Government Overreaching With Pernicious Ivory Ban
Is Your Ivory Handled Knife Now Worthless?
More Elephant Poaching, Not Less
On February 11, 2014, the White House and Department of Interior (DOI) declared by executive fiat (links below) that virtually all elephant ivory in the U.S., including ivory handled knives, could no longer be sold, claiming that by doing so they were saving the elephants. "Saving the elephants" is an admirable goal that most all can support, however many experts, and indeed the African ivory producing nations as well, are convinced that not only will this ivory ban not save any elephants, it may increase their slaughter by poachers.
Many believe that the Administration’s new policy is a solution to a problem for which there is no U.S.-centric solution (more on that below). And, the consequence for ivory owners is significant and potentially devastating.
Are Your Ivory handled Knives Now Worthless?
Knife Rights is very concerned about the effect of this new Executive order and DOI policy on members of the knife community who own, buy or sell knives with ivory. The Administration policy would make their ivory and ivory handled knives essentially worthless. The only exceptions that would allow sale of these items are virtually impossible for most owners to comply with, leaving them with no viable recourse.
One can imagine someone bringing in a fine ivory handled knife to the Antiques Roadshow, just to be told it is worth nothing, zero, zilch because of this government edict. Fearing heavy-handed government enforcement, some suppliers, knifemakers and retailers are liquidating their stock of ivory and ivory handled knives. Others are taking a more conservative wait and see approach. Only time will tell who made the best choice.
While the White House and DOI claim they are only prohibiting commercial trade, itself a major problem, many knowledgeable observers are concerned that language in the anticipated final rules could effectively prohibit many or most non-commercial transfers, such that you would not even be able to pass a piece of ivory, or any other object that was comprised in part of ivory, such as an ivory handled knife, to your heirs. Or, that simply sending your ivory handled knife to a scrimshaw artist to be scrimmed could land you in jail.
Trade in ivory is already heavily regulated, but this new policy goes beyond reasonable or practical. Besides outlawing import, export and interstate sales, the normal purview of federal action, they have even gone so far as to outlaw intrastate sales (those wholly within a state’s borders), not normally under federal jurisdiction.
Guilty Until Proven Innocent
While the policy excludes "antique" ivory that is over 100 years old, it also requires proof that the ivory is antique, or that it was imported legally, which doesn’t exist in the vast majority of cases. Worse, the law assumes you are guilty until you prove yourself innocent, essentially making criminals of everyone who owns a piece of ivory. Both of which should be abhorrent to any American.
For most owners of ivory there’s no proof to be had, because any ivory imported prior to the existing import restrictions (1975 for Asian elephant ivory and 1990 for African elephant ivory) did not require any documentation. And, ivory which isn’t antique, but which was imported legally prior to the restrictions, represents the majority of ivory in the U.S. Any ivory imported since the restrictions were in place only required documentation for import, not subsequent sale within the U.S.
So, the DOI knows there is unlikely to be a paper trail by which to prove yourself innocent. Any scientific analysis that can provide ironclad proof of antiquity costs so much that it is beyond the reach of the majority of ivory owners. Pretty much a Catch 22 for ivory owners and those who work or trade in ivory. You can’t win, which appears to be their goal.
What Fifth Amendment?
That such a "taking" of what could easily amount to hundreds of millions of dollars of perfectly legal private property by the government would violate the Fifth Amendment to the Constitution does not seem to have been a concern to this Administration. Although, it must be noted that ironically the Fifth Amendment issue was indeed brought up as being "problematic" by the rabid supporters of this move in the only public, one-sided, sham of a "hearing" that was held leading up to this edict (opposing viewpoints were not welcome or invited). "Problematic," indeed!
It should also be noted that the African ivory producing nations were not consulted in this one-sided process; in fact they were denied an opportunity to be included in development of this policy. Most likely because they understand the unintended consequences could be devastating for their herds and they oppose this foolishness.
The Administration’s New Ivory Policy
The elements of the new policy that are of most concern to knife owners, knifemakers, scrimshaw artists and knife material suppliers, to name but a few impacted, boils down to the following:
- Prohibits commercial import of African elephant ivory, including antiques
- Prohibits commercial export of elephant ivory except for bona fide antiques, certain noncommercial items, and in "exceptional circumstances permitted under the Endangered Species Act," whatever that means.
- "Significantly restricts" domestic resale of elephant ivory. A proposed rule will "reaffirm and clarify that sales across state lines are prohibited, except for bona fide antiques," AND it will also "prohibit sales within a state unless the seller can demonstrate an item was lawfully imported prior to 1990 for African elephants and 1975 for Asian elephants, or under an exemption document for ivory imported since then." "Significantly restricted" equals banned for all practical purposes!
- Clarifies the definition of "antique" to be more than 100 years old and meets other requirements under the Endangered Species Act. "The onus will now fall on the importer, exporter, or seller to demonstrate that an item meets these criteria."
Having already overreached way beyond normal legal and rational bounds, what are the odds that the DOI bureaucrats that will arbitrarily finalize both the rules and the implementation policies will not continue to overreach in doing so? Ivory owners, and Americans who believe in our legal rights under the Constitution, have every right to feel violated and should be very concerned.
Unintended Consequences for Elephants – But Not Unforeseeable
As to the fantasy that this will save even a single elephant, of concern for all of us who do want to see these majestic animals thrive, these rules could well doom many more elephants. As the ban, and related actions, takes effect, it will only increase the value of their ivory tusks on the booming black market, of which the vast majority goes to China. Experts estimate only about 5% of the ivory traded in the U.S is on the black market, all the rest is legal, or was legal until now.
The biggest current impediment to saving elephants is the minimal resources available in Africa and Asia to fight the poachers. And it must be noted that the sale of legally procured ivory is one of the few sources of money to pay for that. If only a portion of the dollars this Administration has spent, and is going to spend, on implementing and enforcing this ludicrous ban was invested in more and better equipped rangers to protect the elephants, there would be a far better return on investment.
As to total bans in general, history shows us they never accomplish much more than increasing criminal activity. We all know how Prohibition turned out. Moreover, nothing done here in the U.S. will affect the booming market for black market ivory in China and Asia, which consumes almost all of it.
That’s where the problem is, not here in the U.S. This ill-considered U.S. policy is a very bad solution for a non-U.S. problem. And, it does so at the considerable expense of honest law-abiding knife owners and others, many of whom could lose their livelihood.
For those interested in reading more on this issue, I recommend the article, "Obama Administration Treats Antique Collectors And Dealers As Criminals: New Ivory Rules Put Elephants At Increased Risk" by Doug Bandow.
Knife Rights is actively engaged in developing an effective response to this new policy. We do not intend to roll over without a fight. Stay tuned for developments.
Here are links to the original announcements by the White House and the DOI:
White House: http://1.usa.gov/1eRWQGH
Department of Interior: http://on.doi.gov/1bqcEBA