702 F.2d 758 (9th Cir. 1983), 81-4492, H.J. Justin & Sons, Inc. v. Deukmejian

Docket Nº:81-4492.
Citation:702 F.2d 758
Party Name:H.J. JUSTIN & SONS, INC., dba Justin Boot Company, a Texas Corporation, Plaintiff-Appellant, v. George DEUKMEJIAN, [*] Governor of the State of California, et al., Defendants-Appellees.
Case Date:March 11, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 758

702 F.2d 758 (9th Cir. 1983)

H.J. JUSTIN & SONS, INC., dba Justin Boot Company, a Texas

Corporation, Plaintiff-Appellant,

v.

George DEUKMEJIAN, [*] Governor of the State of

California, et al., Defendants-Appellees.

No. 81-4492.

United States Court of Appeals, Ninth Circuit

March 11, 1983

Argued and Submitted Aug. 11, 1982.

Page 759

Donald M. Pach, Sacramento, Cal., for plaintiff-appellant.

Joel S. Moskowitz, Deputy Atty. Gen., Sacramento, Cal., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before SCHROEDER, FLETCHER, and NORRIS, Circuit Judges.

PER CURIAM.

In this appeal appellant, a manufacturer of boots, asks us to reverse the district court's judgment that Cal.Penal Code Sec. 653o (West Supp.1981) is not preempted by current federal statutes or regulations. Appellant seeks this ruling on appeal because it wishes to engage in trade within the State of California in boots made from the hides of African elephants, Indonesian pythons, and the Wallaby kangaroo. Cal.Penal Code Sec. 653o purports to prohibit such trade. 1 Holding that federal laws, with respect to trade in all three species at issue, did not preempt state law the district court ruled that section 653o could be applied to appellant. See H.J. Justin & Sons v. Brown, 519 F.Supp. 1383 (E.D.Cal.1981).

For the reasons set forth in Man Hing Ivory & Imports, Inc. v. Deukmejian, 702 F.2d 760 (9th Cir., 1983), we are compelled to reverse, in part, the district court's ruling in this case. The district court here ruled in part that section 653o would prohibit trade within California in elephant products even by a federal permittee. That part of the district court's decision cannot stand since we held in Man Hing that section 653o could not be applied to the holder of a federal permit for import and export trade in African elephant products. See id. at 762; 50 C.F.R. Sec. 17.40(e) (1981).

We sustain the balance of the district court's holding that the section 653o prohibition on trade in pythons and kangaroos is not preempted by the terms of the Endangered Species Act or implementing regulations. 2 Since the Secretary has not listed either the Indonesian python or the Wallaby kangaroo as "endangered" or "threatened" species, section 6(f) of the Act has no application to state regulations restricting or...

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