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The State of California and the federal government have a storied history of battling over the authority to regulate California’s citizens and commerce. The state’s ongoing dispute with the U.S. Fish and Wildlife Service (USFWS or Service) over the sale of alligator products in California is a recent microcosm of that ongoing battle. This year, the California Legislature sought to impose controversial restrictions on the importation and sale of alligator and crocodile products through Section 653o of the state Penal Code. Since 1970, the Legislature has attempted to ban the import and sale in California of products made from exotic animals under Section 653o, including products made from alligators, crocodiles, polar bears, leopards, ocelots, tigers, kangaroos, and others. In 1979, a court in the Eastern District of California enjoined enforcement of Section 653o with respect to American alligators, finding the alligator ban unconstitutional and unenforceable, and preempted by the federal Endangered Species Act (ESA). See Fouke Co. v. Brown, 463 F. Supp. 1142 (E.D. Cal. 1979). As discussed further below, the 1979 injunction remains in effect.
The California Penal Code included the ban on the sale of alligator and crocodile parts until 2006, when the Legislature lifted the ban. However, the 2006 legislation contained a sunset clause which would reinstate the prohibition on trade of alligator and crocodile parts in 2015. The Legislature exempted alligator and crocodile products from the restrictions of Section 653o through a series of deferrals but allowed the most recent exemption to expire on January 1, 2020. As a result, Section 653o(b) currently provides that, effective January 1, 2020, it is “unlawful to import into this state for commercial purposes, to possess with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of a crocodile or alligator.”
Legal Challenges to Penal Code Section 653o
In December 2019, just weeks before the alligator ban was to take effect, two sets of plaintiffs filed challenges in federal court to the ban in two related cases: Louisiana Wildlife and Fisheries Commission et al v. Becerra (Delacroix) (No. 2:19-cv-02488-KJM-CKD) and April in Paris, et al. v. Becerra (April in Paris) (No. 2:19-cv-02471-KJM-CKD). In both cases, plaintiffs, a collection of Louisiana landowners, a Louisiana state agency, and wholesalers and retailers of alligator products, claim that the ban is expressly preempted by the ESA, and violates the dormant Commerce Clause of the U.S. Constitution. Plaintiffs requested a temporary restraining order (TRO) and preliminary injunction against the ban, claiming that the ban would cause irreparable economic harm to plaintiffs’ businesses, and would undermine state and private conservation efforts protecting American alligators. In December 2019, pursuant to a stipulation by the parties, a court in the Eastern District of California approved TROs against California’s enforcement of the ban; those TROs remain in effect while the court considers Plaintiffs’ requests for preliminary injunction. The District Court held a hearing on the request for preliminary injunction on June 5, but no ruling has been issued as of the date of this publication.
The American alligator, a 150 million-year-old-species, has been touted as a rare endangered species success story. By the 1950’s and 60’s, the American alligator had been hunted nearly to the brink of extinction to make exotic leather, and in 1976, the USFWS listed the American alligator as an endangered species. Just over 10 years later, the Service declared the alligator fully recovered, and removed the animal from the endangered species list. Since then, a profitable market has grown around the sustainable farming of alligators. In many cases, private landowners have implemented conservation efforts on their lands to facilitate the sustainable harvesting of alligator eggs. USFWS currently lists the American alligator as “threatened due to similarity of appearance” but generally permits the transportation, import, export and sale of American alligator and alligator products in interstate and foreign commerce.
The Plaintiffs in the Delacroix and April in Paris cases advance two principal claims: federal preemption and a violation of the dormant Commerce Clause. First, Plaintiffs claim that the ban is expressly preempted by the federal ESA because it prohibits activity—trade in alligator products—that the ESA and USFWS’ implementing regulations explicitly allow. The Supremacy Clause of the U.S. Constitution invalidates state laws that conflict with federal law. Generally, federal preemption of state law occurs in two ways: express and implied. A federal law expressly preempts a state law when a federal statute or regulation contains explicit preemptive language. Alternatively, a federal law may impliedly preempt state law when its structure and purpose implicitly reflect Congress’s preemptive intent, such as where state law impedes the accomplishment of Congress’ objectives (obstacle preemption), where it is impossible to simultaneously comply with state and federal law (conflict preemption), or where the state attempts to regulate in an area of pervasive federal regulation (field preemption).
Section 6(f) of the federal ESA (16 U.S.C. §1535(f)) contains an express preemption provision, which states that any state law or regulation is preempted if it “permit[s] what is prohibited” or “prohibit[s] what is authorized” under the ESA. Plaintiffs claim that the alligator ban prohibits commerce expressly authorized by federal law, including the federal ESA, the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), and USFWS implementing regulations (the USFWS has a specific regulation authorizing certain import, export, foreign commerce activities and interstate commerce activities with respect to the American alligator; see 50 CFR 17.42(a)). Under the federal regulations implementing CITES, the USFWS implements a universal tagging system for crocodilian skins in international trade, and imposes controls on the import, export or re-export of crocodilian skins, parts, or products.
