A recent decision of the United States Court of Appeals for the Fourth Circuit discusses the regulation of trade in cultural property with respect to ancient coins.
By way of background, the Convention on Cultural Property Implementation Act ("CPIA") permits foreign governments, known as State Parties, to request that the United States prohibit the unauthorized importation of culturally significant items. The intent here is to staunch the traffic in illegally looted artifacts. To be eligible for protection, the object must be "archaeological or ethnological material of the State Party." That means that the object must have been first discovered within, and is subject to export control by, the State Party that requested protection for the object. Importation of protected objects is permitted if it is licensed by the home country, if it was exported from the State Party at least 10 years prior to importation to the U.S. and the importer owned it for less than one year, or the article was exported from the home State Party before the international convention took effect.
Ancient Coin Collectors Guild v. U.S. Customs and Border Protection involves the attempted importation of ancient coins from Cyprus and China. Both countries had requested protection for their cultural property. In publishing notice of the restrictions, the United States included coins among the types of objects subject to protection (even though coins were not specifically included in the requests). The coins being imported were of unknown provenance and the location of their initial discovery was also unknown. The likely, but unproven, reason for this is that the coins have been circulating among collectors for years (and probably as currency for many years before that). Customs asked for documentation proving the admissibility of the coins. The Guild produced none and Customs seized them.
On appeal to the Fourth Circuit, the Guild argued that the restrictions are ultra vires, which means that the government exceeded its authority by imposing these restrictions. The Court, however, noted that the CPIA involves a sensitive area of foreign relations in which Congress has delegated authority to the President, who exercises that authority through the State Department. Thus, the Court declined the invitation to take a searching review of the policy decisions behind the imposition of these restrictions. According to the Court, that is not a task for the judiciary.
On another point, the Guild argued that coins were not subject to seizure until the government shows that they were first discovered within and subject to export controls by the home State Party. The Court rejected this argument first on the grounds that it is logical to assume that the coins were actually discovered in Cyprus or China. More directly, it is the importer's obligation to show that the goods are admissible. Customs does not need to prove inadmissibility.
The Guild made a technical argument under the Administrative Procedure Act claiming that the decision to protect these coins was arbitrary and capricious. Moreover, the Guild argued that it was based on prejudgment and ex parte (meaning one-sided) contact. The Court reject this line of argument first because the exercise of foreign affairs by the President is not subject to APA review. But, even if it were, the Court found that the action was not arbitrary and capricious.
Which means, of course, that the Court affirmed the district court and Customs and Border Protection. However, the Guild may get a second chance at this. The Court's decision only finds as a matter of law that the seizure was proper. Should it choose to do so, the Guild may now go through the administrative and judicial process of challenging the forfeiture of the coins based on the facts it can muster. But, that is a fight for another day.