIANE EISLER, THE CHALICE AND THE BLADE: OUR HISTORY, OUR FUTURE 47–48
(1995).
4
INT’L FUND FOR ANIMAL WELFARE, CRIMINAL NATURE: THE GLOBAL SECURITY
IMPLICATIONS OF THE ILLEGAL WILDLIFE TRADE 4 (2013), available at
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[Vol. 33:515
elsewhere. When it comes to these crimes, there are not a whole lot of
statistics. It is not being done in the open, so we do not know how bad
these crimes really are. I have seen estimates that wildlife trafficking is a
$20,000,000,000 a year industry.5
These four crimes have several similarities. First, those deemed the
most vulnerable are often the victims of these crimes. Drug dealers,
human traffickers, and smugglers target the young and impoverished to
do their dirty work. In respect to the wildlife trade, international
criminals often force local villagers to do the poaching, by offering them
scant, but much needed money, or by directly threatening them and their
families to do it.6 It is very much a top-up enterprise, where the money is
flowing to the very few at the top of the syndicate, and those risking
their lives doing the poaching or smuggling see very little of it.7 Second,
there is a shared dichotomy between developing and developed
countries. Generally, with drugs, human trafficking, and wildlife
trafficking we see a flow from developing countries to developed
countries; with guns, it is often the opposite direction.8
Third, which I am going to talk about in greater depth later on with
regard to wildlife trafficking, all four involve the common question of
whether these crimes are a result of an exclusive law enforcement
problem or a deeply-rooted social problem that must be solved from
within. This question has sparked great debate, and I will return to it in a
moment.
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http://tinyurl.com/np48fhq; see also U. NATIONS ENV’T PROGRAMME, UNEP YEAR BOOK:
EMERGING ISSUES IN OUR GLOBAL ENVIRONMENT 25–29 (2014), available at
http://tinyurl.com/k72q8tq.
5
See Beth Allgood et al., U.S. Ivory Trade: Can a Crackdown On Trafficking Save the
Last Titan?, 20 ANIMAL L. 27, 30 (2013).
6
See Greg L. Warchol et al., Transnational Criminality: An Analysis of the Illegal
Wildlife Market in Southern Africa, 13 INT’L CRIM. JUST. REV. 1, 5 (2003) (“‘Commercial
poachers are affluent individuals or groups of individuals who carry on their illegal activities
by hiring poor villagers who have few other avenues of income. They have modern, longrange communication devices. They carry sophisticated, military firearms and ammunitions.
They also have modern automobiles that make the transportation of the killed animals easier.
In many cases, the logistical capacity of the poachers is better than that of the law
enforcement officers.’”).
7
See David J. Hayes, Illegal Wildlife Trafficking & the U.S.-Africa Summit, STAN.
LAW. (July 28, 2014), http://tinyurl.com/ppfqlmg.
8
See generally JEREMY HAKEN, GLOBAL FIN. INTEGRITY, TRANSNATIONAL CRIME IN
THE DEVELOPING WORLD (2011), available at http://tinyurl.com/mkdbqos (analyzing twelve
different criminal markets, including drugs, humans, wildlife, and small arms, and the
estimated value of each market, the directionality of the flow, the distribution of profits, and
effects of the trade on developing countries).
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4/25/2015 9:39 PM
517
9
05/08/2015 09:54:41
See generally Tischler, supra note 1.
See, e.g., Allgood et al., supra note 5, at 32 (“[T]he legal trade in ivory has created an
unmanageable situation for law enforcement and wildlife officials.”).
11
See, e.g., Wildlife Trade, HUMANE SOC’Y U.S., http://tinyurl.com/644l5na (last visited
Mar. 9, 2015) (“The United States is one of the largest consumers of the world’s wild
animals. . . . Wild animals are traded illegally—to the tune of $10 billion or more globally
each year, an amount second only to arms and drug smuggling—as well as legally.”).
12
See Wildlife Law Program, FRIENDS ANIMALS, http://tinyurl.com/kw3jv3a (last
13
For lions, like most species, it is difficult to obtain exact numbers of individuals held
in captivity because very few records are maintained. See, e.g., Alicia Graef, There Are More
Captive Tigers in Texas Than in the Wild, http://tinyurl.com/qx5buxe (last visited Apr. 1,
10
There is also a dissimilarity, and I do not mean to be callous here at
all, because there is a lot of human suffering caused by all four of these
crimes; but of the four, only wildlife trafficking is running out of
victims, and quickly. There is no doubt that extinctions of most animals
caught up in the wildlife trade are looming. You heard Joyce Tischler
talk about the elephants,9 but you can look down the list of the animals
being trafficked and see that there is not a lot of hope for them. Time is
of the essence. There is not much time for a long-term plan to solve this;
the situation is dire.
It is the exporting countries, often developing nations in Africa,
Asia, and South America that are being asked to shoulder the law
enforcement burden here.10 You can see how little sense that makes. It is
really time to shift the burden back onto the importing countries, like the
United States, to protect fauna. Importing countries are the biggest
offenders when it comes to both legal and illegal wildlife trade.11 At
Friends of Animals, where I direct the Wildlife Law Program, this is the
work we do. We are trying to use domestic laws to protect and liberate
exotic wildlife in the United States, and to the extent we can, to try to
prevent exotic wildlife, and their parts, from ever getting here in the first
place.12 There are a lot of things that can get done at home, and in other
importing countries, that often gets pushed to the side because the focus
tends to be where the crimes are occurring in the exporting countries.
Today, I am going to share information that sheds light on the
dichotomy between developing and developed countries, and the impact
that dichotomy has had on wildlife in developing countries. In the world
today, it is fair to say that for many endangered animals, particularly socalled “game” species, there are more animals being held in captivity
than are left truly in the wild. For instance, I have heard that for every
one remaining African lion in the wild, there are upwards of eight held
in captivity.13 I have had the privilege of sharing this information twice
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2015). Even so, it is estimated that there are as many as 20,000 big cats held by private
collectors living in the United States alone. Id. Similarly, it has been estimated that more than
twice the number of lions live on private hunting ranches in South Africa than lions living in
that country’s wild. See Anton Crone, An Analysis of the Lion Breeding Industry in South
Africa, AFR. GEOGRAPHIC, Aug. 22, 2014, available at http://tinyurl.com/nw92b36.
14
See Three Strikes on Canned-Hunting, FRIENDS ANIMALS (Aug. 14, 2013),
http://tinyurl.com/pt6fcq5.
15
Removal of the Regulation That Excludes U.S. Captive-Bred Scimitar-Horned Oryx,
Addax, and Dama Gazelle From Certain Prohibitions, 77 Fed. Reg. 431 (Jan. 5, 2012) (to be
codified at 50 C.F.R. pt. 17) (“Based on a 2010 census of its members, the Exotic Wildlife
Association (EWA) estimates there are 11,032 scimitar-horned oryx, 5,112 addax, and 894
dama gazelle on EWA member ranches.”).
16
See, e.g., U. NATIONS ENV’T PROGRAMME ET AL., VITAL FOREST GRAPHICS (2009),
available at http://tinyurl.com/pluxoms.
17
See EXOTIC ANIMALS R US, http://www.exoticanimalsrus.com/ (last visited Apr. 7,
2015).
at conferences in Africa. You think you are shocked, you should see
their dismay at this. They want their animals back. What they wish may
not be possible, but you can understand their reaction.
Friends of Animals has been working on protecting three animals,
the Scimitar-horned Oryx, the Dama Gazelle, and the Addax—antelope
species native to northern Africa—on their home ranges and here in the
United States for over a decade.14 These animals will not survive on their
own home ranges; without adequate protection from poachers they
would be extinct today. Many non-governmental organizations,
including Friends of Animals, have put a lot of money into protecting
these three animals in the wild. In the meantime, there are thousands of
these species on hunting ranches in the United States alone.15 Lastly, we
have little amphibians, reptiles, and birds—the little guys that make up
the bulk of the pet trade. Their populations are being decimated around
the world, and their habitats are being placed under tremendous stress as
a result of poaching.16
So why are they coming to us? Why are we bringing these animals
to the United States? There is a desire for exotic animals in the United
States. Whether you are on the web, subscribe to one of the many animal
trade journals, or just see an ad on the back page of a local newspaper,
there is no way to put into words how many animals are being offered
for sale this very morning in the United States.
For one thing, there is our belief that exotic animals are amusing.
For example, there is a company called Exotic Animals R Us, which can
arrange to bring monkeys, wild cats, exotic birds, kangaroos, and
African antelope to your next office or home party, if you so wish.17
There are literally thousands of these outfits in the United States—not to
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18
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About Us, EXOTIC MEATS USA, http://tinyurl.com/mo8dmfe (last visited Mar. 9,
2015) (“[We are] part of a national market that has seen annual sales skyrocket from about
$110 million to more than $340 million in only a few short years.”).
19
Id. (“The next time your [sic] in Reno, do a will call pickup and visit with our friendly
staff . . . .”).
20
Id.
21
Joseph Stromberg & Sarah Zielinski, Ten Threatened and Endangered Species Used in
Traditional Medicine, SMITHSONIAN (Oct. 18, 2011), http://tinyurl.com/qbxhq5y.
22
See, e.g., Texas Hunting Packages, TEX. HUNT LODGE, http://tinyurl.com/l2q58g8
23
See, e.g., Terms and Conditions, TEX. HUNT LODGE, http://tinyurl.com/l5ro9yv (last
visited Mar. 9, 2015) (“In the event that the client does not have an opportunity to harvest (a
wounded animal is considered harvested) the Wild Game animal that he has contracted for in
the normal Hunt package offered by Texas Hunt Lodge, the Texas Hunt Lodge will refund the
Trophy Fee Portion of the Clients [sic] Hunt Package. The portions of the Hunt Package
which will not be refunded will include those applicable to Accommodations, Taxes, Guide
mention all the roadside exotic animal zoos that invite the public to
come over and stop whenever they are in the middle of Kansas and want
to see this and that.
Furthermore, there is the exotic meat industry. There is an appetite
for these animals. While I was searching online about a week ago, I
found a place where you can buy a variety of exotic animal meats, for
example, camel steak. According to this website, the company is proud
to show that there has been a threefold increase in this industry over the
last few years.18 If you are interested in seeing the carnage yourself,
there is an invitation by the owners to come visit.19 And they are
apparently interested in your best exotic meat jokes20—as if you would
have such a joke.
There is also a belief that exotic animals serve medicinal purposes,
something we often assign to Asian cultures. But the reality is, there are
millions of people in America who subscribe to these beliefs too. They
use tiger parts, bear bile, and the parts of a number of other animals they
believe have medicinal qualities.21
Finally, there is our desire to use exotic animals for sport. I am
really talking about two things. The first is the killing of these animals in
their home ranges, in Africa for instance, and then importing the animal
parts back into the United States—for example, their horns, tusks, and
heads. The second is the killing of exotic animals held in captivity on
hunting ranches in the United States. There are hundreds of these
ranches in Texas and Oklahoma and they even advertise their prices.22
Some of the most expensive animals to hunt are also the rarest animals
on earth. These hunting ranches have a no–kill, no–pay policy, which
functions like a guarantee.23 For instance, one ranch advertises that an
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Fees, Ranch-Use Fees, Food and Beverages, use of Texas Hunt Lodge amenities, and
transportation costs.”).
24
Addax Hunts, TEX. HUNT LODGE, http://tinyurl.com/oj36n47 (last visited Mar. 9,
2015).
25
Id. (“Trophy Fees are in addition to $250 per day which covers All-Inclusive Hunt
Package. Non-hunting guests may accompany the hunter for an additional $100 per day which
covers lodging, meals and ammenities [sic] as well.”).
26
Id. (listing items included in the hunt package, including “[t]ransportation of your
animal to Taxidermist/Meat Processor”).
average Addax antelope goes for a trophy price of $6900.24 This price,
however, does not include your lodging, your guide fees (like you really
need a guide), or additional costs, such as food and beverage fees.25 Nor
does this price include the fees associates with the care and mounting of
the carcass.26 These are $15,000–$20,000 trips. I suppose these
individuals return home and lie to their friends and family, telling them
that they “bagged it” in the wilderness.
Back to this question about whether, like with drugs and human
trafficking, we are facing a systematic social problem or law
enforcement problem when it comes to wildlife trafficking. I am sure
many in this room, including myself, at first blush, would probably say a
little of both. Well, let me ask a question: Is it possible to imagine that
the question itself has become the problem? That we are just trying to pit
one extreme answer against the other, like the old hawks versus doves
debate? I would propose that law and society are, for the most part,
intricately bound. Don’t get me wrong, extremes exist. It is possible for
a community with strong leadership to resolve internal social problems
without resorting to legal institutions. But even one of our most wellknown community organizers, Mr. Obama, became President Obama to
better utilize the law to solve drug problems, poverty problems, crime,
and other assorted social issues. There is also the other extreme, that we
don’t need to talk about, which is hopefully not going to happen in this
country, a dictatorship that uses law to suppress social problems or make
them vanish.
I think the hallmark of a healthy nation is where law and society do
work together. Now I am sure, as any second-year law student in this
room can tell us, that law has two principal purposes: to punish and to
deter. But of course, deter means more than just putting the fear of God
in everyone that they are going to go to jail. It is much more complex
than that. Laws can be made to deter through threat of punishment, of
course, but such laws can also help build informational depositories to
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Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243.
28
Endangered Species Act, 16 U.S.C. §§ 1531–1544 (2012).
29
National Environmental Policy Act, 42 U.S.C. §§ 4331–4370h (2012).
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27
inform and educate people. They can even be used to provide positive
incentives to conform one’s behavior to societal norms.
Most importantly, we want our laws to be seen as legitimate social
choices that guide individual decisions and that reward those who act
accordingly. Yes, it might very well be that that reward is staying out of
jail. But, more often, I think it is couched in a phrase that I bet every one
of us wants other people to say in the event we are accused of a crime or
die: “She was a good, law-abiding person.” Right? I don’t mean that you
don’t want to get in trouble sometimes for a good cause. But let’s get
real. This is ultimately about the only reward you are going to get for
being a member of society in the long run: someone standing up for you
like that.
In order to be successful, a law must transform over time from
being an individual obligation, something we feel compelled to do, to a
social norm or a bona fide ethical responsibility that we feel we have
within society. Society did not wake up one day and declare that murder
was unethical. Society woke up one day to find it was forbidden, carved
on some stone; and I will leave it to every person’s own beliefs as to the
source of that stone. But, over time, murder became immoral as well.
Some of us have seen an example of this in our lifetime. When I was a
teenager, the law was very lenient with the issue of drinking and driving.
By the time I got out of law school, we had a legal obligation not to
drive under the influence. I think today we are approaching a belief that
it is just morally wrong. This is an example of how rapidly a social issue
can evolve from being considered something that opposes the norm, to
being seen as a legal obligation, and, finally, to completely reversing the
social norm.
Sadly, with regard to wildlife trafficking, we have generally failed
to punish, failed to deter, and failed to set a new social norm. Yet,
CITES,27 the Endangered Species Act,28 and the National Environmental
Policy Act29 are all over forty years old. Instead of being heralded as
universal successes, the Endangered Species Act and the National
Environmental Policy Act are repeatedly called ineffective,
cumbersome, and litigation drivers. Well, I remain an optimist. I believe
that all three of these laws could still be effectively used to end the
wildlife trade. The truth of the matter is that the Endangered Species Act
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30
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As of the date of this presentation, Congress had not enacted a single piece of climate
change legislation. Instead, President Obama has had to try to find ways to utilize laws, like
the Clean Air Act, that were passed in the 1970s, to forge executive branch strategies to
reduce the emissions of greenhouse gases. See, e.g., President Obama’s Plan to Fight Climate
Change, WHITE HOUSE, http://tinyurl.com/nml34fu (last visited Apr. 1, 2015).
31
16 U.S.C. § 1531(b) (2012).
32
See generally Berry J. Brosi & Eric G. N. Biber, Citizen Involvement in the U.S.
Endangered Species Act, SCI., Aug. 17, 2012, at 802.
33
16 U.S.C. §§ 1533(a)(1)(A)–(B).
34
Id. §§ 1538(a)(1)(B)–(C) (2012).
and the National Environmental Policy Act remain two of the strongest
environmental laws on this planet. You don’t have to go much further
than climate change to prove that proposition. The federal government
has done absolutely nothing to develop new laws to combat climate
change.30 But activists continue to use both the Endangered Species Act
and the National Environmental Policy Act to push the ball along, to
force the government to continue to evaluate the impact climate change
has had on the environment and on species. As a result, the argument for
changing the current social norm, which apparently is to do nothing to
combat climate change, is getting harder and harder to justify.
These laws may not be the solution, but they continue to be the
most effective tools we have to continue to build toward that solution. I
am not saying that we do not need new laws to combat wildlife trade.
Obviously, we do. But I believe that if all the young lawyers in this
room, all of us activists, continue to defend the Endangered Species Act
and the National Environmental Policy Act for what they are—strong
and effective tools—we can use them not only to more successfully
deter and punish wildlife crimes, but also, more importantly, to advance
that ball towards an ethical transformation of our approach to wildlife,
the likes of which Aldo Leopold struggled to achieve his whole life.
I will now give you a quick overview of the Endangered Species
Act (Act). The Act only protects species that are listed as endangered or
threatened.31 A vast majority of species that have made it on that list
have done so because of a citizen-initiated petition process.32 Someone
would present the information to the government to show that a species
was either going extinct or was reasonably likely to go extinct. A
majority of those species on that list are on there for two reasons: either
detrimental loss of their habitat or utilization of that species for a direct
or indirect economic reason.33 Once they are listed, this categorization as
an “endangered species” prevents their “take.”34 This means more than
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35
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Id. § 1533(b).
Captive Wildlife Regulation, 44 Fed. Reg. 30,044, at 30,045 (proposed May 23, 1979)
(to be codified at 50 C.F.R. pt. 17).
37
Id.
38
Id.
39
Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243.
40
16 U.S.C. § 1539(a)(1)(A) (2012).
41
Id. § 1539(d)(1).
42
Id. § 1539(d)(2).
43
Id. § 1539(d)(3).
36
just preventing them from being killed; it also means that humans are not
allowed to harass them or to bring them into captivity, generally.
Now this surprises a lot of people, particularly when I talk to folks
who are abroad, but the Endangered Species Act protects both native
species and exotic species that are endangered in their home ranges.35
The reason for this is threefold. First, there was a concern that
“[c]onsumptive uses of captive wildlife stimulate a demand for products
which might further be satisfied by wild populations[.]”36 Second, there
was a concern that people would “illegally obtain specimens from wild
populations and claim them to be captive-produced[.]”37 And finally,
there was the concern that “[c]aptive propagation is sustainable only
with a continuous supply of wild-caught animals.”38 At the time a lot of
this concern was regarding foreign animals, whether it was alligator
skins or elephant tusks, or a number of other products being imported
into the country. This expansion coincided with Congress’s decision to
direct the Secretary of State to implement a worldwide treaty, which is
now known as CITES.39
There are some exceptions to the “take” prohibition. Any person
can obtain a permit under the Endangered Species Act to take an
endangered or threatened species for two reasons: “for scientific
purposes or to enhance the propagation or survival of the affected
species . . . .”40 At first blush, that sounds very broad. Scientific
purposes? That is couched quite broadly. But the exceptions are limited
by three really important factors, which, to be honest with you, the
government likes to ignore quite a bit. First, a permit may only be issued
if it was applied for in good faith.41 Second, and more importantly, a
permit must not operate to the disadvantage of the species.42 Third, a
permit must be consistent with the conservation purposes and policies of
the Endangered Species Act.43
Unfortunately, the U.S. Fish and Wildlife Service’s current
interpretation of the permitting provisions is completely backwards. It
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places the Act’s conservation purpose on its head. In effect, it is using
the Endangered Species Act to legitimize the harvest of both captivebred and wild endangered species around the world. I will give you a
couple of examples. I mentioned three species of African antelope
earlier, the Scimitar-horned Oryx, the Dama Gazelle, and the Addax—
remember that all three are critically endangered in the wild. For over a
decade, the U.S. Fish and Wildlife Service refused, despite their dire
situation, to list them as endangered species. The primary reason behind
this refusal, which should be obvious by now, was to protect the
economic use of the antelope on hunting ranches in the United States.
After litigation, and being forced to finally make that tough choice,
what was the government’s solution? To list the species, and then grant
permits to all the hunting ranches on each of them.44 There is no rigorous
work that has to be done in filing for a permit. The U.S. Fish and
Wildlife Service has issued guidelines for sport-hunting ranches, which
describe how to fill out a permit application and how one should answer
each particular section of the application.45 I, however, have seen
applications that do not even have the canned answers in the box, and
the ranch still gets its permit. But to this day, no matter how much we
press them, the U.S. Fish and Wildlife Service will not produce to us any
documentation or other evidence that these permits do not operate to the
disadvantage of the species as a whole or that they are consistent with
the conservation ethic of the Endangered Species Act.
And then there is the African lion. You may have seen that, just
recently, the U.S. Fish and Wildlife Service proposed that the African
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See Exclusion of U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle
From Certain Prohibitions, 70 Fed. Reg. 52,310, at 52,313 (Sept. 2, 2005) (to be codified at 50
C.F.R. pt. 17) (“There is no evidence that the availability of captive-bred animals to trophy
hunters has contributed in any way to hunting pressure on these species in the wild. . . . Sport
hunting of surplus animals from captive-breeding operations in the United States is anticipated
to reduce the incentive for removal of wild animals in their range countries by providing an
alternative source of specimens.”). This regulation was challenged as violating the National
Environmental Policy Act. See Friends of Animals v. Salazar, 626 F. Supp. 2d 102 (D.D.C.
2009) (remanding the regulation to provide the public an opportunity to comment on it). The
regulation was subsequently eliminated “following consideration of all comments[.]”
Removal of the Regulation That Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax,
and Dama Gazelle From Certain Prohibitions, 77 Fed. Reg. 431, 436 (Jan. 5, 2012) (to be
codified at 50 C.F.R. pt. 17).
45
See African Antelope, U.S. FISH & WILDLIFE SERVICE, http://tinyurl.com/pbp9whv
(last visited Mar. 15, 2015) (providing a link to an “Informational Cheat Sheet on Interstate
Commerce and Culling of the Three Antelope”).
44
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lion be listed as a threatened species.46 But simultaneous with the listing
proposal, the U.S. Fish and Wildlife Service proposed what is known as
a “special take” rule.47 Like the previously mentioned permits available
to sports-hunting ranches, a special take rule is not supposed to
disadvantage the species and is supposed to be consistent with the
conservation principles of the Endangered Species Act. Well, let me read
to you the rationale:
While the Service cannot control hunting of foreign species such as African
lion, we can regulate their importation and thereby require that U.S. imports of
sport-hunted African lion trophy specimens are obtained in a manner that is
consistent with the purposes of the Act and the conservation of the subspecies
in the wild, by allowing importation from range countries that have
management plans that are based on scientifically sound data and are being
implemented to address the threats that are facing lions within that country.
