Cultural snobbery savages property rights.

By: Doug Bandow

The Obama administration is good at exuding moral righteousness and pandering to the cultural elite. It does both with its plan to effectively ban the sale of all ivory in America, including that purchased or inherited legally years, decades, or even centuries ago. If you can’t prove its age, toss it in the trash or be arrested and have your property confiscated — unless you have a political exemption.

Elephants are being killed for their ivory. It’s a tragedy, but one that has been going on for years. Conservationists are understandably frustrated, but most prefer not to reflect on the failure of their own prohibitionist policies. African governments are incapable of protecting the animals from highly armed poachers, who are responding to the high demand for ivory driven by Asians and especially Chinese. Unable to deal with those responsible for the elephant carnage, environmental extremists have found a more convenient target to attack: Americans who followed the law buying and selling old ivory objects which entered the U.S. lawfully long ago.

Ivory is a beautiful material used by craftsmen around the world to create a plethora of decorative and practical objects — canes, jewelry, beer steins, musical instruments, chess sets, netsukes, religious materials, games, sculptures, and much more. Often ivory supplemented or highlighted other items — keys for pianos, stocks for guns, accents for furniture. At the time people saw nothing wrong with the practice, and the elephants whose tusks provided the necessary raw ivory died long ago.

But advocates of banning the sale of antiques, and even destroying old objets d’art, seem more interested in punishing people who bought and sold ivory legally because they bought and sold ivory, not because doing so would prevent poaching. It is an exercise in moral vanity and political posturing, not practical conservation.

Some ban proponents complain of the difficulty of distinguishing between new and old ivory. Actually, European carving disappeared decades ago: even an untrained government bureaucrat could distinguish between the ivory that filled 19th century Europe and tourist trinkets turned out today. Asian carving continues, but old and new differs in character, subject, wear, age, coloring, quality, and more. Nor do collectors of and dealers in antiques typically seek out poached ivory. Expanded prohibition might make a few activists feel good, but punishing people who followed the law and invested in perfectly legal objects won’t save a single elephant today.

The traditional rules were easy to follow. Ivory imported prior to the completion of an international convention, known as CITES, in 1989 could be sold legally. Antiques with proper certification could be imported. You could be prosecuted for violating the law, but the government had to prove its case — as it normally does when charging people with a crime or other offense.

In mid-February the administration announced that it planned on changing the standards. If you were an average person who followed the law, played by the rules, invested your money in perfectly legal objects available without restriction and requiring no documentation, too bad. Now your collection or inventory is going to be essentially valueless.

Unless you are a member of the cultural elite, such as a museum or other non-profit. Or have enough money to try to comply with the expensive new rules.

The new guidance from the U.S. Fish and Wildlife Service indicates that most every auctioneer, collector, and dealer — and anyone else who has purchased or received something made of ivory — better chat with a lawyer before attempting to sell their ivory possessions. The Feds will be free to scour every antique show, auction, collectibles store, estate sale, flea market, and junk shop confiscating anything that the owner cannot prove to be old. Even if Washington does little to implement its policy, the impact on value will be substantial. Who wants to put something up for sale that could be seized by Uncle Sam if he noticed? Who wants to buy something that might be impossible to sell in the future if the Fish and Wildlife bureaucracy gets serious? You’ll get a pittance for something that cost you thousands or tens of thousands of dollars.

Particularly striking is how the prospective rules are biased against average folks — with a middling collection or inventory of modestly priced items. It’s as if the policy was drafted to have maximum impact on people who don’t spend their time attending cocktail parties with the president.

Point One — no imports even of antiques will be allowed. Presumably no one really believes that today’s highly restricted antiques trade encourages poaching. Shipments must be accompanied by a CITES certificate and are inspected entering the country, which I know from experience. U.S. collectors will be cut off from the rest of the world simply as punishment for being collectors.

However, the rules apparently will exempt “museum and educational specimens.” Only “commercial” sales are restricted. Of course, this exception is about influence, not conservation. Under the administration’s reasoning, non-profit institutions will have a unique right to continue plundering ivory around the world and driving elephants to extinction. Perhaps I can start the Bandow Ivory Collectibles Museum, allowing me to join the president’s other important friends in their exempt status.

