April in Paris v. Becerra

• Decision Date: 13 October 2020
• Docket Number: No. 2:19-cv-02471-KJM-CKD, No. 2:19-cv-02488-KJM-CKD,2:19-cv-02471-KJM-CKD
• Citation: 494 F.Supp.3d 756
• Court: U.S. District Court — Eastern District of California
• Parties: APRIL IN PARIS, et al., Plaintiffs, v. Xavier BECERRA, et al., Defendants. Louisiana Wildlife and Fisheries Commission, et al., Plaintiffs, v. Xavier Becerra, et al., Defendants.

494 F.Supp.3d 756

APRIL IN PARIS, et al., Plaintiffs,

v.Xavier BECERRA, et al., Defendants.

Louisiana Wildlife and Fisheries Commission, et al., Plaintiffs,

v.Xavier Becerra, et al., Defendants.

No. 2:19-cv-02471-KJM-CKD

No. 2:19-cv-02488-KJM-CKD

United States District Court, E.D. California.

Signed October 13, 2020

Bezalel A. Stern, PHV, Pro Hac Vice, Bret A. Sparks, PHV, Pro Hac Vice, David E. Frulla, PHV, Pro Hac Vice, Elizabeth C. Johnson, PHV, Pro Hac Vice, Kelley Drye & Warren LLP, Washington, DC, Christopher D. Hughes, Nossaman LLP, Sacramento, CA, Paul S. Weiland, Nossaman LLP, Irvine, CA, for Plaintiffs.

Ali Ahmad Karaouni, Linda Lea Gandara, Attorney General's Office for the State of California Department of Justice, Sacramento, CA, for Defendants.

ORDER

Kimberly Mueller, CHIEF UNITED STATES DISTRICT JUDGE

Plaintiffs April in Paris, AMTAN Louisiana, Brooks Family Alligator Farm II, Hogwards Carry Goods, Bijan Boutiques, LLC, LA Duchesse, LTD, Larson Leather Company, Louisiana Alligator Farmers & Ranchers Association, Magna Leather Corporation, M&D Gator Products, Inc. and SELMINT Pty. Ltd. move for a preliminary injunction against Xavier Becerra in his official capacity as Attorney General of California and Charlton H. Bonham, in his official capacity as Director of the California Department of Fish and Wildlife ("the California defendants"), enjoining defendants from enforcing California Penal Code sections 653o and 653r with respect to the importation and sale of American alligator, Nile crocodile and saltwater crocodile parts. Mot., ECF No. 13. The parties previously stipulated to the entry of a temporary restraining order to remain in place pending a decision on the preliminary injunction motion. Stip., ECF No. 29. The California defendants oppose the motion. Opp'n, ECF No. 37. The court granted the United States leave to file an amicus curiae brief. USA Amicus Brief, ECF No. 34–1. The court also granted the motion to intervene as defendants brought by the Humane Society of the United States, Humane Society International and the Center for Biological Diversity ("the intervenor defendants"). Intervention Order, ECF No. 43. Intervenors oppose the motion for preliminary injunction. Intervenor Opp'n, ECF No. 38–1. Plaintiffs filed separate replies. Pl.’s Reply to California Defs., ECF No. 45; Pl.’s Reply to Intervenor Defs., ECF No. 46.

On June 5, 2020, the court heard oral argument on the motion by video hearing. The hearing was consolidated with an analogous motion for preliminary injunction in a related case, Delacroix Corp. et al. v. Becerra , No. 2:19-02488-KJM-CKD, which the court formally consolidates with this one as explained below. The court considered the moving papers filed in that action in resolving the motion.¹ Delacroix Mot., ECF No. 2; Delacroix California Opp'n, ECF No. 34, Delacroix Intervenor Opp'n, ECF No. 35-1; Delacroix Reply to Calif. Defs., ECF No. 40; Delacroix Reply to Intervenor Defs., ECF No. 43.

Attorneys David Frulla, Christopher Hughes and Bret Sparks appeared for plaintiffs in this action. In the related case, counsel Scott St. John, Jeffrey Harris and Taylor Darden appeared for the Louisiana Wildlife and Fisheries Commission, Melinda Brown appeared for Delacroix Corporation and M. Taylor Darden appeared for the Louisiana Landowners Association, Inc. Counsel Ali Karaouni and Linda Garanda appeared for the California defendants in both cases. Certified law students William Conlon and Erika Imwald appeared for the intervenor defendants under the supervision of Deborah Sivas and Alicia Thesing at the Mills Legal Clinic at Stanford Law School in both cases. Having read and considered the facts and the applicable law, as well as argument at hearing, the court GRANTS the plaintiffs’ motion in April in Paris v. Becerra , Case No. 2:19-cv-02471. Because plaintiffs in the Delacroix action requested substantially identical relief against identical parties in their motion, that motion is DENIED as moot. Furthermore, the court consolidates the actions.

