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Monetary Rewards for Wildlife Whistleblowers ENVIRONMENTAL LAW REPORTER histleblowers have always been crucial,” U.S. Sen- ate Judiciary Committee Chairman Charles (Chuck) Grassley said recently, point- “Wing out that “it is simple common sense.”1 Senator Grassley (R-Iowa) at the time was thinking of the False Claims Act (FCA),2 but five years before the Wildlife U.S. Congress enacted the modern whistleblower provisions in that statute, and years before the po- tential impact of reward laws was known to poli- Whistleblowers cymakers, Congress amended the Lacey Act3 and the Endangered Species Act (ESA)4 to include pro- visions providing monetary incentives to persons Despite the enactment of scores of wildlife who disclosed original information reporting wild- life crimes. If implemented effectively, these reward protection laws, illegal activities are laws have an even greater potential to encourage difficult to detect under current enforcement whistleblowers to step forward than do newly en- acted and highly publicized whistleblower laws policies. Both the Lacey Act and the such as those included in the Dodd-Frank Act.5 Endangered Species Act include language The agencies with responsibility for preventing, policing, and prosecuting illegal wildlife crimes providing monetary incentives to persons were vested with broad and almost unlimited dis- who disclose information about wildlife cretion to use the reward laws as a powerful tool in their enforcement arsenal. For example, unlike crimes, but these provisions have not been other whistleblower laws, the Lacey Act and the effectively implemented. Implementation ESA impose no cap on the percentage of collected proceeds for which a whistleblower may be paid. of the wildlife reward laws should Unfortunately, the four executive departments both encourage whistleblowers to come authorized to pay rewards under those statutes— the U.S. Department of Agriculture (USDA), the forward and fully explain how potential U.S. Department of Commerce, the U.S. Depart- whistleblowers can obtain compensation ment of the Interior (DOI), and the U.S. Trea- sury—have not effectively implemented them. and confidentiality protections There are no reported cases under these laws, no 1. Oversight of the False Claims Act, Hearing Before the House Comm. on the Judiciary, Subcomm. on the Constitution and Civil Justice, 113th Cong. (July 30, 2014) (prepared floor state- Stephen Kohn is a partner ment of Sen. Charles Grassley, then-Ranking Member, S. Comm. at Kohn, Kohn & Colapinto, LLP, on the Judiciary), http://www.grassley.senate.gov/news/news- releases/grassley-testimony-benefits-false-claims-act [hereinafter and a founder of the National Sen. Grassley Remarks]. Whistleblower Center. 2. 31 U.S.C. §§3729-3733. The provision of the statute that autho- rizes whistleblowers to file complaints and obtain rewards, known as qui tam, is codified in §3730. 3. 16 U.S.C. §§3371-3378. 4. 16 U.S.C. §§1531-1544, ELR Stat. ESA §§2-18. 5. The Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, contained two whistleblower reward provisions, one covering violations of the Securities Exchange Act (and Foreign Corrupt Practices Act (FCPA)), 15 U.S.C. §78u-6, and the second covering violations of the Commodity Exchange Reprinted from ELR’s News & Analysis, titled “Monetary Rewards Act, 7 U.S.C. §26. The regulations implementing these two re- for Wildlife Whistleblowers: A Game-Changer in Wildlife Trafficking ward provisions are codified at 17 C.F.R. Part 240 and 17 C.F.R. Detection and Deterrence,” 46 ELR 10054 (January 2016). Part 165, respectively. 22 |THE ENVIRONMENTAL FORUM Copyright © 2016, Environmental Law Institute®, Washington, D.C. www.eli.org. Reprinted by permission from The Environmental Forum®, July/August 2016 published regulations, and no reward application A comprehensive report issued by INTERPOL procedures. and the United Nations Environment Programme Whistleblower reward provisions arose “from a (UNEP) estimates that the total losses worldwide realization that the Government needs help—lots due to illegal trafficking, poaching of plants, fish, of help—to adequately” enforce anti-corruption and wildlife, and prohibited logging is between laws.6 Given the success of similar reward laws in US$48-153 billion annually.10 The Congressional other enforcement programs, discussed below, this Research Service warned Congress that the United Article recommends that the responsible agencies States “may be a significant destination for illegal promptly implement the wildlife whistleblower wildlife,” and the “magnitude of the illegal trade laws. Because whistleblowers are currently entitled may be increasing.”11 This was confirmed by the to obtain monetary pay- White House’s National ments if their disclosures