# Legal export of Mysteriosis to Europe?



## elmoisfive

I'm intrigued by the comment from granate that mystis were once accidentally exported legally to Europe...

http://www.dendroboard.com/phpBB2/viewtopic.php?t=22863

Anyone have info on this question?

Bill


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## Steve

What i would like to know is.....

If they are legal in Europe, (as they may rightly be) and have papers, why then are they illegal in the US?..

Sorry this is a question from a Brit who doesn't really understand why America's import/export rules are different to that of Europe.

Regards

Steve


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## Michael Shrom

America adheres (kind of) strictly to CITES. If the country of origin never issued CITES papers they can't be legal in U.S. In Europe frog smugglers smuggle frogs in. They get caught and the frogs are confiscated. The zoos breed the frogs and sell to public. The frog smugglers buy the frogs back and they are now "legal." This is an oversimplification of a complex issue but in my little mind that's how it works.

In the U.S. we are in phase 1. Frog smugglers smuggle frogs in, breed, and sell on the black market. People sit on these. An import permit is issued for this species and a few are imported. Smuggler buys a pair with legit cites papers. Next year he sells 300 offspring all attributed to that pair.


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## sbreland

I don't see why the scenario he described couldn't be possible, but teh question is when did this legal shipment with papoers supposedly happen? If it was several years ago before the Peruvian government realized the miniscule size of the habitat that mysteriosus dwells in I would tend to say they may have made a goof and let some out not realizing the consequences of their actions and then correcting it (making them illegal for export) once they did. Now if we're talking about a very recent shipment then I would tend to think the papers may not be legit because the governement was aware of the mysteriosus situation and surely wouldn't let them out, that is unless these are new exports that are coming out under the same guise as the INIBICO and understory frogs are now. You have to wonder, since Peru no longer exports frogs legally, but INIBICO and understory have found a way to get around that hitch is there any reason to believe that others can't do it too? If INIBICO and Understrory are allowed to ship out Peruvian frogs like Bassleri, imis, fants, etc that would otherwise be illegal, why wouldn't they be able to ship out mysteriosus? I realize the reason INIBICO and Understory are allowed to export frogs is due to an agreement because they give back a lot of money and protect resources, but in the end it comes down to money. If INIBICO and Understory were able to get the Peruvian government to go against their own ruling and allow export, don't you think that others will/have been able to do the same with the right amount of money and promises? Just some random thoughts I had...


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## Michael Shrom

Plain and simple. The mysteriosis in Europe were not exported with legal paperwork. Peru is allowing CITES exports as long as their strict guidelines are adhered to. The two outfits that are doing that with frogs put a lot of work into it.


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## 41714049

I talked to the breeder that *granate* purchased his mystis from and the breeder said...



> Cites papers doesn´t exist.


So... they are not legal mystis... poo  

Still no legal mystis.


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## George B

Mysterious were never legally exported from peru. This info can be easily found here http://www.unep-wcmc.org/citestrade/trade.cfm on the CITES home page. Two common misconceptions about CITES versus the ESA (endangered species act). Enforcement of CITES is up to each member country and "CITES" the organization has no "teeth" and relies upon voluntary compliance by each member country. The ESA is legislation within one country (the US) and has lots of "teeth". The ESA regulates threatened and endangered species only. CITES uses a different classification system (no "endangered" species terminology) and covers regulation of all species not just threatened or endangered species. 
George


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## Ronm

to my knowledge they're illegal.
And Michael in Europe the off spring from frogs in zoo's isn't sold to the public, but exchanged between other zoo's.

Ron Meijer


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## 41714049

Another message from the breeder...



> ...at the moment i have no chance to get papers of mysteriosus. They doesn´t exist in EUROPE.


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## Michael Shrom

Hi Ron,
You did read the part about me having a little mind and what I said is an oversimplification. Here is another oversimplification - All of the rules get broken somewhere along the line. Don't be the one breaking them when the hammer comes down.


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## Ronm

Hi Michael,

I hope I didn't offend you with my reaction. My English is not that good, perhaps I didn' t understand your first posting...I'm sure I don't understand what you mend in your 2nd.
I just wanted, beiing European, to shed some light on this issue. 
By the way, in the Netherlands, there's no agument on this specie and we don't allow it to be sold on our frog days.
Best wishes, Ron


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## Michael Shrom

No offense. it was a poor attempt at a joke.


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## Ronm

pfoe!  
In comparisson with our fora I really like this one, since the discussions are meaningful and with great respect.
Best wishes, Ron


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## trinacliff

George B said:


> Mysterious were never legally exported from peru.


Here is the question I have asked that never seems to get answered, so if anyone has an answer, I would love to hear it.  We always hear the above quote, but I've also heard the above quote in reference to casti's, galact's, quinq's and even azureus. So, is the reason everyone questions someone, even in Europe, that posts pic's of mysti's because they are not nearly as common and much more rare? I can't figure out why the focus is always on the mystis, but no one ever really mentions the above species that also "were never legally exported". I would love it if someone could shed some light...the facts, pure and simple.

Kristen


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## Ronm

Hi Kristen,

I think it has do with the year they were imported. I know of frog keepers who imported species (even took them home with them while travelling in S.America) at pre cites times, so it was legal. Not sure if that's the complete answer though.
Best wishes, Ron


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## sbreland

Kristen, very good and valid point that I would love to hear some thoughts about that also...


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## bbrock

Like Michael and George pointed out, this gets really complicated because you are talking about an international treaty that is interpreted differently by different countries. In the case of azureus, those frogs were exported legally. There is some question whether they were suppose to be released to the private sector but there is no question about the legallity of the importation to the US. Same goes for casti - imported legally but were mistakenly released to the private sector in violation of the export agreement. So there are many variables. There are: terms of the export agreement, the way CITES is interpreted, and the different laws inside the CITES signatory countries for enforcing the treaty. How each of these are interpreted creates lots of potential gray area.

Personally, I don't understand why there is such an obsession with getting these new frogs in when there are so many cool frogs already legally here. I haven't met a frogger yet who has all of them.


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## markpulawski

Yes Kristen both the Azureus and Casti's were exported with legal paper work, even Lehmanni have been brought into the US legally from Colombia. However i am not aware of Galacs or Qunqs or lamasi for that matter being exported with legal papers. It is not so much a matter of have they been brought into the US with legal paper work but have they been exported from country of origin with legal paper work.
And yes Understory and Inibico have done things the right way in conjunction with the Peruvian gvmt (albeit they have taken 2 completely different paths to arrive at the same destination).


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## 41714049

> And yes Understory and Inibico have done things the right way in conjunction with the Peruvian gvmt (albeit they have taken 2 completely different paths to arrive at the same destination).


What differences in paths did Understory and Inibico use?


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## markpulawski

Understory has permits to collect frogs and take them to a breeding facility, where the breeding and output of offspring is closely monitered. INIBICO has rights to certain pieces of land and works with the frogs that exist on that land breeding in the wild, collecting and raising tads. 
There is more involved but in a nutshell I believe those are the circumstances (a friend of mine gave me this info and I believe it to be reliable as he has first hand knowledge).


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## bbrock

markpulawski said:


> It is not so much a matter of have they been brought into the US with legal paper work but have they been exported from country of origin with legal paper work.


And also whether the custody of the animals continues to comply with the export agreement. This is what keeps Atelopus zeteki from being released to the public - Panama wouldn't allow it.


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## trinacliff

markpulawski said:


> Yes Kristen both the Azureus and Casti's were exported with legal paper work, even Lehmanni have been brought into the US legally from Colombia. However i am not aware of Galacs or Qunqs or lamasi for that matter being exported with legal papers. It is not so much a matter of have they been brought into the US with legal paper work but have they been exported from country of origin with legal paper work.


I'd definitely be interested in seeing where people get this info. I've heard so much stuff regarding legality of many species that I have no idea what is rumor and what is truth. For example, numerous sources have said Casti's were "never legally exported", as well as the Galacs and Quinqs. It wasn't a matter of them being exported legally to the US, but those species of frogs, were supposedly never legally exported from their country of origin. It just seems weird to me that so many people focus on the *most desirable* frogs at the moment and question their legality...Vanzolinii are another one that would fall into that category, as well.

Take care,
Kristen


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## bbrock

trinacliff said:


> I'd definitely be interested in seeing where people get this info. I've heard so much stuff regarding legality of many species that I have no idea what is rumor and what is truth.


A good place to start is always the website that George posted. There you can quickly see whether any CITES species have been exported/imported, when, where, how many, and often for what reason.

The azureus imports have been well documented as there were at least two expeditions to Suriname by NAIB and Smithsonian folks to get them. If you ever get a chance to see Jack Cover give a presentation on this, don't miss it. He is a great speaker.

The casti situation is well known but less publicized because of the situation. The situation is that a particular zoo released animals to some folks in the public not knowing about the agreement with Brazil not to distribute the animals. By the time the mistake was discovered, froglets had already been distributed so it became a mess. So although this story is fairly easy to verify, it remains mostly rumor simply because it is unfair to name specific individuals involved.


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## trinacliff

bbrock said:


> trinacliff said:
> 
> 
> 
> I'd definitely be interested in seeing where people get this info. I've heard so much stuff regarding legality of many species that I have no idea what is rumor and what is truth.
> 
> 
> 
> A good place to start is always the website that George posted. There you can quickly see whether any CITES species have been exported/imported, when, where, how many, and often for what reason.
> 
> The azureus imports have been well documented as there were at least two expeditions to Suriname by NAIB and Smithsonian folks to get them. If you ever get a chance to see Jack Cover give a presentation on this, don't miss it. He is a great speaker.
> 
> The casti situation is well known but less publicized because of the situation. The situation is that a particular zoo released animals to some folks in the public not knowing about the agreement with Brazil not to distribute the animals. By the time the mistake was discovered, froglets had already been distributed so it became a mess. So although this story is fairly easy to verify, it remains mostly rumor simply because it is unfair to name specific individuals involved.
Click to expand...

Of course, I had heard that there were quite a few legal importations of azureus (I'm figuring these occured after they were first "never legally exported", which then, in turn basically made what was already here legal). Likewise, I had also heard about the Casti situation. It doesn't seem like the above scenario would make them legal though, as once again, they were "never legally exported from their country of origin". That also leaves the Galacs and Quinqs...anyone have any info on whether they were legally exported from their country of origin? I'm not trying to be a nit-picker here, I would just like to once and for all hear all the information. What about Vanzolinii? I heard they were illegal, as well. 

Kristen


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## markpulawski

I have not checked te data base of reference but I would love to know what Brazil has allowed for export, to my knowledge only the Casti's to the OCZ. I have never heard of anything being exported out of Brazil however i am fairly sure a large # of Brazilian animals were exported from a neighboring country.There were many rumors of the massive Galac smuggling that became so prevelent that even the European authorities had to crack down but I had heard the main guy skipped to South America and has lived there ever since.
It is my guess that you would not find Quinqs or Vanzo's on the list of frogs legally exported out of Peru.
Oh and Kristen I am sure if you wanted you could have a wonderful future in Nits (I understand there is a real demand coming as they are not legal).


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## trinacliff

Guess I better keep on nit-picking then....haha. Maybe I could quit my day job...oh wait, I forgot, I don't have a day job.  

Very interesting info...and I'm glad you posted this for the rest to see (I remember you telling me this before, so I don't want you to think I've completely lost my marbles...only partially...haha).

At any rate, thanks for the info. 

Kristen




markpulawski said:


> I have not checked te data base of reference but I would love to know what Brazil has allowed for export, to my knowledge only the Casti's to the OCZ. I have never heard of anything being exported out of Brazil however i am fairly sure a large # of Brazilian animals were exported from a neighboring country.There were many rumors of the massive Galac smuggling that became so prevelent that even the European authorities had to crack down but I had heard the main guy skipped to South America and has lived there ever since.
> It is my guess that you would not find Quinqs or Vanzo's on the list of frogs legally exported out of Peru.
> Oh and Kristen I am sure if you wanted you could have a wonderful future in Nits (I understand there is a real demand coming as they are not legal).


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## bbrock

trinacliff said:


> Of course, I had heard that there were quite a few legal importations of azureus (I'm figuring these occured after they were first "never legally exported", which then, in turn basically made what was already here legal).


Yes, this happens which is the main way frogs have been laundered to make them legal. I think Michael brought that up on this thread already. People sit on smuggled frogs and wait for legal imports. Then miraculously those 15 legal imports become 300 cb frogs within a year.



> Likewise, I had also heard about the Casti situation. It doesn't seem like the above scenario would make them legal though, as once again, they were "never legally exported from their country of origin".


But the WERE legally exported IF you happen to be the Oklahoma Zoo. I don't know whether the export agreement allowed the zoo to share with other zoos (I think it did) but the animals got into the private sector. They were never legally exported FOR the private sector. But they WERE legally exported. Hence the gray area. Is this a violation of CITES or is it just a breach of contract with Brazil? And how do you put the genie back in the bottle?



> That also leaves the Galacs and Quinqs...anyone have any info on whether they were legally exported from their country of origin? I'm not trying to be a nit-picker here, I would just like to once and for all hear all the information. What about Vanzolinii? I heard they were illegal, as well.
> 
> Kristen


The database does show a number of export records for those species, mostly to the Netherlands during the 90s. It would take more time than I have right now to figure out how many were live animals for the trade.


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## *GREASER*

I want to know what he deal is with Tarapoto imitators. First when were imitators legally exported from Peru? As far as I can see this morph of imitator was never legally exproted from Peru. Unless it came in when all the other "standard" imitators made it over. And at that time I dont know if they were even limited to certian morphs of frogs or if all imitators were ok to bring in. There is a big difference if all IMITATOR MORPHS being legal or just the VARIABALIS MIMIC. Im just really confused only because this frog wanst well known to the US hobby and all of a sudden they are all out in the open and people write it off. So im just curious if this is just another illegal frog or were these tarapoto imitators legally exported and when they came in.


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## elmoisfive

Thanks to everyone for the quality discussion and information. Unfortunately, we may never get to the bottom of some of these questions. I suppose at this point in time our best option is to work for what is best for both captive populations and their respective native populations and ecosystems.

I fear however that the latter may be easier said than done given the macroscopic climate change(s) and the resulting impact on the environment. 

Bill


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## ColombianFrogger

> even Lehmanni have been brought into the US legally from Colombia


Well, Im afraid this is false, not a lehmanni or a histrionicus have ever been legally exported from Colombia. Before CITES agreement started to work in Colombia, people just took them and export the frogs, but that doesnt mean that were "legally exported". The biggest shippments of smuggled frogs came after that, so all are smuggled, and lehmanni is now almost extinct because that (locally extinct and critically endangered).


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## markpulawski

I know that Lehmanni were given to Dr. Jack Frankel as a gift by the Colombian government (I believe for his help with tropical deseases), this happened after CITIES came into existance. Perhaps due to the circumstances the gvmt allowed an exception and the frogs were taken out legaly without papers but I doubt the US would have made the same exception. These are the only Lehmanni that I have ever heard of that were taken legaly from Colombia.


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## Ed

snip "But the WERE legally exported IF you happen to be the Oklahoma Zoo. I don't know whether the export agreement allowed the zoo to share with other zoos (I think it did) but the animals got into the private sector. They were never legally exported FOR the private sector. But they WERE legally exported. Hence the gray area. Is this a violation of CITES or is it just a breach of contract with Brazil? And how do you put the genie back in the bottle
endsnip

Actually the permit prohibited the transfer of any of the frogs without express permission for each exception. If you check out the ISIS data base, only one Zoo/Aquarium still holds 4 male D. castenoticus. 

If I remember correctly, the Oklahoma Zoo was not the importing institution. It was the Oklahoma Museum of Natural History for research on thier breeding behavior. The offspring were then sent to the Zoo, from where they were dispersed... 

Ed


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## Jason

Some may find this interesting. I received it in a email I sent to CITES.

*Here is the questions I asked:*
I had inquired about the legality of Dendrobatid (dart frog) species and the legality of them in the US. I know what species are on the CITES list, but I was more concerned with the legality of frogs already in the hobby. Do you have any history of Dendrobatid legally imported into the US? I have heard that a few species have been given to various universities and the off-spring made it into the hobby. At what point are they legal? Are offspring of smuggled frogs legal? 

I ask these questions, because it has been a big debate in the hobby recently. We see many frogs in Europe that we do not find in the hobby in the US and we wonder why. There has been a lot of speculation, but we have found no hard evidence of the legality of certain species. We all are very concerned with the wild populations survivability and conservation, and do not want to impact them.

*Here is the answer they gave me:*
All CITES specimens must be traded in accordance with the provisions of the Convention. For specimens to be re-exported, they must have been imported in accordance with CITES. For instance, a specimen imported contrary to CITES provisions cannot be re-exported. The legal origin of specimens in trade is therefore very important. 