Point Two — exports are banned, except antiques, which must be over 100 years old, in what the government calls “exceptional circumstances, as permitted under” the Endangered Species Act. It is unclear whether the administration simply intends to increase the administrative hassle and cost of certifying shipments, or limit what can be exported. In either case, “certain noncommercial items” will be allowed, so nonprofits and others with friends in government likely will be able to hurdle any new burdens in a single bound. Collectors of sufficient means can try hiring attorneys or lobbyists. The rest of us will just get to pound sand.

Point Three — only antiques, proved through “documented evidence,” will be eligible for sale across state lines. How many antiques in America have “documented evidence” attesting to their age? For some odd reason 19th century ivory carvers were not in the habit of providing notarized statements of provenance along with the objects they were making. Which means that most antiques will be impossible to transfer across state lines. Indeed, you might not be able to sell after moving, since doing so could be treated as legally equivalent to selling across state lines.

Presumably museum transfers won’t be considered commercial even if the institution is out to make as much money as possible to fund its operations and future acquisitions. Indeed, the new policy will encourage non-profits to engage in low-key extortion with the message: “So sorry you can’t sell it since it lacks the proper documentation. But donate it to us and we can ensure a generous appraisal to get you a substantial tax deduction.”

More serious collectors and dealers with more valuable items will at least have the option of going to the trouble and expense of finding an expert and procuring a CITES certificate, when appropriate. Everyone else will be bureaucratic road kill. If you have lots of cheaper items, you’d spend most of their value trying to provide “documented evidence” to the government. Too bad you didn’t invest that money in campaign contributions to win better treatment!

Point Four — only documented old ivory, imported before 1990, can be sold even within a state. Imagine you bought a bunch of ivory items as you moved across America during your career, and decided to settle in, say, Bozeman, Montana. Want to sell your old ivory? Too bad you’re not a museum or educational institution. Go to the thriving antique metropolis of Helena and see what you can get for your collection.

More likely, of course, you won’t have any evidence as to when the items were made or brought to America.

Would every dealer in America attest that they were made decades ago? Who cares? That’s not real proof. And if you can’t prove an object’s age, tough. You can’t even take it — legally, at least — to the local flea market. Not that anyone would pay you much for something that is barely legal and could be banned at any time.

So Americans shouldn’t be fooled by administration rhetoric about still allowing legal sales. That’s only if you can provide the sort of proof that no normal person would have. Or are friends with the Interior Secretary, or a congressman feared by the Interior Secretary. Even if the Feds don’t send swarms of inspectors across America confiscating anything and everything ivory they find at the local church garage sale, the government will have crashed the price, preventing anyone from receiving anything close to what the items once were worth.

It will be expensive, but the better connected will at least have a chance of avoiding the rules. If you want to sell items that are old but not antiques in other states, you’ll need to find a broker, well-connected but discreet antique dealer, or private collector network. If you want to sell items internationally without new U.S. restrictions, you’ll need to procure a CITES certificate — it shouldn’t be too hard to find someone to concoct the right documentation at a price — and carry or ship the item abroad, selling it there.

However, if you have some nice pieces that you picked up over the years or inherited from your parents, worth a few hundred or thousand dollars and would like to get some money out of them for your retirement, you’re out of luck. If you were a middle-income collector or mid-level dealer who followed the law in amassing a modest amount of ivory goods that were evidently old but undocumented, too bad. After all, you never knew it, but you are the reason tens of thousands of elephants are being killed every year!

Ironically, the new policy will reduce genuine conservation efforts directed at elephants. Today the U.S. Fish and Wildlife Service investigates poachers and their allies. The administration could attempt to better support African countries seeking to protect elephants, find and interdict illegal ivory shipments, and prosecute those who sell new ivory. Instead, Fish and Wildlife will shift away from those linked to the killing of elephants and target thousands or tens of thousands of Americans who were so stupid as to follow the rules in purchasing legal ivory.