Such management plans would be expected to address, but are not limited
to, evaluating population levels and trends; the biological needs of the species;
quotas; management practices; legal protection; local community involvement;
and use of hunting fees for conservation. In evaluating these factors, we will
work closely with the range countries and interested parties to obtain the best
available scientific and commercial data.48
46
05/08/2015 09:54:41
See African Lion, U.S. FISH & WILDLIFE SERVICE, http://tinyurl.com/ku653rv (last
updated Oct. 29, 2014); see also Darryl Fears, African Lions are Set to Become the Last Big
Cat Listed Under the Endangered Species Act, WASH. POST (Oct. 27, 2014),
http://tinyurl.com/m84fzad.
47
See generally Listing the African Lion Subspecies as Threatened With a Rule Under
Section 4(d) of the ESA, 79 Fed. Reg. 64,472 (proposed Oct. 29, 2014) (to be codified at 50
C.F.R. pt. 17).
48
Id. at 64,501.
That all sounds good; there is a lot of rhetoric there. But we’ve heard it
all before in regard to rhinoceroses and elephants. We have heard it over
and over throughout the years.
Keeping populations managed at such low herd levels is not viable.
Populations can collapse in a heartbeat due to disease, famine, drought,
or, as we have seen in recent years, just an uptick in demand on the
black market. But once again, the U.S. Fish and Wildlife Service asks us
to blindly believe that these special take rules, as they can be called, will
promote conservation efforts and will offset the demand for illegal trade.
Before making such a leap of faith, we need to demand from the U.S.
Fish and Wildlife Service some scientific proof.
In reality, and this is supported by a growing body of scientific
literature, a legal harvest, or what I will call a “duel market,” where the
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49
05/08/2015 09:54:41
See 16 U.S.C. § 1540(b) (2012).
See, e.g., ALAN GREEN & THE CENTER FOR PUBLIC INTEGRITY, ANIMAL
UNDERWORLD: INSIDE AMERICA’S BLACK MARKET FOR RARE AND EXOTIC SPECIES 67–89
(1999).
51
Listing All Chimpanzees as Endangered, 78 Fed. Reg. 35,201, at 35,206 (proposed
June 12, 2013) (to be codified at 50 C.F.R. pt. 17) (“The potential consequences of captiveheld specimens being given separate legal status under the Act on the basis of their captive
state, particularly where captive-held specimens would have no legal protection while wild
specimens are listed as endangered or threatened, indicate that such separate legal status is not
consistent with the section 2(b) purpose of conserving endangered and threatened species.
Congress specifically recognized ‘overutilization for commercial, recreational, scientific, or
educational purposes’ as a potential threat that contributes to the risk of extinction for many
species. If captive-held specimens could have separate legal status under the Act, the threat of
50
trade of some animals of a species is legal, but the trade of other animals
of the same species is illegal, will, more often than not, increase demand
for wildlife stock; will remove the stigma and, thus, legitimize the
ownership of these animals and their parts; and, more importantly, will
be used as a cover to launder wild caught animals.
Early on I talked about the burden of what happens if you get
caught illegally trading (and obviously there is a difference in burden if
you are being asked in a civil context to forfeit or pay civil penalties for
smuggling in illegal wildlife), but let’s talk about it in terms of what the
real teeth is: criminal punishment.49 The attached burden is beyond a
reasonable doubt.
There are some obstacles, however, with regards to criminal
enforcement in the wildlife trade context. If you are an educated
smuggler, where are you going to say you got it from, the legal market
or illegal market? The response will be from the legal market, which
leads to an investigation. How many resources is the U.S. putting into
wildlife investigations? None, really. If you get caught, you are fairly
unlucky, to be honest with you. We are not going to do a murder
investigation; we don’t have a DNA database to turn to. The smuggler
may be asked, “So where did you get it?” The likely reply is, “I got it
from such-and-such hunting ranch in Namibia or on such-and-such
ranch in Texas.” There is a very fine line between the legal and illegal in
this industry, and they purposefully keep information very difficult to
obtain. “Oh, the records must have gotten messed up.” This has been
documented by many investigators in the field.50 Therefore, it is evident
that there is an opportunity to increase the black market by being able to
launder through the legal market.
Oddly enough, the U.S. Fish and Wildlife Service has
acknowledged that these consequences of the duel market exist.51 For
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instance, proponents of sport hunting have asked the U.S. Fish and
Wildlife Service to go one step further and maintain a legal market for
endangered species by dividing the list of endangered species between
animals of that species in captivity and those in the wild.52 They argue
that animals in captivity should not be on the list at all because they are
in the care of the ranchers.53 Therefore, they argue that only the animals
of the endangered species found in the wild should be on the endangered
species list. The U.S. Fish and Wildlife Service rejected their argument,
pointing to the aforementioned reasons.54 But then when we asked the
members of the U.S. Fish and Wildlife Service to justify the fact that it
was creating the same duel market with the permit process—there was
just dead silence. No response at all; no rationale whatsoever.
What is really occurring through this new interpretation of both the
sport-hunting ranch permitting process and the special take rules is a
form of domestication of animals. It is happening to wildlife
everywhere.55 Apparently it is better to keep all the remaining African
antelope on hunting ranches in Texas, and to intensely manage small
wild groups of African lions, than it is to vigorously enforce the
Endangered Species Act. And it is happening everywhere. Wolves and
grizzly bears are being removed from the Endangered Species Act,56 and
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overutilization would likely increase. For example, the taxonomic species would potentially
be subject to increased take and trade in ‘laundered’ wild-caught specimens to feed U.S. or
foreign market demand because protected wild specimens would be generally
indistinguishable from unprotected captive-held specimens.” (footnote omitted)); see also 12Month Findings on Petitions to Delist U.S. Captive Populations of the Scimitar-horned Oryx,
Dama Gazelle, and Addax, 78 Fed. Reg. 33,790, at 33,793 (proposed June 5, 2013) (to be
52
12-Month Findings on Petitions to Delist U.S. Captive Populations of the Scimitarhorned Oryx, Dama Gazelle, and Addax, 78 Fed. Reg. at 33,791.
53
Id. at 33,796.
54
Id. at 33,792.
55
See Evan Ratliff, Taming the Wild, NAT’L GEOGRAPHIC, Mar. 2011, at 35, 43 (“The
exercise of dominion over plants and animals is arguably the most consequential event in
human history. Along with cultivated agriculture, the ability to raise and manage domesticated
fauna—of which wolves were likely the first, but chickens, cattle, and other food species the
most important—altered the human diet, paving the way for settlements and eventually
nation-states to flourish. By putting humans in close contact with animals, domestication also
created vectors for the diseases that shaped society.”).
56
See Removal of the Gray Wolf in Wyoming From the Federal List of Endangered and
Threatened Wildlife and Removal of the Wyoming Wolf Population’s Status as an
Experimental Population, 77 Fed. Reg. 55,530 (Sept. 10, 2012) (to be codified at 50 C.F.R. pt.
17); Revising the Listing of the Gray Wolf (Canis lupus) in the Western Great Lakes, 76 Fed.
Reg. 81,666 (Dec. 28, 2011) (to be codified at 50 C.F.R. pt. 17). The Gray Wolf was
subsequently relisted in both locations. See Reinstatement of Final Rules for the Gray Wolf in
Wyoming and the Western Great Lakes in Compliance With Court Orders, 80 Fed. Reg. 9218
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(Feb. 20, 2015) (to codified at 50 C.F.R. pt. 17); see also Grayson Schaffer, Why Delisting the
Grizzly May Just Be a Good Thing, OUTSIDE (Nov. 26, 2014), http://tinyurl.com/l4wf5ds
(“[I]n early 2015, the USFWS is expected to issue its second proposal to remove the area’s
grizzlies from the list and hand over the animal’s fate to the states of Idaho, Montana, and
Wyoming.”).
57
Wild Plains Bison, U.S. FISH & WILDLIFE SERVICE, http://tinyurl.com/mjl5xh2 (last
visited Mar. 16, 2015) (“Today, there are over 400,000 plains bison, with approximately
20,500 managed in conservation herds in parks, preserves, other public lands, and on private
lands throughout and external to their historical range.”).
58
See Notice of 12-Month Finding, 79 Fed. Reg. 65,628, at 65,628 (Nov. 5, 2014) (“We
conclude that the queen conch is not currently in danger of extinction throughout all or a
significant portion of its range nor is it not likely to become so within the foreseeable
future.”).
59
See National Environmental Policy Act, 42 U.S.C. § 4321–4370h (2012).
60
Natural Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 838 (D.D.C. 1972).
61
See 42 U.S.C. § 4332(C)(iii) (2012).
62
See id. § 4332(C)(ii).
their management is being turned over to states that have no interest in
protecting them. The continued existence of the wild plain bison is being
left to a couple of really small herds on public land and a bunch of
private ranches.57
We learned just last week that this extends to marine species when
the National Marine Fishery Service denied protection of the critically
endangered Queen conch, on the grounds that it should be left to
inadequate regulatory mechanisms established by underfunded
Caribbean governments that essentially want only to harvest them.58 The
point is that the U.S. Fish and Wildlife Service wants to interpret the Act
without ever justifying how takes for sport and money promote the true
conservation ethic of the Endangered Species Act. It is incumbent on all
of us to keep the pressure on them to do so. Someday, it is going to
happen. The theories that the U.S. Fish and Wildlife Service are
proffering are going to fail. These theories will fail on both legal and
scientific grounds. Then maybe we can regroup and start to pick
ourselves off the ground and get going again with the real conservation
ethic that is embodied in the Endangered Species Act.
The National Environmental Policy Act (NEPA) is our so-called
environmental charter; it is the closest thing we have to an
environmental constitutional amendment.59 Under NEPA, agencies must
take a “‘hard look’” at the significant environmental impact from major
federal projects.60 Agencies must investigate and evaluate alternatives to
a proposed project to help reduce impacts from that project.61 Agencies
must explore reasonable ways to mitigate environmental impact from
projects.62 The Supreme Court has declared the goal of NEPA to be
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twofold: to inform the public, so the public can be actively involved in
the decision-making process, and to ensure that the agency’s decisionmaker sees the impacts associated with the agency’s proposal and the
different available courses of action that may alleviate these impacts.63
Now the hard question to ask is: Should NEPA require agencies to
examine and disclose impacts on individual animals? And I am not
talking about the kind of animal rights we have been talking about today.
I do not think NEPA is the substantive tool to get us there. Actually,
NEPA is a procedural tool to get us information. What I am talking
about is whether NEPA can be used and interpreted to advance a right to
ethical consideration. Here is a passage from a recent article about the
role of ethics in wildlife policy:
While many agree that ethics must play a central role in any project involving
the use of animals, it is interesting to note that in many books on human–
animal interactions and carnivore conservation there is often no mention of
ethics. This needs to change.
....
I believe, and I think someday we can convince a court to believe,
that such considerations are required under NEPA to ensure well
informed decision-making when it comes to projects that have the
potential to impact wildlife. This includes the U.S. Fish and Wildlife
Service’s decision to ignore the conservation ethic of the Endangered
Species Act.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
Camilla H. Fox & Marc Bekoff, Integrating Values and Ethics into Wildlife Policy
and Management—Lessons from North America, 1 ANIMALS 126, 129, 131 (2011) (footnotes
omitted), available at http://tinyurl.com/lw5roer.
64
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63
. . . The growing body of literature on animal cognition and emotions
demonstrates undeniably that animals have interests and points of view. Like
us, they avoid pain and suffering and seek pleasure. They form close social
relationships, cooperate with other individuals, and likely miss their friends
when they are apart. Emotions have evolved, serving as “social glue,” and
playing major roles in the formation and maintenance of social relationships
among individuals. Emotions also serve as “social catalysts,” regulating
behaviours that guide the course of social encounters when individuals follow
different courses of action, depending on their situations. If we carefully study
animal behaviour, we can better understand what animals are experiencing and
feeling and how this factors into how we treat them.64
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ALDO LEOPOLD, The Land Ethic, in A SAND COUNTY ALMANAC 217, 217–41 (1966).
Id. at 217.
67
Id.
68
Id.
66
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65
What good would that have? Maybe it would improve decisionmaking on a case-by-case basis. Certainly it could not make it worse. It
is not going to make animals any worse off, because the current
government decision-making process ignores the animals’ viewpoint
altogether. And it may help eliminate some animal suffering as well. But
my real hope is that it will move us to a better social norm on these
issues—from some legally enforced obligation to protect wildlife to a
wildlife ethic.
You may be familiar with Aldo Leopold’s 1949 essay, The Land
Ethic, which was published shortly after his death.65 He begins with the
story of the Roman king Odysseus. If you recall, after returning from
war, Odysseus immediately hung seven slave girls on one rope for their
suspected misbehavior while he was gone66—misbehavior probably
being adultery. Leopold wants to use this story to suggest that human
beings have the capacity to grow ethically. He notes, for instance, that
there was a notion of right and wrong at the time.67 Odysseus’s wife
didn’t misbehave; she respected her husband. But he says in the Roman
world, slaves were chattel and were not extended ethical
considerations.68 Leopold struggled for his whole life to find a way to
extend those ethical considerations to wildlife and he died without a
solution. Maybe it is because of my arrogance as a lawyer, but I like to
think it is because he forgot the law.
As I suggested earlier, humans did not wake up one day and
universally say slavery is immoral. Many had to be forced to see that
slavery was no longer a social norm, through a legal obligation to do so.
But before those important laws on slavery were ever made, there must
have been a reason for a group of individuals to start to challenge the
existing norm.
Earlier I mentioned that the hallmark of a successful law is moving
from a legal obligation to an ethical foundation in society. But before
you even get to legal obligation, something must occur that triggers a
belief among those in authority (or perhaps the populace) that the old
norm is wrong, unethical, or perhaps immoral. And I like to believe that
with respect to many things, including slavery, that the trigger resulted
from the transmission and mental digestion of new, relevant information,
not just rhetoric, but real information. For instance, the realization of the
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impact of slavery led to its abolishment. So maybe an ethical
consideration, whether it is found in NEPA or some other law, can do
the same for wildlife by providing the information needed to
resoundingly begin questioning the old norm of torture and
imprisonment of animals, and move us forward. This may not be as
grandiose as trying to jump straight to an animal right, but it has the real
ability to push the ball forward.
To end on a bit of a lighter note, NEPA is about the only thing we
have in the United States, I believe, that could force government
decision-makers to give ethical consideration to animals in decisionmaking, but there are a number of provisions in the constitutional laws
of countries like Germany,69 Switzerland,70 India,71 and Serbia72 that are
aimed toward a similar type of purpose—trying to present an animal
point of view in decision-making. A lot of the focus has been on trying
to find a substantive right in these statutes. But maybe the real place for
these folks to begin is on procedural rights, where the animals are
actually incorporated into the decision-making process from their own
emotional cognitive standpoints. So I leave you with this sad picture of a
lion; this is the sad, existing norm. This is the norm we have to move
away from to get him back out into the jungle.
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Gesetz zur Änderung des Grundgesetzes [LAW AMENDING BASIC LAW], July 11,
2012, BGBl. I, art. 20a (Ger.) (“Mindful also of its responsibility toward future generations,
the State shall protect within the framework of the constitutional order the natural bases of life
and the animals by legislation and, in accordance with law and justice, by executive and
judicial power.”).
70
Bundesverfassung [BV] [CONSTITUTION] Apr. 18, 1999, art. 80 (Switz.) (as amended
to Mar. 15, 2012) (“(1) The Confederation shall legislate on the protection of animals. (2) It
shall in particular regulate: a. the keeping and care of animals; b. experiments on animals and
procedures carried out on living animals; c. the use of animals; d. the import of animals and
animal products; e. the trade in animals and the transport of animals; f. the slaughter of
animals.”).
71
INDIA CONST. art. 48A, amended by The Constitution (Ninety-Seventh Amendment)
Act, 2011 (“The State shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country.”).
72
Ustav Republike Srbije [CONSTITUTION] Nov. 8, 2006, pt. IV, cl. 9 (Serb.); JESSICA
VAPNEK & MEGAN CHAPMAN, DEV. LAW SERV. FAO LEGAL OFFICE, LEGISLATIVE AND
REGULATORY OPTIONS FOR ANIMAL WELFARE 29 (2010) (“Part 4 of the Serbian Constitution
(2006) also mentions the ‘protection and improvement of flora and fauna’ as an area for
government protection, although the term ‘fauna’ here is generally interpreted as applying
only to wildlife, not animals used in food production.”).
69
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Photo by Michael Rougier/The LIFE Picture Collection/Getty Images73
MARGARET THOMAS: When you stated that there was one wild lion
for every eighty in captivity, what did eighty in captivity mean? Is that in
zoos, or by individuals?
MICHAEL HARRIS: Yes. Obviously, we have lions in zoos. Lions,
however, are also kept by individuals as pets, by drug dealers to guard
their weapons and drugs, and by rich people in their backyards, who
view the practice as a status symbol. Furthermore, there are a lot kept
with good intentions in sanctuaries. It runs the whole gambit. The
private possession of a lion is not outlawed. It will be, presumably, once
American future-actress Melanie Griffith lies in bed beside her pet lion Neil, who lies
under a blanket. Sherman Oaks, California, May 1971.
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73
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74
See National Strategy for Combating Wildlife Trafficking, 2014 DAILY COMP. PRES.
DOC. 1 (Feb. 11, 2014), available at http://tinyurl.com/k8hsb4u.
75
See Leopold, supra note 2, at 2–3.
they are listed as a threatened species in the United States, but even then
you could still obtain a permit to get one.
JOHN THOMAS: That was very informative. You ended with a little
bit of hope with respect to the Endangered Species Act. I want to bring
you to the most recent government-backed ivory policy.74 It, of course,
bans the importation of ivory absolutely, unless it is attached to an
elephant. And there are two ways of importing ivory in this manner.
There is still an exemption in the brand new policy from February 2014,
for zoos. But I also get to bring two elephant heads home a year, under
the policy. So it is a continuation of these observations you made. Again
the policy is subject to the limitations: you have to have a certification
that it helps the population and solves some social ill. But we both know
that those certificates are very easy to obtain. So I just wonder how we
can move on at this point, if we continue to embrace that sort of
glorification of either the presentation in captivity or the great white
hunter sort of notion.
MICHAEL HARRIS: I think that is right. I think part of the
conversation, whether it is in the evaluation of an Endangered Species
Act permit to import these animals in or to keep them in captivity, or if it
is the context of NEPA, has to legitimately include the value that these
activities have to society, not to individuals. I did not go quite that far,
because I do not believe you can legitimately begin to have that
conversation unless you consider the animal’s perspective—only then
does the diminishing value humans are placing on animals become
evident. The reality is—and I am from Colorado—I think we are much
more fond of hunting and capturing animals than you are in Connecticut.
The reality is, when you start throwing these things out there, there
is often a ton of public input into how these practices are no longer a
social norm. If you are going to require agencies to start talking about
the impact on the emotions and feelings of an animal, then you are going
to legitimize the other side to present in the same conversation, whether
or not these practices have any utility left in our society—particularly
because they have this impact on animals. There is no role for sport use
of animals anymore. It is funny, going back for this presentation and
looking at Aldo Leopold’s work, because he said that. He said the
gadgetry was getting ahead of the sportsmanship.75 It is out of our
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See generally Tischler, supra note 1.
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control because we have commercialized it. And like everything else
that we have commercialized, we cannot rein it back in very well.
SHELLEY SADIN: If you are talking about making a fundamental
change to whatever the social norm is, do you think it works? I agree
with you that it does work to appeal to rational, ethical considerations
and to use existing laws. Or do you think you need to appeal more to
emotions? Is it going to be enough to try to get people to think rationally
and act ethically?
MICHAEL HARRIS: No. I think it is for the common person,
emotion. I think if you asked everyone to change his or her mind based
on my presentation, you would fail dramatically. Just like we fail to
listen to Al Gore all the time. The conversation within the context of a
policy decision needs to be one at the emotional level. But it has to
include the animal too, because people will get in touch with that. It is
not going to work to just simply hear the larger philosophical reasons of
why we should do this. This is largely why the people who like to pick
and choose from what Aldo Leopold said, in order to support their
beliefs, have not really heard his message for a long time—because he
spoke at a philosophical level. I agree with you.
SHELLEY SADIN: I am not trying to say that the emotional appeal
has to come in the form of deciding that animals have individual rights.
In fact, that might be off-putting to some folks who really do care. So I
am asking, do you think we need to change the approach to it being
individual rights to move people in the right direction, or do you really
have to go straight to animal rights to make a difference?
MICHAEL HARRIS: I think that is the goal. I agree one hundred
percent with everything Joyce presented about personhood and animal
rights.76 I have been practicing law in the courtroom for nineteen years,
and I still have hope we can move some things forward through NEPA.
And this is something that has not even been tested in a courtroom yet. It
is something we are hoping to do soon, in the right courtroom obviously.
This might be achievable in my lifetime; we might get a court to say,
“You have to take these things into consideration.” The biggest hurdle as
well, and what really causes me the greatest grief, is I think the public
will listen. And I think that they want to engage in this discussion about
how, for example, sonar physically and emotionally affects a whale.
The biggest challenge is that the party responsible for giving some
assurance that the information is legitimate, the government, is the one
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77
See U.S. DEP’T OF THE INTERIOR, OFFICE OF INSPECTOR GENERAL, INVESTIGATIVE
REPORT ON ALLEGATIONS AGAINST JULIE MACDONALD, DEPUTY ASSISTANCE SECRETARY,
FISH, WILDLIFE AND PARKS (2007), available at http://tinyurl.com/ovde4r5; Politics, Science,
Fish, Birds, EARTHJUSTICE, http://tinyurl.com/mzpx8qj (last visited Apr. 1, 2015) (“Julie A.
MacDonald, an aide to Assistant Secretary of the Interior for Fish, Wildlife and Parks Craig
Manson, has attempted to derail a status review on the California delta smelt because it did
not support removing protections for the Sacramento/San Joaquin Delta fish. Removal of
protections would allow the pumping of more water from the delta, a result favored by the
administration and the California Farm Bureau.”).
78
See Envtl. Health Coal. v. Dalton, 110 F.3d 68, No. 96-56230 (9th Cir. 1997); San
Diego Coalition Sues Navy, CPEO (June 25, 1996), http://tinyurl.com/kcmjqjx.
that is trying to undermine that information. That is the problem with
climate change. People want to engage with it, but there is just enough
out there that threatens their ability to feel secure that the information is
scientifically legitimate to make them not know what to do. And I have
always believed, going all the way back to the Federalist Papers, that one
of the roles of government is to lay a foundation for us to have a debate,
to provide information for us. And now they want to keep information
from us. And that is the biggest problem—the biggest hurdle to what I
am proposing. A judge very well may agree with me, but whether the
agency goes back and presents anything that is remotely a fair view of
the issues is another point. But we will have to get to that once we get
some legal mandate that actually requires the agency to take these kinds
of thoughts into consideration.