I. FACTUAL BACKGROUND

Plaintiffs initiated this action on December 10, 2019, Compl., ECF No. 1, and filed the operative first amended complaint on December 13, 2019. First Am. Compl. ("FAC"), ECF No. 8. On December 16, 2019, plaintiffs moved for a temporary restraining order and preliminary injunction. Mot.

Plaintiffs are various businesses engaged in the distribution and sale of products made from alligator and crocodile parts. FAC ¶ 4. They sue to enjoin the enforcement of provisions of California Penal Code sections 653o and 653p, which had been scheduled to take effect January 1, 2020, that would criminalize the sale and possession for sale of alligator and crocodile parts in California. Plaintiffs make three claims: (1) the new law is preempted under the Supremacy Clause; (2) the law violates the dormant Commerce Clause; and (3) the law violates the Due Process Clause. See generally FAC. Their motion for a preliminary injunction relies only on the preemption argument. Mem. P. & A. at 7, ECF No. 14.

Plaintiffs use and sell three species of crocodilian: the American alligator (Alligator mississippiensis ), Nile crocodile (Crocodylus niloticus ), and the saltwater crocodile (Crocodylus porosus ). FAC ¶ 5. All three species are classified as Appendix II species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES"), defined as species "not necessarily threatened with extinction, but in which trade must be controlled in order to avoid utilization incompatible with their survival."² Id.

As points in the supply chain for alligator and crocodile skin products, plaintiffs variously raise crocodilians from eggs, purchase and process their bodies for skin and meat, tan and craft the skins into leather, manufacture the skins into a range of leather goods and sell these products at retail. Id. ¶ 7. They assert enforcement of sections 653o and 653r would cause them lost sales and cancelled orders, inventory liquidations, job eliminations, erosion of goodwill and business relationships, business dissolutions and forced relocations, constituting irreparable injury. Mem. P. & A. at 10, ECF No. 14.

A. California Penal Code Section 653o

California Penal Code section 653o states:

Commencing January 1, 2020, it shall be 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 a crocodile or alligator.

Cal. Pen. Code § 653o(b)(1). The crime is defined as a misdemeanor punishable by a fine of between $1,000 to $5,000, imprisonment in a county jail not to exceed six months, or both. Cal. Pen. Code § 653o(c). California Penal Code section 653r also makes it unlawful to "possess with intent to sell, or to sell, within this state, after June 1, 1972, the dead body, or any part or product thereof, of any fish, bird, amphibian, reptile, or mammal specified in Section 653o or 653p." Cal. Pen. Code § 653r (added by Stats. 1971, c. 1283, p. 2512,§ 2).

In 1979, a judge of this court permanently enjoined then-Governor Edward G. Brown and then-Attorney General Evelle J. Younger from enforcing Sections 653o and 653r against trade in American alligator parts. Fouke Co. v. Brown , 463 F. Supp. 1142 (E.D. Cal. 1979). At that time, the American alligator was classified as endangered under the federal Endangered Species Act of 1973 ("ESA"), and the plaintiffs possessed a license to trade in its parts. Id. at 1144. The court held the Penal Code sections were directly preempted by the ESA, and thus unconstitutional and unenforceable as applied to American alligator hides unless the hides were taken, bought, tanned or fabricated in violation of federal law or regulation. Id. at 1145. The Fouke court issued a permanent injunction barring the enforcement of those statutes as to American alligator parts. Id. The Fouke injunction has never been dissolved or modified, and once a permanent injunction has been entered without a fixed date of termination, it continues indefinitely. Cf. United States v. Holtzman , 762 F.2d 720, 726 (9th Cir. 1985) (analyzing indefinite permanent injunction).

The provisions of section 653o making the sale of alligator and crocodile parts unlawful remained in the California Penal Code until 2006. Cal. Pen. Code § 653o (1970) (originally enacted as Stats. 1970, ch. 1557, § 1, p. 3186). In 2006, the California Legislature amended the law to include a sunset provision, removing alligators and crocodiles from the list of protected animals and introducing a provision that importation and sale of their body parts would again become illegal January 1, 2010. Cal. S.B. No. 1485, 2005-2006 Reg. Sess. (Cal. 2006). Several subsequent amendments extended the date of the sunset provision, most recently to January 1, 2020. Cal. A.B. No. 2075, 2013-2014 Reg. Sess. (Cal. 2014). The Legislature passed the most recent re-enactment of the law without a revision of the sunset provision, making the sales of alligator or crocodile parts illegal in California once again as of January 1, 2020. Cal. A.B. No. 1260, 2019-2020 Reg. Sess. (Cal. 2019).

B. Federal Law Regulating Sale and Importation of Crocodilian Species

The ESA governs the treatment of endangered and threatened wildlife in the United States. Section 6(f) of the ESA, codified as 16 U.S.C. § 1535(f), addresses conflicts between federal and state laws:

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

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