The Lacey Act has been around since 1900 when it was signed into law by President William McKinley. It has been amended and expanded since including once under Ronald Reagan and, most recently, under George W. Bush in 2008. Simply put, the Act prohibits trading in wildlife, fish or plants that have been illegally taken, transported or sold. Penalties include confiscation and criminal prosecution. Among the prohibitions included in the recent amendments is trading in wood that has been illegally logged.
Guitar makers have long relied on exotic woods to manufacture their products. Gibson is no exception. Two years ago, federal agents raided Gibson and confiscated guitars and pallets of ebony purchased from Madagascar. Earlier this year, Gibson was raided again, this time resulting in the confiscation of Indian rosewood. No criminal charges have been filed against Gibson. The case is still being investigated. Meanwhile, Gibson has filed suit for the return of the confiscated property. It has also hired a PR firm.
Musicians have come to fear the Lacey Act as well. The Act is retroactive, making the ownership or transportation of vintage instruments dangerous unless a person can prove that every piece of wood, and other components like ivory, was taken, transported and sold legally at the time the instrument was produced. Some musicians refuse to travel out of or into the country with vintage instruments. One pianist had the ivory keys of a vintage piano removed before moving overseas. A dealer in vintage stringed instruments has shut down its foreign sales.
Both the Department of Justice and the Fish and Wildlife Service insist that
“[P]eople who unknowingly possess a musical instrument or other object that contains wood that was illegally taken, transported or sold in violation of the law and who, in the exercise of due care, would not have known it was illegal, do not have criminal exposure.”
Notice that the statement addresses criminal prosecution, but does not address confiscation.
Over the decades, the Lacey Act has been regarded as useful in controlling international lawlessness, but there is also a history of alleged abuse where the Lacey Act is concerned. Most recently, a lobster importer was convicted and sent to prison in 2001 for trading in illegally transported Honduran lobster tails. The source of the illegality was that the lobster tails were shipped in plastic bags contrary to a little-enforced Honduran law requiring them to be shipped in boxes.
Back to Madagascar. There’s little in the way of law or law enforcement there since a coup several years back. Logging interests pay small sums to free lance loggers to poach valuable exotic woods from Madagascar’s national forests. Because woods like ebony don’t float, the loggers will often cut as many as five trees for every exotic tree to float the wood to a destination point. Madagascar’s forests are being denuded due to the illegal wood trade. Some exotic woods are legally harvested, but it is virtually impossible to distinguish between legally and illegally harvested woods.
Gibson claims that it obtained the wood legally and that the Feds are raiding their plants and seizing wood to intimidate them. Their claim would seem to have little merit prior to this year’s seizure of the Indian rosewood and 100,000 fingerboards. What Gibson does not emphasize is that there was a fact finding mission to Madagascar in 2008 as a result of which other guitar makers like Taylor and Martin stopped buying wood from the country. There’s also that pesky email from a Gibson employee suggesting that the company could continue buying Madagascar wood through the “gray market.”
As the owner of a 1960’s vintage C. F. Martin guitar, complete with now-banned Brazilian rosewood and maybe, I’m not sure, an ivory bridge, I’ll take the self serving position that the latest amendments to the Lacey Act are a) open to abuse and b) unconstitutionally retroactive in their application.
Contributor, aka tidbits. Attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.