SPEAKER: I do not necessarily think that the role of government is
purely against the message. I think there is a hard lobby on the other side
that does factor into those decisions made.
MICHAEL HARRIS: Well, I am not going to debate this with you, but
we know what happened in the last ten years. We know that political
appointees were given the opportunity to rewrite all the scientific
documentation on things like the Delta Smelt77 and others. The scientists
presented one scientific point of view and political appointees were
given the liberty to change it all. It was funny, when I first got out of law
school, I worked for a former assistant U.S. Attorney who prosecuted
wildlife crimes, believe it or not. Our first case was against the Navy
over a home porting project in San Diego, California.78 And when we
got the documents and the administrative records, it contained the good,
the bad, and the ugly. I remember Steve Crandall saying, “You got to
love suing the United States of America. They get up in the morning,
they put on their pants and the flag and they give you the truth.” That is
B.S today. Today, I get nothing in the record. They don’t produce
anything. They don’t want to tell us why they are doing anything. Maybe
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it is just nineteen years of being disgruntled, but you have to fight a lot
harder for it. The political appointees, not necessarily the scientists in the
agencies, the ones who are trying to do what they are supposed to do
under the law, are giving them away.
MARTA DANIELS: The other side of that is that we vote for these
politicians—we the people—we are the ones who put them in office. So
why should we be surprised when they do things that you are describing,
that they do as a government, as politics? Really the issue comes back
again to the public, and to what we are able to do as citizens. I just
cannot leave that factor out. I don’t think anything has ever changed in
this country, social-movement wise, without a huge public agreement
about it—not agreement, but at least enough of the population in support
of things, whether it was women’s right to vote, civil rights, the end of
slavery, even smoking in public places. There is a pretty good body of
evidence, social science research, that says if five percent of the people
believe something, they have the influence to make twenty percent more
believe it. And once you get to that twenty percent, then it is possible to
get much further. So we are probably at less than five percent of
understanding what you are telling us. To me, I think of it as a citizen
obligation and citizen education. And that only comes with grassroots
efforts, with working with organizations like yours, to change the
paradigm, to change the thinking.
MICHAEL HARRIS: I don’t know if I agree it is five percent. For
instance, in the west, like Colorado, the numbers in support of wolf
reintroduction are up close to forty-nine percent. It is just that we have
lost the ability to turn that into action, we do not sit around parlors with
the piano anymore. We are out there, doing our own thing, having real
conversations about this topic. And what should we believe? There is so
much misinformation out there. Even those forty-nine percent of people
have a hard time talking about it more than rudimentary stuff. And I
think it would be a good idea.
Thank you very much.
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ROMAN FINAL (Do Not Delete)
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THE WILD AMERICAN DREAM: A DISCUSSION OF THE
ORIGINS AND EVOLUTION OF THE ENDANGERED SPECIES
ACT AND ITS CONNECTIONS TO INTERNATIONAL TRADE
AND HUMAN WELL-BEING
Joe Roman*
In 2006, when the Republicans had control of both houses of
Congress and George W. Bush was president, I was a fellow with the
American Association for the Advancement of Science in Washington,
D.C. The House of Representatives had passed a bill that most
conservationists believed would debilitate the Endangered Species Act
(ESA).1
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537
* Joe Roman is a conservation biologist and researcher at the Gund Institute for
Ecological Economics at the University of Vermont and a Hrdy Visiting Fellow at Harvard
University. His research, focusing on endangered species conservation and marine ecology,
has appeared in numerous journals and publications. See, e.g., JOE ROMAN, LISTED:
DISPATCHES FROM AMERICA’S ENDANGERED SPECIES ACT (2011) (winner of the 2012
Rachel Carson Environment Book Award); JOE ROMAN, WHALE (2006); James M. Pringle,
April M. H. Blakeslee, James E. Byers, & Joe Roman, Asymmetric Dispersal Allows an
Upstream Region to Control Population Structure Throughout a Species’ Range, 108 PROC.
NAT’L ACAD. SCI. U.S. 15,288 (2011), available at http://tinyurl.com/q7twegq; Joe Roman &
John A. Darling, Paradox Lost: Genetic Diversity and the Success of Aquatic Invasions, 22
TRENDS ECOLOGY & EVOLUTION 454 (2007), available at http://tinyurl.com/o8e4ksk; Joe
Roman, Can the Plover Save New York?, SLATE (Aug. 23, 2013, 12:03 PM),
http://tinyurl.com/ngcjgt3; Joe Roman & Stephen R. Palumbi, Whales Before Whaling in the
North Atlantic, 301 SCI. 508 (2003), available at http://tinyurl.com/p9afz54; Joe Roman, DAY
TRIPS; A Place Where All the Snowflakes Are Still Different, N.Y. TIMES (Jan. 2, 2004),
http://tinyurl.com/nqeg8s3; Joe Roman, Eat the Invaders!, AUDUBON, Sept.–Oct. 2004,
available at http://tinyurl.com/nnbgh5n.
Roman is the recipient of a Fulbright Fellowship in Brazil and a McCurdy Fellowship
at the Duke University Marine Lab to examine the ecological role of whales in the oceans. He
received his Ph.D. from Harvard University in 2003 in organismic and evolutionary biology
and his master’s degree in wildlife ecology and conservation from the University of Florida.
Born and raised in New York, Roman considers King Kong to be an early conservation
influence.
Roman’s presentation was given on November 8, 2014 at Quinnipiac University
School of Law and can be viewed at Quinnipiac Law Review—2014 Symposium—Joe Roman,
YOUTUBE (Nov. 21, 2014), http://tinyurl.com/ko5hl6h.
1
Threatened and Endangered Species Recovery Act of 2005, H.R. 3824, 109th Cong.
(2005); see also Michael J. Bean, The Endangered Species Act Under Threat, 56 BIOSCIENCE
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[Vol. 33:537
Richard Pombo, a congressman from California, had attacked the
ESA, arguing that it didn’t represent American values, that it put too
much burden on property owners.2 He lost that battle, regrouped, and
took a new tack: he acknowledged that Americans cared about
endangered species, but claimed that the ESA didn’t work in protecting
species and that it came at too high a cost.3
I wanted to see if these claims were true. There were, I saw, some
perverse incentives in the ESA. One concerned the red-cockaded
woodpecker, once found throughout the Southeast.4 The red-cockaded
woodpecker depends on forests of longleaf pine, which have largely
disappeared. Only three percent of the historical longleaf pine forest
remains in the United States.5 During the real estate boom of the early
2000s, Boiling Spring Lakes, North Carolina, was growing. But there
were a few endangered red-cockaded woodpeckers in the city limits, and
U.S. Fish and Wildlife Services put the town on notice that they were
going to have to do a Habitat Conservation Plan to halt the decline of the
birds.6 Some property owners responded with chain saws, cutting down
habitat before the Plan went into effect.7 The mayor told the Associated
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98 (2006), available at http://tinyurl.com/qaxufqb (“A bedrock principle of natural resources
law in the United States has long been that wildlife is not the property of those on whose land,
or in whose waters, it occurs. Rather, the state and federal governments exercise a special
responsibility over wildlife wherever it occurs, on behalf of all citizens. This responsibility—
likened to that of a trustee—enables government to limit, or prohibit altogether, actions
harmful to wildlife. Amendments to the Endangered Species Act recently approved by the
House of Representatives fundamentally alter this principle, effectively putting ownership of
wildlife in private hands and limiting the ability of the government to protect endangered
wildlife unless it pays private interests when it does so.”).
2
See NAT’L CTR. FOR PUB. POLICY RESEARCH, SHATTERED DREAMS: ONE HUNDRED
STORIES OF GOVERNMENT ABUSE 7 (4th ed. 2003) (introduction by Richard Pombo),
available at http://tinyurl.com/nvaw83b (“For over nine years, I have done all I can to expose
the problems associated with the Endangered Species Act (ESA). I’ve also worked diligently
to educate people about how it has become the preeminent law of the land as well as the
preeminent burden to property owners.”).
3
See Matt Weiser, Will the Real Mr. Pombo Please Stand Up?, HIGH COUNTRY NEWS
(July 25, 2005), http://tinyurl.com/qa9oeap; Jim Mimiaga, Environmentalists Decry Proposed
ESA Changes, FOUR CORNERS FREE PRESS (Nov. 2005), http://tinyurl.com/n98trrr.
4
Red-cockaded Woodpecker, FLA. FISH & WILDLIFE CONSERVATION COMMISSION,
http://tinyurl.com/phajunq (last visited Mar. 25, 2015).
5
Id.
6
JOE ROMAN, LISTED: DISPATCHES FROM AMERICA’S ENDANGERED SPECIES ACT 1
(2011) [hereinafter ROMAN, LISTED]; Dave Batts, The Red-Cockaded Woodpeckers of Boiling
Spring Lakes, NC, SOUTHPORT TIMES (2007), http://tinyurl.com/nhvnvwp.
7
ROMAN, LISTED, supra note 6, at 1; Jonathan H. Adler, Money or Nothing: The
Adverse Environmental Consequences of Uncompensated Land Use Controls, 49 B.C. L. REV.
301, 322 (2008) (“In Boiling Springs Lakes, North Carolina, landowners began clearing
timber from their property while the FWS drew up maps of RCW nests, fearing more land
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Press that chainsaws had sold out throughout the county.8 Land that did
not have woodpeckers became more valuable.9 This was not the
intention of the ESA—having people destroy a habitat to avoid the
consequences of protected species. As I was working on my fellowship
in D.C., several questions arose: Does the ESA work and is it effective?
What can we do to mitigate these perverse incentives?
First, let’s take a step back and look at the history of the ESA. The
first official list of endangered species was introduced by Ralph
Yarborough in 1964.10 Yarborough was a liberal Southern Democrat—
the only one to vote in favor of the Civil Rights Act11—so he was a true
maverick at that time and cared about environmental issues. He
introduced the first list of fifty-nine endangered species and thirty-nine
extinct species into the Congressional Record.12 The Department of the
Interior got a bunch of biologists in the room and asked: “What do you
think is rare? What do we know is endangered?” This was before we
really had careful consideration, or true measures of how you consider
this, but it was really important that they got this out.
The California condor and the whooping crane were on that list.13
These two species were both strong motivating factors for protecting
species, especially the whooping crane, whose population was down to
about twenty-five by the 1960s.14 In addition, the black-footed ferret15
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would be placed off limits to logging or development. As the Mayor Joan Kinney explained,
‘People are just afraid a bird might fly in and make a nest and their property is worth
nothing . . . . It is causing a tremendous amount of clear-cutting.’ In just eight months, the city
issued 368 logging permits, even though few landowners sought building permits.” (omission
in original) (footnotes omitted)).
8
ROMAN, LISTED, supra note 6, at 1 (“Newspapers reported that the run on chainsaws
had emptied store shelves around the county, with landowners reasoning that if the
woodpecker’s habitat was destroyed before restrictions took hold, they wouldn’t have to
worry about building permits. ‘It’s ruined the beauty of our city,’ Mayor Joan Kinney told the
Associated Press.”); Rare Woodpecker Sends a Town Running for Its Chain Saws, N.Y. TIMES
(Sept. 24, 2006), http://tinyurl.com/p6oa9sg. Clearing lots like this is referred to as
moonscaping. See VA. DEP’T OF FORESTRY, FOREST HEALTH REVIEW 8 (2012) (providing an
image of a heavily forested subdivision that was turned “into a virtual moonscape” by
clearcutting), available at http://tinyurl.com/qxknujx.
9
See David N. Bass, Landowners Face Property-Species Conflict, CAROLINA J.,
Mar. 2007, at 1, 2, available at http://tinyurl.com/ofzurco.
10
ROMAN, LISTED, supra note 6, at 23.
11
Id.
12
88 CONG. REC. 16,098, at 16,100 (1964).
13
Id.
14
MARK V. BARROW, JR., NATURE’S GHOSTS: CONFRONTING EXTINCTION FROM THE
AGE OF JEFFERSON TO THE AGE OF ECOLOGY 301 (2009).
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and the American alligator16 were included on the list. I spoke to a
herpetologist who was in Florida in the 1960s and he said that you could
drive around Florida without ever seeing an alligator because they were
so heavily harvested. Think about Florida now.
To show the true danger that these species were in, all the known
extinct species at that time were listed, framed in terms of the last 200
years, along with the endangered species. The list included the Labrador
duck, the sea mink, and the passenger pigeon.17 Martha, the last of the
passenger pigeons, died a hundred years ago.18
One of the first species on the list that we know went extinct in
North America was Steller’s sea cow, which was found during Captain
Vitus Bering’s voyage in 1741.19 He was sent by Peter the Great to look
for a land bridge to North America from Russia.20 He was probably ten
thousand years too late to find that land bridge, but he and his men
eventually reached Alaska and North America. At the last minute, a
young German naturalist named Georg Steller joined the voyage.21 He
described several new species to science, including a flightless
cormorant, a sea ape that has never been seen again, and several more
familiar species, such as Steller’s sea lion.22 One of the most fantastical
species he described was a huge sea cow that was found in large pods on
the waterways along the Aleutian Islands.23
15
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88 CONG. REC. 16,099. The Black-footed ferret was believed to be extinct at the time,
but it was rediscovered ten years after the list was created. TIM W. CLARK, AVERTING
EXTINCTION: RECONSTRUCTING ENDANGERED SPECIES RECOVERY 23 (1997).
16
88 CONG. REC. 16,100.
17
Id. at 16,099.
18
See Rick Kogan, From Billions to Zero: Story of Pigeon Extinction, CHI. TRIB.
(Jan. 17, 2014, 12:57 PM), http://tinyurl.com/q8mozb9.
19
See 88 CONG. REC. 16,099; John Copeland Nagle, The Spiritual Values of Wilderness,
35 ENVTL. L. 955, 963 & n.45 (2005).
20
See ORCUTT FROST, BERING: THE RUSSIAN DISCOVERY OF AMERICA 34 (2003) (“As
empress, Catherine pledged continuation of Peter’s projects. . . . Bering was ‘to build one or
two ships with decks’ in Kamchatka or some other place. He was to sail ‘along land which lies
to the north.’ He was, finally, ‘to search for the place where that land might be joined to
America, and from there proceed to some settlement belonging to a European power.’”).
21
See id. at 109; GEORG WILHELM STELLER, JOURNAL OF A VOYAGE WITH BERING,
1741–1742, at 49 (1988).
22
STELLER, supra note 21, at 202 n.25, 79–83.
23
Id. at 158–64; see also Chris Carrel & Lance Morgan, The Mystery of Steller’s Curse,
SEATTLE TIMES (June 4, 2000, 12:00 AM), http://tinyurl.com/nt5b7v4 (“During his ninemonth ordeal on Bering Island, Steller frequently observed the sea cows grazing in small
herds on the abundant offshore kelp beds and was able to dissect an adult female caught by
the crew. Though his drawings and specimens were lost, Steller’s written account in De
Bestiis Marinis remains as the only scientific account of this magnificent marine creature (one
of the largest mammalian herbivores ever) that once inhabited the North Pacific.”).
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541
24
05/08/2015 09:54:41
See FROST, supra note 20, at 274.
See JOHN E. REYNOLDS III & DANIEL K. ODELL, MANATEES AND DUGONGS 6 (1991);
Sherry Marie Coté, Note, The Manatee: Facing Imminent Extinction, 9 FLA. J. INT’L L. 189,
192 (1994).
26
See REYNOLDS & ODELL, supra note 25, at 127.
27
See id. at 124.
28
Id.
29
The Congressional Record lists Steller’s sea cow as being extinct as of 1854. 88
CONG. REC. 16,099 (1964); cf. REYNOLDS & ODELL, supra note 25, at 130 (“Leonard
Stejneger argued in 1887 . . . that Steller’s sea cow became extinct by 1768. Stejneger’s
conclusion is brief and direct: ‘It was simply due to man’s greed, and he accomplished it
within the short time of twenty-seven years.’”).
25
Bering died on the voyage back to Russia, but Steller made it back
to Kamchatka and later died of a fever.24 His descriptions were
accompanied by drawings by Bering’s second-in-command, Sven
Waxell, the only known images of the Steller’s sea cow taken from
living animals. The closest relatives to the sea cow include the manatees
and dugongs.25 The manatee is about twelve feet long. In contrast,
Steller’s sea cow was huge, weighing about as much as an adult male
elephant.26 It was as wide around as it was long and had so much blubber
that it couldn’t dive beneath the surface. This buoyancy was not an asset
when you had a bunch of hungry sailors rushing into the region.
Why the rush to the Aleutian Islands? For sea otters. Steller and
Bering both reported that there were a lot of otters in what came to be
known as the Bering Sea.27 Sea otter furs were almost worth their weight
in gold at that time, as they were highly valued in China. Hundreds,
thousands, of Russians soon flooded the region, searching for otters and
using the sea cows for food.28 Being so buoyant, sea cows were easily
harpooned. They also had a touching trait: when the sailors injured one,
others came and tried to rescue it. Other members of the pod appeared to
try to remove the harpoon—which left the entire group vulnerable to the
hungry sailors. The species went extinct within 27 years of its
discovery.29
Extinction, it seems, is in our blood. We have been causing
extinctions for tens of thousands, maybe hundreds of thousands, of
years. We can follow the trail of people leaving Africa by observing how
populations and species disappeared.
Giant clams, for example, are a nice, easy resource. You can see
when people expanded up the coast of Africa and into Asia by watching
the giant clams disappear from the shoreline. They were big. They
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couldn’t swim away. They were the first thing people took.30 Bringing us
back to elephants, or at least to one of their nearest, cold-adapted
relatives, the mammoth is one of the earliest known human-caused
extinctions, caused by a combination of climate change and the
expansion of humans into northern Asia.31
Maps of Projected Climatic Suitability for the Woolly
Mammoths in the Late Pleistocene and Holocene32
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30
ROMAN, LISTED, supra note 6, at 29 (“People followed the coast around the Horn of
Africa to the mouth of the Red Sea about a hundred thousand years ago. We settled around the
Mediterranean, littering the coast with middens. Some species recovered from overharvesting;
many did not. Tridacna costata, once the most common giant clam in the Red Sea, all but
disappeared. Its formidable foot-long shell, with a zigzag opening resembling a leg trap, did
nothing to save it. It didn’t help that the giant clam lived along the easy-to-reach reef tops. It is
now so rare that researchers didn’t describe the species until 2008.”); Claudio Richter et al.,
Collapse of a New Living Species of Giant Clam in the Red Sea, 18 CURRENT BIOLOGY 1349
(2008).
31
32
David Nogués-Bravo et al., Climate Change, Humans, and the Extinction of the
Woolly Mammoth, 6 PLOS BIOLOGY 685, 687 fig. 3 (2008), available at
http://tinyurl.com/pkoljp8.
The red in the figure above represents grassland, prime habitat for a
mammoth. There weren’t a lot of grasslands 126,000 years ago, but
mammoths managed to get through that time, perhaps because they
didn’t have many predators. Forty-two thousand years ago, it was cold
and there was a lot of habitat, but that black line, indicating the northern
edge of the human’s range, was starting to overlap some of their range.
Twenty-one thousand years ago, humans had advanced over a lot of the
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33
05/08/2015 09:54:41
JOE ROMAN, WHALE 46 (2006) [hereinafter ROMAN, WHALE].
See ANA RECARTE VICENTE-ARCHE, AM. ENVIRONMENTALISM RESEARCH LINE
INST. FOR N. AM. STUDIES, UNIV. OF ALCALA, MADRID, SPAIN, HISTORICAL WHALING IN
NEW ENGLAND 2 (2002), available at http://tinyurl.com/qdyyxlo.
35
Id. at 17.
36
ROMAN, WHALE, supra note 33, at 48.
37
Id. at 119.
38
Id. at 121.
39
See ERIC JAY DOLIN, THE HISTORY OF WHALING IN AMERICA 206 (2007).
34
habitat, and by 6000 years ago, the mammoth went extinct. Not enough
habitat and too many people. The mammoth went extinct as a result of
changing climate and subsistence hunting that took place 6000 years
ago.
I work primarily in marine conservation biology. The first whale
species that was hunted commercially was the North Atlantic Right
Whale,33 hunted by the Basques for hundreds of years.34 The first
records of whales being sold commercially date back to 1000 A.D.35
Whale tongue was popular in Europe because whales were considered to
be fish by the Roman Catholic Church, and you could eat tongue for
Lent.36 They were also hunted for their baleen plates, used for fishing
rods, umbrellas, and bed springs. Essentially an early form of plastic or
spring steel.
Right whales were also used for their oil, which was considered
more dependable than oils derived from plants, subject to droughts and
floods. After right whales were depleted, whalers turned to sperm whales
for their clean burning oil and spermaceti, used for candles.37 If the
number of whales declined in a particular area, whalers moved on: serial
depletion. We do that with a lot of wildlife—humans hit an area hard
and when populations decline, we move to another area, and once all the
populations are depleted, we turn to another species. We see that time
and time again.
The other reason the right whales were hunted was for corsets,
which were made from baleen plate as well. Corsets were a fashion trend
started by Queen Elizabeth I in England, and when Catherine de
Médicis, Queen of France, heard about it, she didn’t want to be
outdone.38 Catherine declared the ideal waist size was thirteen inches,
about the size of a C.D. It was bad for women—it could cause floating
ribs, affect the lungs, and even alter organs. But of course, it was much
worse for the whales. This was never intended to be sustainable. More
than 4,000,000 pounds of baleen landed in U.S. ports a year,39 which
means that about 5000 whales were being killed each year. Again, the
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40
ROMAN, WHALE, supra note 33, at 95 (“Around 1825 whalers began to carve and
engrave images on the discarded bones and teeth of their quarry—a practice they called
scrimshaw.”).
41
See Legislative Victories - 1960s, NAT’L WILDLIFE FED’N, http://tinyurl.com/onvhbft
42
43
Id.
44
Id. at 50 (“Smelling blood, the Pentagon and Commerce Departments pressured Buff
Bohlen, the second in command at the Department of the Interior, to withdraw the proposal.
intent was never to have a sustainable harvest—that was not the idea.
You didn’t want your competitor to know where you were finding
whales, but you would go in there and hit them hard. The baleen was
incredibly valuable. Baleen from a single whale was enough to pay for
an entire voyage going from New Bedford all the way around to South
America up to the North Pacific. In contrast, the teeth of sperm whales
were valueless. Typically, at the beginning of the hunt, they were given
away to natives as some trade, or as trinkets.
The real risk in whale fishery wasn’t necessarily the sperm bull
whale—which could attack men and on rare occasion did kill someone–
it was boredom. You could spend two or three years on a voyage looking
for whales and not find anything. You have a couple of dozen men in a
small place and they needed something to do. In the early 1800s,
scrimshaw arrived for sailors, giving them something to do.40 It is really,
I would argue, the first truly American art form. Interestingly, I don’t
know of any illegal trade where someone is hunting live whales trying to
get scrimshaw bagged. It is still valuable, but as far as I know, it only
comes from whales that were harvested over a hundred years ago. So
let’s bring it forward. Why are whales important, besides the fact that I
like them a lot?
