A judgement on the case – which dealers and collectors in the US have deemed a test on the veracity of tough state laws on ivory – is expected within three months.
The Ivory Education Institute (IEI), an association formed in 2014 to advance the interests of collectors of objects made from ivory, sued the State of California and the Department of Fish and Wildlife soon after Assembly Bill 96 was passed in 2015.
Godfrey Harris, director of the IEI, says that since the bill took effect on July 1, “ivory objects held throughout California have been rendered worthless”.
IEI is challenging the bill on several grounds. Given 30 minutes to summarise its position in front of Judge William Fahey on November 18, it presented its main contentions.
Lawyers said any attempt to regulate the trade in ivory at state level is unconstitutional because it amounts to “an assault on the primacy of the Federal government in areas of international relations”.
They added that the lack of clarity in the law makes it difficult for citizens to obey and questioned why a law designed to save the African elephant extended to the teeth and tusks of extinct species (mammoth and mastodon) and others not threatened by poaching (hippo, walrus, warthog, sperm whale and narwhal).
In particular, confusion surrounds a de minimus exemption allowing for the sale of pre-1975 musical instruments where ivory forms less than 20% of the object and antiques (defined as objects not less than 100 years old) where ivory forms less than 5%.
The 5% Rule
During proceedings, the judge asked the State (supported by the New York environmental group The Natural Resources Defense Council) three times to explain how these volume figures in the law would be applied.
It said the decision on whether the 5% limitation was met would be made by enforcement officials.
When a lawyer for the State added that the bill was designed to prevent poaching of elephants, not deal with antiques, the IEI used its rebuttal time to say that the State could not have it both ways – “write a law that prohibits all ivory in commerce and then say that it applied only to ending poaching”.
Harris commended the judge on his understanding of the issues surrounding the case. “The questions put by Judge Fahey were pointed, revealing and framed by someone who had read and thought about the legal documents filed by both sides. His legal clerk remarked that this was ‘a really interesting case’.
“Prior to the start of the hearing, our attorney thought the judge might be ready to rule from the bench on our motion and the State’s counter motion. But it was not to be.
“At the end of an hour, he thanked the participants and said he would render a judgment in due course.”
The judge has 90 days to deliver his verdict.
