Cresenzi Bird Importers, Inc. v. State of NY

• Citation: 658 F. Supp. 1441
• Decision Date: 28 April 1987
• Docket Number: No. 86 Civ. 8146 (WCC).,86 Civ. 8146 (WCC).
• Parties: CRESENZI BIRD IMPORTERS, INC., Novak's Tropical Aviary, Inc., and Supreme Exotic Birds, Inc., Plaintiffs, v. The STATE OF NEW YORK, the New York State Department of Environmental Conservation, and Henry Williams, as Commissioner of the New York State Department of Environmental Conservation, Defendants.
• Court: U.S. District Court — Southern District of New York

658 F. Supp. 1441

CRESENZI BIRD IMPORTERS, INC., Novak's Tropical Aviary, Inc., and Supreme Exotic Birds, Inc., Plaintiffs, v. The STATE OF NEW YORK, the New York State Department of Environmental Conservation, and Henry Williams, as Commissioner of the New York State Department of Environmental Conservation, Defendants.

No. 86 Civ. 8146 (WCC).

United States District Court, S.D. New York.

April 28, 1987.

Lovett & Gould, White Plains, N.Y., for plaintiffs; Jane Bilus Gould, of counsel.

Robert Abrams, Atty. Gen., State of N.Y., New York City for defendants Environmental Protection Bureau; Ezra I. Bialik, Asst. Atty. Gen., of counsel.

OPINION AND ORDER

WILLIAM C. CONNER, District Judge.

Plaintiffs, Cresenzi Bird Importers, Inc. ("Cresenzi"), Novak's Tropical Aviary, Inc. ("Novak") and Supreme Exotic Birds, Inc. ("Supreme") (collectively, the "Importers") brought this action against defendants, the State of New York, the New York State of Department of Environmental Conservation ("DEC"), and Henry Williams, as Commissioner of DEC (collectively, the "State"), challenging the validity of New York's Wild Bird Law, New York Environmental Conservation Law § 11-1728 (1. 1984, ch. 981), and the regulations promulgated thereunder, 6 N.Y.C.R.R. § 174.1-174.10. The Importers allege that the Wild Bird Law (1) is preempted under the supremacy clause, U.S. Const. art. VI, cl. 2, by the Endangered Species Act, 16 U.S.C. §§ 1531-1543 and 50 C.F.R. Parts 17 and 23, and the federal quarantine laws, 21 U.S.C. §§ 102-105, 111, 114, and 134, and 9 C.F.R. Part 92; (2) places an unconstitutional burden on interstate commerce, U.S. Const. art. I, § 8; (3) hampers commercial speech in violation of U.S. Const. amend. I; (4) deprives Cresenzi and Novak of their property without due process of law, U.S. Const. amend. XIV and N.Y. Const. art. I, § 6, by rendering unrecoverable the funds which they expended to obtain their quarantine facilities; (5) is so vague as to deprive plaintiffs of due process of law, U.S. Const. amend. XIV and N.Y. Const. art. I, § 6; (6) delegates legislative authority to DEC, a cabinet-level agency of the State of New York, in violation of N.Y. Const. art. III, § 1; (7) has been incorrectly interpreted by DEC to exclude Cresenzi and Novak as exempt "State, Federal, or local agencies"; and (8) if interpreted to exempt Cresenzi and Novak, violates Supreme's right to equal protection of the law, U.S. Const. amend. XIV.

The State has moved to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted, and Fed.R.Civ.P. 12(b)(1), on the ground that the Court lacks jurisdiction over the subject matter, since plaintiffs' claims are barred by the eleventh amendment, U.S. Const., and the doctrine of abstention.

BACKGROUND

Each of the three plaintiffs is engaged in the business of importing and selling live wild birds within the State of New York. Each plaintiff is licensed by the Department of the Interior "to engage in business as an importer or exporter of wildlife." 50 C.F.R. § 14.91. Cresenzi and Novak operate three of the five wildlife quarantine stations in the State of New York. These stations are approved and monitored by the federal government as part of a federal statutory and regulatory scheme to control the introduction and spread of contagious disease among the poultry and animal populations of the the United States. 21 U.S.C. §§ 102-105, 111, 114, and 134, and 9 C.F.R. Part 92.

New York's Wild Bird Law was adopted in August 1984. It states:

Except as permitted by rule and regulation of DEC, no person shall sell live wild birds ... unless such birds were born and raised in captivity.

New York Environmental Conservation Law § 11-1728. The statute was adopted to halt commercial practices which the New York Legislature believed might lead to the extinction or near extinction of many species. The Legislature was concerned that many thousands of wild birds were dying as a result of cruel and careless practices during capture and transport to New York. It was hoped that the statute would remove New York from the market served by the importation of wild birds. See Memorandum in Support of Assembly Bill 11589, included in Bill Jacket to the Bill.