For a specimen to be captive-bred (for which different provisions may apply), it must meet the definition laid out in Resolution Conf. 10.16 (link below). 

http://www.cites.org/eng/res/10/10-16.shtml 

Otherwise, the specimens are still considered 'wild', even though they may have been born or raised in captivity. Concerning specific regulations or conditions that might be specific to the United States through its legislation, I recommend that you contact the CITES Management Authority of the USA, at: 

U.S. Fish and Wildlife Service 
Division of Management Authority 
4401 N. Fairfax Drive 
Room 700 
ARLINGTON, VA 22203-3247 

Tel: Chief and Operations Branch: 
+1 (703) 358 20 93; 358 20 95 
Branch of Permits: 
+1 (800) toll-free within the United States; otherwise +1 (703) 358 21 04 
Fax: Office of Chief, DMA: +1 (703) 358 22 80 
Branch of CITES Operations: +1 (703) 358 22 98 
Branch of Permits: +1 (703) 358 22 81 
Email: [email protected] (general/général) 
Web: http://international.fws.gov


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## Ed

This is the USF&W position on D. castenoticus. 

Dear Ed, 

Thank you for your inquiry regarding Federal laws and regulations concerning the possession and/or sale of Brazil Nut Poison Arrow (Dart) Frog (Dendrobates castaneoticus) from Brazil. Our mission is working with others to conserve, protect, and enhance fish, wildlife, and plants and their habitats for the continuing benefit of the American people. 

Many frogs from Brazil are illegal to import into the United States, sell, or possess in the United States. These frogs are protected by the Convention on International Trade in Endangered Species (CITES). The Brazil Nut Poison Arrow Frog is one such example of a protected frog species that is sometimes seen in the pet trade. 

The Federal statute dealing with the prohibitions of the Endangered Species Act and CITES can be found in 16 USC 1538. The Federal regulations dealing with the prohibitions can be found in 50 CFR 17 and 50 CFR 23. Both the statute and the regulations can be found at http://www.gpoaccess.gov.


With respect to the lehmanni referenced above they would be covered here 
http://www.cites.org/eng/res/11/11-14.shtml as long as non of the animals or thier offspring are used for a commercial purpose... 


I would also suggest reading the guidelines for placing confiscated animals at http://www.cites.org/eng/res/all/10/E10-07.pdf 


Ed


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## Jason

Good info Ed. Wow, I wonder what they say for every species of dendro?

It looks like most dendrobatid species were added to CITES 10/22/1987. Cound frogs have legally been imported prior to that?

I also ran a search of the trade database.

The CITES trade database, managed by UNEP-WCMC on behalf of the CITES Secretariat, is a unique resource and currently holds 7 million records of trade in wildlife and 50,000 scientific names of taxa listed by CITES. Currently, more than 500,000 records of trade in CITES-listed species of wildlife are reported annually.

I only came up with 30 dendrobatid species that were imported to the US in 2003. This was from 1975 to 2003 only 30 frogs.


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## Homer

Jason said:


> It looks like most dendrobatid species were added to CITES 10/22/1987. Cound frogs have legally been imported prior to that?


Yes. There is no requirement to obtain CITES papers on animals imported prior to them being on the CITES list.



> I also ran a search of the trade database.
> 
> The CITES trade database, managed by UNEP-WCMC on behalf of the CITES Secretariat, is a unique resource and currently holds 7 million records of trade in wildlife and 50,000 scientific names of taxa listed by CITES. Currently, more than 500,000 records of trade in CITES-listed species of wildlife are reported annually.


Yes, and the database applies only to animal records that are related to CITES-listed species. If the species is not CITES-listed, there will not be a record related to them.



> I only came up with 30 dendrobatid species that were imported to the US in 2003. This was from 1975 to 2003 only 30 frogs.


That is very easy to explain. You note that most Dendrobatids were not CITES-listed until 1987, so there would be no reason for any CITES records prior to 1987. In addition, I would venture to speculate that the database was not very well kept between 1987-say well within the dot com era (late '90's to 2000's). There could have been a TON of frogs legally brought in but not represented in the database (e.g., there could have been a ton of legally imported frogs during that time that were not represented in the CITES database).

Remember, the CITES convention is run by a bureaucracy. They only function to run the particular paperwork that they are directed to create. CITES is just a convention. It is just a series of rules that must be followed in order for import or export to occur.

The Lacey Act is the U.S. Law that makes breaking the CITES convention criminal within the U.S. So, if you get caught smuggling, you would be prosecuted under the Lacey Act.

The CFR (Code of Federal Regulations) sections that the USFW gave to Ed simply gives some guidance as to how the Lacey Act will be interpreted.


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## bbrock

Hey mods, any chance of getting this thread moved to science and conservation? There is so much useful info posted here I hate to see it lost in the oblivion of general discussion.


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## Ed

Another source of interest is the following paper

Gorzula, Stefan. 1996. The trade in dendrobatid frogs from 1987 to 1993. Herpetological Review. 27 (3):116­123. trade; Dendrobatidae 


Ed


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## Homer

Ed said:


> snip "But the WERE legally exported IF you happen to be the Oklahoma Zoo. I don't know whether the export agreement allowed the zoo to share with other zoos (I think it did) but the animals got into the private sector. They were never legally exported FOR the private sector. But they WERE legally exported. Hence the gray area. Is this a violation of CITES or is it just a breach of contract with Brazil? And how do you put the genie back in the bottle
> endsnip
> 
> Actually the permit prohibited the transfer of any of the frogs without express permission for each exception. If you check out the ISIS data base, only one Zoo/Aquarium still holds 4 male D. castenoticus.
> 
> If I remember correctly, the Oklahoma Zoo was not the importing institution. It was the Oklahoma Museum of Natural History for research on thier breeding behavior. The offspring were then sent to the Zoo, from where they were dispersed...
> 
> Ed


Ed, 

I think you may be leaning too heavily on the prohibition of transfer included in the permit. That sounds to me like a breach of contract by the zoo if it let them out, which is a civil suit. IF (and I am intentionally capitalizing the IF) the CITES paperwork was still generated for those animals, and those animals are legal, what is the underlying basis for prosecution under the Lacey Act?

Under US Law as I understand it, the Lacey Act makes any unlawfully imported animals a violation of the Lacey Act, as well as the posession of any of the offspring. It's your basic fruit from the poisoned tree theory. If the adults are illegal, the offspring are illegal.

However, in the case of the casti's, you have legal adults--a nonpoisonous tree if you will. So, how do the offspring suddenly become illegal?

The only legitimate argument I can think of, without knowing the details of the actual transfer agreement and circumstances, is that Brazil got cute with the transfer and essentially said: Here, zoo, you can house and care for these frogs, but they remain the property of the Brazilian government, and we are not going to issue you the proper CITES paperwork because we still consider them our property. There would have to be some winking going on between Brazil and the USFW to let them come in, and, at that point in time, they would still have been technically smuggled.

I guess there could be some other treaty between the US and Brazil, or a crazy Brazilian law that might constitute a basis for a Lacey prosecution, but it really does not make sense, and given my take, I would say it would be a wild-eyed argument. There has to be a violation of another law or treaty ratified by Congress to form the basis of a Lacey prosecution. But then, government agencies have been known to make wild-eyed arguments and many times are taken to task in federal court.

I think your USFW contact might have missed the boat a bit by citing 16 USC 1538 (Prohibitions under the Endangered Species Act) and leaving out 16 USC 3372 (Prohibitions under the Lacey Act), which reads in part:

"Offenses other than marking offenses 
It is unlawful for any person— 
(1) to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, *treaty*, or regulation of the United States or in violation of any Indian tribal law; 
(2) to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce— 
(A) any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation *of any foreign law*; 
(B) any plant taken, possessed, transported, or sold in violation of any law or regulation of any State; or 
(C) any prohibited wildlife species (subject to subsection (e) of this section); 
(3) within the special maritime and territorial jurisdiction of the United States (as defined in section 7 of title 18)— 
(A) to possess any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law or Indian tribal law, or 
(B) to possess any plant taken, possessed, transported, or sold in violation of any law or regulation of any State; or 
(4) to attempt to commit any act described in paragraphs (1) through (3)." (emphasis added by me)

My thought is that the Lacey Act is probably a lot more relevant than the Endangered Species Act to our discussions, as it lends teeth to CITES.

Okay, enough talk of this for one night. I probably put everyone to sleep as is. I'll try to dig up some of the few published federal opinions enforcing the Lacey act that I came up with a few years ago. Don't expect them to show up anytime soon, though.


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## Ed

Hi Homer,


snip "I think you may be leaning too heavily on the prohibition of transfer included in the permit. That sounds to me like a breach of contract by the zoo if it let them out, which is a civil suit. IF (and I am intentionally capitalizing the IF) the CITES paperwork was still generated for those animals, and those animals are legal, what is the underlying basis for prosecution under the Lacey Act? "endsnip


See below

snip "Under US Law as I understand it, the Lacey Act makes any unlawfully imported animals a violation of the Lacey Act, as well as the posession of any of the offspring. It's your basic fruit from the poisoned tree theory. If the adults are illegal, the offspring are illegal. "endsnip


Actually it also prohibits all interstate commerce in animals that were illegally aquired or sold illegally over state or international border so it doesn't necessarily have to be imported... For example, 
1) if you violate the game laws collecting grey banded kingsnakes in Texas and then sell them over the state border or transport them for sale outside of Texas you have also violated the LACY Act. 
2) if you have a legally aquired indigo snake and sell it or its offspring over state borders without the cb wildlife permit required for interstate transactions you have also violated the LACY act
3) if you illegally transport wildlife over state borders you violate the LACY act (for example, shipping frogs as plants or decorative candles to get a shipper to accept them..


As the D. castenoticus were aquired in violation of the details listed below, they are all illegal.... 

See below for more comments 

snip "However, in the case of the casti's, you have legal adults--a nonpoisonous tree if you will. So, how do the offspring suddenly become illegal? "endsnip

The animals were brought in under a CITES permit prohibiting commercial transactions in the animals for the beginning so each and every transaction in these animals violates one part of the original agreement.... 

snip "The only legitimate argument I can think of, without knowing the details of the actual transfer agreement and circumstances, is that Brazil got cute with the transfer and essentially said: Here, zoo, you can house and care for these frogs, but they remain the property of the Brazilian government, "endsnip

According to the import agreements and paperwork, all of the castenoticus and all of thier offspring remained the property of the Brazilian goverment. According to the agreement allowing the import, the animals were not to be transferred to any non-approved INSTITUTION, dispersed to the private sector or to be used for any commercial sale. 

Ever since the whole epidobatine issue, this is how many countries are now treating wildlife exports to Zoos and other institutions. For example, Panama owns all of the Atelopus zeteki and the Atelopus varius (and thier offspring) that they allowed to be collected for Operation Golden Frog and that they are prohibited from commercial trade or transferance to any non-approved AZA Institution (this was deliberatly based on the D. castenoticus issue so that any that showed up in the private sector could be immediately seized and the owners prosecuted)


snip "and we are not going to issue you the proper CITES paperwork because we still consider them our property. There would have to be some winking going on between Brazil and the USFW to let them come in, and, at that point in time, they would still have been technically smuggled."endsnip

Actually there wouldn't have to be any "winking" at all as the allowing export and import documentation doesn't have to have anything to do with transferring ownership.... 
This occurs all the time with Zoos and the paperwork and agreements have been well worked out for decades and has become pretty standardized. 

snip "I guess there could be some other treaty between the US and Brazil, or a crazy Brazilian law that might constitute a basis for a Lacey prosecution,"endsnip


Yes, the USA goverment recognizes Brazil's claim that the frogs and thier offspring are 
1) Brazilian property
2) they were aquired by the private sector in violation of the import agreements 
etc 

snip "has to be a violation of another law or treaty ratified by Congress to form the basis of a Lacey prosecution."endsnip

No it doesn't have to be a law ratified by Congress see my comments above... 

snip "But then, government agencies have been known to make wild-eyed arguments and many times are taken to task in federal court. "endsnip


Having worked with a lot of confiscated animals over the last 15 years, I have yet to see the LACY act argument lost by USF&W.... 


"Offenses other than marking offenses 
It is unlawful for any person— 
(1) to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law; 
(2) to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce— 
(A) any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law; "endsnip


I think that if you read through the details listed above you can find multiple points where D. castenoticus would be covered by the LACY act.....


Ed


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## Homer

Ed,

I think you are confusing contract violation with illegality. Please note that the trigger for any violation of the Lacey Act (named for Congressman John Lacey who introduced the bill into the U.S. House of Reps) is the requirement of an act that is "in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law" or "in violation of any law or regulation of any State or in violation of any foreign law." You have not identified any of those triggers in the castis situation, only that there was a violation of an import agreement.

An import agreement is not a treaty. It is a contract between two parties. Contracts are not statutory laws or treaties. 

Your examples using indigo snakes is not really a parallel because the taking of them from the wild without a proper permit (roughly equivalent to CITES papers) would violate a U.S. or state statute.

The details you indicated on their import still do not clearly indicate that the offspring, when given to a third party, would violate a a treaty or law.

Yes, they may violate an agreement between the zoo and Brazil, but the legal recourse there is to sue the party in privity--the zoo--for breach of contract in a civil case.

That is my point. Where is the underlying law, treaty, or regulation that was broken when the zoo dispersed the offspring? You have to be able to point to another legal citation and say that law, treaty, or regulation was broken before you have a Lacey Act violation.

The Endangered Species Act is completely different. It prohibits certain acts directly, rather than prohibiting acts based upon the violation of other laws, treaties, or regulations. So, in fact, whenever you have a violation of the Endangered Species Act, you often have a violation of the Lacey Act, but not vice versa. However, I do not see where the Endangered Species Act fits in with the castis situation, but I would have to look over the statute more carefully. My recollection is that an animal must be listed in the Code of Federal Regs before ownership or transfer of said animal becomes subject to the ESA.

If you go back through the act with that understanding, I think you will better understand my arguments in the previous post. Until you can point to the specific law, treaty, or regulation that was originally violated, a Lacey prosecution is a bootstrapping argument.

If you have some precedential written opinions that state otherwise, I would appreciate a copy.


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## Ed

snip Yes, the USA goverment recognizes Brazil's claim that the frogs and thier offspring are 
1) Brazilian property "endsnip 

(under Brazilian law all wild life is the property of the Brazilian goverment and ownership of the frogs was not transferred by the Brazilian Goverment so the frogs and thier offspring were/are still owned by the Brazilian Goverment). 

So 
or "in violation of any law or regulation of any State or in violation of any foreign law." 

As the Brazilian goverment has laws that prohibit the commercial dealings in the frogs as well as laws stating that they own all of the frogs and the USA recognizes those claims.... All violations descend from that point. In other words if you want to simplify the whole thing everyone with castenoticus has stolen property and has been selling/trading or transporting stolen property... 

The example with the indigos was to clarify that to violate the LACY act you do not have to have a "violation of another law or treaty ratified by Congress" and that it can occur with legal animals. All you have to do is violate state laws or improperly ship animals across state lines. 

I do not have access with this computer to case law. I was anecdotally citing my experience with 15 years of recieving confiscated animals at work and holding the animals pending trial and being told the results when the animals are released to us by USF&W.... 

Ed


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## Homer

> No it doesn't have to be a law ratified by Congress see my comments above...


I said it had to be a law or *treaty *ratified by Congress. I also underlined the other forms of laws specificaly listed in the Lacey Act. Under the plain meaning of the law, there must be a violation of one of those enumerated legal documents before a Lacey Act violation occurs. All the other stuff is just trimming to make sure that the law satisfies the commerce clause so that Congress has power to control it.



> snip "But then, government agencies have been known to make wild-eyed arguments and many times are taken to task in federal court. "endsnip
> 
> 
> Having worked with a lot of confiscated animals over the last 15 years, I have yet to see the LACY act argument lost by USF&W....


Maybe so, but have they ever tried this issue? The issue at hand is what we are discussing, based upon the facts given. Indeed, several government agencies have lost some pretty wild arguments they made. Currently, FEMA jumps to mind.

Most animals confiscated are going to be picked up at the point of entry without proper paperwork. That is a slam dunk case, and I would expect the USFW attorneys to win a Lacey argument in those circumstances, even if they are only minimally competent (the requirement for passing the bar exam). 

However, you still have not pointed out where any of the triggering events required under the Lacey Act occurred in this circumstance. The animals were brought in to the country complying with CITES, and compliant with Brazil's laws. Which "law, treaty, or regulation of the United States" "Indian tribal law," or "law or regulation of any State or . . . foreign law" was violated by distributing the offspring?

If you can't answer that question, you can't find a Lacey Act violation. I'm not saying such a violation does not exist in this situation, as I am not privy to all the facts as they occurred. I'm just saying that the facts as presented do not appear to support such a finding.


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## Ed

snip ". foreign law" was violated by distributing the offspring? "

If you can't answer that question, you can't find a Lacey Act violation. I'm not saying such a violation does not exist in this situation, as I am not privy to all the facts as they occurred. I'm just saying that the facts as presented do not appear to support such a finding."endnsip

I think I have said this two different ways so far but now here is the third.... Brazil owns the frogs by thier own laws, has laws prohibiting thier possession without the express permission of the Brazilian Goverment and prohibits commerce in said frogs by people other than the Brazilian Goverment. As the possession of the frogs and/or practicing commerce in these frogs in the USA by any person or institution not approved by the Brazilian goverment is a violation of the Brazilian Laws then the LACY act comes into play as this would be a violation of this part of the LACY act snip "violation of any foreign law."endsnip.

