702 F.2d 760 (9th Cir. 1983), 82-4303, Man Hing Ivory and Imports, Inc. v. Deukmejian

Docket Nº:82-4303.
Citation:702 F.2d 760
Party Name:MAN HING IVORY AND IMPORTS, INC., a California corporation, Plaintiff-Appellee, v. George DEUKMEJIAN, [*] Governor of the State of California, et al., Defendants-Appellants.
Case Date:March 11, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 760

702 F.2d 760 (9th Cir. 1983)

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

March 11, 1983

Argued and Submitted Aug. 11, 1982.

Page 761

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.

Page 762

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.

  1. 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...

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