HJ Justin & Sons, Inc. v. Brown, CIV. S-80-941 RAR.
| Decision Date | 21 August 1981 |
| Docket Number | No. CIV. S-80-941 RAR.,CIV. S-80-941 RAR. |
| Citation | 519 F. Supp. 1383 |
| Court | U.S. District Court — Eastern District of California |
| Parties | H. J. JUSTIN & SONS, INC., dba Justin Boot Company, a Texas corporation, Plaintiff, v. Edmund G. BROWN, Jr., Governor of the State of California, and George Deukmejian, Attorney General of the State of California, Defendants. |
Donald M. Pach, Inc., Sacramento, Cal., John B. McAdams, Kelly, Appleman, Hart & Hallman, Fort Worth, Tex., for plaintiff.
Joel S. Moskowitz, Deputy Atty. Gen., Sacramento, Cal., for defendants.
The above-entitled matter came on regularly for hearing by way of cross-motions for summary judgment before the Honorable Raul A. Ramirez on June 8, 1981. Donald M. Pach, Esq. appeared as counsel for plaintiff and Joel Moskowitz, Deputy Attorney General, appeared as counsel for the defendants. Having duly examined the memoranda of points and authorities submitted in support of and in opposition to the respective motions, the exhibits attached thereto, and the respective arguments of counsel, the Court now renders the following memorandum decision:
There are no material issues of fact in dispute. The plaintiff, H. J. JUSTIN & SONS, INC. (hereinafter Justin Boot), fabricates boots from the hides of animals, including the hides of the African elephant, the Indonesian python, and the Wallaby kangaroo. Plaintiff is desirous of selling these boots in California but is deterred from said action by California Penal Code §§ 653o and 653r, which, inter alia, forbid the sale within California of products made from the dead bodies, or any part thereof, of the elephant, python, or kangaroo.1
Plaintiff initially commenced the present action for declaratory and injunctive relief, and now moves for summary judgment, on the grounds that the challenged provisions of the California Penal Code are unconstitutional. In essence, plaintiff contends that §§ 653o and 653r of the California Penal Code have been preempted by the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 27 U.S.T. 1087, T.I.A.S. 8249, and by the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1543. Plaintiff also contends that these provisions of the California Penal Code impermissibly burden interstate commerce in violation of the Commerce Clause, U.S. Const., Art. I, § 8.
The Court has jurisdiction over the instant action by virtue of 28 U.S.C. § 1331 and 16 U.S.C. § 1540(c). In addition thereto, venue is proper inasmuch as Sacramento is the seat of government for the State of California, Cal. Gov't Code § 450 and because the named defendants are being sued in their official capacities as constitutional officers of the State of California, Cal. Gov't Code § 1060.
The basic principles of the preemption doctrine are too well-settled to require citation: while the states are not prohibited from legislating and regulating in those areas where the states and Congress have concurrent jurisdiction, by virtue of the Supremacy Clause of the United States Constitution, Article VI, Clause 2, the authority of the states to legislate in an area of concurrent jurisdiction is always at the sufferance of Congress. In those areas where Congress has indeed exercised its jurisdiction, it may allow for the continued operation of state legislation and regulation, or it may abrogate state law entirely. Therefore, whether a particular federal enactment preempts state law is always purely a question of Congressional intent.
Occasionally Congress directly addresses the issue of preemption, expressly providing in the text of the legislation for either the abrogation or the continued operation of state law. Frequently, however, Congress remains silent on the issue and it is in those specific instances where it becomes the responsibility of the courts to discover true Congressional intent. In this regard, the courts have recognized the value of certain indicia of Congressional intent:
Both the plaintiff and the defendants agree that in passing the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1543, Congress expressly addressed the issue of preemption. They disagree, however, on the meaning of what Congress actually said. The relevant portions of the Act, 16 U.S.C. § 1535(f), reads as follows:
Any State law or regulation which applies with respect to the importation or exportation of, or interstate or foreign commerce in, endangered species or threatened species is void to the extent that it may effectively (1) permit what is prohibited by this chapter or by any regulation which implements this chapter or (2) prohibit what is authorized pursuant to an exemption or permit provided for in this chapter or in any regulation which implements this chapter. This chapter shall not otherwise be construed to void any State law or regulation which is intended to conserve migratory, resident, or introduced fish or wildlife, or to permit or prohibit sale of such fish or wildlife. Any State law respecting the taking of an endangered species or threatened species may be more restrictive than the exemptions or permits provided for in this chapter or in any regulation which implements this chapter but not less restrictive than the prohibitions so defined.
The plaintiff argues that the residuum of legislative power left to the states in § 1535(f) is limited to the regulation of indigenous species. In support of this argument, plaintiff focuses on the reference to "migratory, resident, or introduced fish or wildlife" in the penultimate sentence and the reference to taking2 in the last sentence. Additionally, plaintiff argues that subsection (f) should be construed in light of the other subsections of § 1535, which unambiguously apply to indigenous species. In particular, the plaintiff points the Court's attention to subsection (c).
Subsection (c) of § 1535 is an elaborate and complex provision authorizing the Secretary of the Interior to enter into "cooperative agreements" with the sundry states. By entering into a cooperative agreement with a state, the Secretary delegates the responsibility with which he is otherwise charged to that particular state. Subsection (c) contemplates that the state will assume the responsibility for the conservation of indigenous species, once the Secretary is satisfied that the state is ready, willing, and able to do so.
Plaintiff contends that subsection (c) evinces a high degree of Congressional concern for responsible state action vis-a-vis indigenous species, and that subsection (f) must be read in terms of that high degree of Congressional concern. Thus plaintiff contends that subsection (f) must be read in the narrowest possible manner.
In opposition to the argument of plaintiff, defendants argue that the last two sentences of subsection (f) are irrelevant to the instant litigation. While admitting that the questioned sentences do in fact express Congressional intent on the subject of preemption of state law regulating indigenous species, defendants contend that the initial sentence of subsection (f) expresses Congressional intent on the subject of preemption of state law regulating other-than-indigenous species. Since the first sentence of subsection (f) refers specifically to state laws or regulations "... with respect to the importation ... of ... endangered species or threatened species ...," defendants persuasively argue that this language can hardly apply to indigenous animals. Thus the defendants would have the Court interpret subsection (f) as though it read as follows:
While subsection (f) does not perhaps reach that level of clarity of which the English language is capable, the Court is of the opinion that the interpretation urged by the defendants is the more reasonable. The explicit reference in the first sentence to "importation or exportation of, or interstate or foreign commerce in, endangered species or threatened species" can only be understood to refer to state laws relating to non-indigenous species. In short, the mere reference in the last two sentences to indigenous species does not support the inference that Congress was likewise referring to indigenous species in the first sentence. The interpretation urged by the defendants makes the entire section intelligible, and gives effect to all of the subsection.
As to plaintiff's contention that subsection (c) evinces a high degree of Congressional concern, or even distrust, of the states' willingness or ability to protect endangered or threatened species, the Court is of the opinion that any and all such concern has no bearing on the proper construction of subsection (f). The mere fact that Cong...
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