If you ask USF&W they will flat out tell you that they will enforce any foreign laws covering wildlife. 

snip "I said it had to be a law or treaty ratified by Congress. I also underlined the other forms of laws specificaly listed in the Lacey Act. Under the plain meaning of the law, there must be a violation of one "endsnip

We keep going back and forth on this because to me it appears you are stating that unless you violate a federal law, or a ratified treaty you are not eligible for prosecution under the LACY act. 
The game laws within any state in the USA are not laws or treaties ratified by congress. If you collected a bullfrog in Pennsylvania with a fishing license and then drove it into NJ and sold it to a kid for $3.00 you would be violating the LACY act as you would have violated Pennsylvania's laws on selling game animals... 

I know that a peson who recieved illegally collected timber rattlesnakes from North Carolina was successfully prosecuted under the LACY act. (The same person is now again being prosecuted for not learning his lesson and had illegally collected rattlesnakes mailed to him via the postal service as designer candles. ) This was two years ago and should be going to trial soon. 

Ed


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## Homer

Ed said:


> snip Yes, the USA goverment recognizes Brazil's claim that the frogs and thier offspring are
> 1) Brazilian property "endsnip


Huh? That is not a statute, treaty, or anything else pointed out in the Lacey act (NOT the LACY act). Who owns the frogs seems pretty irrelevant as long as they were imported legally. 



> (under Brazilian law all wild life is the property of the Brazilian goverment and ownership of the frogs was not transferred by the Brazilian Goverment so the frogs and thier offspring were/are still owned by the Brazilian Goverment). So or "in violation of any law or regulation of any State or in violation of any foreign law."


That is a creative argument, but that is the very argument that I was referring to as wild-eyed. There still is no specific citation of Brazilian law that you are referring to, only speculation about what statutes are on Brazil's books.

The public policy behind the Lacey Act is to prohibit the importation or transport in interstate commerce of animals that were brought into the country or taken in violation of a foreign country's laws, state laws, federal laws, or treaties. It gives teeth to laws that could not otherwise be enforced. That is not the case here. The frogs were imported legally and posessed legally by the zoos. At best, it would be a close call for USFW to prosecute, IMHO (this is not to be construed as legal advice here), even if they could prove a particular animal owned by a hobbyist was descended from the zoo line rather than some pre-1973 animals.



> As the Brazilian goverment has laws that prohibit the commercial dealings in the frogs as well as laws stating that they own all of the frogs and the USA recognizes those claims.... All violations descend from that point.


Whether the US recognizes the claims of ownership or not is immaterial if you cannot point to a specific law or treaty that is violated in obtaining the animals in question. In other words, if possession of the animals by anyone other than the Brazilian government is a violation of the Lacey Act, then the zoo is in violation, unless there was some treaty that accompanied the importation of these frogs that exempted this transaction. The contractual agreement does not change law. Period.

Brazilian law prohibiting commercial dealings in the frogs don't seem applicable under the public policy of the Lacey Act, nor am I convinced that giving a frog to another person is a commercial dealing. 




> In other words if you want to simplify the whole thing everyone with castenoticus has stolen property and has been selling/trading or transporting stolen property...


Yes, that is an interesting argument, but that interpretation would mean that if someone stole my dog, and did one of the other acts enumerated in the Lacey Act, they would be in violation of the Lacey Act. I do not believe this to be a reasonable interpretation of the statute, as it goes beyond the public policy behind the Act.

Further, I'm not sure I agree with your characterization that the casti's are stolen property. Who stole them? The zoo? The person receiving the animals from the zoo? Is the person receiving the animals simply holding the animals for Brazil at the behest of the zoo? If the frogs are not disseminated outside the zoo, would the throwing out the offspring or killing them constitute vandalism or destruction of property owned by another? Presumably the garbage man would be in violation of the Lacey Act when the dead tadpoles are shipped to the landfill across state lines.

I'm pushing these issues to the point where they seem silly here, but they are all logical extensions of the argument posed. 

I definitely see your point, and I agree that the two arguments that you have posed--(1) ownership may violate some Brazilian law that might be considered to be a law within the scope of the Lacey Act (that's too many ifs to be a winner in my book without additional information) and (2) transfer from the zoos triggered a violation of some state theft law--are the most likely to be the arguments used. I simply do not think that these are winning arguments when the USFW would have to prove that a violation occurred "beyond all reasonable doubt."



> The example with the indigos was to clarify that to violate the LACY act you do not have to have a "violation of another law or treaty ratified by Congress" *and that it can occur with legal animals*. All you have to do is violate state laws or improperly ship animals across state lines.


No, the bold underlined portion of your statement is not a reasonable interpretation of the law, and your statement contradicts itself because an animal held in violation of a state law is not a legal animal. As I pointed out by underlining the important points of the statute, the first trigger for a Lacey Act violation is the violation of a law, treaty, state or foreign law. I am sorry if you were interpreting my statement to mean that only federal or treaty law was in question, but what I was trying to point out is that contract violations will not trigger a Lacey Act violation. The other trigger points were specifically underlined by me in the excerpt of the statute that I quoted.

I'm not sure what you mean by "improperly ship animals across state lines." The shipment across state lines trigger (a second trigger) is in the statute so that Congress has a Constitutional hook to be able to regulate this type of activity, since our federal government is one of enumerated powers with the remainder vested in the states. Specifically, this language is written in to trigger the interstate commerce clause, giving Congress the authority to regulate these acts.




> I do not have access with this computer to case law. I was anecdotally citing my experience with 15 years of recieving confiscated animals at work and holding the animals pending trial and being told the results when the animals are released to us by USF&W....
> 
> Ed


Ed, I wasn't trying to be confrontational there. I was simply wanting to study any case law you had to the contrary of what I wrote, as my interpretation is coming from the plain meaning of the statute, along with the few cases I have seen. I'd be interested in any written opinions that you have regardless--much like your request for publications when scientific issues are discussed and debated.

Don't get me wrong--I don't have castis, and I don't plan on ever owning castis. I simply do not think the issue of their legality is as cut and dried as most seem to believe. Of course the USFW will assert that it is cut and dried.

However, I don't think anyone will know until/unless it ever gets litigated. If I was a USFW attorney, I would not be thrilled about trying to prosecute that case, as I don't think it's a winner.


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## Jason

What if we (as a hobby) got together and gave all of the captive breed casti's back to the Brazilian Government, as a show of good faith and what what we can do to increase populations in the hobby.


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## Homer

Ed said:


> We keep going back and forth on this because to me it appears you are stating that unless you violate a federal law, or a ratified treaty you are not eligible for prosecution under the LACY act.


Ed, please read this opening paragraph to my previous post: (sorry, the wording originally sounded harsh here--not intended)



Homer said:


> Please note that the trigger for any violation of the Lacey Act (named for Congressman John Lacey who introduced the bill into the U.S. House of Reps) is the requirement of an act that is "in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law" or "in violation of any law or regulation of any State or in violation of any foreign law." You have not identified any of those triggers in the castis situation, only that there was a violation of an import agreement.


I think that will clarify that I am not saying that only federal law or treaties apply. I was simply pointing out that contract law will not be a trigger. I intentionally quoted the excerpts from the Lacey Act and underlined the triggers in my first response. I understand the trigger, and I think you do to. That is not the reason I am going back and forth on this.

I just don't agree that the facts you are quoting fulfills one of those triggers.



Ed said:


> If you ask USF&W they will flat out tell you that they will enforce any foreign laws covering wildlife.


They might say that, but they're wrong. I also believe this is where you are wrong in your interpretation of the Lacey Act. The USFW will not enforce foreign laws regarding acts to wildlife when the acts occur beyond the reach of the foreign sovereign's power. They can't, because the foreign government has no legal power in those areas, and the laws have no force. So, does violating a law that is not in effect really violate anything at all? No.

Let's say that Brazil has a law against killing cattle. Can the USFW enforce that Brazilian law when a Texas rancher takes his cattle to the rendering plant in Dallas? No way. Why not? The cattle rendering (prohibited act) happened outside the reach or effect of the foreign law--outside the area where the sovereign has power.  If the Texan was in Brazil, let's get a rope!

Okay, so Brazil has a law prohibiting frogs from exchanging hands. So, if that law is broken in Brazil, you have a violation of the law. If that exchange of hands happens in the US is there a violation? Well, only if we are going to jail the Texas rancher, too. The violation of a Brazilian law needed to happen before or at the time of export in order to be a violation. That is why I cannot be prosecuted when I go to Grand Cayman and smoke a Cuban cigar. If I was in the U.S. smoking that Cuban, I could. So, as I said, there is no underlying foreign law that was violated. The ownership is a red herring in this instance. It only comes into play in the theft argument.

That is why I indicated that the argument about violation of foreign law is wild-eyed. If USFW really believed they could enforce all violations of foreign laws that occurred on US soil, they would be giving power to foreign governments to control citizens going about their lives in the U.S.

I agree, the USFW can use the Lacey Act to enforce violations of foreign laws when the violation occurred within the territorial reach of the foreign government, but that is not the statement that was made, nor is it the argument that was made with regard to casti's.


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## Homer

I just wanted to point out that the back and forth here between Ed and I is not confrontational (or at least I am not taking it to be confrontational from him, and I am not intending for my responses to be confrontational).

Please do not take it as such, and feel free to insert your thoughts. I agree with Ed on a lot of other topics, but this is one place where I think it is helpful to tease out the issue and point out where I think the USFW arguments are dead wrong.

This may be the only time I have to take a position opposite Ed and be right.


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## Ed

snip "That is a creative argument, but that is the very argument that I was referring to as wild-eyed. There still is no specific citation of Brazilian law that you are referring to, only speculation about what statutes are on Brazil's books. "endsnip


How is your Portuguese? You can contact the appropriate Brazilian govermental agency and request thier stand on the D. castenoticus in the USA..... 

snip "The public policy behind the Lacey Act is to prohibit the importation or transport in interstate commerce of animals that were brought into the country or taken in violation of a foreign country's laws, state laws, federal laws, or treaties. It gives teeth to laws that could not otherwise be enforced. That is not the case here. The frogs were imported legally and posessed legally by the zoos."endsnip

I am going to out a little bit of information here... No, they were only imported and legally possessed by two institutions. All other holding institutions have had to return the all D. castenoticus (live or dead) or provide notarized documentation of the disposal of the bodies. My udnerstanding is that this was conducted under threat of legal action if the institution failed to comply. 
My understanding is that the possession of D. castenoticus by the private sector had come to the attention of the Brazilian goverment who is making an issue of it. 


snip "At best, it would be a close call for USFW to prosecute, IMHO (this is not to be construed as legal advice here), even if they could prove a particular animal owned by a hobbyist was descended from the zoo line rather than some pre-1973 animals. "endsnip

This argument was to my understanding tried and lost with an import of FlyRiver Turtles (Carretochelys insculpta). Through various testing, they were able to prove that the animals were wild caught. If you stop by my place of employement you can currently see two of the animals from this confiscation on exhibit. I suspect that if they wanted you bad enough they would do DNA comparisions to determine the genetics... The use of forensics in these cases is becoming more and more common. 

Quote: 
As the Brazilian goverment has laws that prohibit the commercial dealings in the frogs as well as laws stating that they own all of the frogs and the USA recognizes those claims.... All violations descend from that point. 


Whether the US recognizes the claims of ownership or not is immaterial if you cannot point to a specific law or treaty that is violated in obtaining the animals in question. In other words, if possession of the animals by anyone other than the Brazilian government is a violation of the Lacey Act, then the zoo is in violation, unless there was some treaty that accompanied the importation of these frogs that exempted this transaction. The contractual agreement does not change law. Period. "endsnip

I think I pointed that out in earlier that the importation agreement maintained ownership by the Brazilian goverment and that the animals were on loan to that specific institution originally and later amended to include a second institution. 

snip Brazilian law prohibiting commercial dealings in the frogs don't seem applicable under the public policy of the Lacey Act, nor am I convinced that giving a frog to another person is a commercial dealing. "endsnip 

Even though is specifically mentions foreign laws about wild life? 




Ysnip "Yes, that is an interesting argument, but that interpretation would mean that if someone stole my dog, and did one of the other acts enumerated in the Lacey Act, they would be in violation of the Lacey Act. I do not believe this to be a reasonable interpretation of the statute, as it goes beyond the public policy behind the Act. "endsnip


In this case you would be correct as a dog is specifically not defined as wildlife. It is personal property and other laws would cover it. So if someone stole your dog, crossed state lines and then sold it, there would be other federal laws that would have jurisdiction over it. The frogs are defined as wildlife which gives the LACY act jurisdiction over the issue. 

snip "Further, I'm not sure I agree with your characterization that the casti's are stolen property. Who stole them? The zoo?"endsnip

See my comment above. 
The original importing Zoo and the amendment covering the second Zoo would automatically prohibit them from being part of the stolen property chain... 

snip "The person receiving the animals from the zoo?"endsnip

As I understand it, according to the Brazilian statement over these frogs yes. 

snip "Is the person receiving the animals simply holding the animals for Brazil at the behest of the zoo?"endsnip

No, as there would have to have been paperwork that accompanied the frogs that gave permission from the Brazilian goverment for this person to do so. 

snip " If the frogs are not disseminated outside the zoo, would the throwing out the offspring or killing them constitute vandalism or destruction of property owned by another?"endsnip

This would have been addressed in the agreement. For example in the PGF agreement surplus animals are to be humanely euthanized and disposed of in accordance to the agreement. 

snip "Presumably the garbage man would be in violation of the Lacey Act when the dead tadpoles are shipped to the landfill across state lines. "endsnip

The frogs would be considered biohazardous waste and shipped to a approved facility for disposal as stipulated in the agreement covering the import of the animals. 


snip "I'm pushing these issues to the point where they seem silly here, but they are all logical extensions of the argument posed. "endsnip


As I stated earlier, these kinds of agreements have been going on between goverments and Zoos for a long time so all of these issues are addressed in any of the documentation before you can proceed with the importation and there are examples where the body of the animal has to be returned to the goverment that owns the animal (I believe that is the current agreement regarding giant river otters). 


snip "I'm not sure what you mean by "improperly ship animals across state lines." The shipment across state lines trigger (a second trigger) is in the statute so that Congress has a Constitutional hook to be able to regulate this type of activity, since our federal government is one of enumerated powers with the remainder vested in the states. Specifically, this language is written in to trigger the interstate commerce clause, giving Congress the authority to regulate these acts. "endsnip

Under the LACY act, if you violate the shipping requirements such as by improperly labeling an container with an animal animal or falsely label an enclosure for shipping an animal for interstate commerce you can be prosecuted under the LACY act. 

For example, shipping firebellied newts as plants. This person was prosecuted because the box began to leak, and was opened and inspected because of the leak. It contained no plants but the newts and a bill of sale.... 


snip "Ed, I wasn't trying to be confrontational there. I was simply wanting to study any case law you had to the contrary of what I wrote, as my interpretation is coming from the plain meaning of the statute, along with the few cases I have seen. I'd be interested in any written opinions that you have regardless--much like your request for publications when scientific issues are discussed and debated. "endsnip

(as noted above how is your Portuguese?) Most AZA institutions have a registrar whose position is to keep up with the current understandings and interpretations of the laws by the various enforcing agencies. I am relaying the current interpretations as passed through the registrar, curators and the USF&W agents I deal with. (when there is a local venomous or exotic reptile confiscation we are often brought along to pack up the hot stuff (as we do it every day) and to provide identifications of animals if the agents are unfamilar with them. As this can take a number of hours (between transport time, and packing and securing the animals, you get a lot of time to talk to the field agents who are enforcing these interpretations). We usually get at a call from USF&W every year or two and probably about at least once a year from the local authorities. 
I am relaying the information surrounding castenoticus as relayed through the registrars and curators which was to some extent confirmed by my conversation with USF&W (and to back that up is why I queried them using my keeper title). 

snip "However, I don't think anyone will know until/unless it ever gets litigated. If I was a USFW attorney, I would not be thrilled about trying to prosecute"endsnip

If it is at the behest of a foreign goverment whom we need to continue good relations, then I don't think the prosecutor's opinion really matters.... 

Ed


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## Homer

Ed,

You are missing the point. You agree that these are agreements between Governments and Zoos that are being broken. Broken agreements do not rise to the level to trigger a Lacey violation.

You agree that the frogs were imported properly and legally, but with an understanding between the government and the zoo.

You note that your basis for the wrongful act occurred in the U.S.--outside the reach of the foreign law that is supposedly being violated. A violation of a law outside the geographic reach of the law is not a violation. The violation would have had to occur by exporting them from Brazil in contravention of their law. Having the wrongful act under Brazilian Law occur on U.S. soil makes the act not in violation of Brazilian Law. Brazilian law does not have effect on actions outside its boundaries unless you are a Brazilian citizen.

It does not matter how a Brazilian court would find the case, as a U.S. court is going to rule on this matter. An act on U.S. soil by a U.S. citizen is not going to be covered by a Brazilian law. It's just silly when you think about it. Go back to the Texas rancher argument, and it should make sense without even having to make a long legal theory discussion. We can even change the cattle into some other wildlife that was legally imported and ranched, and the point remains the same.

So, reading Portuguese is not a prerequisite for understanding how the Lacey Act will be applied. I was asking for citations of U.S. cases applying the Lacey Act. No Portuguese is required. I do not think that anyone here is worried about being extradited to Brazil for owning a Brazil Nut Frog.