At a stroke the administration will have multiplied the amount of ivory considered contraband: every object with even trace amounts of ivory for which no documentation is available will be illegal to sell in any form at any point. Every piece of old ivory which cannot be proven to be a century old will be illegal to sell across state lines.

The number of people breaking the law facing arrest also will explode, as anyone trafficking in old, formerly legal ivory will be as much a criminal as operators handling large, ongoing flows of new, poached materials. Collectors with large collections and dealer with large inventories, all lawfully acquired, will stand in the same legal position as those who knowingly import and sell poached ivory from elephants killed last week. The Feds won’t just have to monitor every antique shop and show in America. There is likely to be an explosion of “bone” and “faux ivory” sales on eBay, with most photos and conversations held offline. Uncle Sam will need informants and wiretaps to catch these ivory criminals.

Moreover, anyone whose investment in old ivory faces a wipeout in value by Washington’s action will have no incentive to aid the government in its campaign against new ivory. The administration inadvertently will have turned collectors and dealers into potential accomplices of poachers, since those with old ivory to sell will be tempted to work with dealers who have experience operating illegally, that is, who today handle illicit ivory work.

While proponents of the administration’s new policy are busily engaged in moral preening, more elephants will die. After which activists will look for new scapegoats. And more elephants will die.

Of course, if government can steal so much from so many, the rights to property and due process are not secure. Spend and invest in reliance on the law, and then face thousands or even millions of dollars in losses from one arbitrary rules change. But never mind so long as friends of the administration with special status find a way around the policy.

The administration should target poachers who kill elephants, not collectors and dealers who followed the law. If Fish and Wildlife does turn average Americans into criminals, Congress should refuse to fund implementation and enforcement of the rules. If necessary, members should withhold funding for agents spending their time harassing everyone except those who traffic in illicit ivory.

The campaign to save elephants should not become just another excuse to expand government power and curtail individual liberty. Doing so isn’t fair to the American people — or helpful to African elephants.

About Doug Bandow:
Doug Bandow is a senior fellow at the Cato Institute and a former special assistant to President Reagan. He is a member of the Chess Collector’s Society. The above article was published on February 24, 2014 online on The American Spectator.

Loopholes must be closed and sanctions imposed.

By: Hillary Rodham Clinton and Chelsea Clinton

Seventy-two boxes – that is all that was left of 100 African elephants, killed for their tusks. Confiscated from an office in New York City’s diamond district in 2012, the 72 office boxes were filled with small ivory beads, figurines, charms and toys.

Demand for these trinkets, often from consumers unaware the ivory comes from animals recently and illegally killed, is what drives the mass slaughter of elephants.

In a recent interview, a convicted poacher who spent a decade running a gang in Kenya admitted to personally killing more than 70 elephants. “My attacks were so frequent that the elephants could not mate and have calves. There were not enough male bull elephants left,” he said.

These examples, sad but unfortunately all too common, reveal the international ivory trade at its most brutal. An estimated 35,000 elephants and more than 1,000 rhinos were killed last year alone. At this rate we are on a path towards the extinction of both elephants and rhinos on the African continent.

This is an ecological and moral disaster. But that is not all. Illegal poaching and trafficking also represent an economic and security challenge in Africa and beyond.

We have seen al-Shabaab from Somalia, the Janjaweed from Sudan, the Lord’s Resistance Army in east Africa and other armed groups move into illegal wildlife trafficking. It has become a multibillion-dollar business, facilitated by the same sophisticated criminal networks that are dealing in drugs, taking hostages on the open seas, and financing illegal arms sales and terrorist groups.

In recent years wildlife trafficking has become more structured, more lucrative and more ruthless than ever before. Poachers now use helicopters, automatic weapons, night-vision goggles and satellite phones to overwhelm and even kill park rangers and other local authorities. More than 1,000 wildlife rangers across the world have been murdered by these groups in the past decade.

These criminals are spreading instability, undermining the rule of law and threatening the tourist trade that is the lifeblood of so many African communities.

