Home » Case Summaries » 2002 » National Audubon Society, Inc. v. Davis (9th Cir. 2002)


National Audubon Society, Inc. v. Davis (9th Cir. 2002)



Bird conservation organizations and wildlife trappers challenged a California voter-adopted ban on the use of steel-jawed leghold animal traps by anyone including federal employees. The district court dismissed the trappers’ claims for lack of standing and then held that the ban was preempted by the National Wildlife Refuge System Improvement Act (NWRSIA),[1] the Endangered Species Act (ESA),[2] and the Migratory Bird Treaty Act (MBTA).[3] The state of California, sponsors of the legislation, and the trappers appealed. The Ninth Circuit affirmed in part, reversed in part, and remanded.

Historically, several federal agencies used leghold traps within California to protect property under the Animal Damage Control Act (ADCA),[4] endangered species under the ESA, bird species under the MTBA, and for conservation practices within the National Wildlife Refuge System under the NWRSIA. In November 1998, California voters passed Proposition 4, legislation that included a ban on the use of leghold animal traps to capture wildlife within the state.[5] The California Department of Fish and Game instructed that the ban should be followed even when it conflicted with existing regulations. Upon passage of Proposition 4, the United States Fish and Wildlife Service continued to use the traps while other federal agencies removed all such traps. Five nonprofit organizations concerned with the conservation of birds (Audubon) challenged the ban on the basis that the ESA, the MBTA, and the NWRSIA preempted portions of the state legislation. Trappers and trapper organizations intervened. The district court issued a temporary restraining order and preliminary declaratory order stating that section 3003.1(c) did not apply to the use of traps by federal agencies or employees on federal or nonfederal land within the state if the traps were used for conservation purposes under the ESA. In its final order, the district court granted the plaintiffs’ motion for summary judgment on the basis that section 3003.1(c) violated the NWRSIA and was preempted under the ESA and the MBTA, but refused to grant injunctive relief on the basis that there was no threat of enforcement. The district court dismissed the trappers’ claim with prejudice for lack of standing. The State, sponsors of Proposition 4, and the trappers appealed.

On appeal, California claimed that the Eleventh Amendment[6] granted the state immunity from suit because there was no imminent threat of harm in this case.[7] The Ninth Circuit refused to read a ripeness requirement into the Ex parte Young [8] exception to sovereign immunity, but nonetheless dismissed claims against the state agencies on the basis of sovereign immunity, and against Governor Davis and the Secretary of Resources for lack of authority to enforce Proposition 4. Further, the Ninth Circuit held that the Eleventh Amendment did not bar declaratory relief,[9] and decided that because the Director of the California Department of Fish and Game has enforcement authority under Proposition 4, the director was subject to suit under the Ex parte Young exception to sovereign immunity.

The Ninth Circuit affirmed Audubon’s standing, relying on the three-part test laid out in Lujan v. Defenders of Wildlife [10] requiring injury in fact, connection between the injury and the statute, and redressability.[11] Audubon demonstrated clear injury to aesthetic, recreational, and scientific interests directly traceable to Proposition 4, and established redressabilty by highlighting the federal agencies’ reimplementation of leghold trapping after the district court granted the preliminary injunction. The Ninth Circuit also agreed with the district court that the “real threat of loss of birds” clearly demonstrated the claim was ripe.[12] Moreover the court determined the issue was “prudentially ripe” because without intervention, predators would diminish bird populations, and state actions to enforce Proposition 4 would not address Audubon’s federal preemption claims. Finally, the court affirmed the district court’s determination that Audubon’s claim was not moot because, while an injunction had been granted, it was preliminary and offered only temporary relief.

The district court found that section 3003.1(c) of Proposition 4 was preempted by the ESA on the basis of the Supremacy Clause.[13] The ESA allows the use of all methods necessary for conservation of endangered or threatened species.[14] The Ninth Circuit rejected the State’s position that the regulation should not be read to void state conservatory regulations because it included language indicating section 3003.1(c) would not apply to conservation activities. The regulation mentioned only state activities, that language did not create an exception for federal conservation activities. Therefore, the court affirmed that the ban on trapping which included federal agencies contradicted the ESA, and thus the ESA preempted section 3003.1(c).

The district court found that the MBTA preempted Proposition 4, but the Ninth Circuit declined to address this issue because neither party argued it on appeal. The district court allowed Audubon to add the NWRSIA claim a year into the suit, and the Ninth Circuit agreed that the district court did not abuse its discretion in allowing the additional claim because the issue of preemption was not new and did not require additional discovery. The district court then held that the NWRSIA preempted section 3003.1(c) and that the regulation violated the Property Clause of the Constitution.[15] On appeal, only the NWRSIA claim was challenged. The Ninth Circuit, drawing on the reasoning of the Tenth Circuit on the same issue,[16] found that when an actual conflict occurs between state and federal policies under the NWRSIA, the state law is preempted. Based on this reasoning, the court upheld the finding by the district court that NWRSIA preempted section 3003.1(c) of Proposition 4.

The district court dismissed the trappers’ claims for failure to state a claim.[17] The Ninth Circuit disagreed with the district court, finding that the trappers had standing and a ripe claim. However, the Ninth Circuit agreed that the trappers’ constitutional claims failed on the merits. First, the trappers challenged Proposition 4 as discriminatory under the Commerce Clause.[18] Relying on the plain language of Proposition 4, the Ninth Circuit determined that it applied only to furs trapped within the state and thus did not discriminate against out of state trappers. The court also found that Proposition 4 did not burden interstate commerce because the legislation did not impose greater burdens on citizens of other states as compared to Californians. Second, the trappers challenged the ballot representation of Proposition 4 as a violation of due process. Again, the Ninth Circuit denied their claim as a matter of law because the ballot material was not misleading and did not rise to a level justifying relief. However, because the district court failed to address the trappers’ preemption claim under the ESA or the ADCA, the Ninth Circuit remanded those issues to the district court for consideration.

[1] National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. §§ 668dd-668ee (2000).

[2] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

[3] Id. §§ 703-712.

[4] 7 U.S.C. §§ 426-426c (2000).

[5] Cal. Fish & Game Code § 3003.1(c) (West 2003).

[6] U.S. Const. amend. XI.

[7] California asserted that it did not fall within an exception to sovereign immunity because that exception, known as the Ex parte Young exception, required a showing of imminent harm. Ex parte Young, 209 U.S. 123, 156-60 (1908).

[8] 209 U.S. 123 (1908).

[9] The Ninth Circuit cited several cases which applied the Ex parte Young exception to declaratory judgment scenarios, including Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041 (9th Cir. 2000).

[10] 504 U.S. 555 (1992).

[11] Id. at 560-61.

[12] Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 850 (9th Cir. 2002).

[13] U.S. Const. art. VI, § 1, cl. 2.

[14] 16 U.S.C. § 1532(3) (2000) (defining conservation to include the “use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which . . . [the protections provided by the ESA] are no longer necessary”).

[15] U.S. Const. art. IV, § 3, cl. 2.

[16] Wyoming v. United States, 279 F.3d 1214 (10th Cir. 2002) (holding that section 668dd(m) of the NWRSIA reflects Congress’s intent that principles of preemption should apply when state regulations conflict with the Act).

[17] Fed. R. Civ. P. 12(b)(6).

[18] U.S. Const. art. I, § 8, cl. 3.

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