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109 Mich. L. Rev. First Impressions 1 (2010)

handle is hein.journals/mlro109 and id is 1 raw text is: 











             ESTABLISHING A DUE CARE
         STANDARD UNDER THE LACEY ACT
                   AMENDMENTS OF 2008


                           Rachel Saltzman*t



                             INTRODUCTION

    The Lacey Act was first enacted in 1900 as a narrow measure for domes-
tic bird preservation and agriculture protection. It was significantly amended
in 19811 and 19882 to prohibit trafficking in fish and wildlife taken, pos-
sessed, transported, or sold in violation of state and foreign laws.' For the
past three decades, the amended statute has provided the federal government
with a powerful tool for regulating imports of fish and wildlife. In 2008
Congress expanded its reach still further, responding to widespread concern
about the effects of illegal logging on local governance, the environment,
and American business by extending the Act's protections to imported
plants .4
    The Lacey Act's penalty provision imposes both civil and criminal lia-
bility for wildlife trafficking. At its most stringent, the Act imposes felony
liability on those who knowingly import fish and wildlife harvested in
violation of foreign laws. Importers and subsequent purchasers of imports
who fail to exercise due care in determining whether their products are
legal may be subject to misdemeanor liability or civil penalties.5 The due
care standard, which originated in the 1981 amendments, is now almost
three decades old, yet key differences exist between companies in the timber
market and the business enterprises whose operations were traditionally re-
gulated under the Lacey Act's fish and wildlife provisions. These differences
limit the applicability of the few existing precedents that have interpreted
and applied this standard.



     *  Rachel Saltzman is a member of the Yale Law School class of 2011. The author thanks
Andrea Johnson at the Environmental Investigation Agency for her thoughtful review of this article.
     t  Suggested citation: Rachel Saltzman, Establishing a Due Care Standard Under the
Lacey Act Amendments of 2008, 109 MICH. L. REV. FIRST IMPRESSIONS 1 (2010), http://
www.michiganlawreview.org/assets/fi/109/saltzman.pdf.
     1. Pub. L. No. 97-79, 95 Stat. 1074 (1981).
     2. Pub. L. No. 100-653, 102 Stat. 3825 (1988).
     3. 16 U.S.C. § 3372(a)(2)(A).
     4. Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-234, § 8204, 122 Stat. 923
(to be codified at 16 U.S.C. § 3372).
     5. 16 U.S.C. § 3373(d)(2).

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