Establishing a Due Care Standard Under the Lacey Act Amendments of 2008

The Lacey Act was first enacted in 1900 as a narrow measure for domestic bird preservation and agriculture protection. It was significantly amended in 1981 and 1988 to prohibit trafficking in fish and wildlife taken, possessed, 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\u27s protections to imported plants. The Lacey Act\u27s penalty provision imposes both civil and criminal liability 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. 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 regulated under the Lacey Act\u27s fish and wildlife provisions. These differences limit the applicability of the few existing precedents that have interpreted and applied this standard