In the late 1960s some initial conservation acts were passed,41
though they were not like the conservation acts that we have today. They
were mostly intended to protect species in wildlife preserves and wildlife
refuges, but only when practical. By 1970, however, the Department of
the Interior wanted to list eight great whales that were approaching
extinction, including the sperm whale.42 This would basically start
controlling import because sperm oil was still used as lubricant on
submarines and jets.43 So the Defense Department said, “No,” because
there was a debate about what “endangerment” meant, which led to a
conflict between the Department of the Interior and the Defense
Department. The Department of Commerce sided with the Defense
Department,44 so it didn’t go anywhere.
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I spoke to Lee Talbot, who was in the Nixon White House at that
time, and he said he went to DuPont and got an affidavit that said they
could make artificial sperm whale oil.45 Talbot took that affidavit to the
Pentagon and he said that, within a couple of weeks, the Defense
Department withdrew its objections.46 A couple of months later, in
October 1972, Congress passed the Marine Mammal Protection Act.47
Talbot told me that he intentionally chose marine mammals as the
first species to get protection. He cared about all species, but he knew
that whales and seals would resonate with the public. People cared about
whales: they were endangered, they were big, they were interesting, and
people were starting to view whales and dolphins as intelligent, as gentle
giants. Talbot thought a law focused on marine mammals would help
pass the ESA the following year.
John Dingell, a Democrat from Michigan, introduced the
Endangered Species Act during the first session of the ninety-third
Congress.48 The Act passed with flying colors in the House: 390–12.49
Mark Hatfield, Oregon Republican, introduced it into the Senate, where
it passed 92–0.50 There was deep bipartisan support in both chambers,
but now they had to bring the two drafts together.
Lee Talbot and Frank Potter wrote a second draft, which was much
stronger than Buff Bohlen’s original version.51 In the final draft, the
word “practicable” was removed from the Act. They replaced the phrase
“the secretary may” with “the secretary will.” In the preamble,
protection was extended to include endangered species and the
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But it was a holiday weekend, and Bohlen was a passionate environmentalist. ‘I somehow
couldn’t get around to it,’ he told journalists Charles Mann and Mark Plummer. The whales
stayed on the list.” (footnote omitted)).
45
Id. at 51.
46
47
Marine Mammal Protection Act, 16 U.S.C. §§ 1361–1423h (2012).
48
CONG. RESEARCH SERV., 97TH CONG., A LEGISLATIVE HISTORY OF THE
ENDANGERED SPECIES ACT OF 1973, AS AMENDED IN 1976, 1977, 1978, 1979, AND 1980, at
45–71 (1982) [hereinafter ESA LEGISLATIVE HISTORY].
49
Id. at 205.
50
Id. at 409.
51
ROMAN, LISTED, supra note 6, at 51–52 (“Talbot, as senior scientist in the new
Council on Environmental Quality, had been working with Bohlen on the legislation that
would become the Endangered Species Act. He and a colleague on Capitol Hill, Frank M.
Potter, Jr., were determined to plug any holes in the early draft before it was signed by Nixon,
the struggle over whales having shown both men that too much flexibility was a bad idea.
They eliminated the word practicable from the legislation, which they believed provided too
much wiggle room, and revised the preamble to emphasize ecosystems as well as the species
themselves. Neither of them advertised these changes—changes that would alter the course of
the Act—and no one in Congress or the Nixon administration appeared to notice.”).
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ecosystems they depended on.52 (This change would become very
important in the decades that followed.)
While the final version was being hammered out, there was a big
bust at JFK airport, exposing part of an illegal trade in rare spotted cat
pelts.53 In the 1960s and early 1970s, spotted fur coats were very
fashionable (some people blame Jacqueline Kennedy for introducing that
fashion).54 You need approximately a dozen cats for a single coat, which
led to the killing of many wild cats, including leopards, cheetahs, and
jaguars, to satisfy the fashion demand. The crime ring busted at JFK was
accused of smuggling in a hundred thousand illegal pelts from Brazil,
Africa, and other places.55
It was perfect timing for the nascent wildlife legislation. Nathaniel
Reed announced the bust at the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES)56 meeting in
Washington, D.C.57 Soon after the meeting, the United States was the
first country to ratify CITES, as the ESA was being worked out in
Congress. Because CITES mandates that each signatory nation has a
management plan for its wildlife,58 the legislators drafting CITES and
the ESA worked together to bring these laws forward.
President Nixon signed the Endangered Species Act at the end of
1973 to great fanfare.59 Among the congressmen that signed the law
were Jesse Helms, Howard Baker, and Robert Dole—generally
conservative senators.60 Some have argued that they didn’t know what
was coming, that they were thinking about large animals, such as
05/08/2015 09:54:41
See Endangered Species Act, 16 U.S.C. § 1531(b) (2012).
Federal Agents Skin Fur Smugglers, AUDUBON, May 1973, at 97; see also U.S. DEP’T
OF THE INTERIOR, CONSERVATION YEARBOOK SERIES NO. 9, IN TOUCH WITH PEOPLE 21
(1973), available at http://tinyurl.com/njwgab7; ROMAN, LISTED, supra note 6, at 52.
54
See Mark Glover, Fighting the Fur Trade, RESURGENCE & ECOLOGIST (Mar./Apr.
2012), http://tinyurl.com/o2zqw88.
55
Federal Agents Skin Fur Smugglers, supra note 53, at 97–98.
56
Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243.
57
ROMAN, LISTED, supra note 6, at 52 (“At the meeting, an announcement by Assistant
Secretary of the Interior Nathaniel Reed that federal agents had broken an international ring
charged with smuggling more than a hundred thousand spotted cat pelts into New York helped
get the international agreement passed, establishing a system of permits and prohibitions on
the trade of species threatened with extinction.”).
58
See A. ROSSERT & M. HAYWOOD, IUCN SPECIES SURVIVAL COMM’N, GUIDANCE
FOR
CITES
SCIENTIFIC
AUTHORITIES
24,
62–63
(2002),
available
at
http://tinyurl.com/ox2l5py.
59
ESA LEGISLATIVE HISTORY, supra note 48, at 486–87.
60
Id. at 410.
53
52
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elephants and whales when they supported the law, not the smaller
species that were also protected by the ESA.
In the 1980s, Roderick Nash published a figure showing the
progression of expanding rights, from English barons under the Magna
Carta, through the Emancipation Proclamation, the Nineteenth
Amendment, the Civil Rights Act, and ending with the Endangered
Species Act of 1973, which gave nature in all its forms a right to exist.61
It is far more complicated than that, of course. What are the rights of
nature under the ESA? That would be a subject for a longer
conversation. But the law itself was clear: no new extinctions were to
occur in the U.S. and protections were also to be put into place for
foreign species.
The first big flare up after the passage of the ESA concerned the
discovery by ichthyologist David Etnier, an expert on freshwater darters,
who was working on the Little Tennessee River.62 While snorkeling with
a graduate student in the 1970s, he found a small darter, a type of perch,
that he didn’t recognize.63 It was upriver of the Tellico Dam,64 which at
that time was eighty percent complete, and he soon understood what he
had found. It was a species that hadn’t been described before, and was
likely to be endangered by the completion of the dam, because it
depends on moving waters to breed. This new darter, which he called a
snail darter because of its diet, would go extinct if the dam was
completed. The Tellico was the last of sixty or so dams to be constructed
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61
RODERICK FRAZIER NASH, THE RIGHTS OF NATURE: A HISTORY OF
ENVIRONMENTAL ETHICS 7 (1989).
62
ROMAN, LISTED, supra note 6, at 7 (“David Etnier, an ichthyologist at the University
of Tennessee, was expecting to be called as an expert witness. He thought it might help his
testimony to go down to the river before the trial. A friend had told him about an area where
they could set out decoys and duck hunt, but it had been so foggy they could barely find a
place to put in. ‘We saw one grebe,’ he told me. ‘But the river was beautiful, and the
landowner was really pleasant.’ Since the landowner had told them to come back anytime, in
August 1973, Etnier and a graduate student returned with face masks and snorkels, heading
for the end of the river, the warmest place, where the probability of finding unusual native
species was highest.”).
63
Id. at 8.
64
See id. at 6 (“To bring work and electricity to the area, Congress had created a public
corporation, the Tennessee Valley Authority, which quickly drafted a list of 60 potential dam
sites in the valley. Each of the TVA’s impoundments would be multipurpose: to generate
electricity, increase navigation, and control floods—goals that previously had been seen as
conflicting. It was the first public-works project designed to control and develop the water of
an entire river system. . . . Construction at the site on the bottom of the list, a relatively small
one on the Little Tennessee River, didn’t begin until 1967. The Authority promoted the 129foot Tellico Dam as the source of cheap electricity, but in truth no direct power would be
generated.”).
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by the Tennessee Valley Authority (TVA), and here was a three-inch
obstacle, swimming in the waters about the dam.65
We are back to the question of standing, which came up earlier.66
The ESA has a citizen’s suit provision that gives people standing to be a
watchdog to represent endangered species like the snail darter.67 A group
of citizens, based mostly in Tennessee, were arguing for stopping the
dam and protecting the species because otherwise the snail darter would
go extinct. These citizens subsequently brought a case against the
TVA.68 That case went up to the Sixth Circuit, which put an injunction
on the dam69 because it found that the ESA clearly prohibits the
extinction of animals.70 The decision was then appealed to the U.S.
Supreme Court.71
The Supreme Court agreed and put an injunction on the dam.72 This
really upset some Tennessee politicians, especially Senator Howard
Baker and the TVA. They insisted on starting an Endangered Species
Committee, later called the “God Squad,” to look at the economics to see
if they could waive the law if it conflicted with something essential, like
defense or a really important economic project.73 The committee, which
was made up of cabinet members, looked at it and even though it was
05/08/2015 09:54:41
65
See id. (“The [Tennessee Valley] Authority had the power of eminent domain and at
first met little organized resistance. By 1948, it had built three dozen dams on the prime river
sites. But the money kept coming in from Congress, and the Authority continued to work its
way down the list, damming so many rivers and tributaries that Tennessee soon had more
shoreline than all the Great Lakes combined.”).
66
See Joyce Tischler, Changing the Dialogue About Elephants, 33 QUINNIPIAC L. REV.
485, 509–11 (2015).
67
16 U.S.C. § 1540(g) (2012).
68
Hill v. Tenn. Valley Auth., 419 F. Supp. 753 (E.D. Tenn. 1976), rev’d, 549 F.2d 1064
(6th Cir. 1977), aff’d, 437 U.S. 153 (1978).
69
Hill v. Tenn. Valley Auth., 549 F.2d 1064, 1075 (6th Cir. 1977).
70
Id. at 1071 (“Conscientious enforcement of the Act requires that it be taken to its
logical extreme.”).
71
Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978).
72
Id. at 195.
73
Zygmunt J.B. Plater, Environmental Law in the Political Ecosystem—Coping With
The Reality of Politics, 19 PACE ENVTL. L. REV. 423, 429 n.12 (2002) (“The easiest way to
establish the actual merits of the Tellico Project is to review the unanimous decision of the
unique Cabinet-level review forum created especially to analyze the competing merits of the
Tellico Dam after our Supreme Court victory. At that point, in December 1978 when the
project was ninety-five percent complete, an intensive staff economic analysis, basically
ignoring all the environmental, historical, and cultural values that weighed against the dam,
led the Cabinet members and other appointees on the first Endangered Species Committee or
‘God Squad’ as it was called, to decide unanimously that TVA’s project had never made
sense.”); ROMAN, LISTED, supra note 6, at 66.
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549
eighty or ninety percent done, they closed the project—it had so little
value because they already had fifty-nine dams in the area.74
Tennessee politicians did not like that, so first they put through a
late-night rider on a must-pass bill in the House of Representatives.75 A
later attempt to remove the rider from the bill failed.76 Two young
freshmen politicians were part of that vote: Newt Gingrich, who voted
for the fish, and Al Gore, who voted for the dam. 77 I tried to get Al Gore
on record about this, not to bust him, but to see how he reflected on the
vote. Aldo Leopold was mentioned earlier.78 The best part of Leopold’s
book is when he talks about killing a wolf and later regretting it.79
The Senate then proposed similar legislation, which initially failed,
but was later passed.80 President Carter promised to veto any legislation
overriding the ESA, but according to Zygmunt Plater, the lawyer who
had argued on behalf of the darter, Baker said that he would not support
the Panama Canal Treaty unless Carter signed off on it, and that treaty
was really important to Carter.81 President Carter signed the bill into
law.82 The dam was completed in 1979, and the snail darter went extinct
in the Tennessee Valley River.83 The good news is that the TVA had
moved some of the darters to nearby rivers, and they started managing
the waterways better, improving water quality for native fish.84 The
74
Id. at 68 (“In a near-empty chamber on June 18, 1979, Duncan added a rider to a $10.8
billion energy and water appropriations bill, without reading it aloud. No one objected. In less
than a minute, the Endangered Species Act was amended.”); ESA LEGISLATIVE HISTORY,
supra note 48, at 1236.
76
ESA LEGISLATIVE HISTORY, supra note 48, at 1236.
77
Id. at 1282–84.
78
See Michael R. Harris, The Role of Law, Society, and Ethics Within Wildlife Importing
Countries, 33 QUINNIPIAC L. REV. 515, 515, 522, 530, 533–34 (2015).
79
ALDO LEOPOLD, Thinking Like a Mountain, in A SAND COUNTY ALMANAC 129, 130
(1966) (“In those days we had never heard of passing up a chance to kill a wolf. In a second
we were pumping lead into the pack, but with more excitement than accuracy: how to aim a
steep downhill shot is always confusing. When our rifles were empty, the old wolf was down,
and a pup was dragging a leg into impassable slide-rocks. We reached the old wolf in time to
watch a fierce green fire dying in her eyes. I realized then, and have known ever since, that
there was something new to me in those eyes—something known only to her and to the
mountain. I was young then, and full of trigger-itch; I thought that because fewer wolves
meant more deer, that no wolves would mean hunters’ paradise. But after seeing the green fire
die, I sensed that neither the wolf nor the mountain agreed with such a view.”).
80
ESA LEGISLATIVE HISTORY, supra note 48, at 1300.
81
Id. at 1301–02; see ROMAN, LISTED, supra note 6, at 69–70.
82
Energy and Water Development Appropriation Act, Pub. L. No. 96-69, 93 Stat. 437
(1979).
83
84
See id.
75
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transplanted darters survived, and while they are still threatened, they are
no longer endangered.85
Much of the money that the TVA would make on the dam was
through its power of eminent domain.86 The TVA bought cheap land
from the farmers, several of whom resisted the purchase, and then sold
the new shoreline property as lakeside development. Plater believes that
if the opponents of the dam had focused on this message, of government
overreach and private property rights, they might have stopped the
Tellico. Once the message did get out, the TVA never really recovered.
They haven’t built another dam, and they even started taking some
down. This fight was about the snail darter, but it was also about
traditional farmland and a free-flowing river. The ESA has become one
of the strongest habitat laws that we have in the United States.
Now if you think it is hard to argue for a snail darter—the Secretary
of the Interior said at the time that it is the only fish story he knew of
where the fish got smaller every time people told the story—try arguing
for a bunch of endangered mussels. This is an excerpt from Listed, about
Jim Williams, who was instrumental in listing the fat threeridge and
purple bankclimber mussels:87
Early on, Williams and his colleagues knew there was going to be trouble
listing mussels. They met at a bar to discuss priorities.
“We had to establish some rules. Is it bigger than a breadbox? No. Would
you feel bad if you ran over it? Not really. Is it red, white, and blue? No. Sigh.
What do you do with an animal that only has one foot and no head?”
88
They weren’t manatees or bald eagles, they were living rocks.
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85
Id. at 71; Snail Darter Is Taken Off Endangered List, N.Y. TIMES (Feb. 23, 1983),
http://tinyurl.com/o2vvtan.
86
Zygmunt Plater, Classic Lessons from a Little Fish in a Pork Barrel—Featuring the
Notorious Story of the Endangered Snail Darter and the TVA’s Last Dam, 32 UTAH ENVTL.
L. REV. 211, 223–24 (2012) (“Most Americans who heard about the Tellico Dam saga over
two decades never realized that a major part of the project benefits TVA claimed to justify the
dam was based on the involuntary eminent domain taking of 60 square miles of private
lands—more than 300 family farms and homes—with most of the land condemned not for the
dam’s reservoir but for development and resale by a private Fortune 500 company, the Boeing
Corporation from Seattle.” (footnote omitted)).
87
See Determination of Endangered Status for Five Freshwater Mussels and Threatened
Status for Two Freshwater Mussels from the Eastern Gulf Slope Drainages of Alabama,
Florida, and Georgia, 63 Fed. Reg. 12,664, at 12,669 (Mar. 16, 1998) (to be codified at 50
C.F.R. pt. 17).
88
This is a real concern! I mean how do we argue for this? The good
news is that I am sure Americans still support the Endangered Species
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89
See generally NICOLE T. CARTER, CONG. RESEARCH SERV., RL34326,
APALACHICOLA-CHATTAHOOCHEE-FLINT
(ACF)
DROUGHT:
FEDERAL
WATER
MANAGEMENT ISSUES (2008), available at http://tinyurl.com/ovzly4j.
90
91
Id.
92
Id. at 266 (“[T]he honey was as tied to the fate of the Apalachicola as the mussels: the
tupelo trees that provide the nectar grow only in the floodplains. When those flatlands get too
dry, the trees disappear and so does the honey.”).
93
See generally Michael J. Bean, The Endangered Species Act: Science, Policy, and
Politics, 1162 YEAR ECOLOGY & CONSERVATION BIOLOGY 369 (2009).
94
Id. at 388.
Act and are willing to extend those guarantees beyond animals with a
conscious. The argument though, that I think is important and is often
overlooked, is about habitat. These animals have inherent worth and I
will argue until I die that that is the most important thing—we want to
protect species and prevent extinctions.
But they also do other things. The fat threeridge and purple
bankclimber mussels are found at the mouth of the Apalachicola River
near Atlanta and about five or six years ago, Atlanta was going through a
severe drought.89 They wanted to drain more water upstream and that
possibly would kill thousands of the mussels downstream. The Governor
of Georgia, Sonny Perdue, even went on the state steps and prayed for
rain.90 He then made an argument against these mussels, saying it was a
“choice ‘between mussels and drinking water for children.’”91
Florida has a different view, however, because thousands of people
in the panhandle depend on that habitat. It’s the endangered species, but
it is also those flooding forests that provide storm protection. It’s the
fisheries there, the nurseries for the fisheries, and the oystermen who
work there. Even the tupelo honey is dependent on the flooding forests.92
This is the rise of what we would call ecosystem services, or natural
capital—economists and biologists are still struggling with a term that
resonates with the public. The whole idea is that we need the ecosystem.
I work in the field of ecological economics, which says economics is a
part of the ecosystem, rather than the ecosystem being part of
economics. It is flipping that view. We depend upon bio-diversity for
our lives and for economics.
One of the questions that has been proposed is, does the ESA work?
In one study by Michael Bean,93 fewer than a tenth of listed species were
improving, a third were stable, a third were declining, and a quarter were
unknown.94 Richard Pombo gets a hold of that and sees the glass as half
empty—only one in ten are improving and only twenty-five have been
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95
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Id. at 130.
97
The Endangered Species Act: A Wild Success, CENTER FOR BIOLOGICAL DIVERSITY,
http://tinyurl.com/qe3q3mo (last visited Mar. 28, 2015).
98
American Alligator, U.S. FISH & WILDLIFE SERVICE, http://tinyurl.com/pdlauul (last
visited Mar. 28, 2015) (“American alligator populations reached all-time lows in the 1950s,
primarily due to market-hunting and habitat loss. However, in 1987, the alligator was
pronounced fully recovered, making it one of the first endangered species success stories.”).
99
ROMAN, LISTED, supra note 6, at 274 (“In the 1960s, the birds were in steep decline—
largely as a result of DDT contamination. When they were listed in 1970, pelicans were rare
in Texas, completely extirpated from Louisiana, and just holding on in Florida. Protections
96
recovered and delisted—that is the glass half-empty view.95
Conservationists, on the other hand, argue that ten percent is an
improvement and a third are stable, therefore, most species that we know
about are stable and improving.96 The goal of the ESA isn’t necessarily
recovery, which we all want—the true goal is to stop extinction. And
ninety-nine percent of species on that list haven’t gone extinct.97 One
analysis had estimated that thirty years after the ESA was passed, the
extinction rate would have probably caused the extinction of several
hundred species in the United States—with the ESA it was reduced to
thirty-five or forty. Remember that species, under the ESA, also includes
populations, so it does not mean an entire species is gone, but that we
have lost populations. So it is not one hundred percent effective, by any
rate, but I leave it to you to decide which view you take, when you see
this kind of data.
I do think it is important to consider the success stories. People are
reluctant to accept success because it means you no longer have the
protection. Take the Bald Eagle, for example. People are reluctant to
delist the Bald Eagle because of the loss of habitat protection, which
means the species might go toward endangerment. What are the success
stories? Alligators.98 Clearly anyone who drives around Louisiana or
Florida sees alligators. Tens of millions of alligators are back. I think
this is what the people who originally wrote the ESA, or signed on, were
thinking. Take pressure off, the population comes back, delist, move on.
That’s the dream. A lot of times we bring populations down to too low
of numbers, or habitats are reduced. But the alligators are back! They are
still on the list, not because they are rare, but because their skins look
like the skin of an American crocodile. The concern was people trading
in alligator skins freely would also start substituting rare crocodilians as
well.
Another success story is the brown pelican.99 They now look pretty
numerous down in the southeast. The population is up to 620,000 and
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and reintroduction efforts—more than 1,200 pelicans were moved from Florida to
Louisiana—helped the species come back from the brink. Delisted on the East Coast in 1985,
it was declared completely recovered throughout its range in November 2009.”).
100
Removal of the Brown Pelican (Pelecanus occidentalis) from the Federal List of
Endangered and Threatened Wildlife, 74 Fed. Reg. 59,444, at 59,445 (Nov. 17, 2009) (to be
101
Final Rule to Remove the Eastern North Pacific Population of the Gray Whale from
the List of Endangered Wildlife, 59 Fed. Reg. 31,094 (June 16, 1994) (to be codified at 50
C.F.R. pt. 17).
102
Marine Mammal Protection Act, 16 U.S.C. §§ 1361–1423h (2012).
103
See New Study Finds Most North Pacific Humpback Whale Populations Rebounding,
NOAA (May 22, 2008), http://tinyurl.com/58d9qr.
104
See ADAM STOW ET AL., AUSTRAL ARK: THE STATE OF WILDLIFE IN AUSTRALIA AND
NEW ZEALAND 326–27 (2015).
