Re­wards for wildlife whistle­blow­ers

Bangkok Post - - OPINION - AARON JOR­DAN Aaron Jor­dan is a lawyer with the Na­tional Whistle­blower Cen­tre in Wash­ing­ton DC.

Author­i­ties are start­ing to crack down on wildlife traf­fick­ing. This Jan­uary, Boon­chai Bach, a no­to­ri­ous wildlife traf­ficker in Thai­land, was ar­rested on charges of smug­gling rhino horns worth over US$1 mil­lion (31 mil­lion baht). And just a few weeks ago Prem­chai Kar­na­suta, a prom­i­nent con­struc­tion ty­coon, was taken into cus­tody for al­legedly hunt­ing wildlife in the Thungyai Nare­suan Wildlife Sanc­tu­ary.

This surge in en­force­ment is a pos­i­tive step. By work­ing to fol­low­ing through on its in­ter­na­tional law obli­ga­tions un­der the Con­ven­tion on In­ter­na­tional Trade in En­dan­gered Species (Cites), Thai­land is demon­strat­ing to the rest of the world its abil­ity to stick to its word and en­force the rule of law. Tourists, at­tracted by the pos­si­bil­ity of rid­ing an ele­phant, spot­ting a tiger, or catch­ing a glimpse of a rare bird, will con­tinue to flock to Thai­land (and spend money) to en­joy the coun­try’s in­cred­i­ble bio­di­ver­sity.

Yet, there is still much work to be done. Thai­land re­mains a key hub for the traf­fick­ing of ele­phants, rhinoceroses, and tigers.

A so­lu­tion for curb­ing wildlife trade once and for all may lie in sev­eral un­der-pub­li­cised Amer­i­can laws. The Lacey Act was passed in the United States in 1900 to pro­hibit trade in cer­tain wildlife or plants that were il­le­gally taken or sold. In the 1980s, the US Congress added a key pro­vi­sion to the law: It in­tro­duced a pro­vi­sion that would al­low any “per­son who fur­nishes in­for­ma­tion which leads to an ar­rest, a crim­i­nal con­vic­tion, civil penalty as­sess­ment, or for­fei­ture of prop­erty for any vi­o­la­tion”, of the Lacey Act’s wildlife traf­fick­ing laws. The Rhinoceros and Tiger Con­ser­va­tion Act of 1994 also in­cor­po­rated th­ese Lacey pro­vi­sions.

Th­ese whistle­blower laws ap­ply not only to Amer­i­cans, but to for­eign­ers as well. Any­one is po­ten­tially el­i­gi­ble in­clud­ing gov­ern­ment of­fi­cials and park rangers, so long as they have in­for­ma­tion per­tain­ing to wildlife trade. Be­cause of ex­trater­ri­to­rial re­stric­tions, the il­le­gal trade for which an in­for­mant pro­vides a tip must have some nexus to the United States. For in­stance, the traf­fick­ers must have a US bank ac­count or some of the il­le­gal goods must end up in the United States.

An even more pow­er­ful law may be the Amer­i­can False Claims Act. The law was passed dur­ing the US Civil War to pre­vent gov­ern­ment con­trac­tors from rip­ping off the gov­ern­ment. To­day, its ap­pli­ca­tion is broader. Re­cently, fed­eral pros­e­cu­tors have be­gun try­ing cases in which com­pa­nies mis­la­bel prod­ucts be­ing im­ported into the US. For in­stance, one re­cent im­porter paid a $1 mil­lion fine be­cause it was un­der­valu­ing the cost of im­ported prod­ucts in or­der to avoid tar­iff du­ties.

The same logic can ap­ply to il­le­gal wildlife prod­ucts be­ing im­ported into the United States. Be­cause the prod­ucts can­not be brought into the United States un­der Amer­i­can and in­ter­na­tional law, they are mis­la­belled on cus­toms forms as some­thing dif­fer­ent. And be­cause they are mis­la­belled, they are sub­ject to the False Claims Act.

The False Claims Act is an es­pe­cially pow­er­ful tool be­cause in­di­vid­u­als, called re­la­tors in this con­text, can bring cases them­selves on be­half of the United States gov­ern­ment. In other words, some­one with knowl­edge of wildlife traf­fick­ing that in­volves a false state­ment or false cer­ti­fi­ca­tion to the US gov­ern­ment can be ob­tain a re­ward. More­over, the plain­tiff who brings such a law­suit is en­ti­tled to 15-30% of the to­tal award won for the US gov­ern­ment. This can be sub­stan­tial: Each sin­gle false claim is pe­nalised be­tween $11,000 and $22,000 dol­lars, and that is be­fore ac­tual dam­ages from the false state­ment are cal­cu­lated.

Po­ten­tial Thai wildlife whistle­blow­ers should re­mem­ber a few things. It is crit­i­cal to gather doc­u­ments and ev­i­dence for a case to stand a real chance in an Amer­i­can court­room.

The sec­ond is un­der­stand­ing how and who to ap­proach with such in­for­ma­tion. Un­der the Lacy Act and the Rhinoceros and Tiger Con­ser­va­tion Act, the whistle­blower must pro­vide in­for­ma­tion to fed­eral author­i­ties like the Fish and Wildlife Ser­vice (FWS). Un­for­tu­nately, the FWS has dis­cre­tion to give re­wards un­teth­ered to value of the find­ings, but in gen­eral the more use­ful the in­for­ma­tion the larger the re­ward will be.

The False Claims Act works dif­fer­ently. The whistle­blower should hire an at­tor­ney who can bring the case to an Amer­i­can fed­eral court, be­cause only the first-to-file is en­ti­tled to an award. If an­other whistle­blower or fed­eral author­i­ties bring a case first, the sec­ond-tofile whistle­blower is en­ti­tled to noth­ing. The ad­van­tage of a False Claims Act case is that whistle­blower re­wards are a min­i­mum of 15% of the to­tal sum col­lected from a case, in­clud­ing the penal­ties for each false claim.

An ex­panded use of whistle­blower re­wards will not be a panacea for wildlife traf­fick­ing in Thai­land. But their ex­panded use could help curb the il­le­gal, and give brave Thais a solid re­ward for pro­vid­ing use­ful in­for­ma­tion.

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