OK, you’ve just pulled out that old, unplayable, Civil War-era Martin guitar that you’ve had stashed in that closet for years.  You open the case and think, “Hmmm.  You know, I’m never going to get this repaired and put in playable condition.  Yeah, it’s a beautiful little thing, but I really don’t appreciate the sound of these old, gut-string guitars. But, I bet that someone would.  Maybe I should …”

Hold that thought!  In fact, don’t have that thought, at least until you remember where you live.  Quick, look out the window.  See anyone wearing leather and lace, see-through fabrics, or metal accents on their clothing? No?  Good, then you’re probably not in California.  But, if you are in California, don’t even think about thinking what you were about to think.

Yes, that’s right; you nearly committed a thought crime.  You see, California Penal Code section 653o makes it illegal “to possess with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of any polar bear, leopard, ocelot, tiger, cheetah, jaguar, sable antelope, wolf (Canis lupus), zebra, whale, cobra, python, sea turtle, colobus monkey, kangaroo, vicuna, sea otter, free-roaming feral horse, dolphin or porpoise (Delphinidae), Spanish lynx, or elephant.”  Your old Martin appears to be polar bear and sable free, but check out that white binding around its edges.  Yep, that’s ivory, an elephant part.  Through WWI, Martin (and a number of other makers) used that stuff to protect the edges of its instruments.  Take a closer look at those ivory tuner buttons, too.

If you think about selling while you still own that guitar, you’ve committed a misdemeanor and are subject to a fine of between $1,000 and $5,000, or six months in jail, or both.  OK, unless thought balloons follow you around the California enforcement authorities aren’t going to know your intentions,  but, put that guitar for sale on ebay, Craigslist, or at your local flea market and your intentions become apparent.  Now, a judge will not likely give you the maximum penalty, but do you really want to end up in front of a judge, begging for mercy for having committed a thought crime?

No ivory?  Check for what we all call tortoise shell, but which is really Hawksbill Sea Turtle, which guitar makers of yore used for pickguards, binding, and as a headstock overlay. Oh, and check the guitar case’s pocket for picks made of the stuff.   Don’t think about selling those, either.

By now, you know that both international law – the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES, and US federal law – the Endangered Species Act and the Lacey Act – impose restrictions upon the movement of these substances and others, like Brazilian rosewood, across international borders.  But, you’re only thinking of selling the guitar to the novice luthier next door.  That’s where the California Penal Code comes into play.  It bans the sale, or possession with intent to sell, even within the state.

“When did this new law go into effect?” you ask.  Uh, in 1970.  “So,” you wonder, “Why are you blathering on about it now?”  Well, because the California Department of Fish and Game, the entity charged with enforcing the law, seems recently to have discovered its existence and has begun enforcing it.

In truth, the California Department of Fish and Game has known of the law’s existence since its inception.  But, the Department has had other “enforcement priorities,” says Phil Nelms, a retired Department Captain who still works in the Department a day each week and is its resident expert on all things pertaining to section 653o. Moreover, 653o “is still not an enforcement priority and it will not be an enforcement priority.”

Hmm.  If not a priority, enforcement at least made the list of required duties on February 5 of this year when California agents raided a flea market, seized ivory trinkets being offered for sale, and cited at least one seller for violating the California statute.  And, it sure looked like a priority two weeks later when nearly two dozen California agents stormed the Slawinski Auction Company in Northern California and scooped up antique ivory items valued at about $150,000.

“Well,” says Nelms, “that really was the federal enforcement action.  You see, the federal Fish and Wildlife Department can deputize state officers to enforce federal laws, and that’s what they did there.”  Nelms adds that the feds didn’t file any charges and returned all of the items after examining them and concluding that they were in compliance with federal law.

Whether a priority or not, the California Fish and Game Department’s enforcement of the law certainly sent a shiver of fear through the California antique dealer community.  On February 20, two days after the raid, Rosie DeStories, an antique dealer in my own state of Connecticut and the sister of the owner of the raided California auction house, emailed this message to all California antiques dealers:

The State of California Department of Fish and Game is ACTIVELY raiding auction houses and antique shows, confiscating ivory. It is now illegal to sell or have the intent to sell ANY IVORY within the State of California or to sell it to any bidders within the State of California REGARDLESS OF THE AGE of the ivory.

I decided to seek out this woman whom antiques dealers have dubbed “a modern day Paul Revere.”  But, when I phoned DeStories to ask whether she knew of other enforcement actions, I discovered that her midnight ride was a one off.  She demurred through an employee of her own auction house, who conveyed this message:  “I was not involved in the actions in California and I have nothing to say about the topic.”

