U.S. law enforcement agencies are conducting thousands of investigations using a law that makes violating state wildlife statutes a federal crime, often ensnaring hunters and fishermen for seemingly minor infractions.
Some even suffer stiff federal prison sentences.
Special agents and wildlife inspectors for the U.S. Fish and Wildlife Service conduct about 2,500 investigative cases a year of violations of the Lacey Act, a 1900 law meant to combat illegal trafficking of wildlife. Additional probes of Lacey Act violations also are conducted by other federal agencies, as well as state and local governments.
Though a small percentage of the Lacey Act cases result in prison time, a high percentage plead guilty, consistent with a federal system in which 97 percent of cases end in plea deals.
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But for those imprisoned, ensnared in costly investigations, or who pleaded guilty to reduced charges, the horrible repercussions can have a devastating impact on their livelihoods.
Rock star Ted Nugent, an avid hunter and fisherman, told Newsmax that as a result of federal enforcement actions there are “horror stories serving no meaningful benefit to mankind, wildlife, or law and order whatsoever.”
“Good, decent families’ lives are being turned upside down and ruined by out-of-control jackboot game agencies, particularly USFW punks,” said Nugent, citing U.S. Fish and Wildlife Service actions that he said included “Gestapo-type armed raids on Gibson Guitars, Amish farmers, bottled-water companies,” and “Lacey Act violations like using the No. 1 popular broad-head hunting arrowhead or arrow nocks that light up.”
One source told Newsmax: “I was in prison with men who were incarcerated for violations of the Lacey Act. These were commercial fishermen serving 18-month to three-year sentences for using the wrong net or for some other perceived violation who wound up being prosecuted under federal law.”
In addition to the Lacey Act, the Justice Department’s Environmental and Natural Resources Division prosecutes various environmental crimes, ranging from Endangered Species Act violations to pollution cases. The division concluded a total of 227 environmental criminal cases against individuals and another 77 cases with corporate defendants from Jan. 21, 2009 through Sept. 30, 2012.
Consider the following federal actions taken against sportsmen and small businesses for wildlife infractions:
- Dennis Eugene Rodebaugh, 72, owner of a Colorado outfitting company, was convicted of illegally using salt to lure big game after being charged under the Lacey Act. He was sentenced to 41 months in prison and ordered to pay $37,390 in restitution to the state of Colorado.
- Robert Lumpkin, a commercial fisherman, was charged with four felony counts, including conspiracy to violate the Lacey Act. The indictment said Lumpkin purchased fish that were outside the legal size limit and sold those fish to purchasers in New York, Virginia, and California.
- Abner “Abbie” Schoenwetter was sentenced to eight years in federal prison for a seafood sales transaction. Schoenwetter was accused not of violating U.S. law but of running afoul of three Honduran administrative regulations. After serving time in prison, he was released in 2010 on probation, when he was well into his 60s. He testified before a House Subcommittee on Crime, Terrorism and Homeland Security hearing on over-criminalization in September 2010.
- Steve and Cornelia Joyce Kinder of Owenton, Ky., owners of Kinder Caviar Inc., were charged with violating the Lacey Act for improperly reporting harvested caviar from the waters of the Ohio River. They had to pay a $5,000 fine, serve three year’s probation, and were compelled to forfeit their boat and truck. They possessed a permit to fish in Kentucky but were unaware their nets were pulling from the part of the river managed by Ohio, which bans the practice.
Joyce Kinder testified before a House task force in November that she and her husband “were told that there was no way for us to win,” so her two companies each pleaded guilty to one felony labeling violation.
Even if felony charges of Lacey Act violations are negotiated down to a misdemeanor, a conviction can have a dramatic impact on an individual’s life, says Marc Levin, of the Texas Public Policy Foundation.
“Even if someone receives probation rather than a prison sentence, or a misdemeanor as opposed to a felony, having a conviction on their record makes it more likely they will be ineligible for hundreds of state occupational licenses. It might also mean they have trouble obtaining employment, approvals for housing, and loans,” Levin told Newsmax.
Lacey Act investigations are conducted by a number of federal agencies, including the Park Service, Forest Service, and Fish and Wildlife Service. State wildlife agencies also conduct probes and refer cases to the federal government for prosecution.
The scope of the law has been expanded numerous times since it was passed, and is often used by federal officials to pursue felony prosecutions when penalties under existing environmental laws are deemed insufficient.
The DOJ‘s Environmental Crimes Bulletin said that “many prosecutors are discouraged to learn that there is no felony violation” available in the Endangered Species Act, but suggested that prosecutors had an “impressive array of options, ranging from forfeitures and Lacey Act felony charges to smuggling, conspiracy, and various other fraud charges.”
Sanctions for violating the Lacey Act include up to five years in prison and a maximum fine of $250,000 for individuals. Violators also face lifetime bans depending on the gravity of the infraction.