You note that your basis for violation of state law lies in a theft theory, and try to throw out my dog argument by noting that dogs are not covered by the definition of "wildlife". I agree, you are right that this was not technically correct based on the "wildlife" definition, but it was an example. You could replace the term dog with frog (e.g., someone steals one of my azureus), and my example is now technically correct, and my point is still the same. 

Either way, your interpretation is in contravention of the public policy behind the Lacey Act and makes the Act overinclusive of acts that fall outside the stated purpose of the Act. Theft in this situation is not likely to be a basis for the trigger of the Lacey Act. The basic legal principle of overinclusiveness and selective prosecution has been used in the interpretation and invalidation of several laws, and indicates that this is not a valid basis for a trigger.

No offense, but if you are going to get technical on arguments and use fine points to confuse the point being made, please spell the name of the act correctly. If you want to be technical, there will never be a violation of the LACY act because it doesn't exist.

Ed, I respect the fact that the USFW has enforced the Lacey Act many times in many different situations. However, for the two reasons above, I posit that enforcement under the facts you have given will not happen if it is challenged legally.

Sure, a prosecutor may be forced to prosecute it by a superior, but it will matter what the judge has to say in the end. The arguments for enforcing the Lacey Act under the given facts are just way off base and contrary to the written law.


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## Homer

Ed said:


> I am going to out a little bit of information here... No, they were only imported and legally possessed by two institutions. All other holding institutions have had to return the all D. castenoticus (live or dead) or provide notarized documentation of the disposal of the bodies. My udnerstanding is that this was conducted under threat of legal action if the institution failed to comply.
> My understanding is that the possession of D. castenoticus by the private sector had come to the attention of the Brazilian goverment who is making an issue of it.


I totally understand this. However, all of the legal threats and the requirements that the holding institutions return the bodies with affidavits do not arise out of Brazilian law or any U.S., State, Indian Tribal law, or treaty. 

That threatened legal action would be completely based on the agreements you were referring to above--a civil action (a lawsuit between two parties), not a criminal action (the Lacey Act).

I think you are confusing the two. Your use of the term "legally possessed" is very loose here, and is allowing you to make the jump from "illegal"=trigger of Lacey Act. That is not the legal trigger.

If you are not confusing the two, the inclusion of this argument is likely to confuse others trying to understand how the law works.

The frogs were legally imported under your discussion of the fact. Period.

You are looking to the dissemination of the frogs to the general public by the zoo as the trigger for the prohibited act. That has to be the basis for the trigger. For the reasons set forth above, the transfer (1) does not violate foreign law, and (2) the creative theft theory should not be considered as a state law trigger for the Lacey Act.

If you have another basis for asserting a Lacey Act that I have missed, please let me know.


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## Ed

Hi Homer,

Most of these things I am typing on break at work or between jobs so if there is a misspelling it is more due to a time issue than a misunderstanding of the issue... 


The provisions of the LACEY act specifically cover wildlife aquired in violation of any foreign law (according to the registrat this was covered in the amendments in 1981) regardless if the aquisition occured with the jurisdiction of the USA or in a foreign country. 

See says to see http://ipl.unm.edu/cwl/fedbook/laceyame.html for a decent explination of how the LACEY act is currently handled.

and from the link she sent... 

snip "Overview. This Act replaces the Black Bass Act of 1926 and most of the original Lacey Act. The Lacey Act Amendments make it unlawful to import, export, transport, buy or sell fish, wildlife and plants taken or possessed in violation of federal, state or tribal law. Interstate or foreign commerce in fish and wildlife taken or possessed in violation of foreign law also is illegal. The Act requires that packages containing fish or wildlife be plainly marked. Enforcement measures include civil and criminal penalties, cancellation of hunting and fishing licenses, and forfeiture.

Selected Definitions. Fish or wildlife: an alive or dead wild animal, including a wild mammal, bird, reptile, amphibian, fish, mollusk, crustacean, arthropod, coelenterate or other invertebrate, and including any part, product, egg or offspring. Import: land on, bring into, or introduce into any place subject to U.S. jurisdiction. Plant or plants: a wild member of the plant kingdom, including roots, seeds and other parts (but not common food crops) indigenous to a state and either listed on an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or under a state conservation statute. Secretary: Secretary of the Interior or Secretary of Commerce, according to program responsibilities; Secretary of Agriculture for provisions on the import or export of plants. Taken: captured, killed or collected. Transport: move, convey, carry or ship by any means, or deliver or receive for these purposes. § 3371. 

Prohibitions on Activities. The Act makes it illegal to import, export, transport, sell, receive, acquire or purchase fish, wildlife or plants taken, possessed, transported or sold in violation of a federal law, treaty, regulation or Indian tribal law. It also is illegal for a person to import, export, transport, sell, receive, acquire or purchase in interstate or foreign commerce: fish or wildlife taken, possessed, transported or sold in violation of a state law, state regulation or foreign law; plants taken, possessed, transported or sold in violation of a state law or regulation. The Act also makes it illegal to possess within the special maritime and territorial jurisdiction of the U.S.: fish or wildlife taken, possessed, transported or sold in violation of a state law, state regulation, foreign law or Indian tribal law; plants taken, possessed, transported or sold in violation of a state law or regulation
endsnip 


Ed


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## Homer

Ed said:


> The provisions of the LACEY act specifically cover wildlife aquired in violation of any foreign law (according to the registrat this was covered in the amendments in 1981) regardless if the aquisition occured with the jurisdiction of the USA or in a foreign country.
> 
> See says to see http://ipl.unm.edu/cwl/fedbook/laceyame.html for a decent explination of how the LACEY act is currently handled.
> Ed


Ed,

I understand the Lacey Act. The cites you are giving have no legal precedential value. They are simply overviews given by colleges. They really shed no light on the issues here, and neither support or conflict with anything we have said here.

Here is the point that you are missing. When is a law violated? It is illegal in country A to catch a bluegill and eat it because it is a protected fish. It is legal in country B to catch a bluegill and eat it.

Let's say that country A is Mexico and country B is the USA. 

Our Texas rancher, with proper state permits, catches a bluegill in a stream 5 miles inside the Texas border with Mexico. 

Are you going to prosecute him under the Lacey Act?

Under your interpretation of the Lacey Act, Ed, you are going to prosecute our Texas rancher again because he violated Mexican law, even though he was in Texas. 

If that doesn't seem silly to you, you are missing a fundamental tenent of the law. Laws are made by governments. Governments have borders. Ergo, laws have borders. Violation of a law is predicated on where the prohibited action occurs. 

If that poor Texan was in Mexico, caught the bluegill, and ran across the border, then BINGO! You have the basis for a Lacey Act violation. That is exactly how the Lacey Act is set up to work. If we take your interpretation of the law, there are a lot of ridiculous results that will occur . . . not the least of which is the hanging of our poor Texas rancher for enjoying his perfectly legal pastime.

While the Texan example seems silly and far-fetched, it is not. Think about it: do you think the Texas and Mexico fishing limits are the same? I doubt it. So, if you abide by the Texas fishing limits, but somehow break the Mexico fishing limit, are you in violation of the Lacey Act? Under your interpretation you are.

Ed, if the USFW is taking the position you are espousing, they are in for some hefty legal fees and a lot of books being thrown at them. Sorry, it's just plain wrong.


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## Ed

*long post*

Different computer

http://www.animallaw.info/cases/causfd937f2d1388.htm

Are you looking for something like this? 

When presented with similar arguments in United States v. 594,464 Pounds of Salmon, 871 F.2d 824 (9th Cir.1989) (594,464 Pounds ), however, we ruled that a Taiwanese regulation prohibiting the export of salmon without a permit constituted a "foreign law" under section 3372(a)(2)(A) and thereby supported an Act violation. That regulation was issued, as in this case, by a body of the Executive Yuan of the Republic of China, and we concluded that "the Act's term 'any foreign law' necessarily encompasses the Taiwanese regulation." Id. at 828. We first focused on the generally broad definition of the word "law" as " 'a body of rules of action or conduct prescribed by controlling authority, and having binding legal force.' " Id. at 826, quoting Black's Law Dictionary (5th ed. 1979). In response to the arguments regarding the significance of the failure to mention "regulation" when referring to foreign law, we observed that the 1981 Act Amendments "were passed in response to Congress's frustration at the inadequacy" of prior laws. Id. at 827; see also S.Rep. No. 123, 97th Cong., 1st Sess. 2-4, reprinted in 1981 U.S.Code Cong. & Admin.News 1748, 1749-51. Because Congress desired to expand the scope of the Act, we concluded that the term "any foreign law" was used not to limit the Act's applicability, but instead to encompass the wide range of laws passed by "the world's regimes that possess systems of law and government that defy easy definition or categorization." 594,464 Pounds, 871 F.2d at 828. A narrow interpretation that did not include at least foreign regulations as grounds for violations would only serve to "gut [ ] the statute." Id.

Thus, circuit precedent indicates that this Taiwanese regulation, almost identical to the one in 594,464 Pounds, constitutes a "foreign law." The fishermen urge a different result, however, because this action involves criminal penalties rather than the forfeiture action at issue in 594,464 Pounds. The Act provides for civil penalties, criminal penalties, and forfeiture of illegally taken fish and wildlife. See 16 U.S.C. §§ 3373(a) (civil), 3373(d) (criminal), 3374 (forfeiture). All of these penalties are meant to apply to those who engage in conduct in violation of section 3372. See id. No reason exists to suppose that Congress intended "any foreign law" to mean something different in the criminal context than in the forfeiture context. Thus, the interpretation set forth in 594,464 Pounds is applicable in this case.

The fishermen contend that the term "foreign law" is ambiguous, citing as support our statement in 594,464 Pounds. See 871 F.2d at 828 ("the statutory language 'any foreign law' cannot be said to be unambiguous when read in the context of the entire subsection"). Because "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity," Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), they argue that we should diverge from the 594,464 Pounds interpretation and construe "foreign law" more narrowly in the criminal context. We conclude, however, that the Act's criminal sanctions provision resolves any possible ambiguity. That provision only allows for the imposition of criminal penalties if a violator knew or, in the exercise of due care, should have known that he was taking fish unlawfully under "any underlying law, treaty, or regulation." 16 U.S.C. § 3373(d)(1)-(2). Because the criminal culpability requirements make reference to regulations, and because it seems clear that Congress intended "foreign law" to have a singular meaning throughout the Act, we hold that the Taiwanese regulation constitutes a "foreign law" in this case.

The fishermen also argue that even if some foreign regulations are sufficient bases for Act violations, this regulation is not one of them. Relying on a Third Circuit case, they assert that in order to qualify as a "foreign law" under the Act, a regulation must have been "designed and intended for the protection of wildlife." United States v. Molt, 599 F.2d 1217, 1218-19 (3d Cir.1979) (Molt ). They allege that the Taiwanese salmon regulation was not intended to protect salmon but was instead an economic measure, and is therefore inapplicable under the Act. In amending the Act in 1981, however, Congress clearly expressed its intent that the interpretation in Molt was "too restrictive." S.Rep. No. 123, 97th Cong., 1st Sess. 6, reprinted in 1981 U.S.Code Cong. & Admin.News 1748, 1753. Because the regulation "clearly does relate to wildlife," it is an applicable regulation under the Act. Id.

III

The fishermen next contend that Congress did not intend to impose criminal penalties under the Act for violations of a regulation that itself carries no criminal sanctions. They observe that the regulation at issue here provides only for the suspension of the licenses of the offending fishing vessel and the offending captain; it imposes no criminal penalties. Thus, the fisherman argue, to base criminal penalties on violations of this regulation is an unjustifiable, absurd result. See United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981).

In 594,464 Pounds, we rejected the argument that the Act did not encompass a Taiwanese salmon regulation because that regulation only provided for the imposition of civil sanctions. We concluded that the legislative history clearly demonstrated that "Congress intended the 1981 Amendments to apply to 'laws' that have nothing more than civil fines for penalties." 871 F.2d at 829. Because that holding was in the context of a forfeiture proceeding, however, the fisherman argue that it does not control in the present case.

The fishermen's interpretation is contrary to both the language and legislative history of the Act, and has been rejected by this court. In imposing criminal punishment for wildlife takings in violation of any underlying foreign law, the Act draws no distinction based on the type of sanction imposed by the underlying law. See 16 U.S.C. § 3373(d); see also id. § 3371(d) (defining "law" broadly for purposes of the Act, as any law "which regulate the taking, possession, importation, exportation, transportation, or sale of fish or wildlife or plants"). If foreign regulations do indeed qualify as "foreign laws" and can thereby support Act violations, no reason exists to suppose that Congress intended civil penalties to be imposed for violations of either criminal or civil regulations, while intending that criminal penalties only result from criminal regulation violations.

The fishermen argue the "inherent unfairness of applying criminal penalties to conduct that does not carry a criminal sanction in the relevant foreign country." They rely on United States v. Gordon, 464 F.2d 357 (9th Cir.1972), in which a federal gambling statute criminalized violations of "the law of a State." When confronted with uncertainty over whether Congress intended to refer only to state criminal laws or to refer also to civil laws, we resolved the ambiguity in favor of the defendant, holding that the federal crime could not be based on state civil violations. See id. at 357-58.

More on point, however, is United States v. Cameron, 888 F.2d 1279 (9th Cir.1989), in which we upheld a criminal Act charge that was based on the taking of halibut in violation of the federal Halibut Act, even though the Halibut Act only provided for civil penalties. Id. at 1282. We observed that criminal sanctions under the Act require an element of scienter. Id. This was inserted by Congress in response to fears that a simple general intent statute "would contain too much potential for abuse." S.Rep. No. 123, 97th Cong., 1st Sess. 12, reprinted in 1981 U.S.Code Cong. & Admin.News 1748, 1759. This indicates that Congress foresaw the consequences of imposing criminal sanctions under the Act on those who would only suffer civil penalties for violations of the underlying law, and decided to mitigate these consequences by including the higher criminal culpability requirement. We conclude that the statutory language, the legislative history, and our holding in Cameron all support the position that criminal penalties under the Act can be predicated on foreign regulations imposing only civil sanctions.

IV

Of the six fishermen, only Meng Hsu was the captain of a squid fishing vessel, so only he could be penalized in the Republic of China under the salmon regulation at issue. Because they were not subject to any sanction in the Republic of China, the other five fishermen contend that the regulation cannot support Act criminal sanctions against them. This argument, however, mistakes what action the Act penalizes. As demonstrated above, it is irrelevant under the Act whether the fishermen would be exposed only to civil sanctions under the regulation. Similarly, it is irrelevant whether the fishermen would be liable at all under the regulation. The Act's criminal penalty provision does not require that the fishermen violated the regulation, but only that they took part in importing the salmon when they knew, or should have known, that the salmon had been taken in violation of the regulation. 16 U.S.C. § 3373(d)(1)-(2). Thus, all six fishermen, whether or not they occupied the position of captain on the ship, are equally subject to the Act's criminal penalties.

V

The fishermen next contend that, by making it unlawful under 16 U.S.C. § 3372(a)(2) to trade in fish and wildlife "in violation of any foreign law," the Act unconstitutionally delegates congressional power to foreign governments. They argue that because foreign governments are free to define an essential element of an Act violation by passing any type of "foreign law," the Act violates article I of the Constitution, which vests all legislative powers in Congress. We review de novo the district court's rulings regarding questions of federal constitutional law. United States v. Savinovich, 845 F.2d 834, 839 (9th Cir.), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988).

The answer to this argument is found in 594,464 Pounds. Following the decisions of four other circuits, we held that the Act does not impermissibly delegate any legislative power to foreign governments. We reasoned that "the Act does not call for the assimilation of foreign law into federal law." 871 F.2d at 830. Although the Act does depend upon violations of foreign law, we held that "the [United States] government is not applying the foreign law per se, but rather it is looking to the foreign law to determine if the Act's provisions are triggered; if so, then it will apply the Act, and not the foreign law." Id. Read in this manner, the Act delegates no power to foreign governments, and therefore does not violate article I. Accord United States v. Rioseco, 845 F.2d 299, 302 (11th Cir.1988); United States v. Bryant, 716 F.2d 1091, 1094-95 (6th Cir.1983) (Bryant ), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984); Molt, 599 F.2d at 1219 n. 1; Rupert v. United States, 181 F. 87, 90-91 (8th Cir.1910).

The fishermen contend that we should not follow this precedent because of Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). They argue that Mistretta requires clear and specific guidelines in order for a delegation of power to be permissible under article I. Because the Act provides no such guidelines in delegating authority to foreign governments, they contend that Mistretta requires us to reverse our holding that the Act is constitutional. Mistretta, however, does not control. Its discussion pertains only to what is permissible when there is a delegation of legislative power by Congress. See id. at 371, 109 S.Ct. at 654. We have held, along with four other circuits, that the Act results in no delegation of legislative power, so the Mistretta discussion is therefore inapplicable. 594,464 Pounds, 871 F.2d at 830.

Finally, the fishermen point out that the Act does not provide for the translation into English of all foreign laws that may be the predicate for a violation. Because there is no feasible way to read these regulatory foreign laws in English, the fishermen argue that Congress has not retained the power to revise, alter, or revoke the power the Act grants to foreign governments. Thus, they contend, the Act's reliance upon foreign law is invalid. This argument fails, however, in light of the fact that Congress can obtain translations of any law that it wishes to review. We therefore reject the argument that the Act unconstitutionally delegates congressional power.

