Viva! International Voice v. Adidas, Inc.

• Decision Date: 23 July 2007
• Docket Number: No. S140064.,S140064.
• Citation: 63 Cal.Rptr.3d 50,41 Cal.4th 929,162 P.3d 569
• Court: California Supreme Court
• Parties: VIVA! INTERNATIONAL VOICE FOR ANIMALS et al., Plaintiffs and Appellants, v. ADIDAS PROMOTIONAL RETAIL OPERATIONS, INC., et al., Defendants and Respondents.

63 Cal.Rptr.3d 50

41 Cal.4th 929

162 P.3d 569

VIVA! INTERNATIONAL VOICE FOR ANIMALS et al., Plaintiffs and Appellants, v. ADIDAS PROMOTIONAL RETAIL OPERATIONS, INC., et al., Defendants and Respondents.

No. S140064.

Supreme Court of California.

July 23, 2007.

Eisenberg, Raisman, Thurston & Wong, Orly Degani, Los Angeles; and David Blatte, for Plaintiffs and Appellants.

Jonathan R. Loworn and Rebecca G. Judd, for The Humane Society of the United States as Amicus Curiae on behalf of Plaintiffs and Appellants.

Morgenstein & Jubelirer and Bruce A. Wagman, San Francisco, for Animal Defense Fund as Amicus Curiae on behalf of Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Thomas Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Assistant Attorney General, Clifford T. Lee and Tara L. Mueller, Deputy Attorneys General, for California Department of Fish and Game as Amicus Curiae on behalf of Plaintiffs and Appellants.

Davis Wright Tremaine, Martin L. Fineman and Sam N. Dawood, San Francisco, for Defendants and Respondents.

McKenna Long & Aldridge, Ann G. Grimaldi, San Francisco, and Eric S.C. Lindstrom, for The Government of the Commonwealth of Australia as Amicus Curiae.

WERDEGAR, J.

State law prohibits the importation into or sale within California of products made from kangaroo. (Pen.Code, § 653o.) Defendant adidas Promotional Retail Operations, Inc., concedes it imports into and sells in California athletic shoes made from kangaroo hide, but argues Penal Code section 653o is preempted because it conflicts with federal policies intended to influence Australian kangaroo management practices. As section 653o poses no obstacle to any current federal policy, we conclude it is not preempted, and we reverse the Court of Appeal's contrary judgment.

Factual and Procedural Background

The material facts are undisputed. Defendants adidas Promotional Retail Operations, Inc., Sport Chalet, and Offside Soccer (collectively Adidas) are California retailers that sell athletic shoes made from kangaroo leather imported from Australia. Specifically, Adidas sells athletic shoes made from the hides of three kangaroo species: the red kangaroo (Macropus rufus), the eastern grey kangaroo (Macropus giganteus), and the western grey kangaroo (Macropus fuliginosus). Kangaroos are indigenous to Australia and New Guinea; the three species at issue here exist only in Australia.¹

Plaintiff Viva! International Voice for Animals is an international nonprofit organization devoted to protecting animals. Plaintiff Jerold Friedman is a resident of Los Angeles County. Plaintiffs (collectively Viva) sued Adidas for engaging in an unlawful business practice by importing and selling athletic shoes made from kangaroo leather. (Bus. & Prof.Code, § 17200.) Viva alleged the importation and sale of Adidas's shoes violated Penal Code section 653o, which regulates trade in various animal species, including kangaroos.

Both sides sought summary judgment; the trial court denied Viva's motion and granted Adidas's motion. It agreed with Adidas that Penal Code section 653o was preempted by the Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq.) because it undermined federal actions taken under the act to influence the Australian state and federal governments to preserve threatened kangaroo species.

The Court of Appeal affirmed. While acknowledging the preemption question was close, it agreed with the trial court that 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."

We granted review to resolve this important preemption question.

Discussion

We begin by noting what we are not called upon to decide. The Commonwealth of Australia is free to manage its indigenous wildlife populations in any manner it sees fit, subject to international treaty obligations. Likewise, California is free to regulate within its own borders unless federal law or the United States Constitution requires otherwise. It is not our role to judge the wisdom of Australia's wildlife management practices, which Adidas and amicus curiae the Government of the Commonwealth of Australia defend and Viva and amicus curiae the Animal Legal Defense Fund criticize, nor the wisdom of California's wildlife rules or the federal government's statutes and regulations. The only question before us is whether California's rules can coexist with federal law.