On December 20, 2019, shortly after the lawsuits in the Delacroix and April in Paris cases were filed, USFWS issued a directive declaring the California ban preempted by the ESA to the extent that the ban “effectively prohibits the import, export, foreign commerce activities, or interstate commerce activities with these species.” The Service also stated that it would not treat violation of Section 653o as a “predicate” state law violation for purposes of violations of the federal Lacey Act, which prohibits the taking, possession or sale of reptiles, including the American alligator and any part, egg or offspring thereof, in violation of state law. In its brief defending the ban, the State of California countered that Section 653o(b) only bans the sale of alligator and crocodile products within California, and therefore does not interfere with the ESA, which regulates only interstate and foreign sale and trade in animal products. Furthermore, California argues that the 1979 injunction against the ban applies only to interstate or foreign sales, not sales within California.
Plaintiffs’ second claim in both actions is that the ban violates the “dormant” Commerce Clause—the implicit prohibition on state regulation of interstate commerce—because it discriminates against interstate commerce in alligator products, and imposes an undue burden on interstate commerce in alligator products by effectively blocking the flow of such products into the state. Plaintiffs also argue that the ban constitutes an impermissible “extraterritorial” regulation because it attempts to directly control economic activity outside the state of California, i.e., the harvesting of alligators in Louisiana and shipping products into California for sale.
Implications for Preemption and Dormant Commerce Clause Claims
Notwithstanding issuance of the TRO, both the Louisiana and April in Paris actions likely face an uphill battle. Courts have historically recognized that states have broad authority under their police powers to regulate wildlife and animal products within their borders. A few courts have considered preemption challenges to Section 653o’s prohibition on trade in other animal products. In Man Hing Ivory & Imports Inc. v. Deukmejian, 702 F.2d 760 (9th Cir. 1983), the Ninth Circuit held that Section 653o’s prohibition on trade in elephant parts was preempted by the ESA, to the extent that the ban prohibited federally-authorized import trade in elephant products. Similarly, in H.J. Justin & Sons v. Deukmejian, 702 F.2d 758 (9th Cir. 1983), the Ninth Circuit found that Section 653o was preempted as applied to a Texas boot company seeking to sell elephant products in California. However, both cases notably applied to laws regulating interstate and foreign trade in elephant products, not purely intrastate transactions. The 1979 injunction in the Fouke case only enjoined Section 650o’s ban on alligator products as applied to interstate and foreign commerce regulated by the ESA. The case was silent as to purely intrastate sales. More recently, a district court in New York found that a state law banning sale of ivory products within New York was not preempted by the ESA because it regulated purely intrastate commerce in ivory. See Art and Antique Dealers League of America, Inc. v. Basil Seggos, 394 F.Supp.3d 447 (S.D.N.Y. 2019). These cases suggest that courts are receptive to arguments that a state regulation that regulates only activity within the state is not preempted by the ESA.
Furthermore, several recent California laws regulating the sale of animal products within the state have been upheld against Commerce Clause challenges. For example, in 2013, the Ninth Circuit upheld a California law banning the sale of foie gras—a food made from force-feeding ducks to enlarge their livers—against a Commerce Clause challenge, finding that the ban permissibly regulated economic activity within California, and therefore did not constitute impermissible “extraterritorial regulation,” even though it might incidentally affect out-of-state commerce. See Association des Eleveurs deCanards et d’Oies du Quebec v. Harris, 729 F.3d 937 (9th Cir. 2013). (The ban was later overturned in 2015 on federal preemption grounds, but was reinstated—also on preemption grounds—by the Ninth Circuit in September 2017. On July 14, 2020, a California district court upheld the ban, and the case is now being appealed once again to the Ninth Circuit.) Most recently, in October 2019, the North American Meat Institute, which represents meat packers and processors, challenged Proposition 12, a law requiring all eggs, pork or veal sold in the state to come from animals raised in cages meeting certain size specifications. The Institute alleged violations of the Commerce Clause, and requested a preliminary injunction against enforcement of the law. See North American Meat Institute v. Becerra, No. 2:19-cv-08569 (C.D. Cal 2019). The court denied plaintiff’s motion for preliminary injunction, and the case is pending in the Central District of California.
One distinction that may work in Plaintiffs’ favor here, however, is that Section 653o specifically bans not only the sale of alligator parts in the state, but also the import of such products into the state. This specific prohibition against importation does not appear in the New York state case, Art & Antique Dealers League of America, Inc. v. Seggos, upon which California relies to argue that states may enact a statute banning intrastate commerce in alligator products. Plaintiffs may attempt to argue that restricting the import of goods into California necessarily regulates interstate commerce in addition to intrastate commerce. However, on at least one occasion, the Ninth Circuit has explicitly rejected similar arguments that state regulation banning the importation of certain wildlife species into the state violated the Commerce Clause. See Pacific Northwest Venison Producers v. Smitch, 20 F.3d 1008 (9th Cir. 1994) (finding Washington state regulations prohibiting importation of certain exotic wildlife into the state did not violate Commerce Clause).
Overall, prior cases suggest that courts have viewed preemption and Commerce Clause challenges to state regulation of wildlife and animal products with skepticism. However, Delacroix and April in Paris offer a unique twist absent from these earlier cases: they ask the court to consider the adverse effects of California’s alligator products ban on public and private efforts in the State of Louisiana (and elsewhere) to conserve and protect alligator habitat. Banning the sale of alligator products in California, Plaintiffs argue, will have far-reaching consequences beyond the immediate economic impact on farmers, producers and retailers: it may remove private landowners’ economic incentive to dedicate their lands to alligator conservation efforts. Regardless of the outcome of these cases, they offer yet another vivid chapter in the unfolding struggle for regulatory control between California and the federal government over the sale and import of exotic animal products.