National Audubon Society, Inc. v. Davis
| Decision Date | 24 September 2002 |
| Docket Number | No. 01-15216.,No. 01-15321.,No. 01-15159.,01-15159.,01-15216.,01-15321. |
| Citation | 307 F.3d 835 |
| Parties | NATIONAL AUDUBON SOCIETY, INC.; Golden Gate Audubon Society, Inc.; Marin Audubon Society, Inc.; Muir Beach Enviro, Inc.; California Waterfowl Association, Inc., Plaintiffs-Appellees, and National Trappers Association, Inc.; California Trappers Association, Inc.; Tim Wion; Christopher S. Brennan; Loyd E. Horn, Intervenors, v. Gray DAVIS, Governor of California; Douglas Wheeler, Resources Secretary, State of California; Jacqueline E. Schafer, Director, CDFG; California Department of Fish & Game; California Fish & Game Commission, Defendants, and Ann M. Veneman,<SMALL><SUP>*</SUP></SMALL> U.S. Department of Agriculture; Gary Simmons, California State Director, Wildlife Services, U.S. Department of Agriculture; Jamie Clark Rappaport, Director, U.S. Fish and Wildlife Service; Anne Badgley, Regional Director, U.S. Fish and Wildlife Service, Appellees, Am Soc Prev Cruelty; Protect Pets and Wildlife/Vote Yes on Proposition 4; Animal Protection Institute; The Ark Trust, Inc.; Doris Day Animal League; The Fund for Animals; The Humane Society of the UNITED STATES; International Fund for Animal Welfare, Defendants-Intervenors-Appellants. National Audubon Society, Inc.; Golden Gate Audubon Society, Inc.; Marin Audubon Society, Inc.; Muir Beach Enviro, Inc.; California Waterfowl Association, Inc., Plaintiffs, and National Trappers Association, Inc.; California Trappers Association, Inc.; Tim Wion; Christopher S. Brennan; Loyd E. Horn, Intervenors-Appellants, v. Gray Davis, Governor of California; Douglas Wheeler, Resources Secretary, State of California; Jacqueline E. Schafer, Director, CDFG; California Department of Fish & Game; California Fish & Game Commission, Defendants-Appellees, and Ann M. Veneman, U.S. Department of Agriculture; Gary Simmons, California State Director, Wildlife Services, U.S. Department of Agriculture; Gale A. Norton, Secretary, U.S. Department of the Interior; Jamie Clark Rappaport, Director, U.S. Fish and Wildlife Service; Anne Badgley, Regional Director, U.S. Fish and Wildlife Service; Robert Stanton, Director, National Park Service, Appellees, Am Soc Prev Cruelty; Protect Pets and Wildlife/Vote Yes on Proposition 4; Animal Protection Institute; The Ark Trust, Inc.; Doris Day Animal League; The Fund for Animals; The Humane Society of the United States; International Fund for Animal Welfare, Defendants-Intervenors-Appellees. National Audubon Society, Inc.; Golden Gate Audubon Society, Inc.; Marin Audubon Society, Inc.; Muir Beach Enviro, Inc.; California Waterfowl Association, Inc., Plaintiffs-Appellees, v. Gray Davis, Governor of California; Mary D. Nichols, Resources Secretary, State of California; Robert C. Hight, Director of the California Department of Fish and Game; California Department of Fish and Game; California Fish & Game Commission, Defendants-Appellants, Ann M. Veneman, Secretary, U.S. Department of Agriculture; Gary Simmons, California State Director, Wildlife Services, U.S. Department of Agriculture; Gale A. Norton,<SMALL><SUP>**</SUP></SMALL> Secretary, U.S. Department of the Interior; Jamie Clark Rappaport, Director, U.S. Fish and Wildlife Service; Robert Stanton, Director, National Park Service, Appellees, American Society for the Prevention of Cruelty to Animals; Animal Protection Institute; The Ark Trust, Inc.; Doris Day Animal League; The Fund for Animals; Humane Society of the United States; Protect Pets and Wildlife/Vote Yes on Proposition 4; The International Fund for Animal Welfare, Defendants-Intervenors-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Clifford T. Lee, California Attorney General, San Francisco, CA, for defendants-appellees-appellants Gray Davis, et al.
Richard D. Gann & George Hunlock, Marvin Morrow & Hunlock, San Diego, CA; John L. Staley, Poway, CA, for intervenors-appellants National Trappers Association, et al.