On both sides of the Atlantic, the scourge of wildlife trafficking has been center stage recently. This month the White House announced a ban on new commercial ivory sales in the US and released a national strategy to address the illegal exploitation of elephants, rhinos and other wildlife. In London, the Duke of Cambridge, the Prince of Wales and the UK government hosted an international conference to address the wildlife trafficking crisis. Delegates from 46 countries and 11 UN organizations signed a declaration promising to improve cross-border co-operation and strengthen laws and policing.

We strongly endorse a complete ban on ivory sales in the US. The global ban agreed in 1989 was successful in stemming a previous killing spree. Over time, however, exceptions have eviscerated the international ban and illegal ivory is now routinely bought and sold under one or more loopholes, providing cover for illegal traffickers. These need to be closed and sanctions imposed on countries that continue to trade in ivory products.

We are proud of the steps the US is taking and encouraged by the declaration made in London. But governments cannot end this crisis alone – private-sector action is needed as well.

At the Clinton Global Initiative annual meeting in September last year we brought together a coalition of African states, conservation organizations and other concerned parties to announce an $80m commitment to action, called the Partnership to Save Africa’s Elephants. Our goal is to “stop the killing, stop the trafficking and stop the demand”. With more than a dozen partners, we are scaling up anti-poaching enforcement at 50 sites; strengthening intelligence networks; imposing tougher penalties for violations; and more.

Ultimately, saving Africa’s elephants depends on consumers everywhere. We need to connect the dots for people between the ivory goods they see in stores and the carcases of dead elephants half a world away. And as consumers, we should urge companies to help law enforcement authorities disrupt the transfer of tusks, rhino horn and wildlife products on ships, aircraft and trucks. Financial institutions should help to trace illegal transactions, freeze assets and impound ill-gotten gains from illegal trafficking. Retailers need to stop selling ivory products. And businesses need to blow the whistle on government officials and institutions that have been corrupted by this lucrative, illegal trade.

Only by working together can we beat this crisis, break the nexus between trafficking and terrorism, and make sure these incredible creatures will roam the earth for generations to come.

Hillary Rodham Clinton is a former US Secretary of State.
Chelsey Clinton is Vice-Chair of Clinton Foundation
The above article was published online in February 23, 2014 on www.FT.com, Kenya Topics

Turning antique collectors into criminals will boost the black market

By: Doug Bandow

The Obama administration is preparing to treat virtually every antique collector, dealer and auctioneer in America as a criminal. In the name of saving elephants, the administration is effectively banning the sale of all ivory objects, even if acquired legally decades ago.

Doing so will weaken conservation efforts and enrich those engaged in the illegal ivory trade.

Elephants are being killed in Africa. Under the Convention on the International Trade in Endangered Species of Wild Fauna and Flora, only ivory from before 1989 can be sold. Unfortunately, ivory-sale prohibition has not stopped the slaughter.

The greatest demand for new ivory comes from Asia. Most ivory in America arrived legally, many years ago. The owners followed the rules as they invested hundreds, thousands or tens of thousands of dollars in art objects.

Until now, the rules were simple and sensible. Ivory imported legally — that is, prior to 1989 or after 1989 with convention certification — could be sold. Older ivory usually can be identified by coloring, stains, style, wear, quality, subject and more. Most of the older work simply isn’t replicated today.

Moreover, the burden of proof fell on the government, which had to prove that an individual violated the law to convict him of violating the law. That’s the way America normally handles both criminal and civil offenses.

However, in mid-February the administration issued what amounted to a ban on ivory sales. In practice, virtually every collector, dealer, auctioneer and other person in America is prohibited from selling ivory items — even if acquired legally, owned for decades, and worth hundreds or thousands of dollars.

Every flea market, junk shop, estate sale, antique store, auction showroom and antique show is at risk of raids, confiscations and prosecutions.

First, no imports are allowed, not even of antiques, which before could be brought to America with a convention certificate.

Second, all exports are banned, except antiques (defined as more than a century old) in what the U.S. Fish and Wildlife Service says are “exceptional circumstances.”

