Viva! Intern. Voice for Animals v. Adidas
| Decision Date | 21 November 2005 |
| Docket Number | No. A106960.,A106960. |
| Court | California Court of Appeals Court of Appeals |
| Parties | VIVA! INTERNATIONAL VOICE FOR ANIMALS et al., Plaintiffs and Appellants, v. ADIDAS PROMOTIONAL RETAIL OPERATIONS, INC. et al., Defendants and Respondents. |
Orly Degani, Esq., Los Angeles, Attorney for Plaintiffs/Appellants — Viva! International Voice for Animals et al.
David Blatte, Esq., Berkeley, Animal Law Associates, Attorney for Plaintiffs/Appellants — Viva! International Voice for Animals et al.
Martin L. Fineman, Sam N. Dawood, Davis Wright Tremaine LLP, San Francisco, Attorneys for Defendants/Respondents — Adidas Promotional Retail Operations, Inc. et al.
Penal Code section 653o (section 653o) bans the import of products made from certain animals, including kangaroos into California. Defendants import and sell in California markets athletic shoes made from kangaroo leather. Plaintiffs sued defendants for injunctive and declaratory relief, claiming that defendants import the kangaroo leather in violation of section 653o—and thus are committing an unlawful business practice (Bus. & Prof.Code, § 17200 et seq.).
Defendants moved for summary judgment, arguing that section 653o is preempted by federal law under the doctrine of conflict preemption. The trial court agreed and granted the motion. We conclude that section 653o is preempted when applied to the facts of this case. The statute as applied to defendants in this case conflicts with federal law and with substantial federal objectives of persuading Australian federal and state governments to impose kangaroo population management programs, in exchange for allowing the importation of kangaroo products. Accordingly, we affirm.
The material facts are undisputed.1
Defendants Adidas Promotional Retail Operations, Inc., Sport Chalet, and Offside Soccer are California retailers that sell athletic shoes made from kangaroo leather imported from Australia. Specifically, defendants sell athletic shoes made from the hides of three kangaroo species: the red kangaroo (Macropus rufus), the eastern gray kangaroo (Macropus giganteus), and the western gray kangaroo (Macropus fuliginosus). Kangaroos are indigenous to Australia, and are not native to California.2
Plaintiff Viva! International Voice for Animals is an international nonprofit organization devoted to protecting animals, including those killed for food.3 Its national headquarters is in Yolo County. Plaintiff Jerold Friedman is a resident of Los Angeles County. Plaintiffs sued defendants for engaging in an unlawful business practice by importing and selling athletic shoes made from kangaroo leather. Plaintiffs alleged the importation and sale of defendants' shoes violated section 653o.
Section 653o was enacted in 1970, and expanded to include kangaroos in 1971.4 Subdivision (a) of section 653o provides, as here pertinent, that:
"It is unlawful to import into this state for commercial purposes, to possess with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of any alligator, crocodile, polar bear, leopard, ocelot, tiger, cheetah, jaguar, sable antelope, wolf (Canis lupus), zebra, whale, cobra, python, sea turtle, colobus monkey, kangaroo, vicuna, sea otter, free-roaming feral horse, dolphin or porpoise (Delphinidae), Spanish lynx, or elephant." (Italics added.)
Each side filed successive summary judgment motions. First, plaintiffs moved for summary judgment on the ground that defendants were violating section 653o and therefore committing an unlawful business practice subject to injunction. After briefing and oral argument, the trial court denied plaintiffs' motion on the ground that section 653o is preempted by federal law under the doctrine of conflict preemption.
Defendants then moved for a defense summary judgment on three primary grounds: (1) as a matter of statutory interpretation, section 653o did not apply here because it is limited to species currently listed as threatened or endangered under the Endangered Species Act (ESA) (16 U.S.C. § 1531 et seq.), and the three kangaroo species are not currently listed; (2) given the history of federal involvement with Australian state and federal governments regarding kangaroo population management, section 653o was preempted on the theory of conflict preemption; and (3) section 653o violated the Commerce Clause.