Strategy, finding that lead to the successful “the United States is enforcement of over 40 among the world’s major laws designed to protect markets for wildlife endangered plants, fish, and wildlife products and wildlife, including . [and] also serves as the Lacey Act and the a transit point for traf- ESA, these laws should ficked wildlife.12 be widely publicized and, These assessments where appropriate, attor- were borne out by major neys should commence studies on illegal traf- filing claims. ficking in fish, plants, The need to aggres- and animals. A study sively implement the published in Marine whistleblower reward Policy found that “illegal laws is particularly com- and unreported catches pelling in the area of represented 20-32% by wildlife protection. The weight of wild-caught White House’s National seafood imported to the Strategy for Combat- United States.”13 The ing Wildlife Trafficking identified the need to revenue from this illegal trafficking in the United “strengthen enforcement” as one of three top States is valued between $1.3 billion to $2.1 bil- national priorities necessary to stop illegal wildlife trade.7 Killing, trafficking, and selling endangered justice.gov/opa/speech/poaching-and-terrorism-national-securi- species, plants, and fish is highly profitable. Despite ty-challenge-statement-assistant-attorney-general: federal policies making protection of endangered Wildlife trafficking—which includes poaching of pro- wildlife a major priority,8 wildlife crime is a “big tected species and trafficking in their parts—has become one of the most profitable types of transnational orga- business” that pushes “vulnerable wild animals” to nized crime. Illegal trade at this scale has devastating im- 9 “the edge of extinction.” pacts: it threatens security, hinders sustainable economic development, and undermines the rule of law. The illicit trade in wildlife is decimating many species worldwide, and some species—including such majestic animals as 6. 132 Cong. Rec. 28580 (Oct. 3, 1986) (floor remarks by rhinoceroses, elephants, great apes, totoaba, sea turtles, Sen. Charles Grassley, principal sponsor of the 1986 FCA and tigers—face extinction in our lifetimes or our chil- amendments). dren’s lifetimes. 7. White House, National Strategy for Combating Wildlife 10. UNEP, The Environmental Crime Crisis: Threats to Sustainable De- Trafficking 2 (Feb. 2014), available at https://www.white- velopment From Illegal Exploitation and Trade in Wildlife and For- house.gov/sites/default/files/docs/nationalstrategywildlifetraf- est Resources 19 (Christian Nellemann et al. eds., 2014), available ficking.pdf [hereinafter National Strategy]. at http://www.unep.org/unea/docs/RRAcrimecrisis.pdf. 8. Exec. Order No. 13648, 78 Fed. Reg. 40619 (July 5, 2013). 11. Cong. Research Serv., International Illegal Trade in 9. World Wildlife Fund, Illegal Wildlife Trade, worldwildlife.org. Wildlife: Threats and U.S. Policy 3 (2008). See also Poaching and Terrorism: A National Security Challenge, 12. National Strategy, supra note 7, at 6. Statement of Assistant Attorney General John C. Cruden for the 13. Ganapathiraju Pramod et al., Estimates of Illegal and Unreported House Committee on Foreign Affairs, Subcommittee on Terror- Fish in Seafood Imports to the USA, 48 Marine Pol’y 102 (Sept. ism, Nonproliferation, and Trade (Apr. 22, 2015), http://www. 2014). ® Copyright © 2016 Environmental Law Institute , Washington, D.C. www.eli.org. JULY/AUGUST 2016 | 23 Reprinted by permission from The Environmental Forum®, July/August 2016 lion annually. The National Academy of Sciences turn decades of conservation gains.”24 As President found “many lion populations are either now Barack Obama recognized when he signed Execu- gone or expected to disappear within the next few tive Order No. 13648, establishing the Presidential decades.”14 INTERPOL and the United Nations Task Force on Wildlife Trafficking, the interna- (U.N.) determined that “15,000 elephants were tional crisis in illegal wildlife trafficking “contin- illegally killed” at just 42 monitored sites in 2012 ues to escalate.”25 alone.15 According to the Congressional Research What role, if any, should whistleblowers play Service, “as much as 23% to 30% of hardwood in the effort to stop illegal wildlife trafficking and lumber and plywood traded globally” “could be hold accountable those who profit from this trade? from illegal logging activities.”16 The adverse eco- nomic impact caused by the “pervasive problem” Modern Whistleblower Laws of illegal logging in the United States is tens of bil- lions of dollars.17 Over the past 30 years, laws that encourage whis- One of the main reasons for the escalation in tleblowers to report serious wrongdoing by offer- illegal wildlife trafficking is simple: It
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