Natl. Audubon Society v. Davis 01-15159oa

Docket Nº:01-15159oa
Party Name:Natl. Audubon Society v. Davis
Case Date:December 09, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Natl. Audubon Society v. Davis 01-15159oa

FOR PUBLICATION

NATIONAL AUDUBON SOCIETY, INC.; GOLDEN GATE AUDUBON SOCIETY, INC.; MARIN AUDUBON SOCIETY, INC.; MUIR BEACH AUDUBON SOCIETY, INC.; CALIFORNIA WATERFOWL ASSOCIATION, INC., Plaintiffs-Appellees,

and

NATIONAL TRAPPERS ASSOCIATION, INC.; CALIFORNIA TRAPPERS ASSOCIATION, INC.; TIM WION; CHRISTOPHER S. BRENNAN; LOYD E. HORN, Intervenors,

v.

GRAY DAVIS, Governor of California; DOUGLAS WHEELER, Resources Secretary, State of California; JACQUELINE E. SCHAFER, Director, CDFG; CALIFORNIA DEPARTMENT OF FISH & GAME; CALIFORNIA FISH & GAME COMMISSION, Defendants,

and

ANN M. VENEMAN,[*] U.S. Department of Agriculture; GARY SIMMONS, California State Director, Wildlife Services, U.S. Department of Agriculture; JAMIE CLARK RAPPAPORT, Director, U.S. Fish and Wildlife Service; ANNE BADGLEY, Regional Director, U.S. Fish and Wildlife Service, Appellees,

AM SOC PREV CRUELTY; PROTECT PETS AND WILDLIFE/VOTE YES ON PROPOSITION 4; ANIMAL PROTECTION INSTITUTE; THE ARK TRUST, INC.; DORIS DAY ANIMAL LEAGUE; THE FUND FOR ANIMALS; THE HUMANE SOCIETY OF THE UNITED STATES; INTERNATIONAL FUND FOR ANIMAL WELFARE, Defendants-Intervenors-Appellants.

No. 01-15159

D.C. No. CV-98-04610-CAL

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

December 9, 2002

Filed September 24, 2002 Amended December 9, 2002

NATIONAL AUDUBON SOCIETY INC.; GOLDEN GATE AUDUBON SOCIETY, INC.; MARIN AUDUBON SOCIETY, INC.; MUIR BEACH AUDUBON SOCIETY, INC.; CALIFORNIA WATERFOWL ASSOCIATION, INC., Plaintiffs,

and

NATIONAL TRAPPERS ASSOCIATION, INC.; CALIFORNIA TRAPPERS ASSOCIATION, INC.; TIM WION; CHRISTOPHER S. BRENNAN; LOYD E. HORN, Intervenors-Appellants,

v.

GRAY DAVIS, Governor of California; DOUGLAS WHEELER, Resources Secretary, State of California; JACQUELINE E. SCHAFER, Director, CDFG; CALIFORNIA DEPARTMENT OF FISH & GAME; CALIFORNIA FISH & GAME COMMISSION, Defendants-Appellees,

and

ANN M. VENEMAN, U.S. Department of Agriculture; GARY SIMMONS, California State Director, Wildlife Services, U.S. Department of Agriculture; GALE A. NORTON, Secretary, U.S. Department of the Interior; JAMIE CLARK RAPPAPORT, Director, U.S. Fish and Wildlife Service; ANNE BADGLEY, Regional Director, U.S. Fish and Wildlife Service; ROBERT STANTON, Director, National Park Service, Appellees,

AM SOC PREV CRUELTY; PROTECT PETS AND WILDLIFE/VOTE YES ON PROPOSITION 4; ANIMAL PROTECTION INSTITUTE; THE ARK TRUST, INC.; DORIS DAY ANIMAL LEAGUE; THE FUND FOR ANIMALS; THE HUMANE SOCIETY OF THE UNITED STATES; INTERNATIONAL FUND FOR ANIMAL WELFARE, Defendants-Intervenors-Appellees.

No. 01-15216

D.C. No. CV-98-04610-CAL

NATIONAL AUDUBON SOCIETY v. DAVIS NATIONAL AUDUBON SOCIETY, INC.; GOLDEN GATE AUDUBON SOCIETY, INC.; MARIN AUDUBON SOCIETY, INC.; MUIR BEACH AUDUBON SOCIETY, INC.; CALIFORNIA WATERFOWL ASSOCIATION, INC., Plaintiffs-Appellees,

v.

GRAY DAVIS, Governor of California; MARY D. NICHOLS, Resources Secretary, State of California; ROBERT C. HIGHT, Director of the California Department of Fish and Game; CALIFORNIA DEPARTMENT OF FISH AND GAME; CALIFORNIA FISH & GAME COMMISSION, Defendants-Appellants,

ANN M. VENEMAN, Secretary, U.S. Department of Agriculture; GARY SIMMONS, California State Director, Wildlife Services, U.S. Department of Agriculture; GALE A. NORTON,[*] Secretary, U.S. Department of the Interior; JAMIE CLARK RAPPAPORT, Director, U.S. Fish and Wildlife Service; ROBERT STANTON, Director, National Park Service, Appellees,

AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS; ANIMAL PROTECTION INSTITUTE; THE ARK TRUST, INC.; DORIS DAY ANIMAL LEAGUE; THE FUND FOR ANIMALS; HUMANE SOCIETY OF THE UNITED STATES; PROTECT PETS AND WILDLIFE/VOTE YES ON PROPOSITION 4; THE INTERNATIONAL FUND FOR ANIMAL WELFARE, Defendants-Intervenors-Appellees.

