Fouke Company v. Mandel, Civ. No. 73-1047-K.
| Decision Date | 05 December 1974 |
| Docket Number | Civ. No. 73-1047-K. |
| Parties | The FOUKE COMPANY, a Delaware Corporation v. Marvin MANDEL, Governor, et al. |
| Court | U.S. District Court — District of Maryland |
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Stephen S. Boynton and McIntosh & Boynton, Washington, D. C., and J. Edward Davis and Weinberg & Green, Baltimore, Md., for plaintiff.
Francis B. Burch, Atty. Gen. of Md., Henry R. Lord, Deputy Atty. Gen., George A. Nilson, Asst. Atty. Gen., and Warren K. Rich, Sp. Asst. Atty. Gen., for defendants.
Fred Warren Bennett, Mt. Ranier, Md., for intervenor as party plaintiff, Fur Information and Fashion Council, Inc., d/b/a The Fur Conservation Institute of America and the American Fur Industry.
This case involves the validity under the federal Constitution of article 66C, section 125A of the Maryland Code, a criminal statute prohibiting importation of sealskins into Maryland for commercial purposes. Plaintiff, The Fouke Company (Fouke), a Delaware corporation with its principal place of business in South Carolina, processes and auctions sealskins. Fur Information and Fashion Council, Inc. (FIFC),1 a trade association, seeks leave to intervene as a party plaintiff pursuant to Fed.R.Civ.P. 24. That intervention is hereby permitted.2
Fouke and FIFC by amended complaint seek declaratory relief and ask this Court to hold that Congress has preempted the subject matter covered by section 125A. Defendants have filed a motion to dismiss (converted to a motion for summary judgment by Fouke and FIFC by submission of affidavits3), challenging the standing of Fouke and FIFC to bring suit, and contesting plaintiffs' claim of preemption. Fouke and FIFC in turn also seek summary judgment. Jurisdiction exists pursuant to 28 U.S.C. §§ 1331 and 1337.4 Since plaintiffs rest their claim solely on the Supremacy Clause, their challenge to the Maryland statute does not require the convening of a three-judge court pursuant to 28 U.S.C. § 2284. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965). See Hagans v. Lavine, 415 U.S. 528, 533-535 n. 5, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974). Additionally, a three-judge court is not required herein since only declaratory relief is sought. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 152-155, 83 S. Ct. 554, 9 L.Ed.2d 644 (1963); see Steffel v. Thompson, 415 U.S. 452, 457 n. 7, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).
The statute challenged by plaintiffs, 6 Md.Ann.Code art. 66C, § 125A (1974 Supp.) was enacted in 1973, and provides:
§ 125A. Importation or possession with intent to sell of dead body, etc., of seal.
Plaintiffs claim that the Interim Convention on Conservation of North Pacific Fur Seals (hereinafter Convention), the Fur Seal Act of 1966, 16 U.S.C. § 1151 et seq. (1974 Supp.), and the Marine Mammal Protection Act of 1972, 16 U.S.C. § 1361 et seq. (1974 Supp.) (hereinafter MMPA), either individually or in combination, preempt the field of law covered by the Maryland Act.
The Convention is a four-party5 prohibition on pelagic sealing (hunting seals at sea) in the North Pacific. It permits restricted land sealing in the North Pacific for commercial purposes by the United States and the Union of Soviet Socialist Republics, with Canada and Japan each to receive fifteen percent of each of the first two countries' landsealing catch. Importation of any sealskins obtained by pelagic sealing in the North Pacific, into the territory of any signatory to the Convention, is prohibited.6
The MMPA establishes a moratorium on the taking and importation of marine mammals unless permitted by the Secretary of the Interior. 16 U.S.C. § 1371(a), (c). Section 1371(c) permits the Secretary to grant hardship exemptions if those exemptions do not extend beyond October 21, 1973. Section 1383 states that the MMPA is to be deemed not to contravene any treaty or convention. Section 1379(a) generally prohibits States of the United States from adopting or enforcing "any law or regulation relating to the taking of marine mammals within its jurisdiction", unless "the Secretary determines, after review thereof, that such laws and regulations will be consistent with" provisions of the MMPA or rules or regulations promulgated pursuant thereto.7
The facts in this case are not in dispute. Fouke processes and auctions sealskins on behalf of the Convention's four signatories, the Union of South Africa,8 and private shippers, deducting its fee from the price remitted to the seller. Fouke does not take title to such skins except when it buys certain skins for its own use. Other furs handled by Fouke in the United States and originating outside thereof are sold by Fouke in the United States to manufacturers, fabricators and wholesalers who in turn sell to retailers. Prior to the enactment of the Maryland Act, several retailers in Maryland purchased sealskin products originally auctioned by Fouke within the United States, i. e., in South Carolina, but not in the State of Maryland. None of the manufacturers, fabricators, and wholesalers who purchase the skins apparently prepare them in Maryland or otherwise import sealskins into Maryland except for sale to retailers. Both parties agree that Fouke is not prosecutable under the Maryland Act for its activities to date in the normal course of business. Against the background, the standing issue present in this case must be decided.
Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue. * * *
Sierra Club v. Morton, 405 U.S. 727, 731-732, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). In Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L. Ed.2d 184 (1970), Mr. Justice Douglas formulated a two-pronged standing test: (1) "the `case' or `controversy' test" (at 153, at 830 of 90 S.Ct.), i. e., "whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise" (at 152), and (2) "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." (Id. at 153, at 830 of 90 S.Ct.)8
For the period 1963-1973, Fouke has imported into, and processed and auctioned in, the United States sealskins as follows:
Total Skins Received
1963 126,719
1964 88,905
1965 92,174
1966 83,685
1967 124,742
1968 122,051
1969 104,857
1970 110,095
1971 78,130
1972 98,520
1973 77,306
Fouke, as of May 15, 1974, had on hand in the United States 50,400 skins belonging to the Government of the United States to be sold at four auctions between October 1974 through April 1976. It is also possible that Fouke will receive from the United States Government another 6000 skins for sale. Fouke, on May 15, 1974, had on hand in the United States an additional 100,000 skins from Canada, Japan, South Africa, the U.S.S.R., and private shippers to be sold at three auctions from October 1974 to October 1975. At its last auction in April 1974, Fouke sold all skins offered by it. In its contracts with the four signatories, Fouke has a minimum compensation provision. Fouke also has the right to renegotiate its contract with the United States if the American share of the harvest falls below 26,000 skins. The contracts with all signatories are on an annual basis, except for Canada, whose contract covers the 1974 harvest. The contracts with South Africa and private shippers are apparently for a long term.9
The precise percentage of Fouke-processed and Fouke-sold skins sold in Maryland has not been made known to this Court. Four retailers sold finished seal products in Maryland for the period November 1, 1970 to July 1, 1973 (effective date of the Maryland Act):
Leonard Furs, Inc. Tarlow Furs Peltz Furs, Inc. Furs-by-Gartenhaus
For two of the retailers, Leonard Furs, Inc. and Peltz Furs, Inc.,10 the dollar value of finished sealskin products sold is as follows:
Leonard Furs, Inc.
Dates Sold ($) Sold (# of coats)
11/1/70-10/31/71 11,175.00 11
11/1/71-10/31/72 1,150.00 1
11/1/72-10/31/73 1,095.00 1
Peltz Furs, Inc.
Dates Sold ($) Sold (# of coats)
11/1/70-10/31/71 2,850.00 2
11/1/71-10/31/72 1,295.00 1
11/1/72-10/31/73 1,450.00...To continue reading
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