A. E. Nettleton Co. v. Diamond

• Decision Date: 15 October 1970
• Citation: 27 N.Y.2d 182,315 N.Y.S.2d 625,264 N.E.2d 118
• Parties: , 264 N.E.2d 118, 1 ERC 1700, 44 A.L.R.3d 994 A. E. NETTLETON COMPANY, Respondent, and J. Fox, Inc. et al., Intervenors-Respondents, v. Henry A. DIAMOND, as Commissioner of as Commissioner of the Department ofEnvironmental Conservation of the State of New York et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 625

315 N.Y.S.2d 625

27 N.Y.2d 182, 264 N.E.2d 118, 1 ERC

1700, 44 A.L.R.3d 994

A. E. NETTLETON COMPANY, Respondent, and J. Fox, Inc. et al., Intervenors-Respondents, v. Henry A. DIAMOND, as Commissioner of as Commissioner of the Department ofEnvironmental Conservation of the State of New York et al., Appellants.

Court of Appeals of New York.

Oct. 15, 1970.

[264 N.E.2d 119] [27 N.Y.2d 183] Louis J. Lefkowitz, Atty. Gen. (Philip Weinberg, Samuel A. Hirshowitz, New York City and Thomas F. Harrison of counsel), for appellants.

Charles T. Beeching, Jr. and George Bond, Jr., Syracuse, for plaintiff-respondent.

Marshall C. Berger, New York City, for New York State Council of Retail Merchants, intervenor-respondent.

Leo Goldsmith, Jr. and Bernard Kovner, New York City, for Reptile Products Assn., Inc., and another, intervenor-respondent.

Joseph Colby, New York City, for J. Fox, Inc. and others, intervenor-respondent.

Donald C. Hays, New York City, for National Audubon Society, Inc., amicus curiae.

Edward Berlin, Edward Lee Rogers, Washington, D.C., and William A. Butler, Brooklyn, for Environmental Defense Fund, amicus curiae.

SCILEPPI, Judge.

Appellants, consisting of several officials of the State of New York (hereinafter referred to as the State) have taken a direct appeal to our court from a judgment of the Supreme Court, Onondaga County, which declared section 358--a of the Agriculture and Markets Law, Consol.Laws, c. 69, to be contrary to the Fourteenth Amendment of the Constitution of the United States and article I ( § 6) of the New York State Constitution and enjoined enforcement of the aforesaid statute.

This appeal presents a problem of critical importance. Throughout history, man has relied upon the lower forms of life for food, clothing and shelter. Indeed, long before the advent of what historians have come to term the Commercial Revolution, the skins and pelts of animals had played an essential role in the development of man and his trade. In recent years, however, the scientific community has warned that since the year 1600, 130 animal species and 228 subspecies have become extinct and numerous other species will soon be lost to the world forever unless something is done to curtail man's commercial exploitation of the wildlife of the world. While it is not our function here to engage in any form of biblical exegesis, it is obvious that man has only too readily acceded to the blessing enunciated in Genesis encouraging him to "be masters of the fish of the sea, the birds of heaven, the cattle, all the wild beasts and all the reptiles that crawl upon the earth" (Genesis, ch. 1, verse 26, Jerusalem Bible, p. 16).

It was in response to the great need to preserve wildlife that the Legislature, sharing the concern expressed by the people of our State, Nation and planet, recently enacted two laws in an effort to safeguard the wildlife of the world. The first of these laws, chapter 1047 of the Laws of 1970 added section 187 to the Conservation Law, Consol.Laws, c. 65 (known as the Harris Law) and provided that after September 1, 1970: 'the importation, transportation, possession or sale of any endangered species of fish or wildlife, or hides or other parts thereof, or the sale or possession with intent to sell any article made in whole or in part from the skin, hide or other parts of any endangered species of fish or wildlife is prohibited, except under license or permit from the Department.'

This statute defined as endangered, those species designated by the United States Secretary of the Interior and vested the New York State Commissioner of Environmental Conservation with the power to amplify the Federal list by the addition of those species which he considers endangered. In addition, the commissioner was given the authority to remove 'any such species as he may determine after investigation to be no longer endangered from the restrictions of this section'.