VI

The fishermen next contend that the Act is unconstitutionally vague because it fails to satisfy the due process requirements of fair notice and fair enforcement.

A.

With regard to fair notice, " 'because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.' " Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982) (Hoffman Estates), quoting Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972) (Grayned ). The fishermen argue that the Act's proscriptions do not clearly encompass the salmon regulation, and that therefore the Act fails to "give a person of ordinary intelligence adequate notice of the conduct it proscribes." 594,464 Pounds, 871 F.2d at 829.

We confronted this issue in 594,464 Pounds, and held that the term "any foreign law" was sufficiently clear to provide fair warning that the Act proscribes violations of the Republic of China regulation at issue in that case. Id. Thus, we ruled that the use of that term to define Act violations satisfied the constitutional standards of due process. Id. The fishermen argue, however, that our previous determination is applicable only to the civil forfeiture context under section 3374. Because "[a] statute providing for civil sanctions is reviewed for vagueness with somewhat greater tolerance than one involving criminal penalties," they contend that the Act is not sufficiently clear to justify the imposition of criminal penalties. 594,464 Pounds, 871 F.2d at 829, citing Hoffman Estates, 455 U.S. at 498- 99, 102 S.Ct. at 1193-94 (quotation omitted). They would have us hold that although section 3372 defines violations precisely enough to justify forfeiture proceedings, it is too vague to support criminal sanctions under section 3373.

This argument fails to recognize, however, "that a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed." Hoffman Estates, 455 U.S. at 499, 102 S.Ct. at 1194. Significantly, in enacting the criminal penalty provisions in 1981, Congress acknowledged the potential for abuse if it criminally punished conduct that was simply a violation of foreign law. "[A]s a simple general intent statute, the Lacey Act Amendments of 1981 would contain too much potential for abuse and indiscriminate enforcement efforts." S.Rep. No. 123, 97th Cong., 1st Sess. 12, reprinted in 1981 U.S.Code Cong. & Admin.News 1748, 1759. Thus, Congress inserted a culpability requirement when defining the violations that are subject to criminal penalty. As a result, although civil forfeiture penalties may be imposed solely upon proof that a defendant has violated section 3372, as when he or she has imported fish in violation of a foreign law, criminal penalties are imposed less freely. In order to be subject to criminal sanction, one must engage in conduct violative of section 3372, and must know or, in the exercise of due care, should know that "the fish or wildlife or plants were taken, possessed, transported, or sold in violation of, or in a manner unlawful under, any underlying law, treaty or regulation." 16 U.S.C. § 3373(d)(1)-(2). Thus, although one may be held strictly liable under the forfeiture provision for section 3372 violations, one must be significantly more blameworthy to be subject to the Act's criminal penalties.

This added scienter element prevents the Act from criminally punishing those who violate the Act's provisions but are reasonably unaware that they are doing so. The protections inserted by Congress prevent the Act from "trap [ping] the innocent by not providing fair warning," Grayned, 408 U.S. at 108, 92 S.Ct. at 2299, and therefore mitigate any potential vagueness of the Act. See 594,464 Pounds, 871 F.2d at 829; Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367 (1952) (the requirement of "culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the Regulation would be so unfair that it must be held invalid"). We therefore hold that the Act's language provides the "reasonable degree of certainty" that is demanded in this area to withstand an attack for failure to provide sufficient notice. Id. at 340, 72 S.Ct. at 330; see Bryant, 716 F.2d at 1095 (upholding the Act "as a whole" against a vagueness attack in the criminal context).

The fishermen also present several more narrow arguments in support of their vagueness attack. They contend that the failure of the government to provide written English translations of all foreign laws that can serve as predicates for Act violations results in a lack of fair notice. However, the Act is not "rendered unconstitutional by the fact that it, unlike many other federal laws, requires of a person a knowledge of underlying statutes." Id. Moreover, the culpable intent requirements eliminate the chance that criminal punishment will be imposed on one who violates the Act as a result of having no English translation.

Next, five of the six fishermen contend that because none of them were a captain and were therefore not subject to any penalty in the Republic of China, the Act is unconstitutionally vague when applied to them. The Act does not require that these fishermen violated the regulation, however, and therefore the fishermen's argument is inapposite. Whether or not the regulation alone could subject them to any sanction, the Act makes it clear that they are subject to the Act's criminal penalties if they import fish that was taken in violation of any foreign law, and if they knew or should have known that it was taken unlawfully. 16 U.S.C. § 3373(d)(1)-(2). The Act is no more vague as applied to them than it is as applied to the captain.

The fishermen also argue that United States v. Stenberg, 803 F.2d 422 (9th Cir.1986), compels a ruling that the Act's foreign law language is too vague to support criminal penalties. In Stenberg, we held that the Act's prohibition on the sale of wildlife illegally obtained did not encompass the sale of guiding services, because "[a]t the very least, one would have to speculate whether such conduct falls within the prohibition on 'selling wildlife.' " Id. at 436. Stenberg 's interpretation of the word "sell," however, does not control our determination of the fair notice given by the Act's foreign law language. 16 U.S.C. § 3372(a)(2). Moreover, the term "any foreign law" encompasses a foreign regulation much more easily than the term "sale of wildlife" encompasses the sale of guiding services.

Finally, the fishermen argue that although 594,464 Pounds held that the Act's use of "any foreign law" was not unconstitutionally vague, it did so only because the defendant was "a corporation frequently involved in large international commercial transactions." 871 F.2d at 829. The fishermen argue that the Act did not give them fair notice because they are not such a knowledgeable corporation. 594,464 Pounds did not hold, however, that the Act's language is constitutionally valid only with respect to large corporations. Furthermore, such a consideration of a defendant's expected knowledge is not necessary when analyzing the Act's criminal penalty provisions. As stated above, the Act allows criminal sanctions only upon a showing of culpability. See 16 U.S.C. § 3373(a), (d); S.Rep. No. 123, 97th Cong., 1st Sess. 10-12, reprinted in 1981 U.S.Code Cong. & Admin.News 1748, 1757-59 (observing that the due care standard should be "applied differently to different categories of persons with varying degrees of knowledge and responsibility"). Thus, the Act itself protects the reasonably naive from unwarranted criminal penalties.

B.

The fishermen briefly argue that the Act violates the constitutional requirement of fair enforcement, because it gives government officials "unlimited discretion" to prosecute those who have violated numerous foreign wildlife laws. In truth, however, the Act sets forth sufficiently "explicit standards" when defining what constitutes a crime. Grayned, 408 U.S. at 108, 92 S.Ct. at 2299. For example, government officials in this case did not exercise any sort of boundless discretion. They only had to determine objectively that the salmon being imported had been taken in violation of the Republic of China law prohibiting their taking by a squid vessel, and charge the fishermen accordingly. As in 594,464 Pounds, "government officials who seized the salmon did not have unlimited discretion to apply the Act as they saw fit," 871 F.2d at 830, and we conclude that the Act is not unconstitutional on fair enforcement grounds.

VII

Lee and Wesley Hsu filed separate motions in the district court to dismiss those counts that were based on violations of the money laundering provisions in 18 U.S.C. § 1956. The district court originally deferred decision on these motions until trial, but subsequently entered an order denying both claims. After the initial deferral, both Lee and Wesley Hsu pleaded guilty to crimes based on the money laundering statute, and now reassert their money laundering claims on appeal. We review district court interpretations of federal law de novo. Parkhurst v. Armstrong Steel Erectors, Inc., 901 F.2d 796, 797 (9th Cir.1990).

Lee and Wesley Hsu pleaded guilty to charges that they violated 18 U.S.C. § 1956(a)(2) by transferring monetary instruments from the United States to the Republic of China "with the intent to promote the carrying on of a specified unlawful activity." The statute defines "specified unlawful activity" to include smuggling offenses under 18 U.S.C. § 545. 18 U.S.C. § 1956(c)(7)(D). Based on this definition, the government predicated the money laundering violation on the fishermen's intent to smuggle salmon into the United States in violation of 18 U.S.C. § 545.

Section 545 is violated, however, only if the salmon is brought into the United States "contrary to law," and the government alleges that this requirement is satisfied because the salmon was imported contrary to the Act. Lee and Wesley Hsu argue that because Act violations are not included in the definition of "specified unlawful activity" in the money laundering statute, a section 545 smuggling violation cannot serve as the necessary "unlawful activity" in the money laundering charge if it is in turn based on an Act violation. Both attack what they label "creative charging" on the part of the government, and urge that the government "should not be permitted to do through the general smuggling statute what it could not otherwise do directly."

Lee and Wesley Hsu are correct in asserting that a money laundering charge under 18 U.S.C. § 1956 could not be based solely upon an Act violation. In this case, however, the money laundering charges were clearly predicated upon a section 545 smuggling violation, which does qualify as a "specified unlawful activity." They would have us hold that section 545 smuggling offenses cannot support a money laundering charge if at any point the smuggling offenses are based on Act violations.

Their argument fails to recognize that such a chainlike effect will often result when money laundering allegations are based on section 545 violations. 18 U.S.C. § 1956(c)(7)(D) expressly allows money laundering violations to be grounded in section 545 smuggling offenses. But section 545 only prohibits the importation of merchandise "contrary to law." Thus, one must always look to another statute, such as the Act, to determine whether a violation of section 545 has taken place. And 18 U.S.C. § 1956 does not impose any exponential test; it does not require that smuggling violations under section 545 be based only upon certain enumerated statutes. Money laundering allegations may be based upon section 545 offenses, and section 545 offenses may be based upon the importation of merchandise that is contrary to any law. We therefore conclude that the government's charge was proper.

Lee and Wesley Hsu also contend that, in passing the Act, Congress intended to withdraw fish and wildlife from the definition of "merchandise" in 18 U.S.C. § 545. If that were true, smuggling salmon into the United States in violation of the Act could not constitute the importation of "merchandise contrary to law" under the statute. The legislative history makes it clear, however, that Congress intended the Act to complement, and not to replace, the general smuggling provision. In amending the Act, Congress observed that the "felony penalty scheme for unlawful importations of wildlife is consistant [sic] with existing customs law. Even if this Act provided only a misdemeanor penalty for the unlawful importation of wildlife, such importations would be felonies under the customs law which prohibits knowing importations 'contrary [to] law.' " S.Rep. No. 123, 97th Cong., 1st Sess. 11, reprinted in 1981 U.S.Code Cong. & Admin.News 1748, 1758, citing 18 U.S.C. § 545. We conclude that Congress desired that section 545 continue to apply to unlawful importations of fish and wildlife.

Because a section 545 violation may properly be based upon the smuggling of salmon contrary to the Act, the money laundering charges against Lee and Wesley Hsu were valid.

and http://www.ca11.uscourts.gov/opinions/o ... 15148.pdf.. 


The only real out comes from the goverment having to show that a person knew of the issue and topics like this support..


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## Homer

Ed,

Yes, those are case citations like I was asking for. However, the case you cite is *exactly *like my discussion of the Texan who caught the bluegill in Mexico in violation of Mexican law and then skipped across the border to Texas. It merely proves my argument that is is exactly how the Lacey Act does work.

You will note that the case states:



> After receiving information that Lee was advertising salmon caught by vessels from the Republic of China (also referred to as Taiwan) for sale in the United States, the National Marine Fisheries Service (Service) of the Department of Commerce initiated an undercover investigative operation in early 1989. In connection with this operation, an undercover Service agent negotiated with Lee to purchase 500 metric tons of salmon that had been taken illegally by Taiwanese squid fishing vessels in the Northern Pacific waters. Lee agreed to transfer the salmon on the high seas from Taiwanese vessels to an American carrier, the Redfin, which was chartered by the Service for this operation.


The case cited above does not support your proposition that legally imported and held animals in the United States can violate the Lacey Act when someone in the United States sells or gives the offspring to someone in the United States because doing so in Brazil would violate a law in Brazil. 

What the case does stand for is that foreign regulations are the same thing as foreign law. It's not really surprising, nor is it surprising that the cited fruther stands for the fact that violating a Taiwanese regulation while in Taiwanese waters, then smuggling the animals that were the subject of the violated regulation into the US gives rise to a Lacey Act prosecution. That's our smuggling Texan who caught more than his fair share of bluegill in Mexico (e.g., he violated the Mexican fishing regulations) then smuggled the fish over the Texas border into the U.S. all over again.

The difference is night and day between what the case says and what you are trying to say with regard to the casti's. What we need is a case that determines whether we are going to hang that poor Texan out to dry under the Lacey Act for catching his Texas-sized limit of bluegill in Texas even though Mexico has a different limit. I've got $10 that says the Texan doesn't get prosecuted when he's minding his own business and keeping the Texas law while fishing in Texas, even if his same actions would have been illegal if he was in Mexico. Why? Because he was not in Mexico when he caught all those dadgum fish!

In our casti story above, where is the Brazil regulation that is being violated while the violator is in Brazil? Nowhere. 

You are wanting to bring a Lacey Act prosecution based upon actions by U.S. citizens in the U.S. that are legal in the U.S., but that would have been illegal under Brazilian law if they had happenned in Brazil.

Sorry, Ed, but I'm withdrawing my vote for you as dictator.


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## Blort

Wow, I got lost in the weeds there.

Seriously though, could each of you summarize your position?

I have been talking with FWS regularly and am meeting with them in person soon. There is a Brazilian law/treaty/something that is being used as the basis for casti enforcement. I don't know exactly which one it is. Second, just because it is in European CITES, that doesn't mean anything here in the US unless management authority has approved the permit here into the US. There have been CITES shipments seized after consultation with the country of endemism in the past.

So, if I can get a good summary of your questions, I can find the answers straight from the source. For those of you that are TWI members, FWS has offered to meet with us as a group in the future.

Part of what it is going to take to sort this stuff out is to talk to the country of origin. Hopefully we can bring representatives from both the US and Europe to address some of these issues. I think the bottom line is that there needs to be a whole lot more transparency and accountability tracing animals to their source.


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## elmoisfive

Ed said:


> If it is at the behest of a foreign goverment whom we need to continue good relations, then I don't think the prosecutor's opinion really matters....


Somehow I doubt that the current administration gives a rat's bleep about Brazil's opinion on anything, let alone worrying about maintaining good relations. Of course that shouldn't play into how USFW goes about its business but I wonder.

Of course, I suspect I would be a bit more sympathetic to Brazil's complaint here if they paid a bit more attention to the matter of Amazon basin destruction as opposed to worrying about how their national pride has been insulted over castaneoticus. Let's see, they've managed to destroy 132,000 square kilometers of rain forest (an area larger than the size of Greece) in the past 5 years. But hey they managed to reduce the level of devastation to a measly 19,000 square kilometers in 2005 (roughly the size of New Jersey) so I'll give them a D+ instead of a failing grade. 

Perhaps they can work with USFW to repatriate all the confiscated castis to a nice couple thousand hectares of clear cut and burnt out former forest...I'm sure the frogs will appreciate basking and hunting among the blackened stumps. Will make a nice picture for IBAMA (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis) to use as the cover of their annual report :roll: 

Bill


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## bbrock

One of my favorite classes I ever took was public lands law which opened my eyes to the way the legal system works. Based on this vast one semester experience, I strongly suspected that the casti situation is as Homer has described it. More an issue of civil contractural law than a federal case. However, I'm not sure Ed's version is so wild-eyed.

What I am wondering if the validity of CITES permits can be somehow tied to supplemental permit requirements. In other words, is it possible that the permit itself is only valid if the stipulations by the Brazilian government that animals not be transfered to non-approved institutions are fulfilled. So when that violoation occurs, it would nullify the permit for those animals that are in violation of the agreement. In that case, the CITES paperwork for animals in private collections would become worthless and the animals would fall in violation of the treaty it would seem. I don't know if there is a realistic legal mechanism within the treaty that makes this reasonable but I'm curious.


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## Ed

Hi Homer,

You are correct, it doesn't apply to legally imported and held animals but the frogs in question while legally imported are not legally held by anyone other than the permitted institutions. 

If I understand you correctly you are trying to keep to the case that as long as the animal was legally imported (regardless of the reason), it is legal to be distributed regardless of any stipulations on its export and import, laws in the country of origin covering the possession, sale or other regulation covering that animal...

I think that the language in the precedent listed above is clear that if the Brazilian goverment prohibits anyone from holding/conducting commerce in wildlife from Brazil without thier explicit permission/correct permit (as is my understanding of the Brazilian wildlife laws) then anyone holding/conducting commerce in these frogs would be covered under the LACEY act and subject to the penalties listed in the ACT. The legality of the importation is only part of the entire issue and is a non-issue if the animals are then transferred in violation of the regulations/laws around the animals. 
I again reiterate if you want the specific regulations/thoughts by the Brazilian goverment you can ask the specific Brazilian govermental agency. 

as for your Texas example 

snip "are going to hang that poor Texan out to dry under the Lacey Act for catching his Texas-sized limit of bluegill in Texas even though Mexico has a different limit. I've got $10 that says the Texan doesn't get prosecuted when he's minding his own business and keeping the Texas law while fishing in Texas, even if his same actions would have been illegal if he was in Mexico. Why? Because he was not in Mexico when he caught all those dadgum fish!"endsnip

And this would be a correct intepretation as long as he remained in Texas but this is an inexact analogy as the animal is available in both countries as part of the fauna while the frogs under discussion are not and there are specific regs covering who can and cannot own them. Now if he crossed the border and violated the Mexican laws and crossed into Texas he would then be subject to the LACEY act provisions for those bluegills (and would be closer to the discussion at hand) unless there was some reciprical agreements covering those bluegills (as is seen for the recreational salmon fisheries on the Great Lakes or waters that border two different states). 

