March 20, 2014 10:22AM

The Administration’s Plan to Kill Elephants and Treat Americans as Criminals

Today the Advisory Council on Wildlife Trafficking is meeting near the nation’s capital to plot the administration’s impending ban on ivory sales. The plan is typical for counterproductive government regulation.

The panel’s proposals would accelerate the slaughter of African elephants and turn millions of law-abiding Americans into criminals. The Council also would destroy hundreds of millions of dollars worth of property legally acquired by everyone from antique dealers and restorers to tourists and retirees.

Elephants are magnificent creatures—intelligent, social, and expressive—and threatened by widespread poaching. Unfortunately, international activists sometimes appear more interested in feeling virtuous than in deterring poaching. In 1989 an international convention outlawed the sale of new ivory.

Unfortunately, the ban increased the price of ivory, which remains in high demand, especially in Asia. Daniel Stiles of the IUCN/SSC African Elephant Specialist Group explained: “The inconvenient truth is that the CITES ivory trade ban and [subsequent CITES] votes to cut off legal raw ivory supplies are the real causes of the recent elephant holocaust.”

Yet the U.S. Fish and Wildlife Service plans what it calls “a nearly complete ban on commercial elephant ivory” trade.

Talented craftsmen long used ivory to make items both practical and beautiful. Today these objects—created, sold, given, and bequeathed legally over decades and centuries—have made their way into private collections and public museums across America and the world.

Outlawing this trade makes no sense. In September 2012 USFWS admitted: “we do not believe that there is a significant illegal ivory trade into this country.” Most ivory in America, 95 percent or more, is older and legal.

Obviously, buying and selling objects derived from elephants long dead does not endanger elephants today. USFWS argues that it is hard to distinguish between new and old ivory, so the agency’s answer is to turn most everyone who attempts to sell most any ivory into a criminal.

Targeting the law-abiding is a tactic of the indolent, not the serious. Differences between antique and modern items are many and numerous aspects of age are hard to fake. Enforcing the law requires effort, but that is no reason to treat innocent and guilty alike.

Turning everyone into a criminal would accelerate the slaughter of elephants. Greatly increasing the amount of illegal contraband and number of illegal traffickers would dissipate already limited enforcement resources.

Moreover, USFWS would turn every owner of legal ivory today into an enemy. Some Americans would respond by turning to people who know best how to flog illegal ivory objects—those currently dealing in poached ivory.

Criminalizing otherwise legal conduct also would be unfair to the millions of Americans who followed the rules in building businesses and collections involving ivory. Imagine Washington declaring that since it is difficult to distinguish between legitimate diamonds and “blood diamonds” used by warring groups in Africa, diamonds no longer could be sold in America.

Most dramatically, the administration would ban the interstate sale of anything not an antique, meaning 100 years old. Newer, legal items dating before 1989 could be sold only within states: it would be illegal for Americans across the nation to trade with one another!

Sellers also would have to prove age “through documented evidence.” Alas, documentation does not exist for most ivories owned by most people since it has never before been required. Unfortunately, carvers from decades and centuries ago did not provide notarized affidavits and certificates of authenticity. Deceased parents didn’t include original receipts and descriptions with their bequests.

The administration should act. It should develop a strategy targeted against the real criminals—those guilty of killing elephants, poaching tusks, and selling illegal objects.

A ban on ivory sales might appear to be of interest only to a few people. As I point out in my latest Forbes column: “But it raises fundamental questions: Is the U.S. still governed by the rule of law, does government still respect private property, and can citizens expect law enforcement to treat them with basic fairness?” If not, all Americans will have lost something very important.