Eric R. Glitzenstein & Jonathan R. Lovvorn, Meyer & Glitzenstein, Washington, DC; Francis M. Goldsberry II, Goldsberry, Freeman & Swanson, Sacramento, CA, for defendants-intervenors-appellants-appellees American Society for the Prevention of Cruelty to Animals, et al.
Appeal from the United States District Court for the Northern District of California; Charles A. Legge, District Judge, Presiding. CV-98-04610-CAL.
Before GOODWIN, THOMAS and W. FLETCHER, Circuit Judges.
This case pits bird-lovers, seeking to protect endangered and threatened species, against fox-lovers, seeking to protect predators from inhumane traps. The action is a challenge to Proposition 4, adopted by California voters in November 1998 to protect wildlife and domestic pets by restricting use of certain kinds of traps. Five different groups of parties are involved in this litigation. The National Audubon Society and other associations with similar interests ("Audubon") brought suit against various California state officials and agencies (the ). Audubon's complaint also names several federal officials as necessary parties (the "federal parties").1 The sponsors and other supporters of Proposition 4 intervened (the "sponsors") to defend Proposition 4.2 Finally, the National Trappers Association, the California Trappers Association, and several individual trappers (the "trappers") intervened and filed a separate complaint challenging Proposition 4.
The state parties and sponsors appeal the district court's summary judgment granting declaratory relief to the Audubon plaintiffs on the ground that relevant portions of Proposition 4 are preempted by the federal Endangered Species Act ("ESA"), Migratory Bird Treaty Act ("MBTA"), and National Wildlife Refuge System Improvement Act ("NWRSIA"). The trappers appeal the district court's dismissal of their claims that Proposition 4 is unconstitutional, and that it is preempted by the ESA and the Animal Damage Control Act ("ADCA"), for lack of standing. We affirm in part, reverse in part, and remand for further proceedings.
California voters passed Proposition 4 on November 3, 1998, enacting California Fish & Game Code § 3003.13 and § 3003.2, which, broadly speaking, ban the use of certain traps and poisons to capture or kill wildlife in the state. Proposition 4 also authorizes criminal prosecution for violation of these subsections, punishable by fines and/or imprisonment. Cal. Fish & Game Code § 12005.5.
On November 6, 1998, two days after the passage of Proposition 4, the California Department of Fish and Game ("DFG") issued a press release describing Proposition 4. It announced that the new law "makes it generally illegal to trap fur-bearing and non-game animals with commonly used traps and to buy, sell, or exchange the fur of mammals that have been captured with these traps." The press release further stated that, "DFG and other governmental agencies will now have to use traps other than leg-hold traps to control predators, including those that prey on threatened and endangered species in California." It instructed individuals affected by Proposition 4 to follow its provisions where they conflict with existing trapping regulations.
As a result of Proposition 4 and DFG's press release, many individual private trappers, including individual trapper-intervenors and other members of the trapper organizations, stopped using leghold traps. Prior to the passage of Proposition 4, these trappers engaged in trapping for recreation, for interstate commerce in fur, and for protection of property and endangered animals. Their activities included trapping conducted under contracts with state, local, and federal governments, in order to protect everything from levees, to livestock, and to the California least tern. Since issuing the press release more than two years ago, the DFG has made no further public announcements regarding enforcement of Proposition 4. One individual private trapper has been arrested and prosecuted for violation of Proposition 4.4
In the past, various federal agencies, including the U.S. Department of the Interior, Fish and Wildlife Service ("FWS") and the U.S. Department of Agriculture, Animal and Plant Health Inspection Service ("USDA/APHIS"), have used leghold traps in California. Prior to the passage of Proposition 4, federal agencies used leghold traps to protect livestock and other property pursuant to the ADCA, 7 U.S.C. §§ 426-426c. Leghold traps were also used to protect threatened or endangered species — including California clapper rails, western snowy plovers, least terns, and salt marsh harvest mice—from predators, pursuant to the ESA, 16 U.S.C. §§ 1531-44. They were also used to protect a variety of bird species — including herons, egrets, terns, gulls, and other nesting species — pursuant to the MBTA, 16 U.S.C. §§ 703-712. Within the National Wildlife Refuge System, trapping also took place under the authority of the NWRSIA, 16 U.S.C. § 668dd. Specific federal conservation activities included leghold trapping to capture non-native red foxes in the San Francisco Bay National Wildlife Refuge ("San Francisco Bay Refuge"), and to capture muskrats in the Klamath Basin National Wildlife Refuge Complex. In both places, federal authorities believe that leghold traps are uniquely effective.
The state parties assert that the United States has not identified any refuge where federal trapping was conducted solely to protect MBTA species, but they concede...
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