105
See NAT’L OCEANIC & ATMOSPHERIC ADMIN., U.S. DEP’T OF COMMERCE, U.S.
ATLANTIC AND GULF OF MEXICO MARINE MAMMAL STOCK ASSESSMENTS – 2013, at 342,
343 (2014), available at http://tinyurl.com/ksthrmv.
they were delisted in 2009.100 I was in North Carolina last year and
started asking around, this idea of shifting base lines, because people in
their sixties or older can remember the first time they saw a pelican.
There were no pelicans, now they are everywhere—this change occurred
in people’s lifetimes. What else changed at that point, aside from taking
off the pressure of hunting, was also the reduction in pesticide use.
Among the biggest success stories are marine mammals. For
instance, gray whales were delisted in 1994 and are now at over 20,000
individuals.101 Marine mammals seem to respond to conservation in the
way that we had hoped they would. We have stopped hunting them and
populations are expanding globally. Not all populations. I don’t mean to
oversell this. There is a conservation crisis for marine animals, too.
The Marine Mammal Protection Act102 is probably our best success
story because it is really working in many cases. In the North Pacific, off
of Alaska, there were 1400 Humpback whales in 1960—the population
is now at 21,000.103 In Western Australia, there were 600 humpbacks in
1960, and now there are 25,000, largely because of restrictions on
commercial hunting.104 There were 35,000 gray seals in the western
North Atlantic in 1977, and there are now more than 330,000.105 Here is
one of those species that used to be rare, and now is abundant, and that
some people would call a pest. No matter how you look at it, for marine
mammals this has been a powerful success. Fortunately, we haven’t seen
a rise in poaching, as we have with elephants and rhinos.
One of our biggest success stories is elephant seals. Down to about
only a hundred individuals in the 1960s, very much on the edge of
extinction, there are now between 210,000 and 239,000 in the North
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Pacific, probably about as abundant as they ever were.106 Here is where
you get back to the historical base line. But not with all species can we
just take the pressure off and they will just respond immediately.
Peregrine falcons are a good example because they were extinct in the
east, so it didn’t matter what you did with the pressure. What we did
with Peregrines, and several other species, is to begin reintroduction. We
probably wouldn’t do it this way again. The reintroduction of the
Peregrine falcon began in 1974.107 It was basically taken from different
stock, from individuals around the planet. We mixed them up, bred
them, hacked them,108 and then released them. They are doing incredibly
well and were delisted in 1999.109 Now we are having to play around a
bit more. This isn’t conservation where you just take the pressure off and
they will come back.
Here’s where we are really starting to change the genetics. One of
the big stories on that is the Florida panther.110 They were down to about
twenty-five to thirty-five individuals in the 1990s.111 People were
writing them off. They exhibited kinked tails, cowlicks, and a lot of the
males’ testicles didn’t descend—all signs of inbreeding in cats.112 The
question was—and this was really bitterly fought out in the conservation
community—do we bring in some genes? Do we bring in some cougars
from other areas and allow them to breed with these Florida panthers to
avoid inbreeding? Or is this a habitat problem? Are we even allowed—
because initially the ESA said hybrids weren’t protected—to bring in
new genes? Because that would mean it is no longer a Florida panther
and it would be taken off of the list. This was hotly contested. In the
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See Mark S. Lowry et al., Abundance, Distribution, and Population Growth of the
Northern Elephant Seal (Mirounga angustirostris) in the United States from 1991 to 2010, 40
AQUATIC MAMMALS 20, 36 (2014), available at http://tinyurl.com/nae7ggo.
107
Final Rule to Remove the American Peregrine Falcon from the Federal List of
Endangered and Threatened Wildlife, and to Remove the Similarity of Appearance Provision
for Free-Flying Peregrines in the Conterminous United States, 64 Fed. Reg. 46,542, at 46,543
(Aug. 25, 1999) (to be codified at 50 C.F.R. pt. 17).
108
Hacking is “the practice of retaining and feeding young captive-bred birds in partial
captivity until they learn to fly and hunt on their own . . . .” Id. at 46,548.
109
Id. at 46,542.
110
See Warren E. Johnson et al., Genetic Restoration of the Florida Panther, 329 SCI.
1641, 1641 (2010), available at http://tinyurl.com/nolgpbu (“The rediscovery of remnant
Florida panthers (Puma concolor coryi) in southern Florida swamplands prompted a program
to protect and stabilize the population. In 1995, conservation managers translocated eight
female pumas (P. c. stanleyana) from Texas to increase depleted genetic diversity, improve
population numbers, and reverse indications of inbreeding depression.”).
111
See id. at 1642.
112
106
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113
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Id. at 111.
Johnson et al., supra note 110, at 1641.
115
See Tricia Woolfenden, The Florida Panther was Saved by Its Cougar Cousin from
Texas, Report Says, WLRN (Jan. 29, 2013, 4:00 PM), http://tinyurl.com/ouy8w2l.
116
See Whooping Crane, NAT’L WILDLIFE FED’N, http://tinyurl.com/oxruez5 (last visited
Mar. 29, 2015).
117
Protocol for Conditioning Costume-Reared Whooping Cranes to Follow an Ultralight
Aircraft in Migration, OPERATION MIGRATION, http://tinyurl.com/oopx4gp (last visited Mar.
29, 2015).
118
119
Protocol for Conditioning Costume-Reared Whooping Cranes to Follow an Ultralight
Aircraft in Migration, supra note 117.
114
1990s, U.S. Fish and Wildlife changed its policy, because another
species, the Dusky Seaside sparrow, had gone extinct while they were
arguing that out.113 They didn’t want that to happen again.
U.S. Fish and Wildlife decided to introduce eight female cougars
from Texas to the isolated population in southern Florida.114 There are
now 120 panthers in the state.115 They’re no longer Florida panthers—
about seventy percent of the cats’ genes come from the Texas cougar. In
the 1970s, no one was thinking that this was the way we were going to
manage species. I think this genetic rescue was the right move, the only
move that would have saved the panther. In South Africa, lions and other
carnivores are moved around all the time. Without this translocation, we
would have no panthers in Florida. But clearly it is complicated.
We’ve also experimented with managing whooping cranes. The
only wild population, once down to a couple of dozen individuals, has
grown to about 200.116 This growth is good news, but all the whooping
cranes were still in a single population, one that flies between Texas and
Canada, and it is vulnerable to disease or a storm event. With one
catastrophe, we could lose all whooping cranes. So a group called
Operation Migration and its partners started taking eggs that were
unlikely to be reared from the nests of wild whooping cranes and
brought them to Patuxent Wildlife Research Center in Maryland.
Researchers fed the chicks using puppets, so they wouldn’t associate
people with food.117 Many of the birds were raised among sandhill
cranes, a close relative. From the time they arrived, even before they
hatched, the eggs were exposed to the sound of an ultralight plane.118
These recordings, it was hoped, would encourage the birds to imprint on
the plane and later follow it on a long migration, from Wisconsin to
Florida.119 The intent is to establish a second migratory population, an
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120
05/08/2015 09:54:41
See Press Release, U.S. Fish & Wildlife Serv., Ultralight-led Whooping Cranes
Complete Fall Migration to St. Marks National Wildlife Refuge in Florida (Dec. 11, 2014),
available at http://tinyurl.com/q9abpw5.
121
Tony Hiss, Can the World Really Set Aside Half of the Planet for Wildlife?,
SMITHSONIAN (Sept. 2014), http://tinyurl.com/lfu7mdu.
122
123
See Removal of the Gray Wolf in Wyoming From the Federal List of Endangered and
Threatened Wildlife and Removal of the Wyoming Wolf Population’s Status as an
Experimental Population, 77 Fed. Reg. 55,530 (Sept. 10, 2012) (to be codified at 50 C.F.R. pt.
17); Revising the Listing of the Gray Wolf (Canis lupus) in the Western Great Lakes, 76 Fed.
Reg. 81,666 (Dec. 28, 2011) (to be codified at 50 C.F.R. pt. 17). The Gray Wolf was
subsequently relisted in both locations. See Reinstatement of Final Rules for the Gray Wolf in
Wyoming and the Western Great Lakes in Compliance With Court Orders, 80 Fed. Reg. 9218
(Feb. 20, 2015) (to codified at 50 C.F.R. pt. 17).
insurance policy, and an attempt to reestablish past flocks.120 This is
what conservation has come to: we are going to have to meddle more
and more with wildlife, unless we protect and restore habitats. The
biologist E. O. Wilson argues that fifty percent of the planet should be
set aside as protected habitat for wildlife—until we get there, we are
going to have to meddle.121
One of the big success stories, and one of the most controversial, is
the return of the gray wolf to the Rockies. Wolf biologists Ed Bangs,
Doug Smith, and colleagues released 41 wolves that had been captured
in Canada.122 One was a hard release—take the wolves from Canada,
drop them in the mountains of Idaho, and let them go. In Yellowstone,
they did a soft release—they were more cautious, bringing them to a
pen, feeding them and then releasing them. It didn’t matter though
because the wolves did well in both places. There’s one called Wolf 301,
a well-known wolf among wolf watchers in Yellowstone. Amazingly,
they are very visible in Yellowstone. In Canada, you don’t really see
them because they hide. But in Yellowstone, wolf watching has become
very popular. This species was delisted through legislation,123 again
controversially delisted, but certainly the restoration effort has been
successful. We will see what we can do post-restoration, whether we can
maintain those populations or not.
This brings us back to the red-cockaded woodpecker. One of the
shifts to address perverse incentives—the idea that people would cut
down a wild habitat so they wouldn’t get endangered species on their
property—is the habitat conservation plan. If you have a big stand of
long-leaf pine, and are concerned that an endangered species will move
in and increase regulation on the property, you can sign up with the
government, confirming that you don’t have any woodpeckers on your
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property. The government would assure a landowner that the rules
wouldn’t change even if woodpeckers came in. It is called a “no
surprises” policy, basically to reduce motivation to cut down your
habitat.124 Does everyone love this idea? No. It was controversial when it
was started. It is part of a shift in the ESA. Prohibitive in its original
form, the law has been transformed into a permitting statute. Still, the
ESA is the strongest habitat law we have in the United States.
What hasn’t been so controversial is using the ESA to protect
against direct harvest, or take. There is blowback against habitat
protection, but any violation that involves a direct take is usually
prosecuted. The philosopher J. Baird Callicott said that one way you can
view people’s values is by how much you are punished if you break that
law.125 So where does the ESA fit in there? Michael had mentioned
narcotics and human trade.126 The wholesale distribution of narcotics
carries a penalty of ten years to life and a $10,000,000 fine.127
Trafficking in human organs carries a penalty of up to a five-year prison
term and a $50,000 fine.128 Violating the ESA carries a penalty of a oneyear maximum prison term and up to a $50,000 fine.129 That’s more than
the penalty for prostitution, but not as much as distributing drugs. Direct
kills continue to be prosecuted. In 2009, a Kauai man pled guilty to
killing a Hawaiian monk seal and he got ninety-days imprisonment.130
So these violations are still prosecuted pretty aggressively.
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124
Eric Fisher, Comment, Habitat Conservation Planning Under the Endangered Species
Act: No Surprises & the Quest for Certainty, 67 U. COLO. L. REV. 371, 386 (1996) (“The
policy promises that if, in the course of development or land use, a landowner invests money
and land into saving endangered, threatened, or unlisted species covered in [a Habitat
Community Plan (HCP)], the government will not later require that the landowner pay more
or provide additional land even if the needs of species change over time. Compliance with the
requirements of an HCP ensures that development can proceed with minimal interruption,
even if an unlisted species covered by the plan is later listed as endangered or threatened.”).
125
J. Baird Callicott, Explicit and Implicit Values, in 2 THE ENDANGERED SPECIES ACT
AT THIRTY 36, 44–45 (J. Michael Scott, Dale D. Goble, & Frank W. Davis eds., 2006) (“[I]n
contemporary Western democratic societies the intrinsic value accorded human beings is
legislatively objectified by laws prohibiting murder, slavery, other forms of human trafficking,
prostitution, the sale of human organs, and the sale or possession of mind-altering
drugs. . . . [T]he relative quantitative difference in the distribution of intrinsic value—as
objectified democratically by legislative action—is reflected in the penalties for violating the
legislation.”).
126
See Harris, supra note 78, at 515–16.
127
21 U.S.C. § 841(b) (2012).
128
42 U.S.C. § 274e(b).
129
16 U.S.C. § 1540(b).
130
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Among the wildlife laws in the United States, the ESA bans the
interstate and international sale of listed species.131 The Migratory Bird
Treaty Act,132 passed a hundred years ago, and the Bald and Golden
Eagle Protection Act,133 prohibit commercialization of protected and
migratory birds. The Marine Mammal Protection Act limits the sale of
marine mammal parts, with an exception for native Alaskans.134 The
Lacey Act, passed in 1900 to regulate trade in wildlife, fish, and plants,
has a lot of regulatory muscle.135 When you hear about a prosecution
involving commercial trade, it is typically under the Lacey Act. It is a
federal crime to take wildlife across state boundaries.136 If the law in one
state protects that species then you are breaking a federal law if you
bring that species across the state lines. There was recently a bust done
by the U.S. Fish and Wildlife Service looking at species that were for
sale on the internet.137 People need a permit to traffic in wildlife products
if they are not listed on CITES or if they are listed in certain geographic
areas.138
Peter Brazaitis, a forensic herpetologist who works for the U.S.
Fish and Wildlife Services, looks at any skins that come in, for example,
for a crocodile, he compares that to the morphological—does it look like
the species listed on the permit?139 If he doesn’t think so, then DNA
analysis occurs. He determines if there was purposeful mislabeling and,
if so, the people are brought in and prosecuted. The permitting process is
pretty well enforced. Scientists also have to have permits to study
wildlife.140
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16 U.S.C. § 1538(a)(1).
Id. § 703(a).
133
Id. § 668(a).
134
Id. § 1371(b).
135
16 U.S.C. §§ 3371–3378.
136
Id. § 3372.
137
Press Release, U.S. Fish & Wildlife Serv., Global Wildlife Trafficking Busts Expose
Illegal Internet Sales in U.S., Southeast Asia (July 11, 2013), available at
http://tinyurl.com/q6s5wba.
138
See U.S. FISH & WILDLIFE SERV., PERMITS FOR NATIVE SPECIES UNDER THE
ENDANGERED SPECIES ACT 3 (Mar. 2013), available at http://tinyurl.com/o7y8hk9
[hereinafter PERMITS].
139
Paul Raeburn, Endangered Reptile Skin Trade Imperils Tropical Wilderness:
Environment: Sale of So-Called Exotic Leathers Threatens 23 Species, L.A. TIMES (Apr. 15,
1990), http://tinyurl.com/nqum3nn.
140
PERMITS, supra note 138, at 1.
132
131
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559
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141
Egypt’s ‘Spying’ Stork and Other Incidents of Animal Espionage, GUARDIAN (Sept. 2,
2013), http://tinyurl.com/lhhbu9f.
142
Conal Urquhart, Arrested ‘Spy’ Stork Killed and Eaten After Release in Egypt,
GUARDIAN (Sept. 7, 2013, 10:33 AM), http://tinyurl.com/nhn4yrn.
143
Id.
144
ROMAN, LISTED, supra note 6, at 21 (“[T]hese Red Lists—the color was chosen to
emphasize the imminent danger of extinction—grew into databases: Red Data Books. The
first volumes on mammals and birds were printed in 1966, followed by reptiles and
amphibians, then flowering plants and fishes. The Red List is now so authoritative, its name is
trademarked.”).
145
Id. at 35.
Last year a stork, which was tagged for migration, was arrested in
Egypt.141 It was captured by the Egyptian police because they thought it
was spying.142 This is still an open question. Do you need a permit for a
species to fly into certain countries? This is an issue with marine
mammals. The Egyptian police released it so he isn’t in prison anymore.
But the story has a sad ending. He landed in a marsh and someone killed
and ate him.143 And that was against the law in Egypt.
The question is: Does the ESA work? It certainly works when
species are fully funded. It doesn’t work when there isn’t enough money.
Most listed invertebrates and plants, for example, don’t even get $50,000
a year, barely enough to cover the paperwork involved with listings, and
certainly not enough to do much-needed research or actual restoration
efforts. We tend to fund fish and mammals. Fish, probably because we
eat them, but why mammals?
I wanted to look at where that bias starts. So I looked into my
daughter’s toy chest to see what animals resided there. And because I do
genetics, I made a phylogenetic tree, to see where her stuffed animals
resided on the tree of life. Twenty-one of the animals in her toy chest are
mammals. Unfortunately, she didn’t have many human dolls, maybe
because she is the daughter of two wildlife biologists. She had two fish,
one crustacean, an isopod—because her dad’s a conservationist—I
suspect most kids don’t have stuffed pill bugs in their bedrooms. As a
matter of fact, she found that one to be really scary and it has been
banished from her toy chest.
Keep in mind, while I have been talking about success stories, there
is a real crisis worldwide for biodiversity. On the International Union for
the Conservation of Nature (IUCN) Red List,144 one in three amphibians,
one in four mammals, one in five birds, and one in five flowering plants
are in danger of extinction.145 And these are just a few of the groups that
have been studied.
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146
Lyme Disease Transmission, CDC, http://tinyurl.com/cbl9acv (last updated Mar. 4,
2015).
147
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See Sharon Levy, The Lyme Disease Debate: Host Biodiversity and Human Disease
Risk, ENVTL. HEALTH PERSP. (Apr. 1, 2013), http://tinyurl.com/na9fcxh.
148
149
Id.
150
White-nose Syndrome Has Devastated Bats in the Adirondack Park, PROTECT
ADIRONDACKS (Jan. 26, 2014), http://tinyurl.com/qj6j97x.
151
152
Id.
Why does it matter here locally? Some of the research that I do
looks at the impact of bio-diversity on human health. Not only
psychological health, but also infectious disease, as it turns out. I
imagine everyone knows the blacklegged tick, the vector for Lyme
disease, if you live here in Connecticut; Borrelia bacteria is the cause,
the effective agent. It is passed through the blacklegged tick,146 and
recent studies have shown that biodiversity can act as a buffer protecting
against Lyme disease, which is called the dilution effect.147
The more animals you have, the more wildlife, the more diversity,
the less likely that disease is going to be passed off. Lyme disease, and
this has also been found in West Nile virus and other vector-borne
diseases, when you have a lot of species, the number of infected ticks
goes down because a lot of those species are dead-end hosts.148 If a tick
bites a dead-end host, the Borrelia bacteria die, and the disease isn’t
passed on.
The main host for Lyme disease isn’t deer, like many people think;
instead, it is the white-footed mouse that is the main carrier, or the best
host.149 It also turns out that this is usually the last species left, the last
one standing, the one that is going to be found around your house. So it
is part of the reason you have that risk. We have been looking at patterns
of restoring wildlife to see if that can help buffer disease. And I think
disease is one of the big emerging issues, not only for people, but for
wildlife as well.
White-nose syndrome was first seen in the Adirondacks about five
or six years ago, and it affects cave dwelling bats.150 As far as we know
it causes a rise in their metabolism so when they are hibernating, they
lose energy and mass, and eventually start flying out in mid-winter.151
We assume they do this because they are starving. There has been a
massive die-off, with ninety percent of cave dwelling bats impacted.152
The ESA is not really prepared for this; this is an emerging disease. We
see it in salamanders, we see it in amphibians, and we see it in a lot of
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other species. This likely got to the U.S. from caves in Europe, we don’t
know how, because it is found among native bats in Asia.153
I want to wrap up by referring back to a question that was asked
earlier. What can you do? Some people that are making a huge
difference—perhaps on a small scale—are at the front lines of
conservation.
This is Jeff Briggler, the state herpetologist in Missouri. I went
there to work on a piece on the Ozark hellbender in 2011.154 There are
only 600 individuals left in the world, and they are suffering from
diseases and possibly other complications.155 When I spoke to Jeff at
dinner (after spending a day on the water and catching my own
hellbender—which was the highlight of my year), he said that he would
consider his career and his life a success if all the amphibian and reptile
species that were in Missouri when he started his career were still there
when he retired. That’s huge. It’s a really demanding thing to do.
Briggler has to deal with the realities on the ground, of new four-lane
highways being constructed, of making really difficult decisions. It is not
as if what he says goes. To me, that was really moving. Such
decisions—what we do right now—have an impact on the future of life
on the planet.
153
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Id. at 315.
Ozark Hellbender, U.S. FISH & WILDLIFE SERVICE, http://tinyurl.com/oecagwa (last
updated July 16, 2014).
155
See Endangered Status for the Ozark Hellbender Salamander, 76 Fed. Reg. 61,956
(Oct. 6, 2011) (to be codified at 50 C.F.R. pt. 17).
154
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From Mark J. Costello et al., Can We Name Earth’s Species
Before They Go Extinct?, 339 SCI. 413, 415 fig.2 (2013),
available at http://tinyurl.com/pqzmjrd.
Reprinted with permission from AAAS.
PRISCILLA FERAL: I attended the International Whaling
Commission one year. I got an up-close view about the permits to grant
Alaskan natives the right to kill bowhead whales, and then I saw you had
a growth of 5000–10,000, which was lower than other whales. Knowing
the culture of these communities, it is a cash economy, it isn’t igloos, it
Mark J. Costello et al., Can We Name Earth’s Species Before They Go Extinct?, 339
SCI. 413, 413 (2013), available at http://tinyurl.com/pqzmjrd.
157
Id. at 415 fig. 2.
158
Id.
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156
The green line in the figure above presumes the background
extinction rate, what you presume is a normal extinction rate on the
planet, with 5,000,000 species on earth.156 At a one percent extinction
rate, we are down to 4,000,000 by the year 2300.157 At five percent, if
the extinction rate continues to accelerate, we are talking about
1,000,000 species on the planet by 2300—four out of five of species will
disappear about that time.158
I spoke a lot about animals today so I want to say one thing about
plants. They really do matter and they are protected by the ESA—they
are essential and you need to protect them.
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is not about eating bowhead or going hungry. It seems highly frustrating
that there isn’t any challenge at all to the so-called culture need, and that
automatically they are granted permits to kill bowheads, when the
growth clearly isn’t great and the need is non-existent.
JOE ROMAN: A couple of things. There are some concerns with
exceptions for Alaskan natives, but they are not so much honestly with
bowheads, but with sea otters. There is some concern about that. Most
conservationists and marine mammalogists are okay with that exception.
Not all by any means. And most are not comfortable with commercial
whaling. I fit in there. Here was a hunt that was going on for at least
2000 years. We don’t know of any impact to the whale population.
There is impact to the individual whale of course. And European
colonization changed that system. I think it still matters to that culture.
There’s room for disagreement, this is just my own personal opinion.
PRISCILLA FERAL: I understand. But if you are up-close with the
actual culture, you’ve spent weeks in those communities, you’ve eaten in
the Mexican restaurants, you are going to the bars, and visiting the
hotels, it is ludicrous, and yet no one really has the courage to challenge
it.
