The Lawletter Vol 47 No 4
It is not uncommon for the estates of individuals at death to possess one or more souvenirs, pieces of jewelry, trophies, collectibles, or artworks made from animal parts, such as carved ivory, fur rugs, tortoise-shell ornaments, crocodile skin leather, and the like. What legal issues might an estate or beneficiary face if he were bequeathed animal parts listed in Endangered Species Act?
The U.S. Congress enacted the Endangered Species Act (“ESA” or the “Act”) (currently codified at 16 U.S.C. §§ 1531-1544) on December 28, 1973, with the aim of barring commerce in the endangered and threatened species listed in the Act, as such financial value contributes to the continuing depletion of such species and the contraction of their populations and range.
Importantly, among the acts prohibited under the ESA, it is forbidden for an individual to “possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation [of the Act].” Id. § 1538(a)(1)(D) (emphasis added). However, this statutory language barring possession of an ESA-regulated species part applies solely to animals “taken in violation” of the Act, i.e., the animal was captured and/or killed and transformed into a commercial product after such species had been listed to the ESA.
Therefore, a propriety of the gifting of an object fashioned from an ESA-listed animal species depends upon proof that the item was possessed by the owner (here, the decedent) before the subject species was listed to the ESA and was not bought or sold thereafter. Indeed, construing case law confirms that “Congress chose not to prohibit the mere possession of lawfully-taken listed species in section 9(a)(1) of the Act.” Animal Legal Def. Fund v. Olympic Game Farm, Inc., No. C18-6025RSL, 2022 WL 683212, at *6 (W.D. Wash. Mar. 8, 2022), on reconsideration in part, No. C18-6025RSL, 2022 WL 4080657 & 4080658 (W.D. Wash. Sept. 6, 2022).
While no construing case law has apparently addressed this issue, the U.S. Fish & Wildlife Service has supplied guidance confirming that where no commercial intent is involved, an endangered species part may be legally gifted, even interstate: “[A] [l]awfully taken and held endangered and threatened species [part] may be shipped interstate as a bona fide gift or loan if there is no barter, credit, other form of compensation, or intent to profit or gain.” U.S. Fish & Wildlife Service, Permits for Native Species Under the Endangered Species Act (Nov. 23, 2013), https://digitalmedia.fws.gov/digital/collection/document/id/1841/.
Importantly, the regulations implementing the ESA further contain several instructive fact patterns, one of which confirms that where the original owner of an ESA-regulated animal part reduced such item to personal possession prior to the listing of such species to the ESA, then such possession is legal, as such item was removed from the chain of commerce prior to that species’ ESA listing, rendering such item nonregulated “Pre-Act wildlife.” 50 C.F.R. § 17.4(a)(2) (Example 2).
Note, however, that if the propriety of the ownership of the recipient of a testamentary or intestate gift of a Pre-Listing possessed animal part was challenged by the agencies that administer the Act (the U.S. Fish & Wildlife Service and/or the National Marine Fisheries Service) in court, then the defendant beneficiary or heir would likely have the burden to prove that the subject animal part was reduced to private, noncommercial possession by the decedent prior to the date such species was added as a protected species under the ESA, using documentation showing chain of custody since the object was obtained. See, e.g., Animal Legal Def. Fund, 2022 WL 683212, at *5.
Thus, if the animal utilized to make a trophy, artwork, or curio was lawfully taken prior to the addition of that species to the ESA as protected, then a later testamentary or intestate gift (i.e., noncommercial, gratuitous transfer) of such pre-ESA product would be legal. However, if the propriety of such gift were challenged in the court by the agencies enforcing the Act, the donee must produce evidence of the pre-ESA listing take of the species involved. Thus, under proper facts, a decedent gift of a Pre-ESA animal part is legal, though such item would remain subject to the ESA strictures barring any subsequent sale or purchase of the object, as ESA-regulated species parts that are less than 100 years old (antique) cannot be bought or sold, and verified antique objects may be bought and sold solely via an agency-issued Letter of Determination for Protected Species Parts and Products that supplies the government’s permission to import, export, and/or sell the item after agency scrutiny regarding the piece, showing a clear chain of custody to establish its pre-listing take and no post-ESA listing purchase or sale.