Palladio, Inc. v. Diamond

• Decision Date: 25 November 1970
• Docket Number: No. 70 Civ. 3551.,70 Civ. 3551.
• Citation: 321 F. Supp. 630
• Parties: PALLADIO, INC., Plaintiff, v. Henry A. DIAMOND, as Commissioner of the Department of Environmental Conservation of the State of New York, Don J. Wickham, as Commissioner of Agriculture and Markets of the State of New York, John P. Lomenzo, as Secretary of State of the State of New York, Frank S. Hogan, as District Attorney of New York County, and Howard R. Leary, as Police Commissioner of the City of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

321 F. Supp. 630

PALLADIO, INC., Plaintiff, v. Henry A. DIAMOND, as Commissioner of the Department of Environmental Conservation of the State of New York, Don J. Wickham, as Commissioner of Agriculture and Markets of the State of New York, John P. Lomenzo, as Secretary of State of the State of New York, Frank S. Hogan, as District Attorney of New York County, and Howard R. Leary, as Police Commissioner of the City of New York, Defendants.

No. 70 Civ. 3551.

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

November 25, 1970.

Joseph L. Forscher, New York City, for plaintiff.

Louis J. Lefkowitz, Atty. Gen. of N. Y., for defendants; Philip Weinberg and Thomas F. Harrison, Asst. Attys. Gen., of counsel.

MANSFIELD, District Judge.

It is now generally recognized that the destruction or disturbance of vital life cycles or of the balance of a species of wildlife, even though initiated in one part of the world, may have a profound effect upon the health and welfare of people in other distant parts. We have come to appreciate the interdependence of different forms of life. We realize that by killing certain species in one area we may sound our own death knell.

For these reasons ecology has become everyone's business. Like pollution it does not cease to be of vital concern merely because the problem is created at a distant point. These principles are here challenged, at least insofar as they are invoked as a basis for state laws prohibiting the sale of crocodile skins in New York.

Plaintiff, a Massachusetts corporation, has brought this action against various officials of the State of New York in charge of administering and enforcing its newly-enacted Harris Law,¹ and the Mason Law,² charging that the Mason Law violates the Federal Constitution and that enforcement of the Harris Law in accordance with the provisions of the Mason Law is also unconstitutional to the extent that both laws prevent plaintiff from offering for sale and selling men's shoes made with the skins of species of Alligators, Caimans or Crocodiles of the Order Crocodylia which are not listed on the Endangered Species List promulgated by the Secretary of the Interior of the United States.

In A. E. Nettleton Company v. Diamond, 27 N.Y.2d 182, 315 N.Y.S.2d 625, 264 N.E.2d 118 (1970), the New York Court of Appeals upheld, under both state and federal grounds, the constitutionality of the laws attacked here today. Plaintiff was not represented in that suit. It argues that New York's highest court was in error, and seeks a temporary injunction against the enforcement of these acts as applied to the importation of Crocodylia skins and the appointment of a three-judge court. For the reasons stated below plaintiff's motion is denied; it has not raised a substantial federal question.

The Harris bill, n. 1, supra, provides that the protection of endangered species of wildlife is a matter of general state concern, and that the states must assume their responsibility. § 1. Section 2 of that Act amends the state Conservation Law by prohibiting the importation, sale, or possession with intent to sell, of any article made from the skin of any endangered species. An "endangered" species is one designated by the New York Department of Environmental Conservation, by order filed with the Secretary of State.

The Mason bill, n. 2, supra, is much more explicit and restrictive, providing in pertinent part:

"§ 358-a. Sale of certain wild animals or wild animal products prohibited

"1. No part of the skin or body * * * of the following species of wild animals * * * may be sold or offered for sale by any individual * * * after the effective date of this section:— * * * Alligators, Caiman or Crocodile of the Order Crocodylia, * * *" (Emphasis added)

Concededly the Mason bill damages plaintiff's business operation, which is the importation of shoes from Europe. Most of these shoes are made from the skins of Alligator, Caiman or Crocodiles of the Order Crocodylia (i. e., alligator shoes). Last year plaintiff sold almost $600,000 worth of alligator shoes, and at least 40% of these sales were to New York retailers.