JOE ROMAN: I think politically it would be difficult. But I think
there is room for disagreement on that, but point taken.
RAFAEL WOLFF: I wanted to ask about civil provisions, about
criminal provisions. In your opinion what works for preservation? We
have a lot of things that interact, but if you were a legislator, what is the
next step? Where would you invest the tax dollars?
JOE ROMAN: Personally, if I could divide it, habitat is the first
decision. I have spent time in Brazil and it is the same thing. These
species aren’t going to come back without habitat preservation and
restoration, you have to do that. At the same time, however, as the
Marine Mammal Protection Act has shown, if you stop hunting species,
if you reduce pressure, and you aggressively enforce it, that will be
effective as well.
We live in a world where it is a human planet. We’re going to have
to move species around and restore them. I am not going to give you a
single answer because you need to do all three of those. I probably
would say, perhaps, habitat, restoration, and then over-exploitation. But
maybe that is because it is the United States and we do not have as much
of a problem with poaching. And there are many others. We are doing a
study now on what causes conservation successes. So get back to me
next year and perhaps I will have a better answer.
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160
See id.
See supra note 6.
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159
DANIEL RAMP: Hello. I am from the Centre for Compassionate
Conservation in Sydney, Australia. Great talk about the ESA and what it
can do. The one thing, perhaps, you haven’t touched on very much is
monitoring. Without information, the ESA is powerless. For many of the
species that are protected under the ESA in, for example, Western
Australia, short-range endemic invertebrates are very important, so when
mining companies want to go explore land for development, they have to
do surveys. The environmental impact statements are done by
consultants and there is almost collusion with the federal government, in
that these are cryptic species. They go there once and have a look-see,
and these are things like wolf spiders, they are hard to find. That is why
they are short-range endemics. They don’t find them, so the mine goes
ahead. No mine has ever been stopped. Were there species there that are
endangered? Absolutely. So could you comment on how important
monitoring is and what our efforts are?
JOE ROMAN: I totally agree with you. Without monitoring, we
wouldn’t get anywhere—you have to do those surveys. That is part of
the problem with the figure above, which shows undescribed species and
rates of decline.159 Many of these species have legal protection, but for
about a third of them, we don’t know if they are increasing or declining.
There is no way that the ESA can be fully effective if we don’t know
what is going on with those populations. For many species, we only
provide $50,000 a year and again, that is not going to do anything. In the
U.S., we do rely on non-governmental organizations (NGOs) to take up
some of the slack, such as the Nature Conservancy or Wildlife
Conservation Society. But I totally agree.
LIV BAKER: We have talked a lot about the importance of habitat
protection, but what can you say about the role of mitigation, and the
effect of that, when land is actually taken, for development or some
other use, and the idea that we will just mitigate in some other area?
JOE ROMAN: You mean like the Habitat Conservation Plan that I
mentioned?160 I’ve spoken to people at U.S. Fish and Wildlife Service,
and they thought the passage of those amendments was necessary,
because there was strong opposition to the ESA in Congress at that
point. This was during the Clinton administration, actually right after
Newt Gingrich took over. So people in the Interior Department knew
they were going to have to save the ESA by making some modifications,
and part of that defense was the development of these Habitat
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See Notice, Permits; Low-Effect Habitat Conservation Plan for the Utah Prairie Dog in
Garfield County, Utah, 78 Fed. Reg. 62,646 (Oct. 22, 2013).
05/08/2015 09:54:41
161
Conservation Plans. This was under Bruce Babbit, and the folks I spoke
to sincerely thought this could be effective. But then there was a change
of administration and the Bush administration didn’t always follow the
principles developed by Babbit. If you are not on the ground defending
this mitigation, and making sure it happens, it can be totally ineffective.
You need to have people out there. I am not arguing that this is the way
we would ideally do it, but politically, that is the decision that was made.
DOROTHY STUBBE: Can you give us an example of when habitat
mitigation has benefited a threatened species?
JOE ROMAN: The red-cockaded woodpecker situation is actually a
decent example. This is one species where it has worked fairly well and
this brings about conservation trading out there as a possibility too,
where you can trade permits. This is being put forward for the Utah
prairie dog.161 So one area wants to develop a particular place, they buy
a permit from another place outside of town. If it is done well, and
everyone is truly working within the system, and you pick the right
areas, it can result in improvement. If it is done poorly, it can be a
disaster though. It has to be done on a case-by-case basis.
DOROTHY STUBBE: You mentioned that for the Florida panther,
there were so few. At what point are you satisfied that the animal has
come back, without worrying about the gene pool being so small and the
inbreeding?
JOE ROMAN: I could give you a hundred papers that have tried to
answer that question. Five hundred was a number that people use to
throw around, but I don’t think we are using that minimal viable
population number anymore. It varies depending on what organism you
are talking about. Ideally you want to get it while they are still playing
an ecological role, while they are still abundant enough where they are
part of the ecosystem. That’s not a number, but it is a goal let us say.
The questions of inbreeding—there are people that have looked at that
for an extinction vortex. So when do numbers get so small that they are
likely to just go down to zero? For a group of red-cockaded
woodpeckers, it was twenty-five. For other species, such as groupers,
you need thousands of individuals, for pigeons, maybe you need
millions. People have long tried to find a single number.
BOB ORABONA: Wouldn’t there also be an acceptable number of
extinctions?
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JOE ROMAN: There are also several papers looking at background
rates. One recent study has found that the current extinction rate is about
1000 times higher than the background rate.162 Now it’s true that every
species on the planet will go extinct someday, including humans. Just
like everyone is going to die. But if we are going to protect the planet for
ourselves, and for all of the other animals, plants, and living things, we
need to reduce that extinction rate, and bring it as close to the
background rate as possible. Zero anthropogenic extinction—that is my
goal.
JOHN THOMAS: Sensational talk in every way, thank you so much,
such an honor. I have to warn you, when you said to check back with
you next year; we are going to do that. Thank you so much.
JOE ROMAN: Excellent. Thank you.
ACKNOWLEDGMENTS
I thank Frank Eucalitto, Nikki Bossert, Kim Osborne, and John
Thomas for inviting me to speak at the Quinnipiac Law Review’s annual
symposium and for all of their help and hospitality during my stay.
Many thanks to Nikki Bossert for having this talk transcribed and for
providing the footnotes.
Jurriaan M. De Vos et al., Estimating the Normal Background Rate of Species
Extinction, 29 CONSERVATION BIOLOGY 452, 453 (2015).
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162
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ROBERTS FINAL (Do Not Delete)
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DETAILED LOOK AT THE IVORY TRADE AND THE
POACHING OF ELEPHANTS
Adam M. Roberts*
567
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* Adam M. Roberts, based in Washington, D.C., is the CEO of Born Free USA and the
CEO of the Born Free Foundation in the UK. Prior, he was executive vice president at Born
Free USA, a role he held since helping launch the organization in 2002 to bring the UK-based
Born Free Foundation’s message of compassionate conservation to the American public.
Roberts has significant expertise and more than two decades of experience in the international
wildlife trade and with the topic of captive wild animals. He also serves on the board of
directors of the Species Survival Network and is a founding member of the board and current
chairman of the board of Global Federation of Animal Sanctuaries.
Roberts’ presentation was given on November 8, 2014 at Quinnipiac University
School of Law and can be viewed at Quinnipiac Law Review—2014 Symposium—Adam
Roberts, YOUTUBE (Nov. 21, 2014), http://tinyurl.com/l3rgalk.
1
Endangered Species Act, 16 U.S.C. §§ 1531–1544 (2012).
2
See Press Release, Born Free USA, U.S. Government Lists African Lions as
Thank you very much for inviting me to join you all, and for your
indulgence in allowing me to join you via Skype. I am out here in Los
Angeles for the Performing Animal Welfare Society annual conference,
which is on captive exotic wildlife, elephants, big cats, and some other
species, as well.
I am going to talk to you a little bit about Born Free’s history,
wildlife trafficking, and ivory, in particular. I have looked at the agenda
for your program today, and it is both ambitious and impressive. I am
sad that I did not get to hear the previous speakers. Forgive me if I repeat
anything that has been said, since I did not have the opportunity to hear
them. I did notice, as an aside, that there has been discussion about
wildlife trafficking and the Endangered Species Act (ESA).1 I think that
it is very important to look at the ways the ESA, as a very strong
historical law on wildlife trade and the taking of endangered and
threatened species, can be implemented—but also as a tool that we, as
animal advocates, can use to try to improve the welfare and conservation
of wild, endangered species. Born Free USA, along with The Humane
Society of the United States and the International Fund for Animal
Welfare, just completed a three-year process of listing the African lion
as threatened under the Endangered Species Act.2
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Threatened Under Endangered Species Act (Oct. 27, 2014), available at
http://tinyurl.com/l5sdks3.
3
Press Release, U.S. Fish & Wildlife Serv., Service Proposes Endangered Species Act
Protection for the African Lion (Oct. 27, 2014), available at http://tinyurl.com/lkeks4b.
4
Listing the African Lion Subspecies as Threatened With a Rule Under Section 4(d) of
the ESA, 79 Fed. Reg. 64,472, at 64,501 (proposed Oct. 29, 2014) (to be codified at 50 C.F.R.
pt. 17).
5
Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243 [hereinafter CITES].
6
See Retention of Threatened Status tor the Continental Population of the African
Elephant, 57 Fed. Reg. 35,473, at 35,474 (Aug. 10, 1992) (to be codified at 50 C.F.R. pt. 17).
We petitioned for an endangered listing back in March of 2011 and
it took three years of comment periods and stakeholder workshops
before the U.S. Fish and Wildlife Service (Service) issued a threatened
listing last month.3 While the threatened listing isn’t by name as strong
as the endangered species listing that we requested, it is really important
in that the lion, which was the last of the big cats not to be listed under
the ESA, will now be listed. It is also important that the Service
proposed issuing a 4d rule, for any of you law students out there, along
with the threatened listing, that would say that no permit for a trophy
hunted specimen from a lion from Africa can be given, unless the
country of origin is shown to have a robust and sound management
program for the species.4 Essentially, this is the same as an endangered
listing, in that the Service will have some latitude about whether it will
allow any lion trophy imports into the country. At a time when
American trophy hunting is taking more than five hundred lions a year,
we think that this is an incredibly important achievement. I don’t know
what was talked about this morning, in regard to the ESA and wildlife
trafficking, but I do want people to realize that the ESA is not
necessarily some arcane, out-of-date law that doesn’t have the impact
that we would want it to have for conservation. It is actually not only
robust, but can be used by those of us who care very deeply about
protecting species in the wild, where they belong.
I have been asked to talk about wildlife trafficking as it relates to
elephants and the trade of their tusks and ivory. Born Free’s history of
looking at elephants and the ivory trade is a quarter-century long. We
have been working on this issue since 1989, and I have personally been
working on it since 1994. Most of that policy work is through the
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES).5 As you probably already know, CITES listed the
African elephant under its Appendix I back in 1989, which effectively
shut off the commercial international trade in elephant ivory.6 This was
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7
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Joseph Vandegrift, Elephant Poaching: CITES Failure to Combat the Growth in
Chinese Demand for Ivory, 31 VA. ENVTL. L.J. 102, 108 (2013).
8
Andrew J. Heimert, Note, How the Elephant Lost His Tusks, 104 YALE L.J. 1473,
1473 (1995).
9
Bloody Ivory, BORN FREE USA (May 13, 2014), http://tinyurl.com/ofh8vsr.
10
Heimert, supra note 8, at 1477 (“Appendix II provide[d] a lower level of protection
than Appendix I, allowing regulated commercial trade in the species listed therein.”).
11
Id.
incredibly important because, in the two decades leading up to the ivory
ban, the elephant population across Africa was fully cut in half.7 It went
from 1,300,000 to approximately 600,000.8 That was all primarily to
satisfy the Asian demand, especially in China and Japan, for ivory and
ivory tusks. Leaders across the world noticed the startling images of
African elephants gunned down across Africa, both in the forests in
West and Central Africa and in the savannah across East and Southern
Africa. Entire families were wiped out. As you probably know, elephant
families are very strong matriarchal families with grandmothers,
mothers, granddaughters, aunts, and nieces all living together for their
entire lives, which, in the wild, can span into their seventies or eighties.
We were able to show these very profound pictures of elephants
gunned down in the wild, their faces literally sawed away to capture the
ivory tusks, which were then exported overseas. Those images were very
powerful and persuasive in getting the CITES parties to place elephants
on Appendix I and to stop the ivory trade. What happened as a result of
that was pretty astounding, and when we look at conservation history, it
is a lesson we can learn from.9 First, it became taboo to have ivory
because it was known globally to be an illegal wildlife contraband
product. And, when it became taboo to have ivory, the markets started to
dry up for elephant ivory, because people didn’t want it anymore now
that it was taboo. And when the markets started to dry up, the price for
ivory started to reduce significantly. As the price significantly dropped
for a kilo of ivory, there was less profit in killing elephants for their
tusks. So, poaching was reduced dramatically and populations were able
to stabilize.
What our experience has shown us, with the ivory trade
specifically, is that in the 1970s and 1980s, there was a global legal
regulated trade in elephant ivory that enabled the elephant population to
be cut in half.10 After elephants were fully protected internationally
under CITES, populations stabilized and were given a chance to
recover.11 We know that strict, unequivocal global protection for
elephants can help preserve these species in the wild. The Southern
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12
05/08/2015 09:54:41
Id. at 1479.
See M.G. Cowling & M.A. Kidd, CITES and the Conservation of the African
Elephant, SAYIL 189, 201 (2000).
14
Id. at 208.
15
Id. at 209 (“[T]he pro-trade sentiment was expressed at the opening of CITES 10 by
Zimbabwe’s President Mugabe who is reported to have said: ‘We believe a species must pay
its way to survive.’”).
16
Id.
13
African countries that wanted to trade in ivory, and didn’t care about
elephant well-being or conservation, were obviously relentless in their
attempts to overturn the ban.12 They came back to CITES meetings in
1992 and 1994 trying to propose a weakening of the protection of the
elephants under CITES.13
In 1997, the meeting of the Conference of the Parties to CITES was
held in Harare, Zimbabwe.14 Zimbabwe, under President Mugabe’s very
dictatorial regime, being one of the countries that wanted to legally trade
in ivory once again,15 offered to host the meeting, knowing that they
would have a home-court advantage. Zimbabwe, with Botswana and
Namibia, put in proposals to have a renewed ivory trade.16 It was really
amazing being at that conference, as I was in 1997, because when you
are in the Harare Sheraton, you’re in a situation where everything is
governed by Robert Mugabe’s regime. The local paper, the Harare
Herald, is government owned. It would be slipped under the door every
morning with a massive pro-ivory trade headline, such as: “Mozambique
comes out in favor of Zimbabwe’s proposal to sale ivory” or “Japan
comes out in favor of ivory trade.”
On the weekend in between the two weeks of the meeting, there
were buses taking delegates out to the hinterlands to look at crop-lands
that had allegedly been destroyed by elephants. You had these images of
farmers trying to eke out a living off the land, having their livelihood
destroyed by this proliferation of elephant populations in Zimbabwe.
Indeed, the lives of starving children were summarily affected, all
because Zimbabwe couldn’t kill elephants to profit from the ivory trade.
We had this amazing juxtaposition of the images that we were able to
show from a decade prior, of elephants who had been slaughtered
brutally and horrifically for their ivory, against the impact of a current
robust and uncontrolled elephant population.
Seeing that they weren’t going to win the day in the end, in terms of
reopening the ivory trade unequivocally and unfettered, the proposals
were amended to allow a very controlled one-off sale of stockpiled
elephant ivory from Zimbabwe, Botswana, and Namibia to a CITES-
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17
Trade,
BORN FREE USA,
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Cowling & Kidd, supra note 13, at 209–10.
Id. at 215.
19
Vandegrift, supra note 7, at 111.
20
Born Free USA Exposes the Bloody Ivory
http://tinyurl.com/l2ck2mj (last visited Mar. 20, 2015).
18
approved trading partner—in this case, Japan.17
The theory was that, if the governments of those countries have
these stockpiles that are operated and managed by the governments, and
that they control those stockpiles, they could essentially take the ivory
tusks, put them in a box, ship them to Japan, and have that ivory be used
to feed the market, plowing the proceeds from that sale back into the
country of origin for conservation of the species.
We learned two very important things from this. First, there is no
border control in Japan, or anywhere in Asia, for ivory. The minute that
ivory leaves Africa, it can go anywhere in the world. After it goes to
Japan, it’s worked and smuggled to Myanmar, Laos, Thailand,
Cambodia, and China. Second, in doing so, it stimulates market demand
for ivory again. Remember, I said that market demand had dried up ten
years prior; thus, this renewed poaching. This was really the opening of
the ivory trade that allowed poachers and ivory profiteers to once again
ply their deadly activity. We started to see, from that point on, increased
poaching and ivory trade once again. Of course, that did not deter South
Africa, Tanzania, and Zambia from attempting to add themselves to the
list of countries that could sell ivory once again. In 2000, South Africa
was also given permission to sell off its stockpile of ivory.18
The current situation, without getting into all the nuances of the
CITES process, is you have Botswana’s, Namibia’s, South Africa’s, and
Zimbabwe’s population of African elephants all down-listed from
Appendix I—meaning no commercial trade—to Appendix II, to allow
these one-off stockpile sales. And, since then, China was added as an
approved trading partner.19 Since we were able to limit the damage—so
to speak—to only these one-off sales, it is much better than an
unregulated, massive quota of elephant ivory leaving Africa. But, as I
said, the minute you stimulate market demand, you are going to
stimulate poaching.
And that is the situation we find ourselves in today. According to
our research, between 35,000 and 50,000 of Africa’s elephants are being
poached annually to supply the market for ivory,20 which, by all
accounts, brings us back to the poaching crisis we were in during the
1970s and ’80s. Even the most conservative estimates from the CITES
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21
05/08/2015 09:54:41
Press Release, CITES, Elephant Poaching and Ivory Smuggling Figures Released
Today (June 13, 2014), available at http://tinyurl.com/mswerwr.
22
Will African Elephants be Extinct in Ten Years?, AID FOR AFRICA,
http://tinyurl.com/kayxqhc (last visited Mar. 20, 2015).
23
See Brian Jackman, Poaching in Africa: Selous Game Reserve Warning Highlights
Scale of Epidemic, TELEGRAPH (June 26, 2014, 9:16 AM), http://tinyurl.com/o4hdy2l.
secretariat suggest that more than 20,000 elephants are being poached
each year.21 Any way you look at it is alarming. It is particularly
alarming in terms of the trends for elephant poaching across Africa.
What we are starting to see is that the very vulnerable elephant
populations in the forested areas in West and Central Africa are starting
to be targeted; those are populations that literally could be wiped out. I
know we often talk about extinction of species in our lifetime. I always
like to say, when I am talking about certain campaigns of ours, this
animal could go extinct in my daughter’s lifetime. But, when you are
looking at elephants in Senegal and Sierra Leone, parts of West and
Central Africa, those are populations that could go extinct in my
lifetime.22
It is really a damaging and very fragile situation at the moment.
When you look at the trends in elephant poaching, we are starting to see
that it is moving from West and Central Africa, through the continent, to
East Africa, and ultimately down to Southern Africa, where you do have
comparatively robust populations of elephants. And when you look at a
country like Tanzania, which very much wants to renew the ivory trade
from its stockpiles, you see a country that is incapable of managing its
elephant population. In the Selous Game Reserve in Tanzania, between
2009 and 2013, fully half of the elephants that are part of the Selous
ecosystem have been wiped out due to poaching.23 And when you have
very high levels of government corruption in a country, which our
studies have found, it is almost impossible to suggest that a country like
Tanzania could have a legal ivory trade and have its elephants protected
in perpetuity.
It is incumbent upon us, at the end of the day, to do all we can to
keep elephants safe from the ivory trade. We can do that in a number of
ways. I told you the story about the pictures of the elephants being killed
versus the pictures of starving children to show you how difficult it is for
the conservation community to do its work. But, also, at the end of the
day, we have to be innovative in the approaches that we take for
elephant conservation and trying to stop the ivory trade so that it is not
just a debate between conservationists and those who want to help local
people and communities to have a legal ivory trade again.
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24
Born Free USA Reports on the Ivory Trade, BORN FREE USA,
http://tinyurl.com/ochubz6 (last visited Mar. 20, 2015).
25
VARUN VIRA & THOMAS EWING, BORN FREE USA, IVORY’S CURSE: THE
MILITARIZATION & PROFESSIONALIZATION OF POACHING IN AFRICA 63 (2014), available at
http://tinyurl.com/nddb4bb.
26
Ted Poe, How Poaching Fuels Terrorism Funding, CNN (Oct. 22, 2014, 1:05 PM),
http://tinyurl.com/ovxc2vz.
27
Data-Driven Analysis of Conflict & Security Issues, C4ADS, http://www.c4ads.org/
28
See Born Free USA Reports on the Ivory Trade, supra note 24.
29
VIRA & EWING, supra note 25.
At Born Free, we tried to look at the issue from an innovative and
creative way by partnering with defense analysts to look at the issues
related to national security and wildlife trafficking in Africa.24 We kept
hearing more and more news stories about how terrorist organizations,
like al-Shabaab, are implicated in the ivory trade.25 These terrorist
factions in Africa are killing elephants and using the profits from the sale
of ivory to buy guns to supply their deadly trade, which is both against
elephants and against humans.26
Born Free partnered with defense analyst group C4ADS27 to issue
two reports on the elephant ivory trade.28 We looked at the ivory trade in
three ways. First, you have the poaching of elephants for their tusks,
which is the supply side of things. Second, you have the Chinese
demand, which is really driving trade right now. When there are masses
of wealthy people with the ability to acquire ivory, it really does put
incredible pressure on Africa’s elephants, and other species, as well.
Lastly, you have the links between the two: the shipping routes. How is
elephant ivory getting from Africa to Asia? We especially wanted to
look at the supply side and the trade routes because so many people were
talking about Asian demand; everyone knows that the real solution to
protecting African elephants, at the end of the day, is stopping Chinese
demand. Trying to ingrain that in local communities around China,
however, when you have very wealthy businessmen and the highest
levels of government in support of the ivory trade, is a complicated and
difficult challenge that could take decades to achieve. That, in my
estimation, is not an amount of time that the elephants have.
Born Free issued two reports. The first report is Ivory’s Curse,29
which is about the poaching side of the ivory trade. In places like Kenya,
you have pastoralist communities that are being drawn into poaching
because they need money or are being infiltrated by these nefarious
regimes of African criminal syndicates, where they know they can profit
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30
05/08/2015 09:54:41
Id. at 58.
See id. at 12.
32
See VARUN VIRA ET AL., BORN FREE USA, Out of Africa: Mapping the Global Trade
in Illicit Elephant Ivory (Aug. 2014), available at http://tinyurl.com/pq3cj4t.
