The "media storm" generated by the U.S. Fish and Wildlife Service's raids on Gibson Guitar resulted in "a great deal of controversy and misinformation both about the Lacey Act and the reach of U.S. Law enforcement's jurisdiction," according to legal experts with the Bureau of National Affairs in Arlington, Va.
In a legal opinion published Dec. 16, authors Marcus Asner, Samuel Witten and Grace Pickering take a step-by-step approach in analyzing facts available and not available in the case thus far, and overall they defended the Lacey Act for what it does for the United States' economy.
As basis for its most recent raid in August, the Fish & Wildlife Service alleged Gibson violated an Indian law that prohibits the export of unfinished wood. Critics of that raid "dismiss the Indian regulation as a mere technicality," the authors wrote, while Gibson CEO Henry Juszkiewicz has attempted to label that particular regulation a U.S. jobs killer; however, "Such regulations are fairly common and in part are designed to provide countries a way to reap more economic value from their natural resources."
Also lost in the jumble of recent Gibson coverage, the opinion says, has been the Fish & Wildlife Service's allegation that the company falsely characterized ebony wood from India as finished (which is legal to export), and that Gibson did not disclose that it was the actual importer. "These disputed areas no doubt will be fleshed out further in the upcoming court battles," they wrote.
In addition, critics bemoan the fact that part of the Lacey Act's enforcement rests on interpreting foreign countries' laws on illegal logging; however, the authors noted that "the interpretation of foreign law is fairly common in U.S. legal proceedings, and U.S. federal courts have well-established procedures for resolving such issues."
"Moreover, as the world's largest consumer, the United States has a strong interest in seeing that the world's renewable natural resources remain healthy, in part to protect the supply of resources we rely upon and in part to protect American business from being undercut by cheap resources illegally harvested overseas."
Since the first raid on Gibson in 2009, the legal experts wrote, much of the debate over the Lacey Act has focused on its due care provisions; however, they pointed out, "it does not appear that the U.S. government is basing either enforcement action on the 'due care' prong of the act." Instead, the first raid on Gibson "was based on forfeiture theory rather than a civil or criminal prosecution based on an absence of due care … People or entities that possess wood products unlawfully taken … may not keep those products in the same way people who receive stolen goods have no right to keep them."
Last, the legal experts wrote that critics who label the Lacey Act a jobs killer are ignoring policy choices that have led legislators to endorse the act for more than a century. "… Advocates in both Congress and the forestry industries have applauded the role that the Lacey Act plays in preserving U.S. jobs," they wrote. They concluded that that the act is "one of the bulwarks of U.S. efforts to control international trade in illegally taken wildlife … and it has long been recognized as important for both U.S. and foreign economies."