Ed


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## kyle1745

I think the point Homer is making is, if the Brazilian government has ever allowed a shipment to the US, after that their laws and agreements are pointless from a US legal standpoint. Just because they want to claim them does not mean the US has to comply. We have our own laws and the only thing that will matter is if a US law was broken at the time the first frogs moved into private hands. This may have also been prior to some of the current laws thus nullifying them all together.

This maybe why there have not be public cases of people being fined or etc for owning these animals. There is either not enough information of their origin, or a case of legal importation into the US.

Now with all of that said, I do not claim to understand how some of the agreements made between zoos and similar organizations. 

So from all of this I think were are right were the conversation started. These frogs are most likely ok in the hobby but not ok to import or export, and may be questionable to cross over some state lines. I do not think any more than that could be proven and if so we would have had cases of them being confiscated by now.

On the topic of what to do in these cases I would like to see a system created that attempts to give back and yet allows the animals to stay in the hobby. So for example take some of the frogs discussed in this thread. Why not create a system where a transfer or registration fee was put on these questionable animals and then that money was sent back to the originating countries to help save their natural habitat. This is just a idea, but as some of these frogs are becoming more wide spread in the hobby and especially over seas the confiscation aspects of some of these laws and ACTs are just not reasonable and could be more detrimental to the animals than the original smuggling.

So the question is: Should people buying captive born animals be treated the same as a smuggler? I would argue no, and that there should be a system to hold the smugglers accountable for their actions, but yet allow frogs that are already established in the hobby safe keeping. 

There is most likely is no perfect answer to any of these questions but as this hobby grows so does passion people have for these great animals. I think that passion will help provide the funding and the preservation of some of these frogs natural habitats.


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## Homer

Ed said:


> I think that the language in the precedent listed above is clear that if the Brazilian goverment prohibits anyone from holding/conducting commerce in wildlife from Brazil without thier explicit permission/correct permit (as is my understanding of the Brazilian wildlife laws) then anyone holding/conducting commerce in these frogs would be covered under the LACEY act and subject to the penalties listed in the ACT. The legality of the importation is only part of the entire issue and is a non-issue if the animals are then transferred in violation of the regulations/laws around the animals.


Sorry, Ed. We're just going to have to agree to disagree here. In no way shape or form does the case you cited stand for the legal proposition you are trying to make fit.




> I again reiterate if you want the specific regulations/thoughts by the Brazilian goverment you can ask the specific Brazilian govermental agency.


The Brazilian governmental agency's interpretation of its laws is irrelevant in a Lacey Act prosecution if the alleged illegal act did not occur within the boundaries of the foreign country. Once you admit that the frogs were legally exported from Brazil and legally imported to the U.S., the interpretation of Brazil law simply does not matter. 

You cannot break Brazil law while in America if you have never been to Brazil, and have never caused any actions to take place in Brazil. The law breaking would have to take place prior to export (e.g., smuggling frogs out of the country without proper documentation). 



> as for your Texas example
> 
> snip "are going to hang that poor Texan out to dry under the Lacey Act for catching his Texas-sized limit of bluegill in Texas even though Mexico has a different limit. I've got $10 that says the Texan doesn't get prosecuted when he's minding his own business and keeping the Texas law while fishing in Texas, even if his same actions would have been illegal if he was in Mexico. Why? Because he was not in Mexico when he caught all those dadgum fish!"endsnip
> 
> And this would be a correct intepretation as long as he remained in Texas but this is an inexact analogy as the animal is available in both countries as part of the fauna while the frogs under discussion are not and there are specific regs covering who can and cannot own them. Now if he crossed the border and violated the Mexican laws and crossed into Texas he would then be subject to the LACEY act provisions for those bluegills (and would be closer to the discussion at hand) unless there was some reciprical agreements covering those bluegills (as is seen for the recreational salmon fisheries on the Great Lakes or waters that border two different states).
> 
> Ed


Ed, it may be an inexact analogy, but it directly points out the flaw in your interpretation of the language. If you think the Texan staying in Texas is innocent, then castis are legal. It's that simple.

Brazil's private agreement with the zoo simply does not magically create a criminal action. Unless there is some treaty or crazy U.S. law placed on the books specifically about castis that people don't really know, and that is not being brought up here in the fact pattern, there does not appear to be any way for the castis to be illegal under the Lacey Act.

I was going to try to explain this more, but I get the distinct impression that no one is really reading these posts carefully anyway, and it's frustrating me to run over the same ground again for what is pretty basic statutory interpretation. Sorry, guys, but I've already put in over 60 hours in at work since Monday, and this thread is starting to feel like a really bad day at work.

It is almost impossible to talk about "legality" issues surrounding frogs on forums like this because no one seems to have a good grasp on the facts (all I "know" comes second or third hand at best), and there is little understanding of statutory and case interpretation. That is not surprising, as most people on this forum will have a strong science background but almost no legal background, and many find the legal system to be very confusing. I would encourage anyone that has made it this far in the thread and retained interest to take some classes in legal writing and legal research, at a minimum. You're bound to love it if this conversation has sparked an interest. Then, go get your JD/PhD and come see me when you get out of school. :wink:


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## kyle1745

Homer don't stop as I think you are touching on some very important things. 

I think many people just have trouble on how to respond. I also think that many people think our legal system is cut and dry, and that is not the case.


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## Ed

snip "Ed wrote: 
I think that the language in the precedent listed above is clear that if the Brazilian goverment prohibits anyone from holding/conducting commerce in wildlife from Brazil without thier explicit permission/correct permit (as is my understanding of the Brazilian wildlife laws) then anyone holding/conducting commerce in these frogs would be covered under the LACEY act and subject to the penalties listed in the ACT. The legality of the importation is only part of the entire issue and is a non-issue if the animals are then transferred in violation of the regulations/laws around the animals. 

Sorry, Ed. We're just going to have to agree to disagree here. In no way shape or form does the case you cited stand for the legal proposition you are trying to make fit. "endsnip 

So in other words, any animal that is imported legally into the country regardless of foreign regulations, ownership, permits and conditions of import set by the country of origin can be legally distributed once it has been imported? 

snip "Quote: 
I again reiterate if you want the specific regulations/thoughts by the Brazilian goverment you can ask the specific Brazilian govermental agency. 


The Brazilian governmental agency's interpretation of its laws is irrelevant in a Lacey Act prosecution if the alleged illegal act did not occur within the boundaries of the foreign country. Once you admit that the frogs were legally exported from Brazil and legally imported to the U.S., the interpretation of Brazil law simply does not matter. "endsnip


I think that the the under the LACEY act the foreign laws/regulations etc are relevant as the under the LACEY act the violation does not necessarily have to occur in the jurisdiction of the state or foreign goverment. The language in the act is pretty clear that the violation of the foreign law/regulation is a trigger for the LACEY act applies and in this case the permits/import agreements comply with Brazilian rregulations/laws on the ownership/distribution of wildlife

see Similarly, it is not necessary that the Lacey Act violation occur in the same location as the underlying violation. [FN234] For example, in United States v. Gay-Lord, [FN235] rockfish taken in violation of Virginia law were sold by a defendant in North Carolina to a seafood company, which then sold the fish in other states; the Lacey Act charge alleged an underlying violation of the Virginia regulation. [FN236] The defendant argued that because his sale of the fish occurred in North Carolina, his Lacey Act prosecution there could not be grounded on an underlying violation that occurred in another state. The court disagreed, holding that the predicate state law does not have to be violated in the state where the Lacey Act charge is filed. [FN237]"endsnip 

snip "You cannot break Brazil law while in America if you have never been to Brazil, and have never caused any actions to take place in Brazil. The law breaking would have to take place prior to export (e.g., smuggling frogs out of the country without proper documentation). "endsnip

But you can break the permit requirements that are set forth by the regulations/laws of the country of origin that are/were required to export/import the animals allowing the animals to be in the USA. If these permit requirments comply with the regulations/laws of a different country breaking these permit requirments is the same as breaking the laws/regulations of the foreign country. 


Quote: 
as for your Texas example 

And this would be a correct intepretation as long as he remained in Texas but this is an inexact analogy as the animal is available in both countries as part of the fauna while the frogs under discussion are not and there are specific regs covering who can and cannot own them. Now if he crossed the border and violated the Mexican laws and crossed into Texas he would then be subject to the LACEY act provisions for those bluegills (and would be closer to the discussion at hand) unless there was some reciprical agreements covering those bluegills (as is seen for the recreational salmon fisheries on the Great Lakes or waters that border two different states). 

snip "Ed, it may be an inexact analogy, but it directly points out the flaw in your interpretation of the language. If you think the Texan staying in Texas is innocent, then castis are legal. It's that simple. "endsnip

No it is not that simple. 

snip "Brazil's private agreement with the zoo simply does not magically create a criminal action. Unless there is some treaty or crazy U.S. law placed on the books specifically about castis that people don't really know, and that is not being brought up here in the fact pattern, there does not appear to be any way for the castis to be illegal under the Lacey Act. "endsnip

Except that the requirements set upon the import/export permits as well as the loan agreements comply with Brazil's laws and regulations and these were violated hence the tainted fruit argument applies. 

Under your argument, someone could take home Atelopus zeteki, claim their supervisor told them it was okay when caught but in the mean time distribute animals to the private sector... Each person in the private sector could then use your argument to keep this animal in violation of Panamania regulations covering thier export, the import agreements and the loan regulations. 

snip "I was going to try to explain this more, but I get the distinct impression that no one is really reading these posts carefully anyway, and it's frustrating me to run over the same ground again for what is pretty basic statutory interpretation. Sorry, guys, but I've already put in over 60 hours in at work since Monday, and this thread is starting to feel like a really bad day at work. "endsnip

I am reading them, but we have two different interpretations of what could constitute a violation. My source of interpretation is noted in the beginning arguments and yours is as you noted along the way. 

Part of the problem also comes from the fact that a lot of the LACEY act precedents are not available on-line. When you start digging into them, there are references that could well apply but I cannot access them (like as Homer noted some of the articles I ask for...).... 

Ed


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## Jason

I have read every post. You both have very valid points, but until this is ever an actual case, we will not know the validity of any of this.



> On the topic of what to do in these cases I would like to see a system created that attempts to give back and yet allows the animals to stay in the hobby. So for example take some of the frogs discussed in this thread. Why not create a system where a transfer or registration fee was put on these questionable animals and then that money was sent back to the originating countries to help save their natural habitat.


I think this is an excelent idea. I think any frog for that matter sold here on Dendroboard should have a 10% enviromental fee assoicated with it. This could be collected and distributed by a main source to governments of countries of origional orgin, to show how serious we are in the hobby about the protection of the species.



> Of course, I suspect I would be a bit more sympathetic to Brazil's complaint here if they paid a bit more attention to the matter of Amazon basin destruction as opposed to worrying about how their national pride has been insulted over castaneoticus. Let's see, they've managed to destroy 132,000 square kilometers of rain forest (an area larger than the size of Greece) in the past 5 years. But hey they managed to reduce the level of devastation to a measly 19,000 square kilometers in 2005 (roughly the size of New Jersey) so I'll give them a D+ instead of a failing grade.


So sad, yet so true. We in the hobby are reproducing some very rare frogs, maintaining the species and doing what we can to save the habitat in which wild specimens can be found. Yet, governments say and do quite different things.

This has been a very good post so far. Keep it up, keep it going. It brings out a lot of information that, I think many have shyed away from.


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## bbrock

Home and Ed, I have enjoyed this exchange tremendously. But I do think the argument has come to an impasse. However, I haven't seen any reference to my question of whether CITES permits can be tied to contractual agreement between the exporting and importing parties. Could the CITES permits for these animals only remain valid if those additional requirements are met? If so, then it would seem that Lacey would be triggered because the permits became invalid once animals were released to non-approved agents. But if CITES reach stops as soon as the animals legally cross the border, then it would be a contractual dispute.

The bottom line is that this hasn't changed my opinion of the ramifications of owning a casti. The ownership still may be considered illegal and those animals may be subject to confiscation pending a court case but I still think the odds of being criminally prosecuted are pretty low unless you get nailed for other violations and the castis just become one more.


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## Homer

bbrock said:


> Home and Ed, I have enjoyed this exchange tremendously. But I do think the argument has come to an impasse. However, I haven't seen any reference to my question of whether CITES permits can be tied to contractual agreement between the exporting and importing parties. Could the CITES permits for these animals only remain valid if those additional requirements are met? If so, then it would seem that Lacey would be triggered because the permits became invalid once animals were released to non-approved agents. But if CITES reach stops as soon as the animals legally cross the border, then it would be a contractual dispute.


Legal import/export papers under CITES Class II animals (of which Dendrobatids belong) require approval for export by the country from which they are being exported and approval for import from the country they are coming into. The purpose is to ensure nothing leaves that shouldn't and nothing comes in that shouldn't. It is not intended to "watch" what happens to the animals once they come into a country. Thus, I do not believe it possible to have such a hybrid permit.

More importantly, even if it was possible to have such a hybrid permit, when the terms were broken the originally imported animals would now be illegal and the zoo keeping them would be subject to a Lacey Act violation. Thus, if selling or giving away offspring were to trigger "illegality", the zoo should be the first one prosecuted. That's another reason I don't believe such a permit is possible.

Given the facts as Ed has presented, and I have to assume that he has the facts straight--certainly he knows more than I do about the facts at hand--the only thing that makes sense is that permits were given, making the adults legal. In addition to that, a conditional agreement was made between the zoos and the country of Brazil. This conditional agreement would allow Brazil to take back the animals or exert their ownership rights at any time if they did not like the way the animals were being kept or distributed. It should not affect the permits in any way, as the permits were only required to get the animals into the country.

Once in this country legally, the animals are subject to U.S. law, not Brazilian law. The zoos are subject to the contract with Brazil. The status of the frogs being "legal" or "illegal" is not going to change. The only thing that will change is whether the zoos are in compliance or in breach of the contract.



> The bottom line is that this hasn't changed my opinion of the ramifications of owning a casti. The ownership still may be considered illegal and those animals may be subject to confiscation pending a court case but I still think the odds of being criminally prosecuted are pretty low unless you get nailed for other violations and the castis just become one more.


I tend to agree.

However, the one argument/strategy for USFW that I am surprised no one has brought up is the one I would probably use if I was prosecuting. (1) Only zoos have any legal castis. (2) Did you get your castis from the zoo? If not directly, did you get them indirectly from the zoo? (3) If you (defendant) can't prove that, then we as the USFW have to assume you have frogs that were smuggled in or descended from smuggled in frogs, which WOULD be a Lacey Act violation. You have no papers to prove otherwise, and have only this story that everyone gets second or third hand in the frog communities.

Do you think a judge or jury finds that the USFW has proven this beyond a reasonable doubt? It seems a lot easier to prove than the other two arguments I have seen presented, and a lot easier to swallow if I'm a judge or jury. I think the other arguments get thrown out in summary judgment. This one goes to court. I'm not sure which way it shakes out, but this one goes to court.


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## Homer

Jason said:


> I have read every post. You both have very valid points, but until this is ever an actual case, we will not know the validity of any of this.
> 
> . . . .
> 
> This has been a very good post so far. Keep it up, keep it going. It brings out a lot of information that, I think many have shyed away from.


Jason and Brent, thank you for piping up. It is good to see that other people are reading (Ed, I never doubted you were reading, just to make that clear--but you clearly already had your mind made up and were trying to read at a time when you had lots of other things going on). I got a little frustrated when it sounded like people were just skipping over pages of the conversation when there was a good deal of time spent in writing it out.. 

I do think we can know (or at least have a good sense about) the validity of the arguments, but I promised myself and my family that I wouldn't be doing any legal research over the holidays--I get enough of that at work.

I have intentionally kept out of a lot of past conversations on this matter, because it is really more complex than the average hobbyist or even the average importer should ever need to get into, and it tends to stir up rancor amongst a few (thankfully that has not happenned here, mostly because Ed and Brent are true professionals and few others want to wade through the text required to understand the issues here). 

Most people are just going to assume that whatever some USFW agent tells them is true is true, even without considering that USFW may have an agenda that is at odds with sticking to a pure interpretation of the law. 

And, for most, that is a good policy because it is going to cost time and money to prove the USFW wrong, and the frog keeper has only downside in the situation. For me, castis would not be worth that fight, and that is one reason I don't keep them. However, it is part of my nature and training to look at a legal argument and determine whether it has merit, and I enjoy doing that. Here, I have had a chance to do that with no down side.

And for that, I appreciate the fine hospitality you all have shown even with me typing in the wee hours or on the edge after long days of keeping deadlines. Thank you, Ed, for providing counterpoint. However, I'm still withdrawing my vote for you as dictator.