33
Id. at 5 (“This report is primarily focused on the transnational illicit transportation
system for ivory and the organized criminal networks that dominate it.”).
34
Id. at 19.
35
Id. at 18.
36
See VIRA ET AL., supra note 32, at 18.
31
by selling the ivory that they are able to get in the bush.30 You also have
an incredible amount of instability being created by terrorist factions in
places like South Sudan, which has a fragile elephant population, along
with a fragile local economy and an unstable government.31 We wanted
to expose that to say these are the hot spots of elephant poaching and the
ivory trade, and that is where international resources need to be brought
to bear to try and stem the tide of poaching on the ground.
The second report is called Out of Africa,32 which is more exciting
in some respects. Out of Africa looks at trade routes.33 This was really
interesting from my perspective because it shed light on the ports of
access where, as an export point in Africa, the ivory is leaving. It is
leaving from Tanzania, Mozambique, Zanzibar, Mombasa, and Dar es
Salaam.34 We are really able to hone down the hot spots for poaching,
and also for the exports of ivory. If we know where the hot spots for the
exports of ivory are, my hope is that people will start to pay attention to
those ports of exit and put significant resources there to try and stop
ivory from leaving the continent.
What is really interesting is that you have these twenty to forty-feet
long shipping containers at the ports of exports.35 Each one can carry
twenty tons of cargo, and you have eighteen tons of shells, stones, dried
seaweed, cashew nuts: legal products that are leaving the continent.36
But the shippers are unwittingly having two tons of ivory tusks in those
same shipments and leaving for sea. Now that we know where these
pressure points are, and how the profiteers are getting the products out of
the continent, we really think we can put some pressure on the shipping
companies to do more inspections, and also secure government
resources, including investment from the United States government, to
stop those products from leaving those points of exit in Africa.
Back to my original theory from 1989, if we can stop the product
from leaving Africa, it cannot get to market. We hope that this will stop
poachers from killing elephants because they will know that they cannot
sell their product on the open market in the end; therefore, they cannot
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37
05/08/2015 09:54:41
Id. at 14–15.
Clinton Global Initiative, CLINTON FOUND., http://tinyurl.com/prd5whv (last visited
Mar. 20, 2015).
39
Press Release, White House, Establishment of the Advisory Council on Wildlife
Trafficking (Sept. 9, 2013), available at http://tinyurl.com/lf9qfp7.
40
See S.B. 674/H.B. 837: Prohibiting the Sale of Ivory and Rhino Horn, BORN FREE
USA, http://tinyurl.com/pdspllh (last visited Mar. 20, 2015).
38
profit from the sale of ivory. When we are talking about the bush price
for ivory, which is ultimately marked up 500 percent by the first point of
sale to the collectors in Africa, and then 4000 percent by the time it
reaches the market in China, we are talking about a price mark-up that
has such a differential that it is no longer going to be of value to the
people on the demand side to try to get that product out because it is too
difficult to do so.37 They will stop moving in the ivory industry because
it is no longer profitable, and that will help elephants. We are trying to
look at this in innovative ways and, frankly, it has been hugely exciting
for me to do this work, which just came out in April and August of 2014.
Terrorist involvement changes the discussion. It is no longer about
animal activists versus wildlife traders. It is about national security and
instability in Africa: places that can’t handle any additional instability,
given the types of issues that they are currently facing. We have had
members of the United States Congress, both in the House and the
Senate, look at these reports, and have hearings on this issue, which had
really never happened before. In addition, the Clinton Global Initiative38
and the President’s Advisory Council on Wildlife Trafficking39 are
looking in-depth into the ivory trade in a way they really have not done
in the last twenty years. When you can get reports like these in front of
the Secretary of State, and indeed in front of the President, you are going
to have a much better chance of changing the dialogue, and reframing
the debate in such a way that it will work to our favor.
Obviously, elephant poaching is a huge passion for me. What
astounds me is the pressure and impetus behind the talk about elephant
poaching, which has not happened in twenty years—whereas a lot of
other species are not being talked about in the same way. You have an
elephant poaching crisis dominating the headlines––it is on CNN, it is
on Al Jazeera America––it is really getting some amazing play, which is
really great for the issue. But there are other species, such as rhinos, that
are incredibly imperiled across Africa. Although we may have 423,000
African elephants, we only have 25,000 black and white rhinos left on
the African continent.40 Rhinos are being poached en masse for their
horn. At one time, rhino horns were being traded in Yemen, and places
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41
Adam M. Roberts, The Global Wildlife Trade: An International Disgrace, BORN FREE
USA (Jan. 15, 2009), http://tinyurl.com/oco3c65.
42
Katherine Ellis, Tackling the Demand for Rhino Horn, SAVE RHINO INT’L,
http://tinyurl.com/kkwfw8n (last visited Mar. 20, 2015).
43
See Jonathan Watts, ‘Cure for Cancer’ Rumour Killed Off Vietnam’s Rhinos,
GUARDIAN (Nov. 25, 2011, 7:54 AM), http://tinyurl.com/oy2epqz.
44
S.B. 674/H.B. 837: Prohibiting the Sale of Ivory and Rhino Horn, supra note 40.
45
Diane Toomey, How Tiger Farming in China Threatens World’s Tigers, YALE ENV’T
360 (Jan. 20, 2015), http://tinyurl.com/nj5dou4.
46
Will Travers, Leonardo DiCaprio and Ralph Waldo Emerson, BORN FREE USA (Sept.
29, 2010), http://tinyurl.com/k7cmpjd.
47
See More Tigers in American Backyards than in the Wild, WWF (July 29, 2014),
http://tinyurl.com/qf69shl.
48
Preparing for the 17th Meeting of the Conference of Parties to CITES, U.S. FISH &
WILDLIFE SERVICE, http://tinyurl.com/mlq9v45 (last visited Mar. 20, 2015).
like that, to be used in traditional dagger handles.41 But now,
increasingly, the horns are going to Vietnam as a folk remedy to cure
cancer.42 Poor Vietnamese families are saving all their money to buy
rhino horn to cure Grandma’s cancer, and it’s a sham.43 Rhino horn, like
human fingernails, is made of keratin. Last year, more than 1000 rhinos
were killed in South Africa44—the highest number on record in the last
six or seven years since we have been looking at poaching figures.
Again, we have a demand coming from Asia that is driving poaching
and is impacting a species in Africa. We have to talk about rhinos in the
same way that we talk about elephants and the international trade in
ivory.
Meanwhile, tiger populations are dwindling in the wild, as well. It
is estimated that 3200 tigers remain in their entire wild habitat, whereas
100 years ago, there were 100,000.45 From 100,000 to just 3200 in one
century, driven by poaching, in order to supply an Asian demand for
tiger bone and tiger organs, including the penis, skins, claws, teeth,
etc.;46 it is a really dramatic trade. It is the Asian demand that is driving
the poaching in places like India, which is their last stronghold. It is
embarrassing for me to talk about this issue in other forums overseas
because we have more tigers in America in captivity than remain in the
entire wild throughout the world.47 Obviously, there is something askew
in this situation. I think we have to keep talking about wildlife
trafficking in relation to all of these threatened and endangered species if
we want to have a measurable impact on trying to save them for future
generations. That, in a nutshell, is the better part of a quarter-of-acentury of elephant ivory trafficking history and what is being done
about it today.
The next CITES meeting is in 2016 in South Africa.48 This leaves
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me very fearful for elephants and rhinos, for South Africa has made no
bones about the fact that it wants to reopen legal trade in rhino horn,49
using rhinos from captive breeding facilities. There they are essentially
farmed and the horns are cut off to be sold into the trade. I provide that
history because we know full well that breeding tigers in China, to
supply the demand for tiger bone in China, does not do anything to
reduce the poaching of wild tigers to supply that same trade.50 It actually
makes it worse because it stimulates demand, and that stimulates
poaching. The same holds true for rhino horn. The more we say that we
are just selling rhino horn from a captive farm facility, the more you are
going to have people poaching rhinos to get those rhino horns illegally
laundered in with the legal shipment and profit from the decimation of a
species. It is incumbent upon all of us to keep a vigilant eye on this
trade, and find positive ways in the future to impact it for the better.
QUESTIONS & ANSWERS
See John R. Platt, As Rhino Poaching Surges, South Africa Proposes Legalized Trade
in Precious Horns, SCI. AM. (July 12, 2013), http://tinyurl.com/mmnu7rj.
50
Toomey, supra note 45.
51
Cyber Security, PALANTIR, http://tinyurl.com/npcvqyw (last visited Mar. 20, 2015).
05/08/2015 09:54:41
49
JESSICA BELL: Thank you for your talk. I am from Michigan State
University. I am very interested in conservation crime. I was wondering
if you could speak to some of the methodology you used to gather data
on this illegal trade. Also, my main interest is in Thailand, where, as you
probably know, the sale of ivory from captive elephants is legal. What
are your thoughts on why legal domestic ivory markets still persist?
ADAM ROBERTS: I would say two things in a cursory way, and
perhaps we can talk at a later date more in-depth about the type of work
you are interested in doing. In terms of methodology for collecting the
information, the short answer is that I didn’t do any of it. I just turned it
all over to the defense analysts at C4ADS and let them run away because
they have the expertise to do that kind of work. When it comes to
tracking shipping containers and looking at who is funding poaching
operations, it was all them using both open source data that’s available
through Palantir,51 and also digging in with their defense contacts that
we did not have, to identify as much information as they could bring into
the system.
One thing I am really proud of about Born Free as an organization
is that we liaise with the groups on the ground, all across Africa and
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52
05/08/2015 09:54:41
Wildlife Law Enforcement, LAGA, http://www.laga-enforcement.org/ (last visited
Mar. 20, 2015).
53
See Dan Levin, Prime Minister Promises to End Thailand’s Ivory Trade, N.Y. TIMES
(Mar. 3, 2013), http://tinyurl.com/d4mc7ne.
54
See Charlie Campbell, Thai PM Yingluck Dissolves Parliament, but Tensions Remain
High, TIME (Dec. 9, 2013, 3:27 AM), http://tinyurl.com/pyuawwk.
55
See Adam Welz, Amid Elephant Slaughter, Ivory Trade in U.S. Continues, YALE
ENV’T 360 (Feb. 13, 2014), http://tinyurl.com/npnocet.
56
A.B. 3128, 216th Leg., 1st Annual Sess. (N.J. 2014); see also A.B. 8824, 237th Leg.
Sess. (N.Y. 2013).
throughout Asia, to try to do the work and find out the information.
Obviously, sitting at a desk in Washington, D.C., or in a hotel room in
Los Angeles, I have limited resources. But there are groups better
resources, for example, the Last Great Ape Organization (LAGA) based
out of Cameroon.52 LAGA’s primary focus involves looking for these
traders in West and Central Africa and working with law enforcement to
identify and bust them. So one of the things we try to do is to connect
the two: the guys on the ground who have the intelligence about who are
the poachers, who are the bush meat traders, and put them together with
the researchers who have the open-source data about who is moving the
product, to create something we can really sink our teeth into.
You asked about Thailand. It is interesting that the last CITES
meeting was held in Bangkok and the Prime Minister said,
unequivocally, that they were going to look at these issues, knowing that
Thailand’s markets are incredibly damaging.53 But nothing came of it. It
is not surprising. I do not want to say it is corruption because I am not
sure that is the right word with respect to Thailand. But it could be
corruption; it could be a lack of willingness at the highest levels of
government; it could be a difficulty in the government maintaining
power, which is a real problem in Thailand. The government is
constantly on the hot-seat, and the parliament is dissolving, so that
makes it hard to have any measurable impact.54
Jessica, you hit the nail on the head in terms of identifying these
domestic ivory markets as being hugely problematic. We have domestic
ivory markets in the United States that are causing problems.55 New
York and New Jersey have passed great laws recently to stop the sale of
elephant ivory.56 These domestic ivory markets in China, Japan, the
United States, Botswana, Namibia, South Africa, and Thailand create the
demand that drives the trade. I think Thailand is definitely a pressure
point and we need to look into it.
MARY SCUDELLARO: What can we do as individuals?
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ADAM ROBERTS: I am very glad you asked that. Every time I give a
talk, I always say the same thing. It is hugely important. What happens
today in this room is not important; what happens tomorrow when you
get home, and what you do as a result, is what matters. It is great that we
all get together and share this knowledge. Sometimes, we get passionate
about the work we are doing. We have seen images that make us
appalled and we want to do something about it. We all go back to work
tomorrow, maybe at a law firm, maybe at my job, and we do not get
back into the work that we said we would do, and were so inspired to do.
It is incredibly important that we act.
The first thing: I encourage you all to go to bornfreeusa.org and
sign up on our Action Alert Team. Do it for all the animal groups doing
international advocacy work. Every week, you will find ways you can
send letters to Congress. If there is something happening in Connecticut,
you can write to your state legislators. We will keep you informed of
ways you can act. Right now, if nothing else, I would write letters to
your state and federal elected officials to demand that, in the next
legislative session, they do all that they can to shut down the ivory trade
domestically to not allow any ivory, whether it is in a musical instrument
or an antique store to be sold, because those are laundering opportunities
for illegal ivory. Also, America’s commitment to save elephants in the
wild must be fully funded.
I talked about all the things that we think need to happen. Now, we
need the United States government to appropriate funds during the
international appropriations process to have better x-ray technology at
Addis Ababa Airport; to have more sniffer dogs at the ports in
Mombasa; to make sure ivory is not leaving the country. That is a
measurable way the United States government can help: by funding both
on-the-ground wildlife law enforcement in the countries of origin for
these elephants, and also for the exporting parties, to make sure they are
not contributing to the ivory trade. A simple communication from you to
a member of Congress will be taken as if it is from a hundred of your
colleagues, because they know there are other people who feel the way
you do, but haven’t taken the time to write. I encourage you to do that
and then just find out more about our work on a regular basis.
MARTA DANIELS: I come from the Deep River, Connecticut area.
We had a very special relationship with ivory in the past. My question is
about your CITES reference to the level-one and level-two
categorization. I always understood it to represent the degree of physical
endangerment in terms of numbers, but you cast it a little bit differently.
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58
CITES, supra note 5, at Art. II(1).
Id. at Art. III(3)(c).
05/08/2015 09:54:41
57
Is it possible to get the elephant back to category one? And, what is the
impediment to doing it?
ADAM ROBERTS: The simplest way to put it is this: CITES is not an
endangered species agreement, and CITES Appendices I, II, and III are
not endangered species listings. It has nothing to do with endangered
species listings. It is a trade treaty. It just happens to be a trade treaty
about wildlife. Species that are put on Appendix I are species that are
threatened with extinction and may be impacted by trade.57 A species
that is put on Appendix I cannot have trade that is primarily
commercial.58 You can have a species on Appendix I that is going alive
to circuses or zoos, because they are not considered primarily
commercial. Trophy hunting is not considered primarily commercial.
You can have a quota for killing Appendix I animals and bringing the
trophies out of the country. It is not an endangered species listing, but a
mechanism by which there is regulation of international trade for those
species. So, right now, you’ve got a situation where elephants in Africa
are split listed: some on Appendix I and some on Appendix II.
In regard to the second part of your question, it is rather tricky and,
unfortunately, it is political in nature. The short answer is that I do not
think we are going to have any luck in moving all of Africa’s elephants
back onto Appendix I. It is a political hot potato. It is incredibly
damaging for Africa when we have a fight over a listing, down-listing;
allowing trade, not allowing trade. It puts the continent at great peril in
the political and diplomatic arena to have that dispute. The best thing we
hope for is that there are no proposals to allow further ivory trade as we
go forward. Any proposal that we put forward, or ask a friendly party to
put forward to put all elephants back on Appendix I, is going to make
their lives extremely difficult—not only leading up to the conference,
but during the meeting itself. Any proposal to down-list further or to
allow further ivory trade is going to bring contention to the region.
Politically, it is not the best answer. The only thing we can hope for is
that no further proposals to trade in ivory get tabled at future CITES
meetings, and, essentially, there is just a zero quota on international
trade itself.
Thank you all!
05/08/2015 09:54:41
REVKIN FINAL (Do Not Delete)
4/27/2015 6:07 PM
THE ROLE OF COMMUNICATION INNOVATIONS IN
STEMMING—AND WORSENING—WILDLIFE TRAFFICKING
Andrew Revkin*
It is a privilege to be here. My focus is on communication. I am the
Senior Fellow for Environmental Understanding at Pace University. I am
not a journalism professor, not even a communications professor,
although all the courses I teach relate to communication. I try to
understand how to make information matter. I spent thirty years just as a
journalist and I realized that there are big limits to what you can do with
journalism and with advocacy. And there are all these tools. Having an
effective law only works if you have public education and governance.
So what is the one thing that knits all of these areas? The ability of
the last speaker, Adam Roberts, to come here virtually is one example.1
Twitter is another. You will see some tweets I made earlier to try to
expand today’s meeting out of the room. We live in a time when it is
unbelievably possible, as it has never been previously possible, to have a
global conversation about these globalizing pipelines. Think about it. All
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* Andrew Revkin has been writing about environmental sustainability for more than
three decades, from the Amazon to the White House to the North Pole, mainly for The New
York Times. He has won the top awards in science journalism multiple times, along with a
Guggenheim Fellowship. As the Senior Fellow for Environmental Understanding at Pace
University, he teaches courses in blogging, environmental communication, and documentary
film. He has written acclaimed books on global warming, the changing Arctic and the assault
on the Amazon rain forest, as well as three book chapters on science communication. See
ANDREW REVKIN, THE BURNING SEASON: THE MURDER OF CHICO MENDES AND THE FIGHT
FOR THE AMAZON RAIN FOREST (Island Press 2004) (1990); ANDREW REVKIN, GLOBAL
WARMING: UNDERSTAND THE FORECAST (1992); ANDREW C. REVKIN, THE NORTH POLE
WAS HERE: PUZZLES AND PERILS AT THE TOP OF THE WORLD (2006). Drawing on his
experience with his New York Times blog, Dot Earth, which Time Magazine named one of the
top twenty-five blogs in 2013, Revkin speaks to audiences around the world about the power
of the Web to foster progress. See Andrew Revkin, Dot Earth, N.Y. TIMES,
http://tinyurl.com/lbjnpf4 (last visited Feb. 28, 2015).
Revkin’s presentation was given on November 8, 2014 at Quinnipiac University
School of Law and can be viewed at Quinnipiac Law Review—2014 Symposium—Andrew
Revkin, YOUTUBE (Nov. 21, 2014), http://tinyurl.com/krjg5eh.
1
See Quinnipiac Law Review—2014 Symposium—Adam Roberts, YOUTUBE (Nov. 21,
2014), http://tinyurl.com/l3rgalk.
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the conservation issues discussed today involve multiple countries,
languages, and cultures. We have the ability to transcend these distances
and even languages with these tools.
But, I always put an asterisk next to my answer “yes” to the
question of whether the Internet and social media can save wildlife. It
only happens if you go into this arena with intentionality. These same
communication tools can be used in counter-productive ways, which can
affect elephant conservation, human rights, or the like.
My passion for conservation began before I was a journalist. Right
after college, I spent time on a sailboat traveling two-thirds of the way
around the world.2 On my sailing travels in 1980, we arrived in Djibouti,
in East Africa, after a very long voyage across the Indian Ocean. There I
took this picture of leopard skins being sold on the street corner.
See Andrew C. Revkin, What Links a Sinking Boat and Rising CO2?, N.Y. TIMES
(Nov. 19, 2011), http://tinyurl.com/o8o9wxl.
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2
Although I got my undergraduate degree in biology in 1978, my
voyage to Djibouti was the first time I really thought about the word
“unsustainable.” There was something about the pile of leopard skins,
which were mostly being sold to French Foreign Legion soldiers
stationed in Djibouti, that felt profoundly unsustainable. Now fast
forward to today. I have been writing about issues related to biological
conservation for many decades, and the twenty-first century issues are
everything from shark fins to bush meat.
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A lot of what has been discussed today has been, “Oh woe is me,
those people in peri-Saharan Africa, they need to fix their problems. Oh
those Chinese, they need to stop their appetite.” What we forget,
however, is that we had our own little ecocide in America.3 For example,
look at this picture of bison skulls. The skulls were turned into carbon
black, which is used in ink.4 They were gathered from all over the Great
Plains and brought to the eastern United States to be turned into pigment
for ink. People used to fully use every animal part, and left nothing to
waste.
The passenger pigeon is the ultimate example of an ecocide that
harmed billions of birds. There is a book now, actually a film, called
From Billions to None.6 Humans have this unbelievable capacity to
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3
See generally Gilbert King, Where the Buffalo No Longer Roamed, SMITHSONIAN
(July 17, 2012), http://tinyurl.com/ol5pm3z (explaining the decimation of the American bison
in the eighteenth century).
4
See generally Describing History of Bone Black Pigments, EBONEX CORP.,
http://www.ebonex.com/hist.htm (last visited Feb. 22, 2015).
5
Bison Skull Pile, WIKIMEDIA COMMONS, http://tinyurl.com/qdl9obe (last visited
Feb. 22, 2015).
6
FROM BILLIONS TO NONE: THE PASSENGER PIGEON’S FLIGHT TO EXTINCTION
(Waubansee Productions 2014); JOEL GREENBERG, A FEATHERED RIVER ACROSS THE SKY:
THE PASSENGER PIGEON’S FLIGHT TO EXTINCTION (2014); see generally Rick Kogan, From
Billions to Zero: Story of Pigeon Extinction, CHI. TRIB. (Jan. 17, 2014, 12:57 PM),
Photograph from the mid-1870s of a pile of American
bison skulls waiting to be ground for fertilizer. 5
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destroy, even ridiculously, monumentally, bountiful amounts of critters.
This addresses the fact that communication is not always your friend,
especially if you are a passenger pigeon. It was the one hundredth
anniversary of their extinction this year.7 Carl Zimmer wrote a great
piece about it, and he had a great anecdote about it that I wrote about on
my blog: “The telegraph allowed word to go out: The pigeons are
here[.]”8 People used to send messages and then trainloads of people
would come out to massacre pigeons when they were roosting in a
particular area. So that was the Twitter of the time—the telegraph—and
it amplified and accelerated the slaughter. Anyone who thinks this is just
sort of an Internet phenomenon is missing history.
In the year 2000 my friend Keith Kloor, who was an editor at
Audubon Magazine, wrote about how eBay and other online selling tools
were being co-opted by wildlife poachers and traffickers in ways that
were really disturbing. This is an interview he did with a Fish and
Wildlife Service agent:
“Before the Internet, you had to be in a fairly close community of dealers to
obtain stuff like rhinoceros horns,” Mendelsohn says. “Now you can go
searching for it at a keystroke.” Today he and many Fish and Wildlife Service
agents actively monitor eBay and 35 other on-line auction sites. A host of
federal laws bar selling most wildlife across interstate boundaries, as well as
trafficking in endangered-species parts, including antique ones (there are some
exceptions for ivory). But many collectors don’t realize that the same laws
apply in cyberspace. “It concerns me that people see these products advertised
9
on the Internet and think that it’s okay to purchase them,” Mendelsohn says.