The second act promulgated was chapter 1048 of the Laws of 1970. This enactment added section 358--a to the Agriculture and Markets Law (hereinafter referred to as the Mason Law) which provides that after September 1, 1970: '1. No part of the skin or body, whether raw or manufactured, of the following species of wild animals or the animal itself may be sold or offered for sale by any individual, firm, corporation, association or partnership within the state of New York after the effective date of this section:--Leopard (Panthera pardus), Snow Leopard (Uncia uncia), Clouded Leopard (Neofelis nebulosa), Tiger (Panthera tigres), Cheetah (Acinoyx jubatus), Alligators, Caiman or Crocodile of the Order Crocodylia, Vicuna (Vicugna vicugna), Red Wolf (Canis niger), or Polar Bear (Thalarctos maritimus), nor after a period of twelve months from the effective date of this section, of the following species:-- Mountain Lion, sometimes called Cougar (Felis Concolar), Jaguar (Panthera onca), Ocelot (Felis pardalis), or Margay (Felis Wiedii).' (Emphasis added.) The Mason Law further provides for the issuance of warrants for the search and seizure and forfeiture of all goods held in violation of its provisions and for the issuance of licenses permitting the import of the forbidden species for 'zoological, educational, and scientific purposes'.

As a result of this legislation, the A. E. Nettleton Company, which has for over 90 years engaged in the manufacture, sale and distribution of men's footwear made from alligator, crocodile and caiman skins, initiated the instant action for a judgment declaring both the Harris Law and the Mason Law to be unconstitutional and for an injunction enjoining the enforcement of the aforesaid statutes. Three additional parties intervened on the side of the Nettleton Company: (1) J. Fox, Inc., representing the spotted fur industry; (2) Sibley, Lindsay & Curr Company, a division of Associated Dry Goods Corporation, representing retailers selling merchandise covered by the Mason Law; and (3) the Reptile Products Association (the Nettleton Company and the three intervenors will hereinafter be referred to as the Industry).

The Supreme Court, Onondaga County, held that the Harris Law was a laudable complement to the Federal Endangered Species Conservation Act of 1969 (83 U.S.Stat. 275, 91st Cong. 1st Sess., Pub.Law, 91--135), and suffered from no constitutional infirmity. The court Since the Industry has chosen not to cross-appeal the determination below that the Harris Law was constitutional, the sole question before us is the constitutional validity of the Mason Law. This requires a two-step analysis: (1) Does the State of New York have the power to legislate in this area and, if the answer is in the affirmative, (2) was that power validly exercised.

however, held that the Mason Law was violative of the Fourteenth Amendment of the Federal Constitution and article I ( § 6) of the New York State Constitution on the ground that it is an unreasonable exercise of the State police power and deprived the Industry of property without due process of law. Upon the State's appeal to our court, we have allowed the National Audubon Society, Inc., the Environmental Defense Fund and the New York Zoological Society to file briefs, Amicus curiae, in support of the State's contentions.

The Industry has made a two-fold attack on the power of the State to promulgate legislation in the area of wildlife preservation arguing that the Mason Law violates both the Supremacy Clause (art. VI, § 2) and the Commerce Clause (art. I, § 8, cl. 3) of the Federal Constitution. Initially, it is our view that preemption under the Supremacy Clause is a constitutional issue cognizable in a direct appeal pursuant to CPLR 5601 (subd. (b), par. 2). In so holding, we are aware that the Supreme Court of the United States has held (Swift & Co. v. Wickham, 382 U.S. 111, 120--123, 86 S.Ct. 258, 15 L.Ed.2d 194) that such a question is not a Federal constitutional issue within the meaning of the U.S.Code (tit. 28, § 2281) which requires the invocation of a three-Judge court whenever the enforcement of a State statute is sought to be enjoined 'upon the ground of the unconstitutionality of such statute'. The court in Swift adopted the following rationale: 'when the complaint alleges not the traditional Due Process Clause, Equal Protection Clause, Commerce Clause, or Contract Clause arguments, but rather that the state statute or regulation in question is pre-empted by or in conflict with some federal statute or regulation thereunder. Any such pre-emption or conflict claim is of course grounded in the Supremacy Clause of the Constitution: if a state measure conflicts with a federal requirement, the state provision must give way. Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23. The basic question involved in these cases, however, is never one of interpretation of the Federal Constitution but inevitably one of comparing two statutes.' (Swift, supra, at p. 120, 86 S.Ct. at p. 263). Since, however, Swift dealt with a question of Federal procedure, it is not binding on us and we may reach the merits of the instant appeal.

Taking the Supremacy issue first, it is argued by the Industry that the recent Federal Endangered Species Conservation Act of 1969 It is true that the Federal Act is a piece of comprehensive legislation ¹ which provides for the systematic prohibition of the importation into our country of certain species designated as endangered by the Secretary of the Interior ( § 3 of the Act), and requires the Secretary of State to promote the protection of threatened species in their countries of origin and regulates the importation of other species of animals by restricting points of entry and requiring documentation of origin ( § 4).

(Public Law 91--135, 83 U.S.Stat. 275) is an elaborate, comprehensive and pervasive scheme of Federal regulations which necessitates the conclusion that State power has been curtailed and that the field of wildlife preservation...