ACCG loses test case involving coin imports
By Steve Roach - Coin World Staff
A United States District Court in Maryland has held that import restrictions on ancient Cypriot and Chinese coins are not subject to judicial review, ruling in favor of the government on a test case initiated in 2009 by the Ancient Coin Collectors Guild.
District Judge Catherine C. Blake’s comprehensive 52-page opinion, filed on Aug. 8, dismissed the ACCG’s case and granted the government’s request for summary judgment. The ACCG is a nonprofit organization “committed to promoting the free and independent collecting of coins from antiquity.”
The United States entered into a Memorandum of Understanding with Cyprus on July 16, 2007, that imposed import restrictions on archaeological material including coins of Cypriot types. The Cyprus action reversed a long-standing tradition that exempted coins from import restrictions. The U.S. State Department restricted certain designated Chinese coins pursuant to an MOU effective Jan. 16, 2009. Thus far, U.S. Customs has not shown a strong interest in enforcing the import restrictions as they relate to coins, which on Jan. 19, was expanded to include certain coins of Italian types.
ACCG initiates a test case
In April 2009, the ACCG purchased 23 low-value ancient Chinese and Cypriot coins from the London coin dealer Spink and imported the coins via a London to Baltimore flight on April 15, 2009. U.S. Customs detained the coins for alleged customs violations upon their arrival in Baltimore and issued a Notice of Detention to “allow for determination of import eligibility and/or requirements.” On May 13, 2009, Peter Tompa, counsel for the ACCG, wrote to Customs formally objecting to the detention of the coins.
Two days later, Customs amended the detention notice to request additional evidence regarding the coins.
On May 27, 2009, the ACCG disclaimed any ability to present such evidence writing that because, “the coins — like the vast majority in circulation in the collector market — have no known ownership history, ACCG cannot say if they were first found in the ground of either China or Cyprus.”
The 23 coins were seized on July 20, 2009, and the ACCG was informed of the seizure the next month. Tompa wrote Customs to formally claim the coins on Sept. 8, 2009. The ACCG brought the lawsuit against Customs, the Commissioner of Customs, the State Department and the assistant secretary of state on Feb. 11, 2010, and filed an amended complaint on July 15, 2010.
In the lawsuit, the ACCG alleged that the actions of both the State Department and Customs in connection with the import of Cypriot and Chinese coin types were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Court rules against ACCG
The court’s ruling stated that when the government seeks the forfeiture of cultural property subject to import restrictions under CPIA — the Convention on Cultural Property Implementation Act — the initial burden is on the government to show that the material has been listed by the secretary of the Treasury on a designated list. Once this is shown, the burden shifts to the ACCG to show that the coins were legally importable. Since there is no dispute that the ACCG’s coins appeared on the list, the ruling focused on whether Customs and the other defendants had authority under the CPIA to restrict the importation of those coins.
Analyzing this point, the court found that under the CPIA, Congress assigned various responsibilities to the president and that the actions by the State Department and assistant secretary, while not directly undertaken by the president, derived from the president’s authority under CPIA.
In a novel argument, the ACCG contented that the import restrictions were a violation of the First Amendment, which protects freedom of speech, because the inscriptions and designs on ancient coins is “information or speech” as coins communicate “the ethos of a people, the means by which the ancient society expressed that ethos, and the individual expression of the coin maker.”
Judge Blake wrote that the imposition of the import restrictions were within the constitutional power of the government, and that combating looting and the illegal trade in looted ancient objects that threatens the cultural patrimony of other countries is a compelling government interest.
The ACCG is currently reviewing its legal options, according to an official for the organization.
The legal situation is complex, because the judge did not rule on the substance of the complaint but essentially dismissed the case on a technicality. The following are sound reasons to think that an appeal might prevail:
1) the weakness of her ruling on the extremely important issue of “first discovery.” The State Department has construed this as PROSPECTIVE first discovery, issuing in its MOUs an interpretation that certain coin types will be presumed to have first been discovered in the territory of the requesting nation. That interpretation is not justifiable according to the 1983 CPIA: the place of modern discovery is the country of origin for purposes of the Convention on Cultural Property Implementation Act.
2) the fact that she allowed “ultra vires review,” but then ignored the fact that the ACCG raised the issues to which this related, i.e. “concerted international response,” and the need to consider less onerous remedies first (like requiring regulation of metal detectors).
In other words, there are significant grounds to contend that the State Department is not administering the 1983 CPIA as required by US law. The judge did not address the substance of these issues in her decision, and the ACCG has the right to have these issues judged in a court of law.