Prior to New York's enactment of these laws, the Federal Government had in December, 1969, enacted the Endangered Species Conservation Act of 1969, P.L. 91-135, 83 Stat. 275, codified in part in 16 U.S.C.A. § 668aa et seq. (Supp. March, 1970), to deal with the serious problem of the rapid decimation and extinction of various species of animals. This Act forbids importation of species found by the Secretary of the Interior to be "threatened with world wide extinction," 16 U.S.C.A. § 668cc-2 (Supp. March, 1970), as well as interstate transportation of wildlife taken in violation of national, state or foreign laws. 18 U.S.C.A. § 43(a) (2) (Supp. March, 1970). Pursuant to the Act the Secretary of the Interior, after notice and an opportunity to be heard, prepared an "endangered species list" and prohibited the importation into the United States of articles made with the skins of mammals, birds, amphibians, reptiles, and fish threatened with extinction by publishing the names of the species in the Federal Register. See 50 C. F.R. §§ 17.10, 17.11, in 35 Fed.Reg. 8493 (June 2, 1970). The Secretary's current regulations presently list only one species of foreign Crocodylia, Caiman Yacare, the importation of which is barred. He has rescinded the designation of several other foreign species of Crocodylia because adequate notice as to those species had not been given. Compare 35 Fed.Reg. 8491, 8497 App. A (June 2, 1970), with 35 Fed.Reg. 12121-23 (July 29, 1970).

Plaintiff has no quarrel with the federal law and its regulations. It strongly objects, however, to the new state laws which amplify and are much stricter than the federal law.

First, plaintiff argues that there were no hearings on the Mason Law (which in effect explicitly forbids the importation of alligator shoes). The New York Court of Appeals' opinion, at 194, 315 N.Y.S.2d at 634, 264 N.E.2d at 124, stated:

"The minutes of a hearing held prior to the enactment of the Mason Law reveal that the Legislature specifically considered whether the Tiger Vicuna, Red Wolf, Polar Bear, Mountain Lion, Jaguar, Ocelot, Margay, Leopard, Cheetah and Crocodile are subjects of commercial exploitation and are threatened. Thus, it appears that the Legislature rejected the Industry's assumption and found otherwise. Accordingly, we do not have the power to disturb these findings." (Emphasis added)

Plaintiff states that the court was in error: "The only hearings the Legislature conducted," says the affidavit of Mr. David Klapisch, Chairman of the Reptile Products Association, "were in connection with the Harris Act. Since the Harris Act was patterned upon the Federal Foreign Endangered Species Conservation Act, which the industry supports, there was no objection voiced by the industry thereto." Aff. at p. 5.

Rather than decide whether the Legislature had hearings on the Mason Act, we will assume for present purposes that plaintiff is correct.³ The answer is that since there were legislative hearings on the Harris Act, the legislature was justified in using its findings on one bill to support another bill dealing with the same subject matter, albeit in a stronger manner. Moreover, there is no constitutional requirement that the legislature conduct hearings and build a record when it passes a law. E. g., BiMetallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915) (Holmes, J.). As Professor Cox has noted in his The Supreme Court, 1965 Term, Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv.L. Rev. 91, 105 (1966) (footnotes omitted):

"A statute must be judged constitutional if any set of facts which can reasonably be conceived would sustain it. No case has ever held that a legislative record is constitutionally required. This view is also supported by the cases upholding congressional legislation under the commerce clause prior to the nineteen-thirties, much of which apparently rested upon factual conclusions for which no legislative record could be cited. The principle is not merely one of deference to Congress or the states. It rests upon appreciation of the fact that the fundamental basis for legislative action is the knowledge, experience, and judgment of the people's representatives, only a small part, or even none, of which may come from the hearings and reports of committees or debates upon the floor."

Plaintiff next contends that the only endangered species are those found to be endangered by the United States Secretary of Interior; that the New York legislature could not have reasonably made findings different from the federal findings; that one can distinguish between these species and non-endangered species; and that New York's complete prohibition is, therefore, unreasonably overbroad.

Plaintiff has presented no convincing proof that the first part of its argument may be correct. Nowhere does the Secretary of Interior indicate that his list of endangered species is definitive. The state's list of endangered species may be broader than the federal list simply because the State Legislature did not see fit to wait until only a handful of species remained before it passed a law affording protection. We cannot overrule the legislature for being cautious. Extinct animals, like lost time, can never be brought back. They are gone forever. Since 1600 A.D. the world has destroyed for all time 130 animal species and 288 subspecies. F. Wayne King, Curator of Herpetology for the New York Zoological Society and a member of the International Crocodile Society and the American Alligator Council, supports this view in his affidavit (at pp. 4-5), which was before the New York Court of Appeals:

"The fact is that today a number of species of crocodilians are in danger of extinction, and virtually every species is declining in numbers. In every case the threat

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