U.S. v. Taylor, 84-1699

• Decision Date: 04 December 1984
• Docket Number: No. 84-1699,84-1699
• Citation: 752 F.2d 757
• Parties: UNITED STATES of America, Appellee, v. Robert J. TAYLOR, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 757

752 F.2d 757

UNITED STATES of America, Appellee, v. Robert J. TAYLOR, Defendant, Appellant.

No. 84-1699.

United States Court of Appeals,

First Circuit.

Heard Dec. 4, 1984.

Decided Jan. 18, 1985.

Opinion on Denial of Rehearing and Rehearing En Banc April 10, 1985.

E. Paul Eggert, Portland, Me., with whom Mittel & Hefferan, Portland, Me., was on brief, for defendant, appellant.

F. Mark Terison, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Portland, Me., was on brief, for United States of America.

H. Cabanne Howard, Asst. Atty. Gen., Augusta, Me., for intervenor State of Maine.

Before BREYER and TORRUELLA, Circuit Judges, and MALETZ, ^* Senior Judge.

MALETZ, Senior Judge.

A Maine statute provides: "A person is guilty of importing live bait if he imports into this state any live fish, including smelts, which are commonly used for bait fishing in inland waters." Me.Rev.Stat.Ann. tit. 12, Sec. 7613 (1981). The question presented is whether this statute violates the Commerce Clause, art. I, Sec. 8, cl. 3, of the United States Constitution. We hold that it does and accordingly reverse the district court's denial of defendant's motion to dismiss his indictment under that statute.

I. Background

Defendant was charged in a two-count indictment under the Lacey Act Amendments of 1981, 16 U.S.C. Secs. 3372 and 3373 (1982), which proscribe the importation in interstate commerce of any fish or wildlife taken, possessed, transported, or sold in violation of state law. Id. Sec. 3372(a)(2)(A). ¹ The indictment, which included a conspiracy count and a substantive count, alleged that defendant imported into the State of Maine live golden shiners ² in violation of the blanket prohibition of Me.Rev.Stat.Ann. tit. 12, Sec. 7613. Defendant moved to dismiss the indictment on the ground that the statute violated the Commerce Clause. The district court accepted the magistrate's recommended decision and denied the motion. It concluded that, while the statute discriminated against interstate commerce, it served a legitimate local purpose and that less discriminatory alternatives were not available. 585 F.Supp. 393 (D.Me.1984). Defendant then entered a conditional plea of guilty and reserved his appellate rights. Fed.R.Crim.P. 11(a)(2). ³ This appeal followed.

II. Contentions of the Parties

The government and intervenor State of Maine concede that section 7613 discriminates facially against interstate commerce. They contend that the statute nevertheless should survive Commerce Clause scrutiny because of (1) Maine's vital interest in excluding fish parasites and exotic species and (2) the unavailability of alternative means that could promote this environmental purpose. The government argues that, in any event, whatever the legitimacy of section 7613 under the Commerce Clause, it is validated by "congressional consent." ⁴

The government lists three parasites that might appear in imported bait fish and threaten Maine's indigenous wild fish population: (1) Capillaria catastomi, (2) Pleistophera ovariae, and (3) Bothriocephalus opsalichthydis (Asian tapeworm). It also contends that exotic fish species, which mingle with live bait fish, could enter Maine's waters and damage the native fish population as competitors or predators. According to the government, scientists have not agreed upon sampling and certification procedures that would assure disease-free warm water bait fish. Since golden shiners are extremely small fish, ⁵ inspection of each fish is concededly impossible.

For his part, defendant introduced evidence that the parasites and exotic species are not a serious threat and that Maine permits importation of other fish that pose analogous problems. ⁶ In addition, defendant [W]e can't help asking why we should spend our money in Arkansas when it is far better spent at home? It is very clear that much more can be done here in Maine to provide our sportsmen with safe, home-grown bait. There is also the possibility that such an industry could develop a lucrative export market in neighboring states.

                argues that less burdensome regulatory alternatives are available to Maine and that section 7613 is no more than economic protectionism in the guise of environmentalism. 7   In support of the latter contention, defendant points to a statement submitted by the Maine Department of Inland Fisheries and Wildlife to the Legislature at a time that repeal of the ban on importation of bait fish was being considered. 8   In part, the statement reads
                

III. The Commerce Clause

The Commerce Clause provides that "Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The Clause exerts an impact beyond its literal language:

Although the Commerce Clause is by its text an affirmative grant of power to Congress to regulate interstate and foreign commerce, the Clause has long been recognized as a self-executing limitation on the power of the States to enact such laws imposing substantial burdens on such commerce. [Citations omitted.] It is equally clear that Congress "may redefine the distribution of power over interstate commerce" by "permit[ting] the states to regulate the commerce in a manner which would otherwise not be permissible."

