Stavrianoudakis v. U.S. Dep't of Fish & Wildlife, Case No. 1:18-cv-01505-LJO-BAM

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: Lawrence J. O'Neill, UNITED STATES DISTRICT JUDGE
• Citation: 435 F.Supp.3d 1063
• Docket Number: Case No. 1:18-cv-01505-LJO-BAM
• Decision Date: 22 January 2020
• Parties: Peter STAVRIANOUDAKIS, et al., Plaintiffs, v. U.S. DEPARTMENT OF FISH & WILDLIFE, et al., Defendants.

435 F.Supp.3d 1063

Peter STAVRIANOUDAKIS, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF FISH & WILDLIFE, et al., Defendants.

Case No. 1:18-cv-01505-LJO-BAM

United States District Court, E.D. California.

Signed January 22, 2020
Filed January 24, 2020

435 F.Supp.3d 1071

Anthony L. Francois, Timothy Ray Snowball, Pacific Legal Foundation, Sacramento, CA, James M. Manley, Pro Hac Vice, Pacific Legal Foundation, Phoenix, AZ, for Plaintiffs.

Philip A. Scarborough, Ali Ahmad Karaouni, Carolyn Nelson Rowan, Linda Lea Gandara, Attorney General's Office for the State of California Department of Justice, Sacramento, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS AND ORDERING SUPPLEMENTAL BRIEFING RE REQUEST FOR PRELIMINARY INJUNCTION

(ECF Nos. 17, 24, 25)

Lawrence J. O'Neill, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiffs—Peter Stavrianoudakis, Katherine Stavrianoudakis, Eric Ariyoshi, Scott Timmons, and the American Falconry Conservancy ("AFC") (collectively "Plaintiffs")—brought the present lawsuit against the United States Fish and Wildlife Service ("FWS"), its Director, and the Director of the California Department of Fish and Wildlife ("DFW") (collectively "Defendants"), asserting that certain regulations violate the First and Fourth Amendments to the U.S. Constitution and were promulgated in excess of statutory authority in violation of the Administrative Procedure Act, ("APA"), 5 U.S.C. § 701, et seq . The Plaintiffs, except for Katherine Stavrianoudakis, are licensed falconers who own trained falcons that are housed inside their homes or the curtilage of their homes. The challenged regulations govern the sport of falconry, which is defined by regulation to mean "the possession, housing,

435 F.Supp.3d 1072

trapping, transport, and use of raptors¹ for the purpose of hunting or training." 14 C.C.R. § 670(b)(7).

Plaintiffs' Fourth Amendment claims in Counts I and II of the operative First Amended Complaint (ECF No. 16 ("FAC") at 12-13) are dismissed because Plaintiffs lack standing to assert these claims. Plaintiffs Peter Stavrianoudakis, Scott Timmons, and AFC's free speech claims under the First and Fourteenth Amendments—Counts III, IV, V, VI, and VI (second count)² (id. at 14-20) survive Defendants' motions to dismiss. The Federal Defendants' motion to dismiss with respect to Plaintiffs' APA claim, Count VII (id . at 20), is granted with respect to the challenge to the unannounced inspection provision claim and denied with respect to the claims related to falconers' presentations, making of media, and charging fees. For the claims that are dismissed in this order, Plaintiffs are granted leave to amend the FAC.

With respect to Plaintiffs' motion for preliminary injunction (ECF No. 17), the Court orders supplemental briefing as set forth in this order.

II. BACKGROUND³

A. The Parties

1. Peter Stavrianoudakis

Plaintiff Peter Stavrianoudakis ("Peter") is the Pacific Coast Director for AFC and has been a licensed falconer for over 30 years. FAC ¶ 22. A Master Falconer, Peter also works as a Deputy Public Defender for Stanislaus County and resides in Hilmar, California. Id. Peter has held a valid falconry license for approximately 38 years. Id. ¶ 48. The FAC alleges that "[i]n approximately 1983, Peter was subject to an unreasonable warrantless search of his home and warrantless arrest by armed [DFW Officers] related to his lawful activities as a non-resident falconer in Nevada." Id. ¶ 51. Peter has cared for, trained, and flown approximately 15 birds, and he currently owns one four-year-old aplomado falcon named "Ares." Id. ¶¶ 56-57. Ares lives exclusively inside Peter's home and is occasionally housed in a protected enclosure in Peter's yard. Id. ¶ 61. There is no separate structure for the care or housing of Peter's falcon. Id. ¶ 62. Peter earns no income through his ownership, training, or care of Ares. Id. ¶ 60.

