We regularly get inquiries on whether trophies that are listed as “endangered” can be sold. So, we thought a recent criminal conviction of an individual for posting an advertisement on an internet auction site (a mere “offer for sale”) would be of interest to readers.
In United States of America v. Gerard Jerry Snapp, No. 10-50043, United States Court of Appeals for the Ninth Circuit, March 22, 2011, the appeals court upheld the criminal conviction of Gerard Snapp for the unlawful act of “offering for sale” an endangered wildlife species which is prohibited by 16 U.S.C. 1538(a)(1)(F). Snapp listed an elephant skull for sale on Craigslist.
There is a USF&WS regulation explaining that the prohibition against offers for sale excludes advertisements accompanied by a warning that no sale will be consummated until a valid permit is obtained, but the appellate court in this case upheld the trial court, which refused to give the jury instruction charging the jury with that regulation because of the facts of the case. Apparently there was no such condition in the ad, and the defendant offered to sell it over the phone without the permit when so asked.
This is not the first such case. The mere “posting of an advertisement on an internet auction site would be enough to satisfy an ‘offer for sale’ in violation of the ESA,” Elizabeth R. Beardsley, “Poachers with PCs: The United States’ Obligations and Ability to Enforce Endangered Wildlife Trading Prohibitions Against Foreign Traders Who Advertise on eBay,” UCLA J. Envtl. L. & Policy 1. 17 (2006). In United States v. Clark, 986 F.2d 65 (4th Cir. 1993), the defendant was convicted for advertising the sale of a Siberian tiger skin rug in the Washington Post newspaper.
In short, it is not only illegal to sell a trophy part from an “endangered” listed species in interstate commerce without a permit, you can’t even advertise it unless the advertisement has “a warning to the effect that no sale may be consummated until a permit has been obtained from the USF&WS.” 50 CFR 17.21 (f)(2). This rule does not apply to sales wholly within your state, but it does apply to offers of sale in publications with broader distribution and reach because “for sale” advertising is a crime in and of itself.
In short, it is illegal to offer to sell an endangered listed species. Sale is not necessary. It could be lawfully sold with a permit, but USF&WS will not issue a permit.