New York Ivory Ban Survives Pre-Emption Claim

MANHATTAN (CN) – Antique dealers challenging New York’s tight rules on intrastate ivory sales failed to persuade a federal judge Wednesday that the law is unconstitutional.

New York enacted the statute in 2014, strengthening the criminal and civil penalties against ivory buyers and sellers on the basis that the market contributes to decline of endangered elephant and rhinoceros populations worldwide.

The ivory trade is illegal under federal law as well, but New York’s law includes a much more limited set of exceptions, giving a pass only to antiques that are at least 100 years old and contain less than 20% ivory.

New York-based antique dealers can still sell ivory outside the state, however, provided that they obtain the necessary license from New York and otherwise comply with the federal Endangered Species Act.

Not satisfied with these provisions, the the Art and Antique Dealers League of America Inc. and the National Antique and Art Dealers Association of America brought a 2018 lawsuit. They amended the case earlier this year after failing to demonstrate subject-matter jurisdiction but faced another defeat on Wednesday.

In a 20-page decision, U.S. District Judge Schofield dismissed a claim by the dealers that the Endangered Species Act pre-empts New York’s intrastate rules.

“Defendants’ motion to dismiss is granted because it was not ‘the clear and manifest purpose of Congress’ to pre-empt state laws restricting purely intrastate commerce in ivory,” Schofield wrote.

The dealers are also alleging violations of the First Amendment, saying New York cannot regulate how they display any ivory considered illegal for intrastate stales. To display such merchandise in advertisements, catalogues and online, licensed dealers must posts a notice next to the item’s picture or description stating “Cannot be purchased or Sold within New York State.”

Schofield left this claim intact, saying “the record does not provide a sufficient basis for the court to determine, on summary judgment, whether the Display Restriction ‘burden[s] substantially more speech than is necessary to further the government’s legitimate interests.’”

Alan Sash, an attorney for the dealers with the law firm McLaughlin & Stern, said he and his clients respect Judge Schofield’s decision and are considering their next steps regarding the First Amendment claim.

New York has backing in the suit from a coalition of environmental-advocacy and animal-rights groups that intervened in the case.

Each of the interveners – the Humane Society of the United States; the Center for Biological Diversity; Natural Resources Defense Council; Wildlife Conservation Society – had some hand in advancing the state’s ivory ban.

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