2. Katherine Stavrianoudakis

Plaintiff Katherine Stavrianoudakis ("Katherine") is Peter's wife and resides at the same residence. Id. ¶ 23. Peter and Katherine have lived in their home for five years. Id. ¶ 65. Katherine does not practice falconry and has never held a falconry license. Id. ¶ 66.

3. Eric Ariyoshi

Plaintiff Eric Ariyoshi has been a licensed falconer for approximately 30 years and resides in Novato, California. Id. ¶¶ 24, 68. Ariyoshi is the Secretary for AFC. Id. ¶ 24. Ariyoshi has housed, cared for, trained, and flown approximately 20 birds. Id . ¶ 71. Ariyoshi's three-year-old

435 F.Supp.3d 1073

peregrine falcon named "Finn" is "housed in an unrestricted mews⁴ located 30 feet away with a direct line of sight to the rear of Eric's home." Id . ¶ 74.

4. Scott Timmons

Plaintiff Scott Timmons has held a valid falconry license for approximately 30 years. Id. ¶ 77. He has housed and trained approximately 40 birds—20 falconry birds and 20 birds used for abatement services. Id. ¶ 80. In 1992, when Timmons was attending college and living with his mother, he was approached by officers of DFW who inquired if Timmons "was still in possession of a certain red-tailed hawk." Id. ¶¶ 82-84. After Timmons responded that the bird had flown away, the officers revealed that they were in possession of the hawk. Id. ¶ 85. Timmons's falcons live exclusively in mews and other structures directly adjacent to his home. Id. ¶ 90.

Timmons owns an abatement services company called Aerial Solutions. Id. ¶ 92. Abatement is the practice of flying certain species of raptor over a given area as a deterrent to the presence of other invasive bird species. Id. ¶ 93. Timmons has been asked to perform educational presentations, "including conservation education presentations," while flying his birds for abatement, but he has declined because the regulations proscribe being compensated for such education presentations. Id. ¶ 94. Timmons is also a member of the AFC. Id. ¶ 91.

5. American Falconry Conservancy

Plaintiff AFC, established in 2002, is a membership organization open to "[a]ny falconer—neither antagonistic nor detrimental to the association or its purpose—of good moral character and over the age of 17 years." Id. ¶¶ 26, 99. AFC has approximately 100 members. Id. ¶ 26. AFC's stated purpose is to promote "the broadest liberties possible that are not in conflict with legitimate conservation efforts based upon sound biological and legal reasoning," and "promote knowledge of quality falconry, as well as to instill pride in falconers for the cultural heritage of the sport, and its place in world history."⁵ Id. ¶ 96.

The FAC alleges that by virtue of holding falconry licenses, all members of AFC are subject to the unconstitutional speech and search restrictions pursuant to the state and federal regulations. See id. ¶¶ 101-11.

6. The Defendants

The present lawsuit is brought against Jim Kurth, Deputy Director Exercising the Authority of the Director of the FWS⁶ and Charles Bonham, the Director of DFW—both in their official capacities—and against FWS.⁷ Id. at 1 & ¶¶ 27-29.

435 F.Supp.3d 1074

B. Regulatory Framework

1. Statutory authority for the challenged regulations

The Migratory Bird Treaty Act ("MBTA") codifies the protections of migratory birds as outlined in various conventions between the United States and four foreign countries: Canada, Mexico, Japan, and Russia. 16 U.S.C. § 703 ; 50 C.F.R. § 10.13(a). The MBTA only applies to migratory birds native to the United States, which includes several types of Falconiformes (vultures, kites, eagles, hawks, caracaras, and falcons) and Strigiformes (owls). 50 C.F.R. §§ 10.13, 21.29(a)(1)(i). The MBTA authorizes the Secretary of the Interior ("Secretary") to adopt suitable regulations to determine, inter alia , when, and to what extent, it may be permissible to hunt, take, capture, possess, sale, and transfer protected birds, bird parts, nests, and eggs. 16 U.S.C. § 704(a) ; 50 C.F.R. § 21.29(a)(1).

Pursuant to the authority of the MBTA, the Secretary promulgated regulations to regulate falconry standards and falconry permitting. See 50 C.F.R. § 21.29. The federal regulations permit the Secretary to delegate responsibility for issuing falconry licenses and enforcing falconry standards to the relevant state, territorial, or tribal government upon a showing that their own laws and regulations meet the standards established in § 21.29. See 50 C.F.R. §§ 21.29(b)(1)(i), (b)(3). The current version of 50 C.F.R. § 21.29 became effective on November 7, 2008. See 73 Fed. Reg. 59,448 (Oct. 8, 2008).

California has created its own regulatory scheme for falconry permitting; FWS (a branch of the Department of the Interior) approved California's regulations as being compatible with the federal regulations. See 78 Fed. Reg. 72830-01,...