At best, the administration is raising the administrative and cost burdens of exporting to countries that already limit ivory imports to items with appropriate documentation. Or the new rule may restrict the sale of items previously allowed, thereby hindering Americans in disposing of their legal collections.

Third, interstate transactions are prohibited, except for antiques. Explains Fish and Wildlife: “Sellers of antiques in interstate commerce must prove through documented evidence that items qualify as bona fide antiques.” Unfortunately, such evidence rarely exists. Thus, the sale of almost all ivory across state lines is effectively banned.

Fourth, intrastate commerce, said the agency, is “prohibited unless seller can demonstrate item was lawfully imported prior to” 1990, when the international ban took effect.

But how does someone “demonstrate” when, say, a gift from his parents was imported? Without such proof, the item is not marketable — even though brought to America legally.

By any standard, the administration rule is grossly unfair to thousands of Americans. Why is the administration penalizing the law-abiding?

The U.S. officials complained about the difficulty in distinguishing ivory imported legally and illegally. No doubt, banning everything eases enforcement, but the policy fails to distinguish between guilt and innocence.

Moreover, much older ivory, given its manifold unique characteristics, is easily distinguishable from new work.

The illegal ivory supply also is small compared with that of legal ivory. Rather than ban the latter in an attempt to limit the former, the government should concentrate resources on aiding African countries in protecting their elephants, better interdicting illegal imports, and identifying sellers who specialize in new ivory.

In fact, targeting owners of legal ivory will perversely undermine such enforcement efforts. Making most ivory in America illegal will vastly expand the ivory black market and dramatically dilute enforcement resources.

Ivory commerce will continue, only more often underground. More objects will privately pass among dealers and collectors, never reaching public view.

The interstate ban, too, will be flouted. Owners also may hand-carry items to other nations without similar restrictions. Moreover, documentation will be faked.

Collectors and dealers will turn to those already participating in the illegal market, helping criminals expand their networks and increase their profits. Finally, overtaxed federal Fish and Wildlife agents may prefer to go after easy targets, such as local antique flea markets, rather than secretive smugglers.

If the administration does not withdraw its rules, Congress should overturn this unfair attack on the law-abiding. Washington should penalize poachers and their seller allies — not collectors and dealers who have followed the rules.

The administration’s new regulations will divert enforcement resources, and push owners of legal ivory into the illegal trade, meaning more elephants are likely to die.

About Doug Bandow:
Doug Bandow is a senior fellow at the Cato Institute and a former special assistant to President Reagan. He is a member of the Chess Collector’s Society. The above article ran in February 19, 2014 issue of Washington Times.

Oppose the Obama Administration’s War on US Antique Collectors

By: David S. White

Last week, in a stunning suspension of logic and good sense, the Obama Administration declared war on law-abiding US antique collectors, maybe on you.

In essence, the administration is seeking to ban the sale of all ivory products even if legally purchased decades ago.

Thursday morning in the Washington Post, Doug Bandow, a senior fellow at the Cato Institute, former special assistant to President Reagan, and a member of the Chess Collector’s Society, wrote the proper response to this next example of misguided Nanny State government:

In a nutshell, if you have not been following this one, elephants in Africa are increasingly being slaughtered for their tusks, 70% of which go directly to China to satisfy their insatiable demand for ivory, both a status symbol for their newly wealthy, and a material with supposed medicinal properties. Do not mistake my point here – I love elephants. I love my dog. But, take a deep breath fellow animal lovers, and please explain to me how the new Obama Policy to criminalize Americans who own antique elephant ivory, will help save the life of even a single African elephant roaming the plains of the Serengeti.

You can’t because it won’t.

Millions of Americans own antique elephant ivory, obtained many years ago in a much simpler world, and most importantly, obtained legally. In the 1970’s and 1980’s the slaughter of African elephants was stepped up and it resulted in the treaty called by its acronym, CITES, (Convention on the International Trade in Endangered Species) enacted in 1989, and purporting to control the traffic in endangered animal parts, and in particular for our purposes here, elephant ivory.