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http://tinyurl.com/q8mozb9 (discussing GREENBERG, supra).
7
See Carl Zimmer, Century After Extinction, Passenger Pigeons Remain Iconic—And
Scientists Hope to Bring Them Back, NAT’L GEOGRAPHIC (Aug. 31, 2014),
http://tinyurl.com/p7z99qc.
8
Andrew C. Revkin, The Role of Social Media in Wiping Out Passenger Pigeons, and
Conserving Species Now, N.Y. TIMES (Sept. 1, 2014, 8:15 PM), http://tinyurl.com/lqxua5q
(internal quotation marks omitted).
9
Keith Kloor, Cybercrime: Rare Frozen Tiger Cub!!! Wow!!! Take a Look!!!,
AUDUBON, May–June 2000, available at http://tinyurl.com/opme3ux; see also Bob Tedeschi,
For Wildlife, the Web is a Treacherous Place, N.Y. TIMES (Aug. 22, 2005),
http://tinyurl.com/myy3ngk (“IS the Internet hastening the demise of the African elephant?
According to one advocacy group for endangered species, it is. And the group says the
growing online trade in live animals and animal parts is threatening scores of other wild
creatures as well, from the cotton-top tamarin of Colombia, a monkey whose numbers in the
wild have dwindled to fewer than 2,500, to the Tibetan antelope, whose numbers in the last
half-century have declined to about 75,000, from more than 500,000.”).
In 2005, the story about the Internet was still the downside because
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10
05/08/2015 09:54:41
Help: Animals and Wildlife Products Policy, EBAY, http://tinyurl.com/9swr8o (last
visited Feb. 28, 2015).
11
Find an Exotic Animal, EXOTIC ANIMALS FOR SALE, http://tinyurl.com/q82pa96 (last
visited Feb. 28, 2015).
12
Animals for Sale, EXOTIC ANIMALS FOR SALE, http://tinyurl.com/qa4dejx (last visited
Feb. 28, 2015).
13
Jim Edwards, The Inventor of the Twitter Hashtag Explains Why He Didn’t Patent It,
BUS. INSIDER (Nov. 21, 2013, 10:21 AM), http://tinyurl.com/l9484pf.
14
See Bio: Chris Messina, Designer and Open Web Advocate, FACTORY JOE,
http://tinyurl.com/obw8m8d (last visited Feb. 28, 2015).
it was a place to facilitate a lot of illegal activities. Then things began to
change. If you go on eBay right now, it has a list of objects and animals
it restricts sellers from listing.10 But it is largely self-policed by the
buyers and sellers. There is no eBay police, but that can be a good thing
in the end. If you have tens of millions of eyeballs watching, and if they
are educated about these issues, that can go a long way toward stemming
bad practices.
I found a website the other day while searching the Internet that
sells exotic animals, which is not illegal, because a lot of them are
farmed animals. Here are some quotes from the website: “I’m looking
for a squirrel monkey;” “Looking for a finger monkey, marmoset, have
wanted one for many years.”11 The appetite is there. This was a posting
made yesterday from someone named “Jessica”: “I have ten female
kinkajous [in Florida].”12 This is an example of the, quote-unquote,
legitimate legal animal trade of animals bred in captivity. If this is the
overt stuff, you know you can go on Google to find a lot of illicit
animals as well. That is the downside.
There are lots of downsides to the Internet, one of which is social
media. Today, we are constantly bathed in too much information. I, for
one, feel I have three or four fire hoses pointed at me twenty-four-seven
because I am a blogger for The New York Times. The information ranges
from climate change, energy solutions, economics, and conservation
issues. I am buffeted with information.
One must think, “Why should I go on Twitter when I already have all
this stuff?” I think Twitter is a marvelous tool for convening across
countries. The same kind of convening power that is in this room. The
hashtag is your friend. It was an invention. That is what is great about
the Internet medium. Inventions are not just technology anymore. For
example, the hasthtag was created by Chris Messina13 who worked at the
company that invented the Firefox web browser.14 In 2007, he proposed
this norm of using a pound sign ahead of a word, phrase, or code as a
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way to have a conversation amid all the bustling noise that the Internet
creates.15 Now, it has spread to become a wonderful way to isolate
specific topics and make sense out of all that noise. This is a global map
of Twitter activity.16 It looks like a morass of communication and
information—that is all the Internet noise.
15
05/08/2015 09:54:41
Edwards, supra note 13. Here is his famous, first-ever tweet using a hashtag: “how do
you feel about using # (pound) for groups. As in #barcamp [msg]?” Id.
16
Real-time Local Twitter Trends, TRENDSMAP, http://trendsmap.com/ (last visited Feb.
28, 2015).
17
The name of the course is Blogging a Better Planet. Courses: Pace Academy for
Applied Environmental Studies, PACE U., http://www.pace.edu/paaes/courses (last visited Feb.
28, 2015) (“Students will dive into the blogosphere and World Wide Web, exploring how this
evolving, interactive means of sharing and shaping ideas can build a brand, create a
collaborative globe-spanning community, challenge traditional media, or spark the kinds of
innovations that could make the world a better place. They will also learn how blogs can
create insular ideological bubbles, foment hatred, and spread myths and falsehoods. They will
learn how to be online communication innovators tipping the balance toward progress.”).
18
Bird
Class
Tweets Sightings,
UCONN TODAY
(Oct. 22, 2010),
http://tinyurl.com/oq7fwnn (quoting Margaret Rubega, Associate Professor of Ecology and
Evolutionary Biology and Connecticut State Ornithologist: “‘I decided to use Twitter for an
assignment because birds are literally everywhere. Students can see the bird life around them
Hashtags give you a signal that isolates specific topics and
conversations. Here are some examples: my Pace blogging course17 has
the hashtags educational technology, #edtech, and agriculture, #agchat,
which are weekly, daily, or twenty-four-seven discussions about how to
obtain the best practices for agriculture. Another example, #environed, is
environment in the classroom; #wildlifetrafficking is obvious for what it
represents.
The hashtag #birdclass was created by Margaret Rubega, a great
biology professor at the University of Connecticut, who requires her bird
biology class to tweet when they see birds doing something interesting
when they are out of the classroom.18 That is funny, tweeting about bird
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and connect it to what they’ve learned[.]’”).
19
Ask Nestle to Give Rainforests a Break, GREENPEACE, http://tinyurl.com/8xd8zmf
(last visited Feb. 28, 2015).
20
Sara Kimberly, Greenpeace Attacks Nestlé with ‘Kit Kat’ Viral, MARKETING MAG.
(Mar. 18, 2010), http://tinyurl.com/ojyuua4.
21
See Dana MacLean, Palm Oil Fuels Indonesia Deforestation, AL JAZEERA ENGLISH
(Apr. 4, 2014, 11:11 AM), http://tinyurl.com/k83j2bn.
behavior. They use that hashtag as a brand so their learning is spilling
out of the classroom. All of my courses at Pace have a hashtag. Birdclass
has become a go-to place for people who have seen an unusual bird or
bird behavior. For example, people will tweet “Hey this looks like a
golden eagle, but I don’t know if they are in Arizona,” and include the
#birdclass hashtag. Then a person from the class, or someone who is
interested in bird behavior, will respond to the hashtag and answer the
question posed in the tweet. So it’s a great organization tool.
I tweeted earlier today from Quinnipiac School of Law. For
example, our earlier speaker, Michael Harris, noted that for every one
wild African lion, there are about eighty in captivity in the United States.
I used Twitter to spread the discussion beyond the physical lecture hall.
Hashtags are a way to spread information peer-to-peer that does not
necessarily require The New York Times. The newspapers of this world
are shrinking. If we, as communities, do not fill those voids with
pertinent and relevant information, they will be filled either by irrelevant
noise or misinformation.
Some nongovernmental organizations (NGOs) are doing great work
at both ends of the pipeline. Conservation is not all about illicit animal
trafficking; corporate practices endanger species in other ways. For
example, Greenpeace has very effective programs against companies
who use palm oil. This forces corporations to think more carefully about
where they get their palm oil because the process for getting palm oil is
endangering the habitat of orangutans in the wild.19 It’s great to have
orangutans in zoos but it would be better to have them in Borneo.
Greenpeace stresses the fact that if you do not care where your KitKat
palm oil came from, then you are facilitating the extinction of
orangutans in the wild. Greenpeace, and other organizations have been
very good at informing consumers. In addition, a few years ago
Greenpeace did a campaign pressing Nestlé, which makes a lot of candy
using palm oil, to start sourcing its palm oil more responsibly.20
Not only were Greenpeace and its Indonesian and Malaysian
partners exposing illegal farming practices in those countries,21 they
were also working with consumers to say, “When you eat a KitKat bar,
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you are essentially eating an orangutan.” Corporate social responsibility
is something that can happen, but only with certain kinds of pressure. It
can happen with litigation, but most will come from consumer-led
pressure with ground-truthing at the other end.
Photo by Jiri Rezac/Greenpeace22
Greenpeace protestors outside of Nestlé’s Croydon headquarters. Id.
What Would Tigers and Pandas Say on Facebook?, WWF-TUMBLER (Apr. 28, 2011,
7:55 PM), http://tinyurl.com/pfzytdh.
23
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22
There are other great ways to use Internet communication tools. A
couple of years ago, there was a college student from Halifax, Nova
Scotia who, as a student project, created a piece of artwork to foster
understanding of endangered species issues. The student project was a
Facebook post. The student created what looked like a normal Facebook
conversation, except the conversation was between endangered species
instead of humans.23
It was a very successful Internet campaign, receiving thousands of
likes and reposts, and it all started with a college student, Isaac Frescia,
in Halifax. We are not talking about CBS News or the Comedy Channel.
If a person has a good idea, and a creative way to convey information,
they can really make a difference.
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Isaac Frescia, Halifax, Canada24
24
25
Id.
Policy and Practice Clinic, PACE U., http://tinyurl.com/mhqugng (last visited Feb. 28,
26
Nadya Hall, Keep Circus Elephants Out of New York: The Video, EPOLICYPACE,
http://tinyurl.com/nsnelct (last visited Feb. 28, 2015).
27
See, e.g., Andrew C. Revkin, Humanity’s Long Climate and Energy March, N.Y.
05/08/2015 09:54:41
2015).
My students at Pace University can attend a new course that is an
environmental policy clinic.25 There they work on real world issues with
partners. For example, my students partnered up with an NGO in New
York trying to bar the use of elephants in traveling circuses. The mantra
of our campaign was: you cannot have a tamed elephant without abusing
it.26 Change is not instantaneous, but you try to raise awareness, and
generation-by-generation you can make a difference. I really like the
idea that everyone can get involved. In my blog, I have written about
this issue a lot.27
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There is a wonderful photographer, Nick Brandt, who has taken
these extraordinary portraits of elephants, which are very different from
things you normally see.28 I featured his work in my blog one day.29 I
05/08/2015 09:54:41
TIMES (Sept. 22, 2014, 12:46 PM), http://tinyurl.com/lgoqayc.
28
See Portfolios, NICK BRANDT, http://tinyurl.com/pu98ble (last visited Feb. 28, 2015).
29
Andrew Revkin, Around One Park, a Fight to Blunt the Great Elephant Slaughter,
N.Y. TIMES (Sept. 24, 2012, 7:45 AM), http://tinyurl.com/k36oaov.
This elephant was named Igor. Nick Brandt took this photograph in Amboseli
National Park, in Kenya, in 2007. In 2009, Igor was slaughtered by poachers.
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realized, I have to make sure that people who do not speak English can
read this as well, so I had a Chinese graduate student at Pace, who is an
English-Chinese translator, translate my piece into Chinese.30 I posted it
as a separate piece and sent it to people who could make sure it got
around in China, for those in China who actually have access to The New
York Times, of course. If there isn’t home-grown work in China, in the
areas that are the demand source for a lot of the products coming from
endangered species, we are not going to have success because a lot of
people aren’t going to read The New York Times in Beijing.
In Vietnam, there are growing efforts to use YouTube and other
channels in Vietnamese by Vietnamese NGOs. An example is
Envietnam.org, which is a hybrid international and Vietnamese
environmental group. These are shots from a video that they posted,
trying to make the connection between the rhino “drug” and where it
comes from.31
The video is horrific. This is a living rhino, not a dead one.
Andrew Revkin, බᅒ࿘彡, ᶨ⛢㉝⇞Ⰸ㛨⣏尉䘬㇀⼡, N.Y. TIMES (Oct. 3, 2012,
11:24 AM), http://tinyurl.com/kwewpgb (translation by Yan Zhang).
31
Sickening Truth of Illegal Rhino Horn Trade, YOUTUBE (Nov. 5, 2013),
http://tinyurl.com/mwlumk3.
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30
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32
“Tools of the Trade” Starring Jackie Chan, YOUTUBE (Feb. 13, 2014),
http://tinyurl.com/ommwhq7.
33
Yao Ming Uses His Influence as an Animal Activist, CCTV AMERICA (Nov. 22, 2014),
http://tinyurl.com/p94pbxc.
34
See Bettina Wassener, China Says No More Shark Fin Soup at State Banquets, N.Y.
TIMES (July 3, 2012), http://tinyurl.com/q7pr9db.
35
New Report Finds Shark Fin Demand Down, Awareness Up, WILDAID (Aug. 6,
2014), http://tinyurl.com/n5eyr3y.
36
See, e.g., Andrew C. Revkin, Shark Fin Soup Off Menu at China’s Official Banquets,
N.Y. TIMES (July 3, 2012, 4:53 PM), http://tinyurl.com/cz99734.
37
Andrew C. Revkin, TV Stars Lead Online Push to Curb China’s Shark Fin Appetite,
N.Y. TIMES (Oct. 18, 2013, 12:41 PM), http://tinyurl.com/qymxc3m.
38
Id.
39
Andrew C. Revkin, A West African Monkey is Extinct, Scientists Say, N.Y. TIMES
(Sept. 12, 2000), http://tinyurl.com/mr3w2o8.
There are wonderful people, like Jackie Chan, who use their
celebrity to make the point about rhino horn as well.32 Of course, Yao
Ming is probably the most famous activist focusing on rhinos, elephants,
and shark fin issues.33 I feature him on my blog a lot. There are,
however, changes underway in China.34 They started the shark fin effort
in the mid-2000s, and the pressure, which has largely come through
social media, has prompted the government to act.35 In China, the middle
class is becoming a more influential force. Not only do they have to
clean up their air pollution, but they are also thinking more seriously
about issues like shark depletion, because the middle class increasingly
cares about the environment and the shark. I wrote several pieces about
the campaign that was underway there.36
I was in Beijing recently, a little over a year ago, and I heard there
was a shark fin event with WildAid,37 a very creative NGO. It works
with people in China, and elsewhere around the world, on endangered
species trading. They really pushed hard on shark fins. Interestingly,
WildAid took surveys before it began its campaign. It found that the
majority of Chinese did not know that shark fin soup had shark in it,
because the name in Chinese does not have the word “shark” in it.38 That
tells you where to start—that the soup has shark in it! Adapting to the
language barrier is vitally important. It is not only translation, but if you
are not scoping out how to make your message culturally meaningful,
you could be yelling into a windstorm and not make any difference.
WildAid’s work is terrific and their approach is really important, and
that transcends just the China question.
To conclude, I have been writing a lot about endangered species. I
was really sad a number of years ago when I had to write the obituary
for a species of monkey.39 In 2006, I had to write an obituary for the
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baiji dolphin;40 it makes you really appreciate where we are in this age,
the Anthropocene, the age of us. There are going to be a lot of losses,
especially in river systems like the Yangtze River where you have a very
constrained ecosystem and so much pressure. What killed the baiji
dolphin species was not overfishing, ship traffic, or pollution. It was all
of the above. It was four hundred million people in that watershed that
were incompatible with the dolphin species, which had been there for
twenty million years.
Part of what I think you are seeing in rapidly developing countries,
like China, is that they are going through the same process the United
States went through in the 1940s, ’50s, and ’60s. We had our ecocide.
For example, in the Hudson River, Americans almost caused the Atlantic
sturgeon to go extinct.41 I recently witnessed an adult sturgeon on the
Hudson River. I was out on an educational program, a couple of years
ago, and they were netting off the Clearwater, the boat Pete Seeger built
with others,42 (in my other life I’m a musician and I’ve played with him
many times). That spectacular moment of renewal came like this:
40
05/08/2015 09:54:41
Andrew C. Revkin, 20 Million Years and a Farewell, N.Y. TIMES (Dec. 17, 2006),
http://tinyurl.com/pfxctkh.
41
See Endangered Shortnose Sturgeon Saved in Hudson River, SCI. DAILY (Feb. 3,
2007), http://tinyurl.com/otzvmxq.
42
See The Clearwater Story, CLEARWATER, http://tinyurl.com/o7j8mgm (last visited
Feb. 28, 2015).
We are at this juncture where a lot of stuff is circling the drain. The
work of everyone—lawyers, communicators, educators, etc.—is vital.
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One little irony that gets at the complexities of all this, as our
Endangered Species Act (ESA) expert, Joe Roman, will understand, is
that when the Clearwater crew netted that baby Atlantic sturgeon, they
violated the ESA. As a result, they lost their permit to do educational
programs and netting in the river. They have their permit back now but
that just shows you how weird this whole arena is.
Thank you very much.
05/08/2015 09:54:41
JOHN THOMAS: Could you tell us how we can help form
partnerships? For example, as you point out, these were great advocates,
great communicators, but they were not aware of the law. I could see we
need lawyers in that circle, or more helpful ways of talking about the
law. Can you talk about examples of partnerships that you think have
been effective? Or how we can form effective partnerships?
ANDREW REVKIN: A group like WildAid is a perfect example
because they have indigenous local entities that they partner with to do
their activism. Greenpeace in South Asia is the same way. But if you are
not on the ground, or at least integrated carefully with the local culture,
it is not going to work very well. If you mean interdisciplinary
partnerships, then that is challenging. It is challenging at The New York
Times to have an interdisciplinary team focus on a story, it’s challenging
at every university I have been to, including the one I work at. It requires
cross-talk and getting people in the same room. For example, I cannot
tell you how many meetings at universities I have been to on
sustainability, and there are no representatives from the business school
present. They need to be in the room! A real lost opportunity. That’s part
of the real world aspects of this. There are other perspectives on whether
you want to sustain a market approach to rhino horns or not. Being a
blogger, I am sort of a middle child. There is a pretty decent argument
by advocates for rhino horn farming. It would be interesting to have the
farming advocates in the room because you could hash-out what you do
agree on, and find resolve.
JOHN THOMAS: I have been toying with the idea of advocating for
the creation of counterfeit rhino horn powder. There are other examples
of this and unless purchasers have DNA testing of it, they will not know.
But I do think the business component of the interdisciplinary team, and
just the notion of economics, and to some extent what Joe Roman talked
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43
05/08/2015 09:54:41
See generally Joe Roman, The Wild American Dream: A Discussion of the Origins and
Evolution of the Endangered Species Act and Its Connections to International Trade and
Human Well-Being, 33 QUINNIPIAC L. REV. 537 (2015).
44
See generally Adam M. Roberts, Detailed Look at the Ivory Trade and the Poaching
of Elephants, 33 QUINNIPIAC L. REV. 567 (2015).
45
Andrew C. Revkin, Wildlife Agency Seeks Educational Use For Crushed Ivory, N.Y.
about earlier43—some utilitarian compromise and trying to figure out
what we can do—as you pointed out, circling the drain.
ANDREW REVKIN: The time element is what gets everybody all
riled up. There are so many things that are going to blink-out in the next
couple of decades, if we do not push hard. There are questions that need
to be resolved. Adam Roberts recognized that the middle class in China
or Vietnam is not going to quickly change its habits.44 There’s a period
of time where the demand is going to be there for a long time. I hear
from market-based people that these stockpiles could work as a buffer,
as a way to feed that demand. I am not saying it is right. I am saying it is
another way to calculate the issue. I do not know the right answer.
Whether you want that, a no harvest approach, or a market approach you
have to have better governance.
KIMBERLY OSBORNE: What can be done to strike a balance
between the need to protect and preserve wildlife and, for example,
hunting in the Congo Basin for meat?
ANDREW REVKIN: There are discussions about farming certain kind
of animals to supply meat to people in urban centers, where a lot of the
middle class want to eat traditional food. So do you farm that too? Not
everyone is going to move to veganism right away. There are interesting
questions about that transitional period. There is also a Yangtze River
sturgeon that is going down the tubes. Can they leap frog past the things
we have done? Is there a way for developing countries, as they do this
fast transition, to other kinds of economy? Or do they have to do the
passenger pigeon thing? These are very interesting questions for the
transitional period.
JESSICA BELL: A survey says that a majority of Chinese people do
not understand that elephants have to be killed for ivory.
ANDREW REVKIN: That is why the work that Jackie Chan and
others do is so important, just getting some basic ideas across is very
important. All of these videos are available in both Chinese and English.
MARTA DANIELS: Do you have an opinion on the U.S. Fish and
Wildlife project to do something with crushed elephants to make an art
project out of the elephant remains?
ANDREW REVKIN: I wrote about that issue.45 There are mixed
05/08/2015 09:54:41
596
4/27/2015 6:07 PM
[Vol. 33:581
feelings, even among artists, about whether that’s perpetuating or
glorifying the material, or unethical or not. I wrote a piece about it where
I presumed fashion artist, Asher Jay,46 a conservation artist, would think
it was a great idea. I wrote in my piece: “I know at least one artist, Asher
Jay,* who’ll almost assuredly come up with an idea. [Boy was I
wrong! . . .]”47 I updated the piece to include a long discussion I had
with her about these wicked issues, which are really prismatic. Whether
it is global warming or conservation issues, I try to facilitate constructive
discussion, so we can find common ground on points that we agree. It’s
a way for me to engage and figure out what the next steps should be.
Had you seen that?
MARTA DANIELS: I know about it and I know about Asher Jay. It
makes no sense to me to try to tell people that you can make art when we
are so upset at people in China for making art from the ivory.
ANDREW REVKIN: I suppose you could hearken back, like the bison
skulls, in an ironic way. The charred skulls became pigment. In a purely
ethical sense, you would say that it is still using a corpse to make art.
There is no way you can get around that. That just gets to the range of
views we will always have on these issues. There is no magic bullet.
Thank you very much. I learned a lot today. Get on Twitter!
05/08/2015 09:54:41
TIMES (Sept. 15, 2014, 2:41 PM), http://tinyurl.com/khzn6dl.
46
See Chris Tackett, Artist Asher Jay Highlights the Ocean Crisis, Poaching and
Conservation Through Art, TREEHUGGER (Apr. 11, 2013), http://tinyurl.com/chyuvkx.
47
Revkin, supra note 45 (alteration in original).
05/08/2015 09:54:41
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