Pacific Northwest Venison Producers v. Smitch

• Citation: 20 F.3d 1008
• Decision Date: 01 April 1994
• Docket Number: Nos. 92-36766,92-36953,s. 92-36766
• Parties: PACIFIC NORTHWEST VENISON PRODUCERS, a Washington corporation; Robert V. Baker; James E. Rich; D. Bruce Morgan; Washington Alternative Livestock Association, a Washington corporation, Plaintiffs-Appellants, v. Curt SMITCH, Director of Washington Department of Wildlife; Dean A. Lydig, James M. Walton, Mitch Johnson, Terry Karro, John McGlenn, Norman F. Richardson, Commissioners of the WA State Wildlife Commission, Washington State Department of Wildlife, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1008

20 F.3d 1008

PACIFIC NORTHWEST VENISON PRODUCERS, a Washington

corporation; Robert V. Baker; James E. Rich; D. Bruce

Morgan; Washington Alternative Livestock Association, a Washington corporation, Plaintiffs-Appellants, v. Curt SMITCH, Director of Washington Department of Wildlife;

Dean A. Lydig, James M. Walton, Mitch Johnson, Terry Karro,

John McGlenn, Norman F. Richardson, Commissioners of the WA

State Wildlife Commission, Washington State Department of

Wildlife, Defendants-Appellees.

Nos. 92-36766, 92-36953.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 3, 1994.

Decided April 1, 1994.

Paul M. Seby, Mountain States Legal Foundation, Denver, CO, and Peter B. Camp, von Kallenbach, Seattle, WA, for plaintiffs-appellants.

Robert K. Costello, Sr., Asst. Atty. Gen., Olympia, WA, for defendants-appellees.

Ward Swanser, Moulton, Dellingham, Longo & Mather, Billings, MT, for amicus.

On Appeal from the United States District Court for the Western District of Washington.

Before: REAVLEY ^*, SKOPIL and LEAVY, Circuit Judges.

SKOPIL, Circuit Judge:

Plaintiffs Pacific Northwest Venison Producers and several of its members (collectively, "PNVP") appeal the district court's summary judgment in favor of the Washington Department of Wildlife and the Washington State Wildlife Commission (collectively, "Department of Wildlife" or "Department"), upholding the constitutionality of the Department's regulations banning the private ownership and exchange of several species of wildlife. We affirm.

FACTS AND PRIOR PROCEEDINGS

In January 1991, the Department of Wildlife promulgated regulations that prohibit the "importation, holding, possession, propagation, sale, transfer or release" of "deleterious exotic wildlife," including mouflon sheep. See Wash.Admin.Code Sec. 232-12-017(1)(d)(iv), -017(2). In June 1992, the Department promulgated emergency regulations which added fallow deer and sika deer to its list of prohibited deleterious exotic wildlife. Wash.St.Reg. 92-14-015 (amending Wash.Admin.Code Sec. 232-12-017(d)(v)). At the same time, the Department promulgated emergency regulations that prohibit the same activities regarding certain native wildlife species, including elk. Id. at 92-14-014 (amending Wash.Admin.Code Sec. 232-23-064(2)). The purported reason for the emergency regulations was to guard against perceived dangers to native wildlife presented by captive herds of these animals.

Following the promulgation of the regulations, the Department invited several wildlife experts to speak at a workshop to determine whether these animals actually present risks to native wildlife. The Department invited only experts who had previously expressed concern about the risks that game farms pose to native wildlife. Neither experts who support game farms nor ranchers who raise The experts at the workshop identified several risks to native wildlife presented by game farms. First, the importation of any animals presents a risk of importing diseases such as tuberculosis and brucellosis. Animals carrying the disease can infect native wildlife either after escaping, or through fenceline transmission.

the prohibited wildlife were allowed a hearing to present evidence to counter the concerns raised at this workshop.

Second, importation of animals presents some risk of importing the parasitic meningeal worm. This parasite is fatal to all cervids except the white-tail deer, which acts as a carrier. Scientists have not conclusively established whether other cervids are able to carry and pass on the meningeal worm in low numbers that are difficult to detect. The meningeal worm has not yet been found west of the Great Plains, possibly because the drier interior of the continent is not amenable to its secondary hosts, snails and slugs. Some experts fear that if a white-tail deer were to pick up the meningeal worm from an animal imported from the East, the parasite could spread rapidly within the white-tail deer population, and eventually decimate populations of other cervids.

Third, captive herds present the possibility that groups of animals might escape and become free-ranging herds, competing with native wildlife for forage and habitat. Finally, game farms present risks that escaped animals will breed with wild animals and affect the genepool of Washington's native wildlife.

