OPINION: The Lacey Act Strikes Again

(The Heritage Foundation/TNS) -

Have you broken any federal laws today? Don’t be too sure. Just ask Lumber Liquidators. The flooring retailer ran afoul of the Lacey Act, and violating it is much easier than you might think.

The Lacey Act makes it a federal offense to purchase, sell, import, export, possess, or use any flora or fauna — fish, wildlife or plants — which actions would violate any state, federal or foreign law. That’s right, an American citizen can be held criminally responsible under United States law for violating an unknown foreign law written in a language that most Americans cannot even read.

In February 2016, Lumber Liquidators was sentenced to pay more than $13 million in criminal fines and related penalties for importing lumber that, unbeknownst to the company, was illegally harvested in far eastern Russia.

Russian timber company Beryozoviy harvested the wood in excess of legal limits in Russia and later sold it to Xingjia, a Chinese flooring manufacturer. Xingjia then turned the lumber into finished flooring and sold the product to Lumber Liquidators for the company’s Virginia Mill Works line of oak flooring.

Senior executives of the original supplier, Beryozoviy, were later convicted in a Russian court for illegally logging the Mongolian oak that they supplied to Xingjia. This oak ultimately reached Lumber Liquidators through its multinational supply chain.

Although Lumber Liquidators lacked any reported involvement in the illegal logging, the Justice Department charged the company with a violation of the Lacey Act because it imported a product into the U.S. that was illegally sourced under Russian law. The Justice Department took the position that in the exercise of “due care,” Lumber Liquidators should have known of the lumber’s unlawful procurement, thus opening the company up to liability for bad acts committed by unaffiliated suppliers more than 5,000 miles away.

But Lumber Liquidators is not the Lacey Act’s first prey.

The Lacey Act has gained much notoriety as a tool to secure far-reaching criminal convictions and fines against unwitting Americans for such conduct as importing Honduran lobsters in violation of Honduran packaging law, and importing wood from India and Madagascar in violation of the laws of those nations.

2016 was another banner year for this type of Lacey Act prosecution.

For example, Dewayne Slade and Don Durrett pleaded guilty to conspiring to violate the Lacey Act for their role in transporting white-tailed deer from Texas to Mississippi. Durrett sent the deer from his ranch in Texas to Slade’s in Mississippi in violation of the Mississippi Department of Wildlife’s ban on importing deer. The Lacey Act turned this state offense into a federal offense, for which each party received three years of probation and a $10,000 fine in the plea agreement.

While this particular use of the Lacey Act is not unconstitutional, because it involves wholly domestic activity, it is a cringeworthy example of federal overreach and an unwise use of scarce federal resources in the 21st century.

The Lacey Act was also used in 2016 to generate federal convictions for hunting big game as a non-resident in Alaska and for transporting baby eels harvested along the east coast. In both cases, the defendants violated applicable state laws in Alaska and Massachusetts, respectively, and could have been prosecuted at that level.

Leaving state and local conduct to state and local law enforcement officials — who should be more than capable of enforcing their own laws — would free up the federal government to focus their resources on issues of national importance.

Congress needs to take steps to repeal or reform the Lacey Act to eliminate the threat it poses to unwitting Americans. The optimal solution would be to eliminate criminal liability under U.S. law for violations of foreign law. That element of the Lacey Act renders it unconstitutional. At a minimum, Congress should add a mens rea — guilty mind — requirement, and adopting a mistake of law defense. At the very least, Congress should publicize a list of the specific foreign laws that trigger criminal liability under the Lacey Act to provide notice to Americans.

If the new 115th Congress wants to show that they are willing to take the problem of overcriminalization seriously, repealing or reforming the Lacey Act should be a priority.

Paul J. Larkin Jr. is a senior legal research fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation, where David Rosenthal is a visiting legal fellow.