South-Central Timber Dev., Inc. v. Wunnicke, --- U.S. ----, ----, 104 S.Ct. 2237, 2240, 81 L.Ed.2d 71 (1984) (quoting Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 769, 65 S.Ct. 1515, 1520, 89 L.Ed. 1915 (1945)). In its role as an implied limitation on state power, the Clause is referred to, interchangeably, as the negative Commerce Clause ⁹ or the dormant Commerce Clause. ¹⁰

The Supreme Court has formulated a three-part test for evaluation of state statutes under this Clause:

[W]e must inquire (1) whether the challenged statute regulates evenhandedly with only "incidental" effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect; (2) whether the statute serves a legitimate local purpose; and, if so, (3) whether alternative means could promote this local purpose as well without discriminating against interstate commerce.

Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S.Ct. 1727, 1736, 60 L.Ed.2d 250 (1979) (invalidating statute that placed no limit on number of minnows that could be taken by licensed minnow dealers but forbade any person from leaving the state with more than three dozen minnows). See Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). Cf. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471, 101 S.Ct. 715, 727, 66 L.Ed.2d 659 (1981) ("When legislating in areas of legitimate local concern, such as environmental protection and resource conservation, States are nonetheless limited by the Commerce Clause.").

When the effects on interstate commerce are more than incidental, as they are here (with the government conceding the discriminatory impact of the Maine statute), "the burden falls on the State to justify ... [the statute] both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake." Hunt v. Washington Nevertheless, even a facially discriminatory statute may survive Commerce Clause scrutiny if it is a legitimate quarantine law. But a statute will not be granted such status merely on the basis of a legislative ipse dixit. Thus, in City of Philadelphia v. New Jersey, the Supreme Court invalidated a New Jersey statute barring the importation of solid or liquid waste, and distinguished that statute from valid state laws:

                Apple Advertising Comm'n, 432 U.S. 333, 353, 97 S.Ct. 2434, 2446, 53 L.Ed.2d 383 (1977).  The court is not bound by the state's characterization of its statute but is required, instead, to examine the practical impact of the law.   Hughes, 441 U.S. at 336, 99 S.Ct. at 1736.  "A finding that state legislation constitutes 'economic protectionism' may be made on the basis of either discriminatory purpose [citation omitted] or discriminatory effect [citation omitted]."  Bacchus Imports, Ltd. v. Dias, --- U.S. ----, ----, 104 S.Ct. 3049, 3055, 82 L.Ed.2d 200 (1984).  If a law ostensibly designed to protect the environment is in reality economic protectionism, there is a " 'virtually per se rule of invalidity.' "   Clover Leaf, 449 U.S. at 471, 101 S.Ct. at 727 (quoting City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978))
                

But those quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils. Those laws thus did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin.

The New Jersey statute is not such a quarantine law. There has been no claim here that the very movement of waste into or through New Jersey endangers health, or that waste must be disposed of as soon and as close to its point of generation as possible.

437 U.S. at 628-29, 98 S.Ct. at 2538. See Asbell v. Kansas, 209 U.S. 251, 28 S.Ct. 485, 52 L.Ed. 778 (1908) (upholding cattle inspection law); Reid v. Colorado, 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108 (1902) (upholding quarantine on diseased livestock). Cf. Bowman v. Chicago & N. Ry., 125 U.S. 465, 489, 8 S.Ct. 689, 700, 31 L.Ed. 700 (1888) (distinguishing Iowa restriction on importation of liquor from legitimate quarantine laws).

Section 7613 is subject to the same analysis as the New Jersey statute reviewed in City of Philadelphia. It is not limited to diseased animals; it encompasses all bait fish. It does not bar all traffic in bait fish; it focuses only on bait fish that come from other states. It does not limit its prohibition to bait fish released into the environment; it bars all...