Man Hing Ivory and Imports, Inc. v. Deukmejian

• Decision Date: 11 March 1983
• Docket Number: No. 82-4303,82-4303
• Citation: 702 F.2d 760
• Parties: , 4 ITRD 1716, 13 Envtl. L. Rep. 20,477 MAN HING IVORY AND IMPORTS, INC., a California corporation, Plaintiff-Appellee, v. George DEUKMEJIAN, * Governor of the State of California, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 760

702 F.2d 760

20 ERC 1988, 4 ITRD 1716, 13 Envtl.

L. Rep. 20,477

MAN HING IVORY AND IMPORTS, INC., a California corporation Plaintiff-Appellee, v. George DEUKMEJIAN, ^* Governor of the State of California, et al., Defendants-Appellants.

No. 82-4303.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 11, 1982.

Decided March 11, 1983.

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

Stanley W. Smith, Niven & Smith, San Francisco, Cal., for plaintiff-appellee.

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

Before SCHROEDER, FLETCHER, and NORRIS, Circuit Judges.

FLETCHER, Circuit Judge:

This case calls for a determination of the preemptive scope of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3, 1973, 27 U.S.T. 1087, T.I.A.S. No. 8249 (Convention), the Endangered Species Act of 1973, 16 U.S.C. Secs. 1531-1543, and federal regulations enacted pursuant to the Endangered Species Act. Appellee Man Hing Ivory and Imports, Inc., is a wholesale importer of African elephant ivory products. In 1977, Man Hing filed suit in district court seeking a declaration that Cal.Penal Code Sec. 653o (West Supp.1981), which prohibits trade in elephant parts within the State of California, is preempted by the Convention and the Endangered Species Act.

After two prior appeals to this court, ¹ the district court, in May, 1982, granted appellee's motion for summary judgment on the ground that section 6(f) of the Endangered Species Act, 16 U.S.C. Sec. 1535(f), and regulations promulgated pursuant to the Act, see 50 C.F.R. Sec. 17.40(e) (1981) (allowing trade in African elephant products under special federal permits), preempted California's statutory prohibition on trade in elephant products. The defendants filed a timely appeal from the grant of summary judgment. We note jurisdiction under 28 U.S.C. Sec. 1291 (1976) and affirm.

ANALYSIS

The facts in this case are not in dispute. Appellee wishes to conduct wholesale trade in African elephant ivory within the State of California. In 1970, the California legislature enacted Cal.Penal Code Sec. 653o which currently provides that:

(a) 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 any alligator, crocodile, polar bear, leopard, ocelot, tiger, cheetah, jaguar, sable antelope, wolf (Canis lupus), zebra, whale, cobra, python, sea turtle, colobus monkey, kangaroo, vicuna, sea otter, free-roaming feral horse, dolphin or porpoise (Delphinidae), Spanish lynx, or elephant.

Any person who violates any provision of this section is guilty of a misdemeanor and shall be subject to a fine of not less than one thousand dollars ($1,000) and not to exceed five thousand ($5,000) or imprisonment in the county jail for not to exceed six months, or both such fine and imprisonment, for each violation.

A 1976 amendment to the statute added elephants to the proscription of section 653o. See 1976 Cal.Stat. ch. 692, Sec. 1. Absent any preempting federal law, section 653o would clearly prohibit the activities in which appellee wishes to engage.

A. Convention on International Trade in Endangered Species of Wild Fauna and Flora.

In 1975, President Ford proclaimed the United States' agreement to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. 27 U.S.T. at 1089. The purpose of this multilateral convention is to protect "certain species of wild fauna and flora against over-exploitation through international trade ...." Id. at 1090 (Preamble).

To accomplish this goal, the Convention lists animals in three categories. In the first are animals that all contracting countries agree are endangered; in the second are animals whose survival may be endangered; and in the third, animals that one country has identified as subject to protective regulation within its jurisdiction. The African elephant is listed in the second category. Trade in the parts or products of animals listed in this category is permitted so long as the trader obtains a trade permit from the country of the animal's origin. Man Hing argues that because it has the required permit, the California prohibition on trade in elephant products cannot be applied to it consistent with the obligations of the United States under the Convention.

