Adams v. Shannon

• Decision Date: 08 May 1970
• Citation: 86 Cal.Rptr. 641,7 Cal.App.3d 427
• Parties: , 1 ERC 1337 Frank ADAMS, Plaintiff and Appellant, v. Walter SHANNON, Director of the Department of Fish and Game, State of California, Defendant and Respondent. Civ. 35142.
• Court: California Court of Appeals Court of Appeals

Page 641

86 Cal.Rptr. 641

7 Cal.App.3d 427, 1 ERC 1337

Frank ADAMS, Plaintiff and Appellant, v. Walter SHANNON, Director of the Department of Fish and Game, State of California, Defendant and Respondent.

Civ. 35142.

Court of Appeal, Second District, Division 1, California.

May 8, 1970.

Alfred D. Williams, Long Beach, for plaintiff and appellant.

Thomas C. Lynch, Atty. Gen., Walter S. Rountree, Asst. Atty. Gen., and Walter E. Wunderlich, Deputy Atty. Gen., for defendant and respondent.

THOMPSON, Associate Justice.

Appellant is a dealer in tropical fish. He appeals from a judgment of the Superior Court denying him an injunction restraining the California Department of Fish and Game from enforcing statutes and regulations prohibiting the importation and possession of piranha. We affirm the judgment.

Statutory Scheme

Since 1961 the Fish and Game Code has contained a comprehensive scheme limiting the importation of wild animals (including fish) into California. The code (§ 2118) prohibits the importation of specified species without a permit. It delegates to the Fish and Game Commission the responsibility for issuing permits for importation of the designated species and empowers the commission to issue regulations which may include a list of animals for which import permits will be issued and refused (§§ 2120, 2122). The code specifies standards to be followed by the commission in promulgation of regulations and the issuing of import permits (§§ 2123, 2150). Section 2150 of the code provides that a permit to import a species designated by the code may be issued 'upon determination that the animal is not detrimental or that no damage or detriment can be caused to agriculture, to native wildlife, or to the public health or safety, as a result of such importation * * *.'

Animals (and fish) imported without a permit are subject to destruction by an 'enforcing officer' (§ 2189). The contraband animal (or fish) may, however, on notice of violation from the enforcing officer be 'shipped out of the State, returned to point of origin or destroyed, * * * at the option of the owner or bailee' (§ 2188).

One of the species, the importation of which is prohibited except by permit, is the fish known as piranha. (Fish & G.Code § 2118, subsec. (e).) Regulations of the commission provide that no permit will be issued for the importation of piranha except to a public aquarium for exhibition purposes (Cal.Admin.Code, tit. 14, § 671) or to zoological gardens or for research (Cal.Admin.Code, tit. 14, § 671.1).

Appellant's Violation

Appellant is a wholesale and retail dealer in tropical fish. In the normal course of his business and without claiming to have a permit to do so, he has imported piranha to California and sold the fish to the general public. On April 7, 1965, appellant had in his possession 140 piranha imported without a permit. On that date respondent, acting in his capacity as the director of the Department of Fish and Game, served a notice of inspection upon appellant. The notice prohibited sale of the piranha and required that within 30 days appellant either ship the fish from California, destroy them, or donate them to a bona fide public aquarium or zoological garden. Appellant did not comply with the notice.

Nature of Litigation

On May 7, 1965, appellant filed his complaint commencing the proceedings in the case at bench. The complaint alleges that since 1964 appellant has sold approximately four thousand piranha of a value of fifty to one hundred dollars each, and that he has customers for one thousand more. The complaint states that the piranha cannot constitute 'a threat of damage to the natural wildlife or agricultural interests of the State of California in private aquariums or if it were set at large.' It claims, therefore, that 'Regulation 670, et seq., Title 14 of the Administrative Code' which 'denies' appellant's right to import and possess piranha is unreasonable because it is 'arbitrary, capricious, unreasonable, ultra vires (and) does not further the object of the law being administered. * * *'

The complaint in its first cause of action seeks to enjoin enforcement of the pertinent regulations. In its second cause of action, the complaint seeks a writ of mandate compelling the Fish and Game Commission to promulgate a finding that 'the piranha is not inimical, dangerous or a threat to the natural wildlife or agricultural interests of this State from its existence at large or in any other environment.' The second cause of action also seeks a writ of mandate directing respondent to issue a permit to appellant to import and sell piranha.