I hereby pardon the Texas fisherman for any sentence Ed may have assigned.


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## bbrock

First I want to thank both Homer and Ed for taking the time to hash through this.

I believe that most, if not all, of the castis in private collections could fairly easily be traced back to zoos via afadavit so that line of prosecution may not be a viable one.

Third, the rules clearly state that upon withdrawal of Homer's nomination for dictator, the role of dictator falls to me by default. I would like to thank you all for your support and, to the extent that is convenient to me, I promise to be a benevolent one.


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## defaced

> I promise to be a benevolent one.


You better, other wise it's off to tar and feather land for you.


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## Homer

bbrock said:


> I believe that most, if not all, of the castis in private collections could fairly easily be traced back to zoos via afadavit so that line of prosecution may not be a viable one.


I agree that it might not be a winner, but that is a question of fact, not of law, which must be settled at trial. The other two arguments are questions of law and not fact, and therefore would not make it past summary judgment.

Plus, in the argument I presented, the facts as presented satisfy the prosecution's burden of proof. It is only by bringing in rebuttal evidence that a defendant could then be exonerated.



> Third, the rules clearly state that upon withdrawal of Homer's nomination for dictator, the role of dictator falls to me by default. I would like to thank you all for your support and, to the extent that is convenient to me, I promise to be a benevolent one.


Man, I knew I should have read the fine print before I withdrew support for Ed. Brent, I thought you were disqualified/blackballed from dictatorship after you banned light expanded clay aggregate balls from all soil mixes on Frognet. Did that get overturned? :lol:


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## Jason

With all this being said, shouldn't we be getting papers with ALL new imports? That way we can prove if need be that these were legally exported/imported frogs if ever the need arised.


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## bbrock

Homer said:


> Man, I knew I should have read the fine print before I withdrew support for Ed. Brent, I thought you were disqualified/blackballed from dictatorship after you banned light expanded clay aggregate balls from all soil mixes on Frognet. Did that get overturned? :lol:


If I have read this thread right, the laws and rules of that country (Frognet) are not enforceable here.


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## elmoisfive

Excellent discussion all around. I suppose my question is one of if USFW is certain of their position vis-a-vis castaneoticus, why haven't we seen any action from them? My understanding is that this is not a new issue and after all, the owners of castis aren't hiding in caves on the Afghan/Pakistan border.

I can speculate that perhaps...

(1) They don't see the situation as nearly cut and dry as their public position and are reluctant to be drawn into a murky situation.

(2) They are sure of their position but in the grand scheme of things, this is low on their priority list.

(3) They are disinclined to intervene in Brazil's contractual issue with the museum. 

Just some thoughts...

Bill


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## Homer

bbrock said:


> Homer said:
> 
> 
> 
> Man, I knew I should have read the fine print before I withdrew support for Ed. Brent, I thought you were disqualified/blackballed from dictatorship after you banned light expanded clay aggregate balls from all soil mixes on Frognet. Did that get overturned? :lol:
> 
> 
> 
> If I have read this thread right, the laws and rules of that country (Frognet) are not enforceable here.
Click to expand...

 :lol: Nicely done. But then again, if that is the case, then my withdrawl of support doesn't count either.


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## Homer

elmoisfive said:


> I can speculate that perhaps...
> 
> (1) They don't see the situation as nearly cut and dry as their public position and are reluctant to be drawn into a murky situation.
> 
> (2) They are sure of their position but in the grand scheme of things, this is low on their priority list.
> 
> (3) They are disinclined to intervene in Brazil's contractual issue with the museum.
> 
> Just some thoughts...
> 
> Bill


I think (1) and (2) are viable options, but (3) really does not come into play. That is where a lot of people are getting confused on this issues between a criminal act and a contract dispute. 

USFW has no jurisdiction with regard to personal contracts--that would be a dispute the Brazilian government would bring against the zoos in a civil court for monetary damages or equitable remedies.


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## Ed

Some varied comments here 

snip "Ed, I never doubted you were reading, just to make that clear--but you clearly already had your mind made up and were trying to read at a time when you had lots of other things going on). I got a little frustrated when it sounded like people were just skipping over pages of the conversation when there was a good deal of time spent in writing it out.. "endsnip

It is possible that my mind is made up but its mainly due to the fact that I
haven't seen the argument to change my mind based on what I do know. 


snip "Excellent discussion all around. I suppose my question is one of if USFW is certain of their position vis-a-vis castaneoticus, why haven't we seen any action from them? My understanding is that this is not a new issue and after all, the owners of castis aren't hiding in caves on the Afghan/Pakistan border."

In general USF&W shifted the way they handle wildlife trafficking and these are now typically multiyear investigations that attempt to capture as large a part of the chain of custody as possible. It is not uncommon to discover that the investigations are between 5-10 years in length (or longer)..... 

Also depending on the value of the animals, it can determine whether or not it is a felony or a misdemeanor. The typical threshold value is $350.00 per potential violation. So if this is a LACEY Act violation and you have purchased $350 worth of frogs, it could be a felony as opposed to a misdemeanor. However in both cases, the animals would be confiscated... 

There has also been an reallocation of resources due to 9/11 so there may also be some funding issues... 


snip "More importantly, even if it was possible to have such a hybrid permit, when the terms were broken the originally imported animals would now be illegal and the zoo keeping them would be subject to a Lacey Act violation. Thus, if selling or giving away offspring were to trigger "illegality", the zoo should be the first one prosecuted. That's another reason I don't believe such a permit is possible. "endsnip

What makes you think that the Zoo didn't get in trouble with USF&W via LACT ACT over this?? 

snip "Given the facts as Ed has presented, and I have to assume that he has the facts straight--certainly he knows more than I do about the facts at hand--the only thing that makes sense is that permits were given, making the adults legal. In addition to that, a conditional agreement was made between the zoos and the country of Brazil. This conditional agreement would allow Brazil to take back the animals or exert their ownership rights at any time if they did not like the way the animals were being kept or distributed. It should not affect the permits in any way, as the permits were only required to get the animals into the country. 

When you get back from the holidays so you don't break your promise to your family, I would like to expolore this a little more. If the permits stated that all offspring regardless of who was holding them are the property of the Brazilian goverment and people are trafficking in animals that they do not legally own..... how is this not illegal interstate commerce in wildlife? 

snip " Once in this country legally, the animals are subject to U.S. law, not Brazilian law. The zoos are subject to the contract with Brazil. The status of the frogs being "legal" or "illegal" is not going to change. The only thing that will change is whether the zoos are in compliance or in breach of the contract. "endsnip

Why does the buck stop with the Zoo if the animals were distributed in violation of the contracts of ownership? 

I would be careful with the idea that because something normally has a civil penalty that it could not end up being a criminal proscecution under the LACY act 

see The fishermen next contend that Congress did not intend to impose criminal penalties under the Act for violations of a regulation that itself carries no criminal sanctions. They observe that the regulation at issue here provides only for the suspension of the licenses of the offending fishing vessel and the offending captain; it imposes no criminal penalties. Thus, the fisherman argue, to base criminal penalties on violations of this regulation is an unjustifiable, absurd result. See United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981).

In 594,464 Pounds, we rejected the argument that the Act did not encompass a Taiwanese salmon regulation because that regulation only provided for the imposition of civil sanctions. We concluded that the legislative history clearly demonstrated that "Congress intended the 1981 Amendments to apply to 'laws' that have nothing more than civil fines for penalties." 871 F.2d at 829. Because that holding was in the context of a forfeiture proceeding, however, the fisherman argue that it does not control in the present case.

The fishermen's interpretation is contrary to both the language and legislative history of the Act, and has been rejected by this court. In imposing criminal punishment for wildlife takings in violation of any underlying foreign law, the Act draws no distinction based on the type of sanction imposed by the underlying law. See 16 U.S.C. § 3373(d); see also id. § 3371(d) (defining "law" broadly for purposes of the Act, as any law "which regulate the taking, possession, importation, exportation, transportation, or sale of fish or wildlife or plants"). If foreign regulations do indeed qualify as "foreign laws" and can thereby support Act violations, no reason exists to suppose that Congress intended civil penalties to be imposed for violations of either criminal or civil regulations, while intending that criminal penalties only result from criminal regulation violations." endsnip 

From the items I can access on the web, it appears that the courts have taken the position over time, that Congress intended the ACT to be broadly interpreted as to what it can and cannot cover. 


Ed


----------



## elmoisfive

Homer said:


> I think (1) and (2) are viable options, but (3) really does not come into play. That is where a lot of people are getting confused on this issues between a criminal act and a contract dispute.
> 
> USFW has no jurisdiction with regard to personal contracts--that would be a dispute the Brazilian government would bring against the zoos in a civil court for monetary damages or equitable remedies.


Sorry Homer, poor wording on my part. I meant that USFW is disinclined to intervene in a situation that basically started with a breach of contract. I do appreciate that they have no legal standing vis-a-vis the contract situation.

Bill


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## Homer

Ed said:


> snip " Once in this country legally, the animals are subject to U.S. law, not Brazilian law. The zoos are subject to the contract with Brazil. The status of the frogs being "legal" or "illegal" is not going to change. The only thing that will change is whether the zoos are in compliance or in breach of the contract. "endsnip
> 
> Why does the buck stop with the Zoo if the animals were distributed in violation of the contracts of ownership?
> 
> I would be careful with the idea that because something normally has a civil penalty that it could not end up being a criminal proscecution under the LACY act


Ed, this is the crux of your misunderstanding of the Lacey Act. Contract law cannot be the basis of a Lacey Violation. It is clearly not an enumerated basis for the trigger.

Contract law is a civil matter. The buck stops with the zoo with regard to the contract because they were the contracting party. I suppose there might be another intentional interference with business or contracts tort in there somewhere with regard to third parties, but that is a stretch. 

Regardless breaking a contract does not a Lacey violation make. That was my original point in my very first post and we're back there again. Going over this again is not going to be productive, and there will be no case law on this matter, as there is no basis to even bring a case under the statute on this basis.


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## Ed

Homer.
I didn't want you to break your word to your family... 


It took me a while to remember it but 

Earl Thomas Schultz a former curator of Reptiles at the San Diego Zoo entered a plea deal to avoid LACEY act charges for illegally distributing legally imported pythons. He used his position at the Zoo to import rare pythons from Australia and had them consigned to himself. He then sold the snakes to Tom Crutchfield. Both Crutchfield and Schultz were prosecuted for these violations. Schultz entered a plea deal and was fined over $ 70,000 dollars... as well as sentenced to a half-way house etc. 

Ed


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## kyle1745

Ed,

I think that is a little different than the people holding captive born frogs. They most likely did not assist in bringing them in, or had any relation to the institution that did.


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## Homer

Ed said:


> Homer.
> I didn't want you to break your word to your family...


Ed, I promised I wouldn't be doing any legal research. That I am not going to do this weekend.




> It took me a while to remember it but
> 
> Earl Thomas Schultz a former curator of Reptiles at the San Diego Zoo entered a plea deal to avoid LACEY act charges for *illegally distributing legally imported pythons*. He used his position at the Zoo to import rare pythons from Australia and had them consigned to himself. He then sold the snakes to Tom Crutchfield. Both Crutchfield and Schultz were prosecuted for these violations. Schultz entered a plea deal and was fined over $ 70,000 dollars... as well as sentenced to a half-way house etc.
> 
> Ed


Exactly how do you illegally distribute legally imported pythons? 

Ed, I fear that the terms you have been using to give us the facts behind the castis and the pythons are the very basis for our disagreement. 

Unfortunately, many of the facts that you have been presenting have been in the form of legal conclusions rather than relevant facts to make a reasonable determination. I fear we have beat this horse and found it is not a pinata.


----------



## Ed

snip "Exactly how do you illegally distribute legally imported pythons? 

Ed, I fear that the terms you have been using to give us the facts behind the castis and the pythons are the very basis for our disagreement. 

Unfortunately, many of the facts that you have been presenting have been in the form of legal conclusions rather than relevant facts to make a reasonable determination. I fear we have beat this horse and found it is not a pinata."endsnip

The import permits specified that the snakes could not be used for commecial purposes. 

Ed


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## Homer

> snip "More importantly, even if it was possible to have such a hybrid permit, when the terms were broken the originally imported animals would now be illegal and the zoo keeping them would be subject to a Lacey Act violation. Thus, if selling or giving away offspring were to trigger "illegality", the zoo should be the first one prosecuted. That's another reason I don't believe such a permit is possible. "endsnip
> 
> What makes you think that the Zoo didn't get in trouble with USF&W via LACT ACT over this??


Ed, have you been holding out on us? Please give me a case cite where the Zoo was charged with a Lacey Violation via the castis.


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## kyle1745

> The import permits specified that the snakes could not be used for commercial purposes.


This maybe different than if the country made a separate agreement with the zoo other than the import permit in the case of the castis. In the case of the castis it sounds like they were released to a person, and if it came in with a standard permit, but there was an agreement with the individual that would be a bit different would it not?


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## Homer

kyle1745 said:


> The import permits specified that the snakes could not be used for commercial purposes.
> 
> 
> 
> This maybe different than if the country made a separate agreement with the zoo other than the import permit in the case of the castis. In the case of the castis it sounds like they were released to a person, and if it came in with a standard permit, but there was an agreement with the individual that would be a bit different would it not?
Click to expand...

The problem here is that I don't know how such a "conditional permit" could even be made under CITES. Here is a description of how the permit process works, from the USFW website (



USFW said:


> In order to export or re-export a specimen of an Appendix-III species, a CITES document must be issued by the exporting or re-exporting country’s CITES Management Authority. If the Party that included the species in Appendix III is the country of export, a CITES export permit is required. An export permit for specimens of an Appendix-III species can only be issued if the CITES Management Authority determines that the specimens were legally acquired. If a non-listing country wishes to export Appendix-III specimens, it must issue a CITES certificate of origin stating that the specimens originated from its country in order for the export to lawfully occur. In the case of a re-export of an Appendix-III specimen, a re-export certificate issued by the country of re-export is required.


So, if trading one of the offspring violates the conditional permit (a permit that is only required at export to make the animals legal), then presumably that violation travels back in time to the time when the permit was issued and now nullifies the permit.

So, hypothetically our violation now makes it as if the permit never existed, and the permit is void ab initio, and now all animals brought in under the permit are now illegal, and all animals that were offspring of the once legally imported animals are illegal.

Ed, am I understanding that this is the theory you are now espousing? Please recognize that this is a different theory than the first two you proposed.

Personally, I do not see how such a conditional permitting is contemplated under the CITES system or USFW's description of CITES.

edited to get the little quote function to work right.


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## bbrock

Homer said:


> Ed, am I understanding that this is the theory you are now espousing? Please recognize that this is a different theory than the first two you proposed.
> 
> 
> 
> I just want to point out that this is the theory that I suggested. That's why I'm the dictator ;-)
> 
> A clarification though, dendrobatids are Appendix II species I believe and those procedures were for Appendix III
> 
> Here are some links about the San Diego case Ed referred to:
> 
> http://www.awionline.org/pubs/Quarterly ... ealers.htm
> 
> http://www.bornfree.org.uk/news002.htm
> 
> It seems pretty clear that the scope and nature of the activity is substantially different than the case under discussion.
Click to expand...


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## bbrock

Here is the Canadian CITES permit application.

http://www.cites.ec.gc.ca/PDF/application_animals.pdf

Note that on page 6 you are instructed to attach any permits needed to capture or remove specimens for export. This may be how conditions can be literally attached to the permit?

And I believe this is the correct US permit application. It provides for both attaching contract agreements and additional required permits.

http://www.fws.gov/forms/3-200-37.pdf

I may be wrong, but it does look like contracts can be attached to export/import permits and thus become part of the permit itself.


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## npaull

Fascinating discussion. Just wanted to interject a quick cheer and encouragement for more - I doubt I am the only one reading carefully and not posting...


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## Homer

bbrock said:


> Homer said:
> 
> 
> 
> Ed, am I understanding that this is the theory you are now espousing? Please recognize that this is a different theory than the first two you proposed.
> 
> 
> 
> I just want to point out that this is the theory that I suggested. That's why I'm the dictator ;-)
Click to expand...

I would agree. I just wanted to point out that we have not yet actually discussed this theory in great detail, and that this is, in fact a third legal theory that has been proposed as the reason for ownership of castis being a Lacey violation. 

Let's remember, the prosecution has the burden of proof, so I expect you pro-prosecutors to do a better job of giving legal citations. :wink: 



> A clarification though, dendrobatids are Appendix II species I believe and those procedures were for Appendix III


Excellent point, but not one that substantially effects the question that was being addressed. The significant difference between II and III is that under CITES you have to have an import AND export permit for class III animals and you only have to have an export permit for class II animals. The U.S. separately requires both import and export permits for both class II and class III animals. Note that they use the same documents.