The district court rejected this argument because "[t]he Convention, standing alone, is in nowise the law of the United States. It is not self-executing. Legislation must be enacted if any of its provisions are to have the force of United States law." The district court may well be correct. We agree that "courts are empowered to give direct legal effect to treaties only insofar as they are self-executing and therefore operate as the law of the land." Hopson v. Kreps, 622 F.2d 1375, 1380 (9th Cir.1980); see Head Money Cases, 112 U.S. 580, 598, 5 S.Ct. 247, 253, 28 L.Ed. 798 (1884); see also L. Henkin, Foreign Affairs and the Constitution 156-67 (1972). But we need not decide if the Convention is itself self-executing, since the terms of section 1(a) of Article XIV of the Convention state that the provisions of the Convention shall in no way affect the right of parties to adopt stricter domestic measures regulating or even prohibiting the trade or transport of any part or derivative of certain species, including the African elephant. ² 27 U.S.T. at 1108. Thus, any rights to import African elephant products purportedly established under the Treaty are conditioned on the absence of prohibitory domestic measures. State laws are deemed domestic measures. See Convention, art. XIV, 27 U.S.T. at 1108-09; L. Henkin, Foreign Affairs and the Constitution 244-45 & nn. 63-64 at 479-80 (1972) (and cases cited therein). The Convention, therefore, cannot itself preempt California law.

B. The Endangered Species Act of 1973.

The Endangered Species Act of 1973 implements, inter alia, the International Convention on Trade in Endangered Species of Wild Fauna and Flora. See 16 U.S.C. Secs. 1531(a)(4)(F), 1532(4), 1537a, 1538(c). The Act "represent[s] the most comprehensive legislation for the preservation of endangered species ever enacted by any nation. Its stated purposes [are] 'to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,' and 'to provide a program for the conservation of such ... species ....' " TVA v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 2294, 57 L.Ed.2d 117 (1978) (quoting 16 U.S.C. Sec. 1531(b) (1976)). Whether, as Man Hing argues, such extensive federal legislation preempts otherwise valid state law is a question of Congressional intent. "Congress's purpose is most clear, of course, when the federal statute at issue explicitly prohibits state regulation in the same field." Pacific Legal Foundation v. State Energy Resources Conservation & Development Commission, 659 F.2d 903, 919 (9th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2959, 73 L.Ed.2d 1350, cert. granted in companion case Pacific Gas and Electric Co. v. State Energy Resources Conservation & Development Commission, 659 F.2d 903 (9th Cir.1981), cert. granted --- U.S. ----, 102 S.Ct. 2956, 73 L.Ed.2d 1348 (1982).

Section 6(f) of the Endangered Species Act, while not explicitly prohibiting state regulation, does directly address the scope of federal preemption intended for the Endangered Species Act. The section provides:

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 or regulation 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.

16 U.S.C. Sec. 1535(f) (1976). This general language, by its terms, does not forbid state statutes such as California Penal Code Sec. 653o. ³ Rather, it allows full implementation of section 653o so long as the state statute does not prohibit what the federal statute or its implementing regulations permit. The Act itself nowhere authorizes the importation or sale of African elephant products by permit or by exemption. Indeed, it prohibits the sale or import of endangered species unless such import or sale is specifically authorized or exempted. 16 U.S.C. Sec. 1538(a). Thus, only by reference to the federal regulations adopted to implement the Act may the precise scope of what the Act permits be determined. See Fouke Co. v. Brown, 463 F.Supp. 1142, 1144 (E.D.Cal.1979).

C. Federal Regulation Under the Endangered Species Act of Trade in African Elephant Products.

Section 4 of the Endangered Species Act, 16 U.S.C. Sec. 1533 (1976), delegates to the Secretaries of Interior and Commerce the power to adopt specific regulations for implementation of the Act. In the exercise of this delegated authority, the Secretaries are empowered to compile a list of threatened or endangered species. Id. Sec. 1533(c)(1). The Secretary of Interior is also authorized to adopt regulations for the protection of listed species, id. Sec. 1533(d); the scope of such protective regulations may include prohibition of any of the...