Another chapter has been written in the long and complicated saga of state efforts to ban or restrict the sale of legally acquired products and art containing ivory—sales that are allowed under the federal Endangered Species Act (ESA) because they do not impact current wildlife conservation efforts.
On November 13, 2024, in The Art and Antique Dealers League of Am., Inc. v. Seggos,i
the Second Circuit Court of Appeals ruled that the ESA does not preempt New York State’s law restricting the sale of certain ivory products but held that the state’s licensing requirements for ivory sales violate a licensee’s First Amendment rights to commercial speech in advertising the ivory for sale.
The ESA allows for the trade of certain types of ivory, including antique ivory, which refers to ivory that is at least 100 years old, as well as products with de minimis amounts of African elephant ivory. However, New York State’s ivory law is more restrictive, mandating that all ivory in New York State regardless of age must have less than 20 percent ivory by volume. New York State does not recognize a de minimis exception.
Antique and art dealers challenging New York State’s ivory law claimed that New York State prohibits what the ESA allows and that the state ivory law should be preempted. The court looked to the preemption provision in the ESA, which states:
Any State law or regulation which applies with respect to the importation or exportation of, or interstate or foreign commerce in, endangered species or threatened species is void to the extent that it may effectively . . . (2) prohibit what is authorized pursuant to an exemption or permit provided for in this chapter or in any regulation which implements this chapter.
The court threaded the needle and drew a distinction between the “permits and exemptions” described in 16 U.S.C. § 1535(f) and “exceptions” generally. The court reasoned that Congress used the language “permits and exemptions” to refer to administrative actions granting authority; however, it held that an “exception” exists by mere operation of the statute and is not within the purview of ESA preemption.
The antique and de minimis exceptions, the court reasoned, are not exemptions, because they do not need a permit or affirmative authorization, and thus found that New York State was free to restrict the sale of antique and de minimis ivory items that would otherwise have been allowed under the ESA.
Applying Loper Bright Enterprises v. Raimondo,ii in which the US Supreme Court overturned the former practice of court deference to agency interpretations of the law, the majority rejected the argument of the dissenting opinion that the ESA regulations make no clear distinction between exemptions and exceptions, stating that the court did not have to defer to the agency’s interpretation.
Ultimately, the court ruled in favor of the antique and art dealers’ First Amendment challenge that New York State’s licensing requirement prohibiting the display of ivory not allowed for intrastate sale in New York violated the dealers’ rights to commercial speech. In making its ruling, however, the court emphasized that because the state conceded that the requirement regulated commercial speech, the court was not deciding whether the display of ivory is commercial speech and its determination on that point has no precedential value.
If you have any questions regarding the content of this alert, please contact Mike Oropallo, Outdoor & Wildlife Team co-leader, at moropallo@barclaydamon.com; Tom Paul, partner, at tpaul@barclaydamon.com; or another member of the firm’s Outdoor & Wildlife Team or Environmental Practice Area.
iDocket No. 21-569 (Decided November 13, 2024).
ii144 S. Ct. 2244 (2024).