by John M. Simpson.
On Tuesday, a federal district court in California enjoined the enforcement of Cal. Penal Code § 653o which criminalizes the sale and possession for sale of alligator and crocodile parts in California. April in Paris v. Becerra, No. 2:19-cv-02471-KJM-CKD, consolidated with Louisiana Wildlife Fisheries Comm’n v. Becerra, No. 2:19-cv-02488-KJM-CKD (E.D. Cal. Oct. 13, 2020). Plaintiffs, business interests importing alligator and crocodile parts into California, brought the action against the California Attorney General and the Director of the state Department of Fish and Wildlife. The law had been slated to take effect on January 1, 2020, but had been suspended pursuant to a stipulated retraining order pending the court’s decision on the preliminary injunction motion.
Among other claims, plaintiffs argued that the law was preempted by the federal Endangered Species Act (ESA), section 6(f), which, inter alia, preempts any state law that may effectively “prohibit what is authorized pursuant to an exemption or permit provided for” under the ESA or its implementing regulations. 16 U.S.C. § 1535(f) (emphasis added). All three of the reptilian species at issue – American alligator, saltwater crocodile and Nile crocodile – are “threatened” species under the ESA.
The court agreed that plaintiffs had shown a likelihood of success with respect to Nile and saltwater crocodiles because trade in these species is authorized pursuant an “exemption,” namely the “special rules” issued by the U.S. Fish and Wildlife Service applicable to these species, with which the plaintiffs were in compliance. Those rules permit the trade at issue as long as the party complies with the tagging and other provisions of the Convention on the International Trade in Endangered Species (CITES). As the court explained:
[T]he sale and delivery of Nile and saltwater crocodile skins in interstate commerce is expressly allowed under the regulations without a permit, provided the seller complies with CITES. Because trade in Nile and Saltwater crocodile is prohibited, it appears that the strictures of CITES are intended to supplant the Department’s issuance of its own permit. Because one who adheres to CITES is exempted from the permit requirement by the special rules on reptiles, this provision appears to be the exemption contemplated under the preemption clause.
Slip op. at 14. Based on the same reasoning, the court found that plaintiffs had raised at least a serious question as to preemption regarding the American alligator.
The court credited the plaintiffs’ evidence that, without an injunction, they would suffer loss of sales and lost business relationships, as well as the negative impact on the system of alligator conservation that is funded by revenue from the sale of the animals. While these harms were economic, they were nonetheless irreparable because the state’s Eleventh Amendment sovereign immunity would bar a financial recovery.
The outcome of the case was also influenced by the fact that the attorney general was still subject to a permanent injunction barring enforcement of section 653o with respect to American alligator hides. Fouke Co. v. Brown, 463 F. Supp. 1142 (E.D. Cal. 1979). That case found that section 653o was preempted by the ESA at a time when the American alligator was classified as endangered. Although section 653o had been sunset and reenacted by the California Legislature in the interim since 1979, the injunction had never been dissolved or modified.