by John M. Simpson.<\/p>\n
On Tuesday, a federal district court in California enjoined the enforcement of Cal. Penal Code \u00a7 653o which criminalizes the sale and possession for sale of alligator and crocodile parts in California.\u00a0 April in Paris v. Becerra<\/em>, No. 2:19-cv-02471-KJM-CKD, consolidated with Louisiana Wildlife Fisheries Comm\u2019n v. Becerra<\/em>, No. 2:19-cv-02488-KJM-CKD (E.D. Cal. Oct. 13, 2020).\u00a0 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.\u00a0 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\u2019s decision on the preliminary injunction motion.<\/p>\n Among other claims, plaintiffs argued that the law was preempted by the federal Endangered Species Act (ESA), section 6(f), which, inter<\/em> alia<\/em>, preempts any state law that may effectively \u201cprohibit what is authorized pursuant to an exemption or permit<\/em><\/strong> provided for\u201d under the ESA or its implementing regulations.\u00a0 16 U.S.C. \u00a7 1535(f) (emphasis added).\u00a0 All three of the reptilian species at issue \u2013 American alligator, saltwater crocodile and Nile crocodile \u2013 are \u201cthreatened\u201d species under the ESA.<\/p>\n 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 \u201cexemption,\u201d namely the \u201cspecial rules\u201d issued by the U.S. Fish and Wildlife Service applicable to these species, with which the plaintiffs were in compliance.\u00a0 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).\u00a0 As the court explained:<\/p>\n [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.\u00a0 Because trade in Nile and Saltwater crocodile is prohibited, it appears that the strictures of CITES are intended to supplant the Department\u2019s issuance of its own permit.\u00a0 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.<\/p><\/blockquote>\n Slip op. at 14. \u00a0Based on the same reasoning, the court found that plaintiffs had raised at least a serious question as to preemption regarding the American alligator.<\/p>\n The court credited the plaintiffs\u2019 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.\u00a0 While these harms were economic, they were nonetheless irreparable because the state\u2019s Eleventh Amendment sovereign immunity would bar a financial recovery.<\/p>\n 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.\u00a0 Fouke Co. v. Brown<\/em>, 463 F. Supp. 1142 (E.D. Cal. 1979).\u00a0 That case found that section 653o was preempted by the ESA at a time when the American alligator was classified as endangered.\u00a0 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.<\/p>\n","protected":false},"excerpt":{"rendered":" by John M. Simpson. On Tuesday, a federal district court in California enjoined the enforcement of Cal. Penal Code \u00a7 653o which criminalizes the sale and possession for sale of alligator and crocodile parts in California.\u00a0 April in Paris v. Becerra, No. 2:19-cv-02471-KJM-CKD, consolidated with Louisiana Wildlife Fisheries Comm\u2019n v. Becerra, No. 2:19-cv-02488-KJM-CKD (E.D. Cal. … <\/p>\n