No. 01-15321

D.C. No. CV-98-04610-CAL

Appeal from the United States District Court for the Northern District of California Charles A. Legge, District Judge, Presiding

Argued and Submitted April 9, 2002 San Francisco, California

Filed September 24, 2002 Amended December 9, 2002

Before: Alfred T. Goodwin, Sidney R. Thomas and William A. Fletcher, Circuit Judges.

Opinion by Judge William A. Fletcher

COUNSEL

Laurens H. Silver, California Environmental Law Project, Mill Valley, California; John McCaull, National Audubon Society, Sacramento, California, for the plaintiffs-appellees National Audubon Society, et al.

Katherine Barton, U.S. Department of Justice, Washington, D.C., for appellee United States Department of Agriculture.

Clifford T. Lee, California Attorney General, San Francisco, California, for defendants-appellees-appellants Gray Davis, et al.

Richard D. Gann & George Hunlock, Marvin Morrow & Hunlock, San Diego, California; John L. Staley, Poway, Cali- fornia, for intervenors-appellants National Trappers Associa- tion, et al.

Eric R. Glitzenstein & Jonathan R. Lovvorn, Meyer & Glit- zenstein, Washington, D.C.; Francis M. Goldsberry II, Goldsberry, Freeman & Swanson, Sacramento, California, for defendants-intervenors-appellants-appellees American Society for the Prevention of Cruelty to Animals, et al.

ORDER

This court's opinion, filed September 24, 2002, is hereby amended as follows:

  1. Slip Op., page 14932: Delete Footnote 7

  2. Slip Op., page 14930: Replace the first two sentences of the second full paragraph with:

    "The sponsors argue against preemption on an additional ground. They argue that, even if Proposition 4 does not contain an exception for the protection of endangered species, it is not preempted by the ESA."

    With the opinion as amended, the panel has voted unanimously to deny the petition for rehearing. Judges Thomas and W. Fletcher have voted to deny the petition for rehearing en banc, and Judge Goodwin so recommends.

    The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

    The petition for rehearing and the petition for rehearing en banc, filed November 8, 2002, are DENIED.

    OPINION

    W. FLETCHER, Circuit Judge:

    This case pits bird-lovers, seeking to protect endangered and threatened species, against fox-lovers, seeking to protect predators from inhumane traps. The action is a challenge to Proposition 4, adopted by California voters in November 1998 to protect wildlife and domestic pets by restricting use of certain kinds of traps. Five different groups of parties are involved in this litigation. The National Audubon Society and other associations with similar interests ("Audubon") brought suit against various California state officials and agencies (the "state parties"). Audubon's complaint also names several federal officials as necessary parties (the "federal parties").[1] The sponsors and other supporters of Proposition 4 intervened (the "sponsors") to defend Proposition 4.[2] Finally, the National Trappers Association, the California Trappers Association, and several individual trappers (the "trappers") intervened and filed a separate complaint challenging Proposition 4.

    The state parties and sponsors appeal the district court's summary judgment granting declaratory relief to the Audubon plaintiffs on the ground that relevant portions of Proposition 4 are preempted by the federal Endangered Species Act ("ESA"), Migratory Bird Treaty Act ("MBTA"), and National Wildlife Refuge System Improvement Act ("NWRSIA"). The trappers appeal the district court's dismissal of their claims that Proposition 4 is unconstitutional, and that it is preempted by the ESA and the Animal Damage Control Act ("ADCA"), for lack of standing. We affirm in part, reverse in part, and remand for further proceedings.

    1. Background

    California voters passed Proposition 4 on November 3, 1998, enacting California Fish & Game Code § 3003.1 [3] and § 3003.2, which, broadly speaking, ban the use of certain traps and poisons to capture or kill wildlife in the state. Proposition 4 also authorizes criminal prosecution for violation of these subsections, punishable by fines and/or imprisonment. Cal. Fish & Game Code § 12005.5.

    A. Impact of Proposition 4 on Trapping Practices

    On November 6, 1998, two days after the passage of Proposition 4, the California Department of Fish and Game ("DFG") issued a press release describing Proposition 4. It announced that the new law "makes it generally illegal to trap fur-bearing and non-game animals with commonly used traps and to buy, sell, or exchange the fur of mammals that have been captured with these traps." The press release further stated that, "DFG and other governmental agencies will now have to use traps other than leg-hold traps to control predators, including those that prey on threatened and endangered species in California." It instructed individuals affected by Proposition 4 to follow its provisions where they conflict with existing trapping regulations.

  3. Impact on Individual Private Trappers

    As a result of Proposition 4 and DFG's press release, many individual private trappers, including individual trapper- intervenors and other members of the trapper organizations, stopped using leghold traps. Prior to the passage of Proposition 4, these trappers engaged in trapping for recreation, for interstate commerce in fur, and for protection of property and endangered animals. Their activities included trapping conducted under contracts with state, local, and federal governments, in order to protect everything from levees, to livestock, and to the California least tern. Since issuing the press release more than two years ago, the DFG has made no further public announcements regarding enforcement of Proposition 4. One individual private trapper has been arrested and prosecuted for violation of Proposition 4.[4]

  4. Impact on Federal Trapping

    In the past, various federal agencies, including the U.S. Department of the Interior, Fish and Wildlife Service ("FWS") and the U.S. Department of Agriculture, Animal and Plant Health...

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