Capitol Alert

Atkins ivory bill sparks debate on illegal trade, property rights

Ivory collector Godfrey Harris holds The Madonna of the Grapes, a 19th century piece made from a 26-inch-long mature elephant tusk.
Ivory collector Godfrey Harris holds The Madonna of the Grapes, a 19th century piece made from a 26-inch-long mature elephant tusk.

State Assembly Speaker Toni Atkins was discussing elephant slaughtering during dinner with a friend when she decided to do something about it.

“They could become extinct, and that just really hit me,” said Atkins, D-San Diego. “I want to be the person to help change this.”

She chose the number 96 for the bill, drawn from advocates’ estimate that 96 elephants are killed per day – one every 15 minutes. The measure would enact a near total ban on the importation and sale of ivory and rhino horn items in California, including those knick-knacks lingering on bookshelves and attics that have been passed along for generations.

Opponents say Atkins’ measure runs roughshod over property and gun owners’ rights, making it impossible, for example, to sell weapons with ivory-embellished handles.

“There is nothing in this bill that goes after the real offenders – the poachers,” said Sen. Jim Nielsen, R-Gerber, at a recent committee hearing. “If we’re going to do something and criminalize somebody and put them in prison or jail them, that should be the target population – not the law-abiding citizens of California.”

Current California law makes it illegal to import or possess with intent to sell any elephant part, but it allows ivory acquired before 1977. Animal rights advocates say that exception makes it more difficult to stop illegal imports and sales because sellers can stain or crack newer ivory to make it appear older.

AB 96 would ban the sale of nearly all ivory and rhino horn, with a legal sale applying to articles used for educational or scientific purposes and bona fide antiques with less than 5 percent ivory or rhino horn. Either the owner or seller would have to show documentation that an antique is at least 100 years old. For a musical instrument, ivory or rhino horns would have to be less than 20 percent of the item’s volume, along with documentation that it was manufactured no later than 1975.

The bill would increase potential fines to a maximum of $50,000 and incarceration to up to one year.

California’s ivory market is probably second only in size to New York’s, according to a 2014 study conducted by Daniel Stiles and funded by the Natural Resources Defense Council. He found San Francisco and Los Angeles combined had 107 vendors with more than 1,250 ivory items for sale. He said none of the pieces had documentation that proved their age. And while he found the number of vendors was declining, he reported that most of those he surveyed obtained their ivory through estate sales, craft markets and individuals.

New York and New Jersey placed tighter restrictions on ivory sales in 2014 – the only two states to do so – with New Jersey fully banning all ivory and rhino horn sales.

For many years, the door was largely shut on ivory sales by an international treaty imposing strict conditions on trade involving species threatened with extinction.

The door reopened in 2008, said John Baker, managing director for WildAid, when China was allowed to make a large purchase to keep its national heritage in ivory-carving alive.

“The demand and price of ivory went down to zero up until 2008. Literally the ivory trade had been shut down and we weren’t really facing a poaching problem,” he said.

With ivory back in circulation after 2008, he said poaching since has been “skyrocketing,” with reports showing that more than 30,000 elephants are killed per year for their ivory. Baker says 65 percent of forest elephants in central Africa were lost over the past decade.

“Keeping a legal trade does not reduce demand, it only sustains demand,” Baker said. “It only confuses people about the overall message we want to send, a message that we should not be selling ivory.”

Jennifer Fearing, lobbying for the bill on behalf of the Humane Society of the United States, San Francisco SPCA and Defenders of Wildlife, sees two clear ways to curtail poaching.

“You need to have a law on the books. You have to surpass the demand by making it unlawful,” she said, as well as educating people to “make ivory uncool.”

The challenge of accurately dating ivory remains one of the fundamental enforcement problems, Fearing said. Sellers can create a close resemblance between newer illegal ivory and fossil ivory from mammoths by staining or cracking it.

AB 96 would seek to end the camouflaging by making mammoth ivory illegal as well. It defines “ivory” as “a tooth or tusk from a species of elephant, hippopotamus, mammoth, mastodon, walrus, warthog, whale, or narwhal,” and adds rhinoceros horns.

Several rifle and hunting organizations – including the National Rifle Association and Safari Club International – oppose the bill, concerned that it would place unnecessary burdens on collectors and owners of firearms made with ivory.

“I do have strong concerns that it will criminalize people’s everyday behavior.” said Assemblyman Matthew Harper, R-Huntington Beach. “I’m always very sensitive to the Second Amendment and the right to bear arms.”

“I think this is one of the smaller issues we are facing,” Harper said, noting that he’d rather focus on “really big things with dramatic effects on the economy.”

Godfrey Harris, the managing director of the Ivory Educational Institute and a public policy consultant in Los Angeles, said those who own ivory are similar to collectors of aesthetic or historical items.

“Many of the people that I know bought ivory in the same ways as others who were taken to impressionist art, and they can sell their goods and benefit their heirs, but someone who owns ivory under the same purpose cannot,” he said.

He argues that banning the sale of ivory “is putting elephants in greater danger by making ivory much more valuable” on the black market.

Assemblyman Donald Wagner, R-Irvine, said prohibiting the sale of ivory could potentially violate the Fifth and 14th amendments.

“The government can’t take private property without paying compensation,” he said. “Some of these items before the bill were legal to sell. Some are over a hundred years old. You’re not saving any elephants by taking away an ivory-handled pistol. You’re not saving any elephants by prohibiting the sale of these already existing products.”

Atkins said the bill does not violate property rights because it restricts only the sale or trade of the item. People are free to possess the item or give it as a gift, she noted.

“Family members can pass on heirlooms, and heirs, they can leave anything that contains ivory,” she said. “It (just) can’t be sold in a consumer market.”

Catherine Douglas Moran: 916-321-1202, @c_douglas @c_douglasmoranmoran

Related stories from Sacramento Bee