Nelms, at least, is reassuring.  “Look, as long as you comply with federal law, you don’t have to worry.  This is not an enforcement priority for us.”

Alas, promises not to enforce a law are not enforceable.  As long as 653o (and its cousin, 653p which makes criminal under California law any violation of the Federal Endangered Species Act) remains among California’s laws, one would be wise to heed Nelms’s advice “to check with a lawyer and call [the California Department of Fish and Game] before selling any ivory in California.”

What that lawyer is likely to tell you is that § 6(f) of the Endangered Species Act allows state laws to be more protective of endangered species than is federal law.  One exception, though, is that if an owner receives an exemption under the federal law for an item, states cannot criminalize its possession, movement, or sale.  If the ivory simply entered the US legally without any sort of affirmative federal action, § 6 allows a state like California to criminalize its sale. But, if the owner sought and received an affirmative exemption for the sale, that federal action trumps, or, in the language of your lawyer, preempts the application of state law.

So, under what circumstances might one have obtained an exemption?  Let’s take a (brief) look at the law.  Be forewarned, though:  this is not for the faint of heart.

There are five, count ‘em, five important bodies of law applicable to elephant ivory, and they all distinguish African from Asian elephants.  They are:  CITES, the Endangered Species Act, the African Elephant Conservation Act, the Asian Elephant Conservation Act, and the Lacey Act.  In general, the export of raw ivory is prohibited, as is the import, with the exception of hunting trophies obtained during a legal and licensed hunt.  (I’ve long supported the right to arm bears.  The specter of tusks as hunting trophies leads me to support the right to arm elephants, too.)  Worked ivory – those bits of tusks carved into shapes or sliced and used to decorate the edges of an instrument – may be imported for non-commercial purposes if acquired before the effective dates of those five laws, typically before the ESa’s date of 1978, or if antique.  An antique is an object over 100 years old that hadn’t been re-worked since the effective date of the applicable laws.

“OK,” you say, but we want to sell the stuff, so we need it for a commercial purpose, right?”  Right.   You’ll need an exemption and a certificate of legality for commercial purposes from the US Fish and Wildlife Service.  Exemptions for the commercial sale of ivory are nearly as rare as the substance itself.  As the Service observes, “To date, no commercial import of non-antique African elephant ivory has been permitted.”  And, non-antique Asian elephant ivory?   It can be sold, but only to someone who resides in the same state as the seller, and only if state law allows the sale.  So, this not going to happen legally in California.

But, it is possible to obtain that exemption for the sale of antique ivory from elephants of either continent.  The Fish and Wildlife application form is here.   Remember, though, that Asian elephant ivory cannot be sold over state lines.  Remember, too, that you’d need to obtain this exemption at the time of import.  That old Martin was built in the US.  The cited laws didn’t exist at the time that the Martin Company imported the ivory. So, it wasn’t obtained pursuant to an exemption.

OK, now assume that the guitar in question is a 105 year old European instrument that you recently located on line and for which you obtained an exemption for importation for commercial purposes.  You’re immune from that California state law, right?  Well, probably.  Remember, though, that we’re talking about law, so you know that when one side of the equation argues to open a loophole, the other side will argue just as vociferously to close it.

A case in point in the litigation between the advocacy group, Viva! International Voice for Animals, and the shoe company, Adidas.  Apparently observing its enforcement priorities, California authorities had made no effort to stop Adidas from selling shoes made of kangaroo leather.  But, in 2003, the advocacy group took note and brought suit to enforce the law.  Adidas won in the lower courts on the ground that the Endangered Species Act trumped California Penal Code section 653o.  In 2007, however, the California Supreme Court reversed those decisions and ruled that, because the ESA had not expressly made the sale legal, the ESA did not preempt application of California law.

So, what does this mean?  We can’t be certain.  The implicit message of the Adidas case is that an express act by the feds, like granting an exemption, does prevent the application of contrary state law. But, that’s an implicit message and five years later, lawyers, and even worse, law professors, are still arguing over what the court’s opinion means.

The bottom line is that if you are planning on selling ivory or other substances addressed by section 653o, you need to get educated.  A good place to start is with this US Fish and Wildlife “Fact Sheet.”  Then, heed agent Nelms’s advice to contact a lawyer.  And, if you plan on trading in ivory often, you should put her on retainer.