The joint pretrial statement of the parties includes the following as an admitted matter for the purposes of the litigation: 'h. That sections 2118, 2120, 2150, 2188 and 2189 of the Fish and Game Code of California are valid and constitutional and are promulgated pursuant to a valid exercise of the police power of the state.' Consistent with that admission, appellant's separate pretrial statement states his contention that Regulation 671, as it affects the importation of piranha, is 'arbitrary and capricious' because it is not based upon any evidence that piranha could survive or become established in California.

After receiving evidence in the form of exhibits, the trial court held for respondent. It denied appellant's prayer for an injunction and writ of mandate.

Issues on Appeal

On appeal, appellant departs drastically from his theory in the trial court. He now contends that the sections of the Fish and Game Code admitted to be valid for the purposes of this litigation are unconstitutional. He argues that the statutory scheme represents an improper exercise of the police power, that the statutes and regulations are overly broad when measured against their purpose, and that the statutes deprive him of property without due process of law. We conclude that appellant's arguments must be rejected.

Police Power

Appellant argues that the statutes and regulations which prohibit him from importing piranha for commercial purposes are unconstitutional because their enactment is beyond the police power of the state. We note at the outset that in the trial court appellant participated in the filing of a statement of agreed matters containing a declaration that the statutes he now contends are unconstitutional represent a valid exercise of the police power by the State of California. We do not, however, rest our decision solely on that procedural fact. Appellant's contention is without merit as a matter of law. A state may prohibit the importation, possession, transportation, or sale of fish or game taken outside the state when its Legislature reasonably determines that the action is needed to protect the local ecology. That action by a state does not violate the commerce clause of the United States Constitution and is a proper exercise of the police power of the state. (New York ex rel. Silz v. Hesterberg, 211 U.S. 31, 29 S.Ct. 10, 53 L.Ed. 75; Johnson v. Gentry, 220 Cal. 231, 30 P.2d 400, 92 A.L.R. 1264; note 92 A.L.R. 1267 and cases there cited.)

The record of the case at bench establishes that the action of the Legislature in enacting the pertinent statutes and of the commission in promulgating the implementing regulations are based upon a firm foundation in fact. There is an ample showing that the action is designed to protect the inland waters of California. The record contains qualified expert opinion that piranha, if introduced into the waters of California, could seriously endanger existing species of aquatic life. The evidence discloses that the piranha is an extremely voracious, aggressive, carnivorous fish. In its native habitat in South America it is a danger to other fish, to mammals, and to human beings. There is evidence also that piranha could establish themselves in the waters of California. The Legislature in enacting the pertinent statutes and the commission in adopting the questioned regulations were amply justified in determining that the danger to the inland ecology of California from the introduction of piranha is so great as to require that the importation of the species be drastically curtailed.

Appellant concedes that there is a factual basis for the legislation and regulation he contends are unconstitutional. He emphasizes, however, that there is also evidence that piranha could not survive and reproduce in the waters of California. He then argues that by reason of the conflict in evidence there is not a 'clear and present danger' that the importation of piranha would endanger existing wildlife or agriculture. Appellant contends that absent a clear and present danger the enactment of the pertinent statutes and regulation is beyond the police power of the state.

Appellant misconceives the constitutional foundation for the legislative and regulatory action now before the court. In general, a legislative act is presumed to be constitutional and doubt must be resolved in favor of its validity. (Witkin, Summary of California Law, Constitutional Law, § 20, and cases there cited.) A limitation upon the general rule exists in the case of legislation impinging upon rights guaranteed by the First Amendment to the United States Constitution. If the limitation is applicable, the 'clear and present danger test' is applied. That test is not otherwise applicable.

In the case of an exercise of the state police power in a fashion designed to protect the natural environment, the test is not whether there is a clear and present danger to the environment which justifies the legislation. The test is rather whether the legislative body could have determined upon any reasonable basis that the legislation is necessary or desirable for its intended purpose. The evidence in the record of the case at bench constitutes such a reasonable basis. So also does ecological history. There are countless instances in which the introduction of a species exotic to an...