PNVP, an agricultural cooperative of commercial game farms in Washington, Oregon, and British Columbia, filed this lawsuit shortly after the emergency regulations were promulgated, challenging the regulations as applied to elk, mouflon sheep, sika deer, and fallow deer. On summary judgment, the district court held that the regulations do not violate the Commerce Clause, substantive due process, or equal protection, but that the Department violated plaintiffs' procedural due process rights by failing to provide them with a hearing. The court also ruled that the federal Endangered Species Act preempted the state regulation banning the propagation of subspecies of sika deer that are federally listed endangered species. PNVP appeals the district court's judgment on the Commerce Clause ground only.

DISCUSSION

1. Mootness

The emergency regulations covering elk, sika deer, and fallow deer have expired since the district court filed its order, raising the possibility that this appeal has become moot as to these animals. The Department of Wildlife has now promulgated permanent regulations which are essentially the same as the emergency regulations, however, see Wash.Admin.Code Secs. 232-12-017(1)(d), -017(2), -064(2), except that they do not prohibit commerce in fallow deer, id. Sec. 232-12-017(7), or federally listed endangered species, id. Sec. 232-12-017(6). Therefore, this appeal is not moot as to the prohibitions of elk and sika deer. See Bunker Ltd. Partnership v. United States, 820 F.2d 308, 312 (9th Cir.1987).

The Department's permanent regulations added a provision which allows commerce in fallow deer to continue. Wash.Admin.Code Sec. 232-12-017(7). Although PNVP argues that the permanent regulations contain provisions that also impermissibly burden commerce, only the constitutionality of a total ban was addressed by the district court and by the parties on appeal. We therefore decline to address the constitutionality of the new regulation regarding fallow deer.

Since the regulations no longer ban fallow deer, this appeal is moot as to that species. See Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 911 F.2d 1331, 1335 (9th Cir.1990), cert. denied, 499 U.S. 943, 111 S.Ct. 1404, 113 L.Ed.2d 459 (1991). We thus address only the constitutionality of the regulations as applied to elk, mouflon sheep, and sika deer.

2. Discriminatory Versus Evenhanded Regulations

The United States Constitution gives Congress the power "[t]o regulate Commerce with foreign Nations, and among PNVP contends that two provisions demonstrate that the Department of Wildlife regulations are discriminatory. The first is the inclusion of "importation" in the list of prohibited activities. Wash.Admin.Code Secs. 232-12-017(2), -064(2). The second is the "grandfather clauses," which allow owners to keep animals already legally present within the state. Id. Secs. 232-12-017(4)(b), -064(8).

the several States ..." U.S. Const. Art. I, Sec. 8. Even in areas where Congress has not exercised this authority, state regulations may violate the Commerce Clause either because the regulations discriminate against interstate or foreign commerce, or because they incidentally affect such commerce. If the regulations discriminate in favor of in-state interests, the state has the burden of establishing that a legitimate state interest unrelated to economic protectionism is served by the regulations that could not be served as well by less discriminatory alternatives. See Maine v. Taylor, 477 U.S. 131, 138, 106 S.Ct. 2440, 2447, 91 L.Ed.2d 110 (1986). In contrast, if the regulations apply evenhandedly to in-state and out-of-state interests, the party challenging the regulations must establish that the incidental burdens on interstate and foreign commerce are clearly excessive in relation to the putative local benefits. See Northwest Central Pipeline Corp. v. State Corp. Comm'n of Kansas, 489 U.S. 493, 525-26, 109 S.Ct. 1262, 1281-82, 103 L.Ed.2d 509 (1989); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471, 101 S.Ct. 715, 727, 66 L.Ed.2d 659 (1981).

a. The Ban on Importation

PNVP argues that any state prohibition of imports or exports is per se discriminatory. The Supreme Court has stated that "where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State's borders." City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978) (internal citations omitted) (state may not ban importation of solid waste while allowing disposal of in-state waste).

Relying on this language, the Tenth Circuit has held that state regulations banning the importation of certain wildlife species are per se discriminatory, regardless of the overall regulatory scheme. Dorrance v. McCarthy, 957 F.2d 761, 765 (10th Cir.1992). We respectfully disagree. In practical effect, the importation ban adds nothing to the prohibitions that apply equally to in-state and out-of-state interests, because animals could not be imported if they are not allowed to be held, possessed, transferred, or sold once inside the state. An import ban that simply effectuates a complete ban on commerce in certain items is not discriminatory, as long as the ban on commerce does not make distinctions based on the origin of the items. See Chemical Waste Management, Inc. v. Hunt, --- U.S. ----, ---- - ----, 112 S.Ct. 2009, 2016-17, 119 L.Ed.2d 121 (1992) (discussing quarantine laws).

The...