There are actually two kinds of elephant ivory, one from African elephants and one from Asian elephants. Do not confuse this with Mammoth or Mastodon tusks, an animal which went extinct in the last 10,000 years, and the tusks from which are scattered all over the melting permafrost in Siberia – those are and always have been legal because there are no living ones left.

CITES has not succeeded in protecting African elephants from slaughter, and frankly, CITES rules are a confused mess which even lawyers have trouble understanding and which our regulators have trouble enforcing, and forget about enforcing these rules fairly – that has not been the case. Far from it.

I am an antique netsuke collector, and I am the Chair of the Los Angeles Chapter of the International Netsuke Society – you know, those miniature carvings which you can see in the Bushell Collection at Los Angeles County Museum of Art, one of the finest ever assembled, a showcase of this amazing art form which tells stories of Old Japan, a world and culture now vanished. Our members, 500 of them located all over the world, are now threatened by the new Obama Policy, as is every American antique collector and owner of antiques, some of which may be inherited.

Many of our members have been collecting and writing scholarly articles in this well-studied field for decades – one of our members has collected for 50 years and his world’s finest collection has been exhibited at Yale and other museums, and at Disney’s Epcot Center in Florida. These people own principally antique (over 100 years old) netsuke – the ones which are comprised of elephant ivory contain the tusks from elephants who last walked this earth when Lincoln or Washington was President, or even earlier.

Owning these beautiful sculptures threatens no living elephant. Destroying these breathtaking works of fine art, or rendering them valueless because the Obama Policy would seem to envision that, is right up there on the same level of Kafka-esqe madness of the Taliban destroying Buddhist artwork, or book burnings by countless totalitarian regimes.

Most outrageous of all, the Obama Policy actually includes provisions for being able to hunt and take sport trophies, all the while criminalizing a whole entirely innocent segment of our population for presuming to own, perfectly legally acquired, fine art carved in the form of netsuke, an art form which has truly enchanted millions since Japan opened its doors to the world back in the 1850’s!

Heaven forbid if you still own Aunt Mildred’s old piano – you know, the one with the ivory keys? You should look around your church or other place or worship and note how many antique ivory pieces are used in regular services. How about that old musical instrument you inherited from Grandpa Harry? It has ivory inlays. I could go on and on and on . . . . You would be amazed how much antique ivory is owned and loved by Americans.

Ivory has been worked and carved for thousands of years. It has a rightful place as fine art in our culture and in our world. Elephants should not be slaughtered for their tusks – recent polls in China found that many Chinese citizens believe that tusks grow back like your fingernails – they don’t, and it costs the elephant it’s life.

Ivory trades at $1500 per pound in China, and yet, since last Summer, we have witnessed public Ivory Crushes by the regulators, where they destroy tons and tons of confiscated elephant ivory. This is pure insanity. Why destroy valuable property that cost elephants their lives? Yet, each country now is lining up to have their own public Ivory Crush – the UK’s, backed by a few of the Royals – including Prince William, who made the astoundingly stupid statement that he would like to destroy the thousands of ivory fine art antiques in Buckingham Palace – was last week along with a Seminar on Wildlife Trafficking.

The Obama Policy is being driven by extreme animal rights factions. They have abandoned all reason and logic with this one. We need to respond strongly and definitively to this latest example of horrendously bad government and stupendous irrationality. Nobody can explain the connection between declaring war on collectors of antique ivory in the US and stopping the modern slaughter of African elephants, because there is no connection in logic or reason. We are addicted to prohibiting things, but all our experiments in prohibition end the same way – in failure.

Let’s not keep doing stupid things. Oppose the Obama Policy of declaring war on law abiding US collectors of antique ivory – it won’t save 21st century African elephant lives, it is probably unconstitutional, and it is frankly an absurd reaction.

About David S. White:
David S. White is principal of David S. White & Associates, a real estate and general business law firm, West Los Angeles. He is a real estate lawyer and board member of the International Netsuke Society. The above article was published in February 21st, 2014 in Fox &Hounds.