> Here are some links about the San Diego case Ed referred to:
> 
> http://www.awionline.org/pubs/Quarterly ... ealers.htm
> 
> http://www.bornfree.org.uk/news002.htm


Thanks, Brent. These articles actually support the arguments against a Lacey Act violation in the castis situation. In particular, I want to point out that the curator Ed discussed above was not reported to have been charged with a Lacey Act violation . . . but rather " *pleaded guilty to two charges of fraud and theft*". That is a completely different situation than what we have been discussing here. Further, the article goes on to say:


Born Free said:


> Earl Thomas Schultz, the Curator of reptiles at San Diego Zoo has pleaded guilty to two charges of fraud and theft following an investigation into the sale of rare zoo animals, according to a report in the San Jose Mercury News. Schultz used his position at the zoo to import the endangered Ramsay’s Python from its native Australia. The animals were sold on to a private dealer in Florida.
> 
> . . .
> 
> *The practice of selling surplus zoo animals to exotic animal traders is legal and quite common place.* Born Free believes that it is yet another factor contributing to the growing exotic animal trade, which authorities value at $6 billion each year.





Brent said:


> It seems pretty clear that the scope and nature of the activity is substantially different than the case under discussion.


I agree. This case has much worse facts than the casti's case, and there is still no report of a Lacey Act charge. This would be like the originally imported casti's coming straight from Brazil and being sold to a hobbyist.


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## kyle1745

> The practice of selling surplus zoo animals to exotic animal traders is legal and quite common place. Born Free believes that it is yet another factor contributing to the growing exotic animal trade, which authorities value at $6 billion each year.


Is this true or just taken out of context? I really wish we could work closer with the Zoos.


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## Roadrunner

it seems zoos use their own discretion when dealing with the public. certain private individuals may be the best people to get the small # of animals which were imported established. i know it`s behind company policy but a certain zoo acquired terribilis from me and they had them expire in their care. i still have the original adults so i can replace them. they also let their bicolor stock dwindle and acquired some from me to introduce to their 1 remaining animal thru a worker purchasing them and he used them for a breeding loan. some of my azureus were offspring from parents acquired from a zoo thru breeding trade. it`s not a bad thing to have a local businessman/hobbyist frog breeder, whatever, close by and working thru employees when paperwork can be traced on them. this was all because of someone who had been working closely w/ the zoo for years before i began. it`s not the way i would like it but it works. they just don`t work w/ anyone. if you have proven yourself as a knowledgeable local assett and your on the up and up they will, obviously, sometimes go around the codes to help the zoo, or in this case possibly themselves. i have had zookeeper purchase animals out of their own pocket to be able to display animals that are still of their personal collection. i don`t know exactly how some of it works but they seem to find ways to mold the zoo w/in it`s own guidelines and still get animals from the public. i personally havent recieved any animals directly from zoos. i have offered, on many occasions to set up displays out of my own pcket for the local zoo that is in a budget crisis if just given the space. no dice! i would also like to be able to couple my efforts w/ my local zoo. i`m quite good friends w/ a couple on the board of the local botanical gardens and i`m working w/ them on releasing thumbs or pumilio into their bromeliad room. 
so it does happen and zoo people genuinly want to work w/ us but their hands are tied. they do what they can to get around it because they know it`s wrong in the case of the dart frog hobby. a lot of us are more anal than they are when it comes to our animals.


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## Blort

Homer and Ed,

Not to sound like a broken record, but if you succinctly give me your questions, I will give you the real answer from FWS and the Brazilian management authority.

I have an informal meeting with USFWS probably in January. I have been talking with them in detail about dendrobatids and the associated legal issues. I am also scheduled to talk to the management authorities of almost all of these countries to get their input. I don't have all the protocol and questions worked out, but I can tell you that I am close to where legal help like Homer's would be useful. It's not that this conversation isn't stimulating, but there is an avenue available to get the answer straight from the source. This is probably as simple as some phone calls and FOIA requests. There is a lot more to this, but I haven't nailed down the specifics in enough detail to talk about all the parts and pieces just yet.

When I talked with USFWS last, we talked about castis in particular. This species has high visibility and even as of this October is still being written about in the Brazilian press.

I don't know if this has come up already about permits, but there are several kinds of permits. If these animals came in on a scientific permit export permit issued by Brazil and then imported on a scientific permit, but then redistributed outside this scope, this could be a violation of the import/export permits. How that pans out in this case I don't know, and the Brazilian laws that are cited on many of the Brazilian websites seem to have come on the books after this all happened.

Kyle,

Yes, it is possible to work with zoos and for us to receive seized animals through an organization like TWI. The problem is we need a lot of internal controls to be established. Many of those controls include vetting who receives animals and this is a very complicated matter. What would help immensely is if we as a hobby figured out a much better way of tracking permits from import to sale, to offspring, to resale, etc. Until we have that sort of discipline, it is going to be extremely difficult to have this level of collaboration. In my mind, getting the paper trail straightened out would resolve a whole lot of these issues. What this means in my mind is that both consumers and vendors create a culture where permits and captive bred letters follow each and every CITES animal. We can cram all this stuff into a database, talk about histories of whose line came from whom, but if you don't have the paperwork to back it, it is all an intellectual exercise.

Marcos

PS. For your reading enjoyment the latest I could find on the whole casti thing. If this article doesn't make complete sense blame the Google translator and me. It did the 70% translation and I cleaned it up best I could. I also want to touch on that like with tricolor a lot of the emotions here revolve around Convention on Biological Diversity and bio-piracy issues. With some dendrobatid derivative drugs estimated to be worth billions of dollars if trials are successful, you can imagine that this might be an emotional and political hot potato.

Crudely translated by Google and cleaned up by yours truly:
http://www.agenciaamazonia.com.br/noticias.php?id=575



> BRASILIA - a frog species from Brazil, Dendrobates castaneoicus, that was stolen from the University of Oklahoma is being sold on the Internet destined for commercial and amateur breeders. The species, described in 1990 by North American researchers Janalee Paige Cladwell and Charles W. Myers was until then unknown to science. They participated in a project of scientific expedition in partnership with the Paraense Museum Emilio Goeldi.
> 
> The species, also called the chestnut frog, had two collection sites - one in the Juruá Waterfall of the river Xingu and the other in the locality of Taperinha, in Pará, about 300 kilometers one the other. With authorization of Ibama, the North American researchers took reptiles, amphibians and other animal livings to the United States to be studied. According to Professor Garino Rinaldi Colli of the University of Brasilia (UnB) in a deposition on February 23rd to the CPI of Bio-piracy of last year, the export occurred 1995.
> 
> According to Colli, the Brazilian fauna had been sent for research in the University of Oklahoma. One of the species, the chestnut frog (Dendrobates castaneoticus) was described by Janalee Cladwell in a work titled “The New Poison Frog from Amazoniam Brazil, with Further Revision of the Quinquevittatus Group of Dendrobates”. Cladwell researched foraging behavior in the jungles of Brazil. To continue her studies, the researcher got permission from Ibama to take animals to the United States.
> 
> Cladwell’s studies were published in a bulletin of the University of Oklahoma. Later, the University of Nebraska developed educational program for young women; and, as a result of the program’s success, the Oklahoma City Zoo decided to share their research. In addition, the frogs sent to U.S. for research were shown the public and some of them, according to the CPI of the Bio-Piracy, were stolen from the zoo.
> 
> While in the United States, the frogs were improperly shared with some North American institutions including the Memphis Zoo, the Mesker Park Zoo & Botanic Garden, Sedgwick County Zoo, Philadelphia Zoo, Omaha´s Henry, Doorly Zoo and Montegomery Zoo. In addition, the CPI discovered the attempted exportation of some animals to Holland.
> 
> After pressure from Ibama, the North American researchers committed to locate and to repatriate the chestnut frogs that still remained in country. However, they were not successful. Strangely, the zoos that had received the animals stated that all had died. This fact was documented in a letter and no further investigation was conducted.
> 
> The investigator of the CPI, a member of the House of Representatives, Sarney Son (PV ME), requested that the Federal Police (PF) investigate the robbery with a sense of urgency. “There was a robbery and the fate of the animals is not known. It is possible that they were redirected from the laboratories for other sources of research”. Sarney says that it is necessary for the country to know what in fact happened with the stolen species from the Oklahoma Zoo.


----------



## Homer

Put succinctly, I would like the question answered:

If a frog is legally imported (e.g., given proper CITES permits), specifically under what legal theory does the USFW believe that they have a basis to assert a Lacey Act violation against individuals holding offspring of the legal animals obtained from the holder of those frogs.

Further, I would like citations to case law to back up their assertions, particularly as it pertains to the casti situation.

The bio-piracy issue is a whole different matter, and really not at all related to this discussion.


----------



## bbrock

kyle1745 said:


> The practice of selling surplus zoo animals to exotic animal traders is legal and quite common place. Born Free believes that it is yet another factor contributing to the growing exotic animal trade, which authorities value at $6 billion each year.
> 
> 
> 
> Is this true or just taken out of context? I really wish we could work closer with the Zoos.
Click to expand...

I got the feeling that group is a very activist advocacy group so I read everything their with an assumption that a certain amount of spin has been applied.


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## kyle1745

Thanks for the clarification everyone. I have heard of a number of cases where hobbiest donate to zoos, but not a lot the other way. I can understand the concern with most animals, but things such as Fish and Frogs I would think there would be a bit more openness.

Im all for a more official tracking system, but with any system it would be very hard to get started. Also there is no easy way to make it required, but I agree it benefits everyone if such a system did exist. 

Marcos, 
Are you going to talk with someone rather high within USFWS? The reason I ask is that it seems that you may be able to talk with a few people and get different answers. Id doubt you get a straight answer on some things as well. For example they would not risk any pending investigations, or say something that would lead to more frogs like castis. I think no matter what they say we as hobbiest maybe stuck with about what we know right now. There is a slight risk to owning castis.


----------



## bbrock

Homer said:


> Let's remember, the prosecution has the burden of proof, so I expect you pro-prosecutors to do a better job of giving legal citations. :wink:


But I'm not pro-prosecution and the burden of proof is precisely why. There is no way anyone is going to be able to make a case that the people holding castis had anything to do with theft or knowingly abetted a criminal act. Not unless new facts come to light. If such a case were to go to court, I think the feds and the zoos would end up looking like fools.

But that is a different issue from whether the frogs are legal. I also think that the Brazilian government could demand the return of all of THEIR frogs at any time. And anyone who did not act in good faith to cooperate with those efforts would then be in a different situation.


----------



## kyle1745

Brent this brings up an interesting point, and basically what I was saying back on page 4:


> So the question is: Should people buying captive born animals be treated the same as a smuggler? I would argue no, and that there should be a system to hold the smugglers accountable for their actions, but yet allow frogs that are already established in the hobby safe keeping.


If they are legal or not, they are somewhat established in the hobby and it would not benefit anyone or the animals to go after everyone keeping them. So it would be interesting to work with the proper authorities to create an exception for the current frogs in the hobby.


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## Blort

Homer,

The bio-piracy issue is relevant because in the context of castis because it appears a motivating factor in the Brazilian government's recent interest in the species. If you follow the actual link to the article I posted above, you will see a link at the bottom about frogs and medicine:

http://www.agenciaamazonia.com.br/noticias.php?id=576

So, while not the legal mechanism or trigger we are discussing here, it is part of the whole geopolitical issue. I think that when a member of a foreign parliament is pushing the issue, it is much more likely to get put on the front burner. This isn't an anomaly either, I have a link to an editorial from Panama talking about US trade. The trade in dendrobatids has a long and somewhat checkered history. While not the biggest issue out there compared to bird smuggling and other things out there, the dendrobatid trade has most certainly crossed the radar of most of the folks I have talked to so far.

Kyle,

I've been working with a gentleman that is either a division chief or the senior CITES policy specialist. I've also talked to their education coordinator and plan on talking to the reptile specialist. This is all on the management authority side of the house. Eventually I hope to put together a guide for the community about these permitting issues with input from USFWS. Also, I will be talking to most of the Latin American management authorities about these issues to get their input too about legality issues, repatriation, etc.

I agree about the complexities of the tracking system. In the short term, the thing we need to do is to start asking for permits when we buy frogs and giving them out when we sell them. At least with new imports, this should be a no brainer. With the older frogs, it may take some footwork, but is probably doable both through a grass-roots effort and with help from management authorities.

Marcos


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## kyle1745

As for the permit thing... Is the permit between the buyer and seller or a copy of the original permit allowing them into the country. How would one prove the validity of such a permit? As we have proven in a round about way in this thread, you can not even call some of these agencies twice and get the same answer.

The worry I have is that for this to work it would have to be easy, and when dealing with most US government offices the paperwork is most often the issue. I am personally fighting a similar issue right now with the Ohio title office whom keeps rejecting my paperwork but can not tell me exactly what I need for valid paperwork, or provide examples. This is a common problem with our government agencies and honestly it kills their productivity and their effectiveness.


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## bbrock

kyle1745 said:


> If they are legal or not, they are somewhat established in the hobby and it would not benefit anyone or the animals to go after everyone keeping them. So it would be interesting to work with the proper authorities to create an exception for the current frogs in the hobby.


Unfortunately for people who have these frogs, I do see benefit to Brazil and possibly to conservation in general for rounding up and taking back the frogs. Some of it has to do with what Marcos posted and some has to do with sending a powerfully strong message that failure to meticulously manage animals according to trade agreements will not be tolerated. This, hopefully, would ripple to the consumer community that a wink, wink, nod, nod, approach to obtaining questionable animals could result in forfeit of some very prized and expensive specimens. That might get people to think twice before purchasing such animals.

My preference would be an agreement with foreign management authorities to work out a comprimise. Perhaps the animals would remain the property of Brazil but be placed into legal custody of anyone who registers their animals with the Brazilian government. Perhaps there would be a filing fee for registration to move profits back to Brazil. And since Brazil would still own the animals, they should be able to claim any patent rights from bio-prospecting. I have no idea if any of that is legally practical but it would be nice. 

But on the other hand, I fear the precedent it might set. It could lead to a "procure frogs now and negotiate terms later" mentallity. The casti situation is rather unique since we aren't talking about smuggled frogs.


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## kyle1745

I like the idea of working with the Brazilian government. I think sending all of the animals may not be the best approach though.

As much as many of us hate to admit it the truth is that many of these animals will no longer exist in their natural habitats in our life time. While we may save some of the habitats we will not save them all, and we must think about this as we look at issues such as this one. Now with that said I do not claim to know the status of castis in the wild, and I do not keep them myself. I do think to lose them or any other frog completely due to a minor legal issues would not serve anyone in the long term. I do think the hobby could help repopulate frogs such as these if managed properly.


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## kyle1745

Also based on the translated article Marcos posted castis were exported in 1995, so how long has CITES been around and or the LACY ACT? Just wondering how the dates match up...


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## Jason

It looks like most dendrobatid species were added to CITES 10/22/1987


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## elmoisfive

Blort said:


> PS. For your reading enjoyment the latest I could find on the whole casti thing. If this article doesn't make complete sense blame the Google translator and me. It did the 70% translation and I cleaned it up best I could. I also want to touch on that like with tricolor a lot of the emotions here revolve around Convention on Biological Diversity and bio-piracy issues. With some dendrobatid derivative drugs estimated to be worth billions of dollars if trials are successful, you can imagine that this might be an emotional and political hot potato.


I concur with you that the belief that dendrobatid compounds will become commercially successful drugs drives some of the emotions found in these situations. But as Homer points out, it is not the central point here. 

As an aside, I have done a fairly extensive analysis of the epibatidine situation based on curiosity and should probably post some of my analysis. However I would have to wade fairly deeply into medicinal chemistry, molecular pharmacology, etc. and I'm not sure I want to bore the board with the details. 

Bill


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## bbrock

The Lacey Act was signed into law in 1900 and is one of our oldest wildlife laws.


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## sbreland

elmoisfive said:


> As an aside, I have done a fairly extensive analysis of the epibatidine situation based on curiosity and should probably post some of my analysis. However I would have to wade fairly deeply into medicinal chemistry, molecular pharmacology, etc. and I'm not sure I want to bore the board with the details.
> 
> Bill


Well, you may not want to bore the board, but bore me, I would love to hear the pharmacology behind it.


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## kyle1745

Interesting... Thanks for the info, I had no idea the Lacy ACT was that old. I guess I just assumed it was a new thing.


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## Ed

getting back to this somewhat

snip "
Ed, have you been holding out on us? Please give me a case cite where the Zoo was charged with a Lacey Violation via the castis"endsnip

To my knowledge none of the Zoos at this time have been charged with a LACY act violation as all of the Zoos have complied with the demands given them by USF&W to return the animals, thier bodies, or notarized documentation as to what happened to them. For example, my employer had to supply notarized copies of reports of deaths, necropsy reports, as well as items like histopathology slides, and any preserved specimens that had died that were still in our possession. 

Now this doesn't mean that this is over with at this time, as the statute of limitations hasn't run out for the Zoos yet. 

There have been LACY act issues for Zoos in the past, but Zoos tend to report any possible violations to USF&W before it gets any further . This is why Zoos require so much paperwork (and use Registrars to ensure that all of the paperwork is done and complete) when they aquire animals (and now if you want to sell to a Zoo you have to have sold to a Zoo before now and that Zoo has to be willing to vouch for you). However this doesn't mean that they get off scott free. This usually results in the Zoo having permits denied for various lengths of time (which can really mess up breeding programs and cost a lot of money), usually USF&W seizes the animal(s) and all offspring and retains ownership which allows them to decide if the animal can be sent elsewhere, etc (usually they refuse to allow the animal to be transfered, which can then be a expensive long term issue for the Zoo in several forms). 

Some comments on this... 

Ed


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