Republican Sen. Rand Paul of Kentucky is planning to reintroduce a bill he filed in 2012, the Freedom from Over-Criminalization and Unjust Seizures Act, which would remove every reference within the Lacey Act to “foreign law” and would replace criminal penalties with civil fines, Paul’s office told Newsmax.
While critics of Lacey agree violators of environmental laws should be prosecuted and held accountable, many question whether the punishment fits the crime, particularly when budgets are tight and space at federal prisons is even tighter.
The Federal Bureau of Prisons population has increased about 50 percent since 2000, and with 217,800 inmates the system is operating at 38 percent over capacity, according to the Government Accountability Office. The average cost of incarceration is $43,000 per prisoner annually, says the Fortune Society, a prisoner advocacy group.
Even for those who wish to comply with the law, the sheer volume and complexity of the regulatory process is daunting.
“Now there are 4,500 laws and hundreds of thousands of regulations that no one, not even a lawyer, not a judge, could possibly know. Furthermore, there is no central location or website that an average citizen can go to find out what the federal crimes are. And that matters when intent does not have to be proven to be convicted,” Paul Larkin, senior legal research fellow at the Heritage Foundation, told Newsmax.
Sandra Cleva of the U.S. Fish and Wildlife Service says it is difficult to track the exact number of hunting and fishing violations because there is a “different federal nexus for hunting and fishing licenses depending on which agency has authority.”
For example, it is illegal to hunt on federal lands, while some wildlife refuges permit hunting and fishing on a limited basis. The U.S. Park Service does not permit it, but the Bureau of Land Management will make accommodations for hunting in certain circumstances. For those not well versed in federal regulations, the complex network of laws can create confusion.
Larkin, who worked for both the Environmental Protection Agency and the Justice Department during the Reagan administration, said part of the problem is the expansion of the number of agencies with law enforcement authority.
“When you have a large number of agencies, and that includes EPA, NOAA and even at the National Gallery of Art, with law enforcement authority there is a need for these individuals to justify their salaries and their division’s existence. To meet that need, they are always on the lookout for cases to prosecute to meet their quota, and it is easier to go against an individual with little financial backing than to take on a larger company with deep pockets,” Larkin said.
Page Pate, a partner and trial lawyer with Atlanta’s Pate Law Firm, says there has been an increase in the prosecution of fish and game violations as federal agencies have taken a more active role in bringing those cases to prosecutors.
“They might have to justify their budgets or for some other reason, but there does appear to be a drive by the agencies to push prosecutors and Justice to prosecute,” Pate said.
Pate cited the example of one of his clients, a big-game hunter who legally obtained a license to shoot game in Africa but was not successful during his visit. He legally transferred his license to another individual, who had more success hunting and brought the game back to the United States.
Because of a paperwork error in Africa and the fact that transferring a license was a violation of the African nation’s law, his client was charged with a felony under the Lacey Act. The client eventually pleaded guilty to a misdemeanor.
“The Lacey Act does not mandate that you charge an individual with a felony. Prosecutors have the misdemeanor option. This, it seems, represents a chilling use of the felony act,” Pate said.
The potential for additional prosecutions may be exacerbated as states are increasingly toughening penalties for hunting and fishing violations and acting to make those violations felonies.
Elise Traub of the Humane Society of the United States noted a trend on the state level over the past decade to increase penalties and fines for violating hunting and fishing regulations, including poaching and wildlife trafficking.
For example, earlier this year the New Mexico legislature took up a bill that would make trophy poaching a felony punishable by substantial fines and jail time. The bill addresses cases in which poachers kill an animal, claim its head, and simply leave the remaining carcass behind.
Now in New Mexico, the fourth-degree felony could include penalties of 18 months in prison and a fine of up to $5,000.
One high-profile Lacey Act case had nothing to do with hunting or fishing, but stands out as an example of unusual Justice Department zeal, and it raised questions about tactics used by the Fish and Wildlife Service.
The Justice Department used the Lacey Act in a case against Gibson Guitar Corp., saying the company used illegally harvested wood in the production of its highly regarded musical instruments. The company agreed in August 2012 to pay a $300,000 penalty, plus an additional $50,000 payment to the National Fish and Wildlife Foundation to help promote conservation of protected trees.
Henry Juskiewicz, CEO of Gibson, said the raids by federal officials on the company’s production facilities “did not come about because the wood was illegally harvested.”
“Rather, the U.S. government alleges that the wood was imported in violation of an Indian export restriction designed to keep wood finishing work in India,” Juskiewicz wrote in the Huffington Post.
“To make matters worse, although the Indian government certified that the wood was properly and legally exported under this law, the U.S. Fish and Wildlife Service substituted its own opinion and reinterpreted Indian law,” he wrote. “Its analysis suggested that if Gibson would just finish its fingerboards using Indian labor rather than Tennessee craftsmen, there would be no issue.”
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