New York bar on ivory sales stirs passions at 2nd Circuit


Nina Pullano, Courthouse News Service

Date Published
New York state governs antique ivory sales more strictly than the federal government does. The future of those protections is in the hands of a panel of appellate judges.

“Before the enactment of the state ivory law,” Grace X. Zhou, an assistant state solicitor general, said Friday, arguing before the Second Circuit. “New York was a hub for trade in ivory, contributing to the demand in ivory.”

New York adopted the law at issue in 2014, largely banning the sale of ivory antiques within state borders. Only pieces that are at least 100 years old and contain less than 20% ivory are legal to sell here though with proper permits dealers in the Empire State can still sell ivory antiques to out-of-state buyers, online or by catalog for instance.

Buyers who come into the state to make the purchase, however, run afoul of the law, and shops can’t display illicit ivory antiques in the windows or on their shelves.

As the state and the Humane Society of the United States see it, the Endangered Species Act created a floor for protections, but states are welcome to tighten up the rules on their own turf.

“The truth is that the sale of these parts, even antique parts, increases the commodification of ivory sales in a way that contributes to the current commodification of these animals,” Ralph Henry, director of litigation at the Humane Society, said in an interview this afternoon.

Worldwide, the ivory trade is worth roughly $23 billion per year, and the Natural Resources Defense Council estimates More than a thousand rhinos and tens of thousands of elephants are killed each year so that poachers can sell the ivory from their horns to designers making jewelry, furniture and other decorations. Henry says there’s good reason for New York to take action.

“It’s a pretty booming market, even compared to other states,” he noted. In 2017, an antique shop raid in New York City resulted in authorities confiscating 130 illegal ivory items worth at least $25,000.

“My clients feel that states, including the state of New York, have an important role to play in supplementing federal laws,” Henry said. “I think we’ll have a part we can play in reducing the commodification in endangered species.”

The statute faces a challenge, however, from the Art and Antique Dealers League of America and the National Antique and Art Dealers Association of America. They say federal law preempts the state from adopting more rigorous standards, and that the display-restricting rules violate the First Amendment. After a federal judge dismissed their preemption claim, the groups are eyeing a reversal from the Second Circuit.
A hearing on this appeal Friday went well over the allotted 12 minutes of argument for each party, with an attorney for the antique dealers insisting that New York has no basis for claiming that it is helping curb the ivory trade by regulating antique ivory so tightly. After the hearing, Caleb Trotter, who is a lawyer with the Pacific Legal Foundation in Sacramento, summed up his point in an email to Courthouse News.

“Simply,” Trotter said, “it is unconstitutional to ban legal sales in order to prevent illegal sales. … The dealers are hopeful for a decision freeing them to continue selling important antiques and works of art in accordance with federal law.”

The assistant solicitor general argued meanwhile that New York’s definitions are in agreement with the Endangered Species Act, which doesn’t explicitly delineate intrastate and interstate deals. State laws may be more, but not less, restrictive than the act, according to its text, Zhou said.

For the antique dealers, attorney Trotter pointed out that the act preempts state laws that “may effectively” forbid activity allowed by federal exemptions or permits.  

“This is precisely what the State Ivory Law and the New York State Department of Environmental Conservation’s] licensing regulations do,” Trotter wrote in his brief. “Federal law exempts the sale of antique ivory pieces from federal trade prohibitions. Disagreeing with federal law, New York seeks to withdraw the state from this interstate market and restrict how sellers advertise interstate and foreign sales.”

Trotter zeroed in at Friday’s court hearing on the regulations for showing off ivory antiques in commercial settings, saying they prevent his clients from selling valuable inventory, blocking what he said was the only way a sale can happen.  

“It comes down to the way that the department is enforcing this with its display restriction,” Trotter said. “The department is saying to address illegal sales, it must prohibit all legal sales in the state.”

The Humane Society’s Henry told the court, on the other hand, that window shopping is “something of a precursor” to interstate sales. “There is certainly a conservation rationale for banning the sale of items that were procured from animals that are long since dead,” he said.

U.S. Circuit Judge Pierre N. Leval focused on the state’s reasons for enacting its law in the first place.

“What is the state’s substantial interest in forbidding the display of antique items that are lawful to be sold to an interstate customer?” the Jimmy Carter appointee asked. “This is protecting elephants who were alive 50 and 100 years ago.”

Zhou noted that in-state sales turn on whether the buyer and seller are both in New York. Empire State dealers can still peddle their wares at trade shows outside New York, but the state is intent on preventing ivory sales within its borders.

“When the sale takes place in New York, the ivory good would also be changing hands between the buyer and the seller in New York,” Zhou reasoned.

U.S. Circuit Judge Richard J. Sullivan, a Trump appointee, probed that definition and compared ivory to selling guns across state lines, which is handled at the federal level.

“This is a foreign item. This is a rhinoceros horn from Africa,” Sullivan said. “It is the equivalent of a gun manufactured outside of New York state.”

Trotter noted that New York already requires dealers to submit annual reports that include buyers’ names. Rather than focus on in-person sales, the state could require proof that an antique was shipped out-of-state, preventing secret in-state deals.

Judges Sullivan and Leval were joined on the panel by U.S. Circuit Judge Myrna Pérez, a Biden appointee. They did not offer a timeline for when they will rule.