As authorized by statute, DEC developed regulations implementing the Wild Bird Law. The regulations gave importers two years to phase out prohibited business practices and shift into other areas, such as breeding bird species previously imported. The regulations define "sale" broadly, to include the delivery or transfer of a live wild bird for consideration, as well as an offer or solicitation to sell. 6 N.Y.C.R.R. § 174.1(h) (1985). Only sales that occur "within the state of New York" are prohibited. 6 N.Y.C.R.R. § 174.2. The regulations do not ban or limit the importation of wild birds into New York. Nor do they prevent a New York importer from making sales to out-of-state purchasers, so long as those sales are made from an office outside of New York. The regulations do not prohibit the quarantining of birds within the state. Enforcement of the statute is facilitated by regulations requiring that breeders, who sell captive-raised birds in New York, maintain records showing that the birds were raised in captivity, and affix to the birds leg bands which can be put on only at birth. 6 N.Y.C.R.R. §§ 174.7(c) and 174.9.

Plaintiffs brought suit on October 23, 1986 to challenge the Wild Bird Law. They sought a temporary restraining order and preliminary and permanent injunctions to prevent enforcement of the law. The application for a restraining order was denied by this Court on October 24, 1986. Thereafter, defendant filed this motion to dismiss. The United States Department of Justice and The National Audubon Society filed amicus briefs in support of defendants' motion. For the reasons stated below, plaintiffs' motion for preliminary and permanent injunctions is denied and plaintiffs' complaint is dismissed.

DISCUSSION

I. Preemption

"When Congress legislates within the scope of its constitutionally granted powers, that legislation may displace state law...." Wardair Canada v. Florida Dep't of Revenue, ___ U.S. ___, ___, 106 S.Ct. 2369, 2372, 91 L.Ed.2d 1, 8 (1986). The Supreme Court has declared that, under the supremacy clause,

state law may be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling in that field is preempted.... If Congress has not entirely displaced state regulation over the matter in question, state law is pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, ... or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.

Silkwood v. Kerr McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984) (citations omitted). Of course, preemption is compelled whenever Congress explicitly so provides by statute. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 738, 105 S.Ct. 2380, 2388, 85 L.Ed.2d 728, 739 (1985). Where the statutory language is ambiguous, however, "the first and fundamental inquiry ... is whether Congress intended to displace state law...." Wardair Canada, ___ U.S. at ___, 106 S.Ct. at 2372, 91 L.Ed.2d at 8.

a. The Endangered Species Act

Plaintiffs contend that, as applied to them, the New York statute is in conflict with federal regulation in the field of wildlife conservation. They allege that, pursuant to the Endangered Species Act of 1973, 16 U.S.C. §§ 1532-1543 ("ESA"), New York's Wild Bird Law may not interfere with the rights licensed to them by the Secretary of the Interior, under 50 C.F.R. § 14.91, to "engage in business as an importer or exporter of wildlife."

Wildlife is regulated concurrently by federal and state authorities. The earliest federal regulation in the field was the Lacey Act, 31 Stat. 188, enacted in 1900, which bolstered state policies by providing for federal prosecution of violators of state law who engage in interstate commerce. In 1966, Congress began regulating on its own. It passed the Endangered Species Act, §§ 1-3, 80 Stat. 926 (repealed 1973), which sought to protect native fish and wildlife threatened with extinction. The federal program was given an international focus in 1969, when Congress enacted the Endangered Species Conservation Act, 83 Stat. 275. That act resulted in the adoption of an international treaty, the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES"), 27 U.S.T. 1087, T.I.A.S., 8249.

In 1973, Congress enacted the present Endangered Species Act. Protective policies were established on three levels: international, national, and state. Consistent with Congress's international commitments, ESA implemented the CITES treaty. 16 U.S.C. § 1538(c). ESA also fortified preexisting national wildlife regulations. 16 U.S.C. § 1538(a). Finally, recognizing the benefits of local regulation, Congress, through ESA, encouraged the development of state conservation programs. 16 U.S.C. § 1535(b) and (c). Congress included a provision in ESA which spelled out when state laws should take priority over federal, and vice versa. The provision evinced a clear Congressional intent to preempt state wildlife conservation laws only to a very limited extent.

The legislative history of ESA indicates that the purpose for limiting any preemptive effect was to leave the states free to protect wildlife by restricting sales of endangered species within their jurisdiction, so long as they did not block federally permitted commerce. See Note, Federal Preemption of State Commerce Bans Under the Endangered Species Act, 34 Stan. L.R. 1323, 1329 (1982). The Senate believed that a federal wildlife program should not preempt similar state regulation. The committee responsible for ...