Defendants supported their conflict preemption argument with the following undisputed facts regarding the historical role of the federal government in Australian kangaroo management practices. Many of these facts come from a historical overview entered in the Federal Register, and included in the record below. (Fish and Wildlife Service, Endangered and Threatened Wildlife and Plants; Removal of Three Kangaroos From the List of Endangered and Threatened Wildlife, 60 Fed.Reg. 12887 et seq. (Mar. 9, 1995) (60 Fed.Reg.).) (See footnote 1, ante.)
A commercial market developed in Australia for kangaroo hides and meat.5 By the early 1970's the kangaroo population had dropped to the point that the Australian government instituted protective measures such as a ban on exports and species-specific quotas on the killing of kangaroos for commercial use.
Congress enacted ESA in 1973. Congress made several findings, including that various species of fish, wildlife and plants in the United States had been rendered extinct or threatened with extinction. (16 U.S.C. § 1531(a)(1), (2).) Congress also found that "the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to" numerous listed international treaties, conventions, and agreements. (16 U.S.C. § 1531(a)(4).)
Congress also affirmatively stated that the purposes of ESA were "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the [international] treaties and conventions set forth in [section 1531(a)(4)]." (16 U.S.C. § 1531(b).)
On December 30, 1974, the United States Fish and Wildlife Service (Fish & Wildlife) listed the red, eastern gray, and western gray kangaroo as threatened species under ESA (16 U.S.C. § 1531 et seq.). Such a listing prohibits importation of the species, subject to ESA exemptions or permits. (16 U.S.C. §§ 1538(a)(1)(A), 1539.) Fish & Wildlife formally banned commercial importation of the three kangaroo species as well as their body parts and products made from the bodies of the species. (60 Fed.Reg. 12888.)
Fish & Wildlife accompanied the listing with a special rule that would allow commercial importation into the United States after development of adequate management plans by the four Australian states that commercially harvest the three kangaroo species.6 (60 Fed.Reg. 12888.) However, the import ban was to continue "until the Australian states could assure the United States that they had effective management plans for the kangaroos, and that taking would not be detrimental to the survival of kangaroos." (60 Fed.Reg. 12905.)
The kangaroo population began to recover in the 1980's. In April 1981, Fish & Wildlife accepted the kangaroo management plans of the four Australian states and lifted the import ban "after kangaroo management plans and population survey techniques had been strengthened." (60 Fed.Reg. 12888.)
In May 1981, Fish & Wildlife issued a final rule lifting the ban on commercial importation into the United States of products made from the red, eastern gray, and western gray kangaroo.
In April 1983, Fish & Wildlife posted two notices in the Federal Register in which it proposed delisting the three kangaroo species and continuing commercial importation of kangaroo products and body parts. In August 1983, Fish & Wildlife published a final rule allowing the continuation of commercial importation. (60 Fed.Reg. 12888.)
On April 24, 1984, Fish & Wildlife received new data from the Australian government showing that the severe drought of the summer of 1982-1983 had significantly depleted the populations of the three kangaroo species. As a result, Fish & Wildlife withdrew its proposal to delist the three species. (60 Fed.Reg. 12888.)
Fish & Wildlife noted that after the drought broke in the winter of 1983, the three species resumed breeding—"but the ability of kangaroo populations to recover from the major 1982-[198]3 population fluctuation was unknown." Fish & Wildlife "further noted that the delisting action could be reconsidered after [Fish & Wildlife] had a better understanding of how kangaroo populations recover from drought events." (60 Fed.Reg. 12888.)
In December 1989, Greenpeace USA and other groups petitioned Fish & Wildlife to reinstate the ban on importing the three kangaroo species and their body parts and products. The petitioners argued that Australia's kangaroo management "was inherently flawed and that Australian states did not have adequate and effective conservation programs that ensured the protection of the threatened species." (60 Fed.Reg. 12888.)
In response to the petition, Fish & Wildlife sent a team of three representatives to Australia in March 1990 to investigate the population status of the three kangaroo species—including survey methods, numbers, and trends—and to investigate the implementation of management programs. The Fish & Wildlife team spent 12 days meeting with members of the Australian Parliament, scientists, Australian state and federal natural resource managers, representatives of nongovernmental organizations, enforcement personnel, farmers, and ranchers. (60 Fed.Reg. 12888.)
In June 1990, the Fish & Wildlife team presented its report. Fish & Wildlife opened a...
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