Antique dealers are challenging a law that makes it nearly impossible to market some of their wares in New York state that are otherwise legal to sell in the United States.
The case is Art and Antique Dealers League of America Inc. v. Seggos, pending before the U.S. Court of Appeals for the 2nd Circuit. Basil Seggos is the commissioner of the New York State Department of Environmental Conservation. Also listed as defendants–appellees in the case are the Humane Society of the United States, the Center for Biological Diversity, the Natural Resources Defense Council, and the Wildlife Conservation Society.
The plaintiffs–appellants are the Art and Antique Dealers League of America Inc. and the National Antique and Art Dealers Association of America Inc.
With the passage in 2014 of the New York State Ivory Law and the New York State Department of Environmental Conservation’s creation of license conditions limiting whether and how antiques containing ivory may be displayed, most such antiques are now banned from being sold and displayed for sale in New York state.
If an antique, defined as an object of at least 100 years of age, contains more than 20 percent ivory, state law bans its sale to New Yorkers and prohibits its display in New York state dealers’ stores. Dealers may only show photos or catalog listings of that merchandise to in-store visitors and only if a “not for sale in New York” disclaimer is attached.
Violations of the state statute, which also applies to ivory from mammoths, an ancestor of modern elephants that became extinct 4,000 years ago, can lead to imprisonment for up to seven years for a felony, a sentence that may be accompanied by fines of up to $3,000 or two times the value of the item involved.
The federal Endangered Species Act (ESA) restricts trade in products made from endangered animals and from some threatened animals. After it was enacted in 1973, Congress set an exemption from the ESA’s prohibitions for trade in antiques, and the U.S. Fish and Wildlife Service (FWS) created regulations governing trade in African elephant products, including antiques containing ivory.
Federal law recognizes that there’s no evidence of a connection between antiques and modern elephant poaching and allows for the sale of older antiques containing ivory, as well as newer items containing a small amount of ivory. The rules allow interstate and international commerce in “antique articles” that are at least 100 years old, as well as non-antique artwork containing “de minimis” amounts of ivory that are at least 45 years old and have been present in the United States for at least 30 years.
FWS specifically determined that this exempted commerce doesn’t contribute “to the poaching of elephants in Africa,” the appellants’ opening brief filed with the 2nd Circuit Court of Appeals reads.
Ivory has been an important medium for art, furniture, and jewelry for millennia, and ivory carvings date back to prehistoric times. Ancient Egyptians and Phoenicians used ivory in art and furniture. Western artisans used ivory from the Middle Ages through the Renaissance and Baroque periods to create objects depicting Biblical scenes and figures, according to the brief.
“Skillful ivory carving was also practiced in China as early as the Shang Dynasty in the 16th century BCE. Middle Eastern artisans used ivory for furniture, caskets, and pulpits during the time of Muhammad. Indian Hindus and Buddhists, indigenous Inuit, and native Africans have likewise used ivory in artistic carvings for centuries,” the brief reads.
Ivory has played “a significant role in recording the history of art, religion, and human civilization,” even though attitudes toward conservation and animal harvesting have changed and elephant ivory is no longer commonly available for use in making new goods.
Attorney Caleb Trotter of the Sacramento, California-based Pacific Legal Foundation (PLF), a national public interest law firm that is representing the antique dealers, said it makes no sense for the government to allow an item to be sold, but to prohibit the seller from talking about it in a display.
Such restrictions are forbidden by the First Amendment, he told The Epoch Times.
“You have dealers forced to only display these items online or via photograph or via catalog. Only the problem is that these are not inexpensive items and the authenticity of these items, of course, is extremely important,” Trotter said.
“No one is going to be willing to buy an item like this unless they can physically inspect it, to make sure it’s authentic.”
The way the New York state law is being enforced amounts to “completely prohibiting the sale of antiques containing ivory,” Trotter said.
This is a problem for antique dealers “because a lot of them have acquired a number of expensive pieces and have had them in inventory, and so it can be a rather large sunk cost to a lot of them,” he said.
“More and more extinct mammoth ivory is being found and made available” after being “uncovered in places like Siberia and extreme northern Canada,” according to Trotter.
The dealers challenged the state ivory law and the display restrictions in federal court, and U.S. District Court Judge Lorna G. Schofield, an Obama appointee, ruled against them in an 11-page opinion March 5, giving rise to this appeal.
“We at the Pacific Legal Foundation got involved earlier this year to take over the case on appeal and we filed our opening brief,” Trotter said, noting that the state attorney general’s response to the brief is due in mid-September.
“We like our chances. I don’t think we would have gotten involved in taking over the appeal if we didn’t.”
The office of New York Attorney General Letitia James, a Democrat who is defending the state statute in court, didn’t immediately respond to a request for comment.