I. Preemption Principles

The supremacy clause of the United States Constitution establishes a constitutional choice-of-law rule, makes federal law paramount, and vests Congress with the power to preempt state law. (U.S. Const., art. VI, cl. 2; Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407; Jevne v. Superior Court (2005) 35 Cal.4th 935, 949, 28 Cal.Rptr.3d 685, 111 P.3d 954.)² There are four species of federal preemption: express, conflict, obstacle, and field. (See Bronco Wine Co. v. Jolly (2004) 33 Cal.4th 943, 955, 17 Cal.Rptr.3d 180, 95 P.3d 422.)³

First, express preemption arises when Congress "define[s] explicitly the extent to which its enactments pre-empt state law. [Citation.] Pre-emption fundamentally is a question of congressional intent, [citation], and when Congress has made its intent known through explicit statutory language, the courts' task is any easy one." (English v. General Electric Co., supra, 496 U.S. at pp. 78-79, 110 S.Ct. 2270; accord, Jevne v. Superior Court, supra, 35 Cal.4th at p. 949, 28 Cal.Rptr.3d 685, 111 P.3d 954.) Second, conflict preemption will be found when simultaneous compliance with both state and federal directives is impossible. (Hillsborough County v. Automated Medical Labs. (1985) 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714; Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 815, 135 Cal.Rptr.2d 1, 69 P.3d 927.) Third, obstacle preemption arises when "`under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" (Crosby v. National Foreign Trade Council, supra, 530 U.S. at p. 373, 120 S.Ct. 2288, quoting Hines v. Davidowitz (1941) 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581; accord, Bronco Wine Co. v. Jolly, supra, 33 Cal.4th at p. 955, 17 Cal.Rptr.3d 180, 95 P.3d 422.) Finally, field preemption, i.e., "Congress' intent to pre-empt all state law in a particular area," applies "where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress `left no room' for supplementary state regulation." (Hillsborough County, at p. 713, 105 S.Ct. 2371, quoting Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447.)

"`[C]ourts are reluctant to infer preemption, and it is the burden of the party claiming that Congress intended to preempt state law to prove it.'" (Olszeivski v. Scripps Health supra, 30 Cal.4th at p. 815, 135 Cal.Rptr.2d 1, 69 P.3d 927, quoting Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 548, 208 Cal.Rptr. 874, 691 P.2d 630; accord, Bronco Wine Co. v. Jolly, supra, 33 Cal.4th at pp. 956-957, 17 Cal.Rptr.3d 180, 95 P.3d 422.)

We consider in turn the state and federal law at issue.

II. Penal Code Section 653o and Preemption Presumptions

Penal Code section 653o was enacted in 1970 and expanded to include kangaroos in 1971. (Stats.1970, ch. 1557, § 1, p. 3186; Stats.1971, ch. 1283, § 1, pp. 2511-2512.) Subdivision (a) of section 653o provides in relevant part: "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 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.) Section 653o was passed to prevent the extinction of species the Legislature deemed threatened. (People v. K. Sakai Co. (1976) 56 Cal.App.3d 531, 536, 128 Cal.Rptr. 536.)

In the trial court and Court of Appeal, Adidas argued unsuccessfully that Penal Code section 653o should be construed as applying only to those species currently federally listed as endangered. Each court concluded section 653o's plain language dictated a contrary result, as the statute applies to "any ... kangaroo" product, without qualification for federal endangered species status. Instead, the statute rests on a legislative judgment that the species listed merit special state concern, without regard to their federal status. Like the Court of Appeal, we agree the plain language of the statute extends its scope to all kangaroos and does not depend on the vicissitudes of federal protection.

Penal Code section 653o addresses an area typically regulated by, and historically within the traditional police powers of, the states—wildlife management.⁴ Notwithstanding Adidas's contrary argument, the scope of this power has long been recognized as extending even to regulation of foreign species: "[A] state may constitutionally conserve wildlife elsewhere by refusing to accept local complicity in its destruction. The states' authority to establish local prohibitions with respect to out-of-state wildlife has, since the late nineteenth-century, been recognized by the courts." (Cresenzi Bird Importers, Inc. v. State of NY. (S.D.N.Y.1987) 658 F.Supp. 1441, 1447; see Maine v. Taylor (1986) 477 U.S. 131, 151-152, 106 S.Ct. 2440, 91 L.Ed.2d 110 [upholding import restrictions on out-of-state fish as valid exercise of state police powers]; A.E. Nettleton Company v....